# FILED
June 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 1996 SESSION
STATE OF TENNESSEE, ) ) APPELLEE, ) ) No. 02-C-01-9505-CR-0 0136 ) ) Shelby County v. ) ) Will V. Doran, Judge ) Sitting by Desig nation ) RONNIE BRADFIELD, ) (Attempted First Degree Murder, ) Carrying a Firearm during a Judicial ) Proceeding, Possession of a Firearm APPELLANT. ) After Be ing Convict ed of a Fe lony) )

FOR THE APPE LLANT: FOR THE APPELLEE: Ronnie Bradfield, Pro Se John Knox Walkup Route 1, Box 330 Attorney General & Repor ter Tiptonville, TN 38079-9775 500 Charlotte Avenue Nashville, TN 37243-0497 Deborah A. Tullis Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37343-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Johnny R. McFarland Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Alanda Horne Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 OPINION FILED:_______________________________

_______ AFFIRMED Joe B. Jones, Pre siding Judge2 

### O P I N I O N

The appellant, Ronnie Bradfield ( defendant), was convicted of atte mpted firstdegree murder, a Class A fel ony, carr ying a firearm during judicial proceedings, a Class E felony, and possession of a firearm after being convicted of a felony, a Class E fe lony, bya jury of his peers. The trial court, finding the defendant was a persis tent offender, imposed a Range

III sent ence con sistin g of confi nement for sixty (60) y ears. As to the remaining two off

enses, t he trial court found the defendant w as a multiple offender and imposed a Range II sentence of four (4) years for each offense. In this C ourt, the defend ant raises a multitu de of iss ues. Aft er a thor ough re view o f the rec ord, the briefs submitted by the parties, and the law governing

the issues presented for review, it is the opinion of this Court the judg ment of the trial court should be affirmed. On March 25, 1993, the defendant wasconvicted of three counts of sec ond-degree murder in Division II of the Criminal Court for the Thirtieth Judicial District. The trial court held a sentencing hearing on M ay 20, 1993. The defendant was sente nced to serve nine (9) years in the Department of Corre ction in each case. The trial court r evoked the defend ant's ba il and he wa s taken in to custod y. The defendant was taken to a detention ar ea adjacent to the courtroom. A courtroom door permitted ingress and eg ress between the courtroom and the de tention
area. Deputy Spencer

Edwards, a courtroom bailiff, ordered the d efendant to remove the contents from his pockets. The defendant complied and sat down. Deputy Edwards told him to stand because he had to search the defendant's body. While Deputy Edwardswas standing over the defendant, the defendant remov ed a pistol from his shoe . A struggle ensued. Another courtroom bailiff, Deputy Ron Ray, heard the struggle and went to the detention area. He immediately tr ied to take the pistol from the defendant's hand. The defendant bit Deputy Ray's arm the first two times he attempted to take the pistol. He was able to wrestle the pistol from the d efendant o n the third attempt. The defendan t quit struggli ng once the p istol was taken from him

. Since the defendant had previously been in the courtroom for the sentenc ing hearing, he was charged and ind icted for the o ffense of carrying a firearm during a judici al1 Beyond the times indicated as conti nuances for the defendant, the following delays occurred: On August 11, 1993, Judge Weinman recused himself at the defendant’s r equest, causing the matter to be res cheduled. On De cember 14, 1993, the defendant indicated he desir ed elbow counsel. The trial court inquired if there was someone in particular the defendant de sir ed. The defendant indicated he wished to di scuss the matter with his prospec tive elbow counsel before he gave the court any name. The court therefore continued the matter to Janua ry 7, 1994 to consider the appointment of elbow counsel. On June 16, 1994, the defendant was not feeling w ell and asked that

the motions scheduled to be heard on that day be continued until August 15,1994, the trial date. On August 15, 1994, the prosecution asked that the t rial be continued as one of the state’s witnesses was

out of town; on the defendant’s req uest, the motions scheduled for this day were reset for Sept ember 1, 1994 and the trial scheduled for Nov ember 2, 1994. On September 1, 1994, the cause was reset for September 20 as the defendant had not filed all the motions he wi shed to have heard. For r easons unexplainedby the record, these motions were continued until October 18, o n which date the court continued the motions until November 2 as the c ou rt had not received req uested information from the defendant supporting his mo tion for a chan ge of venue, motion for a hearing device, and motion to subpoena videotapes from television station s. On January 12, 1995, after another delay the recor d does not attribute

to either side, the trial judge ordered a mental ev aluation of the defendant. The defendant was informed t hat if he was evaluated at the Shelby County Jail,the evaluation more likel y would b e complete by the then-s chedule d trial date, February 13. If, however, he ins isted on not being incarcerated at the Shelby County Jail, the ev

aluation would occur at

the Tennessee Departmen t of Correction and likely would not be complete until after February 13. Th e

