State v. Perry Saleem Lee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
APRIL SESSION, 1999 June 2, 1999

Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9806-CC-00266
)
Appellee, )
)
) WILLIAMSON COUNTY
VS. )
) HON. TIMOTHY EASTER
PERRY SALEEM LEE, ) JUDGE
)
Appe llant. ) (Aggra vated A ssault)

ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF WILLIAMSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

PERRY SALEEM LEE PAUL G. SUMMERS
Pro Se Attorney General and Reporter
SCCF/CCA
P.O. Box 279 KIM R. HELPER
Clifton, TN 38425 Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493

JOSEPH BAUGH
District Attorney General
P.O. Box 937
Franklin, TN 37065-0937

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION
The Defendant, Perry Saleem Lee, was indicted on two counts of

aggravated assau lt. Follow ing a ju ry trial in April 1998, he was found guilty of one

count of simple assault against victim Charles Steele and one count of

aggravated assau lt against victim Kenneth Lockridge. The Defendant now

appe als his convictions pro se, pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure.

The Defendant presents eight issues on appeal: (1) whether the evidence

presented at trial was sufficient to support his convictions; (2) whether the trial

court erred by denying his motion for a new trial; (3) whether the victims’ in-court

identifications of him violated his right to a fair trial; (4) whether the trial court

erred by proc eedin g with th e trial de spite th e Def enda nt’s reserv ations abou t his

trial couns el’s familiarity w ith the cas e; (5) whether he rece ived ineffective

assistance of counsel; (6) whether the prosecutor made improper statements

during closing arguments; (7) whether the reasonable doubt instruction was

infirm; and (8) whether he was improperly denied records from his trial to perfect

his ap peal. 1

All events underlying the Defendant’s present convictions occurred in the

early mornin g hours of August 29, 1997. Aside from officers involved in the

Defe ndan t’s arrest, the only witnesses to testify at trial were the two victims and

the Defen dant. The D efend ant an d the vic tims d iffered in their versions of what

transpired on the night of the crimes.

1
We address the issues in a different order than that presented in the Defendant’s brief.

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 Charles Steele, the first victim, testified that he had known the Defendant

since childhood. He stated that on August 29, 1997, around two or three o’clock

a.m., he was “just hang ing out . . . sipping a few beers” on Natchez Street. He

reported that at the time, he was standing with a group of people in front of the

house next to the Defendant’s home; part of the group had moved into the

driveway betwe en the two ho uses . Steele testified that wh ile he was standing on

the sidewalk, the D efendant em erged from his home , asked everyo ne to leave

the premises, and then said, “Carry your ass back to Hard Bargain” or “Carry that

s__t on back to Hard Bargain.” Steele assumed that the Defendant was

addressing him because he was the only member of the group who lived at Hard

Bargain. Steele testified, “Seemed like I told him . . . there w asn’t n o sen se in a ll

this or I was going, I was leaving, or some thing to tha t effect . . . .” Accord ing to

Steele, while they were talking, the Defendant pulled a machete or a knife, which

Steele described as two and a half feet to three feet long and three to four inches

wide, from either the leg o f his pants or a sca bbard at his side and began to

swing it. Steele testified that he ba cked a way from the Defe ndant fo r about th irty

feet while th e Def enda nt swu ng the knife a t him, th en stu mble d and fell. Stee le

maintained that while on the ground, he raised his hand up in self-defense as the

Defendant continued swinging the knife, and the knife cut his hand. Steele

recalled that after he was cut, it “seemed like [the Defendant] swung at me again,

and I heard the blade hit the ground, and I jumpe d up and ra n . . . toward my car.”

Steele testified that he drove himself to the emergency room of a nearby

hosp ital, stopping along the way at a g as station to get a tow el to clean his bloody

hand. He stated that wh ile at the h ospita l, he ide ntified th e Def enda nt as h is

attacker to police. He further testified that he required several stitches between

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his first finger and thumb and that his middle finger was cut to the bone, requiring

surgery. H e stated th at he no w has lim ited use o f his midd le finger.

