State of Tennessee v. John Allen Hessmer

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06/12/2025
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 8, 2025

STATE OF TENNESSEE v. JOHN ALLEN HESSMER

Appeal from the Criminal Court for Smith County
No. 21CR82 Dee David Gay, Judge
___________________________________

No. M2023-00602-CCA-R3-CD
___________________________________

The Defendant, John Allen Hessmer, was convicted by a Smith County Criminal Court
jury of possession of .5 grams or more of methamphetamine with the intent to sell or
deliver, a Class B felony; possession of drug paraphernalia, a Class A misdemeanor; and
driving while in possession of methamphetamine, a Class B misdemeanor. The Defendant
raises the following issues on appeal: (1) whether the trial court erred in excluding
photographs relating to his passenger, Natasha Jordan, in violation of the Defendant’s due
process rights to present a defense; (2) whether the trial court erred in preventing a defense
witness’s testimony about her knowledge of Ms. Jordan; (3) whether the trial court erred
in excluding impeachment evidence relating to an arresting officer’s employment history
in violation of the Defendant’s right to confront witnesses against him; (4) whether the
State violated State v. Ferguson,
2 S.W.3d 912
(Tenn. 1999), for failing to preserve the
patrol vehicle video recording of the Defendant’s traffic stop; (5) whether the Defendant is
entitled to a resentencing hearing due to the trial court’s admission of a video recording at
sentencing of the Defendant that was not beforehand disclosed by the State; (6) whether
the trial judge erred by not recusing himself; and (7) whether the cumulative effect of the
various alleged errors rendered the Defendant’s trial unfair. Based on our review, we
affirm the Defendant’s convictions. However, pursuant to State v. Berry,
503 S.W.3d 360,
364
(Tenn. 2015), we remand for the trial court to enter a corrected judgment in count three
to reflect that the sentence imposed for the Defendant’s misdemeanor conviction of
possession of methamphetamine while driving was merged into the felony possession of
methamphetamine conviction in count one.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and JILL BARTEE AYERS, JJ., joined.
Donnavon Vasek, Lebanon, Tennessee, (on appeal), and John Allen Hessmer, Pro Se (at
trial), for the appellant, John Allen Hessmer.

Jonathan Skrmetti, Attorney General and Reporter; Lacy E. Wilber, Senior Assistant
Attorney General; Jason L. Lawson, District Attorney General; and Jack Bare and Javin
Cripps, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

This case arises out of a June 1, 2021 undercover drug operation in which Anthony
Lattimore, at the request of Sergeant Junior Fields of the Smith County Sheriff’s
Department, arranged to purchase methamphetamine from the Defendant at a church in
Smith County. According to the State’s proof at trial, earlier that day Sergeant Fields
conducted a traffic stop of Mr. Lattimore based on Mr. Lattimore’s having an active arrest
warrant. He found methamphetamine residue and a methamphetamine pipe in Mr.
Lattimore’s vehicle, arrested him, and took him to the sheriff’s department, where Mr.
Lattimore identified the Defendant as his drug supplier and agreed to an undercover
controlled purchase with the Defendant. During a conversation between Mr. Lattimore
and the Defendant, which was conducted over speakerphone on Mr. Lattimore’s cell phone
and overheard by Sergeant Fields, the Defendant agreed to sell Mr. Lattimore one ounce
of methamphetamine for $650, and Mr. Lattimore agreed to pay an additional $50 for the
gasoline the Defendant would have to use to drive from his Mount Juliet home to the Smith
County transaction site.

The Defendant and a passenger, Natasha Jordan1, arrived at the church in Smith
County, where Sergeant Fields and two other Smith County deputies were waiting.
Officers found inside Ms. Jordan’s purse in the front passenger seat of the Defendant’s
vehicle three plastic “baggies” containing a total of approximately 42 grams of
methamphetamine and a glass methamphetamine pipe, as well as directions to the church
on Ms. Jordan’s cell phone. Officers also found $653 in small bills on the Defendant. The
Defendant was subsequently indicted for possession of .5 grams or more of

1
We use the spelling of this individual’s name as it is written in the trial transcript. We note that
her first name is spelled as “Natoshia” in documents that the Defendant attempted to introduce at trial and
in the transcripts of other hearings.
-2-
methamphetamine with the intent to sell or deliver, possession of drug paraphernalia, and
driving while in possession of methamphetamine.

Although the facts underlying the Defendant’s convictions are relatively
straightforward, the procedural history of the case is complicated. The Defendant has a
history of filing pro se civil lawsuits and other complaints against various individuals,
including judges.2 Consequently, by order entered on October 1, 2021, the presiding judge
for the 15th Judicial District transferred this case to a judge of the 18th Judicial District due
to all the criminal court judges of the 15th Judicial District having conflicts. Following
that transfer, the Defendant’s appointed attorney was allowed to withdraw due to a conflict
of interest, and the Defendant elected to represent himself despite the trial court’s attempts
to dissuade him.

The Defendant filed numerous pro se motions following the transfer of his case to
the new trial court. He was eventually tried before a Smith County jury from February 21-
22, 2023, with advisory counsel appointed to assist him. At the beginning of the trial, the
trial court warned the Defendant that it would not tolerate the inappropriate conduct and
slanderous comments the Defendant had exhibited in the past and would hold the
Defendant in contempt “for every situation” in which he went “over the line.” Despite that
warning, the Defendant in his opening statement repeatedly impugned the reputations of
the prosecutor, law enforcement officers, and the trial court by stating that they were
involved in a conspiracy to destroy evidence, and that the prosecutor had committed
aggravated perjury by his statements in the case. Based on those comments, the trial court
found the Defendant in contempt of court five different times.

The State presented five witnesses at trial: Anthony Lattimore; Sergeant Junior
Fields; former Smith County Sheriff’s Department Deputy Kendra Glover, who assisted
Sergeant Fields in the June 1, 2021 arrest of the Defendant and Ms. Jordan; Detective
Lieutenant Dusty Hailey of the Smith County Sheriff’s Department, whose duties included
being the evidence custodian for the department; and Special Agent Brett Trotte of the
Tennessee Bureau of Investigation, who conducted the analysis of the drugs.3 The
Defendant presented a single witness: Mary John McLemore, a longtime acquaintance of
the Defendant who testified she and the Defendant were Facebook friends.

