IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 3, 2002

STATE OF TENNESSEE v. MICHAEL LEWIS

Direct Appeal from the Circuit Court for Lauderdale County

No. 7127 Joseph H. Walker, Judge

No. W2001-03121-CCA-R3-CD - Filed March 26, 2003

A Lauderdale County jury convicted the defendant, Michael Lewis, of reckless aggravated assault.

On appeal, the defendant contends (1) the evidence was insufficient to support the conviction; (2)

the trial court erred in conducting an ex parte hearing outside the presence of the defendant and his

attorney; (3) the trial court erred in permitting a witness to testify to statements made by the codefendant; (4) the trial court erred in refusing to admit into evidence a letter allegedly written by the

victim; and (5) the trial court erred in permitting the defendant to represent himself. Upon reviewing

the record and the applicable law, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which ALAN E. GLENN,J., joined. THOMAS

T. WOODALL, J., not participating.

Gary F. Antrican, District Public Defender (at trial and on appeal); and Michael Lewis, Pro Se (at

trial), for the appellant, Michael Lewis.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;

Elizabeth T. Rice, District Attorney General; and Tracey Anne Brewer, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant and the victim were inmates at West Tennessee State Penitentiary. Unit Six

is the maximum security unit, which contains four “pods” or housing areas. Inmates in maximum

security who do not have jobs are required to remain in their cells twenty-three hours a day and are

prohibited from contacting other inmates. When an inmate is out of his cell, he must wear leg

restraints and handcuffs.

Kevin McWilliams was a co-defendant and former correctional officer at the prison who pled

guilty to charges arising from these events. He testified that on December 15, 2000, co-defendant
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William Lynn Webb, who was tried along with the defendant, requested McWilliams’ presence at

B-Pod. When he arrived, Webb asked him if he had experienced problems with two inmates

arguing, and McWilliams did not respond. Donald Phillips, the victim, returned to B-Pod where his

cell was located from the laundry room where he had been working. McWilliams stated that Webb

instructed him to remove Phillips’ restraints and to retrieve the defendant from his cell. Webb told

McWilliams he wanted to put the two inmates together because he was tired of hearing them argue.

McWilliams testified that upon removing Phillips’ restraints, he had Phillips strip down to

his boxer shorts and socks. He stated he did not observe a weapon on Phillips. Phillips then entered

a room, and McWilliams went upstairs to retrieve the defendant from his cell. McWilliams stated

he searched the defendant visually and rectally and was “pretty sure” the defendant did not have a

weapon.

McWilliams then permitted the defendant to exit his cell without wearing restraints.

McWilliams testified the defendant walked to the edge of the stairs, ran down the stairs and into the

room where Phillips was located, and slammed the door. The defendant and Phillips then began

fighting. Phillips began bleeding and yelled that the defendant had a “shank.” McWilliams stated

he and Webb entered the room and separated the inmates.

McWilliams testified he and Webb escorted Phillips to the prison nurse for treatment.

McWilliams stated he observed injuries to Phillips’ back and head. He further stated Phillips was

bleeding badly from an injury to his back and opined Phillips’ injuries were caused by a shank, a

homemade knife. McWilliams stated that although he never saw a weapon, a shank can be hidden

in the palm of a hand or in a person’s hair.

McWilliams testified Webb prepared a statement, which they both signed. According to the

statement, Phillips was injured when he fell down the stairs. McWilliams stated Webb informed him

that if they stated Phillips fell down the stairs, they would not be punished. Webb also instructed

Phillips to tell the nurse he fell down the stairs, and Phillips complied. McWilliams testified that

although both inmates agreed to a fist fight, Phillips never agreed to being attacked by a shank.

Carolyn Tatum, the personnel manager at the prison, testified Webb told her that the two

inmates argued for the majority of the day, and that McWilliams wanted to allow the two inmates

to fight. Webb told her that he escorted one inmate to a room, while McWilliams escorted the other

inmate. Tatum stated Webb informed her that during the fight, one inmate produced a shank, which

the officers did not know he had, and stabbed the other inmate several times. She testified that when

she asked Webb what he had done with the shank, he replied, “Well, don’t worry. It’s not in the

building.”

