State v. Crocker , 1985 Tenn. Crim. App. LEXIS 3118 ( 1985 )

OPINION ON PETITION TO REHEAR

DUNCAN, Judge.

The defendant has filed a petition to rehear requesting us to reconsider our ruling on his complaint about the trial court’s jury instructions.

The defendant argues that his original trial counsel’s failure to object to the trial court’s actions regarding the jury instructions may not be considered “harmless error,” citing State v. Gorman, 628 S.W.2d 739 (Tenn.1982).

As we stated in our original opinion, “defense counsel interposed no objection to the trial court’s actions regarding these matters [the jury instructions], and in fact, affirmatively agreed to them,” and thus we held that the defendant had waived this complaint.

In Gorman, supra, the Supreme Court said:

We think it is inappropriate for the appellate courts to preside over the creation of a body of “harmless error law” revolving around the issue of failure of trial judges to restrain themselves from making oral remarks at a time when it is the obligation of the trial judge to deliver to the jury “every word” in writing. The orderly administration of criminal justice demands adherence to this requirement or its withdrawal from the operation of the harmless error rule, that prevails today.

628 S.W.2d at 740.

Notwithstanding the above comment, we must point out that in Gorman the Supreme Court did, in fact, hold that the instruction complaint under review was harmless. Moreover, unlike the present case, Gorman was not concerned with a waiver issue, which was the basis for our ruling in the instant case.

The defendant also contends that he should be granted relief on the grounds that his original trial counsel provided ineffective representation to him. He argues that his counsel was ineffective by failing to object to the trial court’s actions regarding the jury instructions.

As stated by defendant’s present counsel, who represented him at the motion for new trial hearing, the defendant did allege his ineffective assistance complaint in his motion for a new trial. However, no proof on this issue was offered at that hearing. Thus, with no proof in the present record on this issue, we may not presume any ineffectiveness on the part of the defendant’s original trial counsel.

Accordingly, we find no merit to the arguments raised in the petition to rehear and same is hereby dismissed.

O’BRIEN and CORNELIUS, JJ., concur.