# FILED
June 2, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9806- CC-00266 ) Appellee, ) ) ) WILLIAMSON COUNTY VS. ) ) HON. TIMOTHY EASTER PERRY SALEEM LEE, ) JUDGE ) Appe llant. ) (Aggra vated A ssault)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF WILLIAMSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : PERRY SALEEM LEE PAUL G. SUM MERS Pro Se Attorney Generaland Reporter SCCF/CCA P.O. Box 279 KIM R. HELPER Clifton, TN 38425 Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 JOSEPH B AUGH Distri ct Attor ney General P.O. Box 937 Franklin, TN 37065-0937
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 We address the issues in a different order than that pr

esent ed in the De fendan t’s br ief. -2- 

# OPINION

The Defendant, Per ry S aleem Lee, was indi cted on two counts of aggravated assau lt. Follow ing a ju ry trial in April 1998, he was found guil ty of one count of simple assa ult agai ns t victi m Charles Steele and one count of aggravated assau lt a gains t vict im Kenneth Lockri dge. The Defendant now appe als his convicti ons pro se , pursuant t o Rule 3 of the TennesseeRules of Appellate Pr

ocedure.

The Defendant presents eight i ssues on appeal: ( 1) whether t he evidence presented at trial w as suffic ient to s upport his convicti ons; (2) whet her the trial court erred by

denying his

motion for a new trial ; (3) whet her the victims’ in-court iden tifi cations of him violated his right to a fair trial; (4) whether the trial court erred by proc eedin g with th e trial de spite th e Def enda nt’s reserv ations abou t his trialcouns el’s familiarity w ith the cas e; ( 5) wh ether he rece ived ineffective assistance of counsel; (6) whether the prosecutor made imprope r state ments during closing argumen ts; (7) whether the r easonable doubt i nstructi on was inf ir m; and (8) whether he was improperly

denied records

from his trialto perfect his ap peal. 1

All events underlying the Defendant’s pres ent convict ions occurred in the early mornin g hours of A ugu st 29, 1997. Aside from off icers i nvolved i n the Defe ndan t’s arrest, the only wi tnesses to testify at tri al were thetwo vict ims and the Defen dant. The D efend ant an d the vic tims d iffered in their versions of what transpired on the night of the crimes.-3- Charles Steele, the fir st vict im, testified that he had known the Defendant since childhood. He stated that on August 29, 1997, around two or t hree o’clock a.m., he was “just hang ing out . . . sipping a few beers” on Natch ez St reet . He reported t hat at the ti me, he was standing wi th a group of p eople in f ront of the house next to t he Defenda nt’s home; part of t he group had moved into the driveway

betwe en the two ho uses . Steele testified that wh ile he was standing on the sidewalk, the D efendant em erged from his home , asked everyo ne to leave the premises, and t hen said, “Carry your ass back to Hard Bargain” or “Carry that s__t on b ack

to H ard Bar gai n.”

Ste eleass ume d that the Defendant was addressing him because he was the only member of the group who lived at Hard Bargain. Steele test ified, “Seemed like I told him . . . there w asn’t n o sen se in a ll this or I was goi ng, I was l eaving, or some thing to tha t effect . . . .” Accord ing to Steele, while they were talki ng, the Defendant pulled a machete or

a knife, which Steele described as two and a half feet to t hree feet l ong and three to four inches wide, from either the leg o f his pants or a sca bbard at his side and began to swing it. Steele testified that he ba cked a way from the Defe ndant fo r about th irty feetwhile th e Def enda nt swu ng the knife a t him, th en stu mble d and fell. Stee le maintained that whil e on the ground, he raised hi s hand up in sel f-defense as the Defendant continued swi nging the kni fe, and the knife cut his han d . Steele recalledthat after he was cut, i t “seemed li ke [the Defendant ] swung at me again, and I heard the bl ade hit th e ground, and I jumpe d up and ra n . . . toward my car.”

Steele test ified that he drove himself to the emergency room of a nearby hosp ital, stopping along the way at a g as station to get a tow el to clean his bl oody hand. He stated that wh ile at the h ospita l, he ide ntified th e Def enda nt as h is attacker to police. He further testif ied that h e required sev eral stitches between2 Because there is no written transcript of the trial , but rather a videotape record, the

spelling o

f Vicky How

ell’s name

may be inc

orrect.
3 Lockridge denied ever w earing any type of police wire.