Kathy Privett, an LPN at the prison, testified that on December 15th, between 5:30 p.m. and

6:00 p.m., an officer informed her someone had been injured. She stated she examined Phillips, who

was bleeding “rather profusely” from his back. Nurse Privett stated she prepared an incident

traumatic injury report, in which she indicated that Phillips had a small, semicircular cut on his neck,
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several cuts on his back, a cut on his arm, and a cut on his head. One of the cuts on Phillips’ back

was approximately one centimeter deep with skin and flesh missing. Nurse Privett testified Phillips

informed her that he fell down the stairs; however, he showed no signs of bruising. Phillips was then

sent to a hospital and returned to the prison later that night.

Cheryl Manns, the custodian of medical records at Lauderdale County Baptist Memorial

Hospital, testified Phillips had cuts on his right shoulder, his neck, and his left shoulder blade, and

a wound on his back, which required staples.

Frederick Zonge, an inmate, testified that his cell was located in Unit Six. While Phillips,

who worked in the laundry room, was passing bags of laundry to each cell, the defendant discovered

Phillips did not fold his clothes. Zonge stated that in the penitentiary inmates who want their clothes

folded must give the laundry worker “a little something” in order for him to fold them. The

defendant was angered by the fact that Phillips folded Zonge’s clothes, but did not fold his clothes.

Zonge stated the defendant believed this to be a racial issue because Phillips was an “Aryan want-tobe,” who claimed to be affiliated with the White Aryan Resistance.

Zonge testified Phillips and the defendant argued and cursed at each other. Phillips then

challenged the defendant to a fight, and the defendant agreed. The defendant told Phillips to

persuade Webb to allow them to “fight it out.” When Zonge asked Webb if he would permit the

inmates to fight, Webb stated he would likely allow it. A short time later, Zonge observed Webb

strip search Phillips, and Zonge did not observe a weapon in Phillips’ possession. After searching

Phillips, Webb yelled at McWilliams, who was standing near the defendant’s cell, that he did not

find anything. McWilliams replied, “I’ve got it covered,” and opened the defendant’s cell door.

Zonge testified the defendant ran down the stairs and into the room before Webb had a chance to

stop him. The defendant closed the door; he and Phillips fought; and during the fight, Phillips began

bleeding “like a stuck hog.” Zonge stated that upon viewing the blood, Webb yelled, “He’s got a

knife,” entered the room, and broke up the fight.

Zonge testified that when he later inquired about the shank, Webb told him the shank was

a razor blade placed inside a piece of a plastic knife. Zonge further stated that when he questioned

the defendant about the shank, the defendant stated McWilliams saw him hide the shank in the palm

of his hand. Zonge admitted he later told a man claiming to be an Internal Affairs officer that he saw

Phillips fall down the stairs, but explained that he made the statement because he did not like the

manner in which the interview was being conducted.

Russell Wellington, an inmate, testified that he observed Webb strip search Phillips. He

stated that after the searchwas completed, McWilliams opened the defendant’s cell door and allowed

him to exit his cell without restraints. The defendant then walked down the stairs passing Webb, and

headed toward the room where Phillips was located. Wellington testified he could not view the room

from his cell, but that he could see the stairs. He stated he never saw Phillips fall down the stairs.

Wellington testified that after the altercation, he observed Webb holding a weapon in his hand,

removing it from the area, and cursing because someone had possessed it.
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The jury found co-defendant Webb guilty of reckless aggravated assault and official misconduct.

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Donald Phillips, the victim, testified that on December 15th, the defendant became angry at

him because he did not fold the defendant’s clothes. The defendant cursed Phillips and, upon calling

McWilliams to his cell, the defendant requested the officer inform Webb that they wanted to fight.

Phillips testified he observed the defendant reach into his hair as he was walking down the stairs

prior to the fight. Phillips stated he agreed to a fist fight with the defendant, but that he never agreed

to being attacked with a weapon. He further stated that during the fight, the defendant “stuck” him

with a shank. Phillips testified that after the fight, Webb told him not to “snitch” on him, so he told

the nurse he fell down the stairs.

