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State v. Durham7/26/1999
le to one party as to the other." See State v. Murray, No. 01C01-9702-CR-00066, 1998 WL 934578, at *25 (Tenn. Crim. App. at Nashville, December 30, 1998). Finally, although the State apparently issued a subpoena for Ms. Whaley to testify as a witness, nothing in the record reflects whether, in fact, the subpoena was served or whether Ms. Whaley was available to the process of the court for trial.
Thus, the prosecutor improperly commented upon Ms. Whaley's failure to testify on behalf of the appellant. Nevertheless, we conclude that the remarks did not affect the verdict to the prejudice of the appellant. Harrington, 385 S.W.2d at 759; Judge, 539 S.W.2d at 344. This issue is without merit.
e. Trial Court's Comment to the Jury
The appellant next complains that the trial court commented to the jury that a "good closing argument" should not exceed twenty minutes. He correctly notes that a trial Judge should not express any thought that would lead the jury to infer that his opinion is favorable or unfavorable to a defendant in a criminal trial. State v. Harris, 839 S.W.2d 54, 66 (Tenn. 1992). However, we do not agree that the trial court's remark in this case rose to the level of judicial misconduct.
The trial court immediately followed the challenged comment with the remark, "Some people have different opinions about that and that's fine. That's their job. They'll do it." As in Pickle v. State, No. 02C01-9412-CR-00271, 1996 WL 275049, at *3 (Tenn. Crim. App. at Jackson, May 24, 1996), we believe that the trial court's remarks were more demonstrative of personality and style rather than misconduct. In any case, as noted by the State, the evidence does not indicate whether or not either the State's or the appellant's closing argument or both exceeded twenty minutes. Finally, we conclude that any error was harmless beyond a reasonable doubt.
f. Cumulative Error
We also reject the appellant's contention that the trial was so fundamentally tainted with error as to deny the appellant due process of law. Our supreme court has previously observed, "The line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard required to convict, beyond a reasonable doubt." Delk, 590 S.W.2d at 442. See also State v. Carter, 714 S.W.2d 241 (Tenn. 1986). The evidence of guilt in this case was conclusive. This issue is meritless.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Norma McGee Ogle, Judge
CONCUR: Gary R. Wade, Presiding Judge James Curwood Witt, Jr., Judge
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