On cross-e xamination, S teele adm itted to having been previously charged

with the sale of cocaine. He also reported that he may have smoked crack

cocaine on the evening of August 28, 1997, during the time imme diately prior to

his confrontation with the Defendant. However, he denied smoking crack cocaine

at or near the Defendant’s residence that night. He also denied having any drug

parap herna lia in his hand a t the time o f his confro ntation with the Defe ndant, and

he testified that he did not notice anyone else on Natchez Street engaging in drug

use at that time . Furtherm ore, he a dmitted that after this incident, he told an

acquaintance, Vicky H owell, 2 that he had cut his hand cleaning a turtle, but he

explained that he had lied to Howell because he did not believe it was her

business to know how he had been injured.

Kenn eth Lockridge, the second victim, encountered the Defendant, whom

he had known “all his life” and whom he he lped ra ise, sh ortly afte r Stee le

departed for the hospital. Lockridge testified tha t he and his girlfriend we re

walking down Natch ez Stre et in the early morning hours of August 29, 1997 when

he saw the Defendant across the street. Lockridge testified that he said to the

Defen dant, “W hat’s up, my nigger?” which he “considered . . . being friendly.” He

testified that the Defendant responded, “Hey, fat m____r-f____r, you got your

[police] wire on?”3 According to Lockridge, the Defendant then crossed the street

2
Because there is no written transcript of the trial, but rather a videotape record, the
spelling of Vicky Howell’s name may be incorrect.
3
Lockridge denied ever wearing any type of police wire.

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and hit him. Lockridge stated that he said, “Man, go on” and “tried to walk aw ay.”

Howeve r, as Lockridge continued walking, the Defendant followed him, hitting

him numerous times about the face and head until Lockridge fell down, hoping

that the attack would ce ase. Lockridge testified that while he was on the ground,

the Defendant “put [the gun] upside [his] head,” and he feared that the Defendant

might fire the gun. He recalled that at this point, the Defendant’s girlfriend

pleaded for the Defendant to stop, and the Defendant ended the attack.

Lockridge then we nt to the hosp ital, whe re he id entified the De fenda nt as h is

attacker. An officer who saw Lockridge at the hospital stated that his nose was

swollen, h is mou th was b leeding, a nd that the re was b lood on his clothes .

The Defendant presented a different account of the events underlying his

convictions. He testified that he arrived home around midnight on August 28,

1997 and found a numb er of people standing in front of his house and in the

driveway next to h is home. This disturbed him, he testified, because of the high

incidence of drug use at night on his street. He claimed to have previously put

up “No Loitering,” “No Trespassing,” and “No Parking” signs on his prope rty in an

attemp t to protect h is children from the drug us ers in the n eighbo rhood.

The Defendant testified that on August 28, he parked his car and went

inside for a while before going back outside to the side walk to confront the group

of people standing in front of his home. He recounted that he approached the

group and asked them to leave, and some of them began to depart. He stated

that Charles Steele, however, whom he claimed held a “straightshooter,” drug

parap herna lia used for smoking crack cocaine, did not move but instead started

to light the straightshooter. According to the Defendant, he started toward

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Steele, again asking him to leave, a nd Ste ele fell down. He then turned back

toward his house, and when he looked back, Steele was gone. The Defendant

denied carrying any type of weapon during this confrontation and stated that he

did not ev en own a knife m atching th at describ ed by S teele.

The Defendant testified that he went back inside his hou se, told his

girlfriend what had happened, and warned her that he was going back onto the

porch. He stated that he had once been threatened with a “drive-by” shooting by

some teenagers, and he feared that the people who had been standing outside

of his house that evening might return. While on the porch, he saw Lockridge

walking down the stre et. He stated tha t while walking towa rd the Defendant’s

home, Lockridge asked him, “Where’s it at?” He stated that he interpre ted this

to mean that Lockridge was looking for drugs. The Defendant reported that when

he told Lock ridge to “[g]o on ,” Lock ridge re ache d into th e bib of his overalls as he

continued to walk toward the Defendant. The Defendant then hit Lockridge, and

he stated that Lockridge “might have swung back.” The Defendant testified, “I put

a left-right on him . Then I hit him with a left. Then I put another left on him.

Then he fell, a nd I kick ed him in the face.” He describe d the incid ent as “a fight”

and claimed that Lock ridge wo uld not ad mit it was a mutu al con frontat ion on ly

“because he got whooped.” He claimed that he was unarmed during the

altercation and that he feared Lockridge might be armed, saying “Late at night

ain’t no telling what a junkie got.” He also admitted that although he had put up

signs on his property, he never reported to police any of the drug-related

incidents in his neigh borho od. He explain ed tha t he co uld not do so because he

did not have a phone.

