        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                           AT KNOXVILLE                          July 7, 1999

                                                              Cecil Crowson, Jr.
                      DECEMB ER SESSION, 1998                 Appellate C ourt
                                                                  Clerk



STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9807-CC-00243
                           )
      Appellee,            )
                           )
                           )    COCKE COUNTY
VS.                        )
                           )    HON. J. KENNETH PORTER
JAMIE DWAYNE REED,         )    JUDGE
                           )
      Appe llant.          )    (Dire ct Ap pea l - Volunt ary
                           )    Manslau ghter)




FOR THE APPELLANT:              FOR THE APPELLEE:

CARL R. OGLE, JR.               JOHN KNOX WALKUP
P. O. Box 129                   Attorney General and Reporter
Jefferson City, TN 37760
                                ERIK W. DAAB
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                AL SCHMUTZER, JR.
                                District Attorney General

                                W. BROWLOW MARSH
                                Assistant District Attorney
                                339 East Main Street
                                Newport, TN 37821



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                                OPINION

         On September 25, 1990, a Co cke Cou nty jury convic ted Ap pellan t Jam ie

Dwayn e Reed of voluntary man slaughter.                            Th at same d ay, the trial court

sentenced Appellant as a Range I standard offender to a term of five years in the

Tennessee Depa rtment o f Correc tion. Appellant filed a motion for a new trial on

October 19, 199 0, and the trial court de nied the motion on October 22, 1990.

Appellant filed notice of appeal on October 22, 1990. Apparently, no further

activity occurred in this case until September 25, 1997, when the State filed a

motion to revoke Appellant’s bond because he had failed to file notice or perfect

an appeal in this Co urt 1 .             Appellant filed a motion to reinstate his bond on

February 18, 1998, and the trial court reinstated bond on April 8, 1998. On

appe al, Appe llant ch alleng es bo th his conviction and his sentence, raising the

following issues:

         1)   whether the evidence was sufficient to support his conviction;
         2)   wheth er the jury w as prejud iced by a c omm ent ma de by a b ailiff;
         3)   whether the trial court imposed an excessive sentence; and
         4)   whether the trial court should have imposed probation.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.




         1
           The delay in this homicide case of approximately nine years between conviction and the hearing
of this appeal is nothing short of disgraceful. It is beyond belief that the Cocke C ounty Circuit Court
Cler k’s o ffice did no t mo nitor th is app eal as it sho uld ha ve. W hat is even mo re inc redib le and distu rbing is
that the Office of the District Attorney failed to take action to revoke Appellant’s bond in a homicide case
until six years a fter the tim e for perf ecting an appea l had elaps ed.

                                                        -2-
                                                I. FACTS 2




        Officer Lynn Shults of the Newport Police Department testified that he was

called to the scene of a wreck at the Eastport Exxon Station on October 4, 1989.

When Shults arrived, he received information that so meon e had b een sh ot.

Shults subsequently entered the Eastport Market and found the victim, Jonathan

Hicks, lying on his back. After determining that Hicks had no pulse, Shults saw

that Hicks had car keys in his hand and that there was a trail of blood between

Hicks a nd a ca r.



         Ed Thompson testified that while he was at the Eastpo rt Market, a car sped

through the car was h, mad e a u-turn , and hit a white car, m aking a lo t of racket.

Shortly thereafter, Thompson heard what sounded like three firecrackers going

off. Thompson then saw a man with blood coming out of his mouth run into the

store, grab a ca ndy rack, and fall to the floor.



         According to the autopsy report of Doctor Cleland Blake, Hicks died from

internal hemorrhaging caused by a single gunshot wound to the chest. At the

time of dea th, Hick s had an eth yl blood alcohol level of “0.10 gms 90” and had

trace am ounts o f diazepa m and nordiaze pan in his system .



         Detective Jimmy Gregg of the Newport Police Department testified that

when he arrived at the scene at 9:18 p.m., he only found Hick’s car. Gregg then


        2
           During the approximately eight years between the notice of appeal and the filing of the record and
briefs in this case, the tapes of Appellant’s trial, the hearing on his motion for a new trial, and the
sentencing hearing were lost and thus, no transcript of the evidence could be prepared. Therefore,
App ellant filed a state me nt of th e evid enc e and an am end ed st atem ent o f the e viden ce pu rsua nt to R ule
24(c) of the Tennessee Rules of Appellate Procedure.

