# FILED
June 19, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. No. 01C01-9612-CR-00531

Appellee, * DAVIDSON COUNTY VS. * Honorable Seth Norman, Judge SIDNEY M. EWING, * (Felony murder; Attempted especially aggravated robbery; Assault) Appellant. *

For Appellant : For Appellee : John B. Blair, III John Knox Walkup 176 Second Avenue North Attorney General & Repor ter Suite 406 Nashville, TN 37201 Lisa A. Naylor Assistant Attorney Gener al Cordell Hull Buildi ng, Second Floor Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Kimberly Haas Assistant District A

ttorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 OPINION FILED:__________________
AFFIRMED GARY R. WADE, JUDGE2 OPINION The defendant, Sidney M. Ewing , was convicted of the felony murder and attempted especially aggravated robbery of James Mayberry and the simple assault of Gary Frye.The jury returned a senten ce of life without parole for th e felony murder. The trial cou rt imposed a Range I, tw elve-year sentence for the attempt ed espec ially aggrava ted robb ery convict ion and a n eleven-m onth, twe ntynine-day sentence for the si mple assault conviction.All sentences are to be ser ved concurrently.
In this appeal of right, the de fendant presents the following issues for our review: (1) whether the evi dence was sufficient to sustai n the

conviction; (2) whether the state s uppressed Brady material; (3) whether the trial court erred by allowing Gary David Frye to tes tify; (4) whether during

closing argument the pr osecutor improperly used religious references and "crocodile tears"; and (5) whether the state w ithheld Jencks material.
We find no error and affirm the judgment of the trial c ourt.
Gary David Frye had lived at the business loc ation of Doris S alvage and worked for the victim, James Mayberry.Frye, an alcoholic,testified that the victim routinely dea lt in cash in the co nduct of his bu siness and engage d in large transactions on Friday

s and Mondays. He wa s aware that the vic

tim often carried a chrome-plated .38 caliber Smi th and Wesson in his right front pocket for pr otection. At trial, Frye rec

alled that on January 23, 1995,a Monday, he and the vic tim sold a3 load of scrap metal for seven hundr ed dollars. Payment w as tendered by check and they stopped by the bank before returning to their busi ness location. Later that afternoon, Frye saw the v ictim with an amount of cash. Frye and the victi m closed the store and padlocked the front entr ance at about 4:00 P.M. Charle s Terpstra, also an employee at the busines s, joined them for dinner in an apa rtment located at the business site. Fry

e acknowledged that he and Ter pstra consumed several beers that evening but deni ed being intoxicated.

Between 5:00 and 5:30 P.M., the d efendant stopped by to pawn a leather jacket. When the victim refu sed, the defendant took a seat on the co uch and watched televisi on with the others, ex plaining that he wanted t o use the telephone. Terpstra left between 6:30 and 7: 00 P.M. Frye, who had dozed off in his chair, recalled being awakened suddenly by the victim's screams. Frye testified that he was sitting les

s than six feet from the vic tim when he saw the defendant pi n the victim in the chair an d hold a shiny object, pos sibly a screwdr

iver, to his neck. When Frye a

ttempted to assi st the v

ictim, he was s

truck b y the de fendant i n the left shoulder. Frye remembere d that he buckled under the force of the b low and that the victim fell on him. Frye recalled feeling the pain of the victim's kneecap in his back and hear

d the following excha nge betwee n the defendant a nd the victim: Victim: What do you want? Defendant: I want your m oney. Victim: Let me up, and I'll give it to you. Defendant: Is that all of it? Victim: Oh, Lord, I see the trees a'c oming. Frye described the v

ictim's voice as full of dread. He then heard two sho ts, "pop, pop." When the defendant left, Frye called for help. H e claimed that the 911 operator told him to hang up and call the regular operat or, which he did. He t

estified that he had known the victim had been shot because he was not moving and his head was surrounded by b lood. Frye stated that he did not realize at the ti me that4 he had al so been s hot. W hen Terp stra retu rned to th e shop sh ortly ther eafter, Frye told him not to come into the room. Frye accompanied police to the station to give a statement when an officer noticed th at Frye had been shot in hi s back left shoulder and had a wound on t he top of that sho ulder. Af ter the de ath of th e victim, F rye lived on the streets. A

bout two weeks before tr ial, he entered a de-tox pr ogram at a Nashville hospital.

