State of Tennessee v. DeKarlos Johnson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 4, 2016

STATE OF TENNESSEE v. DEKARLOS JOHNSON

Appeal from the Criminal Court for Shelby County
No. 13-06128 Glenn Ivy Wright, Judge
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No. W2015-02412-CCA-R3-CD - Filed January 31, 2017
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A Shelby County Criminal Court jury convicted the Defendant-Appellant, Dekarlos
Johnson, of aggravated robbery, and the trial court imposed a sentence of nine years with
a release eligibility of eighty-five percent. On appeal, Johnson argues: (1) the admission
of his redacted statement negatively impacted the jury‟s verdict; (2) he was denied the
opportunity to present evidence in his own defense; (3) the State committed prosecutorial
misconduct during its closing argument; and (4) the cumulative effect of these errors
entitles him to relief. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN
and TIMOTHY L. EASTER, JJ., joined.

Patrick M. Brooks (on appeal and at trial); Josie S. Holland (on appeal); and Ruchee Patel
(at trial), Memphis, Tennessee, for the Defendant-Appellant, Dekarlos Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Amy P. Weirich, District Attorney General; and Austin B. Scofield, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

We have briefly summarized the facts from the joint trial of the Defendant-
Appellant, Dekarlos Johnson, and his co-defendant, Bryant Gooseberry, because they are
relevant to the issues on appeal.

Trial. Hue Xa testified that on January 21, 2013, he made arrangements to buy an
iPhone from a seller who had posted an advertisement on Craigslist. That day, Xa called
and emailed the seller, who had given him a price of $500 for the iPhone 5. Xa made a
counteroffer of $400, which the seller accepted, and the two men arranged to meet at the
Starbucks near the intersection of Whitten Road and Stage Road in Bartlett at 7:00 p.m.
to complete the sale. Although Xa went to the Starbucks at the agreed upon time, the
seller never arrived. After waiting for more than an hour, Xa telephoned the seller, who
assured him that he was “on the way.” Xa informed the seller he could wait no longer
and returned home. Between 8:45 and 9:00 p.m. that night, the seller called Xa and asked
to meet him at the Malco Theater on Bartlett Boulevard. Xa instead drove to the
Applebee‟s restaurant on Bartlett Boulevard, where he felt safer, and asked the seller to
meet him there, but the seller refused. Xa ultimately agreed to meet the seller at the
Malco Theater and told the seller what kind of car he drove. When he arrived, Xa parked
in the theater‟s parking lot. A moment later, two African-American men approached his
car, and Xa lowered his window. One of the men gave Xa the iPhone 5, and Xa
inspected the phone and used it to call his wife to ensure that it was operational. Xa
agreed to pay $400 for the phone and began to take out his money. Xa explained what
happened next:

When I get the money out, and the guy stand[ing] just beside that
guy had pulled a gun—pointed it right in my face. . . . [That man said,]
“Give me money.” And the guy talking to me, I g[ave] him the money.
And he said, “Give me the phone.” And . . . I just—the iPhone 5, I g[a]ve
him the phone. And he was like, “Give me your phone.” I pulled my—I
got an iPhone 4. I g[ave] it to him. He said, pull out the car keys and give
[the keys] to them.

Xa said the person with whom he had been communicating regarding the purchase of the
iPhone was not the man holding the gun. He asserted that both men participated in the
robbery, with one man pointing the gun at him and telling him to give him the money and
the other man demanding the cell phones and car keys. Xa said that after he gave the
men the $400, the iPhone 5, his iPhone 4, and his car keys, the men ran from his car and
got into a black vehicle that was parked in a poorly lit area of the parking lot.

When Xa was asked at trial if either of the men who robbed him that night were in
the courtroom, Xa replied negatively and explained that it had been more than two-and-a-
half years since the robbery. Xa said the police interviewed him after the robbery, and he
provided a statement to police in January 2013. In August 2013, he was shown a
photographic lineup by the police, and Xa identified Johnson from the lineup as one of
the men who robbed him. He also identified Johnson‟s co-defendant, Bryant Gooseberry,
from a different photographic lineup as the second man who robbed him. At trial, Xa
acknowledged that he might have been mistaken about his identification of the suspects
in the photographic lineups.

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 A short time after the commission of this crime, Xa discussed the robbery with his
friend, Michael Tran, who also had been looking for an iPhone to purchase on Craigslist.
When Tran showed him an advertisement on Craigslist with the same phone number as
the one belonging to the seller involved in the robbery, Xa asked Tran to talk to officers
at the Bartlett Police Department.

