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State of Tennessee v. Noura Jackson-Concurring
Citation: Not availableDocket: W2009-01709-CCA-R3-CD
Court: Court of Criminal Appeals of Tennessee; December 9, 2012; Tennessee; State Appellate Court
Original Court Document: View Document
Judge Jeffrey S. Bivins concurs with the lead opinion in the case of State of Tennessee v. Noura Jackson, with the exception of one issue concerning prosecutorial misconduct during closing arguments. The defense argues that a statement made by the prosecutor—"Just tell us where you were. That’s all we’re asking, Noura"—improperly referenced the defendant's choice not to testify at trial. The lead opinion deemed the remark dramatic but not improper, which Bivins disputes. He asserts that the comment indeed constituted an improper remark regarding the defendant’s choice to remain silent. Bivins emphasizes that for an improper remark to warrant a new trial, it must have impacted the jury's verdict, requiring an analysis of various factors: the circumstances of the conduct, any curative measures taken, the intent behind the remark, the cumulative effect of errors, and the overall strength of the case. He notes that while the State claimed the remark referenced testimony from the defendant’s aunt, the actual wording differed significantly from that testimony. The use of "us" in the statement suggests a comment on the defendant's silence, likely leading jurors to interpret it as such. Despite the impropriety, Bivins acknowledges the trial court's prompt and comprehensive curative instructions to the jury, which included polling to ensure understanding that the defendant's silence could not be held against her. He concludes that these effective measures weigh against the determination that the improper remark influenced the jury's verdict. The prosecutor's intent behind an improper remark is scrutinized, particularly due to the absence of reference to the aunt's testimony and the choice not to quote her directly, which raises concerns. The prosecutor's use of the present tense plural suggests the comment reflected opinions from the courtroom audience. This contrasts sharply with the State's earlier precise quotation of the defendant’s demand to her mother. Despite various evidentiary challenges throughout the trial, the overall proceedings were conducted well, with few errors noted. The only other significant issue was the State's delayed production of a third statement from Andrew Hammack, which, while late, did not notably prejudice the defendant. The case itself relies heavily on circumstantial evidence, which, though not overwhelming, is still considered relatively strong. After evaluating all factors, it is concluded that the improper remark did not influence the jury's verdict, leading to the affirmation of the trial court's judgment. Judge Woodall concurs with this opinion.