Co-defendant William Lynn Webb testified that on December 15th, at approximately 5:15

p.m., Webb was preparing to accompany Phillips to his cell after Phillips had completed his work

in the laundry room. After requesting assistance from McWilliams, Webb placed restraints on

Phillips and escorted him out of the laundry room toward B-Pod where his cell was located. Webb

stated he was carrying two to three bags of laundry; Phillips was carrying four to five bags of

laundry; and McWilliams was walking in front of them. When they reached the top of the stairs,

Phillips stumbled and began falling backwards. Webb testified that before he had time to steady the

inmate, Phillips fell backwards and rolled to the bottom of the steps. Webb stated Phillips sustained

cuts to his back and shoulder blades as a result of falling down the metal-grate steps. Webb denied

instructing McWilliams to lie to the officers and denied stating to Tatum he put two inmates together

to fight.

The defendant did not testify at trial. The jury convicted the defendant of reckless aggravated

assault and acquitted him of intentional or knowing aggravated assault.

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 The trial court sentenced

him to six years incarceration as a multiple offender.

I. SUFFICIENCY

The defendant contends the evidence presented at trial was insufficient to support his

conviction for reckless aggravated assault. We disagree.

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial

judge accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Bigbee,

885 S.W.2d 797, 803 (Tenn. 1994). Accordingly, it is the appellate court’s duty to affirm the

conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fact

to have found the essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P.

13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State

v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

As applicable to the case at bar, a person commits reckless aggravated assault when he or she

recklessly commits an assault and “[u]ses or displays a deadly weapon.” Tenn. Code Ann. § 39-13-
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102(a)(2)(B). A person, who “[i]ntentionally, knowingly or recklessly causes bodily injury to

another,” commits an “assault.” Id. § 39-13-101(a)(1). A “deadly weapon” includes “[a] firearm

or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily

injury; or . . . [a]nything that in the manner of its use or intended use is capable of causing death or

serious bodily injury.” Id. § 39-11-106(a)(5).

When viewed in a light most favorable to the state, the evidence reflects that Phillips and the

defendant agreed to engage in a fist fight. However, during the fight, the defendant produced a

“shank” and repeatedly stabbed Phillips with it. Phillips testified that prior to the fight, he observed

the defendant reach into his hair, and during the fight, he felt the shank as the defendant stabbed him

with it. Wellington stated he observed Webb in possession of a weapon after the fight. The

evidence also established Phillips suffered bodily injury as a result of the defendant’s use of the

shank. Phillips sustained various cuts on his shoulders and back. We conclude the evidence was

sufficient to support the defendant’s conviction for reckless aggravated assault through the use or

display of a deadly weapon.

II. EX PARTE PROCEEDINGS

The defendant contends the trial court conducted trial proceedings during which neither he

nor his attorney was present. He maintains that by holding these proceedings, the trial court violated

his constitutional right to be present during his trial and, therefore, erred in denying his motion for

mistrial. 

At the conclusion of the first day of trial after the jury was dismissed, the trial court

conducted a jury-out hearing and overruled objections made by both the defendant and co-defendant

Webb regarding Zonge’s testimony. The defendant contends that after the trial court ruled on the

objections, he was taken from the courtroom, followed by defense counsel.

The co-defendant and the state then conducted a voir dire examination of Tim Terry, the

administrative assistant over inmate records, who was unable to be present at trial the following day.

Terry testified he had a copy of Phillips’ inmate disciplinary records and was custodian of the

records. The trial court found Terry’s presence was not required if co-defendant Webb introduced

the records into evidence at trial. The parties then had a brief discussion concerning a juror who was

allegedly acquainted with co-defendant Webb. The trial court decided to conduct a hearing on the

issue the following day.

The next morning, defense counsel moved for a mistrial because the proceedings were held

in his and the defendant’s absence. The trial judge stated he thought the defendant and defense

counsel were present during the proceedings. He then explained the events which occurred during

the proceedings and denied the defendant’s motion for mistrial.

