State v. Curtis Bolton

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 25, 1999
• Docket: 03C01-9707-CR-00255
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JULY 1998 SESSION February 25, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9707-CR-00255 ) ) Campbell County v. ) ) Honorable Lee Asbury, Judge ) CURTIS CECIL WAYNE BOLTON, ) (First degree murder) ) Appellant. )

For the Appellant: For the Appellee:

Charles Herman John Knox Walkup P.O. Box 337 Attorney General of Tennessee Jacksboro, TN 37757 and (AT TRIAL) Michael J. Fahey, II Assistant Attorney General of Tennessee Martha J. Yoakum 425 Fifth Avenue North District Public Defender Nashville, TN 37243-0493 P.O. Box 386 Tazewell, TN 37879 William Paul Phillips and District Attorney General Laura Rule Hendricks P.O. Box 10 606 W. Main Street, Suite 350 Huntsville, TN 37756 P.O. Box 84 Knoxville, TN 37902-0084 (ON APPEAL)

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The defendant, Curtis Cecil Wayne Bolton, appeals as of right from his

conviction by a jury in the Campbell County Criminal Court of first degree murder for

which he received a sentence of life imprisonment in the custody of the Department of

Correction. He presents the following issues for our review:

(1) whether the evidence is sufficient to support his conviction;

(2) whether a juror’s failure to reveal a relationship with an assistant district attorney general deprived him of a fair trial;

(3) whether impeachment of the defendant by a codefendant regarding the defendant’s prior bad acts denied him of a fair trial;

(4) whether the trial court erred by allowing the introduction of a diagram and the reference to a color photograph of the victim; and

(5) whether the state’s biblical reference in closing argument prejudiced the verdict and denied the defendant of a fair trial.

We conclude that no reversible error occurred.

At trial, Detective Eddie Barton of the Campbell County Sheriff’s

Department testified that he assisted in investigating the death of the victim, Cody

Bolton, the defendant’s two and one-half-year-old son. He said he went to the

defendant’s trailer at about 3:00 a.m. on November 23, 1995, after the victim was

admitted to the hospital. He said Lisa Boyer, the defendant’s live-in girlfriend and the

codefendant in this case, was at the trailer, and she told him that the victim had fallen

out of his highchair. An autopsy photograph of the victim was admitted into evidence

and reflected multiple injuries and bruises on the victim’s face, chest and arms.

On cross-examination, Detective Barton said that Ms. Boyer was very

calm and unemotional when he spoke with her. He said that she relayed the following

2 facts regarding that night: The defendant went to the emergency room because he

injured his finger at work earlier that day. The victim was put to bed and cried when the

defendant left the home, and she got him up to feed him at about 11:30 p.m. She put

the victim in his highchair and went to wash his tray in the bathroom, then she heard a

loud bang. She found the victim lying in the floor with a bruise near his left temple, and

he was not breathing. She became hysterical and slapped the victim three times on the

face to get him to breathe. The last time she slapped him hard, and he started to

breathe. She called her mother, then she called the emergency room to talk to the

defendant. She told the defendant to come home because the victim had fallen out of

his highchair, and the defendant came home and took the victim to the emergency

room. She stayed home with her and the defendant’s four-week-old daughter, Alisha.

The victim had been sick, and she had asked the defendant to call the clinic to get the

victim an appointment, but the clinic was closed. The victim had no injuries when the

defendant left to go to the emergency room for his finger.

Campbell County Sheriff Ron McClellan testified that both the defendant

and Ms. Boyer gave statements at the sheriff’s office. He said he noticed a bandage on

the defendant’s finger, and he asked the defendant how he injured his finger. He said

the defendant told him that he injured it at work. He said the defendant told him that

when he walked the victim to his bedroom later that night, the victim would not listen,

and he aggravated his injury by swatting the victim on the bottom.

Sharon Sutton testified that she lived in the trailer across from the

defendant and Ms. Boyer. She said that on November 22, 1995, she went to bed at

about 8:30 or 9:00 p.m. She said that after she went to bed, she heard thumps. She

stated that she got up and looked out of her front room window because she thought

someone was on one of her vehicles. She said she discovered that the thumps were

3 coming from the defendant’s trailer. She said she saw a man and a woman running

back and forth in the hall in the defendant’s trailer.

On cross-examination, Ms. Sutton said she had been in bed about thirty

minutes when she heard the thumps. She said she gave a statement to the police in

which she said she did not see or hear any children that night. She said she heard

more than one thump, possibly three, and she heard the thumps between 9:00 and

9:30 p.m.

Dr. Cleland Blake, the assistant chief medical examiner for Tennessee,

testified that he performed an autopsy on the victim on November 23, 1995. He said

the victim had many bruises of differing ages on his body. He said the victim had fresh

bruises covering the left side of his face, a bruise under the high right part of his scalp,

and a broken right collarbone. He said the victim had deep bleeding under his scalp at

the top of his head and in the right side of his brain under the skull. He said that this

type of bleeding is caused by an impact to the left side of the head which forces the

brain across the skull and causes it to bounce against the other side of the skull, tearing

blood vessels and causing the bleeding. He said the victim had swelling and

compression of the brain that pushed the brain stem down to the hole in the base of the

skull and cut off the victim’s blood supply, ultimately causing his death.

Dr. Blake testified that the victim’s fatal injury was on the left side of the

victim’s face on his jaw, left cheek, temple, and behind his left ear. He said the injury

was caused by the blunt impact of a surface that pressed the left ear against the head.

He said that when the victim arrived at the emergency room at 11:00 p.m., the victim

was unconscious. He said the injury would have occurred two to three hours earlier,

not immediately before he was brought to the hospital. He said the victim had fresh

injuries on the left side of his face, the back of his head, the back of his right shoulder,

and his buttocks. He said that the bruise on top of the victim’s head was consistent

4 with the victim falling out of a highchair, but it did not cause his death. He said it is

inconceivable that the victim’s internal bleeding or brain injuries resulted from falling out

of a highchair, and to receive such injuries from a fall, the victim would have had to fall

more than twenty feet. He said the victim’s injuries were consistent with child abuse,

and the victim’s fatal injury had to be from a very forceful blunt impact between an

object and the victim’s head. He said that after the victim received the injury, he would

have gradually lost consciousness, which could have caused him to fall out of the

highchair. He said the injuries on the victim’s back and right shoulder and his broken

collarbone show that there were definitely two impacts.