-4- his fi rst fi nger and thu mb and that hi s middle fi nger was cutto the bone, requiri ng surgery. H e stated th at he no w has lim ited use o f his midd le finger.

On cross-e xamination, S teele adm itted to having been previously ch arged with thesal e of

coc ain e. H e al so repor ted that hema y have smoked crack cocaine on the evening of August 28, 199 7, during t he ti me imme diately prior to his confrontat ion with t he Defendant. However , he deni ed smoking crack cocaine at or near theDefen dant ’s resid ence t hat n ight . He also denied hav ing any drug parap herna lia in his hand a t the time o f his confro ntation with the Defe ndant, and he testif ied that h e did not not ice anyone el se on Natchez Street engaging in drug
use at that time . Furtherm ore, he a dmitt ed that after this i ncident, he told an acquaintance, Vicky H owell, 2 th at he had cu t his hand cl eaning a turt le, but he expl ained that he had lied to Howellbecause he did not believe it was he r business to know h ow he had been injur ed.

Kenn eth Lockridge, the second victi m, encountered t he Defendant, whom he had known “allhis li fe” and w hom he he lped ra ise, sh ortly afte r Stee le departed for the h o spital. Lockridge testified tha t he and his girlfriend we re walking down Natch ez Stre et in the early morning hours of August 29, 1997 when he saw the Defendant ac ross the s treet. Loc kridge testifi ed that he sai d to the Defen dant, “W hat’s up, my nigger?” which he “consi dered
. . . bei ng friend ly. ” He testif ied that th e D efendant responde d, “Hey, fat m____r-f____r , you got your [police] wire on?” 3 According to Lockridge, the Defendant t hen crossed the st reet-5-

and hit hi m. Lockridge stated that he said, “Man, go on” and “tried to walk aw ay.” Howeve r, as Lockr idge co ntinued walk ing, the Defendant foll owed him, hit ting him numerous times about t he face and head u ntil Loc kridge fel l down, hopi ng thatthe attack would ce ase. Lockridgetestif ied that whi le he was on the gr ound, the Defendant “put

[the gun] u pside [hi s] head,” andhe feared that the Defendant might fire t he gun. He recall ed that at t hi s point , the Defendant ’s girlfriend pleaded for the Defendant to stop, and the Defend a nt ended the attack. Lockridge th en we nt to the hosp ital, whe re he id entified the De fenda nt as h is attacker. An officer who saw Lockridge at t he hospital stated t hat his nose was swollen, h is mou th was b leeding, a nd that the re was b lood on his clothes
.
The Defendant presented a diffe rent account of t he events underlying his convictions. He t estifi ed that he arrived home around midni ght on August 28, 1997 and found a numb er o f peop le standi ng in front of his house and in the driveway

next to h is home. This dist urbed him, he testifi ed, because of the high incidence of drug use at night on hi s street. He claimed to have previousl y put up “No Loiteri ng,” “No Trespassi ng,” and “No Parki ng” signs on his prope rty in an attemp t to protect h is children from the drug us ers in the n eighbo rhood.

The Defendant testi fied that on August 28, he par ked his car and went inside for a whil e before going back outsideto the side walk to confront t he group of people standi ng in front of his home. He recounted that he approached the gro up an d as ked the m to l eav e, a nd s ome of t hem bega n to d epart . He stated t h at Charles Steel e, however, whom he claimed held a “straight shooter,”

drug parap herna lia used for smoking crack cocai ne, did not move but instead started to light the strai ghtshooter. According to the D efendant, he started toward-6-

Steele, again asking him to leave, a nd Ste ele fel l down. He then turned back toward his house, and when he looked back, Steele was gone. The Defendant denied carryi ng any type of weapon during th is confro ntation andstated th at he did not ev en own a knife m atching th at describ ed by S teele.

