State of Tennessee v. Bryant Jackson Harris - concurring ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 26, 2016 Session
STATE OF TENNESSEE v. BRYANT JACKSON HARRIS
Appeal from the Criminal Court for Hawkins County
No. 12CR218 John F. Dugger, Jr., Judge
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No. E2015-01724-CCA-R3-CD – Filed November 4, 2016
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THOMAS T. WOODALL, P.J., concurring.
I write separately to express my opinion that the trial court erred in its attempted
curative instruction to the jury during cross-examination of Defendant. As noted in the
majority opinion in its analysis of the mistrial issue, the prosecutor asked Defendant,
“And it’s true . . . that you never told any police officer that came to the scene any of this,
right?” Defendant objected on the basis that the question violated his constitutional right
to remain silent. The trial court sustained Defendant’s objection. However, in the trial
court’s attempt to minimize damage caused by the prosecutor’s question, the instruction
to the jury included that, “The defendant has a constitutional right against
self-incrimination.”
The express terminology “against self-incrimination” is not contained in either the
Fifth Amendment of the United States Constitution, nor in Art. I, § 9 of the Constitution
of Tennessee. In the Fifth Amendment, an accused cannot “be compelled in any criminal
case to be a witness against himself.” In Art. I, § 9, it is stated that an accused “shall not
be compelled to give evidence against himself.” The gratuitous statement of the trial
court, quoted above, implies that anything Defendant said to the police at the scene would
have been incriminating. An accused can constitutionally remain silent whether his/her
statements, if given, would be inculpatory, exculpatory, or a combination of these two
characterizations. For that reason, the terminology that an accused “has the right to
remain silent” has been appropriately “judicially articulated” as noted by the majority
opinion. The fact that it has been “judicially articulated” is a strong precedent for its use.
Despite error by the trial court in its “curative” instruction, I conclude the error is
harmless beyond a reasonable doubt since the objection was sustained prior to any answer
to the question being given by Defendant.
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THOMAS T. WOODALL, PRESIDING JUDGE