Nathaniel Mebane, who was married to Johnson‟s aunt, testified that on January
21, 2013, he drove Johnson to the Malco Theater in Bartlett in his black Acura. Johnson
told Mebane that he was going to the theater to see a girl. Mebane said he left Johnson in
the middle of the parking lot but returned for him a short time later:

I left, and in about fifteen minutes—I made it almost half way back
to Frayser, and [Johnson] called me and told me to come back and get him,
and by the time I got back, you know, he got up in the car, and we just left,
and I asked him what happened, and he was like, “Well, she didn‟t show
up.” And he just left from there.

Although Johnson never mentioned paying him for the ride, Johnson gave Mebane sixty
dollars when he picked him up from the Malco Theater. Mebane acknowledged that
when he had given Johnson rides to work in the past, Johnson had given him
approximately ten dollars. Mebane also said that on the night of January 21, 2013,
Johnson never mentioned selling an iPhone, but he admitted, “I knew he sold them, but
he didn‟t tell me that‟s what he was going out that day to do.”

Several months after taking Johnson to the Malco Theater, the Bartlett police came
to Mebane‟s home and spoke with his mother, the registered owner of the black Acura.
Mebane told the police he had driven Johnson to the movie theater on January 21 and that
Johnson had paid him “to do it.” Mebane said he dropped off Johnson in the middle of
the parking lot and picked him up at “the beginning of the driveway [to the side of the
entrance] where you c[an] see the least little movement.” He confirmed that no one was
with Johnson or near him when he picked him up. The police showed Mebane some
photographs, and he informed the officers that the photographs, which were entered into
evidence at trial as Exhibits 3 and 4, depicted Johnson holding an iPhone inside
Mebane‟s car.

Detective Jeffrey Swindol of the Bartlett Police Department testified that he
investigated the aggravated robbery of Hue Xa at the Malco Theater. His investigation
indicated that the perpetrators left the crime scene in a black Acura. On January 22,
2013, he was approached by Michael Tran, Xa‟s friend, who gave him the two
photographs in Exhibits 3 and 4. After receiving these photographs, Detective Swindol
contacted Detective Keys, who determined that the photographs provided by Tran had
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been taken by a third party at an apartment complex on Raleigh Millington Road.
Detective Swindol went to this complex and found a black Acura with “cuts and marks”
on the interior of the vehicle that matched the ones depicted in the photographs provided
by Tran. Because the black Acura was backed into a parking spot close to some
shrubbery, he intermittently observed the car for several days before obtaining a license
plate number for the vehicle. Detective Swindol entered the license tag in the computer
database and learned that the Acura was registered to a woman at Dove Call Lane,
although when he went to that address, it appeared as though no one lived there.

In August 2013, he ran the tag again, and a new address on Kenneth Street
appeared. Detective Swindol went to this address, saw the black Acura, and spoke to
Mebane‟s mother. He then spoke to Mebane, which led to the identification and location
of the Defendant-Appellant, Dekarlos Johnson. Shortly thereafter, Detective Swindol
prepared a photographic lineup that included a photograph of Johnson, and Xa identified
Johnson as one of the men who robbed him within five seconds of looking at the lineup.
Xa also circled Bryant Gooseberry‟s picture on a different photographic lineup. After Xa
identified Johnson, Detective Swindol approached Johnson and informed him of his
Miranda rights. Johnson signed a written waiver of these rights before providing the
following written statement, which was read by Detective Swindol at trial:

On the night of January 21st 2013, I was involved in a robbery. I
walked up to the car of an Asian man. The intention was to sell an iPhone.
After the transaction took place, (indiscernible) to remove the keys from the
car. N[athaniel] Mebane III was the driver of the vehicle that was used. It
was never my intention to rob anyone I swear.

Two days later I reposted my phone on Craigslist, but I never got the
chance to sell it because I couldn‟t find a ride.

During the interview with Detective Swindol, Johnson admitted he owned the gun that
was used in the robbery. Johnson was subsequently arrested. Detective Swindol also
issued a warrant for Gooseberry‟s arrest after Xa circled Gooseberry‟s picture in the
photographic lineup. Gooseberry declined to give a statement to police.

Detective Swindol acknowledged that Xa was unable to tell him the make and
model of the black car involved in the robbery. However, Xa told him that “he was
instructed to be looking for a black Acura when he was initially going to make the
purchase.”