The Defendant testifi ed that he went backinside hi s hou se, told his girlf riend what had ha ppened, and warned her t hat he was going back onto the porch. He stated that

he had once been threatened with a “drive-by” shooting by
some teenagers, andhe feared that the people who had been standing outside of his house that

evening might return. Whi le on the p orch, he saw Lockridge walking down the stre et. He stated tha t while walking towa rd the Defend ant’s home, Lockridge askedhim, “Where’s it at?” He stated that he interpre ted this to mean that Lockri dge was looking for drugs. The Defendan t reported that when he told Lock ridge to “[g]o on ,” Lock ridge re ache d into th e bib of his over alls as he continued to walk toward the Defendant . The Defendantthen hit Lockr idge, and he stated th at Lockri dge “might have swung back.” The Defendant testif ied, “I put
a left-right on him
. Then I hit hi m wit h a l eft . Th en I put anot her

lef t on him
. Then he fell, a nd I kick ed him in the face.” He describe d the incid ent as “a fight” and claimed that Lock ridge wo uld not ad mit it was a mutu al con frontat ion on ly “because he got whooped.” He claimed that he was una rmed during the altercat ion and that he feared Lockridg e might be armed, say ing “Late at ni ght ain’t no telli ng what a junki e got.” He al so admitted t hat although he had put up signs on his proper

ty, he never rep orted to police any of the drug- related incidents in his neigh borho od. He explain ed tha t he co uld not do so because he did not have a phone.4 The spelling of Officer Neal’s name has been approximated. -7- Both Steele and Lockridgewere treated for thei r injuries at t he Williamson Coun ty Medical Center . According t o the te stimony of pol ice offi cers who investi gated this incident, Steele an d Lockri dg e each reported es sential ly the
same version of

events at t he hospitalon August 29 as they late r prese nted in court. Based on in formati on provi ded by th e two victi ms at the hospital, Offi cer David Neal 4 went to the Defendant’s home to i nvestigate. Neal testified that when he arrived, the Defendant refused to communicate his name or date of birth. Neal therefore transpor ted the Defend ant to the hosp ital, where Lockridge identif ied him. Neal testifi ed that whil e he was inside t he Defendant’s home, he did not notice any weapons. In additio n, no weapons were found duri ng a subsequent search of the Defendant’ s home and vehicle.

I. S UFFICI ENCY OF THE EVI DENCE The Defe ndan t first con tends that the eviden ce pre sente d at trial is insuffi cientto support t he j ury’s finding s of guil t. He argues t hat it “should be abun dantly clear that had the Defendant i ntented [si c] to cause serious b odily injury to either

of the victi ms, it woul d appear that he was surely coup led with the ability to do so, if suc h had been his intent. Y et the S tate’s c ase in chief, c learly shows that the Defendant was the per son whom [sic] r

eceived seriousinjuries,
as a resu lt of the a lleged crim ina l episode. ” He argues that there was no corroborat ion of the vi ctims’ cl aims of inj ury and maintains t hat “the S tate sh ould have put fort h evidence of the injuri es received” beyond testi mony offered by the
v ictims. He also points out the fact that n o weapons were f ound in hi s possession. Furthe rmor e, he c laims that the only evidence “tending to connect-8-

the Defendant to t his cri me is that i t was all eged to had [si c] occurred in front of the De fendan t’s home .”

Tennessee Rule of Appell ate Proced u re 13(e) pre scribes t hat “[f ]indings of guilt in cri minal acti ons whether by t he trialcourt or j ury shallbe set aside if the evidence is insuffi cient to support t he findings by the t rier of fact of guilt beyond
a reason able d oubt. ” Tenn. R. App. P. 13(e). In addit ion, because convicti on by
a trier of fact destroys t he presumption of innocence and i mposes a presumption of gui lt , a conv icted c ri mi na l defendant bears the burden of showing t hat the evidence was insu fficient. McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1963);
see also State v. E van s , 838 S.W.2d 185, 191 (Tenn. 19 92) (cit ing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State v . Brown , 551 S.W.2d 329, 331 (T enn. 19 77)); State v. Tug gle , 639 S.W .2d 913, 914 (Tenn. 198 2); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its rev iew of the evidence, an appellate court m ust afford th e State “the strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate inferences

that may be d rawn therefrom .” Tugg le , 639 S.W.2d at 914 (ci ting State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978) ). The courtmay not “reweigh or re-evalu ate the ev idence ” in the reco rd below
. Eva ns , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court find particular c onflicts in the tria l testim ony, the court m ust res olve the m in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W.2d at 914.

