         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs November 28, 2001

                 JOSEPH AZELL LEE v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hamilton County
                           No. 233698    Stephen M. Bevil, Judge



                                   No. E2001-00424-CCA-R3-PC
                                          March 5, 2002

The petitioner appeals from the Hamilton County Criminal Court’s denying him post-conviction
relief from his 1998 conviction for the attempt to commit aggravated assault and ensuing twelve-year
sentence as a career offender. He contends that he received the ineffective assistance of counsel.
We affirm the conviction.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Jeffrey S. Schaarschmidt, Chattanooga, Tennessee, for the appellant, Joseph Azell Lee.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
William H. Cox, III, District Attorney General; and Barry A. Steelman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        The petitioner’s conviction arose from an altercation in 1996 between him, as a prisoner, and
Hamilton County Sheriff’s Officer Ronald Rice after the petitioner’s trip to the health department
for an examination. Originally charged with aggravated assault and attempted escape, the petitioner
was convicted of attempted aggravated assault and attempted escape, which this court affirmed on
appeal by order pursuant to Rule 20, Tenn. Ct. Crim. App. R. State v. Joseph Azell Lee, No. 03C01-
9810-CR-00369, Hamilton County (Tenn. Crim. App. Aug. 6, 1999) (order), app. denied (Tenn.
Dec. 13, 1999).

         In seeking post-conviction relief, the petitioner faults his trial attorney for not being able to
introduce into evidence inconsistent statements by Officer Rice, the victim, because of the attorney’s
failure to follow proper evidentiary procedure. He also complains that although his defense was that
he did not assault the victim and evidence was introduced indicating that he was preventing the
victim’s assault on him, his attorney did not request a self-defense instruction.

        Initially, the state contends that the petitioner’s appeal must fail because neither the victim’s
purportedly inconsistent statements nor the convicting trial transcript are included in the record on
appeal. It notes that the appellant must prepare a record that presents a complete account of what
occurred in the trial court regarding the issues presented for review. The record reflects that out-of-
court statements by police officers regarding the victim’s statements were introduced as exhibits at
the post-conviction hearing. It also reflects that the petitioner relied upon the trial transcript in that
hearing. Neither the exhibits nor the trial transcript are before us in the record on appeal.

         Counsel for the petitioner replies that he believes the transcript was filed with this court “as
part of the greater record in this cause” and that it would be “superfluous and . . . contrary to the
Rules of Appellate Procedure,” citing Rule 24(a) regarding no need to include something in a record
more than once. He asserts that the state has failed to show any prejudice “suffered by [itself] or the
appeal process.” He also cites to Rule 1, T.R.A.P., regarding the rules being construed “to secure
the just, speedy, and inexpensive determination of every proceeding on its merits,” noting, as well,
that in the “spirit of enhancing and not impeding the search for justice,” this court may order the
filing of a transcript. See T.R.A.P. 26(b). Finally, counsel asserts that even without the record, the
issues can be decided based upon the record before the court, noting in particular that the petitioner’s
trial attorney admitted he did not request a self-defense jury instruction. We note that the petitioner
has sought neither to supplement the record nor to consolidate it with any previous record on appeal.
We also note that the petitioner’s brief reflects that counsel had a copy of the trial transcript to which
he cited in the brief, although not using this court’s volume number designations.

         We believe that the petitioner misapprehends the need for rules of procedure and for
complying with them in order to accomplish the efficient administration of justice. The appellate
rules adopted by the supreme court, and essentially devised by an advisory commission primarily
consisting of practicing attorneys, are, indeed, intended to secure just, speedy, and inexpensive
resolutions of appeals on their merits. However, such a resolution occurs only when all participants
in the appellate system comply with their obligations under the rules. In this respect, the petitioner’s
failure to provide an adequate record on appeal has impeded, as a practical matter, the most efficient
and full analysis by the state of the issues presented. This is because the appellate court clerk sent
only the record on appeal in this case to the attorney general’s office. In this respect, we note that
the state’s handling of the self-defense issue is bare of any factual analysis because of this fact.

