State of Tennessee v. James Richardson Reece

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 6, 2012

STATE OF TENNESSEE v. JAMES RICHARDSON REECE

Appeal from the Criminal Court for Sumner County
No. 208-2010 Tom E. Gray, Presiding Judge

No. M2011-01556-CCA-R3-CD - Filed March 14, 2013

James Richardson Reece, the defendant, was arrested for an aggravated assault which
occurred in a workshop underneath his apartment. Immediately after his arrest, the defendant
began to challenge the actions of the Sumner County court system, filing numerous
documents with this Court and the Tennessee Supreme Court and suing various persons and
entities in federal court. The lower courts appointed four separate attorneys to represent the
defendant, but each moved to withdraw. At the defendant’s urging, the trial court allowed
the defendant to waive his right to counsel. When the defendant subsequently requested
counsel on the eve of trial, the trial court refused to appoint an attorney. A jury convicted
the defendant of aggravated assault, a Class C felony. On appeal, the defendant asserts he
was denied the right to counsel and challenges the sufficiency of the convicting evidence.
Although the evidence supported the conviction, we conclude that the defendant did not
waive or forfeit his right to counsel and reverse and remand for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
and Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JERRY L. S MITH
and A LAN E. G LENN, J.J., joined.

Manuel B. Russ, Nashville, Tennessee, on appeal, for the appellant, James Richardson
Reece.

Robert E. Cooper, Attorney General and Reporter; Meredith DeVault, Senior Counsel; L.
Ray Whitley, District Attorney General; and Tara Wyllie, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION
 I. Factual and Procedural History

The defendant was arrested for aggravated assault on September 19, 2009. On
September 24, 2009, the defendant filed a Motion for Appointment of Counsel in general
sessions court, attaching an affidavit of indigence. The general sessions court did not rule
on the defendant’s motion and informed the defendant that he would be appointed counsel
on the date of his hearing, set for November 4, 2009. The defendant applied for a writ of
mandamus to the Circuit Court for Sumner County, requesting the court to require the
general sessions court to rule on his motion. Judge Dee David Gay of the Criminal Court for
Sumner County issued an order denying the writ, noting that the defendant would be
appointed counsel who would represent him on the day of the hearing. The defendant then
filed an action in federal court against Sumner County, General Sessions Judge James
Hunter, Judge C.L. Rogers of the 18th judicial district’s Circuit Court, and Judge Dee David
Gay of the 18th judicial district’s Criminal Court.

On November 4, 2009, the date of his hearing, the defendant filed a motion for recusal
for the general sessions judge whom he had sued in his federal action. The Tennessee
Supreme Court, on November 6, 2009, entered an order designating John T. Gwin of the
Wilson County General Sessions Court to hear the case. On December 7, 2009, the
defendant moved to disqualify the Sumner County District Attorney and requested a change
of venue based on his federal action. Judge Gwin appointed Roger Sindle to serve as
attorney for the defendant on December 7, 2009. Three days later,1 the defendant moved the
court to allow his counsel to withdraw, citing a “lack of conventionally shared standards for
communication,” which apparently stemmed from counsel, who practiced from his home,
denying the defendant permission to bring paperwork to his house and insisting on meeting
at a public place, where counsel allegedly then labeled the defendant “uncooperative.”
Counsel shortly filed a motion to withdraw, stating that the defendant refused to cooperate
and “attempted to intimidate his Counsel by loud, argumentative tones and by belligerent
looks.” The defendant moved the court to sanction his counsel. The general sessions court
granted counsel’s motion to withdraw and appointed Nathan Whittle as his new attorney on
January 5, 2010. Mr. Whittle moved to withdraw on February 5, 2010, basing his motion on
the fact that the attorney-client relationship had broken down to the point that he was unable
to continue representation, “professional considerations,” and the defendant’s lack of
confidence in the representation. On February 8, 2010, the general sessions court held a
preliminary hearing and in a written order granted Mr. Whittle’s motion to withdraw, ordered
the defendant to proceed pro se, and denied the motion to disqualify the district attorney
general. On February 17, 2010, the general sessions court denied the motion for change of

1
This filing is file-stamped on the 10th of December, but the defendant alludes to a December 11th
meeting.

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venue and the motion to sanction counsel.

The defendant was indicted on March 4, 2010. A few days thereafter, the defendant
appealed the judgments from the preliminary hearing to the this Court, which denied the
appeal on June 9, 2010.

On May 3, 2010, Chancellor Tom E. Gray,2 appointed Laura Frost as counsel for the
defendant.3 On May 27, 2010, the defendant, not acting through his counsel, filed a Motion
for Clarification regarding the rulings of the general sessions court rendered on February 8,
2010. Apparently, the defendant filed this motion both in general sessions and in criminal
court, and the criminal court denied the motion. On June 1, 2010, Ms. Frost moved to
withdraw, basing her motion on the defendant’s insistence on pursuing objectives and taking
actions his counsel considered “collateral and imprudent.”

The defendant responded to Ms. Frost’s motion in a filing entitled “Defendant’s
Compulsory Response to Specific Allegations Contained Within Motion to Withdraw.” The
defendant objected to counsel’s motion to withdraw, speculated that counsel wanted to
withdraw because she was concerned the “judicially unpopular” case would have an adverse
effect on her career, and alleged his case would be materially adversely affected by counsel’s
withdrawal. The defendant stated that he would “engage the opposition” either through Ms.
Frost or “reluctantly pro se.” He asked the court to deny the motion to withdraw “under any
of Counsel’s stated reasons” and in the alternative asked for “no further appointment of
counsel at this time.”

At the June 11, 2010 hearing on the motion to withdraw, counsel represented that she
and the defendant had “reached an impasse.” The defendant testified he had repeatedly
asked counsel to file certain documents, which she had refused to do, and requested the court
to make determinations regarding Ms. Frost’s motion, which alleged the defendant insisted
on pursuing imprudent actions. The trial court stated it would not make findings on the
allegations, but found the defendant’s alternative prayer for no further appointment of
counsel “a good request.” The defendant objected to the granting of counsel’s motion. The
trial court allowed Ms. Frost to withdraw, finding in a written order that she had properly
moved to withdraw when the defendant insisted she take actions which she thought would
be damaging. Ms. Frost gave the defendant copies of discovery materials she had received.

2
The judge previously assigned to the case recused himself because he was a defendant in the federal
lawsuit.
3
A second order appointing Ms. Frost was entered on May 5, 2010.

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 The defendant filed a second appeal to this court, appealing various actions of the
general sessions and circuit court since his arrest and requesting a change of venue. He also
requested a rehearing of his prior application. The petition to rehear was denied on July 13,
2010. A second motion to rehear was filed on August 2, 2010. The defendant applied for
permission to appeal to the Tennessee Supreme Court, which on December 8, 2010 denied
his application.