We find that t he evidence presented at tri al is su ffic ient to s ustain t he Defe ndan t’s convicti ons. The two vict ims in thi s case testi fied that they had each-9-

been involved in a confr ontation with the Defendant during whic h the Defendant wielded a weap on. Eac h claime d that the D efendant’s aggression was
esse ntially unprovoked and unreci proc ated. M oreover , each victim claimed to have been inju red by the Defen dant, and both were tr eated for t heir inj uries at t he hosp ital. Testim ony by the De fenda nt to the contra ry pres ents a classic question of fact for

considerat ion bythe jury . Upon review of the testimony pr esented at trial, the jury evi dently cr edited the victims ’ accoun ts of their con frontations with the Defendant . We will not di sturb t his concl usion on a ppeal. Inste ad, we resolve the conflicts in trialtest imo ny in favor o f the jury verd ict, see id. , and conclude that ther

e was suffi cient evi dence prese nted at trial to support the verdict.

II. MOTION FOR NEW TRIAL The Defendant next argues t hat the trialcourt err ed by denying hi s motion fornew tria l. The State r espo nds th at bec ause the m otion w as pre matu re, it is
a nulli ty and ther

efore must be deni ed. The Defendant al so allegesthat thetrial judge tol d him that “t he law doe s not app ly in his court ro om [sic].” Apparen tly, he argues that the tr ial j udge m aliciously de nied his m otion for ne w trial “to prevent th e Defe ndant fro m esta blishing a showin g of Judic ial Miscon duct.”

The jury ann ounc ed the verdict in this cas e on A pril 3 , 1998, and the Defendant filed his motion for new tri al on April21, 1998. The sentencing order
was later filed on M ay 29, 19 98. The trial court denied the m otion as prem ature but informed the Defendant t hat the proper time for f ilingthe m otion w as with in thirty days of se ntencing . In his brief, the Defendant cl aims to have f iled a5 In argu ing that his m otion for new trial w as improperly denied, the Defendant cites an older version of the rule, which states that th e moti on should be filed w ithin thirty days o

f the verdict
. The rule was amended in 1985 to con form toTennessee Code Annotated § 40-35- 401. Tenn. R . Crim. P. 33(b) adviso ry commission comments. -10- second motion for new trial“on or around” May 28,1998, but the record does not contain a copy

of a second motion.

Rule 33(b) of the Ru les of Criminal P rocedure controls the time for f iling a motion for new trial. Rule 33(b) states, in pertinent part, “A motion for a new trial shall be made in writ ing, or if made orall y in open c ourt shall be re duced to writi ng, within t hirty

days of the d ate the order of sentence is entered.” Id. 5 We believe that one o f the reaso ns for this ru le is that a de fendan t should notbe required to decide whet her to pursue a new trialuntil such time as the disposit ion of the case is k nown. Only after the sentence is i mposed may the Defe ndan t fully evaluate whethe r it would be approp riate or ben eficial to see k a new trial.
Here, the Defe ndant d id not file his m otion within the techn ical limits of Rule 33(b). However , we find no prejudice to the State from the prematur e fili ng of the motion, nor any reason to conclude that the issues r

aised in t he motion for
new trialshould not be cons idered on appeal . We will ther efore addres s the issue raised i n the Defen dant’ s motion for new trialwhich he now argues on appe al.

We have thorou ghly re viewe d the re cord in this trial a nd find abso lutely no evidence supp orting a ny of the Defe ndan t’s alleg ations of judic ial misc onduc t. We are unable to f ind any comment made by the t rial j udge that “t he law does not apply in his court ro om [sic],” either during an in-c hamber discussion, when the-11-

Defendant alleges t he comment was made, or during the trialitsel f. We conclude thatthe Defendant’ s accusations of judic ial misconduct are ent irely without merit.

III . IN- COURT IDENTIFICATI ONS The Defendant argues t hat the in-cou rt ident ificat ions made of him by the vi cti ms w ere tai nted because of suggestive pretri al identif ication procedures, includi ng the failur

e of poli ce to conduct a pr etriallineup. The Defendant has failedto incl ude this i ssue in his mot ion for new t rial. Therefore, t hi s issue h as been waived. Ten n. R. App. P. 3 (e); see State v. Clinton , 754 S.W.2d 100, 103 (Tenn. C rim. App. 198 8).

IV. SUBSTI TUTION OF COUNSEL The Defendant next ar gues that t he trial court erre d in proce eding to trial despite his res ervatio ns ab out his coun sel’ s fa miliarity wit h his case, and he complains thathis counsel f ailed to file two pretr ial moti ons which he requested. The Defe ndan t failed to includ e this iss ue in h is motion for new trial. Therefore, this issu e has been waived. T enn. R . App. P. 3 (e); see State v. Clint on , 754 S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).

