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State v. Zachary10/19/1999
e's come here before you today and he admitted he was in the wrong. He should not have been driving the car because his license was not valid at that time. He admits that.";
3) On cross-examination by the State, the appellant admitted that he knew that his license was revoked yet he continued to drive to and from work and whenever his children needed something;
4) Prior to closing argument, the trial court advised the jury, " lease recall what they say to you in closing statements is not evidence, but it is helpful because they can summarize the facts as they heard it . . . .";
5) The prosecutor's comment was made in the context of labeling the issue before the jury as one of credibility between the police officer, "who is out doing his job," and the appellant, who is "on trial not wanting to go to jail";
6) Defense counsel, in his closing argument, also addressed the issue before the jury as one of credibility;
7) In its charge to the jury, the trial court instructed ". . .closing arguments of the attorneys are intended to help you in understanding the evidence and the law, but they are not evidence. If statements were made by an attorney that are not supported by the evidence, you should disregard those statements."; and
8) At the motion for new trial, the trial court found that the prosecutor's comments regarding the appellant's admission of driving while his license was revoked went to the issue of credibility and not to show that the appellant "had a plethora of criminal record."
It is clear from the record before us that the prosecutor was not using the appellant's history of driving on a revoked license as proof of the appellant's guilt, but rather as proof against his credibility. See State v. Ronnie Roberts, No. 03C01-9502-CR-00049 (Tenn. Crim. App. at Knoxville, May 20, 1996), perm. to appeal denied, (Tenn. Nov. 4, 1996) (citing State v. Hardison, 705 S.W.2d 684, 687 (Tenn. Crim. App. 1985)). Such use has been determined to be appropriate. Id. Moreover, any objection to the use of the appellant's prior conviction in closing argument is unjustified as it was the appellant himself who introduced the evidence of which he now complains. See Tenn. R. App. P. 36(a). Accordingly, we conclude that the prosecutor's comment of the appellant's "viola[tions] of the law at will" does not serve as a basis for a new trial when measured by the test established in Judge. This issue has no merit
The judgment of the trial court is affirmed.
DAVID G. HAYES, Judge
CONCUR:
JOE G. RILEY, Judge
L. T. LAFFERTY, Senior Judge
Page 1 2 3 Tennessee DUI Attorneys
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