(continued...) 3 proceeding. The defendant had also previously been convicted of a felony. H e was also charged a nd indict ed for po ssessing a firearm after be ing convict ed of a f elony.

I.

The defendant contends his right to a speedy trial was denied. He further contends the trial court erroneously failed to dismiss the charges against him because the state failed to prosecute. The crimes in question occurred on May 20, 1993. The defendant’s trial in this case lasted two days. It commenced on September 11, 1995 and concluded on the follow ing day. The defendant’s case was reset and continued many times. Most of the continuanceswere attributable to the defendant’s actions. The record indicates the cause
was reset seven times

at the request of the defendant, never at the request of the state. This, h owever, does not te ll the whole story. Th e transcript of the pre-trial proc eedings indicates the cause was delayed eighteen times due t o the actions of the defendant and once for the prosecution when a witness was out of tow n. 1(...continued)

defendant indicated that he was willing to postpone his trial in that event. The evaluation occurred on March 29, 1995. On March 17, 19 9 5, Judge Carolyn Wade Blackett recus ed herself to avoid a conflict of interest as the defendant filed a com plaint against her in the Tennessee Court of the Ju diciary. The case w as theref ore reass igned to t he court o f the Hon orable W . Fred Axle y. Judge Axley denied the defendant’s motion todismiss for failure to prosec ute, but granted the defendant’s motion for an interlocutory appeal un der Rule 10 of the Tennessee Rules of Appellate Procedure. The case was thus held in abe yance pendingthe decision of the Court of Cri minal Appeals, which denied the defendant’s r equest for an extraordinar y appeal on June 19, 1995. On August 6, 1995, the defendant filed a motion in the Tennessee Supreme Court requestingan emergency stay of the proceedings in the tri al court. This motion was denied and the case proceeded to trial. Neit her party is listed as requesting any of these c ontinuances in the te chnica l record, however, with the exception of the state’s one continuance, the blame for each of these delays rests sq uarely with the defendant.

2 Delays by the cou rt as it attempted to manage its calendar,which occurred following a defense delay, are not credi ted against the defenda nt in this calculation. However, most of the 202 days regarded a s the court’s management of its c alendar occurred after defense delays. 4 A total of 844 days elapsed betw een the crime and the first day of trial. This Court estimates 563 days of

the delay is directl

y attributed to the defendant; 79 day s of the delay
can be attributed to the state’s c ontinuance. The actions of the defendant accounted for approximately 67 percent of the time between th e crime and the trial; the st ate’s lone continuance accounted for nine percent of the time. The remaining time can be attr ibuted to the court’s management of its calendar. 2 To determine whether an appell ant’s right to a speedy trialhas been violated, this Court must consider four factors: 1) the length of the delay, 2) the reason for the delay, 3) whether the defendant asserted his right to a speedy trial, and 4) whether the defendant
was prejudiced by the delay

. Barker v. Wi ngo , 407 U. S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); State v. Vance , 888 S.W.2d 776, 77 8 (Tenn. Crim. App. 1994). As st ated abo ve, 844 days elapsed betw een the date of the crime and the defendant’s trial. The overwhel ming majority of the time is directly at

tributed to theactions of the defendant. The defendant did assert his right toa speedy trial. Therefore, the only question which remains is whether the defendant suffered prejudice, the most important factor in our consideration. State v. Vance , 888 S.W.2d at 778. As a result of thedelay, the defendant contends three witnesses could not be c alled to testify; two could no