On July 2, 2010, the trial court held a hearing during which the prosecution made a
plea offer to the defendant, noting that it had previously communicated the offer to Ms. Frost.
After the defendant, who was proceeding pro se at the hearing, rejected the offer, the trial
court sought to make a determination of indigence. The trial court told the defendant it was
attempting to determine whether he should have counsel or whether it should appoint elbow
counsel to assist him. The defendant at first refused to answer the trial court’s questions, and
the trial court informed him that the answers were not potentially incriminating and therefore
not protected under the Fifth Amendment and told him it would revoke his bond if he did not
answer. The defendant told the court he had attempted to hire counsel but was unable to do
so because no lawyer would take his case. The trial court asked the defendant if he wanted
an attorney and noted that it would not consider any pro se filings from the defendant if he
was represented by an attorney. The trial court stated, “Based on your statements, the Court
is going to appoint you elbow attorney if you’re going to represent yourself, but I want to –
you have some choice in the matter.” The trial court reiterated it would appoint elbow
counsel to help the defendant on the day of trial if he did not want representation, but did not
explain the term to the defendant. The defendant, who stated he had a ninth grade education,
responded that “[o]n a human element-type level, no way in the world would I ever want to
represent myself.” The defendant nevertheless concluded, after a lengthy exploration of the
procedural history of the case,

If any reasonable person standing in my shoes would have
undergone the same history that I have, both with attorneys
appointed by the County of Sumner and the judiciary which is
elected by the County of Sumner, in responding to the present
question now, Mr. Reece, do you desire another attorney
appointed to you from Sumner County and do you desire any
further contact with the judiciary of Sumner County – if that
might be question two – the answer to both questions summarily
is no.

The defendant then referred to a request for appointment of counsel that he had
pending before the Court of Criminal Appeals. The trial court stated that based on his
request for counsel to the Court of Criminal Appeals, it would appoint an attorney to

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represent the defendant rather than appointing elbow counsel. The defendant reiterated that
he did not want a Sumner County attorney and demanded a separate court to rule on
appointment of counsel. The trial court stated it would appoint an attorney and noted the
defendant’s objection.

The trial court appointed Rob McKinney to represent the defendant on July 2, 2010.
On August 16, 2010, Mr. McKinney moved to withdraw, attaching a letter from the
defendant which stated that the defendant had not asked for assistance of counsel. The
defendant wrote that he had not been able to pursue his case because he was represented by
Mr. McKinney. He told his counsel, “Should you choose to dive into knee-deep water at the
behest of this smugly immune court, the decisions you make, the actions you take, and the
liabilities you choose to assume, are all at your peril.” He denied Mr. McKinney was his
attorney and stated he would initiate a separate proceeding for damages if Mr. McKinney
continued to represent him. The trial court denied the motion to withdraw on August 25,
2010. Counsel again moved to withdraw on September 3, 2010. In his motion, counsel
included a Memorandum of Law in which he recited that the defendant “understands the
consequences of declining representation, including the decision of the appointing court that
appointment of successor counsel i[s] unjustified, that Defendant may be required to proceed
pro se, and that Defendant will be required to follow all rules of trial procedure.”

During the October 13 hearing, counsel for the defendant stated that the defendant had
by email and in a meeting told counsel he wished to represent himself. Counsel concluded
that “[h]e does not acknowledge me as his attorney” and that the defendant “wishes to
proceed pro se.”

At the hearing, the defendant accused the trial court of having unlawfully appointed
Mr. McKinney to represent him “deliberately with the intent for encumbering me with an
attorney despite my protests.” The defendant, who referred to himself as a “hostage,”
pointed to his right to self-representation under Faretta v. California, 422 U.S. 806, 835
(1975). He asserted that he had been “restrained incapable due to your unlawful order for
raising a defense because I can’t file any motions on my own …. I can’t request an audio
transcript of the grand jury proceeding from you.”4 The defendant accused the court of
having forced him to testify regarding his indigence and having “trumped up a bogus
affidavit of indigency and said that I asked for appointed counsel when I deliberately
protested that and I said, no, Judge, you’re wrong, I’m not asking for counsel.”

The trial court stated it had appointed Mr. McKinney, an attorney from Davidson

4
The trial court had entered an order making the audio recordings of the proceedings available only
upon written motion.

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County, because the defendant had objected during a prior hearing to having an attorney from
Sumner County. The court concluded, “I think today is probably the most unequivocal
statement of wanting to proceed pro se that has yet been made by this gentleman,” and
granted the defendant’s motion, as well as counsel’s motion to withdraw. The trial court did
not require the defendant to sign a written waiver of the right to counsel and did not warn the
defendant against proceeding pro se. The defendant then lodged certain objections regarding
discovery. The court next inquired regarding the State’s availability for trial on December
7, 2010, and stated it would set trial for that date pending settlement in another case.

The defendant filed a “Notice and Objection” on November 29, 2010, objecting that
the case had been set for trial without a motion and claiming that the case had been set
“unlawfully.” The defendant also raised certain objections related to discovery. The
defendant, on December 3, 2010, requested the Tennessee Supreme Court to stay the
proceedings pending its disposition of the defendant’s appeal, and the Court denied his
request on December 6, 2010.

On the day of trial, the trial court held a hearing on the defendant’s Notice and
Objection. The defendant demanded a jury trial.5 He further objected that on October 13,
2010, the only motion before the court had been Mr. McKinney’s Motion to Withdraw, and
he stated that he had not agreed to set the matter for trial on December 7, 2010 and was not
prepared to go forward. The defendant explained that he was unprepared by pointing to
certain discovery purportedly withheld by the State. The defendant stated he had not filed
subpoenas and had not filed an affirmative defense and attributed his failure to do so to the
fact that he had been living out of his truck and that he had not been eating every day. The
defendant requested a continuance. The State responded that the defendant had received all
the discovery materials and accused the defendant of attempting to delay the matter with his
numerous filings and appeals.

The defendant then brought his lack of legal counsel to the trial court’s attention.
Regarding proceeding pro se, the defendant expressed an intention to use some money he had
just received from friends to possibly hire a lawyer and stated:

I don’t know what it’ll be, but don’t think for a minute that I
have ever said I enjoyed or I sought to represent myself. It is
only out of the deep mistrust that I believe I have reasonably
formed for any attorney associated by appointment with this
court or any of the prior courts that has made me – more than

5
It appears that the defendant recorded the October 13 hearing, as he makes reference to the “sealed”
audio transcripts and to his own audio recording of the hearing.

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 ever this last attorney that you appointed unwillingly to me, I
rejected him solely because he was associated with you, Judge,
and it’s not like I don’t want representation but I can’t trust you
anymore.

The defendant stated that his history with the court appointed attorneys was “abysmal,”
apparently as an attempted indictment of his representation rather than an acknowledgment
of any failure to cooperate on his own part. He asserted he had had bad luck but had done
the best “with what I had, the attorneys that were appointed.” Regarding Ms. Frost, he
stated:

You know I fought like a banshee to keep her on my case. You
know I wanted her there, Judge, but it was your choice to let her
go just simply based upon her raising her hand and saying, I
want out of this matter.

The defendant stated that Ms. Frost had refused to follow his directives even when he
offered to give her a “waiver” for doing so, and speculated that she had withdrawn to avoid
the ire of the court because he was “not sure she would have been the most popular person
for defending me, at least with the judiciary.”

The trial court found that the defendant had received appropriate discovery and that
he had indicated on October 13, 2010, that he desired to proceed pro se. The trial court
found that it had properly set the matter forty-eight days prior to its trial and denied the
continuance. It did, however, grant the defendant’s demand for a jury trial.

