### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ja nua ry 6, 200 9

STATE OF TENNESS EE v . JAMES ALFRED GOO DMAN

Direc t Appeal from the Circ uit Court forTip ton County No. 5758 Joe H. Walker, III, Judge

No. W2008-01080-C CA-R 3-CD - Filed Marc h 25, 2009

The de fenda

nt, J ames Alfr ed Go o dman, was c onvicted by a Tipton County

jury of ag g ravated robber y , a Class B felony
, and evading arr est – endang ering others, a Class D fe lony , and sente nced

a s a Rang e I , s tand ard of

fe nd e r to ten y e ars and

thr e e y e ars , r e sp e c tiv e ly , to be se rv e d c on se c uti ve ly in c on fi ne me nt. On

a pp e a l, h e argue s th a t: (1 ) the tr ia l c ourt e rr e d in no t c on sid e ri nghis mot ion to proce ed in propria persona ; ( 2) his ri g ht t o a fa ir tr ia l w a s prej ud ice d b y

the State ’s fa ilure to produce all of his proper

ty in its poss ession; (3) his rig ht to confr ont witnesses was “abr idge d and violated”; and (4) the evidenc e is insuff icient to sustain his convic tions. After re view, we aff irm the judgme nts of the trial cour t.

Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Circ uit Court Aff irme d

A LA N E. G LE NN , J. , d e liv e re d th e op ini on of the c ou rt , in wh ic h J .C. M C L IN and C AM I LLE R. M C M ULLEN , JJ., joined.

Ga ry F. A ntric a n, Di stric t Pu bli c De fe nd e r; Ly le A. Jo ne s (at tr ial and on app e a l) a ndDa vid Stockton (at trial), Assistant District Public Defe nders, f or the a ppellant, James Alf

red G oodman.

Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; Matthew B ryant Haskell, Assistant Attorney Gene ral; D. Micha el Duna v ant, Dis trict Attorney Ge nera l; and James Wa lter Free land, Jr. and Patrick Ne al Oldham, Assistant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

FA CT S

This case arises out of the defe ndant’s July 2007 encounte r with a Save-a -Lot groc ery store manage r and the defe ndant’s ensuing flight from the authorities. For his actions, the defe ndant was indicted on one count of aggra vated robbery and one c ount of felony e vading ar rest – enda ngering oth e rs

.-2-

A trial wa s conducte d on Marc h 31, 2008, at which the victim, Beth Ezra , testified that she was the store manage r of the C o v i n gton Save-a -Lot store whe re she had wor ked for twenty-five year s. On July 11, 2007, the victim wor ked an 8:00 a .m. to 2:00 p.m. shift and, unlike he r normal end-of -shift routine, aske d her a ssistant manager to make the ba nk deposit for he r so she c ould attend
to a pr e vio us ma tte r. Th e vic tim ha d h e r “[ m] e diu m- siz e d, bla c k s ho uld e r b a g” a ndits c on te nts wi th her w hen she le ft the store. A s she walke d t h ro u g h t h e p ar k ing lot toward her c ar, “ a gentlema n appea red f rom behind a gold colore d SUV and appr oache d [her ].” She e labora ted, “I walked betwee n a purple Mustang and a gold SUV to get to my ca r and did not see hi m an d t h en when I hear d him, turned, and he had just a risen from somewher e. He wa s not standing between those two vehicles w hen I a

pproac hed my ca

r.” The victim identified the defend an t as t h e man who approa ched he r.

Th e vic tim

te sti fi e d th a t th e de fe nd a nt, wh o w a s st a nd ing app ro xim a te ly a fo ot a way, tol d her, “ Give me the mone y bag.” She de scribed the defe ndant’s voice as “gruff and in a low tone” a nd

sa w t ha t “ h e h a d s o m e t y p e o f s o m e t h i n g o n h i s t h r o a t , ” b u t s h e w a s s t i l l ab l e t o u n d e r s t a nd him

. The victim told the defe ndant that she did not have the money bag, and “he raised his ha nd which

was c overe d in a terrycloth towel of some type and said, ‘That bag,’ and pointed to [her] shoulder” wher e her

purse wa s located. She r eca lled that at th at p o i nt, the defe ndant touched he r other shoulder using his hand that was not c overe d in the terryc loth towel. She said there “ appea red to be

so me thi ng in h is h a nd ” a lth ou gh sh e “ c ou ld n ot s e e be c a us e of the te rryc loth c ov e ri ng ov e r h is hand.” T he victim gave the defe ndant her purse be cause she “f

elt that that was the only c hoice [ she] had. [She] assumed he ha d a we apon pointed at [ her] . . . [an d ] wa s af ra id that if [she] didn’ t comply, he would shoot [her ].” She a cknowledge d, howeve r, that she ne ver a ctually saw a gun.

The v i ct i m re called that after the def endant obtaine d her pur se, he w alked at a ra pid pace “ac ross the par

king lot toward the south end of the lot” and got into a “r ed Ford pi ck u p.” The de fe nd a nt d ro ve ou t of

“ the so uthe ndof

the pa rking lot a ndturne d o n Pe e le r Str e e t.” Th e vic tim got into her ca

r, picke d up a store e mployee to ac company he r, and followed the defe ndant from “ a short distance.” The victim got the defendant’s license plate numbe r and r elaye d it to a police offic er who was, by tha t time, at the store. The victim f ollowed the defe ndant through sever al turns from a distance of “f

our to five c ar lengths.” The victim rema ined on the phone w ith the police dispatch operator while following the defendant unti l she was told that an officer was behind her on the r oad

a ndre qu e ste d th a t sh e pu ll o ff

. Th e vic tim ob lig e d, a nd the of fi c e r be ga n f

oll ow ing the de fe nd a nt. She rec alled that the f

irst patrol car

she saw w as fr om the Covington P olice De partment a nd it was followed by two or three other Covington Poli ce D epartment patrol ca rs, as we ll as a ca

r fr om the sh e ri ff ’s de pa

rt me nt, a ndmos t, i f not a ll, of the c ars ha d th e ir lig hts a ndsir e ns a c tiv a te d. Th e vic tim noted that her

handbag ha d since be en re turned to her from the Covington Poli ce D epartment.