When the State rested, Gooseberry‟s attorney and Johnson‟s attorney made a
motion for judgment of acquittal. After hearing argument from the parties, the trial court
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denied the motion as to Johnson. However, regarding Gooseberry‟s motion, the trial
court noted that although Xa had identified a picture of Gooseberry in the lineup, this
identification was eight months after the robbery occurred. The court also recognized
that Xa was unable to identify Gooseberry as one of the perpetrators at trial and that Xa
admitted he could have been mistaken about his identification of the suspects in the
photographic lineups. The State responded that it might be premature to rule on
Gooseberry‟s motion because no one knew whether Johnson would testify, which could
change the evidence presented at trial. The trial court, noting that it had to rule on the
motion based on the evidence presented at that point, denied Gooseberry‟s motion but
acknowledged that it was “a real close question, quite frankly.” Immediately thereafter,
Gooseberry and Johnson, upon voir dire examination, made the decision not to testify at
trial. No proof was presented on behalf of either defendant. After both defendants rested
their case, Gooseberry‟s attorney renewed his motion for judgment of acquittal. The
court heard additional arguments from Gooseberry‟s attorney and the State, and
Johnson‟s attorney also renewed his motion for judgment of acquittal. In responding to
Johnson‟s renewed motion, the State asserted: “[Johnson], in fact, wrote that statement
[to police] out in his own hand and seemed to be very quick in that statement to try and
distance himself and accuse Mr. Gooseberry as the one who was with the gun and doing
everything bad; although that was redacted.” The trial court denied Johnson‟s motion but
took Gooseberry‟s motion under advisement.

The next morning, the trial court granted Gooseberry‟s motion for judgment of
acquittal, stating:

In this case, the only proof against Gooseberry is the photospread
where an identification was made eight months after the alleged crime.
That, by itself, would be weak evidence, but I don‟t weigh the evidence.
That‟s for the jury. And if that‟s all we had, I think I w[ould] deny the
motion for judgment of acquittal. But when you add the victim‟s statement
that he could be mistaken as to that identification, I think, as a matter of
law, that‟s insufficient to let it go to the jury, so I have no choice but to
grant the motion for judgment of acquittal as to Mr. Gooseberry.

At the conclusion of the trial, the jury found Johnson guilty of the charged offense of
aggravated robbery.

ANALYSIS

I. Unredacted Statement. Johnson argues that the admission of the redacted
version of his statement to police prejudiced him at trial. He asserts that if his unredacted
statement, which he claims contained proof reducing his culpability, had been admitted,
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then the jury would have convicted him of a lesser included offense. We conclude that
Johnson is not entitled to relief.

Johnson asserts that his statement to police was redacted to protect Gooseberry‟s
Sixth Amendment rights.1 See Bruton v. United States, 391 U.S. 123, 135-37 (1968)
(holding that admission of a codefendant‟s statement implicating a non-confessing
defendant in a joint trial violates the defendant‟s right of confrontation). He claims that
because the trial court granted Gooseberry‟s motion for judgment of acquittal at the close
of all the proof, it should have admitted his original, unredacted statement to police into
evidence. As support, he maintains that the jury would have been permitted to consider
his unredacted statement if he and Gooseberry had been tried separately or if Gooseberry
had been acquitted at the close of the State‟s proof.

Johnson claims that the redacted statement, which was admitted at trial, was
particularly incriminating because it made it look as if he “had given a blatant,
unmitigated confession” to the crime charged in the indictment. He asserts that the
original, unredacted version of his statement, which is not included in the appellate
record, was critical to his defense because it placed the gun in Gooseberry‟s hand,
showed that Johnson never intended for a weapon to be used, and established that he did
not know Gooseberry was going to use a gun.

In making this argument, Johnson acknowledges that he never made a
contemporaneous motion to admit the unredacted version of his statement but
nevertheless asserts that he is entitled to plenary review because he raised this issue in his
motion for new trial. Alternatively, he argues that this court should consider this issue
under plain error review.