During voir dire, the defendant told the jury, “I don’t know the law and I’ve been
admonished6 not to explain why I’m without an attorney or to give you any reasons for that,
so as those things will have to be left unsaid as far as why I’m here pro se. Be it said that it
was my choice, I reckon I’m going to have to struggle with that statement.” Prior to the
opening statements, the trial court instructed the jury, “We have a pro se litigant. In other
words, a man who has elected to represent himself, made that conscious decision to represent
himself, and when he is at counsel table or he is standing and makes a statement, only if the
assistant district attorney has agreed and he has agreed is it factual. Whatever he says when
he’s representing himself as his attorney is not considered evidence.”

The State moved to prohibit the defendant from mentioning his physical

6
There is no record of such an admonishment, but the transcript does contain a bench conference
which was off the record.

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circumstances, including that he was living out of his car and not eating enough, and a
physical ailment he had.7 The defendant moved for appointment of counsel, again noting he
had just received money from friends which he intended to try to use as a down payment to
hire an attorney. He reiterated that he had desired to keep Ms. Frost as his attorney. The
defendant explained to the court his perception that his numerous collateral filings were an
honorable, if unpopular, fight for the rule of law. The defendant concluded that he would
be “tendering a written motion with the Court’s indulgence.” The court granted the State’s
motion in part, instructing the defendant not to mention his environmental and financial
circumstances because they were not probative. It denied the State’s motion with respect to
his physical condition, finding that it might have probative value. The defendant again
brought up his request for counsel: “I want to file it with the clerk here in open court as far
as my request for the appointment of counsel. I’m unable to proceed, Judge.” The trial court
responded, “We’re going forward with the case. We set this case. We gave you the jury trial
you asked for this morning because you wouldn’t do that.”

The State presented the testimony of the victim, Jack Keith Smith. At the time of the
assault, the victim had been assisting John Garrott, the owner of the property where the
assault had taken place and the defendant’s landlord, with odd jobs and had been sleeping
in his workshop, which was located immediately under the defendant’s apartment. The victim
testified that on September 19, 2009 at around 10:00 p.m., he had been at the workshop
making a wooden airplane and was getting into his sleeping bag to go to sleep when the
defendant came in and began to unplug machines. The victim stated that he told the
defendant he had permission to be there, and the defendant said, “not no more, you don’t.”
The victim testified the defendant then grabbed him, put his arm behind his back, and threw
him through the wood and glass door. The victim’s arm went through the door. The victim
testified that the defendant then took him “out back,” laid him on a concrete table, lay on top
of him, and beat his head against the concrete for approximately thirty minutes. The victim
stated that he begged the defendant to let him go, and the defendant finally agreed to let him
go if he would leave the property and never come back. The victim promised to do so.

At this point in the testimony, the defendant interrupted to again ask for counsel,
asserting that he was unable to proceed. The trial court responded by repeating several times
that it was proceeding with the trial, and then denied the oral motion for assistance of
counsel.

The State next introduced some photographs of the crime scene, including the
concrete table which was covered in blood. The defendant objected to the victim’s testimony

7
The presentencing report states that this condition was a progressive fusion or rheumatoid arthritis
of the spine which causes pain, stiffness, and limits mobility.

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that it was his blood and again requested counsel. The defendant sought to tender his written
motion for an attorney to the bailiff, and the trial court denied the defendant permission to
do so during trial.

The victim testified he had to have surgery in which a steel plate was inserted into his
jaw and that all his teeth were extracted. He had twenty stitches to the cut on his arm from
the glass in the door and bruising to his collar bone. The victim testified his medical bills
were in excess of $43,000.

The defendant again requested counsel prior to cross-examination. The trial court
denied his request. On cross-examination, the victim testified that he began making the
airplane at 10:00 p.m. and the defendant assaulted him at 12:00 a.m. The victim testified that
the owner had given him permission to spend the night in the woodshop that evening but he
did not specifically ask if he could make an airplane that night. He testified that the
defendant did not ask him to leave prior to grabbing him. The defendant impeached the
victim by reading from a transcript he had prepared of the preliminary hearing in which the
victim stated that he had told the defendant he was not going to leave because he didn’t have
to. The victim then testified that the defendant had told him to leave.

The victim stated he had had one can of beer and that he told police officers he had
only had one can. When the defendant asked him about medical observations of his
intoxication, he stated, “Well, if I had four or five, what’s it to you?” He could not remember
if he told police to give him a gun so he could “take care” of the defendant.

The victim denied that the defendant, at the time he grabbed the victim, told the victim
he would get the owner. The victim testified that when the defendant let him go, he knocked
on the owner’s door and asked him to call an ambulance while the defendant went up to his
apartment. He denied touching the defendant. The victim admitted to alcohol use in the past
and acknowledged he was on probation as a habitual traffic offender. The victim testified
that two months after the assault, he was again in the woodshop at night and the defendant
called the police. According to the victim, during this second incident, the owner told the
police the victim had permission to be there.

The victim testified that prior to the assault, the defendant had one time come into the
shop where the victim and the owner were standing, and had told the victim “we can go to
the ground right now.” The victim denied having taken $100 from the defendant. The victim
acknowledged that his teeth were not “the best in shape” prior to the assault. On redirect, the
victim testified that at the time, he had been sleeping in the shop for about one year with the
owner’s permission. The victim testified he had a scar on his arm from the laceration.

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 The State’s next witness, Officer Walter Booth of the Gallatin Police Department,
testified that he was dispatched to the scene and found the victim bleeding from the arm.
Officer Booth followed the blood back to the house from which an emergency call had been
placed. Officer Booth recalled overhearing the defendant say that he had physical contact
with the victim but could not remember the nature of the contact. Officer Booth identified
photographs he had taken depicting the defendant with blood spatters on his face and foot
and blood soaked into the right sleeve of his shirt and right leg of his pants. He testified that
he saw no injury on the defendant and identified pictures taken of the defendant after the
blood was removed from his hands and face, showing no injury.

On cross-examination, Officer Booth testified that he found some blood on the ground
by the broken window, but acknowledged he could not see it in the photograph. He testified
he found no more blood inside but found blood on the sidewalk going from the shop toward
the house next door. He testified that the sidewalk led to the area near the bloody concrete
table. He did not recall any indication that the blood was leading past the concrete table
toward the other house and could not recall whether he had a flashlight when he went to the
house or whether the lights were on. Officer Booth testified that he woke the owner up in
order to ascertain whether either the defendant or victim had permission to be on the
property.

The State called Jessica Wilkinson of the Gallatin Police Department, who testified
that she received a call regarding a man lying on the side of the road. At the scene, the victim
was lying on the sidewalk. Officer Wilkinson saw the blood by the broken glass in the door
and on the concrete slab in the yard. The defendant had removed his bloody clothing and put
them in the shower when she came to collect them. She recalled no injuries on the defendant
but testified that the victim had a laceration to his arm, a busted lip, damage to his mouth, and
bruising on his face and chest. She also testified he had an injury on his head.

On cross-examination, she testified that another officer had videotaped the blood trail.
She testified that the video would have been automatically purged if it were not downloaded
within sixty or ninety days.