On cr oss-exa mination, the vi ctim stated t hat s he “never leave [s] [the store] w ith the money bag obvious .” S he noted that ther e we re no othe r store e mployees with her in the pa rking lot. She

rec alled that an employee ha d been in the pa rking lot gathering ca

rts, but she was not sure if he wa s still in the parking lot or had alre ady pushed the carts to the front of the lot. The victim said that the defe ndant did not try to hand her a car d and she did not hit the defe ndant with her pur se.-3-

Offic er An d re w Hef

ner w ith the Covingt on Police Depa rtment testified that he r esponded to a robbe ry in progre ss at Save -a- Lot around 2:00 p.m. on July 11, 2007. Offic er H efne r wa s the first offic er to take over pur suit of the defe ndant’s vehic le from the victim and had his “lights and sirens” a ctivated the e ntire time. Offi ce r Hefner got within “thre e ca r lengths” of

the def endant’ s vehicle w hile pursuing him down “Highway 59 W est . . . a two-la ne roa d.” Sever al unmarke d and marke d pat ro l ca rs fol lowed behind him as he chase d the def endant f or appr oximately “16 to 17 mile s

. ” He es timated that they trave led “a littl e bit over the posted speed [ limit ]; not by much.” Offic er H efne r noted that “ [t]her e wa s civilian traff ic” on the r oad during the pur suit.

Detec ti v e Scotty Delashmit of the Tipton County Sheriff’s D epartment testified that he

rec eived a

radio broa dcast that “ a robbe ry . . . had taken plac e in the Sav[e ]-a -Lot par king lot. The person wa s believed to be arme d with so m e s o rt of we apon tra veling on 59 West with seve ral Cov ing ton c ars in p ur su it a ndthe City of Cov ing ton wa s re qu e sti ng c ou nty a ssi sta nc e a ndc ou nty backup.” Detec tive Delashmit joined the pursuit with his e merge ncy equipment a ctivated, a s was the equipment on the other marke d and unmar

ked ca rs alre ady in pursuit.

Detec tive Delashmit rec alled that at one point Investi g at or Mike Rose with the sheriff’s department, who was re spondin g from the opposite dire ction, tried unsucc essfully to stop the defe ndant by pulling his vehic le into the lane of oncoming traf fic. How ever , the def

endant “ jerke d

ov e r t ow ard[I nv e sti ga tor ] R os e ’s ve hic le ” a ndfo rc e d Ro se to g e t ou t of his way. A c ivi lia n v e hic le that was tra veling approximate ly four car lengths behind Investigator Rose pulled off on the side of the roa d until the c ara van of office rs passed. De tective De lashmit noted that Investigator Rose wa s driving an unmarke d vehicle, but “ his blue lights and his clear lights [wer e] blinki ng.” The off icer s
wer e able to effe ctuate the stop of the def endant’ s vehicle when Investigator Rose “ manage d to get in front of the de fenda nt and [they] basica lly had a rolling roadbloc k[.]”

Detec tive Delashmit h ad a map created of the e ntire incident a rea using the Global In fo rm a tio n Sy ste m po sit ion ing sy ste m a ndthe ro ute fr om S a ve -a -L ot t o w he re the c ha se fi na lly

e nd e d e nta ile d e igh te e n mi le s. Th e pu rs uit too k pla c e on ro a ds that w e re hil ly a nd , a t ti me s, sma ll,

narr ow, and curvy. “Sever al” civilian vehicles w ere encounte red during the pursuit, but Detective Delashmit could not rec all how many.

On cr oss-exa mination, De tective Delashmit testified that once the defe ndant was pulled ove r
a nd or de re d to ge t ou t of the c ar, “ he did n’ t ge t ou t of the c ar so [the y] we nt u p a nd

. . . a ssi ste d h im ge tti ng ou t of

the c ar. ” De te c tiv e De la sh mit re c a lle d that the de fe nd a nt ha d a tr a c he oto my tub e ho le in his throat but did not see an actua l tube coming out of hi s throat. He acknowledge d that no gun, knife, bludgeon, de adly wea pon, or anythi n g fashioned to look like such, w as uncove red in the

sear ch of the defe ndant’s truc k.

Investigator Mike Rose w ith the Tipton Count y Sheriff’ s Depa rtment testified that when he first a tt e mp te d to s to p th e d e f e n d a n t’ s v e h ic le b y p u ll in g o v e r in to h is la n e , h e le f

t th e d e fenda nt enough spac e to come to a safe stop, but the defendant did not stop. He noted that his emer gency lig hts a ndsir e ns we re act iv ate d. Af te r the fa ile d a tte mpt

to s top the de fe nd a nt, In ve sti ga tor Ros e turned his vehicle around a nd joined the pursuit of the de fenda nt. He reca lled that they were a bout
to rea ch a da ngerous inter section, so he pulled up be side the defendant and tried t o ease him into the-4-

ditch, but the defe ndant jerke d awa y. Investigator Rose rec alled he “wa s finally able to get a round [the de fenda nt] and with me i n front of him and Detective Delashmit behind hi m, we use d a boxing

maneuve r and boxe d him in and got him stopped.” He e stimated that they trave led “pr obably six,

se ve n mil e s” fr om the tim e he tur ne d a ro un d a ft e r the fa ile d a tte mpt to s top the de fe nd a nt t o th e tim e the def endant wa s finally stopped.

Th e de fe ns e c a lle d Se rg e a nt W a lte r A ntr a c a n, sh if t su pe rv iso r w it h Ti pt on Cou nty Correc tio n s , wh o t est ified that ce rtain items wer e take n from the de fenda nt when he w as booked. Na me ly, “ on e ba g o f 9 3 c e nts , a bla c k c omb , s e t of

ke ys , a Te nn e sse e dr ive r’ s li c e ns e [, ]” a sh irt w ith

a string a tta c he d th ro ug h th e c oll ar, a pa ir of blu e je a ns wi th a br ow n b e lt, a “ wo rn , to rn ” te e -s hirt,

a nd“ so me pa

pe r that he go t in thr ou gh the ma il. ” Se rg e a nt A ntr a c a n s a id tha t to the be st o f h is knowledge, the defe nd an t’s belongings had not bee n tampere d with since take n into custody. On

cross-e xamination, Sergea nt Antrac an acknow ledged that he could only testify as to what the defe ndant had on him when he was brought into jail and did not know about items the def endant may have ha d on him when ar rested that were not sent along with the defe ndant to jail.