2
At a pretrial hearing, the prosecutor informed the trial court that he had found thirty-four opinions
in which the Defendant, acting pro se, had filed lawsuits against private individuals, state and federal
officials, and state and federal entities.
3
Special Agent Trotte testified that the crystalline substance in the largest baggie consisted of
methamphetamine that weighed 29.16 grams. The combined weight of the two smaller baggies of
crystalline substance, for which he did not conduct analysis due to its not exceeding the next weight
threshold for an offense, was 12.04 grams.
-3-
Mr. Lattimore provided the following testimony that is relevant to the issues raised
on appeal: At the time he was stopped in his vehicle by Sergeant Fields, Mr. Lattimore
had known the Defendant for approximately six months and been to the Defendant’s Mount
Juliet home at least seven or eight times. That same day, he provided Sergeant Fields with
the Defendant’s name and agreed to arrange for the purchase of methamphetamine from
the Defendant. He was not promised anything or paid for his information or participation.
He called the Defendant on his cell phone while he was at the sheriff’s department sitting
across the desk from Sergeant Fields. He asked the Defendant to sell him
methamphetamine, and the Defendant agreed, with some “haggl[ing] back and forth” about
the location until the Defendant suggested that they meet at a church at “the Alexandria
exit[.]” As Mr. Lattimore recalled, he and the Defendant agreed on a price of $250 for half
an ounce of methamphetamine, but the Defendant wanted an additional $50 for gasoline.
Mr. Lattimore testified that his only communications about the drug deal were with the
Defendant; he never spoke with a woman. He never saw anyone other than the Defendant
during his seven or eight visits to the Defendant’s home. Mr. Lattimore made a courtroom
identification of the Defendant as the man from whom he arranged to purchase
methamphetamine.

On cross-examination, Mr. Lattimore acknowledged that he had possessed
methamphetamine on June 1, 2021, when Deputy Fields pulled him over, and that he knew
he was “facing jail time for that[.]” He said that he had not yet been charged with anything
“for that crime” and repeated that he was not paid anything in exchange for his testimony.
He testified that he had never met Natasha Jordan and did not know whether Natasha
Jordan was a man or a woman.

Sergeant Fields provided the following relevant testimony to the issues raised on
appeal: On June 1, 2021, he intercepted, stopped and arrested Mr. Lattimore, who was
“known to have an active warrant.” He found a methamphetamine pipe and several small
brown vials with methamphetamine residue inside Mr. Lattimore’s vehicle, and his initial
memory was that he charged Mr. Lattimore with possession of drug paraphernalia.
However, after later reviewing the warrant, he testified that he charged Mr. Lattimore with
resisting stop, halt, frisk or arrest. He agreed that the back of the warrant reflected that Mr.
Lattimore pled guilty to that offense on June 3, 2021, and received a suspended sentence
of six months.

Sergeant Fields further testified as follows: On June 1, 2021, while in the Sergeant’s
office, Mr. Lattimore agreed to provide information about the Defendant. Mr. Lattimore
was not working as a confidential informant and did not wear a wire or purchase any drugs,
and Sergeant Fields did not pay or promise Mr. Lattimore anything other than that he would
speak to the district attorney on his behalf. He and Mr. Lattimore were sitting across from
each other at a desk with Mr. Lattimore’s cell phone on speakerphone when Mr. Lattimore
-4-
called to arrange the drug purchase. He heard the entire conversation between the
Defendant and Mr. Lattimore. He recalled that the Defendant and Mr. Lattimore discussed
whether the transaction would occur at the Defendant’s Mount Juliet home and that he
“mouthed” to Mr. Lattimore that the Defendant had to come to Smith County. During the
conversation, the Defendant agreed to sell Mr. Lattimore one ounce of methamphetamine
for $650, and Mr. Lattimore agreed to pay an additional $50 for the Defendant’s gasoline,
for a total price of $700. Sergeant Fields had not met the Defendant at that point and,
therefore, did not recognize his voice. He “just knew it was a male’s voice.” He never
heard a female’s voice.

After the transaction was arranged, Sergeant Fields, Sergeant Kendra Glover and
Deputy Daniel McCoy drove in their separate marked patrol vehicles to the church, parked
in different nearby hidden locations, and waited. A short time later, the Defendant, with a
woman passenger, pulled into the parking lot of the church driving a white vehicle.
Sergeant Fields recognized the Defendant from his driver’s license photograph, alerted
Sergeant Glover and Deputy McCoy that it was the Defendant, activated his blue lights,
and stopped the Defendant. He took the Defendant into custody and placed him in the back
seat of his patrol vehicle, while the other two officers were “dealing with” Ms. Jordan. He
found $653 in small bills in the Defendant’s wallet, and Sergeant Glover found three bags
of methamphetamine and a glass methamphetamine pipe inside Ms. Jordan’s purse. Ms.
Jordan gave him consent to look at her cell phone, where he found directions to the Smith
County church.

Sergeant Fields’s patrol vehicle was equipped with a camera that was supposed to
be activated when he turned on the vehicle’s blue lights. The video recording was stored
on SD cards in a locked vault in his center console. He did not have access to the locked
vault and could not be certain that his camera was recording; he “just rel[ied] on the
equipment working properly.” Deputies did not download the files from the SD cards at
the end of each shift. Instead, “whenever [they] ha[d] a preliminary hearing in General
Sessions Court [and learned] that [the case was] going to go to Criminal Court, [they] . . .
submit[ted] a request for the video to be printed off.” He identified the video recording
request form that he had signed and submitted on July 12, 2021, for the patrol vehicle
footage of the incident, which was admitted as Exhibit Four. He testified that he was later
advised by Lieutenant Hailey that there was no video recording of the incident.

At the end of his direct examination testimony, Sergeant Fields expressed his
certainty that it was the Defendant who arranged the drug deal with Mr. Lattimore over the
phone. Although he did not recognize the Defendant’s voice at the time of the call, he had
since “watched some of [the Defendant’s] videos on [the Defendant’s] Facebook page and
heard quite a bit of his rambling.” He testified: “So it’s absolutely his voice. It was his
voice that I heard.”
-5-
On cross-examination, Sergeant Fields identified a document in the grand jury
packet entitled “Indictment Information and Discovery” on which he had marked that there
was a patrol car video recording. He explained that at the time he submitted the document
form, he had not yet learned that his video equipment had malfunctioned. He agreed that
the methamphetamine and the methamphetamine pipe were found in Ms. Jordan’s purse
and said that she was charged with possession of methamphetamine and possession of drug
paraphernalia. He did not look at the Defendant’s cell phone and did not check Ms.
Jordan’s cell phone for text messages. He did not have a recording of Mr. Lattimore’s cell
phone conversation with the Defendant, and Smith County officers did not have body
cameras. His patrol car video equipment was triggered by the activation of his vehicle’s
blue lights but “it did not record.”

Sergeant Kendra Glover provided the following relevant testimony: On June 1,
2021, she and Deputy McCoy acted as backup in the transaction. She drove her patrol
vehicle and parked in a concealed spot on the east side of the church. The Defendant and
Natasha Jordan pulled up to the church ten or fifteen minutes later. After Sergeant Fields
stopped the Defendant, she approached the vehicle on the passenger side where Ms. Jordan
was sitting. She ordered Ms. Jordan out of the vehicle, handcuffed her, and patted her
down before placing her in the rear seat of the patrol vehicle. She then retrieved Ms.
Jordan’s purse from the passenger seat close to the center console, searched it, and found
the three bags of methamphetamine inside. On cross-examination, she testified that her
patrol vehicle’s blue lights should have been on during the stop, but that she could not
recall.