Officer Chris Vines of the Gallatin Police Department testified that he received a call
regarding a man who had been in a fight and found the victim sitting in a driveway. The
victim had a large laceration on his arm, to which Officer Vines applied sponges, and he was
in obvious pain. The victim told him that the defendant had grabbed him with his hands
behind his back and thrown him against a glass window. The victim stated that the defendant
afterwards placed him on the stone and they lay there for approximately 30 minutes. The
victim stated the defendant let him go and he ran away and knocked on the door of an
apartment, which the resident opened and then, seeing the victim’s condition, closed. He

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then sat in a driveway and the police arrived. Officer Vines charged the defendant, who had
told him that the victim was making noise at 12:00 a.m., with aggravated assault. The
defendant had no injuries. Officer Vines testified that another officer took video of the crime
scene, but that the video was just a duplicate of the photographs.

During Officer Vines’ testimony, the defendant again requested counsel. On
cross-examination, Officer Vines testified that the victim had told him he had gone to the
owner’s home and the owner had told him to “put a Band-Aid on it and go back to bed.”
Officer Vines acknowledged that he did not know of anyone who made contact with the
owner to establish that the victim had permission to be on the property. However, he testified
that he had always worked nights and was aware that the victim routinely worked late in the
shop. Officer Vines testified that his report reflected that the victim was using an air
compressor at the time. The defendant asked Officer Vines for numerous legal conclusions
after being instructed not to do so by the court, and the court cut off cross-examination. On
re-direct, Officer Vines testified that the victim’s presence on the property had no bearing
on his decision to arrest the defendant and that there were no allegations the victim went
upstairs to the defendant’s property.

On re-cross-examination, the defendant attempted to question Officer Vines regarding
the definition of curtilage but was cut off by the trial court. Officer Vines testified he could
not recall being told that the victim had permission to run machinery late at night but testified
that he was familiar with the victim, knew he stayed there at night, and had been there on a
prior noise complaint. Officer Vines testified that he smelled the odor of alcohol coming
from the victim. He stated that he knew the victim used alcohol but the victim was “nowhere
near as intoxicated as I’ve seen him before.” He testified that he did not personally speak to
the defendant that night but that his report reflected information he received from other
officers. He testified that at the time, he did not indicate which parts of his reports were not
based on personal knowledge. Officer Vines testified that the victim had told him that the
defendant grabbed his arms and they were “tussling” until they both went into the glass pane.

The State introduced the victim’s medical records. The records reflect that the
victim’s blood alcohol level was .138. At the both the Sumner County hospital where the
victim was treated and Vanderbilt University Hospital, the victim at some point ranked his
pain as a ten out of ten. Medical imaging showed a fracture to his right mandible, a left
mandibular condyle fracture, and comminuted nasal fracture. He was given morphine and
percocet at the Sumner County hospital where he was treated. He underwent surgery at
Vanderbilt, where a steel plate was inserted into his jaw and his jaw was wired shut. He was
given morphine, oxycodone, acetaminophen, percocet for pain and discharged with a
prescription Lortab and ibuprofen. At Vanderbilt, the victim was grimacing, wincing,
groaning, and moaning. The victim also suffered the loss of all his teeth. The medical

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records reflect that he had multiple carious teeth. The records also show that, “due to the
patient’s devastated carious dentition,” his teeth were extracted. The victim’s records show
he had previous missing, loose, and chipped teeth and periodontitits. The medical
assessment states, “This patient has a several displaced mandibular fractures with poor
dentition. We recommend a full mouth extraction....”

On the second day of the trial, the State requested the trial court provide curative
instructions to the jury regarding the defendant’s numerous references to his unwillingness
to proceed pro se. The defendant, in a detailed history of his legal representation, summed
up his sentiments at the time of Ms. Frost’s withdrawal as “I do want representation, yet at
the same time I trust no one.” The court granted the State’s motion. The defendant asked the
court to clarify whether the court was forbidding him from asking for an attorney and the trial
court responded, “I am not. You can ask for it and I will deny it.”

The State’s next witness was John Garrott, the owner of the property on which the
disagreement had taken place. The owner testified he lived approximately seventy-five feet
from the building with the wood shop and apartment. The owner had known the victim
approximately thirty years and the victim had intermittently helped him with tasks such as
cleaning in the workshop for approximately twenty years. The victim had slept in the shop
when he needed a place to sleep for the past ten to twenty years and had the owner’s
permission to stay anytime he needed to stay, including on September 19, 2009. The
defendant lived in the apartment above the shop. The owner did not receive a call from the
defendant regarding the victim making noise. The owner testified that he was in bed when
the victim came to the door with blood on him. The owner sent the victim back to the shop
to wash up and see how badly he was hurt and told the victim he would take him to the
doctor. The owner had contact with the police later in the night.

On cross-examination, the owner testified that the defendant did not make noise and
caused no problems at all in the approximately ten months he stayed. He testified that the
defendant was to pay a small amount in rent and fix up the apartment and that he did a good
job cleaning it out. The owner “might have” heard some banging and shouting outside his
door the night of the assault, but he did not hear well and was not bothered by it. The next
day, he washed off the blood on his back steps and on the rock in his yard.

The owner testified that the victim had his permission to be in the shop at night only
to sleep and not to operate the equipment. He testified that if he had been alerted that the
victim was using the equipment, he would have stopped him and that if the victim refused
to stop, he would have told him to leave. He testified that the defendant had his permission
to be in the upstairs area, and that the upstairs apartment was accessible from both an outdoor
stairway and a stairway from the shop. The defendant did not have a key to the shop and

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would not have been able to exit through the inner stairway if the shop were locked. The
owner was aware that the defendant might have been in the shop at night but saw no need for
him “to come down there at night and bother the man that was down there.”

He stated the victim would get drunk and have problems but could not recall if he had
told the defendant that the police picked on the victim. The owner recalled having asked the
victim to put insulation into the apartment and recalled that the defendant gave the victim
money to delay the job and to do work for the owner instead that day. He acknowledged
having told the defendant that he wished the defendant had not given the victim money. The
owner testified he did not recall an incident a month after the altercation when the defendant
called the police regarding the victim making noise in the shop. After the incident, he told
the victim he should not have been running the equipment and directed him not to do it again.
The owner testified that the defendant did not have the right to be in the shop. On redirect,
the owner testified that he allowed the defendant to remain in the apartment rent-free for the
following year out of both a desire to help him and out of fear that he might damage the
property if evicted. On re-cross, he did not know if the cost of the improvements the
defendant had made was valued at $3,500.

At the close of the State’s proof, the defendant asked the trial court for time to meet
with an attorney he had just contacted who might be able to represent him. The State argued
that the defendant had waived his right to counsel repeatedly on the record. The defendant
asserted, “I have not waived my rights. I have been invoking my rights continuously.” The
attorney the defendant had attempted to hire asked the court for a two-hour recess, as she was
in general sessions court at the time. The State characterized the defendant’s attempt to hire
counsel as “just another attempt on behalf of the defendant to delay this proceeding.” The
trial court noted, “I’m really of the opinion that he has, in fact, waived his attorney because
he knew that he had a right to have a court-appointed attorney. He didn’t want an attorney
and he made that perfectly clear that he was going to represent himself. There are other
things in the record that the Court will not go into.” The trial court denied the recess, but
allowed fifteen minutes for the attorney to form a contract with the defendant. At the end of
that time, the attorney informed the court that she had a conflict of interest because she knew
the victim but that she had advised the defendant not to testify prior to discovering her
conflict. The court put the defendant under oath regarding his decision not to testify, and told
the attorney, “If you had entered an appearance you would be asking the questions, and the
Court accepted the entry of the appearance.” The attorney asked for time to find someone
to represent the defendant. The trial court did not allow additional time and conducted an
inquiry under Momon. The defendant stated that he could not testify without counsel.