t be located and the third w itness died.3 Downey deceased on July 25, 1994. The defendant filed his motion to dismiss for failure to prosecute on September 16,1994. 5 The defendant has yet to offer the content of the thr ee witnesses’ testimony. The defend ant stat ed at one of the m otion he arings two of the missing witnesses were in the courtroom the day of the incident and that the third helped him g et ready for court before he left home. We kno wnothing more of the defendant’s missi ng witnesses. The defendant has failed to demonstrate prejudi ce. Addition ally, after the death of James Downey, one of the miss ing witnesses, the defendant delayed the proceedings eight times, causing a delay of 264 days. After he fil ed his motion to dismiss for failure t o prosecute, he delayed the proce edings six times, causing a delay of 245 days. 3 The defen dant may not complain of the two-year delay between his initial court appearance and his trial when he has failed to demonstrate prejudice and is responsible for the bulk ofthat delay, much of which he caused after the alleged prejudice he insufficiently asserts. This issue is without merit.

II.

The defendant appears to argue his se lf-representation was i mpaired because he
was not rele ased on bail. The defendant, over the advice of th ree trial judges, chose t o represent

himself. He un derstood t he perils of self-representation and was specifically made aware that his ability to investigate his case would be impaired by his incarcerati on. On August 23, 1993, the defendant appeared before Judge Lockard and inqui red who was respon sible fo r prosecu ting his ca se. The ju dge info rmed him he would ha ve to contact the Dis

trict A ttorney General ’s Offic

e to lear n that info rmation. The defendant complained he was unable to call them as he was incarcerated. Judge Lockard informed the defendant that this was one of the pr oblems with self-repres entation. The defendant’s defense was likely impaired by his incarceration; howev er, he was repeatedly offered appointed counsel. There is n o right to t he effe ctive assist ance of pro se counsel; the trial court was under no duty to r elease him on bail mer el y because the6

defendant opted to

forego the assis

tance of a

trained lawyer

capable of investigating the defendant’s case. Faretta v. California , 422 U.S. 806, 834 , 95 S.Ct. 2 525, 2541, 45 L.Ed.2d 562 n.46 (1975). For the defendant, the heighteneddifficulty of preparing his case from a jail cell was “

one of the penaltiesof self-representation.” Cole v. State , 798 S.W.2d 261, 264 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). Also, the defendant has been convicted of t hree serious felonies. The trial court revoked the defendant’s bail. In other w ords, th e de fendant was serving the sentences imposed for t hese felonie s. This fact ha d to be consider ed at any bail hea ring. This issue is without merit.

III. A.

The defendant appears to argue the tri al court interfered with hi s righ t to selfrepresentation when it appointed standby, or elbow counsel. The defendant states, “From the onsetof the defendant’s preliminary p roceedings the defendant reques ted to represent himself, and the judge was in error, to only allow the defendant to proceed pro se, only if he takes on standby counsel.” A defendant does have a Sixth Amendment right to proceed wi

thout the assistance of counsel. Faretta v. California , 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975). Howev er, a “defendant’s Sixth Amendment rights are not violated when a trial judge appoints standby counsel -- even over the defendant’s objection -- to reliev

e the judge of the need to explai n and enforce basic rules of courtroom protocol or to as sist the defendant in overcomi ng routine obstacles that stand in the way of the defendant’s achievement of his own clearly indicated goals.” McKaskle v. Wiggins , 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed .2d 122 (1984). The defendant actually requested elbow counsel and hand-picked the person to be so appointed. This issue is without merit.7 B.

The defendant asserts he was denied his right to self-representation w hen the trial court “ordered” him to listen to the advice of elbow counsel. Throughoutthe proceedings, pre-trial and at the trial itse lf, the presiding jud ge instructed the defendantto refer to his elbow counsel for advice. In one poignant ex ample,
on the day of

trial, the defendant moved for a continuance, claiming he w as not notified he
was going to trial on that day, he was unable to s ummon certain witnesses ov er the weekend, he did not have his pleadings with him, he had been gassed over the w eekend, and at some point

after he was gassed, he passed out and was placed in a v an by the prison guards where he awoke on his way to trial, with ice in his trousers. The trial court i nstr ucted the defendant that he would not hav e his courtroom turned into a circus and further instructed the defendant to r efer to his elbow counsel for advice. As previousl y stated, the Sixth Amendment to the United States Constitution providesa criminal accused either the right to assistanc e of couns el or the right to represent