                                                      -3-
went to Cocke County Baptist Hospital where Appellant had been transported by

Officer James Holt. After Appellant received treatment for two stab woun ds to h is

left arm, Appellant signed a waiver of his Miranda rights. Appe llant su bseq uently

gave a statement to the police that was introduce d into eviden ce alo ng with his

waiver of rights form. A knife that was recovered from Appellant’s car was also

appare ntly introduc ed throu gh the tes timony o f Detective Gregg .



       In the statement that he gave to police, Appellant said that while he was

at the service station, Hic ks drove up and crashe d into Ap pellant’s ca r. Appellant

then demanded that Hicks pay for the damage and when Hicks refused, the two

began fighting. At some point, Hicks stabbed Appellant in the arm. Appellant

subseq uently went back to his vehicle, opened the door, pulled a gun out from

under the driver’s seat, and then shot Hicks. Appellant then left the scene and

threw the gun in a rive r. Appellan t later turned himse lf in to the police .



       At trial, Appellant testified that he was parked at the car wash when Hicks

crashed into his car. The two men got into an argument about the damage and

they eventually began fighting. Hicks subsequently stabbed Appellant twice, and

Appellant retrieved a gun fro m his car. App ellant then fired two wa rning sho ts

into the air. Hicks then opened the passenger door of his car, and Appellant shot

Hicks in order to disable him because Appellant believed that Hicks was

attempting to get a gun. Appe llant then left the scene , threw the gun into a river,

and the n turned himse lf in to the police .




                                          -4-
                      II. SUFFICIENCY OF THE EVIDENCE




       Appellant contends that the evidence was insufficient to support his

conviction. When an appellant challenges th e suffic iency o f the evid ence , this

Court is obliged to review that challenge according to certain well-settled

principles. A verdict of guilty by the jury, approve d by the trial jud ge, accre dits the

testimony of the S tate’s w itness es an d reso lves all conflicts in the testim ony in

favor of the Sta te. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94). Although

an accuse d is origina lly cloaked with a presumption of innocence, a jury verdict

removes this presumption and replaces it with one o f guilt. State v. Tug gle, 639

S.W.2d 913, 91 4 (Ten n. 1982 ). Hence , on app eal, the bu rden of p roof rests with

Appellant to dem onstra te the in sufficie ncy of the convictin g eviden ce. Id. On

appe al, “the [S]tate is entitled to the strongest legitimate view of the evidence as

well as all reas onable and legitim ate inferen ces that may be dra wn there from.”

Id. Where the sufficiency of the evidence is contested on appeal, the relevant

question for the reviewing court is wh ether any rationa l trier of fact could have

found the accused guilty of ever y elem ent of th e offen se be yond a reaso nable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979). In conducting our evaluation of the convicting evid ence , this

Court is preclud ed from rewe ighing or re conside ring the ev idence . State v.

Morgan, 929 S.W .2d 380 , 383 (T enn. C rim. App . 1996). M oreover , this Court

may not substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Te nness ee Ru les of Ap pellate Procedure

provides, “finding s of gu ilt in crim inal actions whe ther by the trial court or jury




                                           -5-
shall be set as ide if the evide nce is insu fficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



       In this case , Appella nt was co nvicted of vo luntary m anslau ghter. At the

time of the shooting, manslaughter was defined as “the unlawful killing of another

without malice, either express or implied, which may be voluntary upon a sudden

heat, or involuntary, but in the commission of some unlawful act.” Tenn. Code

Ann. § 39-2-221 (1989). “[V]oluntary manslaughter is when one kills another

upon a sudden heat, produced by adequate provocation without malice, an d is

an act of passion ra ther than judgm ent.” State v. Morgan, 541 S.W.2d 385, 390

(Tenn. 1976). Furthermore, a homicide that results from mutual combat has also

been recognized as volunta ry man slaugh ter by Te nness ee cou rts. See State v.

Johnson, 909 S.W .2d 461 , 464 (T enn. C rim. App . 1995); Wrig ht v. State, 497

S.W .2d 588, 592 (Tenn. Crim . App. 1973 ).



       It is clear that the ele ments of the offense of volun tary manslau ghter were

proven by the State.      Indee d, the evidence showed that after a car wreck,

Appellant and H icks en gage d in a heated argument, Appellant and Hicks began

fighting, Hicks stabbed Appellant in the arm, Appellant returned to his car and

retrieved a gun , and A ppella nt then shot a nd killed Hicks. Appellant does not

challenge these fac ts.      Rathe r, Appellant contends that the evidence was

insufficient to support his conviction because the State failed to ne gate his claim

that he ac ted in self-d efense .