On cross-examination, Dr. Blake testified that the victim had some

bruising where life support equipment was attached, but he said the bruising was

different from the victim’s injuries. He said that attempts to resuscitate the victim by

slapping him hard on the face would not have caused the victim’s injuries or his death.

He said the victim’s bruises that were one to two days old did not contribute to his

death.

Keith McKamey testified that he is a paramedic and that he saw the

defendant bring the victim into the emergency room on the night of the incident. He

said the defendant was walking at a normal pace toward the hospital. He said he

stopped the defendant and asked him what happened, and the defendant said the

victim had fallen out of his highchair. He said he told the defendant to take the victim

inside. He said he went back to his ambulance to prepare it for the next call and when

he finished, he went into the emergency room. He said the defendant was standing

inside the door holding the victim. He said he asked the defendant if anybody had

helped him yet, and he could tell the victim was in bad condition. He said he checked

the victim’s pulse, and it was in the fifties or sixties. He said he took the victim back to

5 the triage room. He said he was surprised that the defendant had not yet taken the

victim back, and the defendant was not yelling or asking anyone for help.

On cross-examination, Mr. McKamey testified that there was one person

working at the emergency room window, and she was talking to someone when he

entered the room. He said the defendant carried the victim back to the examining

room, and he showed the defendant where to go.

Christy McCulley testified that she was the registration clerk at the

emergency room that night. She said she had gone to school with the defendant. She

said the defendant first registered at 10:57 p.m. with an injured hand. She said that

while the defendant was waiting to be treated, a female called to speak with the

defendant. She said the woman, who was crying, told her it was an emergency and

asked her to hurry. She said she rang the call to the pay telephone in the waiting area,

and the defendant was told to answer it. She said she saw the defendant thirty to forty

minutes later with the victim, who looked asleep. She said she was registering another

patient, and the defendant stood in the corner. She said the defendant never told her

the victim’s condition, he was not emotional, and he did not yell for help. She said that

Mr. McKamey finally drew her attention to the victim.

Vivian Loudy testified that she was working as a nurse in the emergency

room that night. She said she saw the doctors’ assistants carry the victim into the

examination room. She said the victim was very pale, limp and cold, and he appeared

to be near death. She said the victim’s pulse was very slow, and his breathing was

erratic. She said the police were called.

Dr. Peter V. Claussen testified that he was on duty at the University of

Tennessee Hospital in Knoxville that night. He said the victim was flown to UT Hospital

6 from Campbell County by LifeStar. He said the victim’s symptoms were consistent with

a blunt, closed-head trauma, and the victim had massive bleeding inside the brain. He

said the victim had other injuries consistent with child abuse. He said the victim’s

injuries could not have been caused by a fall from a highchair. He said the fall would

have had to be from about twenty feet. He said the victim’s injuries were consistent

with him having been thrown into a wall with substantial force, and the fatal injuries

occurred one to two hours before the victim was brought to the emergency room. He

said the victim may have lost consciousness from the blow, regained consciousness,

then deteriorated again. He said it would take the victim one to two hours after the

injury to become cold, to have a weak pulse, and to be near death.

On cross-examination, Dr. Claussen testified that it would be possible for

a strong, young adult male to throw the victim into a wall covered with paneling. He

said that such a force would cause the injuries the victim received.

Lisa Boyer, the codefendant, testified that she began living with the

defendant a few weeks before the incident. She said she was seventeen, and the

defendant was twenty-two. She said she and the defendant had a four-week-old baby,

Alisha, at the time of the incident, and her delivery required a third degree episiotomy.

She said she still had stitches from the episiotomy at the time of the incident. She said

the victim was not her child, but he lived with her and the defendant, and she cared for

him during the day when the defendant was at work. She testified that the defendant

was not a good father. She said he did not have a steady job, he did not buy groceries

for the family, and he did not pay for anything other than the rent. She said she had

A.F.D.C. and W.I.C. benefits and food stamps.

Ms. Boyer testified that the weekend before the incident, the victim stayed

with the defendant’s mother. She said that when the victim returned, he was sick. She

7 said he was weak and had a fever and loss of appetite. She said she gave the victim

Tylenol and Triaminic. She said three doctor’s appointments had been scheduled for

the victim, but the defendant canceled all of them. She said she could not take the

victim to the doctor because she had no transportation and because the defendant

would not allow it. She said that on November 22, 1995, she was baking pies for

Thanksgiving the next day. She said the defendant came home from work at about

6:30 p.m. and said he had injured his finger at work. She said the defendant told her

that he needed to get a car part, and she told him to pick up some Karo syrup while he

was gone. She said that when the defendant left, she finished feeding Alisha and went

to give the victim a bath. She said she took off the victim’s shirt and saw a massive

amount of bruises on his chest. She said this scared her, and she decided not to bathe

him.

Ms. Boyer testified that the defendant returned about one and one-half

hours later, but he had forgotten the Karo syrup. She said the defendant complained

about his finger, and she told him to call his sister. She said the defendant took the

victim into the bathroom, changed the victim’s clothes, and talked to his sister with the

door closed. She said he then left to get the syrup and came back about ten minutes

later. She stated that she made dinner for the defendant and the victim, and the

defendant sat on the couch and ate. She said she tried to feed the victim, but he did

not want to eat. She said she poured grape juice for the victim and told him that if he

ate, he would get to drink the juice. She said the victim took a bite of food and chewed

then drank some juice. She said she turned around, leaving the juice cup on the

victim’s tray, and the victim tried to drink the whole cup of juice. She said this caused

the victim to choke, and he spit up his food on the highchair tray.

Ms. Boyer testified that she asked the defendant to help her because she

was trying to take care of Alisha. She said the defendant got the victim down from the

8 highchair and said he was tired of the victim gagging. She said the defendant turned

the victim over his knee and spanked him. She said the defendant would not stop

spanking the victim, and she finally told him to leave the victim alone and to take him to

his bedroom. She said the defendant continued to spank the victim as they walked

through the hall to the victim’s room, and the defendant hit the victim so hard he started

to fall forward. She said the defendant grabbed the victim by his shirt collar and carried

him into the bedroom. She said she put Alisha down and took the victim’s tray to the

bathroom to wash it. She said she passed the victim’s room and saw the victim

standing up while the defendant was pointing at him and talking to him. She said that

she took the tray to the bathroom and started to spray it off when she heard a loud

thump from the victim’s bedroom. She said she ran to the bedroom and saw the

defendant holding the victim by his ankle and wrist, and the defendant threw the victim

against the wall above the victim’s bed. She said the victim bounced off the wall and

landed face forward, limp on his bed. She said the defendant then reached up and

spanked the defendant’s bottom very hard. She said she screamed and told the

defendant that he had done enough and to get out of the room. She said the defendant

came out and said “I warped him so hard, I can’t believe he is not crying, I warped him

so hard I hurt my hand.”