         We acknowledge that the record on appeal in the petitioner’s appeal of his conviction exists,
but without the petitioner seeking to consolidate it with this appeal, the court system was not on
notice to retrieve that record and keep it with the present record. Moreover, without the exhibits in
the present case being made part of the record on appeal, there is no way for the state or us to
determine with certainty whether they are the same statements that were at issue at the petitioner’s
trial. And the fact that the trial attorney said he did not request a self-defense instruction does not
tell us the actual instructions given. Thus, the opposing party and the court are made less efficient

                                                   -2-
in the ultimate goal of resolving the case on the merits because the petitioner has not met his
obligations under the rules.

         As an intermediate appellate court, we are bound to accept and resolve any case appealed to
us that is within our jurisdiction. The petitioner’s lack of compliance with the rules affects the
efficiency of the system to resolve the case. However, solely to do complete justice to the petitioner
in this post-conviction case, the only one the law allows him, we take judicial notice of the record
on appeal from the petitioner’s appeal of his conviction.

         At the convicting trial, Officer Rice testified that after the petitioner’s physical examination,
he was taking the petitioner to the cruiser. He said that he went to the side of the petitioner in order
to open the rear passenger door but that as he opened the door, he felt something hit him. He then
saw the petitioner holding him and he tried to get the petitioner off him. Officer Rice testified that
in the struggle, the petitioner bit him on the shoulder blade. Still struggling, Officer Rice felt his belt
and handgun moving and placed both hands on top of the petitioner’s hand, which was on the gun,
and pushed down hard in order to keep the gun holstered. He said that while both his hands were
so occupied, the petitioner hit him in the face several times. A Chattanooga police officer arrived
and helped subdue the petitioner and handcuff and shackle him again. Officer Rice testified that a
search of the petitioner uncovered a handcuff key and a “homemade” weapon, called a “shank,” in
the petitioner’s sock.

         Two employees of the health department saw the altercation from the building. They both
testified that Officer Rice’s hands, not the petitioner’s, were on the gun. However, both said that the
petitioner was attempting to draw or gain control of the weapon while Officer Rice was trying to
keep it holstered. One heard Officer Rice say, “Joe, don’t do this, please, don’t do this.”

         Chattanooga Police Officer Patrick O’Brien testified about coming to Officer Rice’s aid and
finding a handcuff key and a “shank” in the petitioner’s sock. A corrections officer for the Hamilton
County jail testified that because the petitioner refused to be searched and demanded to speak with
a sergeant, the petitioner was not searched before his trip to the health department. The sergeant
testified that he did not search the petitioner but performed a quick frisk. Although he did not find
anything, he admitted that items could have been in the petitioner’s shoe and would not have been
found during the frisk.

        The trial court dismissed the aggravated assault charge and submitted the case to the jury
regarding an attempted aggravated assault and misdemeanor assault. After his conviction, the
petitioner appealed. The sole issue raised by the petitioner’s attorney was that the trial court erred
in submitting the attempted aggravated assault charge to the jury when the evidence only supported
a misdemeanor assault.

       When a claim of ineffective assistance of counsel is made, the burden is upon the petitioner
to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial in
terms of rendering a reasonable probability that the result of the trial was unreliable or the

                                                   -3-
proceedings fundamentally unfair. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); State v. Melson, 772 S.W.2d 417, 419 (Tenn. 1989). In Tennessee, attorneys
are to be held to the general standard of whether the services rendered were within the range of
competence demanded of attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). In reviewing an attorney’s conduct, a “fair assessment of attorney performances
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982) (holding that counsel’s conduct will not be measured by “20-20
hindsight”). Also, we note that the approach to the issue of the ineffective assistance of counsel does
not have to start with an analysis of an attorney’s conduct. If prejudice is not shown, we need not
seek to determine the validity of the allegations about deficient performance. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069.

        The burden was on the petitioner in the trial court to prove by clear and convincing evidence
the factual allegations that would entitle him to relief. Tenn. Code Ann. § 40-30-210(f). On appeal,
we are bound by the trial court’s findings of fact unless we conclude that the evidence in the record
preponderates against those findings. See Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). In
this respect, the petitioner has the burden of illustrating how the evidence preponderates against the
judgment entered. However, we review the trial court’s conclusion regarding the effectiveness of
counsel de novo because it involves a mixed question of law and fact. See Fields, 40 S.W.3d at 458.