The defendant called the victim in order to introduce the dashboard camera recording
in rebuttal. The victim testified he might have had one or two drinks and that he might have

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told the police to give him a gun. The defendant introduced a transcript of the dashboard
camera in which the victim asked the police, “Let me have your gun, I’ll go take care of
him.” The victim told police he had had two drinks, to which the officer responded, “Don’t
lie to me[,] brother.”

The defendant’s closing statement contained the details of his version of the events.
The defendant stated he had been asleep in bed when he was awoken by the “tumultuous”
noise that the victim was making. He put on pants and a shirt and went downstairs, where
he could smell the alcohol on the victim from fifteen feet away. The defendant stated he
feared the victim because the victim had taken the $100 that the defendant gave him without
performing any work in return and because the defendant as a result researched the victim’s
prior criminal history. The defendant stated he unplugged the machines and told the victim
to leave. The victim went out into an anteroom but burst back in and tried to push past the
defendant. The defendant restrained the victim who went limp and fell into the door. The
defendant pulled the victim’s arm “gingerly” back through the glass and saw no blood. The
defendant walked the victim to the owner’s home, knocking and shouting for the owner to
come out. Receiving no response, he walked with the victim back into the yard, where they
fell over the concrete table. The defendant, due to a physical condition, was unable to get
up without letting go of the victim, so they remained there. When the moonlight broke
through the trees, the defendant saw the victim was bleeding and went to his apartment to call
the police. The defendant argued that he acted in self-defense and that the victim was
invading the curtilage of his home.

The trial court instructed the jury that statements of counsel were not evidence and
that the jury “shall not consider the request of James Richardson Reece . . . for the Court to
appoint him an attorney or the Court’s denial of that request or repeated requests for a
court-appointed attorney or the Court’s repeated denial.” The defendant did not request an
instruction on self-defense.

The jury convicted the defendant of aggravated assault, a Class C felony. At the
sentencing hearing, the defendant again requested an attorney. The victim testified at the
hearing, and the defendant during cross-examination highlighted the victim’s prior poor
dental condition and argued he was not responsible for the victim’s loss of teeth. The trial
court sentenced the defendant to six years’ imprisonment. The defendant moved for a new
trial and subsequently filed a “Motion to Strike Hearing Date of May 17, 2011” based on a
potential need to amend his motion for a new trial. The defendant also filed a “Motion for
Reduction of Sentence,” challenging the application of certain enhancement factors.

During the May 17, 2011 hearing on the motion for a new trial, the defendant asserted

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that he could not amend his motion for a new trial until the trial court had “unsealed” 8 the
audio recordings of the jury trial. He also demanded an attorney. The trial court found that
the recordings were not sealed and offered the defendant a copy of the transcript of the trial.
The trial court interpreted the defendant’s motion as one to strike his motion for a new trial.
However, the trial court corrected its misapprehension in its written order, finding that the
motion for a new trial had not been stricken but was still before the court. The trial court
subsequently ruled on the motion, denying it. The defendant filed an objection, which the
trial court also denied.

The defendant filed a notice of appeal on January 7, 2011 and amended it on February
14, 2011.9 On appeal, the defendant was appointed counsel, was denied a request for new
counsel, and was appointed new appellate counsel due to a change in former appellate
counsel’s employment. The defendant’s two motions to replace his second appellate
attorney were denied. The defendant’s second attorney filed a brief raising two issues 10 : (1)
the defendant challenged the sufficiency of the evidence, particularly as it supported the
element of serious bodily injury; and (2) the defendant challenged the trial court’s denial of
counsel during the trial, the sentencing hearing, and the motion for a new trial.11

II. Analysis

A. Serious Bodily Injury

A conviction must be overturned where the evidence is insufficient to support the
finding that the defendant was guilty beyond a reasonable doubt. Tenn. R. App. P. 13(e).
In evaluating the sufficiency of the evidence, the appellate court must determine “whether,
considering the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” State v.

8
The defendant also filed an Application for Declaratory Relief and Direct Appeal of Trial Court
Order Sealing Records in this Court on May 9, 2011, and the pleading was dismissed on June 10, 2011.
9
It appears that this notice of appeal was forwarded by the clerk of the Criminal Court of Sumner
County to this Court after the motion for a new trial was denied. The notice of appeal was not, as the
defendant asserts in certain pro se filings with this Court, filed by some unknown person.
10
The defendant’s appellate counsel apparently incorrectly believed that the trial court had stricken
the motion for a new trial and that the defendant could not appeal any of the issues raised therein.
11
The defendant at various points has raised as an issue his claim that he was also denied his right
to counsel at the preliminary hearing. Neither the preliminary hearing nor any other proceeding in general
sessions court is a part of the record before us, and the defendant’s appellate attorney makes no reference
to the right to counsel at the preliminary hearing. Accordingly, we do not address this issue.

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Reid, 91 S.W.3d 247, 276 (Tenn. 2002). The State is entitled to the strongest legitimate view
of the evidence and to all reasonable and legitimate inferences that may be drawn from the
evidence presented. State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000). This Court may not
reweigh or reevaluate the evidence, and it may not substitute its inferences for those drawn
by the trier of fact. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). “A guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). All questions concerning the credibility of witnesses, the weight and value
of the evidence, and factual issues raised by the evidence have been resolved by the trier of
fact. Id.

A person commits an assault if he or she intentionally, knowingly, or recklessly causes
bodily injury to another. T.C.A. § 39-13-101(a)(1) (2006 & Supp. 2009). An assault
becomes aggravated, as pertinent here, if the defendant causes “serious bodily injury” to the
victim and acts intentionally, knowingly, or – if the assault is based on bodily injury under
Tennessee Code Annotated section 39-13-101(a)(1) – recklessly. T.C.A. §
39-13-102(a)(2)(A) (2006 & Supp. 2009). “Serious bodily injury” is defined as bodily injury
that involves:

(A) A substantial risk of death;

(B) Protracted unconsciousness;

(C) Extreme physical pain;

(D) Protracted or obvious disfigurement;

(E) Protracted loss or substantial impairment of a function of a
bodily member, organ or mental faculty; or

(F) A broken bone of a child who is eight (8) years of age or
younger.

T.C.A. § 39-11-106(a)(34). The defendant contends that the State failed to show that the
victim sustained a serious bodily injury as defined by statute. The defendant challenges the
evidence linking the victim’s loss of teeth to the assault and denies that his other injuries
satisfy the statutory definition.

At trial, the State presented evidence tending to show that the victim suffered from
extreme physical pain and protracted or obvious disfigurement. In State v. Sims, this Court

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held that “loss of the victim’s teeth could constitute protracted disfigurement,” but found that
causation was not supported by the proof, which consisted of the victim’s testimony that her
teeth began to hurt four or five days after the incident and a doctor’s testimony that the victim
had no loose teeth or bleeding in her mouth immediately after the incident and that he would
be surprised if the assault was the cause of the loss of her teeth. State v. Sims, 909 S.W.2d
46, 49 (Tenn. Crim. App. 1995) abrogated on other grounds as recognized by State v.
Osborne, No. 01C01-9806-CC-00246, 1999 WL 298220, at *3 (Tenn. Crim. App. May 12,
1999). In State v. Sisk, the victim acknowledged that she had dental problems and her teeth
were deteriorating but testified that her pre-existing dental issues did not cause the loss of her
teeth. State v. Sisk, No. 03C01-9410-CR-00367, 1997 WL 20129, at *4 (Tenn. Crim. App.
Jan. 17, 1997). The Court in Sisk concluded that the evidence was sufficient to sustain a
conviction for aggravated assault. Id.