       At the time of the sh ooting, the app licable self-defense statute provided

that a party could prevent an offense against his person by employing “resistance

                                           -6-
sufficient to preven t the offens e.” Tenn. Code A nn. § 38-2-10 2 (1989). Furthe r,

in order to excuse a homicide on the ground of self-defense, the defendant must

show that at the time of the killing he or she was acting upon a well-founded fear

of death or great bodily harm, an d that th e actio ns tak en we re nec essa ry in

self-defense. See State v. Wilson, 556 S.W.2d 232, 234 (Tenn. 1977). The

State had the burden of negating the claim that the ac cuse d acte d in

self-defense. See, e.g., Henley v. State, 520 S.W.2d 361, 363 (Tenn. Crim. App.

1974). 3 Wh ether th e defe ndan t acted in self-d efens e is a factual determination

to be ma de by the jury. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App.

1997); State v. Ivy, 868 S.W .2d 724, 727 (Tenn. Crim . App. 1993 ). The jury

obviously rejected Appellant’s claim of self-defense.



        Appellant contends that the State failed to introduce any evidence that

contra dicted his testimony that he only sh ot Hick s bec ause Hicks was a cting in

a way that c aused him to be lieve that H icks was attempting to ob tain a gun to

shoot him. Howe ver, the State introduced Appellant’s signed statement that he

gave to police in which he admitted shooting Hicks after argu ing and fighting with

him. In this statement, Appellant did not claim that he shot Hicks in self-defense

and he made no mention of any belief that Hicks was attempting to retrieve a gun

to shoot him . Appellan t also ma de no m ention of firing any warn ing shots at

Hicks. Instead, Appellant stated that he had shot Hicks and he was not sure how

many times he ha d sho t him.              T his sta teme nt in wh ich Ap pellant made no

mention of self-defense or the belief that Hicks was attempting to retrieve a gun,




        3
        The S tate retains this burde n unde r curren t law. See, State v. Belser, 945 S.W.2d 776 (Tenn.
Crim. App. 1996).

                                                  -7-
provides a sufficient basis for a rational juror to conclude that Appellant did not

act in self-defense.4



          In summary, the evidence established that Appellant shot and killed Hicks

after arguing and fighting with him about the damage to his car. Thus, we

conclude that whe n the evid ence is viewed in the light most favorable to the

State, a rational jury could find beyond a reasonable doubt that Appellant had

comm itted the offe nse of vo luntary m anslau ghter. Th is issue ha s no m erit. 5



                                 III. COMMENT FROM THE BAILIFF




          Appellant contends that the jury was prejudiced as a result of a comment

from the bailiff.



          The record indicates that during delibera tions, the jury advised the b ailiff

that it had a leg al questio n for the co urt. Wh en the b ailiff was asked whether one

juror could go in and ask the court the question, the bailiff responded that all of


          4
            Appellant contends that the State’s introduction of pre-trial statement did not rebut his claim of
self-defense because the statement was entirely consistent with his testimony at trial. While it true that
the jury was entitled to co nclude th at the two s tatem ents we re cons istent, the jury w as also e ntitled to
conclude that the two statemetns were contradictory and that the pre-trial statement was the one which
was worthy of belief. Indeed, the determination of whether the two statements were consistent or
contradictory and whether Appellant had been untruthful when he gave either of the statements was
strict ly for th e jury. It is well- esta blishe d tha t “[t]he cred ibility of th e witn ess es, th e we ight to be giv en th eir
testimony, and the recondiliation of conflicts in the evidence are matters entrusted excusively to the jury at
the triers of fact.” State v. Cribbs, 967 S.W .2d 773, 793 (Tenn. 1998 ).

          5
            Appellant also contends, for the same reasons that he contends that the evidence was
insufficient to support his conviction, that the trial court erred when it denied his motion for judgment of
acquittal. “When the trial court is presented with a motion for judgment of acquittal, the only concern is the
legal sufficiency, as opposed to the weight, of the evidence.” State v. Blanton, 926 S.W.2d 953, 957
(Te nn. C rim . App . 199 6) (c itation om itted). “To d eterm ine w heth er the evide nce is insu fficie nt to s usta in
the conviction, the trial court must consider the evidence introduced by both parties, disregard any
evidence introduced by the accused that conflicts with the evidence adduced by the State, and afford the
State the strongest legitimate view of the evidence, including all reasonable inferences which may be
drawn from the eviden ce.” Id. at 957–58 (citation and internal quotations omitted). For the same reasons
that we conclude that the evidence was sufficient to support Appellant’s conviction, we conclude that the
trial co urt pr ope rly den ied th e m otion for ju dgm ent o f acq uittal.

