### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs D ecem

ber 3, 2002
STATE O F TENN ESSEE v. MICHA EL LEWIS
Direct Appeal from the Circuit Court for Lauderdale County

No. 7127 Joseph H. Walker, Judge

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

A Laud erdale County jury convicte d the def

endant, Michael L

ewis, of r eckless aggr

avated a ssault. 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 defe ndant and his at to rn ey; (3 ) the trial court erred in permitting a witness to testify to statements made by the c odefenda nt; (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 repr esent himself. Upon reviewing the rec ord and th

e applic able law , we aff

irm the jud

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

J OE G. R ILEY , J., delivered the opinion of the court, in which A LAN E. G LENN , J., joined. T HOMAS T. W OODA LL , J., not p artic ipati ng. Gary F. Antrican, District Public Defender (at trial and on appeal); and Michael L ewis, Pro Se (at trial), f or the ap pellant, Michael

Lew is.

Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; Elizabeth T. Rice, District Attorney Ge neral; and Tracey

Anne Brewer, Assistant District Attorney General, for the appellee, State of Te nnessee.
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 require d to rema

in in their cells twenty-three hours a day and are prohibited from con

tacting other inma

tes. When a

n inmate isout of his c ell, he mu st wear l eg restrai nts and ha

ndcuffs

. Kevin McWilliams was a co-defendant and former corr ectional of

fic er at the prison who pled guilty to charges arising

from these events. He testified that on December 15, 2000, c o-defendant-2-

William Ly

nn Webb, who was trie d along withthe defendant, requested McWilliams’ presence a t B-Pod. When he arri ved, Webb a sked him if he had experienced problems with two inmates arguin g, and McWilliams did not respond. Donald Phillips, the victim, re turned to B-Pod wh

ere 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 retriev e the def endant f rom his ce

ll. Webb told McWilliams he wante d to put the two inmates together because he wa s tired of hearing them argue

. McWilliams testifie d that upon removing

Phillips’ restraints, he had Phillips str

ip down to his boxer shor

ts and soc ks. He sta ted he did not obser ve a wea pon on Philli

ps. 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 defe

ndant did not have a weapon.
McWilliams then per

mitted the

defenda nt to exit his c ell with out wear ing res traints. McWilliams testified the defendant walked to

the edge of the stairs, ran down the stairs a nd into the
room where Phillips was located, and slammed the door. The defenda nt and Phillips then bega n fighti ng. Phillips began bleeding and y elled that the defendant had a “shank.” McWilliams stated he and Web

b entere d the room

and sepa rated the inmates

. McWilliams testifie d he and We bb escor ted Phillips to the pr ison nurse for trea tment. 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 sha nk 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. A

ccording to the statemen t, Phillips was injured when he fell down the stairs. McWilliams stated Webb infor med 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, a nd Ph illips complied. McWilliams testified that although both inmates agreed to a fist fig ht, Phillips never agreed to being attacke d by a shank.

Ca ro lyn Tatum, the

perso nn el manag er at the prison, te stified We

bb told her

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

bb told her that he escorted one

inmate to a room, while McWilliams escorted the other inmate. Tatum sta

ted Webb in

formed her that d

uring th e 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 Dece mber 15 th , betwee

n 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

“rathe r profus ely ” from hisback. Nu rse Prive tt stated s he prepa

red an incid ent traumati c injury report, in which she indicated that Phillips had asmall, semicircular cut on his neck,-3-

several cuts on his back, a cut on his arm, and a cut on his head. One of the cuts on Phillips’ back
was approxima

tely one cen timeter d eep with s kin and fl esh missing . Nurse Pr ivett testified Phillips informed her that he fell down the stairs; however, he showed no sig ns of bruising. Phillips was then sent to a h ospital and return ed to the p rison late r that nig ht.