The victim in the case sub judice suffered the loss of all his teeth and testified that
although his teeth were not in the best shape, it was the defendant’s assault that caused their
extraction. The medical records reflect that he had multiple carious teeth. The records also
show that, “due to the patient’s devastated carious dentition,” his teeth were extracted. The
victim’s records show he had previous missing, loose, and chipped teeth and periodontitits.
The medical assessment states, “This patient has … several displaced mandibular fractures
with poor dentition. We recommend a full mouth extraction . . . .” No medical personnel
testified regarding the causal connection between the victim’s extracted teeth and the assault.
Although the victim, like the victim in Sisk, testified that his dental issues were not the cause
of the extraction of his teeth, the medical evidence, like the medical evidence in Sims,
explicitly attributed the loss of teeth to another cause. Whether or not the causal connection
was established beyond a reasonable doubt under these circumstances is a close question
which we need not answer, as the record provides alternative bases for finding that the victim
suffered serious bodily injury.

Serious bodily injury may also be premised on extreme physical pain. This Court,
while acknowledging the difficulty of quantifying pain, has previously held that extreme
physical pain under the statute should belong to the same class of injury as the other injuries
enumerated. Sims, 909 S.W.2d at 49. The Sims court held that a broken nose was not
extreme enough to be in the same class with other enumerated injuries. Id.

Nevertheless, “the subjective nature of pain is a question of fact to be determined by
the trier of fact.” State v. Love, No. E2011-00518-CCA-R3-CD, 2011 WL 6916457, at *4
(Tenn. Crim. App. 2011) (concluding that cuts, bruises, an eye swollen shut, a “very, very,
very high” level of pain, and protracted numbness in the lips constituted serious bodily
injury); State v. Dedmon, No. M2005-00762-CCA-R3-CD, 2006 WL 448653, at *5 (Tenn.
Crim. App. Feb. 23, 2006). In State v. Gibson, this Court upheld the finding of serious

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bodily injury where the victim had suffered multiple facial fractures from repeated blows,
as well as some loss of consciousness, two black eyes, a large bruise to her right temple, an
extremely bruised and protruding lip, a swollen and bloodied nose. State v. Gibson, No.
M2005-01422-CCA-R3-CD, 2006 WL 770460, at *12 (Tenn. Crim. App. Mar. 24, 2006).
Likewise, the defendant’s conviction in State v. Lee was upheld where the victim suffered
two black eyes, severe facial swelling, a torn lip, and severe headaches lasting three to four
weeks, and he testified to having extreme pain, apparently more severe than a normal person
with the injuries would have experienced. State v. Lee, No. M1999-01625-CCA-R3-CD,
2000 WL 804674, at *4 (Tenn. Crim. App. June 23, 2000).

The victim here testified that the defendant grabbed him, caused his arm to go through
a glass pane, and pounded his head against a concrete cylinder for approximately thirty
minutes. The victim ranked his pain as ten out of ten on at least two separate occasions at
two separate hospitals, and his medical records document that he was grimacing, wincing,
and moaning. His Sumner County Medical records indicate the presence of fractures other
than that for which he had surgery. The victim had a steel plate inserted into his jaw, and the
victim’s jaw was wired shut. He was given morphine and percocet at the Sumner County
hospital where he was treated, and he was given morphine, oxycodone, acetaminophen,
percocet for pain and discharged with a prescription Lortab and ibuprofen at Vanderbilt. The
gaping wound on his arm required twenty stitches. We conclude that the evidence was
sufficient to establish that victim experienced extreme physical pain.

The element of serious bodily injury may also be proven by showing that the victim
suffered “protracted or obvious disfigurement.” This Court has previously held that a scar
satisfies the requirement for “protracted or obvious disfigurement.” State v. Matthews, No.
M2010-00647-CCA-R3-CD, 2012 WL 5378046, at *4 (Tenn. Crim. App. Oct. 31, 2012)
(citing cases in which a scar was held to be a sufficient basis for finding serious bodily
injury); State v. Capps , No. M2010-02143-CCA-R3-CD, 2012 WL 3800848, at *7 (Tenn.
Crim. App. Sept. 4, 2012) (same). The victim’s testimony included a statement that there
was still a scar present on his arm at the time of trial as a result of the large laceration
requiring twenty stitches.

Based on the victim’s extreme physical pain and protracted and obvious
disfigurement, the evidence is sufficient to support the finding that the victim suffered
serious bodily injury.

B. Right to Counsel

The Sixth Amendment to the United States Constitution and article I, section 9 of the
Constitution of Tennessee guarantee the accused a right to the assistance of counsel. Lovin

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v. State, 286 S.W.3d 275, 284 (Tenn. 2009). Likewise, the accused has a right to self-
representation. State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984). The right to self-
representation and right to counsel are rights in the alternative, and the defendant cannot, for
obvious reasons, assert both at the same time. Lovin, 286 S.W.3d at 284. Because the right
to counsel affects the defendant’s ability to assert his other rights, “the wrongful deprivation
of a criminal defendant’s right to counsel is a structural error which so contaminates the
proceeding that reversal is mandated.” State v. Holmes, 302 S.W.3d 831, 838 (Tenn. 2010).
Whether the accused has waived the right to counsel or asserted the right to self-
representation is a mixed question of law and fact reviewed de novo with a presumption of
correctness of the trial court’s factual findings. State v. Hester, 324 S.W.3d 1, 29-30 (Tenn.
2010).

1. Waiver

The right to self-representation may be asserted only after the defendant “knowingly
and intelligently waives the valuable right to assistance of counsel.” Northington, 667
S.W.2d at 60. In order for a defendant to exercise the right to self-representation, (1) the
defendant’s request to proceed pro se must be timely; (2) the assertion of the right of
self-representation must be clear and unequivocal; and (3) the assertion of the right of self-
representation must reflect a knowing and intelligent waiver of the right to counsel. Hester,
324 S.W.3d at 30-31. When a defendant has waived the right to counsel, he may not later
assert that he was deprived of the assistance of counsel in error. State v. Small, 988 S.W.2d
671, 673 (Tenn. 1999).

Initially, we observe that Tennessee Rule of Criminal Procedure 44 requires that the
waiver of the right to counsel be in writing. Tenn. R. Crim. P. 44(b)(2). In State v. Goodwin,
the defendant had filed three signed motions in which he asserted the right to self-
representation. State v. Goodwin, 909 S.W.2d 35, 39 (Tenn. Crim. App. 1995). The Court
concluded that this satisfied the requirement of Rule 44 that the waiver be in writing. Id.
Here, the defendant’s “Compulsory Response” to Ms. Frost’s motion to withdraw contained
a prayer “in the alternative” for “no further appointment of counsel at this time” and referred
to the defendant proceeding “reluctantly pro se.” (Emphasis added.) Because the assertion
of the right to self-representation must be “clear and unequivocal,” we conclude that this
does not satisfy the requirement that the waiver of the defendant’s right to counsel at trial be
in writing. Hester, 324 S.W.3d at 30.