himself. Faretta v. Cal if ornia , 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975). “In determining whether a def endant’s F aretta rights have been respected, the primary focu s must be on whether the defendant had a fair chance to presenthis case in his own way.” McKaskle v. Wiggins , 465 U.S. 176, 177, 104 S.Ct. 944, 950, 79 L.Ed.2d 122 (1984). A pro se defendant is entitled to preserv e actual control over the case he chooses to present to thejury and unsolicited participation by elbow counsel should not be allowed to destroy the jury’s perception the defendant is representing himsel

f. McKaskle , 465 U.S. at 178, 104 S.Ct. at

951. The defendant’s right to pro ceed pro se is preserved outside the presence of the ju ry if the de fendan t is allowed “to addre ss the cou rt freely o n his own behalf and if disagreements between the defendant and elbow counsel ar e resolved in the defendant’s favor whenever the matt er is one that would normally be left to the discretion of counsel.” Id

. The defenda nt alleges, and the record supports, only that the tr ial court told the defendant to refer to elbow counsel for i nstruction on “basic rules of courtroom protocol”8

and rudimentary concepts of law. At no point did the court accept the judgment of elbow counsel over that of the defendant or req uire the defendant to accept the advice of elbow
counse l. A defendant representing himself is governed by all the rules relating to tr ial practice including the contemptpower of the court. See Cole v. State , 798 S.W.2d 261, 264 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). The trial court’s attempt to assist the defendant in abiding by the l aws and rules of co urt which bound his acti ons did not inhibit the defe ndant’s

efforts t o repres ent himself. This issue is without merit.

C.

The defendant incoherentl y sta tes some thing abo ut being d enied th e effec tive assistance of counsel. If the defendant is cla iming h is own ineffective assistance, his argumentis without merit as th e pro se defendant “assumes the responsibility for his inadequacies.” Cole v. State , 798 S.W.2d at 264. “[A] defendant who elects to r epresent himself cannot thereafter complain that the quality of his own d efense amounted to a denial of the effective assistance of counsel.” Faretta v. California , 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 n.46 (19 75). If the defendant is claiming ineffective ass istance ofhis standby, or elbow , counsel his point is also without merit. “The right of a defendant to participate in his own def ense i s an alternative one. That is , one has a right either to be represented by co unsel ort o represent

himself, to conduct his own defense.” State v. Melson , 6 38 S.W.2d 342, 359 (Tenn. 1982), cert
. den ied , 459 U.S. 1137, 103 S.Ct. 770, 74 L.E d.2d 983 (1983) (emphasis in original). The defendant w aived the right

to counsel, proceeded pro se , and
even claims in this Court the trial court interfered w ith his ab solute right to selfrepresentation. The defendant therefore may not co ntest the a dequacy of his elbow counsel. Moreover, the record is void of ev

idence that elbow counsel was ineffective. This issue is without merit.9 IV.

The defendant contends he was prejudiced by having to face the jury in prison attire. In a pre-trial order, the

defendant had been granted the rig ht to appear in court in ci vilian clothes. On the day of trial, the

defendant appeared in his prison uni form and, after making
s everal frivolous motions to conti nue his case, requested the r ight to chan ge out of hi s prison attire . The tri al cour t asked i f t he change of clothes had been broug ht into the
co urtroom. The bailiff responded that the defendant had had the opportunity to chang e into his court clothes

since 9:30, but had not done so. H earing this, the trial court, with out affording t he def endant an opportunity to chang e, summoned the jury back int o the courtroom and proceeded with the trial. Ordinarily, a defendant may not be forced to appear in shackles or in prison garb, Estelle v. Williams , 425 U.S. 5 01, 504-05, 9 6 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976), however, the defendant waivedhis right to appear in civilian clothes when he failed to take the opportunity provided him to change. Howev er, if this was error, it was harmless bey ond a reasonable doubt. This issue is without merit.

V.