Ms. Boyer said she told the defendant to go to the hospital. She said that

before he left, the defendant told her to try to feed the victim. She said the defendant

told her if the victim would not eat, she should leave him and go to bed, and he would

deal with him when he got home. She said she went to the kitchen and made the victim

a new plate of food. She said she went to get the victim out of bed, but he was not

responsive. She said she helped the victim out of bed, and she noticed that he was

walking funny with his legs crossed, and he was slouched and scooting. She said the

victim reached the highchair, and she told him to hop up. She said the victim did not

respond but made a moaning noise. She said she tried to pick up the victim while she

9 was holding Alisha, but this caused her to stumble forward toward the highchair, and

the victim bumped his head on the wall. She said she straightened the victim, gave him

some food, and asked him to eat. She said the victim stared straight ahead, and his

eyes looked dilated. She said the victim started to slide back in his chair and tried to

slide down. She said she put Alisha down and went to the bathroom to get the victim’s

tray, and she heard a loud thump. She said she ran to the kitchen and saw that the

victim had fallen out of his highchair and was lying on the floor.

Ms. Boyer said she ran to the victim and rolled him over, but he was not

breathing and had no pulse. She said she became panicked and scared, and she

yelled the victim’s name. She said she picked up the victim, ran to the bathroom, and

splashed cold water on his head, but the victim did not respond. She said she slapped

him lightly twice and hard once, and the victim began to breathe. She said she tried

CPR on the victim but got no response. She said she noticed extremely large bruises

on the side of the victim’s face, and the victim was still not breathing normally. She said

she called her mother who told her to call an ambulance. She said she did not call an

ambulance because she had not lived in the trailer long, and she did not know the

address or box number. She said she called her mother again and was hysterical, and

her mother told her to call the defendant. She said she called the defendant at the

hospital and told him that the victim had fallen out of his highchair and was not

breathing. She said she asked the defendant if she should call an ambulance, and the

defendant told her she should not, and he would be home in a few minutes. She said

the defendant arrived and asked if the victim was breathing, and she said she told the

defendant, “barely.” She said the defendant dumped a glass of water on the victim,

then picked him up and took him to the hospital.

Ms. Boyer testified that Detective Barton took her statement early the next

morning. She said she told him about the victim falling out of the highchair, but she did

10 not tell him what the defendant had done because she was afraid of the defendant.

She said she later told Detective Scott Smith what the defendant had done, and she

waited so long because she was afraid of the defendant and because she felt guilty

about letting the victim fall out of the highchair.

On cross-examination, Ms. Boyer said that she first gave a statement to

Detective Barton at the trailer on November 23 at 3:00 a.m. She said the defendant

was not at the trailer when she gave the statement. She said she gave a recorded

statement to Detective Smith and Sheriff McClellan at the sheriff’s department on

November 23 at 4:55 p.m. She said the officers talked to her for about an hour and

one-half before her statement was recorded, and Detective Smith told her to cut

through the “bulls**t” because he had a preliminary autopsy report indicating that the fall

from the highchair and her efforts to resuscitate the victim killed him. She said Smith

told her that a request for a lawyer would be considered a lack of cooperation, and if

she did not say what he wanted to hear, he would try to send her to the electric chair.

She admitted that she was advised of her rights and was willing to talk without an

attorney. She admitted that in the second statement, she said that she picked up the

victim and tossed him into his highchair and that his head flew back and hit the wall, but

she testified that the statement was not in her own words. She said that after she gave

the second statement, she was placed in a cell and charged with murder. She said that

five or six hours later, she gave a third statement to Detective Smith, and she finally told

him what the defendant had done.

Ms. Boyer testified that the defendant had previously threatened her and

told her that he knew everybody in town and that they would believe him not her. She

said he told her that her baby would be taken away and that he could cry at the drop of

a hat. She said the defendant liked to aggravate the victim. She said he thought it was

funny to push the victim down. She said he would also straddle the victim on the floor

11 and hold him down until the victim screamed or cried. She testified that the defendant

would pick up the victim by his head and shake him. She said that once during toilet

training when the victim wet the floor, the defendant told her she should rub the victim’s

nose in it like a dog. She said the defendant took the victim into the bathroom and put

the wet underpants on the victim’s head as the victim cried. She said she did not take

out an order of protection against the defendant because she was scared.

On cross-examination by her attorney, Ms. Boyer stated that she is five

feet, one inch, and she weighs ninety-five pounds. She said she initially believed that

the victim’s fall from the highchair caused his death. She said she felt intimidated by

Detective Smith, and she had seen him talking with the defendant’s family earlier. She

said that the district attorney did not promise her anything for her testimony and that

she was only testifying to tell the truth. She said she did not cause the victim’s injuries

and did not physically punish the victim.

Clyde Taylor, the defendant’s brother-in-law, testified that the defendant

worked for him at his business, T&T Vinyl Siding, on November 22, 1995. He said the

defendant injured his right hand at work that day. He said the defendant finished

working but complained about his hand. He said the defendant left his car at Taylor’s

house that morning, and the defendant rode with him to his house after work to pick up

his car. He said that later that night, the defendant called Taylor’s wife and told her that

the victim was ill, and he said his wife went to the hospital. He said he called Lisa

Boyer at the trailer, and Ms. Boyer told him that she had been feeding the victim in his

highchair when she left to wash his tray. He said Ms. Boyer told him that she heard a

thump and found the victim lying unconscious on the floor. Mr. Taylor testified that he

went to the trailer the day after the victim died to get things for Alisha, who was staying

with him and his wife, and the trailer was clean and orderly. He said the victim’s bed

was made. He said the defendant had not been back to the trailer since the incident.

12 Mr. Taylor said the defendant was a good employee, and he never saw the defendant

mistreat the victim.