Dominique Morgan testified that she lived in a n apartment complex direc tly behind Save-a

Lo t. She sa id that she ha d “se e n [th e de fe nd a nt] aro un d” be c a us e sh e “ re me mbe r[ e d] the thi ng in his neck.” Morgan reca lled an incident when she saw the de fenda nt in the Save-a -Lot par king lot and “sa w a lady . . . strik[ e] him wit h a purse

. . . [a] few times.” She did not see who the la dy was

no r w a s sh e c e rt a in of the da te

. Mo rg a n didno t ge t in vo lve d in the sk ir mis h a nda dmi tte d s he did

no t c a ll the po lic e or

a ny on e e lse . Sh e sa id s he didgo to g e t he r f ri e nd
, bu t her fri end re fu se d to return to the sc ene w ith her. Morgan stated she went back to the parking lot t hree hours later , but nothing was going on at that time. She testified she wa s contac ted by a man na med Jeff with the public defe nder’ s office the week bef ore tria l who wanted to “ talk about a situation that happe ned back la st summer in July sometime.” Morgan did not know how anyone w ould have known tha t she had see n something unless her friends who lived next door ha d told someone.

Of fi c e r J a me s Bo gg us of

the Co vi ng ton Pol ic e De pa rt me nt t e sti fi e d th a t he didno t r e c a ll having see n the def

endant be fo re , n or did he ha ve an inde pendent r ecollec tion of finding the defe ndant panha ndling in front of the La L osteca Restaura nt.

T h e d e f e n d a n t te s ti f

ie d th a t h e ma d e h is li v in g “ [ b ] y g e tt in g SS I d is ab il it y and by pa nh a nd lin g. ” He sa id that he liv e d in Me mph is b e fo re mov ing to T ipt on Cou nty a ndide nti fi e d h is panhandling permits from the City of Memphis. The defe ndant stated that he panhandle d in the La Losteca parking lot on July 1 1 s t ar t i n g around 10:30 a.m. La Losteca is in the same strip mall as Save-a -Lot. The defenda nt said that business was going well that day, until Off icer Boggus arrived and asked him to move a way f rom the fr ont of the re staurant. The defe ndant moved to a c urb behind Mapco, w hich was in fr ont of Save-a -Lot, ar ound “1:30, quarter till 2:00.”

The de fenda nt rec alled that as he was sitting on the curb, he saw the vic tim walking to her

car so he wa lked up to her a nd tapped on the top of her car

. T h e v ictim did not l ook up when he
tapp e d o n h e r car, so th e de fe nd a nt t ou c he d h e r o n th e sh ou lde r t o g e t he r atte nti on . T he vic tim turned a round and looked frightened, s o the defendant “tried t o give her [his] l ittle car d so that [he] could i ntroduce [him]self without upsetting her.” Howeve r, t he victim started to hit the def endant-5-

with her purse while he trie d to move awa y from her . He noted that she wa s holding her purse by the shoulder stra

p. The de fenda nt said that after he had “bee n hit numerous ti mes with the purse[ ,] . . . [he] was tired of being hit with it a nd [he] rea ched back and grabbe d it. [He ] was trying to get

awa y from being hit with it anymore.”

The de fenda nt testified that he got the vi ctim’s purse, then “tr[ie d] t o get to [his] truck a nd get the door locked to kee p from getting hit some more.” H e said that the vic tim yelled at him as he went to his truck but did not f ollow him. Asked why he did not drop the purse, th e d ef endant stated t hat a man “c[a] me from over there by her car” and st arte d hitting hi m on the side of the f ace

. He ha d previously see n that man “taking shopping c arts and putting them together and . . . taking them back to the f

ro n t o f t he store.” The de fenda nt said that his shirt was torn “[w ]hen the man pulled [his] shirt and [his] tube came out.” He a lso explained that the string a ttached to his outer shirt was “to hold the tube in plac e.” T he def endant state d that he wa s wea ring a tra ch tube dur ing the alter cation and it wa s pulled out by the man who wa s gathering shopping ca rts.

Th e de fe nd a nt t e sti fi e d th a t he fi na lly go t in to h is tru c k an d dro ve a way. He sa id tha t he did not drop the purse out of his w indow beca use “[ i]t’s rea l difficult to roll [the window] dow n.” He
sto pp e d a t a

sto p s ign a ndtr ie d to op e n the do or to d isc ardthe pu rs e , b ut the vic tim wa s b e hin d h im and “a guy got out of her c ar a nd started towa rds [him] and [ he] took off again.” The de fenda nt stated that “[he ] thought [he] was the vic tim. [He] wa s looking for a police office r. [He ] wa s the one getting beat up beside the he ad.”

Asked why he did not stop as soon as he s aw a p o l i ce office r, the de fenda nt said that he

“ did n’ t se e on e un til [h e ] s top pe d a ndthe y a sk e d [ him ] t o g e t ou t of the truc k. ” He state d th a t he did
not see a nyone “e xcept the la dy behind me”; he did not see a ny of the off icer s with their lights and sir e ns a c tiv a te d. Th e de fe nd a nt r e c a lle d s e e ing a ve hic le c omi ng tow ardhim a t so me po int

bu t di d

no t se e a ny lig hts or

sir e ns on it. Th e de fe nd a nt e ve ntu a lly sto pp e d wh e n a n of fi c e r “ pu lle d up to the left of [ him] and [he ] pulled in behind him and stopped.” T he def endant tes t i fied that onc e st o p p ed, an office r ca me towar d him with his pistol drawn and or dere d him out of the truck. The de fe nd a nt e xp la ine d th a t he is a “ pr e tty go odsiz e d” ma n a ndha d d if fi c ult ly g e tti ng ou t of

his sma ll truck, so the of

fice rs re ache d in and pulled him out.

