Appellate argument centers on prosecutor's closing remarks and plain-error review

Attorneys at an appellate oral argument in the appeal of Mr. Alton focused on whether a prosecutor's closing and rebuttal remarks improperly vouched for the alleged victim and injected broader societal themes into the jury's deliberations, and whether any such errors could be reviewed under Tennessee's plain-error standard. Defense counsel argued the prosecutor's closing went beyond permissible advocacy by asking jurors to “do justice for not just this victim, but all assault victims everywhere,” and by telling jurors that “what you heard from this witness, from this stand, was real, and it's evidence,” which defense counsel said “cannot be categorized as anything other than vouching.”

The issue matters on appeal because plain-error relief requires the defendant to show (1) an error, (2) that the error was plain, (3) that it affected the defendant's substantial rights, (4) that the error was not a tactical decision, and (5) that corrective action is necessary to prevent a miscarriage of justice. Defense counsel told the court the case turned on credibility, that the jury sent multiple notes indicating it was not unanimous on count one, and that the prosecutor's closing, particularly the rebuttal, prejudiced the jury at the most consequential moment — the last words they heard before deliberations.

The state's attorney, Catherine Redding, disputed that the prosecutor breached a clear and unequivocal rule of law. Redding said the state's remarks, taken in context, were a response to repeated attacks on the victim's credibility at trial, including cross-examination about inconsistencies between police statements and trial testimony, the victim's alleged drinking and drug use, and delays in police contact. “Taken in context, there is a strong argument that the prosecutor was actually reflecting on what had occurred at this particular trial,” Redding told the court.

Arguing the plain-error fourth prong, defense counsel emphasized that five different attorneys had represented Mr. Alton at various stages, and the record contained no explanation that the trial attorney's failure to object was tactical. Defense counsel told the panel: “there is no indication that this was some strategic decision … through 3 different attorneys, 1 and actually 5.” The state countered that under Tennessee precedent, when the record is silent courts often presume the failure to object was not tactical, and that defense bears the burden to establish all five plain-error factors.

The parties also debated curative measures and sentencing details. The defense pointed out the appellate record does not include the jury instructions or any curative instruction from the trial judge immediately after closing, and questioned whether the absence of that record affects plain-error review. Redding replied the pattern jury instructions — which typically state that arguments of counsel are not evidence — may have been given and could cure any improper argument, but acknowledged the appellate record does not include a transcript of the final jury instructions. The panel also discussed fines imposed at sentencing; counsel agreed the record lacked explicit findings about defendant's ability to pay.

Throughout argument the judges pressed both sides on legal standards and record limitations. At one point a judge asked defense counsel, “Did you prove that it wasn't a tactical decision?” and questioned whether the state had the burden to show otherwise; the bench also posed questions about what curative steps, if any, appear in the record. The oral argument concluded with the judges thanking counsel and stating they would issue an opinion.

The court did not announce a decision at argument. The panel indicated it would take the briefing and oral argument under advisement and issue a written opinion addressing whether any prosecutorial remarks amounted to reversible plain error and whether any sentencing issues warranted relief.