Ch er yl Manns, the

custodia n of medic al record s 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 re quired st aples. Frederick Zong e, an inmate , testifie d that his cell was loca ted in Unit

Six. While Phillip s, 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

penitent iary inmates w

ho want their

clothes folded must give

the laund

ry worker “a lit tle something” i n order for him to fold them. The defendant was angered by

the fact that Phillips folded Zonge’s clothes, but did not fold hi s clothes

. Zonge stated the defendant believed this to be a racial issue because Phillips was an “Ary an want-tobe,” who claimed to be affiliated with the White Ary an Resistance. Zonge testified Phillips and the defendant argued and curse d a t each other. Phillips then challenged

the de fendan t to a f igh t, and the d efenda nt agreed. The d

efenda nt told Philli

ps to persuade Webb to allo w them to “ fight it out.” When Zonge asked Webb if he would per mit the inmate s to fig ht, Webb stated he would likely allow it. A short time later, Z onge observed Webb strip search Phillips, and Zonge did not observe a weapo n in Phillips’ possession. After searching Phillips, Webb yelled at McWilliams, who was stand ing near the defendant’s cell, that he did not find any thing. Mc

Williams re

plied, “I ’ve go t it cover

ed,” an d opened

th e def endant’s cell door. Zonge testifie d the def

endant r an down th

e stairs an d into the r

oom befor

e Webb had

a chanc e to stop him. The de

fendant closed the door; he

and Phillip s fough

t; and during the fight, Phillips began bleeding “like a stuck hog.” Zong e stated that up on viewin g the blo od, Webb y elled, “ He’s g ot a knife,” entere d the room , and broke up the f ight. Zonge testifie d that whe

n he late r inquire d about th e shank, Webb told him the shank was
a razor blade placed inside a piece of a pla stic knife. Zonge further state d that when he questioned the defenda

nt about the shank, the defe ndant sta ted McWillia

ms saw him hid

e the sha nk in the pa

lm of his h and. Zo nge admitted he later told a man claiming to be an Inter nal Affairs officer that he saw Phillips fall down

the stair s, but expla

in ed that he made the statement because he did not like the manner in which the interview was being conduc ted.

Russell Wellington, an i nmat e, testif ied that he observed Webb strip search Phillips. He stated that after the search w as 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 stair s. Wellington testified that after the altercation, he observed Webb holding a weapon in his hand, removing it from the

area, a nd cursin g beca

use someo ne had po ssessed it.1 Th e jury fo und c o-de fenda nt W ebb guilty of rec kless ag grava ted ass ault and official misc ond uct.
-4- Donald Phillips, the victim, testified that on December 15 th , the defendant became ang ry at him because he did not

fold the d efenda nt’s cloth es. The defendant cursed Phillips and, upon calling McWilliams to his cell , the defe ndant re quested t

he offic er infor

m Webb that t

hey wanted to

fight. Phillips testified he observed the defendant rea ch into his hair as he was walki ng down the stairs prior to the fight. Phillips stated he agreed to a fist fight with the de fendant, but that he never agreed to being attacked with a weapon. He further stated that during the fight, the defenda nt “stuck ” him witha shank. Phillips tes tified tha t after t he figh t, Webb told

him not to “s nitch” on

him, so he t

old the nurse he fell down the sta

irs.

Co-defendant

William Lynn Webb testified that on De cember 15 t h , at ap proximately 5:15 p.m., Webb w as prepa

ring to a ccompan y Phi llips to his c ell afte

r Phillips ha

d complet ed his work in th e l au nd ry r oom. Afterrequesting assistance from McWilliams, Webb placed restraints on Phillips and escorted him out of the laundry room towardB-Pod where his cell was located. Webb stated he was c arry

ing two to

three ba gs of la undry ; Phillips wa s carry in g four to five bags of l au nd ry; and McWilli ams was w alking i n front of them. When

they reache d the top of

the stair s, Phillips stumbled and began falling backwa rds. Webb testified that before hehad 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-gra te steps. Webb denied instructing McWilliams t

o lie to the office rs and de nied stating to Tatum he put two inmates together to fight

. The defendant did not testify a t trial. The jury convic ted the defendant of reckless agg ravated assault and acquitted him of intentional or knowin g agg ravate d assault

. 1 The trial court sentenced him to six years incarcera tion as a multiple offender.