                                                            -8-
the jurors must go into open court to ask the question . The ba iliff was then asked

what would happen if the jury could not agree on a verdict, a nd the b ailiff

responded that there was a possibility that the jury could be sequestered

overnigh t. The bailiff then left to inform the co urt that the jury had a question.

Five minutes later when the b ailiff had gathered the jury into the court room, the

jury inform ed the co urt that it had reache d a verdic t.



       In its order denying the motion for a new trial, the trial court found that

although the bailiff’s comment was improper, the error was harmless. The trial

court based this determ ination on its findings of fact that the jury had only been

deliberating for forty-five minutes when the comment was made, that the

comment was m ade o ne an d one -half ho urs be fore the court’s usua l adjournment

time, and that the jury already knew that it could be sequestered before th e bailiff

made the comment. Thus, the trial court found that the verdict w as no t mad e in

respon se to any appreh ension of overnig ht sequ estration.



       W e agree with Appellant that the bailiff should not have made the

comm ent. However, we conclude that it was harmless error. In State v. Howa rd

Barn well, No. 935, 1986 WL 4491 (Tenn. Crim. App. April 14, 1986), the

defendant alleged that the trial court impro perly influenced the jury and coerced

the jury into reaching a verdict when the court informed the jury that if it could not

reach a verdict, it would be sequestered until the next day.           The defendant

contended that because the jury returned with a verdict only forty-five minutes

later, the verdict had been coerced.            T his Co urt rejec ted the defen dant’s

argument and he ld that the ve rdict was n ot forced by threats or coerc ion. Id. at

*8. This Cou rt concluded that the trial court’s comment was “merely a comment

                                          -9-
upon the schedule for deliberations, no t coercion to influenc e a hung jury.” Id.

This Court noted that there was no evidence that the jury had reached an

impasse and could not agree on a verdict before the trial court made the

comm ent. Id.



      W e conc lude th at in this case, as in Barn well, the verdict was not coerced

by a comment about possible sequestration. Nothing in the rec ord indicates that

the jury had re ached an imp asse a nd we a gree with the trial cour t that the fact

that the jury h ad on ly been delibe rating fo r a relativ ely short time supports the

inference that they had not reached an im pass e. Furth er, con trary to A ppella nt’s

assertion, there is absolutely nothing in the record that indicates that the jury was

evenly divided, or even divided at all, when the bailiff mad e the com ment. Finally,

the fact that the jury already knew about the possibility of sequestration and that

they jury reached a verdict one and one-half h ours b efore d elibera tions w ould

have been adjourned indicates that the verdict was not reache d in respo nse to

the comment about sequestration. Thus, we conclude that the bailiff’s comment

was ha rmless error. See Tenn . R. App . P. 36(b). T his issue has no merit.




                          IV. LENGTH OF SENTENCE




      Appellant contends that the trial court erroneously imposed a longer

senten ce than he des erves.



      Initially, we note that the offense in this case occurred on October 4, 1989,

before the 1989 Sentencing Act went into effect on November 1, 1989. How ever,

Appellant was tried and sentenced after the effective date of the Act on

                                         -10-
September 25, 1990. Thus, “the trial court was required to calculate the proper

sentence under both the 1982 and the 1989 sentencing acts and then impose the

least severe sente nce.” State v. Carico, 968 S.W.2d 280, 286 (Tenn. 1998).

Under the 1982 Sentencing Act, the sentence for a Range I offender convicted

of voluntary manslaughter was between two and six years. Tenn. Code Ann. §§

39-2-222, 40-35-109(a) (1982). Under the 1989 Sentencing Act, the pre-1989

version of voluntary manslaughter is considered to be a Class C felony. Tenn.

Code Ann. § 40-3 5-118 (198 9). The sen tence for a Range I offender convicted

of a Class C felony is between three and six years. Tenn Code Ann. § 40-35-

112(a)(3 ) (1989).