The de fenda nt stated that an a mbulance w as sent to the sce ne bec ause he t h o u g h t he was having a se izure . He a lso explained that he has had four or five surgeries to his fac e and ne ck and cannot move his he ad. The defe ndant said that he did not have a weapon or anything shaped to look like one and that the cloth the vi ctim saw wa s “for mucus from [his] thr oat.” The defe ndant stated that he didno t kn ow the vic tim “ ha d a mon e y b a g e ve r i n h e r l if e ” a nd on ly a pp ro a c he d h e r t o a sk for a dollar.

On cr oss-exa mination, the defe ndant denied a sking Gregory McKe e, a f ellow inmate at the Ti pto n Co un ty J a il, to lie a nd te sti fy that he sa w a ma n a nd wo ma n a tta c kin g the de fe nd a nt. He a lso denied telling McKe e that ther e was a black woman who was going to lie and testify for him. Asked ho w h e c ou ld n ot he ar the sir e n o n a po lic e c ar tha t w a s c los e e no ug h b e hin d h im t o s e e his lic e ns e plate, the de fenda nt said he “w ent into a complex pa rtial seizur e at some point afte r [he] had turned onto Highway 59.” He elabora ted t hat during such a seizure , “[y] ou’re able to continue w hat you-6-

wer e doing if you ar e doing some repe titive action while the s eizur e comes on.” He did not know what happe ned fr om the time he went into the seiz ure until he wa s stopped by Inv es tigator Rose. Asked how muc h money he ha d on him when he was arre sted, the def endant sa id he thought he had twenty-four

dollars bec ause he only neede d one more dollar t o get his groce ries for the wee k. On redire ct exa mination, the de fenda nt sa id that his terryc loth r ag was left in his truck, a nd his pain and seizure medications we re a lso not accounte d for with his property at the jail.

Re bu tta l w itn e ss f

or the Sta te , G re go ry Mc Ke e , te sti fi e d th a t he wa s n ot a wi tne ss t o th e Ju ly 11, 2007, alleged a ggravated robbe ry at Save -a- Lot, b u t t h e d ef endant mentioned to him that he should say “ther e wa s a fraca s in the parking lot at the Sav[e ]-a -Lot.” He elabor ated that the f rac as involved “[s] ome man and some woman and some other man w hich I gues s would be [the de fe nd a nt] .” Mc Ke e sa id tha t th e de fe nd a nt o ff e re d to pa y him “ $5 00 .0 0 if he wa s [ fo un d] gu ilt y and a thousa nd if he wa sn’t.” He rec alled that the def endant a lso mentioned that a blac k woman wa s going to testify. Defe nse counse l did not cross-exa mine McKe e, stating that “the Rules of Professional Conduct prohibit me from c ross-exa mining thi s witness.”

Aft er M cK ee’s rebuttal testimony, the def endant testified that he had spoke n with McKee befor e, but it was only “[s] tandar d jailhouse talk.” He said that McKe e told him “he saw it and that he . . . would come and testify [be cause ] . . . [h] e just didn’t wa n t t o s ee anybody go to jail that

wa sn ’t su pp os e d to be the re .” Th e de fend ant d e nie d p a yin g D omi niq ue Mo rg a n to te sti fy on his behalf and said he did not know her.

At the conc lusion of the proof, the jury returne d guilty verdic ts to both offe nses as c harge d. The trial c ourt sentenc ed the de fenda nt to ten year s for the aggra vated robbery conviction for whic h the jury also asse ssed a $10,000 f ine, and thre e yea

rs for the felony e vading ar rest convic tion for which the jury a lso assessed a $ 1 0 0 0 fine. The court orde red tha t the sentenc es be se rved

consec utively. The def

endant a ppeale d.

AN AL YSI S

I. Self-Re presentat ion

The de fenda nt first argue s that the t rial court err ed in not considering his motion to proceed in propria persona . In Ten n es s ee , co u rt s h av e r ec o g n i ze d o n l y t wo b as i c c o n s t i t u t i o n al l y -guarantee d

me tho ds of re pr e se ntatio n of a crimi na l de fe nd a nt: pr o s e or through an attorney. These rights are

a lte rn a tiv e . A de fe nd a nt h a s n o s ta te or fe de ra l c on sti tut ion a l r igh t bo th t o r e pr e se nt h ims e lf a ndto be re pr e se nte d b y c ou ns e l. S ta te v. Bur kh art , 5 41 S.W .2 d 3 65 , 3 71 (T e nn . 1 97 6) . I n o rd e r t o activate the right of self-r epre sentation, the defe ndant must: (1) timely assert the right to procee d pr o

se ; ( 2) c le arl y a nd un e qu ivo c a lly e xe rc ise the ri gh t; a nd (3 ) kno wi ng ly a ndint e lli ge ntl y w a ive his or her right to assistance of counse l. State v. Herr od, 754 S.W.2d 627, 629-30 (Te nn. Crim. App. 19 88 ). Ge ne ra lly
, a de fe nd a nt mus t a sse rt the ri gh t of se lf -r e pr e se ntatio n pr ior to j ury s e le c tio n to be conside red timely. See id. a t 629. In determining whether a defe ndant intelligently and kn ow ing ly w a ive d hi s ri gh t to c ou ns e l, the tr ia l c ou rt mus t qu e sti on the de fe nd a nt e xte ns ive ly rega rding his ability to repr esent him self. State v. Northington, 667 S.W.2d 57, 61 (Tenn. 1984) ; Her rod, 754 S.W.2d at 630.-7-

The de fenda nt asserts that he wanted to f ire c ounsel and re prese nt himself. He allege s that he filed a handwritten motion t o the trial court reque sting such, but the court did not hold a hea ring on the matter. The rec ord bef ore us c ontains the aff

i davit of complaint fr om the gener al sessions

c ou rt sh ow ing that th e de fe nd a nt r e qu e ste d to ha ve c ou ns e l app oin te d, a ndsu c h w a s d on e on Au gu st 24, 2007. There is also an order in the tec hnical re cord f rom the trial court appointing legal counsel on November

8, 2007.