The defendant contends the trial co urt co mmitted error of prejudicial dimensions when it denied his motion for a continuance on the day of trial. The defendant moved for
a continuance on the grounds (a) he had not been able to summon certain witnesses, (b) he ha d been gassed over the w eekend, (c) he had had “blank- out attacks,” and (d)
unaware he wasto be tried that day, he awoke with ice in his pants in a van taking him to court. A motion for a continuance is left to the sound discretion of the trial court. State v. Goodwin , 909 S.W.2d 35, 44 (Tenn. Crim. App. 1995); State v. Cazes , 875 S.W.2d 253, 261 (Tenn. 1994), cert
. denied , 513 U. S. 1086, 115 S.Ct. 743, 130 L.Ed.2d 644 (19 95).10

The defendant offered noth ing to substantiate his outrageous allegations. The trial court did not errin concluding that a conti nuance wasunwarranted and a further att empt by the defendant to delay the proceedings. Moreover, the defendant fail ed to follow the proper procedure for a continuance on the ground of a missing witness. This issue is without merit.

VI.

The defendant claims he was prejudiced in that he was not informed of his trial date. On August 6, 1995, the defendant filed a motion for an emergency stay of the proceedings in the trial c ourt. In t hat moti on he sta ted he ha d been “a dvised tha t he wi ll b e tried on September 11, 1995 .” (emphasis in original.) This issue is therefore utter ly without merit.

VII.

The defendant contends the trial judg e erred by not rec usi ng himself. As the defendant states it, “The judge which was very notic eable to the defendant

short-tempered, and raised his voice to the defendant on several occasions, which to say the least intimidation to the defendant, which put him in a position of frustration which hamper his presentation of his motion(s) which should not have been allowed. [sic]” A judge’s comments must reflect more than insens itivity and lack of sympathy on the part ofthe trial judge before his words can requir e reversal. Alley v. State , 882 S.W.2d 810, 822 (Tenn. Crim. App. 1994). The defendant has alleged only tha t he was intimidated bythe judge and the

judge made rulings adv erse to his position. The defendant has failed to demonstrate, as he must to prevail on this point,that the judge was biased against h im. This issue is without merit.11 VIII. A.

The defendant claims his “opening statement was hamper ed and violated by the judge.” During the opening statement, the defendant stated:

I have been asking the court to take me to trial. I filed a motion stating ordering the court to get this behind me, b u t when I assert my right to be tried early in this court

date , the stat e wouldn’t even bring me to trial . The state was only w illing to try me once my defense was lost.I have been to court over fortyfive times trying to get this behind me ---.

The assistant district att orney general objected on the ground the defendant was tes tifying to the jury a nd the trial j udge sustained the objection. The trial court implored the defend ant to me rely state his defe nse, not testify. A pro se defendant is not allowed to use the opening statement as a v ehicle to testify. Therefore, the trial court properly limi

ted the defendant’s opening statement.

B.

The defendant also appe ars to arg ue the trial court improper ly limited his clos ing statement
. The defendant was not interrupted by either the trial judg e or the assistant district attorney general during his clos ing statement. This issue is without merit.

IX.

The defendant lists as one of his issu es on appeal, “Wether [sic] improp er jury instructions

. . . prejudice[d] . . . the defendant.” The def endant contends the jury should have been given an ins truction on circum stantia l evidence . Inciden tally, the Court notes this is one of those rare cases in wh ich absolutely no cir cumstantial evidence was offered in the state’s case in ch ief. Moreover, it is not error to fail to charge on circumstanti al12

evidence when both direct and cir cumstantial evidence is introduced at the trial abs ent a special request. The defendant further contends the tria l court erred by not i nstructing the jury the state was require d to dispr ove all rea sonable theories exc ept th at of guilt. This is but another attack on the failure to c harge on circumstantial evidence. The defendant has waived both these issues by failing to request thedesired jury instruction. Rule 36(a), Tenn. R. App. P.; State v. Ree ce , 637 S.W.2d 858, 861 (Tenn. 1982); State v. Smith , 626 S.W.2d 283, 28 5 (Tenn. Crim. App. 1981).

X.

The defendant contends he was p rejudiced because the presiding judge was unfamiliar

with the pre-trial process in his case. The defendant’s pre-trial proceed ings fill 36 volumes and reveal hi s multiple attempts to bring the wheels of justice to a grinding halt. The defendant’s argument that he was prej udiced because the trialcourt was unfamiliar with his dil atory a

ctions is preposterou s and wa ived as he fails to off er any argu ment or authority for his position. Tenn. R. App. P. 27(a)(7), (h); Tenn. Ct. Crim. App. R. 10(b ).