Mr. McKinney attached a letter from the defendant to his motion to withdraw, in
which the defendant asserts, “This letter will serve as Notice: I did not ask for assistance of
counsel in my case before this court.” This appears to be an (incorrect) statement of the
defendant’s past actions rather than an assertion of the right to self-representation. The

-19-
defendant’s letter, citing Faretta, also states, “You are not now, nor can you be my attorney
unless I request it or am otherwise determined incompetent.” The defendant’s right to self-
representation is also referenced in his filings with this Court. Although the defendant
asserts that he was deprived of the right to proceed pro se, the same filings assert that he
“went unwillingly without attorney” and refer to his “compelled self-defense.” We conclude
that these writings also do not satisfy Hester’s requirement that the waiver be clear and
unequivocal.

Furthermore, even if we were to find that the writing requirement was met, the record
shows that the waiver was not valid because defendant was not properly warned regarding
the dangers of proceeding pro se. Tennessee Rule of Criminal Procedure 44(b)(1) requires
the trial court to both advise the defendant of his right to representation and “determine
whether there has been a competent and intelligent waiver of such right by inquiring into the
background, experience, and conduct of the accused, and other appropriate matters.” Tenn.
R. Crim. P. 44(b)(1)(A)-(B). The Tennessee Supreme Court has described this as “an
intensive hearing on the record to advise the prisoner of the consequences of
self-representation and to determine that the prisoner knows and understands the
consequences of his or her decision.” Lovin, 286 S.W.3d at 288.

While the defendant need not have legal training in order to exercise the right to self-
representation, he must have “made his decision knowing the disadvantages and the dangers
of representing himself.” Goodwin, 909 S.W.2d at 40. The United States Supreme Court has
described the inquiry the trial court must undertake before accepting the defendant’s waiver
of the right to counsel:

To discharge this duty properly in light of the strong
presumption against waiver of the constitutional right to
counsel, a judge must investigate as long and as thoroughly as
the circumstances of the case before him demand. The fact that
an accused may tell him that he is informed of his right to
counsel and desires to waive this right does not automatically
end the judge’s responsibility. To be valid such waiver must be
made with an apprehension of the nature of the charges, the
statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential
to a broad understanding of the whole matter. A judge can make
certain that an accused’s professed waiver of counsel is
understandingly and wisely made only from a penetrating and
comprehensive examination of all the circumstances under

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 which such a plea is tendered.

Von Moltke v. Gillies, 332 U.S. 708, 723-24(1948).

In Smith v. State, the Tennessee Supreme Court recommended that a trial court ask
the questions in the appendix of that opinion, drawn from 1 Bench Book for United States
District Judges 1.02-2 to -5 (3d ed.1986). Smith v. State, 987 S.W.2d 871, 875 (Tenn. Crim.
App. 1998). These questions inform the defendant of the nature of the charges and range of
punishment he or she faces, as well as the fact that the defendant will be expected to conform
to the Rules of Evidence and Criminal Procedure in trying the case. The questions also
inform the defendant that he or she will not be able to present testimony as a narrative but
must ask questions of him or herself. Smith v. State, 987 S.W.2d at 877-78 (appendix). The
trial court is advised to warn the defendant that self-representation is unwise. Id.

In Goodwin, the trial court warned the defendant that he would not have access to a
law library, that advisory counsel would provide minimal help, that the trial would not be
held up to allow him to ask questions, and that the court would not inform him of the rules
of evidence or local rules. Goodwin, 909 S.W.2d at 40 -42. This, combined with the court’s
strong cautions against proceeding pro se, was held to be adequate. Id. at 41-42.

In Smith, however, the trial court gave “no warnings of the pitfalls of self-
representation” and did not ask about the defendant’s background, education, or experience
with the court system. The waiver was not valid because the trial court did not ascertain the
defendant’s understanding of the offenses charged, lesser included offenses, or punishments,
and failed to warn the defendant against self-representation or inform the defendant that he
would be held to the same standards as an attorney. Smith v. State, 987 S.W.2d 871, 876
(Tenn. Crim. App. 1998).

Likewise, in Northington, the waiver was found not to be valid because “[t]he trial
court failed to diligently examine the defendant’s background and experience, failed to notify
defendant as to the possible extent of any penitentiary sentence, and failed to elaborate fully
to defendant why he thought it ‘unwise’ to waive counsel.” Northington, 667 S.W.2d at 61;
see also State v. Coleman, 519 S.W.2d 581, 584 (Tenn. 1975) (concluding that defendant
had not waived the right to counsel because “the record does not reflect the trial judge made
the requisite inquiry and investigation to determine whether the respondent intelligently,
understandingly and willingly waived the benefit of counsel” and there was no written
waiver).

Here, although the trial court inquired into the defendant’s desire to proceed pro se
at the hearing on Mr. McKinney’s motion to withdraw, the court did not make the inquiry

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outlined in the appendix of Smith. At the hearing, the defendant gave no sworn testimony,
and the trial court did not ask about the defendant’s background or education, although the
record shows that the defendant has a ninth-grade education and is extremely articulate and
intelligent. The trial court did not explain the charges or potential punishments. At the July
2, 2010 hearing, the trial court had repeatedly referred to the appointment of elbow counsel
for the defendant, but the trial court never explained to the defendant what this meant and
never referenced the possibility again. Most importantly, the trial court did not warn the
defendant about the risks of proceeding pro se. Although the defendant’s counsel stated that
the defendant understood the risks, there is no record of the warnings he was given. The
record shows that the defendant, prior to meeting during trial with the attorney who advised
him not to testify, planned to introduce his own testimony to show that the assault was
committed in self-defense. The trial court never informed the defendant he would not be able
to present his testimony as a narrative and in fact gave no warnings regarding the pitfalls of
self-representation. Because the defendant was not warned regarding the risks of proceeding
pro se, we conclude that the waiver was not valid.

2. Implicit Waiver

A defendant who has not waived the right to counsel under the criteria outlined above
may nevertheless lose the right to an attorney through implicit waiver or forfeiture. “[T]he
right to counsel is not a license to abuse the dignity of the court or to frustrate orderly
proceedings” and can be implicitly waived “if a defendant manipulates, abuses, or utilizes
the right to delay or disrupt a trial.” State v. Carruthers, 35 S.W.3d 516, 546-47 (Tenn.
2000). The distinction between forfeiture and implicit waiver is that an implicit waiver is
made when the defendant’s misconduct continues after a warning from the court that such
misconduct will result in the loss of the right to counsel, whereas “forfeiture results
regardless of the defendant’s intent to relinquish the right and irrespective of the defendant’s
knowledge of the right.” Id. at 548.

Essential to implicit waiver, then, is a warning of the impending consequences and
an opportunity for the defendant to avoid the extreme sanction of the loss of the right to
counsel. “[A]n implicit waiver is presumed from the defendant’s conduct after he has been
made aware that his continued misbehavior will result in the dangers and disadvantages of
proceeding pro se.” Holmes, 302 S.W.3d at 840. The warnings need not be “extensive and
detailed” and a general explanation of the risks of self-representation is sufficient.
Carruthers, 35 S.W.3d at 549.

In Holmes, although the defendant assaulted his counsel, the Court concluded that he
had not implicitly waived his right to counsel because “trial court never warned him about
his conduct or the consequences of failing to conform his conduct to acceptable norms.”