Noticea bly missi ng from the r ecor d, howeve r, is any handw ritten motion from the de fenda nt to the trial court r equesting that he r epre sent himself. There is no indication in the rec ord as to whe n thi s mo tio n w a s ma de or a ny pr oo f tha t it

wa s e ve r m a de . Fr om the re c or d b e fo re us, it i s undeterminable if the de fenda nt “timely assert[e d] the right to proc eed pr o s e ,” if ther e wa s a cle ar
a ndun e qu ivo c a l e xe rc ise of that r ight, a ndif

he kn ow ing ly a ndint e lli ge ntl y w a ive d h is righ t to assistance of counse l. See Her rod, 754 S.W.2d at 629-30. It is the duty of the de fenda nt to prepar e a fa ir, ac curate, and c omplete re cord of what tra nspired in the trial c ourt. Tenn. R. A pp. P. 24(b).

“ Ab se nt the ne c e ssa

ry re le va nt ma te ri a l in th e re c or d an a pp e llate c ou rt

c a nn ot c on sid e r the me ri ts of an issue.” S t at e v

. Ballard, 855 S.W.2d 557, 561 (Te nn. 1993). We also note that eve n if the defe ndant had c lear ly and unequivocally exerc ised his right to re p re s en t himself, his subsequent actions of not re asserting this desire a nd allowing counsel to participate in trial argua bly indicate that he aba ndoned his intention to repre sent himsel f. S ee State v. Robert Hood, No. W2004-01678- CCA-R3-DD, 2005 WL 2219691, at *13 (Tenn. Crim. App. Sept. 13, 2005).

II. Fair Trial

The de fenda nt next argue s that his ri ght to a fair trial was pre judiced by the f

ailure of the Ti pto n C ou nty Ja il’ s c us tod ia n o f p ro pe rt y to pr od uc e a ll o f the de fe nd a nt’ s p ro pe rt y in his possession. Accor ding to the defe ndant, he f iled a discove ry reque st a nd issued a subpoena to the

c us tod ia n o f pro perty, Se rg e a nt A ntr a c a n, ins truc tin g h im t o b ri ng a ll o f the de fe nd a nt’ s “ ja il property” with him to trial. Sergea nt Antrac an appear ed at trial with the def endant’ s property but appar ently did not bring a sum of money and the terryc loth rag the defe ndant us ed to wipe the muc us from his trac heotomy tube because those items were f ound subsequent to trial in a sepa rate are a of the prope rty room.

“ [T ]h e su pp re ssi on by the pr os e c uti on of e vid e nc e fa vo ra

ble to a n a c c us e d upon re qu e st violates due proc ess wher e the evidenc e is material either to guilt or to puni shment, irrespe ctive of the good fa ith or bad faith of the prosec ution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963) . In orde r to establish a Bra dy violation
, a defe ndant must show that he or she

re qu est e d th e inf

or ma tio n, the Sta te su pp re sse d th e inf or ma tio n, the inf

or ma tio n w a s f

a vo ra ble to his or her de fense , and the information was materia l. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidenc e is “mate rial” only if ther e is a re asonable p robabili ty that the result of the proce eding would have been dif fer ent had the evidenc e bee n disclosed to the def ense. U nited States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985).

In State v. Ferguson, 2 S.W.3d 912 (Te nn. 1999), the Te nnessee Supreme Court addr essed the State’s loss or destruc tion of evidenc e alleged to ha ve been exculpatory. The court stated that the fi rs t st e p is to d e te rm ine wh e the r the Sta te ha d a duty to pres erve the e vid e nc e a ndthat,-8-

gener ally, “the State ha s a duty to prese rve all evidenc e subj ect to dis covery and inspec tion under Te nn . R. Cr im. P. 1 6, or

oth e r a pp lic able la w. ” Id

. a t 91 7 (f oo tno te omi tte d) . Q uo tin g Ca lif or nia v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2533-34 (1984), the court said that duty was limit ed to evidenc e tha

t “ b o th posse ss[es] a n exculpatory value tha t was appa rent be fore the evidenc e
wa s d e str oy e d, a ndbe of su c h a na tur e that th e de fe nd a nt w ou ld be un able to o bta in c omp ara ble evidenc e by other

rea sonably ava ilable means.” Id. The c ourt continued:

If the pr oof demonstra tes the existenc e of a duty to pr es er v e and further shows that the State has fa iled in that duty, the analysis moves to a consideration of

sever al fa ctors which should guide the d ecision regarding the c onsequenc es of the brea ch. Those f

actor s include:

1. The de gree of negligenc e involved;

2. The significa nce of the destroye d evidenc e, conside red in light of the proba tive value a nd reliability of sec ondary or substitut e evide nce that rema ins available; a nd

3. The suff

iciency of the other e vidence used at tria l t o s u p p ort the conviction.

Of c ourse, a s previously stated, the c en t ral objec tive is to protect the de fe nd a nt’ s r igh t to a

fu nd a me nta lly fa ir

tr ia l. Id. (f ootnote omitted).

With rega rd to the t errycloth rag, the defe ndant argues t hat he was prejudiced by not having the ac tual rag involved in the incident beca use “he could have demonstrated to the j ury t hat no one could re asonably be lieve it conce aled a wea pon.” Although lengthy, the following excha nge during the cr oss-exa mination of the defe ndant at trial is key to this issue:

Q: Now, you’r e not denying that you had a ter rycloth or some sort of rag w rappe d around your

hand at that time, ar e you?

A: No, sir.

Q: No , s ir , y ou ’r e no t de ny ing it?

A: No, sir. In my hand.

Q: Sir?

A: In my hand just like this (indicating).

Q: That you we re just ca rrying?-9-

A: Just like this (indicating).

Q: And for the rec ord you ar e holding a handke rchie f or something in your hand.

A: I’m holding my wash ra g to absorb the mucus tha t comes out of my stomach.