XI.
The defendant appears to contest the sufficiency of the evidence. When an accused challenges the sufficiency of the convicting evidence, this Court must review the

record to determine if the ev idence adduced at

trial is sufficient "to support the finding by the trier of fact of guilt beyond a reasonabl e doubt." Tenn. R. App. P. 13(e). Thi s rule i s applicable to findings of g uilt based upon direct ev idence, circumstantial evidence, or a combination of direct and circumstantial e vide nce. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficie ncy of th e convicting evi dence, this Court does not reweigh or reevaluate the evi dence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim

. App.), per . app . denied (Tenn. 1990). Nor may this Court substitute its inferences for those13

drawn by the trier of fact from cir cumstantial evidence. Liakas v. State , 199 T en n. 298, 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this Court is required to afford the State of Tenn essee the strongest legitimateview of the evidence contained in the record as well as all re a sonable and legitimateinferen ces which m ay be drawn f rom the e vi dence. Stat e v. Cabbage , 571 S.W.2d 832, 835 (T enn. 1978). Questions concerning the credibi lity of the witnesses , th e weigh t and value to be given the evidence, as

well as all factual issues raised by the evidence are resolved by the trier of fact, not this Court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our Supreme Court sai d: "A guilty ver dict by the jury, approved by the trial judge, accr edits the tes timony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." Since a verdict of guilt r emoves the presumption of innocence and replacesit with
a presumption of guilt, t he accu sed, as the appellant, has the bur den in this Court of illustratingwhy the evidence i s insufficient to support the v erdicts returned by the

trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a verdict of guilt due t o the sufficie ncy of the evidence unless the facts contained in the record are insufficient, as a matter of law, for a rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914. As Deputy Edwards attempted to tak e the defendant into custody, the defendant reached for his gun and as the two struggled for the weapon, the defendant informed the deputy that he might as well give upbecause the defendant was going to “sh oot [his] ass.” The jury co uld infer the defendant took a substantia l step toward his stated goal, namely sho oting the vi ctim. Though not a necessary inference, the jury certainly could have inferred the defendant meant to shoot and kill thevictim. The evidence is, in other words, sufficient to support the convi ction for attempted first-degree murder. And,as this incid en t occurred in a courtroom i mmediately after the defendant’s sentenc ing on three attempted second-degree murder counts , the evidence is sufficient t o support a verdict of guilty on the charges of being a felon i n possession of a firearm and carrying a firearm in a judicial proceeding.14 XII. A.

The defendant contend s the tr ial court considered a presentence report which contained i nco rrect information. At the sentencing hearing, the defen dant similarly objected to the introduction of a r eport containing incorr

ect information. The defendant has failed to identify the allegedly incorrect inf ormation contained in the presentence report. Nor has the defendant prepared a supplement to the r eport as permitted. We theref ore may not consider this point of error.

B.

The defendant contend s his sentences are exces sive. The trial court

found the defendant to be a persistent offender for the attempted firs t-degree murder convi ction and a multiple offender for the firearm s convictions. The trial court foun d the following agg ravati ng factors for the attempted murder conviction: the defendant possessed a f ir earm in the commission of the offense, Tenn. Code Ann. § 40-35-114(9); the defendant had n o hesitation about committing the crim e when the risk to human life was high, Tenn. Code Ann. § 40-35-114 (10); the felon y was committed while the defendant was incarcerated, Tenn. Code Ann. § 40-35-114(14); and the defendant committed the crime when the potential for bodily injury w as great, Tenn. Code Ann. § 40-35-114(16). On the conviction for carrying a firearm into a judicial proceeding, the trial court found that the defendant possessed a firearm, Tenn. Code Ann. § 40-35-114(9), had no hesitation about committing the offense when the risk to humanlife was high, Tenn. Code Ann. § 40-35-114(10), and committed the felony while onbail, probation, or other type of release, Tenn. Code Ann. § 40-35-114(13). On the conviction for possess ion of a weapon b y a felon, the trial judge found that the d efendan t possessed a firearm, Tenn. Code Ann.§ 40-35-114(9), had no hesitation about committing the offense when the r isk to human life was hig h, Tenn. Code Ann. § 40-15