Detective Lieutenant Dusty Hailey testified that in June 2021, he and Lieutenant
Steve Babcock were the two evidence custodians for the Smith County Sheriff’s
Department. He identified the words “No video” and his initials, which he wrote on Exhibit
Four, as ones that he had written and signed on the video recording request form. He
explained that patrol vehicle video recordings were stored on SD cards, which were not
accessible to the officers. He said it was the deputy’s responsibility to alert him when the
memory card was full so that he could remove the card and upload it to the server. He
searched for any video recording associated with the case “pretty quickly” after Sergeant
Fields submitted the video recording request form on July 12, 2021, and determined that
there was no video recording:

The folder did not show that there was a video - - a card that was
submitted to be uploaded or we also - - our server got full at the beginning
of, I believe it was, April. So we was not able to upload anything until the
County could get us another hard drive because our hard drive was full. So
our server had over nearly a terabyte of information stored on it.
-6-
On cross-examination, he testified that he used a key to unlock the vault to remove
the SD cards and upload recordings to the server. When questioned about his testimony
that the server was full and asked where he stored the SD cards in the interim, he responded:
“Next to my computer with the rest of the cards that was waiting to be uploaded.” He
stated that once the server was upgraded, he uploaded everything that he had. He could
not recall when the server was upgraded but estimated that the cards sat beside his computer
for approximately one month. He testified that if an SD card was not turned in, it would
“keep recording” and “override” the previously recorded content. In his efforts to find the
video recording, he searched for the entire month “[b]efore and after to make sure it was
not on there.” During his search, he saw other video recordings of Sergeant Fields that
were recorded prior to the date of the instant case. He also searched for video recordings
from the patrol vehicles of Deputy McCoy and Sergeant Glover, but those video recordings
were “already recorded over.”

The Defendant’s witness, Mary John McLemore, testified that she was familiar with
the Defendant’s Facebook page and that the Defendant did not have any videos of himself
posted.

After deliberations, the jury found the Defendant guilty of all counts as charged.
Without sentencing the Defendant to the charge, the trial court merged the Class B
misdemeanor conviction of driving while in possession of methamphetamine into the
felony conviction of possession of methamphetamine with the intent to sell or deliver and
sentenced the Defendant as a Range II offender to twenty years at 35% for the felony drug
conviction and 11 months, 29 days at 100% for the misdemeanor conviction of possession
of drug paraphernalia. The trial court also sentenced the Defendant to ten days for each of
the five counts of criminal contempt for which the trial court had charged him and found
him guilty during the trial. Finding the Defendant to be an offender whose record of
criminal activity was extensive, the trial court ordered that the Defendant serve all his
sentences consecutively, with jail credit applied to his misdemeanor drug paraphernalia
sentence for the time he had spent in jail to the date of the sentencing hearing.

While his pro se motion for new trial was pending, the Defendant filed a premature
notice of appeal, which this court deemed effective as of September 12, 2023, the date that
the trial court denied the motion for new trial. On February 21, 2024, the Defendant filed
a pro se appellate brief with this court. After the State argued that the Defendant’s issues
were waived for his failure to provide citation to the record, the Defendant filed a motion
for the appointment of appellate counsel. By order entered on May 9, 2024, this court
granted the Defendant’s motion for appointed counsel and struck the Defendant’s pro se
brief. Thereafter, appointed appellate counsel, who had acted as advisory counsel during

-7-
the Defendant’s trial, filed a new brief on the Defendant’s behalf in which seven issues are
raised, which we address below.

ANALYSIS

I. Exclusion of Evidence Related to Natasha Jordan’s Gender

As his first and second issues, the Defendant contends that the trial court violated
his due process rights to present a defense by excluding key evidence consisting of the
“driver’s license” and other photographs of Natasha Jordan, and by preventing him from
questioning his defense witness, Ms. McLemore, about her knowledge of Ms. Jordan. The
Defendant’s purpose in seeking admission of this evidence was to show that Ms. Jordan
was a man, and that it was Ms. Jordan’s voice that Sergeant Fields overheard speaking with
Mr. Lattimore during the cell phone conversation. The State argues that the trial court
properly denied admission of the photographs because they were irrelevant and
inflammatory and because the Defendant failed to comply with the rules of reciprocal
discovery. The State further argues that the Defendant has waived his second issue by
failing to make an offer of proof of Ms. McLemore’s testimony. We agree with the State.

The record reflects that in a March 17, 2022 pretrial hearing, the Defendant
complained that the prosecutor had violated discovery by not providing his requested
criminal history on his “codefendant”4 “Natoshia Jordan.” When the trial court inquired
whether there was any discovery that the State had not turned over, the prosecutor
responded that he had run the criminal histories requested by the Defendant and reduced
them to written summaries, which he had filed with the trial court, and copies were sent to
the Defendant. The prosecutor said he was unable to find a criminal history or a driver’s
license for “Natoshia Jordan.” The Defendant objected, stating that he “had found her on
social media[,]” including her Social Security card and her “Florida driver’s license[,]”
which listed her “as a male.” The trial court stopped the Defendant from expounding
further on that topic, stating that it had granted his motion. At that same hearing, the trial
court granted the State’s motion for reciprocal discovery, setting a deadline of April 15 for
the Defendant to comply.

During Ms. McLemore’s trial testimony, the Defendant attempted to show her two
photographs, one depicting a Social Security card and a Florida State identification and
one a photograph of a woman. The State objected on the grounds of relevance, and the
following transpired in the presence of the jury:

4
The Defendant was indicted alone for the offenses, and we have found nothing in the record to
show the disposition of Ms. Jordan’s charges after her arrest.
-8-
THE COURT: Okay. Hold on just a second. Let me see the pictures, please.
Okay. How are these relevant?

THE DEFENDANT: They’re relevant to the person that Junior Fields said
he talked to.

THE COURT: Okay. Hold on just a second. Hold on just a second. Did
you ask her anything about this particular person? This is not relevant. She’s
not a witness. There’s been no proof about her involvement other than she
was there at the scene.

THE DEFENDANT: She has.

THE COURT: You ask her questions then about her. You don’t need to
introduce what you’re introducing. Sustained.

At that point, the prosecutor requested that the relevance of the witness’s testimony
be further explored outside the jury’s presence because “once the door is opened in front
of this [j]ury, we can’t close it.” The trial court agreed, instructing the Defendant “to make
an offer of proof as to what this witness will testify to because there is always the danger
of you getting into things that can be pretty drastic.” The following exchange occurred
outside the presence of the jury:

THE COURT: Okay. Everybody can be seated. Now, let me put this
in context here. [Defendant], we’ve had some outbursts from you during this
trial that I’ve had to remind you as I’ve raised some findings of - - and in
doing that, you have communicated to the [j]ury certain things that they don’t
need to hear.

And the State is concerned about - - that that might be what this
witness will do as well. So I need for you to tell me what you intend this
witness to testify to. We call it an offer of proof. So tell me what questions
you are going to ask and what you expect her to testify to.

[THE DEFENDANT]: It’s to verify that somebody else is guilty for
the crime that I’m accused of.