Q: I under stand that, but you hear d her te stify that it was wrappe d around your hand in such a way that she couldn’t se e what was in it. Now, is that true or not true ?

A: Th a t li ke , I do n’ t - - C a n y ou se e wh a t’ s in it? I d on ’t ha ve a ny thi ng in i t.

Q: I kno w, sir , y ou do n’ t ha ve it wr app e d ar ou nd yo ur ha nd tod a y a t th e jury tria l. My question is, on July 11t h, you have he ard her testi fy she saw you with i t wrappe d around your

hand. She desc ribed it as a te rryc loth handkerc hief.

A: I would not do that. I’ve been trying ever since I’ ve bee n in jail to figure out how I c ou ld d o th a t, h ow I c ou ld h oldit.

Q: Well, I’m not going to get i nto the t rap of wra pping it around your hand, but you think you might figure out a way that it be construed -- not that handker chief ; there’ s
no e vid e nc e that th a t w a s w ha t w e ’r e ta lki ng abo ut. She te sti fi e d it wa s a te rryc loth rag tha t y o u wra

pped ar ound your hand a nd had fa shioned so that she couldn’t se e what wa s in it. Is that true or not true?

A: I h a d a te rryc loth ra g jus t lik e thi s, ide nti c a l e xc e pt that it h a d g re e n s tr ipe s in it. Id e nti c a l.

Q: So is i t true or not true that it was wra pped ar ound your hand?

A: It was gathere d in the palm of my hand just like this (indicating).

By the defendant’s own admission, the rag he had at t rial was “identica l” t o the ra g he had d u r in g th e in c id e n t e x c e p t f o r th e c o lo r o f th e s trip e s , a n d
, a s e x c e rp te d ab o v e , h e used many op po rtun iti e s to de mon str a te that th e ra g c ou ld n ot h a ve c on c e a le d h is h a nda s a lle ge d b y th e vic tim

. As such, the a ctual ra g does not qualify as “ material
, ” an d it is m oreove r appa rent that the defe ndant’s trial wa s fundamenta lly fair eve n without the actual r ag fr om the incident.

Th e de fe nd a nt a lso arg ue s that “ [m ]u c h wa s ma de
, on c ro ss e xa min a tio n o f the de fe nd a nt, of the fa c t that the re wa s no c ur re nc y in the de fe nd a nt’ s pr op e rt y. Th e Sta te us e d the abs e nc e of thi s
c ur re nc y to imp e a c h the de fe nd a nt a nd dis c re dit his te sti mon y. ” W ith re ga rd to thi s is su e , w e fi rs t

no te t hat it is a

str e tc h to sa y “ [m ]u c h w a s ma de ” of the de fe nd a nt’ s h a vin g n o c ur re nc y in his possession be cause , in r eality, the State asked three questions r egar ding the amount of money the de fe nd a nt h a d w he n h e wa s a rr e ste d ou t of

a c ro ss- e xa min a tio n th a t c on sis te d o f t we nty -f ive pa ge s. Def ense c ounsel immediately re- examined th e d e f e n d ant, and the def

endant testified that, in addition to the twenty-four dollars, his pa in a nd seizure medications and the rag used during the incident we re-10-

a lso no t in Se rg e a nt A ntr a c a n’ s p os se ssi on . Mor e ov e r, the Sta te did no t men tio n the c ur re nc y in its opening or c losing arguments. We cannot c onclude th at t h er e i s a re asonable probability that the result of the pr ocee ding would have been differe nt had the twenty-four dollars bee n acc ounted for by Sergea nt Antrac an; the def endant r ece ived a f

undamentally fa ir trial.

III. Confrontation

The de fenda nt next argue s that his right to confr ont w itnesses was “abridged and violated” by the S t at e’ s calling a r ebuttal witness whom his counsel could not cr oss-exa mine. In State v. Sayles, 49 S.W.3d 275, 279 (Te nn. 2001), our supre me court explained:

A d e fe nd a nt h a s th e ri gh t to e xa min e wi tne sse s to imp e a c h th e ir c re dib ili ty or to establish that the witnesses are bia sed. This includes the right to examine a witness rega

rding any promises of

leniency, pr omis es t o h el p the witness, or a ny other fa vorable trea tment offer ed to the witnes s

. See State v. Smith, 893 S .W.2d 90 8, 92 4 (T e nn

. 19 94 ); se e a lso Sta te v. Spu rl oc k, 87 4 S. W .2 d 6 02 , 6 17 (T e nn . Crim. Ap p. 19 93 ). An un du e re stric tio n o f this ri gh t ma y v iol a te a de fe nd a nt’ s righ t to confr ont ation under the Sixth Amendment of the United States Constitut ion and Article I , Section 9, of the Te nnessee Constit ution. See S mith, 893 S .W.2d at 924;

see a lso St ate v. Blac k, 815 S.W.2d 166, 177 (Tenn. 1991)

.
After the def ense r es t ed i t s case , the State ca lled Gre gory McKe e to testify as a rebuttal witness. At which point, defe nse counse l reque sted a bench confere nce and t he following exchange ensued:

[De fense Counsel]: Your Honor, the Rules of Professional Conduct prohibit me from

cross-e xamining Gregory McKe e.

[Pr o s e c u to r ] : Y o u r H o n o r , M r

. M c K e e h a s to ld me th a t [ c o

- d e f e n s e c o unsel] had been ba ck to see him and they we re a war e that ther e might be some issue with Mr. McKe e bef

ore this trial. Mr. McKe e says the Public Def ender ’s offic e has be en bac k to see him alre ady.

[D e fe ns e Cou ns e l] : A ndI a pp ro a c he d th e le a d c ou ns e l f or the Sta te wi th i t th is

mornin g a ndwa s to ld tha t th e y w ou ld n ot b e c a lli ng him

.
[Lea d Prosecutor] : I neve r said that. I sa id we ca nnot say who our r ebuttal witnesses

are going to be; I was not going to call Mr. Mc Kee in my case in c hief.

[De fense Counsel]: And you also said that you wouldn’t call him unless there was
a no the r i nma

te that yo u c ou ld c a ll.

