Closing Argument

State v. Enix, No. E2020-00231-SC-R11-CD, 8-10 (Tenn. Sept. 13, 2022) (holding that plain error review was appropriate standard of review “to apply to claims of alleged prosecutorial misconduct during closing argument when no contemporaneous objection was lodged at the time of the alleged misconduct but the claim is raised in the motion for a new trial”).

While we recognize the uncertainty our application of plenary review to two of the arguments in Hawkins may have caused, we do not interpret Hawkins in the same manner as the Defendant. As detailed above, this Court has long held that a defendant’s failure to contemporaneously object to alleged prosecutorial misconduct during closing argument results in waiver of the issue on appeal. Hawkins in no way attempted to overrule these cases. In fact, as noted by the State, the Court in Hawkins elected to apply plenary review to the two claims raised in the motion for a new trial without citation to authority or any discussion of intentionally overruling long-standing Tennessee case law.6 See id. at 48. The same principles of stare decisis referenced by the Defendant on appeal applied to this Court’s decision in Hawkins. Thus, while this Court need not explicitly declare when it is overruling prior case law, see Asher v. Texas, 128 U.S. 129, 131–32 (1888), the absence of any language in Hawkins purporting to overrule precedent serves to indicate that Hawkins should not be read to, in fact, overrule decades of clear Tennessee case law in this regard.

The Defendant also argues that “abandoning Hawkins and insisting on a contemporaneous objection would be contrary to Tennessee legal culture.” Specifically, the Defendant references the common practice of “afford[ing] opposing counsel the courtesy of . . . talk[ing] in an uninterrupted fashion,” suggesting that interruptions by objection during closing argument may be considered as “rude” by many Tennessee attorneys. Even assuming this characterization of common practices is accurate in Tennessee criminal trials today, those common practices cannot outweigh Tennessee law.

For these reasons, we hold that plain error review is the appropriate standard of review to apply to claims of alleged prosecutorial misconduct during closing argument when no contemporaneous objection was lodged at the time of the alleged misconduct but the claim is raised in the motion for a new trial. To the extent the standard applied in Hawkins is inconsistent with our decision today, Hawkins is overruled as to this issue.

State v. Hinds, No. E2022-00544-CCA-R3-CD, p. 46-47 (Tenn. Ct. Crim. App. Aug. 11, 2023).

State v. Thompson, No. W2022-01535-CCA-R3-CD, p. 10-11 (Tenn. Ct. Crim. App. July 14, 2023). 

When analyzing an issue regarding improper closing arguments, this Court recognizes that “closing arguments are an important tool for the parties during the trial process. Consequently, the attorneys are usually given wide latitude in the scope of their arguments.” State v. Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000). A trial court is afforded wide discretion in controlling closing arguments, and this Court will not reverse a finding regarding those arguments absent an abuse of discretion. State v. Berry, 141 S.W.3d 549, 586 (Tenn. 2004).

Nevertheless, “arguments must be temperate, based upon the evidence introduced at trial, relevant to the issues being tried, and not otherwise improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). Importantly, a “criminal conviction should not be lightly overturned solely on the basis of the prosecutor’s closing argument.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008). “In determining whether statements made in closing argument constitute reversible error, it is necessary to determine whether the statements were improper and, if so, whether the impropriety affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996); State v. Jordan, 325 S.W.3d 1, 65 (Tenn. 2010) (“We will not overturn a verdict on the basis of a prosecutor’s improper argument unless the impropriety affected the verdict.”). To determine the prejudicial impact of an allegedly improper argument, this Court considers:

(1) the facts and circumstances of the case; (2) any curative measures undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative strength or weakness of the case.

Goltz, 111 S.W.3d at 5-6.

“In determining whether statements made in closing argument constitute reversible error, it is necessary to determine whether the statements were improper and, if so, whether the impropriety affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

A trial court has wide discretion in controlling the course of arguments and will not be reversed absent an abuse of discretion. Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001). … “A criminal conviction should not be lightly overturned solely on the basis of the prosecutor’s closing argument.” Id. Rather, “[a]n improper closing argument will not constitute reversible error unless it is so inflammatory or improper that i[t] affected the outcome of the trial to the defendant’s prejudice.” Id.