THE COURT: How are you going to do that? The testimony shows,
sir, that she was in actual possession of the methamphetamine that was going
to be sold. And you’re the one who did the transaction, and you’re the one

-9-
who drove to the place. So how are you - - your voice is on the phone. You
are the contact with Mr. Lattimore. So how do you expect to prove this?

[THE DEFENDANT]: I wasn’t the one on the phone. Natasha Jordan
had my phone. This is what I’ve been trying to tell all along. And - -

THE COURT: Okay. Hold on. How are you going to prove that?

[THE DEFENDANT]: With pictures.

THE COURT: How? That she was on the phone talking to Sergeant
Fields at the time?

[THE DEFENDANT]: Uh-huh.

THE COURT: Okay. Who is going to - - who is going to identify
that picture?

[THE DEFENDANT]: She can identify it.

THE COURT: Was she there? She can’t do that.

[ADVISORY COUNSEL]: Judge, can I connect some of these dots?

THE COURT: Go ahead.

[ADVISORY COUNSEL]: I think everybody is confused and I think
he said it from there, but I think what he’s trying to get to - - he’s trying to
introduce - - I believe this witness knows who Ms. Natasha Jordan is. And
this witness has taken some photos or obtained some photos from Ms. Jordan.
One is of Ms. Jordan. The other one is of her license and social security card.

THE COURT: Okay. But she [Ms. Jordan] was the one he was with
that day. I mean, if you’re going to impeach her credibility, he was the one
that was with her.

[ADVISORY COUNSEL]: You’re missing the big point. Next, if
you look at her license, it has her sex [listed] as a male. Junior Fields testified
that there was a male on the phone. So I think what he’s saying is Natasha
Jordan is not a female, it is a male.

- 10 -
THE COURT: Okay. Natasha Jordan is a male?

[THE DEFENDANT]: She’s sure got a male voice.

[ADVISORY COUNSEL]: According to her license, that’s what it
says. That’s the connection that he’s trying to make.

[THE DEFENDANT]: And the directions was on her phone too.

THE COURT: Okay. This proof is highly inflammatory and it’s very,
very speculative.

[THE DEFENDANT]: Please.

THE COURT: Hold on, sir.

[THE DEFENDANT]: Yes, sir.

THE COURT: All you need to do is bring this lady in here and ask
her questions. What - - if she wasn’t there and heard the phone call, she can’t
testify to that. So the only way you can get that in is by calling this lady.
Are you saying she is a transvestite?

[THE DEFENDANT]: She’s probably a - -

THE COURT: You were with her, sir. Tell me. Are you saying she’s
a transvestite?

[THE DEFENDANT]: That’s a good question.

THE COURT: So you don’t know?

[THE DEFENDANT]: Would you please look at the picture?

THE COURT: I saw the picture, but that doesn’t mean anything. That
could have happened to any - - and there’s nobody there to authenticate that.

[THE DEFENDANT]: I’ve heard her male voice too.

THE COURT: Okay.

- 11 -
[THE DEFENDANT]: I gladly will testify and authenticate it.

THE COURT: You’re going to have to be the one testifying. I don’t
know what we’re going to get into, but as far as these pictures and this
testimony, I’m not going to allow it. You can make that an exhibit, and we’ll
make it Exhibit No. B. That will not be shown to the [j]ury. It will be part
of the record to show that I did not allow that evidence in. Any other
questions?

[Defendant], let’s go. We’ve got a jury waiting.

Advisory counsel informed the trial court that the Defendant had other photographs
of Ms. Jordan and “of that bedside table” that he wanted to introduce. The prosecutor
stated that he had not received any of the photographs in discovery. After some further
exchange in which the prosecutor maintained that he had not received the photographs and
the Defendant accused the prosecutor of lying, the trial court found that the Defendant had
failed to comply with reciprocal discovery and ruled that neither the photographs nor the
testimony would be admissible:

THE COURT: And that’s another reason, [Defendant]. We play by
the rules here. That’s why we have Rules of Evidence. That’s why we have
the Rules of Criminal Procedure. You can put in everything. Go ahead and
put it in. We’ll make it a collective exhibit. I’ll find that this is for appeal
purposes. I’m not going to allow any of this testimony, but it will go [to]
Collective Exhibit No. B.

Number one, it’s not relevant. And number two and most importantly,
the State was not given reciprocal discovery notice.

When the trial court inquired whether there was anything else the Defendant wanted
to question Ms. McLemore about, the Defendant responded that he just wanted her to
identify the photographs.

Generally, “[a]dmission of evidence is entrusted to the sound discretion of the trial
court, and a trial court’s ruling on evidence will be disturbed only upon a clear showing of
abuse of discretion.” State v. Robinson,
146 S.W.3d 469, 490
(Tenn. 2004). An abuse of
discretion occurs only if “the court applied an incorrect legal standard, or reached a
decision which is against logic or reasoning” and admission of the evidence “caused an
injustice to the party complaining.” State v. Gilliland,
22 S.W.3d 266, 270
(Tenn. 2000)
(quoting State v. Shirley,
6 S.W.3d 243, 247
(Tenn. 1999)) (internal quotation marks
omitted).
- 12 -
Relevant evidence is evidence “having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence, however,
“may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403.

Authentication of evidence is governed by Tennessee Rule of Evidence 901, which
provides in pertinent part that “[t]he requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to the court to
support a finding by the trier of fact that the matter in question is what its proponent
claims.” Whether evidence has been sufficiently authenticated is within the trial court’s
sound discretion, and its decision will not be overturned absent an abuse of discretion. See
State v. Mickens,
123 S.W.3d 355, 376
(Tenn. Crim. App. 2003).

Tennessee Rule of Criminal Procedure 16 provides in pertinent part:

Upon a defendant’s request, the state shall permit the defendant to
inspect and copy or photograph ... tangible objects, . . ., if the item is within
the state’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial;
or

(iii) the item was obtained from or belongs to the defendant.

Tenn. R. Crim. P. 16(a)(1)(F). Rule 16 further provides:

If a defendant requests disclosure under subdivision (a)(1)(F), or (G)
of this rule and the state complies, then the defendant shall permit the state,
on request, to inspect and copy or photograph books, papers, documents,
photographs, tangible objects, or copies or portions of these items if:

(i) the item is within the defendant’s possession, custody, or control;
and

- 13 -
(ii) the defendant intends to introduce the item as evidence in the
defendant’s case-in-chief at trial.

Tenn. R. Crim. P. 16(b)(1)(A).

We conclude that the trial court acted within its discretion in excluding the proposed
photographs on several different grounds. The first of the two photographs the Defendant
attempted to introduce through Ms. McLemore consists of a photocopied page containing
two images: what appears to be a Florida Identification Only card for “Natoshia Desha
Jordan” in which the gender is listed as male; and what appears to be a Social Security card
in the same name. The second is a photograph, or a photocopy of a photograph, which
depicts what appears to be the same individual, with breasts, who is wearing a sleeveless
undershirt or tank top and sunglasses with a mohawk hairstyle and tattoos covering the
arms, neck, and upper chest area. According to the Defendant, he obtained those images
from “social media.” Advisory counsel added the information that it was Ms. McLemore
who somehow obtained those images. As for the proof he intended to present through Ms.
McLemore’s excluded testimony, the Defendant made it clear that he sought to have her
identify and authenticate the photographs.

The Defendant first takes issue with the trial court’s finding that he failed to comply
with his reciprocal discovery obligations. He points out that he mentioned at the March
17, 2022 pretrial hearing that he had Ms. Jordan’s driver’s license that listed her gender as
male and argues that the prosecutor was therefore aware of its existence from that date. He
also notes that he requested discovery from the State regarding Natasha Jordan and her
aliases and asserts that, after finding the documents on his own, he attached the
photographs to a pleading he filed with the trial court in August 2022. The Defendant
argues that, by doing so, he complied with reciprocal discovery by disclosing the evidence
he intended to use at trial.

We disagree that the Defendant’s attachment of the photographs to a motion filed
with the trial court was sufficient to satisfy his obligation to provide ongoing discovery to
the State. As the Defendant’s counsel acknowledges in the Defendant’s brief, “the Pro Se
filings by [the Defendant] were voluminous and often disjointed[.]” The August 1, 2022
motion the Defendant cites as proof of his having satisfied reciprocal discovery is a lengthy,
handwritten motion entitled “Appology [sic], Prayer, and Settlement et al.” in which the
Defendant raises numerous claims/complaints, and to which is attached a number of
photocopied documents, including the above-mentioned “tank top” photograph and a
mostly illegible photocopy of the Florida Identification Only card. After hearing from both
the Defendant and the State on the issue of whether the photographs had been properly
turned over during discovery, the trial court found the Defendant was not credible and ruled
that reciprocal discovery had been violated and the photographs were not admissible.
- 14 -
The Defendant cites State v. Brown,
29 S.W.3d 427, 432
(Tenn. 2000), to argue that
the excluded evidence amounted to a constitutional violation of his due process right to
present a defense. In Brown, our supreme court held that the following factors should be
considered when determining whether the exclusion of evidence constitutes a
constitutional violation: “(1) the excluded evidence is critical to the defense; (2) the
evidence bears sufficient indicia of reliability; and (3) the interest supporting exclusion of
the evidence is substantially important.”
Id.
at 433-34 (citing Chambers v. Mississippi,
410 U.S. 284, 298-301
(1973)).

The Defendant asserts that “the excluded evidence was critical to [his] defense
because the evidence would have corroborated the defense’s theory and questioned the
identity of who set up the exchange.” Specifically, he argues that the Florida Identification
card that listed Ms. Jordan’s gender as male, as well as the “photo of her appearing
androgynous” “strongly suggest[] that the ‘male voice’ heard by Mr. Lattimore and
Sergeant Fields was Jordan[,]” because Ms. Jordan may have either been born a man or
have been “taking hormone therapy drugs to lower the voice to sound like a man.”

The Defendant argues that the Identification card was a self-authenticating
document, and that his witness could have authenticated the Identification card and other
photographs through her testimony as someone who was familiar with Ms. Jordan. The
Defendant further argues that the interest supporting exclusion of the evidence was not
warranted because the evidence was relevant and because he complied with discovery but
that even if he did not, his due process right to present his defense outweighed the interest
in excluding the evidence based on violations of the rules of evidence and reciprocal
discovery.

We respectfully disagree. The trial court repeatedly warned the Defendant of the
dangers he faced by representing himself, and that the Defendant, as a pro se litigant, would
be responsible for complying with the rules that a licensed attorney had to follow, including
the rules of reciprocal discovery and the rules of evidence. Moreover, the excluded
evidence was not critical to the defense. As the State points out, photographs purporting
to be of Ms. Jordan’s Florida Identification Only card that listed her gender as male or that
showed her appearing masculine “would not inform the jury on whether Ms. Jordan spoke
with a deep voice that resembled a male.” This information would require the jury to
speculate what Ms. Jordan’s voice would sound like without any factual foundation. The
Defendant also ignores the fact that both Mr. Lattimore and Sergeant Fields unequivocally
identified the voice on the cell phone call as the Defendant’s. As for Ms. McLemore’s
proposed testimony, the Defendant, given the opportunity to make an offer of proof as to
what she would testify, said only that he wanted her to identify and authenticate the
photographs. He did not say that she was personally acquainted with Ms. Jordan or had
- 15 -
any direct, relevant knowledge about the facts of the case, and he did not request to question
her in an offer of proof to demonstrate the relevance of her testimony. We, therefore,
conclude that the Defendant’s first two issues are without merit.

II. Employment History of Sergeant Fields

The Defendant next contends that his right to confront witnesses was violated when
the trial court prevented him from impeaching Sergeant Fields with extrinsic evidence
relating to his employment history. Specifically, the Defendant argues that the trial court
improperly prevented him from questioning Sergeant Fields about an August 24, 2006
“report of misconduct” stating that Sergeant Fields admitted having been intoxicated and
purchasing alcohol for an underage person at a bar in Nashville. The Defendant also sought
to question Sergeant Fields about his October 27, 2006 letter of resignation from the
Gallatin Police Department and about Sergeant Fields’s January 31, 2020 rescinded job
offer from the Lebanon Police Department, which stated that a background check revealed
that Sergeant Fields had “sent unauthorized text messages to a confidential informant
during [his] prior employment with the City, a violation of departmental policy.” The State
argues that the trial court properly exercised its discretion when it ruled that the Defendant
could not question Sergeant Fields about the Gallatin Police Department work history that
occurred more than ten years prior to trial and that the Defendant failed to provide in
reciprocal discovery. The State also points out that the trial court did not prevent the
Defendant from questioning Sergeant Fields about the rescinded job offer and argues that
the Defendant waived the issue of a confrontation violation by not raising it in the motion
for new trial. We agree with the State.

In the March 17, 2022 pretrial hearing, the trial court addressed the Defendant’s
renewed discovery request for the employment records of Sergeant Fields. The Defendant
complained that the prosecutor was denying him impeachment evidence consisting of
Sergeant Fields’s history of having been “let go” from Wilson County, Smith County,
Mason County, and Davidson County for various forms of misconduct. The trial court
denied the motion at that time but told the Defendant that if he could provide supporting
documentation attached to his motion, it would consider it.

In the middle of trial, just prior to Sergeant Fields’s direct examination testimony,
advisory counsel brought up the Defendant’s desire to explore “some allegations regarding
Sergeant Fields and his time at the Gallatin Police Department.” Advisory counsel stated
that the Defendant had learned through an open records request that Sergeant Fields had
“purchased some alcohol for an underage person and he was let go from the Gallatin Police
Department about that.” Advisory counsel later clarified that Sergeant Fields had been
asked to resign because of the incident, and that the Defendant had Sergeant Fields’s letter
of resignation to the Gallatin Police Department.
- 16 -
The trial court inquired whether the parties had addressed the matter. The
prosecutor responded that they had previously discussed Sergeant Fields’s employment
records and that the Defendant had attempted to subpoena them several times, but that the
prosecutor had never seen the documents relating to the Gallatin incident. The Defendant
asked to speak “and clear up a few things” and the following transpired:

THE COURT: No. No. And I don’t mean to imply, but we’ve got -
- you know, we’ve got these rules and we’ve got these discovery rules. And
a lot of times - - I don’t know if this District Attorney’s Office does it. But
when they ask for a reciprocal discovery, anything not turned over in
reciprocal discovery is not allowed. Was there reciprocal discovery here?

[THE PROSECUTOR]: Judge, there was. And I’ve received a very
scant amount, nothing that I’ve seen today to amount to anything that they’re
trying to introduce now. What you’ve heard three times previously is that
Sergeant Fields had been fired for [misconduct] …

....

[THE PROSECUTOR]: . . . And they have not produced one thing.
Now, we have a letter or something. And I’ve not seen it yet, nor have I seen
it in the last ten or fifteen seconds since you asked me last time.

The prosecutor added that he believed the incident was beyond the ten-year-period
and argued that it was improper not only because it was not produced in reciprocal
discovery, but also because the State had not been provided notice under Rule 608. The
Defendant protested that the prosecutor’s statement that he had not received discovery was
a lie because he had handed the prosecutor “a big old wad of paper” in the courtroom and
“handed him twice reciprocal discovery in the mail.” The Defendant asserted that he had
given discovery to the prosecutor on July 7, 2022, in the trial court’s Gallatin courtroom
and again on May 17, 2022, in the current courtroom. When the trial court asked advisory
counsel if he could “shed light on this about when this was turned over to the State[,]”
advisory counsel responded that he did not have any personal knowledge to corroborate
either side.

At the conclusion of the arguments, the trial court ruled that the evidence was
inadmissible because the Defendant failed to comply with reciprocal discovery and with
the requirements of Rule 608(b) of the Tennessee Rule of Evidence:

- 17 -
THE COURT: And if I rule against you, you’re going to bring it up
in front of the [j]ury and it’s out. But in this particular case, the requirements
of Rule 608, number one, are not met. Number two, reciprocal discovery
was requested here. And the record does not reflect that the State got any
notice of this until today. Because of those two principles of law, this matter
with the Gallatin Police Department is too old and there’s no notice given.

Had we had appropriate notice and the time to address it, then it might
be different. This motion to use to impeach by this particular evidence is
inadmissible. And should you bring this up in front of the [j]ury, you will
not come back to court. Any other questions?

Tennessee Rule of Evidence 608(b) provides that a witness may be questioned
regarding specific instances of conduct “for the purpose of attacking . . . the witness’s
character for truthfulness.” Upon request, the trial court must hold a jury-out hearing to
“determine that the alleged conduct has probative value and that a reasonable factual basis
exists for the inquiry[]” prior to questioning regarding a specific instance of conduct. Tenn.
R. Evid. 608(b)(1). Generally, the specific conduct must have occurred within ten years
before the commencement of the prosecution, but older conduct may be admissible
provided that

the proponent gives to the adverse party sufficient advance notice of intent
to use such evidence to provide the adverse party with a fair opportunity to
contest the use of such evidence and the court determines in the interests of
justice that the probative value of the evidence, supported by specific facts
and circumstances, substantially outweighs its prejudicial effect[.]

Id. 608(b)(2).

We agree with the State that the trial court properly excluded evidence relating to
the Gallatin Police Department employment history. Though the Defendant asserted he
complied with reciprocal discovery in the matter, the trial court did not find the Defendant
credible. There is likewise nothing to show that he provided notice of his intent to attempt
to impeach Sergeant Fields’s with conduct that occurred more than ten years prior to the
trial, as required by the rules of evidence.

We also agree with the State that the Defendant has waived his claim with respect
to Sergeant Fields’s rescinded job offer from the Lebanon Police Department for failing to
question Sergeant Fields about that matter. The prosecutor informed the trial court that he
had seen the rescinded job offer letter from the Lebanon Police Department, and the trial
court made no ruling with respect to that evidence. The Defendant, however, did not
- 18 -
attempt to cross-examine Sergeant Fields about that letter. By failing to question Sergeant
Fields about the letter, the Defendant has waived consideration of that issue on appeal. See
Tenn. R. App. P. 36(a) (“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.”). We reject the
Defendant’s suggestion that he was too intimidated to question Sergeant Fields about the
Lebanon Police Department rescinded job offer by the trial court’s earlier warning that he
would be removed from the courtroom if he brought up Sergeant Fields’s Gallatin Police
Department employment history. The record reflects that the pro se Defendant consulted
with advisory counsel and regularly argued legal issues with the trial court during the trial.

The Defendant cites State v. Howell,
868 S.W.2d 238, 253-54
(Tenn. 1993) to argue
that he was deprived of his constitutional rights to effectively confront witnesses and to
present his defense because he was unable to adequately impeach Sergeant Fields’s
credibility without using the employment records. In Howell, this court observed that “[i]n
determining whether the constitutionally improper denial of a defendant’s opportunity to
impeach a witness is harmless under the Chapman v. California,
386 U.S. 18
(1967)
standard, the correct inquiry is whether, assuming that the damaging potential of the cross-
examination were fully realized, the error was nonetheless harmless beyond a reasonable
doubt.”
Id.
(citations omitted).

A defendant’s constitutional right to confront witnesses against him includes the
right to conduct meaningful cross-examination. Pennsylvania v. Ritchie,
480 U.S. 39, 51
(1987); State v. Brown,
29 S.W.3d 427
, 430–31 (Tenn. 2000). However, “a defendant’s
right to confrontation does not preclude a trial court from imposing limits upon cross-
examination which take into account such factors as harassment, prejudice, issue
confusion, witness safety, or merely repetitive or marginally relevant interrogation.” State
v. Reid,
882 S.W.2d 423, 430
(Tenn. Crim. App.1994). The propriety, scope, manner, and
control of the cross-examination of witnesses rests within the discretion of the trial court,
and this court will not disturb the limits placed upon cross-examination by a trial court
unless the court has unreasonably restricted the right. State v. Dishman,
915 S.W.2d 458,
463
(Tenn. Crim. App. 1995).

We agree with the State that the Defendant did not raise the alleged violation of his
constitutional right to confront witnesses as an issue in any of his motions for new trial.
As such, we may consider the issue only for plain error. We consider an issue to be plain
error when all five of the following factors are met:

(a) the record must clearly establish what occurred in the trial court; (b) a clear and
unequivocal rule of law must have been breached; (c) a substantial right of the
accused must have been adversely affected; (d) the accused did not waive the issue
- 19 -
for tactical reasons; and (e) consideration of the error is “necessary to do substantial
justice.”

State v. Adkisson,
899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994) (footnotes omitted);
see also State v. Smith,
24 S.W.3d 274, 283
(Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “‘plain error’ must be of such a great magnitude
that it probably changed the outcome of the trial.” Adkisson,
899 S.W.2d at 642
(quoting
United States v. Kerley,
838 F.2d 932, 937
(7th Cir. 1988)).

The Defendant is not entitled to plain error relief here because he cannot show that
a clear and unequivocal rule of law was breached, a substantial right of his was affected,
or that consideration of the alleged error is necessary to do substantial justice. We,
therefore, conclude that this issue is without merit.

III. Alleged Ferguson Violation

As his next issue, the Defendant contends that the State committed a Ferguson
violation by failing to preserve the patrol car video recordings. The Defendant argues that
the evidence was material and potentially exculpatory because it “would identify the ‘male
voice’ heard by Sergeant Fields” as that of Ms. Jordan. He further argues that the officers
were clearly negligent in not “submit[ting]” their SD cards when they became full, in
violation of departmental protocol. The State argues that the trial court properly found that
there was no Ferguson violation because no patrol vehicle video recordings existed. We
agree with the State.

The Tennessee Supreme Court in Ferguson held that “the loss or destruction of
potentially exculpatory evidence may violate a defendant’s right to a fair trial.” State v.
Merriman,
410 S.W.3d 779, 784
(Tenn. 2013) (citing Ferguson,
2 S.W.3d at 915-16
).
When the State has lost potentially exculpatory evidence, Tennessee courts first analyze
whether the State had a duty to preserve the evidence. Ferguson,
2 S.W.3d at 917
. If the
proof demonstrates that the State has breached a duty to preserve evidence, a court must
evaluate (1) the degree of negligence involved; (2) the significance of the destroyed
evidence, considered in light of the probative value and reliability of secondary or
substitute evidence that remains available; and (3) the sufficiency of the other evidence
used at trial to support the conviction.
Id.
The central objective is to protect the defendant’s
right to a fundamentally fair trial.
Id.
If, after evaluating all the factors, the trial court
determines that a trial without the missing evidence would be fundamentally unfair, the
trial court may dismiss the charges, deliver a curative instruction to the jury, or craft such
other orders as appropriate to protect the defendant's right to a fair trial.
Id.
- 20 -
The trial court addressed the Defendant’s Ferguson motion at the March 17, 2022
pretrial hearing, at which both the Defendant and Lieutenant Hailey testified. For his part,
the Defendant insisted that a patrol vehicle video recording existed because he watched it
on Sergeant Fields’s rearview mirror as it was being recorded, and because Sergeant Fields
marked on the video request form that there was a patrol vehicle video recording.
Lieutenant Hailey explained how the video recording process worked, said that Sergeant
Fields could not have removed or tampered with the SD card from his vehicle, and testified
that he checked the SD card from Sergeant Fields’s patrol vehicle and found that no video
recording existed. He stated that the video recording had not been deleted; “[t]here’s not
a video there.” He also stated that the rearview mirror was a monitor and did not show that
the patrol vehicle’s video was recording. At the conclusion of the proof, the trial court
accredited the testimony of Lieutenant Hailey that no video recording existed. The trial
court found that the State had no duty to preserve something that never existed, and, further,
that the video recording would not have been exculpatory.

The record supports the findings of the trial court. The Defendant argued the
significance of Sergeant Fields’s having marked on the video recording request form that
there was a patrol vehicle video recording of the incident. Lieutenant Hailey, however,
explained at both the hearing and at trial that the officers had no access to the SD cards and
no way of knowing whether the video equipment in their vehicles was functioning. The
Defendant, in his brief, asserts that Lieutenant Hailey testified at trial “that the particular
event was recorded over.” This is not entirely accurate. Lieutenant Hailey testified that he
was unable to find any video of the incident on Sergeant Fields’s SD card but was able to
find video footage that was recorded prior to June 1, 2021. This suggests that the video
footage of the incident was not recorded over, but that the video equipment simply
malfunctioned and failed to record the Defendant’s traffic stop and arrest. We, therefore,
conclude that this issue has no merit.

IV. Facebook Video Admitted at Sentencing Hearing

The Defendant next contends that he is entitled to a resentencing hearing because
the trial court erroneously admitted a video recording at his sentencing hearing that the
State failed to disclose as required under the Jencks Act or Rule 16 of the Tennessee Rules
of Criminal Procedure. The State argues that suppression of the video recording was not
warranted because it was not in the possession of the State, and that, regardless, the
Defendant failed to show that he suffered any prejudice by the admission of the video
recording.

The State presented two witnesses at the sentencing hearing: the Tennessee
Department of Correction Probation and Parole officer who prepared the Defendant’s
presentence report and Sergeant Fields. During his testimony, Sergeant Fields agreed that
- 21 -
the defense argued during closing argument that no Facebook videos of himself existed,
and that Sergeant Fields had committed aggravated perjury in his trial testimony about
them. When asked whether he was “able to look back through evidence, namely what was
found on Ms. Natoshia Jordan’s phone” and whether he had found that video recording,
Sergeant Fields responded in the affirmative. The State then asked to play the video
recording. The trial court asked that the prosecutor first explain the substance of the video.
The prosecutor stated that it was a Facebook video of the Defendant that the Defendant
insisted never existed, but which Sergeant Fields had helped the prosecutor find on social
media:

It existed. And we went back and found it. And I thank God that
there’s young people that - - because there’s a nugget of wisdom out there, if
you ever put something out there on the internet it’s always there, and that is
true. And young people are able to find it.

After receiving the prosecutor’s assurance that the video had not been in the sheriff’s
office, the trial court allowed it to be played at the hearing. In his continued testimony,
Sergeant Fields agreed that the Defendant in the video “appear[ed] to be bragging about
dealing heroin[.]”

Although the transcript of the sentencing hearing reflects that the trial court admitted
the Facebook video recording as an exhibit, it is not included in the record on appeal. It is
the appellant’s duty to ensure that the record contains evidence relevant to the issues raised
on appeal. See Tenn. R. App. P. 24(b); State v. Ballard,
855 S.W.2d 557, 560-61
(Tenn.
1993) (noting that defendant’s failure to provide the court with the complete record relevant
to issues presented constitutes waiver of those issues). Furthermore, the Defendant cannot
show that he was prejudiced in sentencing by the admission of a video recording of his
bragging about his drug sales. Because the Facebook video recording was not introduced
as a trial exhibit, there was no discovery violation. The trial court had the Defendant’s
presentence report, which reflected the Defendant’s lengthy criminal history that included
prior drug offenses, heard the evidence at the instant trial that showed the Defendant was
involved in the sale of drugs and was able to view the demeanor and attitude of the
Defendant throughout the proceedings. We conclude that this issue is without merit.

V. Denial of Motions to Recuse

The Defendant next contends that the trial judge “erred when he did not disqualify
himself from presiding over the initial contempt hearing and ultimately erred in not
recusing himself from the entire trial because the contempt charges involved disrespect and
criticism of the [trial judge] and the court’s impartiality can easily be questioned.” The
State argues that the Defendant waived appellate consideration of the motion to recuse in
- 22 -
the indirect contempt proceedings by failing to provide an adequate record for review, and
that the trial judge properly denied the Defendant’s numerous motions to recuse. We agree
with the State.