V. INEFFE CTIVE ASSISTANCE OF COUNSEL The sole iss ue rais ed by th e Def enda nt in his motion for new trial whic h he also argues on appeal concerns ineffecti ve assistance of counsel. He contends thathis represe ntation at trialwas defici ent, cit ing a plet hora of all eged errors by his tri al co unsel , Dav id Ki ng, w hich incl udes Mr . Ki ng’s: (1 ) failure to prope rly investigate the case, i ncluding the “val idity of the i dentifi cation procedures used to identify the D efenda nt” and “the testimonyby Ms. Howell”; (2) failure to request-12-

a continuance for furt her preparation because of his l ate involvement in the case; (3) failur e to spend any t ime with th e Defendant in pr eparation f

or the case; (4) failure to object

to an all eged improper statement made b y the trial judge or to
move the court f

or a change of venue following the alleged statemen t; (5) failure to adequately cr

oss-examine the S tate’s w it nesses; (6) failur e to bring “

to the attenti on of the juror

s” the vi ctims’ pr ior cri minal records ; and (7) fai lure to r eveal to the jury

that the Defendant receiv ed a “severe wound”

to his hand w hich he mainta ins was c aused by the victim s.
In determining whether cou nsel provided e ffective assista nce a t trial, the
c o urt must decide whether counsel’s per

formance was “wit hin the range of competence demanded of attorneys in cr imina l c ases.” Baxter v. Rose , 523 S.W .2 d 930, 936 (Tenn. 1975) . To succeed on a clai m that his couns el wa s ineffective at tri al, a petitioner bears the bu rden o f show ing tha t his counsel made
errors so serious t hat the att orney was not

functio ning as counsel as guaranteed under the Sixth Amendment and that the defic ient repr

esentation prejudiced the petitio ner, re sulting in a fa ilure to prod uce a re liable resu lt. Strickland v. Washington , 466 U .S. 668, 6 87 (198 4); Coop er v. State , 849 S .W.2d 744, 747 (Tenn. 1993); Butler v. Sta te , 789 S.W.2d 898, 899 (Tenn. 1990). To sati sfy the second prong , the pe titioner m ust sh ow a re ason able p robab il ity th at, but f or coun sel’s un reaso nable error, the fact finder would have had reas onable doubt regarding petitioner’s g uilt. Strick land , 466 U .S. at 69 5. This reaso nable probab ilitymust be “su fficient to undermine confidence in the outcome .” Harris
v. State , 875 S.W.2d 662, 665 (Tenn. 19 94) (cit ing Strickl and , 466 U.S. at 69 4).-13- When reviewing trial couns el’s actions , this Cou rt should n ot u se the bene fit of hind sight to seco nd-gu ess tria l strateg y and c riticize c ouns el’s tactics. Hellard v. State , 629 S.W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld be judged at the ti me they were made in light of all facts and ci rcumstances. Strickl and , 466 U.S . at 690; see Cooper , 849 S.W.2d at 746.

The Defen dant first arg ues tha t his coun sel failed to adeq uately investigate his case, including the “validity of the identification proced ures us ed to identif y the Defendant.” During an in- chambers discussi on prior to the start of the trial, t he Defendant comp lained tha t King failed to file a motion, whi ch he had requested, to suppress identificatio ns made of him by the v ictims. After f urther discussion, during which King expl ained that he believed he and the Defendant had reached
an agreem ent not to file the motion, th e trialjudge dismiss ed the matter, agreeing with King that t he motion did not have merit. Evidentl y, the Defenda nt now argues that had hi s attorney adequately i nvestigated h is case, he wo uld have de termined that the pr etrialidentificatio n procedures were s uggestive and tha t theyth erefor e irrepa rably ta inted th e iden tification s of the Defe ndan t mad e in court by th e victims.
Sugges tive pretri al ident ificat ion procedures are prohibi ted to avoi d the “primary evil . . . [of] a very substantial l ikeli hood of irr eparable misi dentifi cation” of a defendan t by a witness in court. Neil v. Biggers , 409 U.S. 188, 198 (1972) (citi ng Simmons v. United States , 390 U.S . 377, 384 (1968)).
[T]he factors t

o be considered i n evaluati ng the li kelihood of misiden ti ficatio n include t he opportunit y of the wi tness to vi ew the criminal at the time of

the crime, the witnes s’ degree of attenti on, the-14- accuracy of the witness’prior descript ion of thecriminal , the lev el of certainty demonstrated by t he witness at the confrontat ion, and t he length of time between th e crime and the conf rontati on. Neil , 409 U.S. at