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 Both Steele and Lockridge were treated for their injuries at the Williamson

Coun ty Medical Center. According to the testimony of police officers who

investigated this incident, Steele an d Lockridge each reported essentially the

same version of events at the hospital on August 29 as they later prese nted in

court. Based on information provided by the two victims at the hospital, Officer

David Neal4 went to the Defendant’s home to investigate. Neal testified that

when he arrived, the Defendant refused to communicate his name or date of

birth. Neal therefore transported the Defend ant to the hosp ital, where Lockridge

identified him. Neal testified that while he was inside the Defendant’s home, he

did not notice any weapons. In addition, no weapons were found during a

subsequent search of the Defendant’s home and vehicle.

I. SUFFICIENCY OF THE EVIDENCE

The Defe ndan t first con tends that the eviden ce pre sente d at trial is

insufficient to support the jury’s findings of guilt. He argues that it “should be

abun dantly clear that had the Defendant intented [sic] to cause serious bodily

injury to either of the victims, it would appear that he was surely coupled with the

ability to do so, if suc h had been his intent. Y et the S tate’s c ase in chief, c learly

shows that the Defendant was the person whom [sic] received serious injuries,

as a resu lt of the a lleged criminal episode.” He argues that there was no

corroboration of the victims’ claims of injury and maintains that “the S tate sh ould

have put forth evidence of the injuries received” beyond testimony offered by the

victims. He also points out the fact that no weapons were found in his

possession. Furthe rmor e, he c laims that the only evidence “tending to connect

4
The spelling of Officer Neal’s name has been approximated.

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the Defendant to this crime is that it was alleged to had [sic] occurred in front of

the De fendan t’s home .”

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact of guilt beyond

a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. E vans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (T enn. 19 77)); State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).

In its review of the evidence, an appellate court m ust afford th e State “the

strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate

inferences that may be d rawn therefrom .” Tuggle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-evalu ate the ev idence ” in the reco rd below . Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular c onflicts in the tria l testim ony, the court m ust res olve the m in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.

W e find that the evidence presented at trial is sufficient to sustain the

Defe ndan t’s convictions. The two victims in this case testified that they had each

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been involved in a confrontation with the Defendant during which the Defendant

wielded a weap on. Eac h claime d that the Defendant’s aggression was

esse ntially unprovoked and unreciprocated. M oreover , each victim claimed to

have been inju red by the Defen dant, and both were treated for their injuries at the

hosp ital. Testim ony by the De fenda nt to the contra ry pres ents a classic question

of fact for consideration by the jury. Upon review of the testimony presented at

trial, the jury evidently credited the victims ’ accoun ts of their con frontations with

the Defendant. We will not disturb this conclusion on appeal. Instead, we

resolve the conflicts in trial testimony in favor o f the jury verd ict, see id., and

conclude that there was sufficient evidence presented at trial to support the

verdict.

II. MOTION FOR NEW TRIAL

The Defendant next argues that the trial court erred by denying his motion

for new tria l. The State r espo nds th at bec ause the m otion w as pre matu re, it is

a nullity and therefore must be denied. The Defendant also alleges that the trial

judge told him that “the law doe s not app ly in his court ro om [sic].” Apparen tly,

he argues that the trial judge maliciously de nied his m otion for ne w trial “to

prevent th e Defe ndant fro m esta blishing a showin g of Judic ial Miscon duct.”

The jury ann ounc ed the verdict in this cas e on A pril 3, 1998, and the

Defendant filed his motion for new trial on April 21, 1998. The sentencing order

was later filed on M ay 29, 19 98. The trial court denied the m otion as prem ature

but informed the Defendant that the proper time for filing the m otion w as with in

thirty days of se ntencing . In his brief, the Defendant claims to have filed a

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 second motion for new trial “on or around” May 28,1998, but the record does not

contain a copy of a second motion.

Rule 33(b) of the Ru les of Criminal P rocedure controls the time for filing a

motion for new trial. Rule 33(b) states, in pertinent part, “A motion for a new trial

shall be made in writing, or if made orally in open court shall be re duced to

writing, within thirty days of the date the order of sentence is entered.” Id.5 W e

believe that one o f the reaso ns for this ru le is that a de fendan t should not be

required to decide whether to pursue a new trial until such time as the disposition

of the case is known. Only after the sentence is imposed may the Defe ndan t fully

evaluate whethe r it would be approp riate or ben eficial to see k a new trial.