The Tennessee Supreme Court has repeatedly noted that “[c]losing argument is a valuable privilege that should not be unduly restricted.” State v. Stephenson, 195 S.W.3d 574, 603 (Tenn. 2006) (citing State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001)). The trial court has substantial discretion in controlling the course of arguments and will not be reversed unless there is an abuse of that discretion. Id. In addition, prosecutorial misconduct does not constitute reversible error absent a showing that it affected the outcome of the trial to the prejudice of the defendant. Id. (citing Terry v. State, 46 S. W.3d 147, 156 (Tenn. 2001)). However, an attorney’s comments during closing argument “‘must be temperate, must be predicated on evidence introduced during the trial of the case, and must be pertinent to the issues being tried.’” State v. Gann, 251 S.W.3d 446, 459 (Tenn. Crim. App. 2007) (quoting State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). An improper closing argument will not constitute reversible error unless it is so inflammatory or improper that it affected the outcome of the trial to the defendant’s prejudice. State v. Thacker, 164 S.W.3d 208, 244 (Tenn. 2005) (appendix); State v. Cribbs, 967 S.W.2d 773, 786 (Tenn. 1998); State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003); State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996). This court must consider the following factors when determining whether the argument of the prosecutor was so inflammatory or improper to negatively affect the verdict:

(1) the conduct complained of viewed in the light of the facts and circumstances of the case; (2) the curative measures undertaken by the court and the prosecution; (3) the intent of the prosecutor in making the improper arguments; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative strength and weakness of the case.

State v. Chalmers, 28 S.W.3d 913, 917 (Tenn. 2000) (citations omitted).

A trial court has significant discretion in controlling closing argument, and its decisions relative to the contents of argument may only be reversed upon an abuse of discretion. Terry, 46 S.W.3d at 156; Cauthern, 967 S.W.2d at 737; Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).

A trial court has significant discretion in controlling closing argument, and its decisions relative to the contents of argument may only be reversed upon an abuse of discretion. Terry, 46 S.W.3d at 156; Cauthern, 967 S.W.2d at 737; Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).

State v. Locke, No. M2021-01437-CCA-R3-CD, p. 8 (Tenn. Ct. Crim. App. Sept. 29, 2022).

“In determining whether statements made in closing argument constitute reversible error, it is necessary to determine whether the statements were improper and, if so, whether the impropriety affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

State v. Clayborn, No. M2021-00656-CCA-R3-CD, p. 29-30 (Tenn. Ct. Crim. App. July 19, 2022).

A trial court has wide discretion in controlling the course of arguments and will not be reversed absent an abuse of discretion. Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001). Closing argument by a prosecutor “is a valuable privilege that should not be unduly restricted.” State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). That said, Tennessee courts have recognized numerous prosecutorial arguments as improper. It is improper for a prosecutor to engage in derogatory remarks, appeal to the prejudice of the jury, misstate the evidence, or make arguments not reasonably based on the evidence. Banks, 271 S.W.3d at 131.

In State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003), this court listed five general areas of improper prosecutorial argument during closing: (1) intentionally misstating the evidence or misleading the jury as to the inferences it may draw; (2) expressing a personal belief or opinion as to the truth or falsity of the evidence or defendant’s guilt; (3) making statements calculated to inflame the passions or prejudices of the jury; (4) injecting broader issues than the guilt or innocence of the accused; and (5) intentionally referring to or arguing facts outside the record that are not matters of common public knowledge.

“In determining whether statements made in closing argument constitute reversible error, it is necessary to determine whether the statements were improper and, if so, whether the impropriety affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996). In Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court listed the following factors to be considered when determining whether the improper argument of a prosecutor affected the verdict to the prejudice of the defendant:

1. The conduct complained of viewed in context and in light of the facts and circumstances of the case.

2. The curative measures undertaken by the court and the prosecution.

3. The intent of the prosecutor in making the improper statement.

4. The cumulative effect of the improper conduct and any other errors in the record.

5. The relative strength or weakness of the case.

Id.

State v. McCulloch, No. E2021-00404-CCA-R3-CD, p. 22 (Tenn. Ct. Crim. App. June 29, 2022).

The court has also advised that a criminal conviction should not be lightly overturned solely on the basis of the prosecutor’s closing argument. Banks, 271 S.W.3d at 131 (citing United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument does not automatically warrant reversal)). “An improper closing argument will not constitute reversible error unless it is so inflammatory or improper that if affected the outcome of the trial to the defendant’s prejudice.” Id. (citing Thacker, 164 S.W.3d at 244 (appendix); State v. Cribbs, 967 S.W.2d 773, 786 (Tenn. 1998)); see also Reid, 164 S.W.3d at 321.