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State v. Durham7/26/1999
im. App. 1996). Moreover, Tenn. R. Crim. P. 29.1 provides that the State's rebuttal argument is "limited to the subject matter covered in the State's opening argument and the defendant's intervening argument." This court has explained:
"Ordinarily, the prosecutor is entitled to make the opening argument and, after the defendant presents his argument, the prosecutor is entitled to make the closing argument in rebuttal. The prosecutor's closing argument is limited in scope; he is allowed only to reply to arguments made by the defendant. To allow the prosecutor to introduce new matter during his closing argument would deprive defendant of the opportunity to respond thereto." Wallis v. State, 546 S.W.2d 244, 247 (Tenn. Crim. App. 1976) (citation omitted).
If the appellant establishes prosecutorial misconduct, he must still demonstrate that the improper conduct prejudicially affected the verdict in his case. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965); Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). In measuring the prejudicial impact of any misconduct, this court should consider the facts and circumstances of the case; any curative measures undertaken by the court or prosecutor; the intent of the prosecutor; the cumulative effect of the improper conduct and any other errors; and the relative strength or weakness of the case. Id.
The appellant asserts that the State discussed during rebuttal argument Ms. Coffey's testimony concerning the appellant's prior threat to the victim. The appellant notes that the State did not discuss this testimony in its "opening" argument and the appellant did not address Ms. Coffey's testimony in his closing argument. The record reflects that defense counsel objected to the State's rebuttal argument. However, the trial court overruled the objection, opining that the State's argument was proper rebuttal. On appeal, the State notes that most of the closing arguments in this case, including the appellant's closing argument, are not included in the record. Accordingly, the State asserts that the appellant has waived this issue.
The State's position is well taken. The appellant carries the burden of ensuring that the record on appeal conveys a fair, accurate, and complete account of what has transpired with respect to those issues that are the bases of appeal. Tenn. R. App. P. 24(b). See also Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997); State v. Utley, 928 S.W.2d 448, 453 (Tenn. Crim. App. 1995). This court is precluded from considering an issue when the record does not contain the necessary transcript. Utley, 928 S.W.2d at 453. Accordingly, this issue is waived.
ii. Missing Witness Rule
The appellant also argues that the prosecutor improperly commented during its rebuttal argument upon the appellant's failure to call his daughter, Ms. Sherry Whaley, as a witness. The appellant contends that the prosecutor thereby attempted to shift the burden of proof to the appellant in violation of his right to due process. In response, the State again notes that the record is incomplete. Additionally, the State argues that the prosecutor's reference to the missing witness was appropriate pursuant to Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979).
Absent the entire transcript of closing arguments, we are hesitant to address this issue. Generally, appellate review of prosecutorial misconduct during closing arguments should occur in the context of the entire argument. See, e.g., State v. Cribbs, 967 S.W.2d 773, 784 (Tenn. 1998). In any event, we conclude that the appellant is not entitled to relief.
In Tennessee, it is well established that a party may comment upon a
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