I. SUFFICIENCY

The defe ndant con tends the evidenc e prese

nted at tr ial was in sufficie

nt to suppor

t his conviction for reckless agg ravated assault. We disagree.

In determining the sufficiency of the evidence, this court does not reweigh or r eevaluate the evidence. Statev. Cab bage , 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, 80 3 (Tenn. 1994). Accordingly , it is the appellate court’s duty to a ffirm the conviction if the evidence, viewed under these standa rds, was sufficient

for any rational trier of fact to have f ound the esse

ntial ele ments of th

e offen se bey

ond a rea sonable d

oubt. Ten n. R. App. P. 13(e); Jackson v. V

irginia , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2 789, 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 aggravate d assault when he or she reckle ssly commits an assault and “[u]ses or displays a dea dly weapon.”Tenn. Code Ann. § 39-13--5-

102(a)(2)(B). A p er so n, wh o “ [i ]n te nt io na ll y, k no wi ng ly o r r ec kl es sl y c auses bodily injury to another,” commits an “assault.” Id. § 3 9- 13 -1 01 (a )( 1) . A “d ea dl y w eapo n” includes “[a] firearm
or anything ma

nifestly designe d, made or adapted for the purpose of inflicting death or serious bodily in ju ry; or . . . [a]nything that in the manner of

its use or intended use is capable of causing dea th 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 defendan t agree d to engage in a fist fig ht. However, during the fight, the def endant produced a “shank” and repe atedly

stabbed Ph

illips with it. Phillips tes tified tha t prior to t he figh t, he observed the defenda

nt reac h into his hair, and during the fight, he felt the shank a s the defendant stabbed h im withit. Wellington stated he observed Webb in possession of a weapon after the f ight . The evidence also esta

blished Phi l lips suffered bodily injury as a result of the defendant’s use of the shank. Phillips sust

a ined various cuts on his shoulders and back. We conclude the evidence w as sufficient to support the defendant’s conviction for rec kless aggravated assa ult through the use or display of a dea

dly weapon.

II. EX PARTE PROCEEDINGS

The defendant contends the trialcourt conducted trial proceedings during which neither he
nor his attorney was pr

esent. He maintains that

by holding these pr

oceedings, the trial court violated his constitutional right to be present during his trial and, therefore, erred in deny ing his motion for mistrial.

At the conc lusio n of the first day of trial after the jury

was dismissed, the trial court conducted

a jury-out hea

ring and overruled objections made by both the def endant and co-defendant Webb regarding Zonge’s testimony. T he defendant contends that after the trial cour t ruled on the objectio ns, he wa s taken f rom the c ourtroom , followe d by defense counsel.

The co-defendant and the state then conducted a voir dire examination of T im T erry, the administrative assistantover inmate records, who was un ab le to be pr es en t a t t ri al th e fol lo wi ng da y. Terry testifie d he had a

copy of Phillips’ inmate dis ciplinar y r ecords a nd was cu sto dia n of the record s. The trial court

found Terry ’s presence was not required if co-defendant Webb introduced the records into evidence at trial. The parties then ha d a brief discussion concerning a juror w ho was allege dly acquainted with co-defendant Webb. The trial court decided to conduct a hearing on the is su e t he fo ll ow in g d ay.
The next morning, defense counselmoved for a m istr ial be cause t he pro ceedin gs were he ld in his and the defendant’s absence. The trial judg e stated he thought the defendant and def ens e counsel were present during the proceedings. He then explained theevents which occurred during the proc eeding s and den

ied the de fendant ’s motion f

or mistria l.

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-6-

that decision absent an abuse of discretion. State v. Re id , 91 S.W.3d 247, 279 (Tenn. 2002). The burden of establish ing the necessity

for mistr ial lies wi th the par ty s eeking it. State v. Will

iams , 929 S.W.2d 385, 388 ( Tenn. Cri m. App. 199 6). No ab stract f ormula sh ould be me chanica lly a pplied in making this dete

rminatio n, and all circumstances should be taken into account. State v. Mounce , 859 S.W.2d 319, 322 (Tenn. 1993).