Here, the Defe ndant d id not file his m otion within the techn ical limits of

Rule 33(b). However, we find no prejudice to the State from the premature filing

of the motion, nor any reason to conclude that the issues raised in the motion for

new trial should not be considered on appeal. We will therefore address the

issue raised in the Defen dant’s motion for new trial which he now argues on

appe al.

W e have thorou ghly re viewe d the re cord in this trial a nd find abso lutely no

evidence supp orting a ny of the Defe ndan t’s alleg ations of judic ial misconduc t.

W e are unable to find any comment made by the trial judge that “the law does not

apply in his court ro om [sic],” either during an in-chamber discussion, when the

5
In arguing that his motion for new trial was improperly denied, the Defendant cites an
older version of the rule, which states that the motion should be filed within thirty days of the
verdict. The rule was amended in 1985 to conform to Tennessee Code Annotated § 40-35-
401. Tenn. R. Crim. P. 33(b) advisory commission comments.

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Defendant alleges the comment was made, or during the trial itself. We conclude

that the Defendant’s accusations of judicial misconduct are entirely without merit.

III. IN-COURT IDENTIFICATIONS

The Defendant argues that the in-court identifications made of him by the

victims were tainted because of suggestive pretrial identification procedures,

including the failure of police to conduct a pretrial lineup. The Defendant has

failed to include this issue in his motion for new trial. Therefore, this issue has

been waived. Ten n. R. App. P. 3 (e); see State v. Clinton, 754 S.W.2d 100, 103

(Tenn. C rim. App. 198 8).

IV. SUBSTITUTION OF COUNSEL

The Defendant next argues that the trial court erre d in proce eding to trial

despite his res ervatio ns ab out his coun sel’s familiarity with his case, and he

complains that his counsel failed to file two pretrial motions which he requested.

The Defe ndan t failed to includ e this iss ue in h is motion for new trial. Therefore,

this issue has been waived. T enn. R . App. P. 3 (e); see State v. Clinton, 754

S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).

V. INEFFECTIVE ASSISTANCE OF COUNSEL

The sole iss ue rais ed by th e Def enda nt in his motion for new trial which he

also argues on appeal concerns ineffective assistance of counsel. He contends

that his representation at trial was deficient, citing a plethora of alleged errors by

his trial counsel, David King, which includes Mr. King’s: (1 ) failure to prope rly

investigate the case, including the “validity of the identification procedures used

to identify the D efenda nt” and “the testimony by Ms. Howell”; (2) failure to request

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a continuance for further preparation because of his late involvement in the case;

(3) failure to spend any time with the Defendant in preparation for the case; (4)

failure to object to an alleged improper statement made by the trial judge or to

move the court for a change of venue following the alleged statemen t; (5) failure

to adequately cross-examine the State’s w itnesses; (6) failure to bring “to the

attention of the jurors” the victims’ prior criminal records; and (7) failure to reveal

to the jury that the Defendant received a “severe wound” to his hand which he

mainta ins was c aused by the victim s.

In determining whether cou nsel provided e ffective assista nce a t trial, the

court must decide whether counsel’s performance was “within the range of

competence demanded of attorneys in crimina l cases.” Baxter v. Rose, 523

S.W .2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the bu rden o f show ing tha t his counsel made

errors so serious that the attorney was not functioning as counsel as guaranteed

under the Sixth Amendment and that the deficient representation prejudiced the

petitioner, resulting in a fa ilure to prod uce a re liable resu lt. Strickland v.

Washington, 466 U .S. 668, 6 87 (198 4); Coop er v. State , 849 S.W.2d 744, 747

(Tenn. 1993); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the

second prong , the pe titioner m ust sh ow a re ason able p robab ility that, but for

coun sel’s un reaso nable error, the fact finder would have had reasonable doubt

regarding petitioner’s g uilt. Strickland, 466 U .S. at 69 5. This reaso nable

probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994) (citing Strickland, 466 U.S. at 69 4).

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 When reviewing trial couns el’s actions , this Cou rt should n ot use the

bene fit of hind sight to seco nd-gu ess tria l strateg y and c riticize c ouns el’s tactics.

Hellard v. State, 629 S.W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld

be judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.