Frye denied that he passed out rather than dozed off o n the night in question. He also denied that his level of intoxi cation prevented him from real izing he had been shot. He did admit that he was not wearing his prescription ey

eglasses the night of the shooting but explained that he could see ade quately for a distance of three to six feet and had good hea ring.

Charles Speight, an emergency medical technician with the Metro Fire Department, responded to the call . Because the victim had fall en up against the door, he had difficulty enteri ng the building. At tr ial, Speight testified that he had to pull the victim away from the door and turn him over to check his vital signs. He recalled that the victi m, who had been shot in the back of the head, had experienced a "devastating injury

" and could not be reviv ed. Speight noticed abrasi ons on the body which may have resulted from a struggle and observed a burn to the chest which could have been c aused by a hot barrel of a rec ently-fired gun.

Homicide Detective Tim M ason, who assisted in the investigation of the victim's death, spoke with the victim Fr ye on the night of the murder. He did not smell any alcohol duri ng their discussions and did not believe that Fr ye was intoxicated. When he had noticed blood on Fr ye, he asked him to remove his shirt. Detective Mason then obser ved an entrance wound on hi s back and an exit wound5 on his front. He saw other abrasions on his back. He asked Frye if he was in pain and then informed him that he had been shot. Frye was then taken t o the hospital.
Officer Raymond Rader, Jr. c ollected two bullets, a brown leather jacket, a blue jean jacket a nd a screwdriver from the crime scene. He found one hundred dollars in cash in the victim's pocket and two knives underneath a couch cushion.
Detective Al Gray testified that he had interv iewed Frye, Terpstr

a and Doris Salvage employ

ee Jackie Hill, another employee of the victim. H e brought the defendant into custody and recor ded his statement. In the tape rec orded statement, t he defenda nt told Detective Gray that he had st opped by Doris Salva ge to sell the victim a j acket but the victim had r efused. He claimed that the vi ctim then used racial slurs and they had argued. The defendant cont ended that the victim took a gun from his pocket and the two men then wrestled ov er the gun. He claimed that Frye attempted to intervene and was knocked down; at that point, the victim fell and the gun discharged. The defendant denied having a weapon and denied taking any cash from the victim.After the shooting, the defendant cl aimed that he walked to the projects, leavin g his coat behind, and told no one about the shooting.
During the intervi ew, Detective Cl ifford Douglas asked the defendant to clarify the stru ggle that led to the shooting:

Detective: [Y]ou said ... he managed to get shot,

explain that. Defendant: [H]e was falling back, he fell right. So I let

go of his hand ... [a]nd then he tr ipped. And I gu ess that's when it went off. Detective: Now, you probably don't know the dimension on where he wa s shot at, we do, okay. And, you going

to have to come up with a better angle on his falling back like that ....6 *** Detective: So did you have your hand on the gun in

any way? Defendant: On his wrist. Detective: Okay, and ya'll w ere just -- just wrestling over the gun? Defendant: Well, I really can't show

you with my handcuffs; but anyway kind of went upward like this here way

... and laid his hands up like th is whe n the gu n kind of went off

. Detective: Okay. You['re] say ing his gun was r

aised up by his neck? *** Detective: [H]ow many ti mes did the gun g o off? Defendant: Once. *** Detective: [Y]ou need to really thi nk about exactly how

ya'll wrestli ng. Because it's goin g to be some kind of discrepancy on w here he was shot at and how he was s hot compared to how you say ya' ll were wrestl ing. ... Defendant: [H]is hands was up li ke this here .... Detective: [Y]ou got your hands beh ind your head. *** Detective: You need to kind of get that together cause

it ain't going to match up. Defendant: Can you turn it off for a minute. *** Detective: [W]e discussed some discrepancies in the

evidence that we found at the s cene and what you was tell ing us, and you wanted to clear this up. So go ahead and clear that spot up for us. Defendant: Okay, wha t happened me an d [the victim] was scuffling. So I happened t o snatch the gun away from him; and, when I snatched it away fr om him, t he gun w

ent off. Detective: And where y ou think it h it him? Defendant: Somewhere up in the shoulder

