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State v. Thomas2/27/2004
not denied due process [when the selection process is not operated in compliance with local rules] . . . unless he can point to some resulting prejudice." Sinito, 750 F.2d at 515. The Gallo panel found this reasoning dispositive, rejecting the defendant's argument because he had not alleged that the trial judge was in any way disqualified to hear his case. 763 F.2d at 1532. Several other decisions have similarly required a showing of prejudice. See, e.g., United States v. Erwin, 155 F.3d 818, 825 (6th Cir. 1998), cert. den. 525 U.S. 1123, 119 S.Ct. 906 (1999); United States v. Osum, 943 F.2d 1394, 1401 (5th Cir. 1991).
Although all of these decisions offer helpful and relevant analysis, they differ from the instant case. First, we hesitate to conclude that the designation of a criminal defendant as a major violator by the District Attorney General and his Assistants constitutes judge-shopping. Once a defendant is determined to qualify as a major violator, the District Attorney does not select what division to which the case will be assigned. Rather, it appears that the judges of the Shelby County Criminal Court specifically designated Division V to hear such cases. Notwithstanding, even if we were to consider this process judge-shopping, we are also cognizant that the judge assigned to MVU cases has been sworn to uphold the law and defend the Constitution, and his or her conduct can be scrutinized through appellate review. We presume honesty and integrity in those acting as adjudicators. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456 (1975). Thus, we refuse to presume that the judge assigned to MVU designees acts as an agent of the prosecutor. Additionally, it does not appear to this Court that the designation of Division V as the MVU court necessarily results in a court in which the determination of guilt or innocence cannot reliably be made.
Finally, Defendants have failed to establish that they were prejudiced by the assignment of their case to Division V. Accordingly, we cannot conclude that the Defendants were deprived of a fair trial by assignment to Division V nor do we conclude that by assigning MVU defendants to Division V, the Shelby County Courts are in violation of Local Rule 4.01. This issue is without merit.
II. Propriety of State's Argument to Jury
The Tennessee Supreme Court has recognized that "argument of counsel is a valuable privilege that should not be unduly restricted." Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). Attorneys have great leeway in arguing before a jury, and the trial court's broad discretion in controlling their arguments will be reversed only upon an abuse of discretion. See Terry, 46 S.W.3d at 156. However, closing argument must be temperate, must be predicated on evidence introduced during the trial of the case and must be pertinent to the issues being tried. See Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). The State is more limited in its prerogative due to the prosecutor's role as a seeker of justice, rather than a mere advocate. See Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim . App. 1995), overruled on other grounds, State v. West, 19 S.W.3d 753 (Tenn. 2000). "Thus, the state must refrain from argument designed to inflame the jury and should restrict its commentary to matters in evidence or issues at trial." Id. Prosecutorial misconduct during argument does not constitute reversible error unless it appears that the outcome was affected to the defendant's prejudice. See State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001).
Both Defendants contend that the prosecutor's opening statement and closing arguments were so marred by misconduct as to require a new trial. We note first, however, that Defend
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