On cross-examination, Mr. Taylor testified that the defendant had worked

for him full-time for eight months preceding the victim’s death. He said the defendant

was making as much as three hundred dollars each week. He said he did not know

that the defendant had applied for food stamps and A.F.D.C. benefits on October 23,

1995. He identified an A.F.D.C. application in which the defendant reported that he

earned four hundred and fifty dollars the preceding month. Mr. Taylor said the

defendant no longer works for him, but he denied that the defendant was fired because

of drug use. He said his wife maintains the payroll records for his business, and the

records do not contain the hourly wages paid to employees.

Lisa Taylor, the defendant’s sister, testified that she operates her

husband’s business office. She said she sometimes prepares the payroll. She said

she never saw the defendant mistreat the victim, and they had a normal father/son

relationship. She said she drove the defendant and their parents to UT Hospital the

morning of the incident, and the defendant was crying and appeared to be devastated.

She said that two interns at UT told them that the victim had head injuries. She said the

interns told them the injuries were not consistent with the victim falling out of a

highchair, and the defendant looked shocked. She said the defendant saw the victim at

UT before he died, and the defendant was crying and looked like he might faint. She

said that earlier that day when the defendant and her husband returned from work, the

defendant’s finger was taped. She said the defendant called her later that night at 8:58

p.m. She said that she went with her husband to the defendant’s trailer after the victim

died, and the trailer was immaculate.

13 On cross-examination, Ms. Taylor testified that the defendant worked for

her husband periodically. She said he worked mostly full-time during the year

preceding the victim’s death. She said the defendant made about seven dollars an

hour, and he worked long hours in the weeks preceding the victim’s death. She said

she was unaware that a month before the victim’s death, the defendant had applied for

A.F.D.C. benefits and food stamps. She acknowledged that on the application, the

defendant reported earning four hundred and fifty dollars per month, and she said that

was a lie. Ms. Taylor said that their mother, Ruth Bolton, was the victim’s primary

caretaker, but she said both Mr. and Mrs. Bolton were sick around Thanksgiving of

1995. She said she and her other siblings felt it was too much for their parents to try to

care for the victim, and they felt the defendant should take care of his own child.

Ella Nolan testified that she was in the emergency room with her daughter

on November 22, 1995. She said the pay telephone rang, and she answered it. She

said a female who seemed calm asked for the defendant, and the defendant took the

call. On cross-examination, she said she did not know if it was the receptionist who

rang the pay telephone.

Ella Suzanne Nolan, the granddaughter of Ella Nolan, testified that she

was at the emergency room that night, and her grandmother asked her to find Curtis

Bolton. She said she found him, and the defendant answered the telephone. She said

the defendant left and returned about twenty or thirty minutes later carrying the victim.

She said the defendant took the victim to the front desk, then went back into the

examination room. She said the defendant then came out and paced up and down the

hall.

Brian Lloyd, the defendant’s cousin, testified that the defendant, the

defendant’s ex-wife, and the victim lived with him for a few months in the early fall of

14 1994. He said he never saw the defendant mistreat the victim, and they had a good

relationship. He said the defendant would scold the victim and smack his hand. On

cross-examination, he said he did not observe the defendant when he lived with Ms.

Boyer, and the victim was barely walking when he lived with him.

The defendant’s mother, Mary Ruth Bolton, testified that after the

defendant divorced his first wife, the victim’s mother, the defendant and the victim lived

with her and her husband. She said the defendant and victim had a loving relationship,

and she never saw the defendant mistreat the victim. She said the defendant paid her

one hundred dollars per week to buy the victim’s food and supplies. She said the

defendant also made a car payment to her. She denied telling Ms. Boyer to keep an

eye on the victim when the defendant was around.

Mrs. Bolton testified that the defendant called her from the hospital on the

night of the incident. She said she and her husband arrived at the hospital about ten

minutes later, and the defendant was crying. She said the defendant could not tell her

what was wrong, and he only said that the victim fell out of his highchair. She said her

daughter drove them to UT Hospital, and the defendant cried the entire way. She said

the defendant said, “He couldn’t have hit his head that hard, he couldn’t have.” She

said that when they arrived at UT Hospital, the defendant sat and cried. She said he

tried to see the victim, but he was not allowed. She said the defendant has lived with

her and her husband since the incident.

Mrs. Bolton said that on the night of the incident, she talked with Ms.

Boyer on the telephone. She said Ms. Boyer told her that the victim was sitting in his

highchair, and the defendant was at the hospital getting his finger treated. She said

she could hear the victim talking.

15 On cross-examination, Mrs. Bolton testified that she took care of the

victim when the defendant worked or went out to eat. She admitted that she took care

of the victim a lot more than the defendant did, but she denied that the victim went to

live with the defendant because her other children said he should. She said the victim

went to live with the defendant because the defendant wanted to make a home for the

victim. She said that she would do anything for the defendant and that she would not

be much of a mother if she did not. She said she bought a car for the defendant, but

he paid her for it. She said she paid off the defendant’s bad checks. She said if the

defendant needed something, he would not hesitate to ask her for it. With regard to the

defendant’s application for A.F.D.C. benefits and food stamps, she said that she

believed the defendant requested that she not be contacted because the defendant

knew she would give him money and that he thought she had given him enough. She

said the defendant was not working full time. She said that she did not want the

defendant to go to jail. She said that the defendant had been living with Ms. Boyer

about two or three weeks before the victim’s death. She said that it was later than 5:00

p.m. when she talked to Ms. Boyer on November 22. On redirect examination, Mrs.

Bolton said that she would not lie under oath for the defendant.

The defendant testified that he worked for his brother-in-law at T&T Vinyl

Siding periodically for two years. He said he also worked at Goody’s, Little Caesars

Pizza and Taco Bell. He said he was fired from Goody’s because of excessive

absenteeism. He said that his brother-in-law did not fire him from T&T Vinyl Siding. He

said that when he worked for his brother-in-law, his weekly paycheck varied from one

hundred to two hundred dollars. He said he paid three hundred dollars per month in

rent, and he occasionally bought food for his family. He said that Ms. Boyer had

A.F.D.C. benefits and food stamps. He said he provided clothing for the victim, and his

parents helped buy things for the victim. He said the victim spent a great deal of time at

16 his parents’ house. He said his mother was very attached to the victim. He said he

loved the victim with all his heart.