         At the post-conviction hearing, the petitioner complained about his trial attorney’s inability
to introduce prior statements by Officer Rice that the petitioner claimed were inconsistent with each
other and Officer Rice’s trial testimony. The trial record reflects that Hamilton County Sheriff’s
Detective Chris Chambers prepared the affidavit of complaint against the petitioner and a
supplemental report, both of which were based upon interviews with Officer Rice. Also, a Jail
Incident Report was prepared based upon an interview with Officer Rice. The trial attorney did not
question Officer Rice regarding these statements. Instead, he sought to have Detective Chambers
testify about Officer Rice’s statements to him. The trial court sustained the state’s objection to the
evidence, holding that before the petitioner could prove Officer Rice’s prior statements through
Detective Chambers, he should have confronted Officer Rice with the statements during cross-
examination.

        The petitioner argues that given the importance of Officer Rice’s credibility, his attorney
should have introduced the inconsistent statements. The attorney testified that he still believed that
the procedure he used for the statements was proper but, in any event, he believed any
inconsistencies among Officer Rice’s testimony and prior statements were insignificant. The trial
court agreed with this view of the importance of the impeachment evidence. We agree. The only
inconsistencies to which the petitioner specifically refers relate to one statement saying that Officer
Rice was attacked and pushed to the car, another statement saying that Officer Rice was pushed to
the hood of the cruiser, and the third statement saying that the petitioner “jumped” Officer Rice. We
note, though, that Officer Rice’s testimony at trial did not include any of the supposed inconsistent

                                                 -4-
statements. The only relevant testimony was that he felt something hit him and saw that the
petitioner was holding him. Under these circumstances, we believe that the inconsistencies are
inconsequential. Moreover, with the prior statements reflecting harsher action by the petitioner, we
see no real possibility that the failure to use them was harmful to the petitioner.

        Next, the petitioner complains that his trial attorney failed to request a self-defense
instruction. He notes that the attorney argued to the jury that one could reasonably infer from the
evidence about Officer Rice’s hands on the gun with the petitioner’s hands on his hands that the
petitioner was trying to keep the gun holstered. The state replies that the petitioner has waived this
issue because neither the jury instructions nor the trial transcripts have been provided on appeal. It
also argues that there was no evidence to support a request for self-defense instructions.

         In Tennessee, the law of self-defense is fundamental to a case when the evidence fairly raises
it as an issue. See Myers v. State, 185 Tenn. 264, 268, 206 S.W.2d 30, 32 (1947). Moreover, the
general rule is that the failure to give a fundamental instruction is reversible error even though no
request for such an instruction is made. See Poe v. State, 212 Tenn. 413, 416, 370 S.W.2d 488, 489
(1963); Morrison v. State, 212 Tenn. 633, 638, 371 S.W.2d 441, 443 (1963). However, we do not
believe self-defense was fairly raised by the evidence. Officer Rice and the two health department
employees testified that the petitioner was attempting to pull Officer Rice’s gun from the holster,
while Officer Rice was attempting to keep the gun holstered. The petitioner’s handcuffs and leg
irons had been unlocked, and the petitioner was found with a weapon and a handcuff key. The only
thing to which the petitioner alludes is the mere fact that two witnesses placed Officer Rice’s hands
on the gun with the petitioner’s hands on top. Given the remaining evidence, we do not believe that
this fact, alone, would justify a self-defense instruction.

         In any event, we do not believe that the failure to instruct on self-defense satisfies the
prejudice prong of Strickland. The evidence overwhelmingly shows that the petitioner tried to
escape, assaulted Officer Rice, and attempted to get his gun. We see no reasonable probability that
the jury verdict would have been different if the jury had been instructed regarding self-defense. The
trial attorney’s theories of defense were that the petitioner did not assault Officer Rice, but if he did,
it was only misdemeanor assault. To convict the petitioner under the allegations in the indictment,
the jury had to conclude beyond a reasonable doubt that the petitioner was attempting to obtain the
gun in order to threaten the officer. Such a finding under the proof, coupled with the finding that
the petitioner attempted to escape, reflect that the jury fully believed the state’s witnesses. We
conclude that the trial court properly determined that the petitioner did not receive the ineffective
assistance of counsel.

        In consideration of the foregoing and the records before us, we affirm the judgment of the
trial court.


                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE

                                                   -5-