The determination of whether to grant a mistrial rests within the sound discretion of the trial

court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn
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that decision absent an abuse of discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). The

burden of establishing the necessity for mistrial lies with the party seeking it. State v. Williams, 929

S.W.2d 385, 388 (Tenn. Crim. App. 1996). No abstract formula should be mechanically applied in

making this determination, and all circumstances should be taken into account. State v. Mounce,

859 S.W.2d 319, 322 (Tenn. 1993).

Under both the federal and state constitutions, a defendant has a right to be present during

his or her trial. See State v. Muse, 967 S.W.2d 764, 766 (Tenn. 1998). In addition, Rule 43(a) of

the Tennessee Rules of Criminal Procedure provides that the defendant has the right to be present

“at every stage of the trial including the impaneling of the jury and the return of the verdict.”

“Presence” at trial connotes that the defendant must be “present in court from the beginning of the

impaneling of the jury until the reception of the verdict and the discharge of the jury.” Muse, 967

S.W.2d at 766 (citations omitted). However, the defendant may waive this right through voluntary

absence after commencement of the trial or through in-court misbehavior. Tenn. R. Crim. P. 43(b);

Muse, 967 S.W.2d at 767; State v. Ballard, 21 S.W.3d 258, 260-61 (Tenn. Crim. App. 2000).

We are unable to determine from the trial record whether the defendant and defense counsel

were absent during the proceedings. The first indication on the record of their absence occurred

when defense counsel, while requesting a mistrial, declared he and the defendant were not present

during the proceedings. The trial judge stated he thought they were in fact present during the

proceedings. The trial court made no finding of fact as to whether the defendant and defense counsel

were absent.

Regardless, we conclude the defendant is not entitled to relief. Some constitutional rights

are so basic that their infraction cannot be harmless. State v. Bobo, 814 S.W.2d 353, 357 (Tenn.

1991). However, the constitutional right to be present at trial extends to a proceeding “whenever his

presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against

the charge.” United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985);

see Muse, 967 S.W.2d at 766.

In Muse, the Tennessee Supreme Court concluded a defendant’s absence from the entire jury

selection process required automatic reversal. 967 S.W.2d at 768. The court further noted that in

federal cases where a defendant’s absence from the jury selection process had been deemed

harmless, the defendant was absent from only a small portion of the process. Id. (citations omitted).

In addition, this court has held that a defendant’s absence from the entire jury trial without a valid

waiver also required automatic reversal. Ballard, 21 S.W.3d at 262.

Unlike the defendants in Muse and Ballard, the defendant in the case at bar was allegedly

absent from only a small portion of the trial during a jury-out hearing. The defendant’s ability to

conduct a voir dire examination of Terry regarding authentication of Phillips’ disciplinary records

did not prejudice the defendant; the records were never introduced before the jury. Further, Phillips

conceded his disciplinary records reflected two prior incidents of self-mutilation. As to the juror,

there was only a mention of the state’s concern that the juror might have knowledge of the event.
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No hearing was conducted; the defendant was not prejudiced. We conclude the defendant’s absence

during this time did not result in prejudice to the defendant nor prejudice to the judicial process.

Further, if there were a constitutional violation, it was harmless beyond a reasonable doubt.

III. HEARSAY EVIDENCE

The defendant next contends the trial court erred in permitting the state to introduce

inadmissible hearsay evidence at trial. Carolyn Tatum, the personnel manager at the prison, testified

co-defendant Webb met with her regarding the incident. The prosecutor then attempted to question

her regarding statements co-defendant Webb made about the incident, and defense counsel objected

to the testimony as inadmissible hearsay. After the parties conducted a voir dire examination of

Tatum during a jury-out hearing, the trial court gave the jury the following limiting instruction:

As the State asked questions, the Attorney General asked this witness if one

of the defendants had made a statement to her. The statement of a defendant can be

used against that defendant. However, if there is information in that statement by one

defendant, it cannot be used against the other defendant. . . .

So a person can make an admission, which is an acknowledgment by a

defendant of certain facts which tend, together with other facts, to establish that

person’s guilt. It has to be corroborated by other independent evidence to warrant

and support a conviction.

So the testimony of this witness as to one of the defendants, if you find that

her testimony is that one of the defendants made a statement to her, then you have to

judge the credibility of that statement, whether the statement was, in fact, made, and

the truthfulness of the statement that that defendant made.

And that statement or admission can be used against that particular defendant.

However, it cannot be used against a co-defendant in a situation where the two are

tried together.