The Defen dant first arg ues tha t his coun sel failed to adeq uately investigate

his case, including the “validity of the identification proced ures us ed to identify the

Defendant.” During an in-chambers discussion prior to the start of the trial, the

Defendant comp lained tha t King failed to file a motion, which he had requested,

to suppress identifications made of him by the victims. After further discussion,

during which King explained that he believed he and the Defendant had reached

an agreem ent not to file the motion, the trial judge dismissed the matter, agreeing

with King that the motion did not have merit. Evidently, the Defendant now

argues that had his attorney adequately investigated his case, he wo uld have

determined that the pretrial identification procedures were suggestive and that

they therefore irrepa rably ta inted th e iden tification s of the Defe ndan t mad e in

court by th e victims.

Sugges tive pretrial identification procedures are prohibited to avoid the

“primary evil . . . [of] a very substantial likelihood of irreparable misidentification”

of a defendan t by a witness in court. Neil v. Biggers, 409 U.S. 188, 198 (1972)

(citing Simmons v. United States, 390 U.S . 377, 384 (1968)).

[T]he factors to be considered in evaluating the likelihood of
misiden tification include the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the

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 accuracy of the witness’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and the
length of time between the crime and the confrontation.

Neil, 409 U.S. at 199-200. The central question is whe ther under a “totality of

the circumstances,” the identification was reliable, even though the proc edure

may ha ve been sugge stive. Id. at 199.

Although one-person showups have generally been criticized and

condemned as being overly suggestive, we do not find that the showup

conducted in this case irreparab ly tainted the victims’ in-court identifications of

the Defendant. Both victims unequ ivocally id entified the De fenda nt as th eir

assailant to police on the night of the crimes, even going so far as to name the

street where h e lived. Mo reover, an d perha ps mo st impor tantly, both victims

testified that they had known the Defendant since childhood. Under these

circumstances, we cannot agree that the showup conducted on the night of the

crimes caus ed “a ve ry subs tantial lik elihoo d of irrep arable misidentification” of the

Defendant at trial. Simmons, 390 U.S. at 384. Thus, we find no error on the part

of Mr. King in not “investigating” the matter further or in failing to file a m otion to

suppress the identifications.

The Defendant also contends that had King fu lly investig ated h is case, he

would have d iscove red the testim ony of M s. How ell. Again, this is a matter that

was addressed during the in-chambers discussion prior to the start of th e trial.

During the meeting, King stated on the record that Vicky Howell had been

subpoenaed as a witness but failed to show up on the morning of trial. King

stated that Howell had testified at the pre limina ry hea ring tha t Cha rles Ste ele told

her shortly after the crime he had cut his hand on a knife while cleaning a turtle.

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King offered to seek a co ntinuan ce of th e cas e until s uch tim e as H owell c ould

be procured as a witness, but the Defendant elected to proceed to trial without

How ell’s testim ony. M oreov er, Ste ele ad mitted at trial tha t he told Ms. H owell

that he received his injury while cleaning a turtle. For these reasons, the

Defe ndan t’s allega tion tha t his cou nsel fa iled to “in vestiga te” Ms . How ell’s

testimony is meritless. Furthermore, we find no other evidence that Mr. King

failed to adequately investigate the Defendant’s case.

W e find that the Defendant’s second and third claims of error are also

without merit. Much of the D efend ant’s dissatisfaction with King’s representation

eviden tly stems from the fact that he claims to have hired Kent Brisby, a member

of the firm in which King practiced. The Defendant complains that he was not

made aware that King would be handling his trial until “during the date of the

trial.” He contends that King should have requested a continuance to further

investigate the ca se, an d he c laims that Kin g spe nt “abs olutely N O tim e” with h im

to prepa re for the ca se.

During the in-chambers discussion before trial, the trial judge entertained

discussion concerning the adequacy of the Defendant’s representation. King

stated that he had discussed the case with Brisby and that Brisby believed King

was in a better position to try the case. He also stated that he had spoke n with

the Defendant for two hours the night before the trial, during which time they had

discussed the two motions requested by the Defendant. King maintained that he

believed they were “clear on” the motions and ready “to go to war together.” The

Defendant did not deny the truth of these statements. Moreover, the Defendant

admits in his brief that King was present during at least one meeting with Brisby

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to discuss the case. During the in-chambers meeting, the Defendant agreed that

he did not want to continue the case, despite King’s suggestion that he be

allowed to find other representation if necessary. The trial judge concluded that

in his experience, King was a competent attorney and su ggested tha t they move

forward with the trial. In light of these disc ussio ns, we find the Defe ndan t’s

second and third allegations of error to be meritless.