[Lea d Prosecutor] : I neve r would have said that, Your Honor

.-11-

[The Court] : If that’s a n objection to calling the witness, the o b j ec t i o n will be

overr uled.

As previously re cited in detail, McKe e then essentially testified that the de fenda nt offer ed to pay h im to te s ti f

y th a t h e h a d w it n e s s e d th e d e f e n d a n t in v o lv e d in a “ f

r a c a s ” in th e Save-a -Lot parking lot and that a

woman wa s also going to testify on his behalf.

We initially note that the defe ndant has argua bly waived this issue for failing to make a cle ar
c on te mp or a ne ou s o bje c tio n. As no te d a bo ve , d e fe ns e c ou ns e l c a lle d f or a be nc h c on fe re nc e to discuss the matter, but he did not eluc idate to the court why the Rules of Profe ssional Conduct preve nted h im from cross-e xamining McKee , which in turn pre vented the c ourt from taking appropriate action “to prevent or nul lify the harmful eff ect of [the] e rror .” Te nn. R. App. P. 36(a). It was not until the motion for new tria l wh en d efense counse l offer ed as a n exhibit an “Or der Appointing Legal Counsel” that he indicated he had re prese nted McKe e at some point.

In a ny e ve nt, we c on c lud e that any e rr or re su lti ng in the de fe nd a nt n ot b e ing able to c ro ssexamine Mc Kee was ha

rmless. The State used the t estimonies of t he victim and the police office rs to e stablish the defe ndant’s guilt and only used McKe e to question the def endant’ s cre dibilit y and Dominique Morgan’ s t estimony. Howeve r, the State ha d alre ady cha llenged the de fenda nt’s

c re dib ili ty, a s w e ll a s the sk e tc hin e ss o f M or ga n’ s o bs e rv a tio ns , d ur ing tho se re sp e c tiv e c ro ssexaminations. More over, the defe ndant t estified prior to Mc Kee ’s testimony that “[he] didn’t have $500.00 in the first place even if [he] had wa nted someone to give f al s e t es t i mony”; a very be lie va ble state me nt g ive n h e ma de his liv ing a s a pa nh a nd le r. Th e de fe nd a nt a lso te sti fi e d a ga in in rebuttal immediately af ter McK ee to f

urther c ontradict McK ee’ s testimony. F urtherm o re, the Sta te a sk e d McK e e du ri ng dir e c t e xa min a tio n if he ha d b e e n p ro mis e d a ny thi ng in e xc ha ng e fo r h is testimony, and McKe e’s criminal rec ord was no secr et as he was admittedly serving time in jail for his fo urth o r f

if th o ff e ns e of dr ivi ng un de r the inf

lue nc e . T his is the typ e of inf or ma tio n tha t w ou ld have be en re veale d during cross-e xamination. In l ight of t he above, we conclude
, “assuming that the da ma gin g p ote nti a l of the c ro ss- e xa min a tio n we re fu lly re a liz e d, that [ a ny ] e rr or wa s n on e the le ss harmless be yond a re asonable doubt.” State v. Howe ll, 868 S.W.2d 238, 253 (Tenn. 1993).

IV. Sufficiency

The de fenda nt lastly challenges the suf ficienc y of the c onvicting evidence

. I n
c on sid e ri ng thi s is su e , w e app ly the rule th a t w he re su ff ic ie nc y o f the c on vic tin g e vid e nc e is

c ha lle ng e d, the re le va nt q ue sti on of the re vie wi ng c ou rt

is “ wh e the r, a ft e r v ie wi ng the e vid e nc e in the light most favor able to the prosecution, any rational trier of fac t could have f ound the essential

e le me nts of

the c ri me be yo nda

re a so na ble do ub t.” Ja c ks on v. Vi rg ini a , 4 43 U.S. 307 , 3 19 , 9 9 S. Ct. 2781, 2789 (1979); see al s o T en n

. R. App. P. 13(e) (“ Findings of guilt in criminal actions whether by the trial court or jury shall be set a side if the evide nce is insuffic i en t t o s u p port the findings by the trier of

fac t of guilt beyond a reasonable doubt.”); S tate v. Eva ns, 838 S.W.2d 185, 19 0- 92 (T e nn . 1 99 2) ; State v. An de rs on , 8 35 S.W.2d 60 0, 60 4 (T e nn . Crim. Ap p. 19 92 ). Al l questions involving t he cr edibility of w itnesses, the weight and value to be given the evidenc e, and all fac tual issues are resolved by the t rier of fac t. See State v. Pappas, 754 S.W.2d 620, 623 (T enn. Crim. App. 1987). “A guilty verdic t by the jury, approve d by the t rial judge, a ccr edits the testimony-12-

of the witnesse s for the State a nd resolves a ll conflicts in favor of the theory of the State.” State v. Gra ce, 493 S.W.2d 474, 476 ( Tenn. 1973). O ur supre me court stated the rationale for this rule:

This well-settled rule rests on a sound f ou n d at i o n

. The trial judge a nd the jury see the witnesses face to fac e, hear their testimony and observe their demeanor

on the s tand. Thus the t rial j udge and jury are the primary instrumenta lity of justi ce to determine the weight and cre dibilit y to be given to the testimony of witnesses. In the t ria l f o ru m a lo n e is th e r e h u ma n a tm o s p h e r e a n d th e to ta li ty o f th e e v id e n ce
c a nn ot b e re pr od uc e d w ith a writt e n r e c or d in thi s Co urt.

Bolin v. S tate, 219 Te nn. 4, 11, 405 S.W.2d 768, 771 (1966) ( citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963)) . A jury convic tion removes the pr esumption of innoce n ce w ith which a d e f e n d a n t is in it ia ll y c lo ak e d a n d r e p la c e s it w ith o n e o f g u il t, s o th a t o n ap p e al, a c onvicted defe ndant has the bur den of demonstrating that the evidenc e is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)

.

As rele vant here
, aggra vated robbery is the intentional or knowing theft of prope rty from the person of another by violence or

putting the person in fea r, whe n acc omplished by di s p l ay of any

ar t i cl e used or

fashioned to lea d the victim to reasona bly believe it to be a de adly wea pon. Tenn. Code Ann. § 39-13- 402(a) (2006).