.... Detective: In the front or the back? Defendant: In the back. Detective: Then [the victim] fell? Defendant: He fell on, yeah. ... He fell over on the other guy. ... I threw [the gun] over on the couch , and I went on out the door.

*** Detective: Did [the victim] fire at you from the (inaudible)? Defendant: Well, when he first pulled [the gun] out ... it

went off. ... About the time he come out with the pistol, BLAM.That's when I knew he meant business.

*** Detective: [Y]ou sure it was j ust one shot you fired?7 Defendant: That's all.
Detective Gray ack

nowledged that he had no dir ect proof that the defendant had taken any money from the victim although some cash plainly protruded from the victim's pocket. He testified that he had obtained warrants for criminal homicide and agg ravated assault and had not obt ained a warrant for attempted robbery even though he could have done so based upo n the results of his investigation. He s

tated that there was no ev idence that the defendant was armed when he arrived at Doris Salvage.

Detective Douglas testified that he thought the defenda nt had initially denied ever touching the gun, asserting that the victim had shot himself. He recalled that the defendant later ad mitted that he had snatched the gun fr om the victim and, at that time, th e gun had discharged.

Dr. Jessie Giles the forensic pathologist who performed the autopsy testified that the bullet entered the back of the victim's neck just below the base of the skull, passed through his spinal column, and exi ted under the chin. The bullet traveled slightly to the left and downward, inflicting a fatal wound. The victim suffered additio nal wou nds, inc luding a burn t o his ch est and a

lacera tion of t he left abdomen. There were small cuts and scrapes around the vi ctim's nose and eyes which could have been c aused by a punch, kick or fall. Dr. Giles testified that he found no injuries to the victim's hands.

On this proof, the jury returned verdicts of guilt to felony murder, attempted especially agg ravated robbery of the v ictim and simple assault of Fr ye. At the sentencing hearing , the state presented proof that the defendant had a 19808 conviction for second deg ree murder and then called family members to testify. JoAnna Anderson, the victi m's daughter, recalled her father as a loving and car ing person who helped others. She described the death of her father as devastating and that the incident had changed her as a person. She testified t o feeling fear and loss and explained that, s ince the murder of the victi m, her children have had difficulty sleeping and deal ing with their emoti ons. Ms. Anderson testified that when she found out the defendan t had a previous conviction for second degree murder,she was angry and upset that the justice system was not working. Eighty-six-yearold Ernestine Mayberr

y described the vic

tim as a thoughtful and good pers on. She testified that his death had had a negative eff ect on her.

The defendant testified at the sentencing hearing that he felt the victim's death was justifiable because the victim had threatened him with deadly force. The defendant mainta ined that he had felt that his life was in danger. He asserted that he had never tr ied to rob the victim.
The jury found that the defendant had been prev iously convicted of one or more felonies involv ing violence to a per

son and that the murder was committed for the purpose of avoidin g arrest or prosecuti on. Tenn. Code Ann. § 39- 13-204(i)(2), (6). The jury unanimously sent enced the defendant to life without th e possibility of parole.

I

The defendant contends that the evidence was insufficient to support the verdict for felony mur der and attempted especially aggravated robbery. He does not contest the sufficiency of the ev idence for the simple assault c onviction.9 On appeal, of course, the state i s entitled to the stronges t legitimate view of the evidence a nd all reasonable inferences w hich might be drawn ther efrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the wei ght to be given their testimony, and the reconci liation of conflicts in the proof are matters entruste d to the jury as trier

of fact. Byrge v. State , 575 S.W.2d 292, 295 (T enn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the lig ht most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13 (e).