199-200. The centr al question is whe ther under a “total ity of the circumstances, ” the ident ificat ion was rel iable, even t ho ugh the proc edure may ha ve been sugge stive. Id. at 199.
Although one-person showups have ge nerally been criti cized and condemned as being overly suggestiv e, we do not f ind that t he s howup conducted in this case irreparab ly ta inted the victi ms’ in-cour t identificati ons of the Defendant. Both vict ims u nequ ivocally id entified the De fenda nt as th eir assailant

to poli ce on the night of the c rim es, even goingso far as to name the street where h e lived. Mo reover, an d perha ps mo st impor tantly, b oth vi cti ms testif ied that they

had known the Defendant since chil dhood. Underthe se circumstances, wecannot agree t hat the showup conduct ed on the night

of the crimes caus ed “a ve ry subs tantial lik elihoo d of irrep arable mis identifi ca tion” of the Defendant at trial. Simmons , 390 U.S. at 384. Thus, we find no error on the part of Mr. King i n not “inv estigati ng” the matter f urther or in failing to file a m otion to suppress the identifi cations.

The Defendant also contends that had King fu lly investig ated h is case, he would have d iscove red the testim ony of M s. How ell. Again, this i s a matter that
was addressed duri ng the in-c hambers discussi on p r ior to the start of th e trial. During the meeting, King st ated on the record that Vi cky Howell had been
s ubpoenaed as a witness but failed to show up on the morni ng of tri al. King stated that Howellhad testif ied atthe pre limina ry hea ring tha t Cha rles Ste ele told her shortly after t he crime he had cut hi s hand on a knife whi le cleani ng a turtl e.-15-

King offered to s eek a co nti nuan ce of th e cas e until s uch tim e as H owell c ould be proc ured as a wit ness, but t he Defendant elected to proceed to trialwithout How ell’s testim ony. M oreov er, Ste ele ad mitted at trial tha t he told Ms. H owell thathe received hi s injury while cl eaning a turt le. For thes e reasons, t he Defe ndan t’s allega tion tha t his cou nsel fa iled to “in vestiga te” Ms . How ell’s testimony

is merit less. Furt hermore, we fi nd no othe r evidence that Mr. King failed t o adequately i nvestigate the Defendant’ s case.

We find that

the Defendant’ s second and thir d claims of

error are also without merit. Much of the D efend ant’s dissati sfacti on with King’ s representat ion eviden tly stems from the fact that h e claims to hav e hired Kent Br isby, a member
o f the firm in which King prac ticed. The Defendant complains t hat he was not made aware that Ki ng would be han dling hi s trialuntil “during t he date of t he trial.” He contends that King shou ld have requested a cont inuance to f urther investigate the ca se, an d he c laims that Kin g spe nt “abs olutely N O tim e” with h im to prepa re for the ca se.
During the in-cha mbers discussion before trial, t he trialjudge entert ained discussion concerning t he adequacy of t he Defendant’s r epresentat ion. K ing stated that he had di scussed the case wi th Brisby and thatBrisby bel ieved King was in a better positi on to try the case. He al so stated t hat he had spoke n with the Defendant

for t wo hours the ni ght before the t rial, during whic h time they had discussed the two motions requested bythe Defendant. King maintai ned that he believed they were “ clear on” t he motions and ready “to go to war

together. ” The Defendant did notdeny the truth of these statements. Moreover, the Defendant admits in his bri ef that Ki ng was present dur ing at l east one meeting with Bri sby-16-

to discuss the case. During t he in-chambers meeti ng, the Defendant agreed that he did not want to conti nue the case, despite King’s s uggestion t hat he be allowed to find other representation if necessar y. The trialjudge concluded t hat in his experience, King was acompetent attorney and su ggested tha t they move forward with the t rial. In li ght of the se disc ussio ns, we find the Defe ndan t’s second and third allegati ons of error to be meritl ess.

