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Date: 03-31-2017
Case Style:
State of Tennessee v. Roosevelt Pitts, III
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Case Number: M2016-01879-CCA-R3-CD
Judge: JOHN EVERETT WILLIAMS
Court: IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Plaintiff's Attorney:
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Jennings H. Jones, District Attorney General; and Shawn Puckett, Assistant District Attorney General
Defendant's Attorney:
Gerald L. Melton, District Public Defender, and Russell N. (Rusty) Perkins, Assistant Public Defender
Description:
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The appellate record does not contain transcripts of the jury selection, trial, or sentencing hearing, but we are able to glean the following facts from the technical record. The Defendant was indicted for one count of robbery, two counts of aggravated assault, one count of reckless endangerment, one count of leaving the scene of a property damage
accident, one count of vandalism over $10,000, and one count of carjacking. Following a jury trial, the Defendant was found guilty of one count of robbery, three counts of reckless endangerment, one count of leaving the scene of an accident, and one count of vandalism over $1,000. The Defendant was sentenced to ten years in prison for robbery, four years in prison for each reckless endangerment conviction, eleven months and twenty-nine days in prison for leaving the scene of an accident, and eight years in prison for vandalism. The trial court ran the reckless endangerment, leaving the scene of an accident, and vandalism sentences concurrently to each other and consecutively to the robbery sentence, for an effective sentence of eighteen years. After a hearing, the trial court denied the Defendant’s motion for a new trial.
ANALYSIS
On appeal, the Defendant argues that the State purposefully discriminated against prospective jurors during jury selection who were African-American in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The Defendant also argues that the State engaged in prosecutorial misconduct by giving improper closing arguments. The State contends that the Defendant waived appellate review of his arguments by failing to provide this court with asufficient record.
The appellant bears the burden of preparing a full and completerecordfor appellate review. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983);seeTenn. R. App. P. 24(b). “What is in therecordsets the boundaries for what theappellatecourts may review, and thus only evidence contained therein can beconsidered.” State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005) (citation omitted). When no evidence is preserved in the record for review, the appellate court may not consider the issue. State v. Goodwin, 909 S.W.2d 35, 43 (Tenn. Crim. App. 1995). Where an argument is noted but not transcribed and therecordis missing atranscriptof the proceedings relevant to anissuepresented for review or portions of therecordupon which the party relies, appellate review of the argument is waived. SeeState v. Mickens, 123 S.W.3d 355, 387 (Tenn. Crim. App. 2003) (citing State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993)). Given a record that lacks any transcripts to provide a basis for proper review, the appellate court must presume that the trial court’s determination of the issue was correct. State v. Griffis, 964 S.W.2d 577, 592-93 (Tenn. Crim. App. 1997).
The record provided to this court for appellate review includes the warrants, the indictments, the Defendant’s motion for a new trial, his addendum to the motion for a new trial, the trial court’s order denying the motion for a new trial, the transcript of the proceedings on the motion for a new trial, the judgments, and the notice of appeal. The record ultimately does not include the portions relevant to the Defendant’s arguments on appeal: transcripts of the jury selection process, the trial, and the closing arguments.
Accordingly, we hold that both of the Defendant’s arguments are waived.
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