At the time of the offense, felony murder w as defined under the 1989 Act as "a reckless kil ling of another committed in the perpetration of, or attempt to perpetrate any first degr ee murder, arson, rape, robber y, burglary, the

ft, kidnapping or aircraft piracy." Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 1994). To sustain a conviction for felony murde r, "the killing must hav e been in pursuance of, rather than collateral to the unlaw

ful act described by the st atute." State v. Severs , 759 S.W.2d 935, 938 (Tenn. Crim. App. 1988). The death of the victim must have had "an intimate relation and close connection with the felony , ... and not be separate, distinct, and independent from it . ..." State v. Farmer , 296 S.W.2d 879, 883 (Tenn. 1956).
Robbery is defined as "the i ntentional or knowing theft of property from the person of another by vi olence or putting the pers on in fear." Tenn. Code Ann. § 39-13-401(a). Especiall y aggravated rob bery is robbery "[ a]ccomplished with a deadly weapon; and ... [w ]here the victim suffers ser ious bodily injury ." Tenn. Code Ann. § 39-13-403(a). A perso n commits criminal attempt w ho, "acting with the ki nd10 of culpability otherw

ise required for the offense: ... [ a]cts with intent to compl ete a course of action or cause a res ult that would constitut e the offense, under the circumstances surrounding the conduct as the person beli eves them to be, and the conduct constitutes as substantial step toward the commi ssion of the offense." Tenn. Code Ann. § 39-12-101(a)(3)

.

The mental state of intentional is satisfie d "when it is the person's conscious objective .. . to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-302(a). A perso n acts knowingly "when the person is aw are that the conduct is reasonably c ertain to cause the result." Tenn. Code Ann. § 39-11-302(b). One is reckless "when the person is aware of but consciously disregards a substantial and unjustifiable r isk [and to do so] constitutes a gross deviation from the standard of care that an ordinary person would exerci se ...." Tenn. Code Ann. § 39- 11-302(c).
The defendant argues that Frye's testimony is not credible to establish attempted especially agg ravated robbery and, th erefore, both the felony murder conviction and the robbery conviction must be rev ersed. The defendant contends that no reasonable juror coul d have found the testimony of Fry e, an alcoholic with poor eyesight, to be reliable. The defendant points out contradictions in Frye's testimony and asserts that the state failed to prove that the de fendant used a deadly weapon.
In our assessment, the proof is ade quate. Frye testified that the defendant, using what appeared to be a screwdriver, threatened the victim. He heard the defendant demand of the victim, "I want your money." H e remembered that the victim offered to comply . Then Frye heard the defendant ask, "Is that all of11 it?" Just before Frye hear d two shots fired, the v ictim, with a voi ce full of dread, said, "Oh, Lord, I see the tree s a'coming."
Although the state did not prove that the defenda nt actually took cash from the victim, the evid ence, as accredited by the jury, established that the defendant attempted to take the victi m's cash by force, using a screwdriver.A screwdriver may

be considered a deadly w eapon. See Tenn. Code Ann. § 39-11- 106(a)(5)(B). Demanding money and holding a weapon to the victim's throat are substantial steps towar d completion of the offense. During the robbery attempt, the victim sustained seri ous bodily injury . He was shot in the back of his neck and sustained other abrasions and a burn. See Tenn. Code Ann. § 39-11-106(a)(3 4) (1997). The defendant's words s uggest that his acts w ere intentional or knowing. After demanding money, the defendant fired two shots in quick succession and the defendant fled. The bullet fatally w ounded the victim cutting a path from the back of his neck through his spi nal cord. When firing the gun, the culpabi lity of the defendant was at the very least reckless.