We conclude that Johnson has waived this issue because he failed to make a
motion to sever his trial from Gooseberry‟s and failed to make a contemporaneous
motion requesting that his original, unredacted statement be admitted at trial. See Tenn.
R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to
a party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”). The record shows that the
redacted version of Johnson‟s statement was read to the jury and that a copy of this
redacted version was admitted into evidence as Exhibit 6. However, Johnson‟s original,
unredacted statement was never made a part of this record nor were the proceedings
related to the redaction of his statement, which also results in waiver of this issue. See

1
Although the record does not contain any proceedings related to the redaction of Johnson‟s
statement, it appears that the statement was, in fact, redacted to remove all references to Gooseberry
pursuant to Bruton.
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Tenn. R. App. P. 24(b) (“[T]he appellant shall have prepared a transcript of such part of
the evidence or proceedings as is necessary to convey a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of appeal.”);
State v. Bledsoe, 226 S.W.3d 349, 357 (Tenn. 2007) (“It is the responsibility of the party
raising an issue on appeal . . . to furnish the appellate court with a record that will enable
that court to decide the issues raised.”); State v. Bibbs, 806 S.W.2d 786, 790 (Tenn.
Crim. App. 1991) (“In the absence of an adequate record on appeal, we must presume
that the trial court‟s ruling was supported by the evidence.”).

Because Johnson has waived this issue, he is not entitled to relief absent plain
error. See Tenn. R. App. P. 36(b) (“When necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial rights of a party at
any time, even though the error was not raised in the motion for a new trial or assigned as
error on appeal.”). In order for this court to find plain error,

“(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is „necessary to do substantial justice.‟”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). “[T]he presence of all five factors must be
established by the record before this Court will recognize the existence of plain error, and
complete consideration of all the factors is not necessary when it is clear from the record
that at least one of the factors cannot be established.” Id. at 283.

We decline to review this issue for plain error. One of the factors required for
plain error review is that the record clearly establish what occurred in the trial court. Id.
at 282. Because the appellate record does not include the original, unredacted version of
Johnson‟s statement to police, we are unable to determine the significance of having the
unredacted statement admitted, which precludes plain error review of this issue.
Moreover, Johnson has failed to show that a substantial right belonging to him was
adversely affected. Id. Although Johnson claims that he was prejudiced when his
unredacted statement was not admitted following Gooseberry‟s acquittal, it appears that
his unredacted statement was inadmissible hearsay for which there is no exception. See
State v. King, 694 S.W.2d 941, 945 (Tenn. 1985) (reiterating that if self-serving
declarations were admissible, then an accused could create proof for himself by making
exculpatory statements for later use at trial to show his innocence); See State v. Turnmire,
762 S.W.2d 893, 897 (Tenn. Crim. App. 1988) (“The reason self-serving declarations are
excluded is that there is nothing to guarantee their testimonial trustworthiness.”). Finally,
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even if the unredacted statement had been included in the appellate record, Johnson
would not have been entitled to relief pursuant to the “rule of completeness” in Tennessee
Rule of Evidence 106 because this rule allows the jury to assess related information at the
same time rather than piecemeal, an impossibility if Johnson‟s statement was, in fact,
redacted pursuant to Bruton. See State v. Torres, 82 S.W.3d 236, 252 (Tenn. 2002)
(“[T]he rule of completeness . . . reflects a concern for fairness and allows the trier of fact
to assess related information at the same time rather than piecemeal.”). For all these
reasons, Johnson is not entitled to relief on this issue.

II. Denial of Opportunity to Present Evidence. Johnson also argues that his
right to a fair trial was violated when the trial court failed to rule on Gooseberry‟s motion
for judgment of acquittal at the close of the State‟s proof and before he and Gooseberry
waived their right to testify. He claims that if the trial court had acquitted Gooseberry
before the close of all proof, he would have been able to testify on his own behalf and
could have presented the unredacted, exculpatory version of his statement to police.
Johnson asserts that the admission of the redacted version of his statement, when
combined with the timing of the trial court‟s acquittal of Gooseberry, prevented him from
presenting his case or making an informed decision regarding whether to testify. He also
maintains that at the moment of Gooseberry‟s acquittal, the truncated version of his
redacted statement was misleading and no longer necessary under Bruton. We conclude
that Johnson has waived this issue and is not entitled to plain error relief.

The record shows that Johnson‟s attorney never objected to the trial court‟s failure
to rule on Gooseberry‟s motion at the close of the State‟s proof and never sought to
reopen Johnson‟s defense following Gooseberry‟s acquittal. Consequently, Johnson has
waived this issue. See Tenn. R. App. P. 36(a). We again question whether Johnson‟s
unredacted statement, which was not included in the appellate record, would have been
admissible even if he had reopened the proof. See King, 694 S.W.2d at 945; Turnmire,
762 S.W.2d at 897. Finally, we decline to find plain error because a clear and
unequivocal rule of law was not breached, a substantial right of the accused was not
adversely affected, and consideration of the error is not “necessary to do substantial
justice.” Smith, 24 S.W.3d at 282.