Tatumthen testified co-defendantWebb stated that the two inmates had been arguingthroughout

the day. McWilliams had grown tired of the bickering and wanted to allow the inmates to “fight it

out.” Webb told Tatum that he accompanied “his inmate” to a room without restraints, and then

McWilliams escorted “his inmate” to the room. During the fight, “one of them had a shank” and

stabbed “the other inmate” several times. Webb further stated he and McWilliams did not know the

inmate possessed the shank. Tatum also testified that Webb was upset that McWilliams was not also

placed on administrative leave “because the shank was found on the inmate that McWilliams - - ”

At that point, Tatum was interrupted with another question. Nevertheless, Tatum also stated Webb

did not make any statements to her regarding the search of his inmate.

“Hearsay” is defined as “a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.

801(c). Tatum’s testimony regarding co-defendant Webb’s statements implicated the defendant,

although the defendant’s name was not actually mentioned. Furthermore, the statements were
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offered at trial for the truth of the matters asserted, that two inmates engaged in a fight and one had

a shank. Therefore, Tatum’s testimony regarding co-defendant Webb’s statements was hearsay. Of

course, the statements were properly admitted against co-defendant Webb under the party-opponent

admission exception to the hearsay rule. See Tenn. R. Evid. 803(1.2).

The trial court instructed the jury not to consider Tatum’s testimony against the defendant,

thus, in theory, making her testimony inapplicable to the defendant. A jury is presumed to follow

the instructions of the trial court. State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994).

However, we note that the adequacy of the limiting instruction under these circumstances calls for

a closer examination. See Cruz v. New York, 481 U.S. 186, 193, 107 S. Ct. 1714, 95 L. Ed. 2d 162

(1987) (holding that where a nontestifying co-defendant’s confession incriminating the defendant

is not directly admissible against the defendant, the Confrontation Clause bars its admission in a joint

trial, despite a curative jury instruction); Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620,

20 L. Ed. 2d 476 (1968) (holding the same).

However, unlike the issues encountered in Cruz and Bruton, the parties in the case at bar had

the opportunity not only to fully cross-examine Tatum, the person who heard the statements, but also

co-defendant Webb, the declarant, who also testified at trial. Thusthe Cruz and Bruton confrontation

issue is not implicated. Co-defendant Webb denied making the statements to Tatum. In light of the

explicit limiting jury instruction coupled with the strong evidence of guilt, the defendant was not

prejudiced by the admission of the statements at trial.

IV. THE VICTIM’S LETTER

The defendant contends the trial court erred in refusing to admit into evidence a letter written

by the victim. During his cross-examination of Phillips, the defendant, representing himself,

produced a letter which Phillips had allegedly written to him the day before the incident occurred.

The letter purportedly reflected Phillips’ involvement with the White Aryan Resistance. The letter

used the words “my ‘family’ W.A.R.” Phillips testified he recognized the letter, but denied writing

it. He further stated the handwriting in the letter was not his. Phillips also denied any affiliation

with a hate group. The trial court sustained the state’s objection to introducing the letter on the

ground of irrelevance.

During the defense’s proof, the defendant recalled Russell Wellington, who testified he had

previously communicated with Phillips through letters. The defendant then showed Wellington the

letter, and Wellington stated he recognized the handwriting as belonging to Phillips. The defendant

requested Wellington read a line from the letter mentioning Phillips’ involvement with the White

Aryan Resistance. The state offered a general objection, and the trial court sustained the objection.

The defendant then requested the letter be admitted into evidence, and the trial court stated it could

be marked only for identification purposes.
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We first note that this issue is waived as the defendant has failed to cite authority to support

his argument. Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim.

App. 1997). Regardless, we conclude the defendant suffered no prejudice.

To properly analyze the issue of prejudice, certain background information is necessary. It

appeared to be the original defense theory that no fight occurred and Phillips had fallen down the

stairs. During the trial, the defendant asserted his right of self-representation, which will be more

fully discussed hereafter. When the defendant assumed pro se representation, it is apparent the tenor

of the defense changed drastically. The defendant, pro se, cross-examined Phillips. It can be

described as two inmates hurling varied and numerous accusations at each other. The defendant

repeatedly accused Phillips of being in the White Aryan Resistance, which Phillips denied. The

defendant became irate, and the following interchange occurred:

[Defendant] I see that you’re pretty aggressive. Is this the manner that you usually

are?

