                                                                                       06/16/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs March 7, 2017

               STATE OF TENNESSEE v. MARCUS PUCKETT

                 Appeal from the Criminal Court for Shelby County
                      No. 11-05251    John Campbell, Judge


                           No. W2016-00353-CCA-R3-CD


The defendant, Marcus Puckett, appeals his Shelby County Criminal Court jury
conviction of driving under the influence (“DUI”), claiming that the trial court erred by
permitting the State to play the video recording of the defendant’s traffic stop in its
entirety in violation of his constitutional rights. Discerning no error, we affirm the
judgment of the trial court.

           Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Claiborne Ferguson, Memphis, Tennessee, for the appellant, Marcus Puckett.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Michael McCusker, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

             Following a 2013 jury trial, a Shelby County Criminal Court jury convicted
the defendant of one count of DUI. On appeal, this court reversed the defendant’s
conviction and granted a new trial based upon the trial court’s failure to suppress the
results of a breath alcohol test because the State failed to comply with the Sensing
requirements. See State v. Marcus Puckett, No. W2013-02556-CCA-R3-CD, slip op. at 1
(Tenn. Crim. App., Jackson, Nov. 20, 2014) (citing State v. Sensing, 843 S.W.2d 412
(1992)).

             At the defendant’s second trial, Officer Joshua Shultz of the Germantown
Police Department testified that at approximately 3:00 a.m. on November 28, 2010, he
was working as part of the Shelby County Sheriff’s Office Metro DUI Task Force when
he observed a green Cadillac “stopped at a green light at Houston Levee and Macon.” He
watched the vehicle “accelerate rapidly” before swerving in its lane several times.
Officer Shultz activated his emergency equipment. The vehicle pulled over in an open
space and then continued to roll forward until Officer Shultz sounded his siren. After the
car stopped, Officer Shultz approached the driver’s side and tapped the window to get the
driver to roll the window down.

               The defendant, who was shirtless and covered in blood, was sitting in the
driver’s seat, and Kanisha Hutchison was seated in the passenger’s seat. The windshield
of the vehicle was completely shattered. When Officer Shultz asked the defendant to exit
the vehicle, he immediately noticed a strong odor of alcohol coming from the defendant’s
person. In addition, the defendant swayed on his feet, his clothing was disheveled, his
eyes were glassy and watery, and he was speaking incoherently. At one point, Officer
Shultz called emergency medical services to examine the defendant. After the defendant
was cleared by medical personnel, Officer Shultz continued to question the defendant in
an attempt to discern how the defendant came to be covered in blood and how the
windshield came to be shattered. The defendant’s girlfriend, Kanisha Hutchison,
eventually told Officer Carolyn Chambers, who had come to assist in the investigation,
that the defendant had smashed the windshield with his fist.

               Officer Shultz testified that he did not ask the defendant to perform field
sobriety tests because it was too cold outside for the shirtless defendant to perform the
tests and because the defendant was “obviously drunk.” Instead, he arrested the
defendant for DUI. He reiterated that the defendant was stopped at a green light when he
first observed him, that he smelled of alcohol, that he had watery, glassy eyes, and that he
was unsteady on his feet. Additionally, Officer Shultz recalled that the defendant spoke
incoherently and, at one point, defecated on himself.

               The State exhibited to Officer Shultz’s testimony the video recording of the
traffic stop. The first 45 minutes of the recording was played for the jury.

              Based upon this evidence, the jury convicted the defendant of DUI.

              The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant argues that the trial court erred
by permitting the State to play “the entire video in its unedited form” of the defendant’s
traffic stop, including portions that had been declared inadmissible prior to the
defendant’s first trial. The State contends that the defendant waived the issue by
acquiescing to the prosecutor’s pretrial request to play the first 45 minutes of the video
and by failing to lodge an objection when the State introduced the video at trial. The
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defendant also argues that the introduction of the video recording in light of the previous
ruling amounted to prosecutorial misconduct. The State argues that the defendant waived
this issue by failing to include it in his motion for new trial.

                We agree that the defendant has waived consideration of both issues. The
record does not include the ruling of the trial court prior to the first trial excluding
portions of the video or any other indication of which portions, specifically, were
redacted. Without this information, we cannot say, definitively, that the video recording
played during the second trial included those portions of the video previously deemed
inadmissible. We do observe that, contrary to the assertion in the defendant’s brief, “the
entire video in its unedited form” was not played for the jury. Only 45 minutes of the
more than two hours of footage was played at trial. In any event, the defendant, as the
appellant bore the burden to prepare an adequate record for appellate review, see State v.
Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), and, in the absence of an adequate record,
this court must presume the trial court’s ruling was correct, see State v. Richardson, 875
S.W.2d 671, 674 (Tenn. Crim. App. 1993). Without the benefit of the trial court’s ruling,
we cannot say conclusively that the video recording played for the jury during the
defendant’s second trial failed to comply with the court’s order. Thus, we must presume
that the trial court did not err by permitting the State to play the first 45 minutes of the
recording.

              The defendant also waived our consideration of this issue by acquiescing to
the State’s plan to play the first 45 minutes of the video recording, by failing to lodge a
contemporaneous objection to the video recording, and by utilizing the video recording in
his own case-in-chief. Prior to the second trial, the parties discussed the video recording.
After some back and forth about what portion of the video was played at the first trial, the
State indicated its intent to play the first 45 minutes of the video:

                      [Prosecutor]: We plan to introduce the first 45-
              minutes, which shows the [d]efendant driving, being stopped,
              initial contact with the officers, being looked at by EMT.
              And 45-minutes before Officer Shultz begins to read him the
              Implied Consent and commence the testing we’re stopping
              before that happens.
                      ....
                      Leaving completely out of the presence of the Jury that
              anything happen[ed] after 45-minutes.

                     THE COURT:           Okay.

                     [Defense Counsel]: Okay. Good.
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                     THE COURT:            Everybody is good?

                     [Defense Counsel]: Yes.

The defendant clearly agreed, notwithstanding any previous rulings of the trial court, that
the State would be allowed to introduce the first 45 minutes of the video. In
consequence, he cannot now be heard to complain that the court erred by allowing the
State to do exactly what the defendant agreed that it could do. See Tenn. R. App. P.
36(b) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”).

              In addition, the defendant failed to lodge a contemporaneous objection
when the video recording was offered into evidence at trial. See Tenn. R. Evid.
103(a)(1); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988)
(waiver applies when the defendant fails to make a contemporaneous objection); State v.
Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6,
11-12, 18 (Tenn. Crim. App. 1987). We note that, not only did the defendant fail to
object to the video recording, he utilized it throughout his cross-examination of both
officers and referenced it more than once during his closing argument.

               With regard to the defendant’s claim that the playing of the video amounted
to prosecutorial misconduct, we observe that the defendant failed to raise this claim in his
motion for new trial and, instead, raises it for the first time on appeal. Consequently, it is
waived. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for
review shall be predicated upon error in . . . [any] ground upon which a new trial is
sought, unless the same was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived.”); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.
1997) (holding that a defendant relinquishes the right to argue on appeal any issues that
should have been presented in a motion for new trial but were not raised in the motion);
State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the
first time on appeal are considered waived.”).

              Accordingly, we affirm the judgment of the trial court.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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