The defendant testified that on November 22, 1995, he worked on a job

for his brother-in-law. He said he had been working steadily there for the preceding

three or four weeks. He said he injured his hand that day at about 2:00 or 3:00 p.m.,

but he continued to work. He said that when he returned home from work, Ms. Boyer

told him that earlier that day, the victim had a temperature of one hundred and one

degrees, and she had given him medicine. The defendant said the victim looked like he

did not feel well and was unresponsive. He said he tried to make a doctor’s

appointment for the victim, but the clinic was closed for Thanksgiving. He said he gave

the victim a bath while Ms. Boyer fed Alisha. He said that when he finished, he told Ms.

Boyer that he was going to Wal-Mart to get a car part, and Ms. Boyer asked him to pick

up Karo syrup. He said he did not find the car part, and he came back home, but he

forgot the syrup. He said Ms. Boyer raised her voice, and he went back out and got the

syrup.

The defendant stated that when he returned home, Ms. Boyer prepared

dinner. He said he told Ms. Boyer that he might go to the emergency room later that

night because of his finger, and he said he called his sister because she had studied

nursing. He said he put the victim in his highchair to get him to eat. He said the victim

started choking on his pork chop, and Ms. Boyer told the victim he could not have any

juice until he ate. He said he told Ms. Boyer to give the victim the juice. He said the

victim drank the juice but would not eat. He said he took the victim out of the highchair

and sat the victim beside him on the couch. He said the victim watched television and

still would not eat. He said that at about 10:30 p.m., he told Ms. Boyer he was going to

the emergency room, and he put the victim to bed. He said he took the victim by the

17 hand and led him to bed. He said the victim crawled into bed and cuddled up to his

pillow. He said he turned out the light and told the victim he loved him.

The defendant testified that he went to the emergency room and while he

was waiting, he received a telephone call from Ms. Boyer. He said Ms. Boyer was

crying and frantic, and she told him that the victim had fallen out of his highchair. He

said he immediately sped home. He said it never occurred to him to get an ambulance.

He said that when he arrived home, the victim was lying face down in his bed and

appeared pale, limp and helpless. He said he rolled the victim over and tested for a

pulse, and the victim’s eyes were dilated. He said he scooped up the victim, ran

through the trailer, and told Ms. Boyer he would be back later or he would call her.

The defendant stated that when he arrived at the emergency room with

the victim, two paramedics asked him what happened. He said he told them that the

victim had fallen out of his highchair. He said one of the paramedics took the victim’s

pulse, and the defendant took the victim into the examining room. He said he left the

victim and went to move his car, and when he came back, the doors leading to the

victim were locked. He said he sneaked in behind an employee but was escorted out to

the waiting room. He said he asked the front desk staff what was happening, but they

did not give him any information. He said he called his parents from the pay telephone,

and they came to the hospital. He said he repeatedly tried to get information on the

victim’s condition but could not. He said when an employee asked him to give consent

to have the victim flown to UT Hospital on LifeStar, he was shocked because he did not

know the victim’s condition was that serious. He said he and his family went to UT

Hospital where he stayed until 2:00 or 3:00 p.m. Thanksgiving day. He said he was told

that the victim suffered a heavy blow to the head and had very little chance of surviving.

18 The defendant testified that he never told Ms. Boyer to wake up the victim

and feed him. He said his methods of discipline included a slight swat on the victim’s

diaper or a smack on his hand. He said he did not throw the victim against a wall.

On cross-examination, the defendant testified that the day before his

testimony at trial, he called to speak to a friend, Bridgette Vickory, and he told Vickory’s

friend Rita Jean Dabney that if Vickory loved him, she should do something because

the situation was not looking good. He said that by “situation,” he meant the trial. He

testified that he is healthy and strong and that his jobs have entailed a lot of heavy

lifting. He said he knew that Ms. Boyer had a difficult pregnancy with Alisha. He said

that during the past year, Alisha had been in DHS custody, and he had called only two

or three times to check on her welfare. He said that in the past several months, he had

made no effort to check on her welfare.

The defendant testified that he did not purchase pain medication for his

finger when he went to look for a car part because he had pain medication at home. He

admitted to giving a statement to Detective Smith on November 23 in which he said he

did not have any pain medication in the house. He admitted to giving a statement to

Detective Barton in which he said that on the night of the incident, he fed the victim

juice and gave him Tylenol as he was walking out the door to go to the hospital for his

finger. He admitted that his testimony on the stand was different from the statement he

gave to Detective Barton.

The defendant stated that after he received the call from Ms. Boyer at the

hospital, he ran to his car which was parked where the ambulance was parked. He said

he did not ask anyone at the hospital for help. He said that when he returned to the

hospital with the victim, two paramedics were flirting with the desk worker, and he had

to get their attention. He denied swatting the victim’s bottom that night. The defendant

19 admitted that things were not going well around the house in the weeks preceding the

victim’s death. He said he slept on the couch, and Ms. Boyer slept with the children. A

statement by the defendant to Detective Smith was read into evidence in which the

defendant stated that he suspected Ms. Boyer of seeing someone else and that he had

glued the delete button on their caller identification box so that Ms. Boyer could not

delete her telephone calls. At trial, he denied gluing the delete button.

The defendant stated that he did not think about taking the victim with him

to the emergency room the first time even though Ms. Boyer had told him that the victim

had been sick for two weeks. He admitted that he might have failed to keep three

doctor’s appointments that Ms. Boyer had made for the victim. He said that he and Ms.

Boyer had agreed that he would discipline the victim, and he said he never saw Ms.

Boyer discipline the victim. He said he rarely saw the victim other than fifteen minutes

before work and fifteen minutes after work.

With respect to the application for A.F.D.C. and food stamps, the

defendant admitted that he listed his income as four hundred and eighty dollars per

month. The defendant’s tax records were admitted into evidence, and they reflected

that the defendant earned four thousand seven hundred and eighty dollars during a four

month period. The defendant admitted that he lied on the A.F.D.C. and food stamp

application for the purpose of receiving money. He explained that he must have

inadvertently checked the “do not contact” box, listing his mother and Ms. Boyer, due to

his poor eyesight. He admitted that he had seven worthless check charges and that

passing a worthless check is a form of lying. He said that the jury had no reason to

believe his testimony at trial.

Detective Scott Smith testified that he took a statement from Ms. Boyer on

November 23, 1995, at 4:55 p.m. He said he talked to her for thirty to thirty-five

20 minutes before taping the statement. He said that he may have intimidated Ms. Boyer,

but he did not threaten her. He said he interviewed Ms. Boyer again at 11:21 p.m., and

a portion of the statement was read into evidence. In the statement, Ms. Boyer said

that she was holding Alisha and trying to help the victim into his highchair, but she was

dropping both of them. She said she was trying to drop the victim into the highchair,

and she did not mean to throw him into the highchair. She said she did not think the

victim would hit his head.

On cross-examination, Detective Smith testified that when he interviewed

Ms. Boyer, he did not have the autopsy results. He said he did not know that the victim

was already dying of a head injury when Ms. Boyer tried to get the victim in his

highchair. He said Ms. Boyer looked like she felt guilty about the victim falling out of his

highchair. He said that his original theory of the case was that the victim was fatally

injured from falling out of the highchair but that his theory changed when he received

the autopsy results.

Arthur Jones, Jr., the boyfriend of Ms. Boyer’s mother, testified that since

the incident, Ms. Boyer had seen Alisha three days per week and as often as she was

allowed. He said Ms. Boyer called to check on Alisha nearly every night. He said that

when Ms. Boyer is angry, she withdraws and does not become aggressive.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his

conviction. Specifically, he argues that Ms. Boyer was an accomplice, and her

testimony was not corroborated. The state contends that Ms. Boyer was not an

accomplice and that even if she was, her testimony was adequately corroborated.

21 Our standard of review when the sufficiency of the evidence is questioned

on appeal is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

In Tennessee, a conviction may not be based upon the uncorroborated

testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). An

accomplice is an individual who knowingly, voluntarily and with common intent

participates with the principal offender in the commission of an offense. State v.

Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). “Mere presence at the scene

of a crime does not make one an accomplice, nor does the mere fact that one was

indicted for the same offense as the accused.” Letner v. State, 512 S.W.2d 643, 647

(1974). When the facts are undisputed regarding a witness’s participation in the crime,

whether he is an accomplice is a question of law for the trial court. State v. Perkinson,

867 S.W.2d 1, 7 (Tenn. Crim. App. 1992). However, when the facts are disputed or

susceptible to different inferences, it is a question for the jury. Conner v. State, 531

S.W.2d 119, 123 (Tenn. Crim. App. 1975). The jury determines whether an

accomplice’s testimony has been sufficiently corroborated. Pennington v. State, 478

S.W.2d 892, 898 (Tenn. Crim. App. 1971) (citation omitted). The general rule is that:

there must be some fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant’s identity. This corroborative evidence may be direct or entirely circumstantial, and it need not be adequate, in and of itself, to support a conviction; it is sufficient to meet the requirements of the rule if it fairly and legitimately tends to connect the defendant with the

22 commission of the crime charged. It is not necessary that the corroboration extend to every part of the accomplice’s evidence. The corroboration need not be conclusive, but it is sufficient if this evidence, of itself, tends to connect the defendant with the commission of the offense, although the evidence be slight and entitled, when standing alone, to but little consideration.

Hawkins v. State, 469 S.W.2d 515, 520 (Tenn. Crim. App. 1971) (citations omitted).

In the present case, Ms. Boyer was indicted along with the defendant for

first degree murder. The trial court submitted to the jury the issue of whether Ms. Boyer

was an accomplice and instructed the jury on the need for corroborating evidence if it

found Ms. Boyer to be an accomplice. With respect to the state’s argument that the

jury’s acquittal necessitates a conclusion that it found her not to be an accomplice, our

supreme court has concluded that a codefendant’s acquittal does not affect his or her

status as an accomplice witness. See Ripley v. State, 189 Tenn. 681, 688, 227 S.W.2d

26, 29 (1950). Thus, the jury could still find Ms. Boyer to be an accomplice despite her

acquittal.

However, we believe that ample evidence exists from which a jury could

conclude that Ms. Boyer was not an accomplice. The jury could have chosen to

accredit Ms. Boyer’s testimony, thus negating a finding that she knowingly, voluntarily

and with common intent united with the defendant to commit the offense. In any event,

we also believe that if the jury did find Ms. Boyer to be an accomplice, the evidence

sufficiently corroborates her testimony. The medical examiner testified that the victim’s

injuries did not come from a highchair fall but rather from a strong impact to the victim’s

head with a blunt object. It is significant that when Ms. Boyer finally told Detective

Smith about the defendant slamming the victim into the wall, it was before the autopsy

results, which supported Ms. Boyer’s statement, were available. Furthermore, the

medical examiner’s testimony regarding the timing of the victim’s injuries is consistent

with Ms. Boyer’s testimony, as is the testimony of Sharon Sutton. The doctor who

23 treated the victim when he arrived at UT Hospital testified that the victim’s injuries were

consistent with a strong, young adult male throwing the victim into a wall. Sheriff

McClellan testified that the defendant told him he aggravated his finger by swatting the

victim on the bottom that night. Finally, the defendant testified that he was the sole

disciplinarian of the victim and that he had never seen Ms. Boyer discipline the victim.

We hold that this evidence sufficiently corroborates the testimony of Ms. Boyer.

II. JUROR BIAS

The defendant contends that he was denied a fair trial when a juror failed

to reveal a past relationship between the juror and a prosecutor during voir dire. The

state responds that the defendant failed to prove that the juror was impartial or biased

against him. We conclude that the juror had an obligation to reveal his relationship with

the prosecuting attorney, and the failure to do so results in a presumption of bias.

However, we believe that the presumption of bias was sufficiently rebutted.

The juror at issue is Barry Myers. During voir dire, the trial court asked

the prospective jurors, “Do any of you at this time have or have you at any time in the

past had any relationship with any of these parties or attorneys which might in any way

affect your impartiality as jurors?” One prospective juror told the court that he was the

neighbor of one of the defense attorneys and that he did not feel he could ignore the

relationship and decide the case on the evidence. The prospective juror was dismissed

by the trial court. Another member of the venire volunteered that he was friends with

Sheriff McClellan, a state’s witness, and that he thought it was possible that the

relationship might interfere with his impartiality. The prospective juror was also excused

by the trial court. Another prospective juror stated that he was a former client of one of

the defense attorneys but that he believed he could fairly decide the case, and he

remained on the panel.

24 The transcript of the voir dire reflects that the state and the defense

attorneys conducted individual questioning of each potential juror. Of the seven venire

members who were questioned before Mr. Myers, the state specifically asked five of

them if they knew Assistant District Attorney General Shayne Sexton or any other

member of the district attorney’s office. Mr. Myers was not asked by either the state or

the defense if he knew any members of the district attorney’s office, but the state did

ask him if he knew of anything the trial court should know that had not been asked, and

he replied that he did not. Of the remaining venire members, some were asked

specifically if they knew members of the district attorney’s office and some were not.

At the hearing on the defendant’s motion for a new trial, Mr. Myers

testified that he went to high school with Assistant District Attorney General Shayne

Sexton. He said that he and another person were roommates with General Sexton for

nine months during the 1982-83 school year at The University of Tennessee. He said

that after college, he saw General Sexton possibly once a year or every two years. He

said he considered General Sexton to be a friend, but he did not have regular contact

with him. He said he remembered being asked if any venire members had a past

relationship with the attorneys that would affect their impartiality, and he admitted that

he made no response. He said he remembered that one venire member stated that he

was the neighbor of an attorney, and that person was excused.

On cross-examination, Mr. Myers testified that the questions were asked

in the context of whether the relationship would affect the jurors’ impartiality. He said

he did not intend to conceal the relationship, rather he did not feel that it would affect

his decision. He testified that he served as a juror on a case two weeks before the

present case in which General Sexton was the lead prosecutor. He said the trial

resulted in a hung jury, and he voted to acquit the defendant. He said he based his

decision in the present case on the law and evidence presented, and he said he voted

25 to find Ms. Boyer not guilty. He said he was never asked if he knew General Sexton,

and although he considered General Sexton to be a friend, he did not have much

contact with him.

Assistant District Attorney General Shayne Sexton testified that he had

passing contact with Mr. Myers since college, and he considered him to be a friend. He

said he did not remember telling District Attorney General Phillips or Assistant District

Attorney General Ripley about his relationship with Mr. Myers, although he said he

might have told them that Mr. Myers would make a good juror. He acknowledged that

he did not disclose the relationship to the defense attorneys or to the trial court. He

said he did not think that his association with any juror would affect that juror’s fairness.

Challenges to juror qualifications generally fall into two categories --

propter defectum or propter affectum. Partin v. Henderson, 686 S.W.2d 587, 589

(Tenn. Ct. App. 1984). General disqualifications such as alienage, family relationship

or statutory mandate are classified as propter defectum and must be challenged before

the return of a jury verdict. State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App.

1993). An objection based upon bias, prejudice or partiality is classified as propter

affectum and may be made after the jury verdict is returned. State v. Furlough, 797

S.W.2d 631, 652 (Tenn. Crim. App. 1990). The burden of proof with respect to juror

bias or partiality rests with the party alleging the bias. Durham v. State, 182 Tenn. 577,

584, 188 S.W.2d 555, 559 (Tenn. 1945).

In Akins, this court addressed the issue of a juror’s failure to disclose

information reflecting potential bias or partiality and stated as follows:

We hold that when a juror’s response to relevant, direct voir dire questioning, whether put to that juror in particular or to the venire in general, does not fully and fairly inform counsel of the matters which reflect on a potential juror’s possible bias, a presumption of bias arises. While that presumption may be rebutted by an absence of actual prejudice, the court must

26 view the totality of the circumstances, and not merely the juror’s self-serving claim of lack of partiality, to determine whether the presumption is overcome.

867 S.W.2d at 357. The court also stated that the “integrity of the voir dire process

depends upon the venire’s free and full response to questions posed by counsel.

When jurors fail to disclose relevant . . . information, counsel are hampered in the jury

selection process,” and the defendant’s right to a fair trial and an impartial jury are

affected. Id. In this vein, we believe that Mr. Myers had an obligation to reveal his

relationship with General Sexton. Although Mr. Myers was never specifically asked if

he knew General Sexton, the questions posed by the trial court to the venire as a whole

and to other prospective jurors individually would lead a reasonable person to conclude

that the relationship was relevant.

Because Mr. Myers failed to reveal the relationship, Akins instructs that a

presumption of bias arises. However, we do not believe that the failure to disclose the

relationship warrants reversal in this case because the presumption of bias has been

sufficiently rebutted. The trial court concluded that the relationship between Mr. Myers

and General Sexton had been casual at best since college and that there was no

showing that the relationship affected the outcome of the proceedings. This court is

required to accredit the findings of fact made by the trial court, and we cannot reverse

the holding unless the evidence preponderates against the trial court’s conclusions.

See State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). In light of the nature

of the relationship shown by the evidence and Mr. Myers’ testimony, we conclude that it

does not.

III. IMPEACHMENT BY PRIOR BAD ACTS

The defendant contends that he was denied a fair trial when Ms. Boyer’s

attorney questioned him on cross-examination regarding his previous conviction and

charges for passing worthless checks. He claims that the evidence is highly prejudicial

27 and that his conviction should be reversed. The state responds that questions

regarding the defendant’s conviction for passing worthless checks were appropriate

under Rule 609, Tenn. R. Evid. and that the defendant opened the door on direct

examination to questions about the charges that did not result in convictions. W e hold

that the questions were proper.

The record reflects that on direct examination, the defendant testified that

he was charged with passing worthless checks in 1994. He testified that he pled guilty

to some of the charges, that the others were paid and that he received probation. On

cross-examination, Ms. Boyer’s attorney questioned the defendant more specifically on

the charges. He elicited from the defendant that he had five charges in Campbell

County that were paid, one 1994 conviction in Anderson County, and one 1995 charge

in Knox County. The defendant further admitted that passing a worthless check is a

form of lying.

Pursuant to the conditions and procedures set forth in Rule 609, Tenn. R.

Evid., the credibility of the accused may be attacked by presenting evidence of prior

convictions. The convictions must be punishable by death or imprisonment over one

year or must involve a crime of dishonesty or false statement. Tenn. R. Evid. 609(a)(2).

With respect to the cross-examination regarding the defendant’s conviction, the

questioning was proper under Rule 609. See State v. Bivens, 967 S.W.2d 821, 825

(Tenn. Crim. App. 1996) (concluding that passing a worthless check is dishonest

conduct and is an appropriate subject for cross-examination). With respect to the

defendant’s complaint about the cross-examination regarding his worthless check

charges, we believe that the defendant opened the door to this questioning by testifying

generally about the charges on direct examination. Ms. Boyer’s attorney was allowed to

clarify the exact nature of the charges and their resolution. Having raised the issue on

28 direct examination, the defendant cannot now complain that the evidence was too

prejudicial. This issue is without merit.

