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State v. Reid7/20/2001
applied and all circumstances should be taken into account.'" State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (citation omitted). For reasons which follow, we agree with the trial court's decision to deny Defendant's request for a mistrial.
A defendant's "constitutional right to remain silent in the face of accusations against him, not only during his trial but also upon arrest and while in custody, is a rule so fundamental as to require little elaboration." State v. Braden, 534 S.W.2d 657, 660 (Tenn. 1976) (citing U.S. Const. amend. V; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Under this principle, "it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that [the individual] stood mute or claimed his privilege in the face of accusation." Miranda, 384 U.S. at 468 n. 37; see also Braden, 534 S.W.2d at 660; State v. Mabe, 655 S.W.2d 203, 205 (Tenn. Crim. App. 1983); Honeycutt v. State, 544 S.W.2d 912, 917 (Tenn. Crim. App. 1976).
In Momon v. State, 18 S.W.3d 152, 163-65 (Tenn. 1999), our supreme court recognized that the harmless error doctrine applies to constitutional violations, including situations in which the prosecutor improperly commented upon a defendant's privilege against self-incrimination. See also State v. Transou, 928 S.W.2d 949, 960 (Tenn. Crim. App. 1996); Honeycutt, 544 S.W.2d at 917; (Tenn. Crim. App. 1976). A constitutional error will result in reversal "unless the reviewing court is convinced `beyond a reasonable doubt' that the error did not affect the trial outcome." State v. Harris, 989 S.W.2d 307, 315 (Tenn. 1999) (citations omitted). Although we agree with Defendant and the State as conceded on appeal that the prosecutor's questioning was improper, applying the above analysis to the instant case we find the question to be harmless error.
First, we observe that the entire exchange at issue comprised only a small portion of the prosecutor's cross-examination of the detective and the evidence as a whole. During the trial, the State made out a strong case against Defendant, presenting substantial proof from which the jury could determine that Defendant was guilty of the offenses charged beyond a reasonable doubt. Defendant claimed that he was not directly involved in the robbery or the shooting, yet three eyewitnesses testified that he was present, with a gun, and that he actively participated in the robbery. One of the eyewitnesses actually observed Defendant shoot the victim who subsequently died. Defendant claimed that these eyewitnesses either committed perjury or mistakenly confused him with someone else, yet presented no reason for their collective bias or proof that anyone other than Sanford, Malone and Defendant were present. Evidence concerning the absence of any statement by Defendant at the time of his arrest must be weighed against the other, properly admitted evidence in order to determine its prejudicial effect on the minds of the jury. Viewing the record as a whole, we cannot find that the State's improper reference to Defendant's pretrial silence, made in one brief exchange during a two-day trial, had a prejudicial effect upon the jury's verdict, given the overwhelming evidence tending to establish Defendant's guilt. In addition, the trial court gave curative instructions, which we may presume were followed by the jury. State v. Locke, 771 S.W.2d 132, 139 (Tenn. Crim. App. 1988) (citing State v. Compton, 642 S.W.2d 745 (Tenn. Crim. App. 1982)). In sum, we conclude that the comments in issue constituted harmless error beyond a reasonable doubt. It follows that the trial judge did
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