        Appellant contends that he is entitled to a new sentencing hearing because

the record does not indica te whe ther the trial cou rt sente nced him under the 1982

or 1989 Sentencing Act and does not indicate what enhancement or mitigating

factors the court applied to his sentence.6 Howe ver, App ellant had the duty to

prepare a record which co nveys a fa ir, accurate and co mplete accou nt of what

transpired in the trial court with respect to the issues which form the basis of his

appe al. State v. Gibson, 973 S.W .2d 231, 244 (T enn. C rim. App . 1997); State

v. Griffis; 964 S.W.2d 577, 592 (Tenn. Crim. App. 1997); State v. S mith, 891

S.W.2d 922, 932 (Tenn. Crim. App. 1994). When the record is incomplete, or

does not contain the proceedings relevant to an issue, this Court is precluded

from conside ring the iss ue. Gibson, 973 S.W .2d at 244 ; Griffis; 964 S.W.2d at

592–93; Smith , 891 S.W.2d at 932. Furthermore, this Court must conc lusively



        6
         In the amended statement of the evidence, App ellant states that the trial court apparently gave
mitigating weight to Appellant’s age at the time of the offense and to Appellant’s contention that he was
acting under strong provocation when he committed the offense. However, the amended statement of the
evidence contains no information about what enhancement factors were applied to Appellant’s sentence.

                                                -11-
presume that the rulin g of the trial co urt was correct in all partic ulars. Gibson,

973 S.W .2d at 244 ; Smith , 891 S.W.2d at 932. In this case, Appellant has failed

to fulfill his duty of pre paring a record th at is a fair, acc urate an d com plete

account of what transpired in the trial court with respect to sentencing.7

Therefore, this Court mus t presu me th at the tria l court’s imposition of a five year

sentence was co rrect. See Gibson, 973 S.W.2d at 244; Smith , 891 S.W.2d at

932. T his issue has no merit.



                                      V. DENIAL OF PROBATION




         Appellant contends that the trial court erred when it failed to impose

probation.8



         Initially, we note that Appellant was eligible for probation under the 1982

Sentencing Act because he received a sentence of ten years or less and he was

not convicted of certain e nume rated offe nses. See Tenn. Code Ann. § 40-35-

303(a) (1982).             Appellant was also eligible for probation under the 1989

Sentencing Act bec ause h e receive d a sen tence o f eight years or less and he



         7
           Appellant contends that he should not be pen alized for failure to prepare a complete record
because the tapes of his trial, the hearing on his motion for a new trial, and the sentencing hearing we re
lost through no fault of his own. However, the record indicates that after Appellant filed notice of appeal
on O ctob er 22 , 199 0, no effo rt was ma de to obta in tran scrip ts for appr oxim ately s even to eigh t years while
he remained free on bond. In fact, in the affidavit of the court reporter who was at Appellant’s trial, the
hearing on the motion for new trial, and the sentencing hearing, the court reporter stated that she has no
record or recollection of the transcripts ever having been ordered until late 1997 or early 1998. “When the
appellant is unable to prepare or have prepared a transcript of the evidence and proceedings, the burden
is on the appellant to show . . . [his or her] inability to prepare a transcript, the reasons for the inability, and
that the inability was brought about by matters outside . . . [his or her] control . . . .” State v. Rhoden, 739
S.W.2d 6, 14 (Tenn. Crim. App. 1987) (citation and internal quotations omitted). Having waited for seven
to eig ht yea rs wh ile free on bo nd be fore requ estin g the trans cripts , App ellant cann ot no w cla im th at he is
without fault in failing to have a complete record prepared.

         8
         Although Appellant’s statement of the issue refers to alternative sentencing, the subsequent
argu me nt an d cita tion to auth orities relate s only t o the denia l of pro batio n. Ou r res olutio n of th is iss ue is
the same regardless of the distinction between probation and the other forms of alternative sentencing.

                                                          -12-
was not co nvicted of certa in enum erated o ffenses. See Tenn. Code Ann. § 40-

35-303(a) (1989). In addition, the trial court was required to consider probation

as an alternative to confinement under both the 1982 and 1989 Sentencing Acts.

See Tenn. C ode Ann . §§ 40-35-30 3(b) (1982), 40 -35-303(b) (19 89).



      Appellant contends that he is entitled to a new sentencing hearing because

the record does not ind icate w hethe r the trial c ourt co nside red pro bation and if

it did, what fa ctors it relied o n in deny ing prob ation. Ho wever, as previously

stated, Appellant had the duty to prepa re a record which conveys a fair, accura te

and complete account of what transpired in the trial court with respect to the

issues on app eal. Gibson, 973 S.W.2d at 244; Griffis; 964 S.W .2d at 592 ; Smith ,

891 S.W .2d at 932 . Becau se App ellant has failed to fulfil this duty, this Cour t is

precluded from considering this issue and we must conclusively presume that the

trial court properly denied probation. See Gibson, 973 S.W .2d at 244 ; Smith , 891

S.W .2d at 932 . This issu e has n o merit.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE

                                         -13-
