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State v. Guilds5/27/1999
ce to him as a "clown" was undoubtably improper, we conclude that Appellant is not entitled to a new trial because of it.
"Where argument is found to be improper the established test for determining whether there is reversible error is whether the improper conduct could have affected the verdict to the prejudice of the defendant." State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998) (citation and internal quotations omitted). There are five factors that must be examined in order to make this determination: 1) the conduct complained of, viewed 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; and 5) the relative strength or weakness of the case. Id. (citations omitted).
Initially, we note that Appellant waived this issue by filing to make a contemporaneous objection at trial. State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994); State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). However, we conclude that Appellant is not entitled to relief even on the merits. First, the conduct complained of, when viewed in light of the facts and circumstances of the case, indicates that the jury would not have been prejudiced by the use of the term "clown." The prosecutor's use of the term "clown" was only an isolated incident and it was far less inflammatory than other comments that the Tennessee Supreme Court has found to be harmless error. See Cauthern, 967 S.W.2d at 736-38 (prosecutor's reference to defendant as "the evil one" was harmless error); State v. Bates, 804 S.W.2d 868, 881 (Tenn. 1991) (prosecutor's two references to defendant as a "rabid dog" were harmless errors); State v. Miller, 771 S.W.2d 401, 405 (Tenn. 1989) (prosecutor's reference to defendant as "perverted" was harmless error). Second, although no curative measures were taken by the trial court or the prosecution, this was primarily because the defense failed to object. Third, it appears that the intent of the prosecutor was to point out the inconsistencies between the defense theory of the case and the evidence that was presented at trial. Fourth, the cumulative effect of this error and any other errors was not sufficient to deny Appellant a fair trial. Fifth, the State's case was fairly strong. Under these circumstances, we conclude that the prosecutor's improper comment did not affect the verdict to the prejudice of the defendant. This issue has no merit.
Accordingly, the judgment of the trial court is AFFIRMED.
JERRY L. SMITH, JUDGE
CONCUR:
JOHN H. PEAY, JUDGE DAVID H. WELLES, JUDGE
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