I n the light most favor able t o the State, the evide nce show s that the defe ndant appr oache d the victim with his hand covere d in some ty pe of te rrycloth towel and sa id
, “G i v e m e t he money bag .” The victim told the defendant that she di d not have the mone y bag , and the de fenda

nt raised his ha nd c ov e re d in

the te rr y c lot h to wel and sa id, “ Th a t ba g ,” ind ic a tin g he r p ur se . T he vic tim thought that ther e appe are d to be something in the defe ndant’s hand but c ould not se e bec ause of the

cover ing. T he victim g ave the defe ndant her purse because she “felt that that was the only choice [she] had. [She] assumed he ha d a we apon pointed at [her] . . . [and] was a fra id that if [s he] didn’t comply , he would shoot [her].” T his pr oof was sufficie nt f or a r ational trier of

fac t to determine that the def endant took the victim’s pr operty by putting her in fea r, ac complished with the display of an

art ic le fa sh ion e d to lead the vic tim to reasonably believe it to be a dea dly weapon.

Tenne ssee Code A nnotated sec tion 39-16-603(b)( 1) (2006) provides: “I t is unlawful for a ny perso n, while o pe ratin g a mot or ve hic le on

any str e e t, r oa d, a lle y

or hig hw ay in t his state , to intentionally

flee or attempt to elude a ny law enforce ment office r, after having rece ived any signa l from such of

f ic e r to b r in g th e v e h ic le to a s to p

. ” Wh e nth e f

li g h t o r a tt e mp t t o e lu d e la w
e nf or c e me nt c re a te s a

ri sk of de a th o r i nju

ry to i nn oc e nt b y sta

nd e rs or oth e r t hir d pa rt ie s, the c ri me is elevate d from a Class E to a Class D f elony . I d. § 39-16-603( b)(3)

.

I n th e lig ht m os t f

a vo ra ble to t he State , the e vi den ce sh ow s th a t se ve ra l po lic e of fi c e rs in marke d and unmar

ked ca rs, wi th lights and sire ns activate d, followed the de fenda nt for appro x i m at ely

six teen or

sevente en miles befor e ef fec tuating a

stop using a boxing mane uver. Although the vehicles tra veled only

“a little bit over th e p o s t ed spee d,” the pur suit took pl ace on roads that we re hilly

and, at times, small, narr ow, and c urvy . “Sever al” civilian vehicles w ere-13-

encounte red dur ing the pursuit. I n particula r, Detective Delashmit testified t hat when I nvestig ator Rose pulled over into the de fenda nt’s lane t o i n i t i ally

try and stop him, “[t] here was a nother c ar coming toward us that wa s b eh i n d Mr. Rose’s vehic le I would g uesstimate four c ar le ng ths.” He said, “That vehicle g ot off the r o ad an d as soon as we g ot by , he, I ’m assuming , continued on.” De te c tiv e De la sh mit

a lso te sti fi e d that wh e n I nv e sti g a tor Ros e wa s in the de fe nd ant’ s la ne tr y ingto stop him, “Isaw the defe ndant not stop. I saw I nvestig ator Rose attempt to get out of his wa y and the truck je rked ove r towar d Mr. Rose’s vehic le and c ontinued on.” On c ross-examination of Detec tive Delashmit, the following exchang e occ urre d:

Q: No w, y ou

sa id t hat y ou saw s e ve ra l c ars duri nga ll o f t his ?

A: Yes, sir.

Q: Which of those car s did [ the def endant] put in dang er?

A: I -- r e a ll y w it

h th a t ma n y p o li c e c ar s f

o ll o w in g , I w o u ld h a v e to a s s u me all of the m.
Q: You say

it w as [ t he def

endant] that put them in dang er, not a ll the police ca rs fo llo wi ng , th ou g h, ri g ht?

A: Well, we wer e doing what we thoug ht we we re justified leg ally doing in try

ing to a pp re he nd a su sp e c t.

Q: But Investig ator Rose wa sn’t in the rig ht lane, wa s he?

A: No, sir.

Ba sed on this evidence , a rational trier of f act c ould have f

ou n d t h at the def

endant int e nti on a lly

fl e d o r atte mpt e d to e lud e law e nf or c e me nt, a ft e r havin g re c e ive d a sig na l to br inghis vehicle to a

stop, and in doing so c reated a risk of death or injury to innocent by standers dur ing the purs uit . We no te the re is no re qu ir e me nt that a de fe nd ant’ s a c tio ns c re a te a “ ne ar m iss ” sit

uatio n in which a third pa

rty motorist is forc ed to swer ve or le ave the roadw ay in order to avoid a collision, or that the third par

ties pla ce d at risk be specifica lly named. See Tenn. Code Ann. § 39-16-603( b)(3) ; State v. Kerr y L

. Dowell, No. M2002-00630-CCA-R3-CD, 2003 WL 21486978, at *9 (Tenn. Crim. App. J une 27, 2003), perm. to a ppeal de nied (Te nn. Nov. 24, 2003) (c oncluding that office r’s testimony

that road w as “busy” at time de fenda nt dr ove onto it without stopping wa s suffic i en t t o es tablish that he place d third parties at risk and, thus, that his flight fr om office rs
con s ti tute d

Cl a s s D f

e lo n y e v a d in g ar

r e s t) ; S tate v

. M ar io Ri c ky O r la n d o Pr in ti s , N o. W2000-03032-CCA-R3-CD, 2002 WL 1482707, at *3 (Tenn. Crim. App. F eb. 27, 2002) ( aff irming defe ndant’s convic tion for C lass D felony evading arr est on basis of off icer ’s testimony

“ther e we re other c ars on the r oad duringthe hig h-spee d chase ”).-14- CO NC LU SION

B a se d o n th e fo re g oin g a

uth or iti e s and re a so nin g , we a ff ir m the jud g me nts of the tr ia l c ourt

.

___________________________________ ALAN E. G LENN, JUD GE