IV. INTRODUCTION OF DIAGRAM AND REFERENCE TO COLOR PHOTOGRAPH

The defendant contends that the trial court erred by allowing into evidence

a diagram of the victim’s body and by allowing the medical examiner to refer to color

photographs that were not admitted. He contends that the diagram and the medical

examiner’s references to the color photographs were unduly prejudicial. The state

contends that the issues are waived because the defendant failed to object at trial and

failed to raise the issues in his motion for a new trial.

The transcript of evidence reveals that before trial, the defendant made a

motion to exclude autopsy photographs of the victim. The state sought to introduce two

color photographs and one black and white autopsy photograph depicting the victim’s

injuries. In his argument, the defendant’s attorney stated that the photographs were

unnecessary because the medical examiner was going to use a diagram to explain the

extent of the victim’s injuries. The trial court concluded that one photograph was

admissible and allowed the defense attorneys to select the least objectionable

photograph. The attorneys chose the black and white photograph.

During the medical examiner’s testimony, he used a diagram consisting of

an outline of a child’s body. The medical examiner had drawn the location of the

victim’s bruises on the diagram and had used purple and yellow pencils to depict the

age of the bruises. Twice during his testimony, the medical examiner referred to the

inadmissible color photographs. Once, he explained that he had colored the bruises on

the diagram as closely as possible to the color depicted in the photographs. He also

stated, in explaining an injury on the victim’s right shoulder, that the injury could be

29 seen better in the color photographs. No objection was made to the admissibility of the

diagram or to the references to the color photographs.

The defendant has waived these issues by failing to object timely. See

T.R.A.P. 36(a). Furthermore, the defendant’s failure to include these issues in the

motion for a new trial bars our review. See T.R.A.P. 3(e). In any event, we note that in

his pretrial motion to exclude the photographs, the defendant’s attorney acknowledged

that the probative value of the diagram was not outweighed by any prejudice. See

Tenn. R. Evid. 403. Furthermore, although the defendant characterizes the medical

examiner’s references to the color photographs as repeated, there were just two

innocuous references that can only be described as harmless.

V. BIBLICAL REFERENCES

The defendant contends that the state’s biblical references during closing

argument were improper and violated his right to a fair trial as guaranteed by both the

United States and Tennessee Constitutions such that a new trial is warranted. The

state contends that the defendant’s failure to object to the argument or to raise the

issue in his motion for a new trial waives the issue. The state further argues that the

defendant has failed to establish that the prosecutor’s comments had an effect on the

verdict.

The relevant portion of the state’s closing argument is as follows:

There was a man long ago, a teacher. He was walking along a dusty road and others were following him. His closer followers called him rabbi. Teacher. And beside his close followers, there was a big crowd that followed him nearly everywhere he went. And as the man, the leader, the teacher, went along, he heard his close followers arguing amongst themselves. And he turned around and he said - why are y’all arguing? And they were sheepish. Because they didn’t want to tell the rabbi why they were arguing. But he pressed them. He said - tell me, why are you arguing. And they said- well, rabbi, we just were wondering in the kingdom that you are going to set up, which one of us will be the greatest- who will

30 be number one, and who will be number two, who will be on your right hand and who will be on your left hand? And the teacher, he kind of took a test, he said- whoever - whoever would be great, he must be last and the least, and whoever- whoever would be great among you, must be the servant of all. And then he turned around and in the crowd that was gathered around him which is always - almost always there, he found a little child, a boy. He took the little boy and he sat the little boy in the midst of his close followers and he said - whoever receives a little one like this, receives me. Whoever receives a little one like this receives me. But you know, he didn’t leave it there. He didn’t leave it there. He went on to say sternly - but anyone, anyone who causes one of these little ones to stumble, it would be better for him if a millstone was put around his neck and he was drowned in the sea. The good rabbi said that.

Members of the jury, we simply ask for justice. Let justice come down like the mighty waters.

The record reflects that there was no objection made by the defendant’s attorney.

The state initially contends that the defendant waived the issue by failing

to object during trial and by failing to raise it in his motion for a new trial. See T.R.A.P.

36(a); 3(e). However, an error that affects a substantial right of a defendant may be

raised at any time when necessary to do substantial justice. See Tenn. R. Crim. P.

52(b); T.R.A.P. 13(b); State v. Adkisson, 899 S.W.2d 626, 636-38 (Tenn. Crim. App.

1994). Accordingly, our review will be limited to whether plain error exists.

Our supreme court has recognized that closing argument is a valuable

privilege for both the state and the defense and that counsel is afforded wide latitude in

presenting final argument to the jury. See State v. Cribbs, 967 S.W.2d 773, 783 (Tenn.

1998); State v. Cone, 665 S.W.2d 87, 94 (Tenn. 1984). However, the argument must

be temperate, predicated on evidence introduced at trial and relevant to the issues of

the case. State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994). When a prosecutor’s

argument goes beyond the latitude afforded, the test for determining if reversal is

31 required is whether the impropriety “affected the verdict to the prejudice of the

defendant.” Harrington v. State, 385 S.W.2d 758, 759 (1965).

In the present case, the impropriety of the prosecutor’s argument is

obvious. See Cribbs, 967 S.W.2d at 783-84 (“It is well-established in Tennessee law

that references to biblical passages or religious law during the course of a criminal trial

are inappropriate”); Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243, 254 (Tenn.

1955). The prosecutor’s omission of specific references to the Bible or to Jesus in no

way disguises the biblical heritage of the story. We also believe that the argument had

the potential to be inflammatory.

This type of argument has been admonished by both this court and our

supreme court, yet the arguments continue to be made. However, the facts of this case

constrain us to conclude that the argument did not affect the verdict to the prejudice of

the defendant. The circumstantial evidence of the defendant’s guilt was strong. The

testimony from Ms. Boyer, Sharon Sutton, the medical examiner, the victim’s treating

doctors, and the paramedics support the verdict, as does the defendant’s own

testimony. Although the argument was improper, and we admonish the prosecutor to

refrain from making such arguments in the future, we conclude that the argument did

not affect the verdict. See State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998)

(holding that the prosecutor’s repeated references to the defendant as “the evil one,”

though improper, did not affect the verdict to the prejudice of the defendant).

32 In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.

________________________________ Joseph M. Tipton, Judge

CONCUR:

_________________________ Gary R. Wade, Presiding Judge

_________________________ David H. Welles, Judge