III. Claims of Prosecutorial Misconduct. Johnson contends that the prosecutor
committed misconduct during closing argument by commenting on Johnson‟s right to
remain silent and by unfairly characterizing the evidence. We disagree.

During the State‟s first closing argument, the prosecutor stated that Xa had
identified Johnson as one of the perpetrators in a photographic lineup approximately
seven months after the robbery and that Xa had no hesitation in identifying Johnson at the
time. He noted that when Xa identified Johnson in the lineup, Detective Swindol had
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already independently developed Johnson as a suspect. He also noted that Mebane,
Johnson‟s uncle by marriage, testified that he dropped off Johnson at the Malco Theater
the night of January 21, 2013, and that when Mebane picked up Johnson fifteen minutes
later, Johnson “had sixty dollars in cash to hand over [to Mebane].” The prosecutor then
made the following statements:

So, now we‟ve got Mr. Xa[, who] picks Mr. Johnson out of a photo lineup.
[Mr. Xa states,] “He‟s the man who was there. He‟s the man who robbed
me.” Mr. Mebane, Mr. Johnson‟s relative, [says], “Mr. Johnson was there.
He suddenly called me back to pick him up and had cash.”

Then, finally, Mr. Johnson says he was there in his statement in his
handwriting that he made to Detective Swindol. [He says,] “I was involved
in a robbery. I walked up to the car of an Asian man. The intention was to
sell him an iPhone.”

So, now we‟ve got Mr. Xa who said Mr. Johnson robbed him. Mr.
Mebane says he dropped Mr. Johnson off, picked him up fifteen minutes
later, and he had cash that he didn‟t have before. And Mr. Johnson says, “I
was there. I was selling an iPhone to an Asian man. He was robbed.[”]
And we know, from Mr. Xa‟s testimony, that is not in dispute—it‟s never
been said that none of this is correct. Mr. Xa testified the man selling him
the iPhone—Mr. Johnson, the man who said he was there selling an Asian
man an iPhone is the person who took his cash is the person who took his
phone is the person who took his keys. Two men there, one man with a gun
who said, “Give me the money,” and the guy selling him the iPhone, Mr.
Johnson, self-admitted, the man is there selling him the iPhone is the one
who took his money, took his cash, took his phone, took his keys. They‟re
there together. They walked up together.

Next, the prosecutor reminded the jury of the theory of criminal responsibility,
stating:

Remember the criminal responsibility example I gave you when I
went and burglarized someone‟s house with all my buddies, if you‟re a part
of it—if you‟re getting something out of it, you‟re responsible for the
whole thing. And Mr. Johnson was more than just a little bit [responsible].
He set it up. He took the item. He provided the gun. Detective Swindol
testified, “Who owned the gun that was used in the robbery?” Mr. Johnson.
The only thing he wasn‟t doing was holding the gun.

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At that point, Johnson‟s attorney made the following objection, “Objection, Your Honor.
Mr. Xa never testified to a gun being pointed at him,” and the State replied, “He most
certainly did, Your Honor.” The trial court immediately provided this curative
instruction to the jury: “Okay, okay, okay. Members of the jury, you heard testimony in
this case. You decide what was said. Okay. You may proceed.” The prosecutor
continued his closing argument:

Mr. Johnson provided a gun used in the robbery that Mr. Xa testified
was pointed at his face. He did everything except hold the gun. That
doesn‟t matter because he‟s criminally responsible.

Mr. Johnson [was] identified by Mr. Xa.

Mr. Johnson [was] identified by Mr. Mebane.

Mr. Johnson identified . . . himself.

Read his statement when you go deliberate. Mr. Johnson is the one
who robbed Mr. Xa. After you look at the evidence and deliberate, I‟m
confident you‟re going to find him guilty of aggravated robbery.

Thank you.

First, Johnson argues that the prosecutor improperly commented on his right to
remain silent. He asserts that the prosecutor‟s statement, “[I]t‟s never been said that none
of this is correct,” amounts to a comment on Johnson‟s failure to testify. While
Johnson‟s admits that “[t]rial counsel did not . . . specifically raise the issue of the
prosecution‟s improper comment on [his] right to remain silent,” he nevertheless asserts
that his attorney “objected to the prosecutor‟s closing argument contemporaneously and
raised the issue in his motion for new trial.”