Under both the f

ederal and state constituti ons, a

defendant has a right to be present dur ing his or her trial. See State v. Mu se , 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 sta

ge of the trial including the impaneling of the jury and the return of the verdict.” “Presence” at trial c onnotes th at the defendant must be “p

resent in court from

the beginning of the impaneling of the jury

until the reception of the verdict and the discharg e 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 throug h in-court misbehavior. Tenn. R. Crim. P. 43(b); Muse , 967 S.W.2d a

t 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 defenda nt and defense counsel
we re absen t during the proceedings. The fir st indication on the record of their absence occ urred when def ense cou nsel, while requesting a mistrial, declared he a nd the defendant were not present during the proceeding s. The trial judge stated he thought they were in fact present during the procee dings. The tria

l court ma de no find ing of f act as to whether the defe ndant and defense counsel
were a bsent. Regar dless, we conc lude the d

efenda nt is not en

title d to relief

. Some con stitutiona

l rights
are so basic that their infraction cannot be harmles s. State v. Bobo , 814 S.W.2d 353, 357 (Tenn. 1991). However, the constitutional right to be prese nt at tria l extends to a

procee ding “w

heneve r his presence has a relati on, reas onably substantia

l, to the fu

llness of his oppo

rtunity to defen d again st 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 defe ndant’s absence from the entire jury selection process required automatic rever sal. 967 S.W.2d at 768. The cour t further noted tha t in fed eral cases where a defenda nt’s absence from the jury selection process had been deeme d harmless , the defendant was absent from only a small portion of the proce ss. Id. (citations omitted). In addition, this court has held that a defenda nt’s absence from the entire jury trial with out a vali d waiver also required automatic rever sal. Ballard , 21 S.W.3d at 262.

Unlike the defendants in Muse and Ballard , the defend ant i n the cas e at bar was alle gedly absent from only a small portion of the trial during a jury-out hea

ring. The defe ndant’s a

bility to conduct a voir dire examination of Terry regarding

authentication of Phillips’ disciplinary rec ords didnot prejudice the defendant; the records we re never introduced

before the jury . Further, Phillips conceded his disciplinary recor

ds reflected two prior incidents of self- m utilation. As to the juror, there was only a mention of the state ’s co ncern th at t he juror might ha ve knowle dge of

the even t.-7-

No hearing was conducted; the defendant was not prejudiced. We conclude the defendant’s absenc e during this time did not re sult in pre judice to the defe ndant nor prejudic e to the ju dicial pr ocess. Further , if there

were a constituti onal viola

tion, it wa s harmles s bey ond a rea sonable d oubt.
III. HEARSAY EVIDENCE

The defenda

nt next cont

e nds th e trial court erred in permitting the state to introduce inadmissib le he ar sa y ev id en ce at tr ia l. Ca ro lyn 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-de fendant Webb made about the incident, and defense counsel objected to the testimony as inadmissible hearsay . After the part ies conducted a voir dire examination of Tatum during a jury -out hearing, the trial court ga ve the jury the f

ollowing 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 perso n c an ma ke an ad mi ss io n, wh ic h i s a n a ck no wl ed gm en t b y a defendant of certain facts which tend, togethe r with other facts, to e stablish that person’s guilt. I t ha s to be corroborated by other independent evidence to warrant and support a conviction. So the testimony

of this witn

ess as to one of the defendants, if you find that her testimony is that one of the defe ndants made a

statement to her, then you have to judge the cre dibility

of that sta

tement, whether the statement was, in fact, made, and the truthfulness of the statement that that defendant made. And that statement or admission can be u sed ag ainst that particu lar def

endant. However, it cannot be used against a co-defe ndant in a situation where the two are tried together.