[Phillips] I’m upset because the person who stuck me is sitting right there lying

to my face.

[Defendant] I’m upset because I’ve got some white supremacist sitting up there on

the motherf---ing stand, talking about I stuck him with a knife, when

he knew he had the motherf---er, and you’ve got a racist-ass

prosecutor sitting here upholding this shit, and you’ve got a judge

sitting up here allowing you to stand up there telling this shit. You

know damned well you brought that motherf---ing knife in that room.

[The Court] Mr. Lewis --

[Defendant] You know that.

[The Court] Mr. Lewis --

[Defendant] I took that motherf---er from you, and I used it on your motherf---ing

ass.

The racial issue also arose during the testimony of Fred Zonge. Zonge testified that Phillips

was an “Aryan want-to-be” and later stated Phillips “claims to be affiliated with the White Aryan

Resistance.”

We agree with the defendant’s contention that the letter was proper impeaching evidence.

However, in light of the entire record, we conclude the admission of the letter would not have

affected the results of the trial. See Tenn. R. App. P. 36(b).
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V. PRO SE REPRESENTATION

The defendant next contends the trial court erred by allowing him to represent himself. He

submits that he did not execute a written waiver of his right to counsel and that the oral waiver was

not knowingly and intelligently made. We disagree.

A. Hearing on Motion for Self-Representation

On the second day of trial, the defendant requested that the trial court remove defense counsel

and permit him to represent himself through the remainder of trial. The defendant emphatically

stated he was not receiving a fair trial, and he believed the only means by which he could reveal his

version of the events to the jury was to represent himself.

The record reflects that for approximately eight pages of the transcript, the trial court

questioned the defendant extensively regarding his request. Although the defendant acknowledged

he had no prior experience representing himself, he stated he believed self-representation would be

more effective at that point in the trial than the representation of defense counsel. The defendant

stated he had not researched any of the issues presented at trial. The trial court informed the

defendant that he would be required to comply with the rules of evidence and procedure, and that

the court would base its decisions on the rules. The defendant replied that he was not concerned with

the rules because he felt he was not receiving a fair trial. He further stated his lack of knowledge of

the law was not important to him because “[t]he truth is the only thing that’s pertinent right now.”

The defendant stated he was aware of the charged offenses and realized he could be further

incarcerated if convicted of the charges. The trial court informed him that it could not advise him

in any way during the trial. The trial court further explained to the defendant the purposes of the

Tennessee Rules of Evidence and Rules of Criminal Procedure and again informed him that,

although the defendant was unfamiliar with the rules, he was still required to abide by them. The

trial court then informed the defendant that if he chose to testify, he would be required to proceed

in a question and answer format. The defendant indicated he understood this information.

The trial court opined defense counsel could more effectively represent the defendant at trial

and that it was “unwise” for the defendant to attempt to represent himself. The trial court advised

the defendant he should allow defense counsel to continue to represent him. The defendant stated

that in spite of the possibility of further incarceration if convicted and the difficulties of selfrepresentation, he still desired to waive his right to counsel and represent himself for the remainder

of trial. The trial court found the defendant knowingly and voluntarily waived his right to counsel

and permitted him to represent himself for the remainder of trial. The trial court further requested

defense counsel remain throughout the trial as “standby counsel” in order to assist the defendant and

possibly replace him, if the court no longer allowed the defendant to represent himself.
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B. Waiver of Right to Counsel

Both the Tennessee and the United States constitutions grant a defendant the right to

assistance of counsel in the preparation and presentation of a defense to a criminal charge. See U.S.

Const. amend. VI; Tenn. Const. art. I, § 9. In addition, the Sixth Amendment implicitly provides a

defendant the right of self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525,

45 L. Ed. 2d 562 (1975); State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984). In order to activate

the right of self-representation, the defendant must (1) timely assert the right to proceed pro se; (2)

clearly and unequivocally exercise the right; and (3) knowingly and intelligently waive his or her

right to assistance of counsel. State v. Herrod, 754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988).

The defendant maintains the third condition was not met.