-22-
Holmes, 302 S.W.3d at 841. Here, the trial court believed that there had been a valid waiver
of the defendant’s right to counsel, and consequently, it did not warn the defendant that a
continued failure to cooperate with counsel or continued vacillation regarding proceeding pro
se would result in an implicit waiver of his right to the assistance of an attorney. The record
does not show that the defendant was aware that a continuation of his disruptive behavior
would result in the trial court denying him the assistance of an attorney during his trial. The
trial court furthermore did not give even the general explanation of the risks of proceeding
pro se required by Carruthers. See Carruthers, 35 S.W.3d at 549. The defendant was not
warned about the consequences of continuing his behavior, and we accordingly conclude that
he did not implicitly waive his right to counsel.

3. Forfeiture

A defendant who engages in “extremely serious misconduct” may forfeit the right to
counsel even without a warning regarding the potential for implicit waiver or an explanation
of the pitfalls of self-representation. Carruthers, 35 S.W.3d at 548. Utilizing the right to
counsel to manipulate, delay, or disrupt trial may result in forfeiture. Id. at 549. Factors
which the trial court must consider to determine whether forfeiture has occurred include: “(1)
whether the defendant has had more than one appointed counsel; (2) the stage of the
proceedings, with forfeiture ‘rarely ... applied to deny a defendant representation during
trial’; (3) violence or threats of violence against appointed counsel; and (4) measures short
of forfeiture have been or will be unavailing.” Holmes, 302 S.W.3d at 839 (quoting
Commonwealth v. Means, 907 N.E.2d 646, 659-61 (2009)). Forfeiture is an extreme
sanction, and “only the most egregious misbehavior will support a forfeiture of [the right to
counsel] without warning and an opportunity to conform [the defendant’s] conduct to an
appropriate standard.” Holmes, 302 S.W.3d at 846.

In State v. Parsons, this Court concluded that the defendant had not executed a valid
waiver but had nevertheless forfeited the right to counsel because the record demonstrated
“that the Defendant’s pretrial conduct was egregiously manipulative and that he deliberately
engaged in this conduct with the aim of delaying, disrupting, and/or preventing the orderly
administration of justice.” State v. Parsons, No. W2010-02073-CCA-R3-CD, 2011 WL
6310456, at *13 (Tenn. Crim. App. Sept. 7, 2011). Like the defendant in the case at bar, the
defendant in Parsons had more than one trial attorney, was uncooperative with the attorneys
appointed by the trial court, vacillated between asserting his right to self-representation and
his right to counsel, and filed suit against persons associated with the trial court in federal
court as well as filing numerous appeals in state court. Id. at 21-23. The defendant in
Parsons also sought several continuances, made unfounded accusations of personal and
professional misconduct against his lawyers, sued his lawyer in federal court in order to
manufacture a conflict of interest, filed complaints against both his lawyers with the Board

-23-
of Professional Responsibility, filed a complaint with the police department accusing his
attorney of assault, threatened his attorney with a civil suit, and intentionally manipulated
court-ordered evaluations to determine his competence.

The trial court in Parsons found that the defendant’s conduct was calculated “to
manipulate continuances,” “to be manipulative of the judicial process,” and “to postpone his
trial,” and that it was “egregiously manipulative and abusive of the judicial process.” 12 Id.
at *21 n.15. This Court concluded that he had forfeited his right to an attorney because his
“course of conduct was an egregious manipulation of the judicial system, and of the
constitutional rights afforded to criminal defendants, in order to delay, disrupt, and prevent
the orderly administration of justice.” Id. at 23.

A trial court may generally only find the defendant has forfeited the right to counsel
after holding an evidentiary hearing during which the defendant is permitted to testify.
Holmes, 302 S.W.3d at 838-39. In a footnote, the Holmes court explains that this rule does
not apply when the conduct which serves as the basis for forfeiture takes place in open court.
Id. at 839 n.6. The burden of proving that the defendant’s actions justify forfeiture is on the
State. Id. at 839. Here, the trial court held no evidentiary hearing. Even more significantly,
the trial court did not make the crucial finding that the defendant was intentionally
manipulating the judicial system and had forfeited the right to counsel due to his efforts to
delay or disrupt the proceedings. Because there was no hearing and no factual findings were
made, the trial court did not consider the factors enumerated in Holmes. See Holmes, 302
S.W.3d at 839.

Although the defendant’s conduct here was in many ways similar to the conduct of
the defendant in Parsons, the trial court in the case at bar did not find that the defendant was
intentionally manipulating or attempting to disrupt his trial. While the defendant’s behavior
is, as the State argued during trial and on appeal, consistent with an attempt simply to delay
justice, it is equally consistent with the defendant holding an honest, although misguided and
incorrect, conviction that the court system of Sumner County was maliciously intent upon
depriving him of a fair trial. Because the trial court believed it had obtained a valid waiver
of the defendant’s right to counsel, it did not make any finding that the defendant was
intentionally delaying or disrupting the proceedings. We also note that the trial court

12
The trial court made these findings, along with the ruling that the defendant had forfeited the right
to counsel, in an order denying the defendant’s motion for a new trial. In affirming, this Court held that the
trial court had previously made an “implied finding” that the defendant had forfeited his right to counsel.
Parsons, 2011 WL 6310456, at *21 & n.15. Because the case at bar presents us with a situation in which
the trial court made no determination whatsoever that the defendant was manipulating the administration of
justice, we do not examine the timing of the factual findings in Parsons.

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apparently did not think the defendant had forfeited or implicitly waived the right to counsel,
as the trial court permitted him to attempt to hire an attorney to assist him in presenting his
defense and the trial court informed the jury that he had chosen to proceed pro se. The
defendant’s inability to cooperate with his attorneys might have been the result of an
“intentional pattern of obstinate, dilatory, bullying behavior [and] an effort to threaten,
coerce, and egregiously manipulate the entire judicial system,” Parsons, 2011 WL 6310456,
at *17, but the trial court did not make a factual determination that this was the case.
Because the trial court did not make any findings that the defendant’s behavior was an
egregious manipulation of the judicial process aimed at disrupting or delaying trial, we hold
that the defendant did not forfeit his right to counsel.

While the trial court properly attempted to prevent the defendant’s vacillation
regarding his right to counsel from delaying the proceedings unnecessarily, the trial court did
not properly warn the defendant regarding the pitfalls of waiving his right to counsel and
proceeding pro se and did not obtain a written waiver. The trial court also did not give the
general warnings which would serve to support the finding that the defendant, by refusing
to cooperate with his attorneys, had implicitly waived his right to counsel. Because the trial
court did not make any findings that the defendant’s behavior was calculated to manipulate,
disrupt, or delay trial or obstruct justice, we cannot conclude that the defendant’s conduct
was so egregious that he forfeited the right to representation. Accordingly, we conclude that
the defendant was entitled to representation at trial. The deprivation of the right to counsel
is per se reversible error. Holmes, 302 S.W.3d at 848. The defendant’s conviction is
reversed and the case is remanded for a new trial.

CONCLUSION

Although the evidence is sufficient to support the finding of guilt beyond a reasonable
doubt, we conclude that the defendant was denied his right to counsel and we reverse and
remand for a new trial.

_________________________________
JOHN EVERETT WILLIAMS, JUDGE

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