The Defenda nt next contend s that his attorney’s representation was

inadeq uate because his coun sel failed to object to an improper comment made

by the trial judge, “the law does not app ly in [this] court ro om [sic],” o r reques t a

change of venue following the comment. We have addressed the issue of judicial

misconduct above and conclude that because we find no such improper

comment in the record, Mr. King did not err by failing to request a change of

venue.

The Defendant’s fifth and sixth contentions of error concern the cross-

examinations of the victim s. Desp ite the De fendan t’s assertion s to the contrary,

King cross-examined both victims ab out their pe rsonal an d crimina l histories. W e

find no deficiency on the part of Mr. King with regard to the cross-examination of

witnesses.

Finally, the De fenda nt argu es tha t his counsel failed to reveal the fact that

he received a “serious wound” to his hand which was caused by the victims on

the night of the crimes. However, the Defendant made no mention of any such

wound during his testimony, nor can we find any other re ferenc e to the woun d in

the record. Had the D efendant wish ed to reveal this fact, he c ould have done so

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hims elf when he took the stand to present his version of the events on August 29,

1997.

Although we find no error on the part of Mr. King, we are convinced that

any error which may ha ve been made did not pre judice the Defen dant. W e

cannot agree that ha d Mr. King pro ceeded d ifferently, the jury would have had

reaso nable doubt regarding the Defendant’s guilt. The Defendant points to no

further evidence to support such a finding and has shown no prejudice resulting

from the erro rs that h e alleg es Kin g ma de. Th is issue is therefore without merit.

VI. IMPROPER STATEMENTS DURING CLOSING ARGUMENTS

The Defendant argues that the prosecutor made improper and prejudicial

remarks during his closing argument. However, the record does not contain a

transcript of closing a rgume nts. The appellant bears the burden of preparing a

comp lete record o n appe al. Tenn . R. App . P. 24(b). In addition, the Defendant

failed to include this issue in his motion for new trial. Therefore, this issue has

been waived. Tenn. R. App. P . 3(e); see State v. Clinton, 754 S.W.2d 100, 103

(Tenn. C rim. App. 198 8).

VII. JURY INSTRUCTION

The Defendant contends that the jury instruction on “reasonable doub t”

was constitutionally infirm, and he also complains that the trial court failed to read

the instructions aloud to the jury, merely handing them a copy instead. Again, the

Defendant has failed to includ e this issue in his motion for new trial. Therefore,

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this issue has been waived. Tenn. R. App. P. 3(e); see State v. Clinton, 754

S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).

VIII. ACCESS TO RECORD FOR APPEAL

The Defendant complains that he was denied access to trial transcripts and

other records necessary to perfect his appeal. As the State explains,

“[a]pparently, the problem stems from Williamson County’s policy of preparin g

video transcripts, which are deeme d contraban d at the facility where [the

Defen dant] is being h oused .” In respon se, the S tate points out that the trial court

not only gra nted th e Def enda nt’s motion for tran scripts and re cords from th e trial,

but also appointed an attorney to assist the Defendant with his appeal. 6 The

State main tains th at the a ttorney “could argua bly [hav e] prov ide[d] a ssista nce in

viewing the videotapes from the trial in order to p rovide [the Defen dant] with

approp riate citations to the reco rd.”

A criminal defendant proceeding pro se on appeal, having been granted

permission to do so by the trial court, certainly must not be denied access to the

full record of his trial, regardless of the record’s format. However, while we agree

that a defendant must be allowed access to all records and transcripts, the

Defendant in this case has not demonstrated prejudice resulting from having

been denied an opp ortunity to personally view the videotape transcript of the tria l.

He has not specified what information he was denied. Thus, in light of the

appointment of cou nsel to aid the Defe ndan t on ap peal a nd the Defe ndan t’s

6
The order granting the Defendant’s motion for transcripts and records and appointing an
attorney, which is dated one day after the technical record was filed with this Court, is not
included in the technical record. However, the Defendant has attached a copy of the order
to his brief.

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failure to show prejudice resulting from his inability to view the tapes, we

conclud e that this iss ue is witho ut merit.

Accord ingly, the jud gmen t of the trial cou rt is affirmed .

____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
JOHN H. PEAY, JUDGE

___________________________________
JAMES CURWOOD WITT, JR., JUDGE

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