The Defenda nt next contend s that his attorn ey ’s represent ation was inadeq uate because his coun sel failed to object to an improper comment made by the trialjudge, “t he law does not app ly in [this] court ro om [sic],” o r reques t a change of venue followi ng the comment. We have addressed the i ssue of judi cial misconduct above and conclude t hat bec ause w e find no such i mproper comment in the record, Mr. King di d not err by faili ng to request a change of
venue.

The Defendant’s fift h and si xth contentions of errorconcern the crossexaminations

of the victim s. Desp ite the De fendan t’s assertion s to the contrary, King cross-examine d both vi ctims ab out their pe rsonal an d crimina l histories. W e find no defici ency on the part of Mr. King with regar d to the cros s-examinati on of witnesses.
Finally, the De fenda nt argu es tha t his counsel fai led to reveal the fact that he received a “serious wound” t o his hand which was caused bythevi cti ms on the night of the cri mes. However, the Defendant made no mention of any such wound during his

testimony, nor can we find any other re ferenc e to the woun d in the record. Had the D efendant wish ed to reveal this fact, he c ould have done so-17-

hims elf when he took the stand to present his versi on of the event s on August 29, 1997.

Althou gh we find no err or on the part

of Mr. King, we are convinced tha t any er ror which may ha ve been made did not pre judice the Defen dant. W e cannot agree that ha d Mr. King pro ceeded d ifferently, the jury w ould have had
reaso nable doubt regardi ng the Defendant’ s guilt . The Defendant poi nt s to no further evidence to support s uch a findingand has shown no prejudi ce result ing from the erro rs that h e alleg es Kin g ma de. Th is issue is therefor e without

merit.

VI. IMPROPER STATEMENTS DURING CL OSING ARGUMENTS The Defendant arguesthatthe prosecutor made improper and prej udicial remarks during his

closing ar

gu ment. However, t he record does not contain a transcri pt of closing a rgume nts. The appellant bear s the burden of prepari ng a comp lete record o n appe al. Tenn . R. App . P. 24(b). In additi on, the Defendant failedto include thi s issue in his m otion for new trial . Therefore, this i ssue has been waived. Te nn. R. App. P . 3(e); see State v. Clinton , 754 S.W.2d 100, 103 (Tenn. C rim. App. 198 8).

VII . JUR Y INS TRUCTION The Defendant contends that the j ury inst ruction on “reason abl e doub t”
was constit utionally infi rm, and he also complai ns thatthe tri al court f ailed to read the instr uct ion s al oud t o th e ju ry, mere ly

hand ing the m a copy instead. Again, the Defendant has failed to includ e this issue in hi s motion for new trial . Therefore,6 The order granting the Defendant’s motion for transcripts and records and appointing an attorney, which is dated one day after the technical record was filed with this Court, is not includedin the technical record
. However, the Defendan t has attacheda copy of the order to his brief
. -18- this issuehas been waive d. Tenn. R. App. P. 3(e); see State v. Clinton , 754 S.W .2d 100, 103 (Tenn. Crim . App. 1988 ).

VIII . ACCESS TO RECORD FOR APPEAL The Defenda nt complains t hat he was denied access to tri al transc ripts and otherrecor ds nece ssary to perfect hi s appeal. As the State explai ns, “[a]pparently, the problem stems from Williamson County’ s policy of pr eparin g video transcripts, which are deeme d contraban d at the facility where [ the Defen dant] is being h oused .” In respon se, the S tate points out that t he trialcourt not only gra nted th e Def enda nt’s motion for tran scripts and re cords from th e trial, but also appointed an attorney to assist

the Defendant wi th h is ap peal. 6 The State main tains th at the a ttorney “could argua bly [hav e] prov ide[d] a ssista nce in viewing thevi deotapes from t he trial in order to p rovide [the Defen dant] with approp riate citations to the reco rd.”

A criminal defendant proceeding pro se on appeal, havi ng been granted permission to do so by the tri al court, certainly must not be deni ed access to the full record of his tri al, regardlessof the recor d’s format. However, whil e we agree thata defendant must be allowed access to all r ecords and transc ripts, the Defendant in this case has not demonstrated prejudice resulti ng from having been denied an opp ortunity to personall y view t he videotape t ranscript of the tria l. He has not specified what i nformation he was denied. Thus, in light of the appointmentof cou nsel to aid the Defe ndan t on ap peal a nd the Defe ndan t’s-19-

failure t o show prejudice resulti ng from his inabili ty to view t he tapes, w e conclud e that this iss ue is witho ut merit.

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

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE