State v. Welcome ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE 1998 SESSION
July 15, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 03C01-9709-CR-00387
Appellee, )
) KNOX COUNTY
VS. )
) HON. RICHARD R. BAUMGARTNER,
MARCUS WELCOME, ) JUDGE
)
Appellant. ) (Robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
R. SCOTT CARPENTER TODD R. KELLEY
Asst. Public Defender Asst. Attorney General
1209 Euclid Ave. John Sevier Bldg.
Knoxville, TN 37921 425 Fifth Ave., North
Nashville, TN 37243-0493
RANDALL NICHOLS
District Attorney General
MARSHA SELECMAN
Asst. District Attorney General
-and-
JERRY HALL
Acting Asst. District Attorney General
City-County Bldg.
Knoxville, TN 37902
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted for robbery. Following a trial, the jury returned
a verdict of guilty. In this appeal as of right, the defendant argues that the convicting
evidence is insufficient to sustain his conviction and that a remark made by the
prosecutor during closing argument amounts to reversible error. Finding no merit in the
defendant’s arguments, we affirm.
The victim and a friend drove to a Knoxville nightclub. They became
separated when the nightclub closed, so the victim went to his car and began slowly
driving in the area searching for his friend. The defendant was standing down the street
on the corner. When the victim drove by, the defendant asked the victim for a ride home,
and the victim agreed. The victim continued to look for his friend for approximately ten
minutes, but when he still did not spot him, he decided to drive the defendant home.
As the victim drove, the defendant gave directions to an apartment complex.
The victim slowed the car and shifted the transmission into “park” to allow the defendant
to exit the car. The defendant reached over, grabbed the keys from the ignition, and ran
from the car. When the victim pursued him, the defendant stated, “Don’t be stupid, I have
a gun” and acted as if he were reaching for a gun. The defendant then ran back to the
car and began to drive away. The victim grabbed the partially opened passenger’s side
window and tried to open the door to stop the defendant. The defendant struck the
victim’s hands several times and continued to drive away with the victim hanging on to
the car. The victim was dragged one quarter of a mile before he lost his grip.
The victim walked to a nearby store where he called the police to report the
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incident. He was taken to the hospital, where he was treated for a sprained knee and
several abrasions to his arms and legs. Meanwhile, the victim’s car, which was being
driven by the defendant, was spotted, and the defendant was pulled over, arrested, and
transported to the police station. When the victim was released from the hospital, he
identified the defendant.
On appeal, the defendant argues that the evidence is insufficient to support
his conviction, in that the proof does not support the elements charged by the indictment.
The defendant was indicted for robbery under T.C.A. § 39-13-401, which defines robbery
as “the intentional or knowing theft of property from the person of another by violence or
putting the person in fear.” Even though robbery only requires proof of either violence or
fear, not both, the indictment in this case charged that the defendant “did unlawfully,
knowingly, by violence and by putting [the victim] in fear, take from the person of [the
victim] a 1982 Pontiac Trans Am motor vehicle, in violation of T.C.A. 39-13-401.” Even
so, the State presented sufficient evidence of both violence and fear. In an effort to take
the victim’s car from the victim, the defendant struck the victim’s hands several times and
dragged the victim for one quarter of a mile as the victim hung on to the car. This shows
the defendant took the victim’s property by violence. Moreover, the victim testified he
became scared when the defendant threatened he had a gun, which shows that the
defendant also used fear to separate the victim from his property. Since the State
presented adequate proof of both violence and fear, as provided in the indictment, the
defendant’s argument is without merit.
The defendant also argues that a remark made by the prosecutor during
closing argument amounts to reversible error. During the State’s closing argument, the
prosecutor told the jury, “If you don’t find the defendant guilty, if you come back with a
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not-guilty, he is going to walk out -- right out of this courtroom -- a free man. He is going
to rob someone else.” Defense counsel objected to this remark as improper, and the trial
court agreed. Defense counsel moved for mistrial, which the trial court denied. However,
shortly after the prosecutor’s remark, the trial court sua sponte instructed the jury to
“disregard any remark that applies to any suggestion of future conduct.” The defendant
now argues that nothing short of declaring a mistrial could have cured the prejudice
enured to him by the prosecutor’s improper remark.
Statements made in closing argument constitute reversible error only when
the statements were improper and that impropriety affected the verdict. State v. Sutton,
562 S.W.2d 820 (Tenn. 1978); State v. Pulliam, 950 S.W.2d 360 (Tenn. Crim. App.
1996). Commentary on the consequences of an acquittal are generally improper. See
Coker v. State, 911 S.W.2d 357 (Tenn. Crim. App. 1995); Bowling v. State, 3 Tenn. Crim.
App. 176, 458 S.W.2d 639 (1970). Nevertheless, in evaluating the impact of the remark,
this Court must consider the conduct in context; the curative measures undertaken; the
prosecutor’s intent in making the statement; the cumulative effect of the improper conduct
and any other errors in the record; and the relative strength or weakness of the case.
Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see State v. Buck, 670
S.W.2d 600, 609 (Tenn. 1984).
Here, the prosecutor’s remark was not the central focus of his closing
argument, and the record does not indicate that the prosecutor made the remark in bad
faith. In context, it was little more than a passing remark, and almost immediately, the
trial court warned the jury to disregard the prosecutor’s remark and base its decision
solely upon the evidence presented on the charged crime. The defendant does not
allege that the cumulative effect of this improper remark combined with other errors in the
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record was great; in fact, the defendant fails to identify any other errors in the record.
Considering all of this in conjunction with the strength of the State’s case, we conclude
that the prosecutor’s remark was not so inflammatory that it affected the verdict to the
defendant’s detriment, and we thus necessarily reject the defendant’s argument that the
prosecutor’s remark was incurably prejudicial. See Pulliam, 950 S.W.2d at 369 & n.3.
The defendant’s conviction is affirmed.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
DAVID G. HAYES, Judge
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