Tatum then testified co-defendant Webb stated that the two inmates had been arguing throughout 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 roo m with out restraints, and then McWilliams escorted “his inmate” to the room. During the fig ht, “one of them had a shan k” an d stabbed “the other inmate” several times. Webb further stated he and McWilliams did not know the inmate possesse d the shan

k. Tatum a

lso testified that Webb was upset tha t McWilliams was not a

lso placed on administr

ative lea ve “bec ause the

shank wa s found on

the inmate

that McWilli ams - - ” At that point, Tatum wa s interru pted with a

nother qu estion. Ne

verthel ess, Tatu

m also stated Webb did not make any statements to her regarding the sear

ch of his inmate.

“H ea rs ay” is defined as “a statement, other than one made by the declarant while testify ing at the trial or hearing, offere d in evidence to prove the truth of the matter asserted.”Tenn. R. Evid. 801(c). Tatum’s testimony reg arding co-defendant Webb’s statements implicated the de fe ndant , altho ugh the defendant’s name was not actually mentioned. Furt hermore, the statements were-8-

offered at trial for the tr

uth of the matters a sserted , that two i nmates e ngag ed in a fight and one had
a shank. Therefore, Tatum’s testimony regarding co-de

fendant Webb’s statements was hearsay . Of course, the statements were properly a dmitted against co-defendant Webb under the par ty-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 defenda

nt, th us , i n t he or y, making h

er testim ony inapplic able tothe 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 , 48 1 U. S. 186 , 19 3, 1 07 S . C t. 171 4, 9 5 L. Ed. 2d 162 (1987) (holding that where a nontestifying co-defendant’s confession incri min ating the defendant is not directly admissible ag ainst the defendant, the Confrontation Clause bars its admission in a joint trial, despite a curative jury instructi on); Bruton v. United States , 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (holding the sa me).
However, unlike the

issues en counter

ed 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 statemen ts, but also co-defendant Webb, the declar ant, who also testified at trial. Thus the Cruz and Bruton confrontation issue is not implicated. Co-defendant Webb denied making the statements to Tatum. I n light of the explicit limiting jury instruction coupled with the strong evidence of guilt, the defendant was not prejudic ed by

the admiss ion of the

statemen ts at tria l.
IV. THE VICT IM’S LETTER

The defendant

contends the trial court erred in refusing to admit into evidence a letter written by the victim

. Du ring his cross-examination of Phillips, the defendant, representing himself, produced a letter which Phillips had allegedly written to him the day befor e the incident occurred. The letter purportedly r

eflected Phillips’ involvement with the White Aryan Resistance . The letter used the words “my ‘f

amily’ W.A.R.” Phillips testified he recognized the letter, but denied writing it. He further stated the handwriting in the letter w as not his. Phillips also denied any affiliation witha hate group. The trial cour t 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 previous ly

communic ated 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’ invo lvement w ith the White Aryan Resistance. The state offered a general objection, and the trial cour t sustained the objection. The defendant thenrequested the letter be admitte d into evid

ence, a nd the tria l court sta ted it cou ld be marke d only

for iden tificatio n purpose s.-9-

We first note

that this is sue is wai ved as the defenda nt has fa iled to cit e authority to support his argume

nt. Tenn. Ct. Crim. App. R. 10(b); State v. Schaller , 975 S.W.2d 3 13, 318 (T enn. Crim. App. 1997). Regardless, we conclude the de fendant suffered no prejudice.

To properl

y a naly ze the issue

of preju dice, ce

rtain ba ck gr ou nd in fo rm at io n i s n ec es sa ry. It appeared to be the ori ginal de fensetheory that no fig ht occurred and Phillips had fallen down the stairs. During the trial, the defendant asserte d 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 dra stically. The defe ndant, p ro se , cross -examined Phillips. It can be descri b ed as two inmates hurling varied and numerous acc usations at each other. The defendant repe at edly

accused Phillips of being in the White Ary an Resistance, which Phillips denied. The defendant became irate, and the f ollowing interchange occur red:
[Defenda nt] I see th at yo u’r e pr ett y aggr ess iv e. Is this the manner that you usually are? [Phillips] I’m