The record shows that Johnson‟s attorney never made a contemporaneous
objection to the prosecutor‟s statement that “it‟s never been said that none of this is
correct.” The trial transcript shows that Johnson‟s attorney made only one objection
during the prosecutor‟s closing argument, which concerned whether Xa testified that a
gun was pointed at him during the robbery. Because the record shows that Johnson never
made a contemporaneous objection to the prosecutor‟s statement, “[I]t‟s never been said
that none of this is correct,” this issue is waived. See Tenn. R. App. P. 36(a). This issue
is also waived because Johnson never raised this issue in his motion for new trial. See
Tenn. R. App P. 3(e) (“[I]n all cases tried by a jury, no issue presented for review shall be
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predicated upon error in the admission or exclusion of evidence, jury instructions granted
or refused, misconduct of jurors, parties or counsel, or other action committed or
occurring during the trial of the case, or other ground upon which a new trial is sought,
unless the same was specifically stated in a motion for a new trial; otherwise such issues
will be treated as waived.”); see also Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding
that a defendant loses the opportunity to argue on appeal any issues that should have been
presented in a motion for new trial but were not raised in said motion); State v. Turner,
919 S.W.2d 346, 356-57 (Tenn. Crim. App. 1995) (“A party may not raise an issue for
the first time in the appellate court.”).

Because Johnson has waived this issue, he is not entitled to relief unless the
prosecutor‟s comments rose to the level of plain error. See Tenn. R. App. P. 36(b);
Smith, 24 S.W.3d at 282-83; see also State v. Gann, 251 S.W.3d 446, 458-59 (Tenn.
Crim. App. 2007) (concluding that the defendant‟s failure make a contemporaneous
objection during closing argument waived plenary review of the issue and precluded
relief absent plain error).

We conclude that the prosecutor‟s statement does not constitute plain error. The
statement was not a comment on Johnson‟s right to remain silent but rather an
acknowledgment that the evidence presented at trial, including Johnson‟s own statement
to police, established that Johnson was one of the perpetrators of Xa‟s aggravated
robbery. Before making the challenged statement, the prosecutor noted that Xa identified
Johnson from a photographic lineup as one of the men who robbed him, Mebane testified
that he dropped Johnson off at the location of the robbery and when he picked him up
fifteen minutes later, Johnson had cash that he did not have before, and that Johnson
admitted in his statement to police that he was involved in a robbery of an Asian man to
whom he intended to sell an iPhone. We decline to review this issue for plain error
because a clear and unequivocal rule of law was not breached, a substantial right of the
accused was not adversely affected, and consideration of the error is not “necessary to do
substantial justice.” See Smith, 24 S.W.3d at 282.

Second, Johnson contends that the prosecutor unfairly characterized the evidence
during closing argument. However, because he presents no argument on this issue and
provides no references to the relevant portions of the record, this issue is waived. See
Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this
court.”); Tenn. R. App. P. 27(a)(7) (stating that a brief shall contain “[a]n argument . . .
setting forth the contentions of the appellant with respect to the issues presented, and the
reasons therefor, including the reasons why the contentions require appellate relief, with
citations to the authorities and appropriate references to the record . . . relied on”).
Although Johnson‟s attorney did object that “Mr. Xa never testified to a gun being
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pointed at him,” the record clearly reflects that Xa presented the following testimony at
trial: “When I get the money out, and the guy stand[ing] just beside that guy had pulled a
gun—pointed it right in my face.” Because Johnson has waived any claim that the
prosecution mischaracterized evidence, he is not entitled to relief. We also decline to
find plain error because a clear and unequivocal rule of law was not breached, a
substantial right of the accused was not adversely affected, and consideration of the error
is not “necessary to do substantial justice.” See Smith, 24 S.W.3d at 282.

IV. Cumulative Errors. Finally, Johnson contends that even if the
aforementioned errors were individually harmless, the cumulative effect of these errors
violates his right to a fair trial. See State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010) (“The
cumulative error doctrine is a judicial recognition that there may be multiple errors
committed in trial proceedings, each of which in isolation constitutes mere harmless
error, but which when aggregated, have a cumulative effect on the proceedings so great
as to require reversal in order to preserve a defendant‟s right to a fair trial.”). Having
found no error in the trial proceedings, we need not consider the cumulative effect of the
alleged errors.

CONCLUSION

Based on the aforementioned authorities and reasoning, the judgment of the trial
court is affirmed.

____________________________________
CAMILLE R. McMULLEN, JUDGE

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