35-114(10), and committed the felony whil e incarcerate d, Tenn. C ode Ann. § 40-35- 114(14). When an accused challenges the length and manner of service of a sentence, it is the duty of this Court to conduct a de novo review on the recor d with a presumptionthat "the determinations made by the cour t from which the

appeal is taken are correc t." Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative s howing in the record that the trial court considered the sentenci ng principles and all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1994). The presumption does not apply to the legal conclusions reached by the trial court in senten cing the accused
or to the determinations made by the trial court which are predicated upon uncontroverted facts. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S. W.2d 922, 929 (Tenn. Crim. App.), per . app . denied (Tenn. 1994); State v. Bone stel , 871 S.W.2d 163, 16 6 (Te nn. Crim. App. 199 3). However, this Court is required to give greatweight to the trial court's determination of controverted facts as the trial court' s determination of these facts is predicated upon the witnesses' demeanor and appearance when testifying. In conducting a de novo review of a sentence, this Court m ust consider (a) any evidence received at the trial and/or sentencing hearing , (b) the presentence report, (c) the principles

of sentencin g, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and characteristi cs of the offense, (f) any mitigating or enhancing factors, (g) any statements made by the accused in his own behalf, and (h) the accused's potential or lackof potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). The party challenging

the sentences imposed by the t rial court has the burden of establishingthat the sentences are erroneous. Sentencing Commiss ion Co mments to Tenn. Code Ann. § 40-35-401; Ashby , 82 3 S.W.2d at 1 69; Butler , 900 S.W.2d at 311. In this case, the defendant has the burden of ill ustrating the sentences i mposed by the trial court are erroneous. It seems self-evident the char ges of possession of a weapon in a judicial proceeding and being a felon in possession o f a weapon may not

be enhanced because the defendant16

demonstrated the audacity to commit these crimes while possessing a weapon. See State
v. Elijah Walker

Graham , Hardin County, No. 02-C-01-9311-CC-00257 (Tenn. C rim. App., Jackson, August 17, 1994), per . app . denied (Tenn. 1994); Sta te v. Bill y Ratcliffe , Williamson County, No. 01-C-01-9303-CC-00099 (Tenn. Crim. Ap p., Nashville, March 3, 1994), per . app . denied (Tenn. 1994). This factor may, h owever, properly be app lied to enhance the atte mpted mur der char ge. Pos sessio n of a

weapon is not necessari ly implied i n the charge of attempted first-deg ree murder. State v. Trusty , 919 S.W.2d 305, 3 1 3 (Tenn. 1996). The trial court properly applied enh ancement factor (10). While Deputy Edwards
was the victim, Deputy R ay was present in the

deten tion area, and, therefore, was in harm’s way. It is conceivable that if the gun was fired, the projectile coul d have bounced off a wall or other objec t and struck someone

in the courtroom. See State v. Ruane , 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995); State v. Makoka , 885 S.W.2d 366, 373 (Tenn. Crim. App.), per . app . denied (Tenn. 1994). The trial court properlyapplied enhancement factor (16). A gain, Deputy Ray w

as in harm’s way, and, if the defendant had fired a projec tile , the proj ectile co uld have bou nced off a wall or other object and struck someone in the courtr oom. See State v. Sims , 909 S.W.2d 46, 50 (Tenn. Crim. App.), per . app . denied (Tenn. 1995); Makoka , 885 S.W.2d at 373. The defendant was incarcerated w hen he atte mpted to kill Deputy Edw ards, was free on bond when he walked i nto the courtroom with the weapon and possessed a weapon as a felon while incarc erated. These factors are e ntitled to great wei ght and indicate that the defendantis not amenable to complying with society’s rules, whether in or out of prison. Even though we find the trial court improperly applied certain factors, attaching great weight to those proper

ly applied, we affirm the j udgment and sentence of the trial c ourt.

___ _______________________ _____________

_ JOE B. JONES, PRESID ING JUDGE17

CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JERRY L. SMITH, JUD GE