The record reflects that the State filed a petition for criminal contempt on June 20,
2022, alleging that the Defendant committed criminal contempt for filing a fourth motion
for the trial judge to recuse himself after the trial court had ordered that the Defendant
should not file any more motions under penalty of contempt, and that the Defendant
committed five additional counts of criminal contempt for attempting to subpoena the
Smith County District Attorney, the Smith County Sheriff, an assistant public defender, a
criminal court judge, and a retired trial court judge when the trial court had ordered that
the Defendant, before attempting any further subpoenas, provide the trial court with a list
of witnesses for the trial court to make a determination of whether they were relevant to
the trial. The record also contains the Defendant’s June 28, 2022 “Non-waiver of contempt
judge disqualification[,]” and the Defendant’s July 1, 2022 “Notice of Appeal of Contempt
Orders.”

The record does not include a transcript of the contempt hearing or the trial court’s
order regarding the State’s petition. “It is the duty of the appellant to prepare a record
which conveys a fair, accurate, and complete account of what transcribed in the trial court
with respect to the issues which form the basis of the appeal.” Tenn. R. App. P. 24(b);
State v. Oody,
823 S.W.2d 554, 559
(Tenn. Crim. App. 1991) (citing State v. Miller,
737
S.W.2d 556, 558
(Tenn. Crim. App. 1987)). In the absence of an adequate record, we
generally presume that the trial court’s ruling was correct. See Oody,
823 S.W.2d at 559
.
Thus, we agree with the State that the Defendant’s failure to include an adequate record on
appeal results in the waiver of whether the trial judge erred by not recusing himself from
considering the State’s petition for contempt.

The Defendant contends that the trial judge should have also recused himself from
sentencing the Defendant on the five counts of criminal contempt committed at trial and
should have recused himself from the motion for new trial because the five counts of
criminal contempt were based in part on the Defendant’s having personally disrespected
the trial judge. The Defendant asserts that a speech the trial judge made about the
Defendant after denying another one of the Defendant’s recusal motions 5 “clearly indicates
that the court was partial when making [its] ruling.”

“A judge shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned.” Tenn. Sup. Ct. R.10 § 2.11 (A). Bases for

5
As the State notes in its brief, it is unclear from the record how many motions to recuse were
filed by the Defendant.
- 23 -
which a judge’s impartiality might reasonably be questioned include when “[t]he judge has
a personal bias or prejudice concerning a party or a party’s lawyer” or when the judge “has
made a public statement, other than in a court proceeding, judicial decision, or opinion,
that commits or appears to commit the judge to reach a particular result or rule in a
particular way in the proceeding or controversy.” Tenn. Sup. Ct. R. 10, § 2.11 (A)(1), (5).
“[T]he test for recusal requires a judge to disqualify himself or herself in any proceeding
in which a person of ordinary prudence in the judge’s position, knowing all of the facts
known to the judge, would find a reasonable basis for questioning the judge’s impartiality.”
State v. Clark,
610 S.W.3d 739
, 744 (Tenn. 2020) (internal quotations and citation
omitted). We review a trial court’s denial of a motion to recuse de novo. Tenn. Sup. Ct.
R. 10B § 2.01.

The Defendant has not shown any reason that the trial judge’s impartiality could
reasonably be questioned. Though the trial proceedings were at times contentious, the
record reflects that the trial judge treated the Defendant with respect, courtesy, and fairness.
We disagree with the Defendant’s claim that the trial judge’s comments made just prior to
imposing sentence demonstrated that the trial judge had developed a personal bias against
the Defendant or gave rise to an appearance of the trial judge’s partiality. In those
comments, the trial judge chastised the Defendant for selling methamphetamine - - the
crime for which the Defendant had been convicted - - and for not caring about anything
but himself. The trial judge also made observations about the Defendant’s lack of respect
for the rule of law and his repeated attempts to create a conflict to use in a recusal motion:

The attitude that you exhibit needs to be a warning to all criminal court
trial judges and all criminal court of appeals judges because there is a new
breed of defendants that are out to destroy and reject the rule of law. And,
most importantly - - I’ve mentioned this - - by destructing the process, you’re
trying to create a conflict. Now that’s nothing new. But a person who spends
seven days a week, 24 hours a day, in jail devising conflicts to bring up in
recusal motions.

The above comments echo the trial court’s observation in its July 13, 2022 written
order denying the Defendant’s fourth motion to recuse, in which it found that the Defendant
was purposefully trying to create a conflict with the trial judge. The trial court’s written
order denying the fourth motion to recuse reads in pertinent part:

The Court finds that in these allegations [grounds raised by the
Defendant in his fourth motion to recuse] this Court can continue to be fair
and impartial by a subjective standard and by an objective standard.

- 24 -
In another motion filed by the Defendant on July 1, 2022, Biased
Judicial Usurper Writ of Habeas Corpus, the Defendant further attempted to
disqualify the Court. In this motion the Defendant stated

. . . along with this writ is a detailed list of the near
countless abuses of the office of the judiciary by the
Respondent, i.e. ‘[trial judge] cases’ proving that [the trial
judge], the Respondent, is a low-life piece of s--- and should
be hung from the nearest stout limb from the courthouse to set
an example for all to see that the judicial bench should never
be ‘used for evil’!!! (emphasis supplied)

The Court addressed this crude and degrading statement with the
Defendant and ordered the Defendant not to file pleadings of this nature. The
[C]ourt finds that this Defendant is filing motion after motion in this case and
is attempting to create a conflict with this Court so that the Court will recuse
himself. This Court is fully aware of this attitude, having experienced this
with many other defendants, and this Court can be fair and impartial with this
Defendant under any circumstance that should arise as the Court presides
over three (3) separate cases6 transferred from the Presiding Judge of the
Fifteenth Judicial District.

In our view, the trial court’s comments were well-warranted by the Defendant’s
words, pleadings, actions, and attitude throughout the proceedings. We, therefore,
conclude that this issue is without merit.

VI. Cumulative Error

Finally, the Defendant contends that the cumulative effect of the various errors
prevented him from receiving a fair trial. “The cumulative error doctrine is a judicial
recognition that there may be multiple errors committed in trial proceedings, each of which
in isolation constitutes mere harmless error, but which when aggregated, have a cumulative
effect on the proceedings so great as to require reversal in order to preserve a defendant’s
right to a fair trial.” State v. Hester,
324 S.W.3d 1, 76-77
(Tenn. 2010) (citations omitted).
However, “[t]o warrant assessment under the cumulative error doctrine, there must have
been more than one actual error committed in the trial proceedings.”
Id.
Because we have
concluded that the trial court did not commit any errors, this issue has no merit.

6
The State ultimately nolle prosequied the Defendant’s criminal charges from a pending case in
Wilson County, and the trial judge recused himself from hearing the Defendant’s separate pending Smith
County Criminal Court case.
- 25 -
CONCLUSION

Based on our review, we affirm the judgments of the trial court but remand for entry
of a corrected judgment in count three to reflect the sentence imposed for the Defendant’s
Class B misdemeanor conviction.

S/ JOHN W. CAMPBELL
_ JOHN W. CAMPBELL, SR., JUDGE

- 26 -

State of Tennessee v. John Allen Hessmer

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