Generally, a defendant must assert the right of self-representation prior to jury selection to

be considered timely. See id. at 629. In the case at bar, the defendant asserted the right on the

second day of trial. This jurisdiction has not expressly addressed the standard by which we are to

review a trial court’s granting of a request to proceed pro se made after trial has commenced.

However, this court has previously noted that the granting of a defendant’s possibly untimely request

to proceed pro se was a matter within the discretion of the trial court. See State v. Vincent Hatch,

No. W2000-01005-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 849, at *13 (Tenn. Crim. App. Oct.

19, 2001, at Jackson), perm. to app. denied (Tenn. 2002). Furthermore, other jurisdictions have held

that if a request for self-representation is made during trial, the right to proceed pro se rests within

the discretion of the trial court. See, e.g., State v. Vermillion, 112 Wn. App. 844, 51 P.3d 188, 194

(2002); State v. Collins, 257 Kan. 408, 893 P.2d 217, 221 (1995); People v. Burton, 48 Cal. 3d 843,

771 P.2d 1270, 1275 (1989). We agree with these holdings and conclude that in the case at bar, the

trial court’s decision regarding the timeliness of the defendant’s request to represent himself was a

matter of discretion.

In determining whether a defendant intelligently and knowingly waived his right to counsel,

the trial court must question the defendant extensively regarding his ability to represent himself.

Northington, 667 S.W.2d at 61; Herrod, 754 S.W.2d at 630. A defendant need not have “technical

legal knowledge” in order to exercise his right of self-representation. Faretta, 422 U.S. at 836. This

court has previously recommended trial courts follow the guidelines contained in 1 Bench Book for

the United States District Judges § 1.02-2 to -5 (3d ed. 1986), also contained in the appendix to United

States v. McDowell, 814 F.2d 245, 251-52 (6th Cir. 1987). Herrod, 754 S.W.2d at 630.

In the case at bar, the trial court substantially complied with the format suggested in Herrod.

The trial judge questioned the defendant extensively regarding his ability to represent himself. It

advised the defendant against proceeding pro se and informed him that he would be required to

comply with the rules of evidence and procedure. The trial court then designated defense counsel
2

 “Standby counsel” is defined as “counsel who is not actively participating in the trial but is available to step

in and take over as counsel if called upon to do so by either the defendant or the trial court.” State v. Small, 988 S.W.2d

671, 672 n.1 (Tenn. 1999). The appointment of advisory counsel is entirely within the trial court’s discretion. Id. at 672.

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as standby counsel in order to assist the defendant.2

 Yet, the defendant was steadfastly determined

to represent himself in spite of any and all admonitions of the trial court. That was his right. We

conclude the defendant’s waiver of the right to counsel was knowingly and intelligently made.

The defendant next contends his behavior at trial reflects that he did not fully understand the

meaning of self-representation. During the trial, the defendant lost his temper, and the trial court

held him in contempt for his actions. However, we may not consider a defendant’s pro se trial

performance in determining whether the defendant knowingly and intelligently waived his right to

assistance of counsel. Northington, 667 S.W.2d at 61-62.

Finally, the defendant submits his waiver was invalid because the trial court failed to secure

a written waiver. Rule 44(a) of the Tennessee Rules of Criminal Procedure provides that before a

trial court may allow an indigent defendant to proceed pro se, it must require the defendant to

execute a written waiver. However, the failure to execute a written waiver does not necessarily

invalidate an otherwise constitutionally valid waiver. See Vincent Hatch, 2001 Tenn. Crim. App.

LEXIS 849, at **17-18 (citations omitted). In light of the trial court’s extensive questioning of the

defendant establishing that he knowingly and intelligently waived his right to assistance of counsel,

any error with regard to noncompliance with the writing requirement is harmless. See Tenn. R. App.

P. 36(b). Therefore, we conclude the trial court properly granted the defendant’s motion to proceed

pro se through the remainder of the trial.

VI. CONCLUSION

In summary, we conclude the evidence was sufficient to support the defendant’s conviction

for reckless aggravated assault and further conclude there is no reversible error with regard to the

other issues raised by the defendant. Therefore, we affirm the judgment of the trial court.

___________________________________ 

JOE G. RILEY, JUDGE