upset bec ause

the person who stuck me is sitting right there ly ing to my face.
[Defenda nt] I’m upset because I’ ve got

some white supremacist sitting up there on the motherf- --ing s tand, tal king ab out I s tuck him

with a knife, when he knew he had the motherf---er, a nd you’ve g ot a ra cis t-ass prosecutor

sitting here upholding this sh it, an d you’ve go t a jud ge sitting up here allowing y ou to stand up there telling this shit. You know damned well you broug htthat motherf---ing knife in th at room. [The Court] Mr. Lewis --
[Defenda nt] You know t

hat.
[The Court] Mr. Lewis --
[Defenda nt] I took that motherf---er from y ou, and I used it on your

motherf---ing
ass.
The racial issue also arose during the testimony of Fre d Zonge. Zong e testified that Phillips
was an “Ary an want- to-be” and later stated Phillips “claims to be affiliated with the White Ary an Resistance.”

We agree with the defendant’s c ontention that the letter was proper impeaching evide nce. However, in l ight of the entire record, we c onclude the admission of the letter would not ha v e affected the results of the trial. See Tenn. R. App. P. 36(b).-10- V. PRO SEREPRESEN TATION

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 intellig ently made. We disag ree. A. Hearing on Motion for Self-Representation

On the secondday

of trial, the defendant requested that the trial court r emove defense counsel and permit him to represent himself through the remainder of tria l. The def

endant e mp haticall

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

he could r

eveal hi s version of the events to the jury was to represent himself.

The record reflects that for approximately eight pages of the transcr ipt, the trial court questioned the defendant extensively r egarding his request. Although the defendant acknowledged he had no prior experience representing himself, he statedhe believed self-representation would be
more effective at that point in the trial than the representation of de fense couns el . The defendant stated he had not researched any of the issues pr esented at trial. The trial court informed the defendant that he would be required to comply with the rul es o f evidence and procedure, a nd that the court wo uld base its decisio ns on the r ules. The defendant replied that he was not conce rned with the rules because he felt he was not rec eiving 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 hewas aware of the charged offenses and r

ealized he could be further incarcerated if convicted of the c harges. The trial court informed him that it could not advise hi m in any way

during the trial. The trial cour t furthe r explained to the defendant the purposes of the Tennessee Rules of E

vidence and Rules of Crimina

l Procedure an d again

informed

him that, altho ugh the defendant was unfamiliar with the rules, he was still req u ired 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 defenda nt indicated he understood this information.

The trial court opined defense counsel could more eff ectively re

present the defendant

at trial and that it was “unwise” for the d efenda nt to attempt to represent himself. The trial court advised the defenda

nt he shoul d allow de

fense c ounsel to

continue to represent him. Thedefendant stated that i n 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 a

nd voluntarily waived his rig ht 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 counse l” in order to assist the defendant and possibly replace him, if the c ourt no longer allowed the defendant to re present himself.-11-

B. Waiver of Right to Counsel

Both the Tenn essee a

nd the United State s constitut ions gra nt a defe ndant the right to assistance of counse

l in the preparation and presentation of a def ense to a criminal charge. See U.S. Const. amend. VI; Tenn. Const. art. I , § 9. In a ddition, the Sixth Amend ment implic itly

providesa defendant the right of self-representation. Farett a v. Calif ornia , 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed . 2d 562 (1 975); State v. Northington , 667 S.W.2d 57, 60 (Tenn. 1984). In or der to ac tivate the right of

self-re present ation, the defenda nt must (1) timely

assert the right

to proceed pro se ; (2) clearly an d u ne qu iv oc al ly e xe rc is e t he ri gh t; an d ( 3) kn ow in gl y an d i nt el li ge nt ly waive his or her right to assista nce of c ounsel. Statev. Herrod , 754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988). The def endant ma

intains the

third con dition wasnot met. Generally , a defendant must assert the right of self-representation prior to jury selectio n to be considered timely. See id. at 629. I n the cas e at b ar , the defendant asserted the right on the second d ay

of trial. This jurisdiction has not expressly addressed the standa rd 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 cour

t has previously

noted that the granting of

a defendant’s po ssibly

untimely request to proceed pro se was a mat ter within the discr etion of th

e trial c ourt. See State v. Vincent Hatch , No. W2000-010 05-CCA-R3 -CD, 2001 Tenn. Cri m. App. L EXIS 849, at *1 3 (Tenn. Crim. App. Oct. 19, 2001, at Jackson), perm. to app. denied (Tenn. 2002). Furthermore, other jur isdictions have held that if a request for self-represe ntation is made during trial, the right to proceed pro se rests within the discretion of the trial court. See, e.g., Statev. Vermillion , 112 Wn. App. 844, 51 P.3d 188, 194 (2002); State v. Collins , 257 Kan. 408, 893 P.2 d 217, 221 ( 1995); People v. Burton , 48 Cal. 3d 843, 771 P.2d 1270, 1275 (1989) . We agree with these holdings and conc lude that in the case at bar, the trial court’s decision

regar ding the timelines s of the de

fendant ’s reque st to represent himself w as a matter of discretion.

In determining whether

a defendant

intellig ently

and knowingly

waived h is right t o counse l, the trial cou

rt must que stion the d

efenda nt ex tensively reg arding his ability to re present himself. Northington , 667 S.W.2d a t 61; Herrod , 754 S.W.2d at 630. A defendant need not have “technical legal knowledg e” in ord

er to exer cisehis right of self-representation. Farett a , 422 U.S. a

t 836. This court has prev iously recomme nded tria l courts f ollow the g

uideline s 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. M cDowell , 814 F.2d 245, 251-52 (6 th 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 judg e questio ned the de fendant e xtensiv ely r ega rdi ng h is abi li ty to rep res ent hi ms elf . It advised the de fendan t again st pro ceedin g pro se and informed him that he would b e req uired to comply with the rules of evidence and procedure. The trial court then desig nated defense counsel2 “Standby counsel” is defi ned as “counsel who is not ac tively parti cipati ng in t he tri al but

is av ailable to s tep in and take over as counsel if called upon to do so by either the defendant or the t rial court. ” State v . Sma ll , 988 S. W.2d 671, 672 n.1 (T enn. 1999). The ap pointment of ad visory c ouns el is entirely w ithin the trial co urt’s discr etion. Id. at 672.
-12- as standby counsel in order to assist th

e defen dant. 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. W e 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 didnot fully understand the meaning of self- repres entation . During the trial , the def

endant l o st his temper, and the trial court held him in conte

mpt for his act ions. Howe ver, we may not consid

er a def endant’ s pro se trial performance

in determining whether

the defe ndant kno wingly

and intel ligently

waived h is right t o assistance of counsel. Northington , 667 S.W.2d at 61-62.

Fi na ll y, the defendant submits his waiver was invalid because the trialcourt failed to secure
a written waiver. Rule 44(a) of the Tennessee Rules of Criminal Procedure provides that bef ore a trial court may allow a

n indigent defendant to pro cee d pro se , it must re quire the defenda nt to execute a writte n waiver . Howeve

r, the fa il ure to execute

a writte n waiver does not necessar

ily invalida te an other

wise con stitutiona

lly 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 knowin gly

and intel ligently

waived h is right t o assistanc e of coun sel, any error with regard

to noncompliance with the writing requirement is harmless. See Tenn. R. App. P. 36(b). Therefore, we conc lude the trial court properly granted the defendant’s motion to procee d pro se through

the rema inder of the trial

. VI. CONCL USION

In summary, we c onclude the evidence was sufficient to support the defendant’s conviction for reckless aggra

vated as sault an d further conclude there is no reversible e rror with regard to the other issu es raise d by

the defe ndant. Therefor

e, we af firm the j udgmen

t of the tr ial cour t.

___________________________________ JOE G. RILEY, JUDGE