As for the credibility

of Frye, it was the p rerogative of the jury to determine whether his tes timony was truthful. Thi s court neither rewei ghs nor reevaluates the proof. The v erdict of guilt accredits the proof offered by the state, including Frye's recollection of the offenses. In our view, a rational trier of fact could have found beyond a reasonable doubt that the evidence was sufficient to support the convictions of first deg ree murder during the commis sion of a felony and attempted especially agg ravated robbery. See Jackson v. Virginia , 443 U.S. 307 (1979).12 II The defendant next argues that the state supp ressed favorable materia l in vi olation

of Brady v. Maryl and , 373 U.S. 83 (1963), and thereby denied the defendant a fair trial. The state c ontends that because the information w as disclosed during tri al, no prejudice to the defendant re sulted.

In the la ndmark c

ase of Brady v. Maryl and , the United States Supre me Court ruled that the prosecutor has a duty to furnish ex culpatory evidence to

the defendant. 373 U.S. at 87. Excul patory evidence may pertain to the guilt or innocence of the accused and/or the puni shment which may be imposed if the accused is convicted of the crime. State v. Marshall , 845 S.W.2d 228 (Tenn . Crim. App. 1992). The Supreme Court in Brady reasoned that a fair trial and a just result could not be obtained when, at the time of trial, the prosecuti on suppressed information favorable to the accus ed. Brady , 373 U.S. at 87-88.
Any "suppression by the prosecution of evidence favor able to an accused upon request vi olates due process where the evidence is material either to guilt or punishment, ir

respective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87. This duty t o disclose extends to al l favorable information irrespective of whether the evidence is admiss ible. Branch v. State , 469 S.W.2d 533 (Tenn. Crim. App. 1969). Information use ful for impeaching a witness is considered favorable informati on that the prosecutor may not withhold. Giglio v. United States , 405 U.S. 150 (1972). And, w hile Brady

does not require the state to investigate for the defendant, i t does burden the prosecution w ith the responsibility of disclosing statements of w itnesses favorable to the defense. State v. Reynolds , 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The duty does not extend to information that the defense already possesses or is able to obt ain or to information13 not in the possession or cont rol of the prosecution. Banks v. State , 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977).

Before this court may find a due process violation under Brady , the following elements must be e stablished: 1. The defendant must have requested the information (unless the evidence is obviously exculpatory, in which case the State is bound to release the information whether requested or not); 2. [t]he State must have suppress ed the information; 3. [t]he information must have been fav orable to the accused; and 4. [t]he information must have been material. State v. Edgin , 902 S.W.2d 387, 39 0 (Tenn. 1995) (as amended on rehearing).

In Edgin , our supreme court adopted the foll owing standard for materia lity: [T]here is constitutional error "if there is a reasonable

probability that, had the e vidence been disclosed to the defense, the result of the proceeding would have been different." ... "[T]he touchsto ne of materiality is a 'reasonable probability ' of a different result, and the adjective is important.The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair t rial, understood as a tri al resulting in a verdict worthy of confidence. A 'reasonable probabi lity' of a d iffere nt result is accordi ngly shown when the government's evidentiary suppres sion 'undermines confidence in the outcome of the trial.'" Edgin , 902 S.W .2d at 390-91 (qu oting Kyles v. Whitley , 115 S. Ct. 1555, 1566 (1995)).

The defendant maintains that h e filed a motion for discovery in which he made a special request for "fav orable information," including interview repor

ts or14 memoranda which might contr adict the evidence the state anticipated presenting at trial. The discovery

motion is not included in the technical record.
At trial, following

the testimony of Detectiv e Porter, defense counsel requested Jencks material and the state prov ided the trial court w

ith the investigatory not

es made during intervi ews for an in camera rev iew. At the conclusion of a jury out hearing, the court found as follows:

In reviewing thi s, there are two pieces of it ... seems to me may be Brady. [The vi ctim] was shot in the back of the head .... According to the [summary statement of Frye] by Detectiv

e Porter, [the victim] was laying face up at the time he was shot. ... First of all, there's .. . nothing in there that, "I see the trees coming," or "Give me y our money," "If you let me get up, I 'll get the money," ... [ The summary] says (reading): The victim, holding a kn ife to his throat was saying, "W here's th e money? " Mr. Frye states he attempted to assist the victim and the suspect hit him, knocking him to the floor. As Frye was

lying on his stomach

... The witness, he's lay

ing face down on the floor. And the victim ends up lying on top of him. And then in parenthesis, Frye (reading): And the victim is face up. M r. Frye states that he heard two shots and the suspect ran out the door. And based on this, the victim is laying face up w hen he was shot. ... I think the Defendant is entitle d to that because I think that is potentially exculpatory because his testimony doesn't seem consistent with what the rest of the evidence is going to show . ... [T]he State should have voluntarily

turned this over to the d efendant a long time ago because if it's the State's theory ... that [the victim] was shot i n the back of the head, and the State has information that [the victim] was lying face up when he was shot, the only w ay he could have been shot would have been by the individual underneath him

. ... *** The other thing that I believ e is exculpatory i s the statement taken by Detectiv e Gray from Mr. Anthony Love where he says (reading): Love said he saw [the defendant] driving the victim's truck. And according to the victim, [the defendant did] not r eturn the victim's truck until the next day. Love said the victim was ir

ritated with [the defendant] for that.15 *** [W]hen a self-def ense issue is raised, and there is indications, right or

wrong, during the

investigating s

tage, that the victim may, for w hatever reason, accordi ng to this, misappropriating his truck or whatev er, be upset with the Defendant, I submit that that's possibly exculpatory evi dence. (Emphasis added).

The trial court provided the defendant with portions of the detectives' notes that were found to be potentially exculpatory. The notes are not include d in the record. Only the co urt's recitation of those notes indicate their contents. The trial court further found that the state had not intentionally withheld the evidence

and that there was no prejudi ce to the defendant.

The defendant contends that failure of the state to disclose this evidence prior to tri al warrants the remedy of a new trial. The state ar gues that the information was not material or exculpatory and, because it was disclos ed during trial, the defendant was not pr ejudiced. The state relies on State v. Jim Inman , C.C.A. No. 03C01-9201-CR-00020 (Tenn. Crim. App., at Knoxville, Nov. 23, 1993), app. denied , (Tenn. 1994).

In Inman , Michael Buzi was murdered and Albert Tizov was severely beaten during a jewelr

y sale in Inman's home. Tiz ov provided the state w ith a written statement and a tape- recorded statement which w as transcribed. The state did not disclose the transcript or the written statement of Tizov to the defe nse until after the state's direct ex amination of Tizov. Inman arg ued on appeal that the transcript contained Brady material. This court held that in terms of prejudice, the statements in the transcript were "inconsequential , given the remaining proof." Inman , slip op. at 19. The panel ruled that "If previously undisclosed evidence is16 disclosed during tri al, then no Brady violation occurs unl ess prejudice results fro m the delayed disclosure." Id. (citing United States v. Wood , 806 F.2d 658, 665 (6th Cir. 1986)). Delay

ed disclosure results i n prejudice to the defendant and may d eny the defendant due process when it is "too late for the defendant to make use of any benefits of the evidence." Nassar v. Sissel , 792 F.2d 119, 121 (8th Cir. 1986).

Here, the trial court provided the evidence to the defendant on the first day of trial before conclusion of the recross-examination of Frye. The defendant did not request a continuance or recall Frye, w

ho was still under su bpoena, during the remainder of the trial or sentencing hearing. Thus the defe ndant had ample opportunity to use the evidence in question during trial.

The witness Love was

equally availabl e to the defendant and to the state. His name and address w ere included on the indictment. He lived next door to the defendant's grandmother. Yet , after the state's direct ex amination of Love, the defendant chose not to cross-examine. Nor did defe nse counsel attempt to elicit Love's testimony that the victim was mad at the defendant over the misuse of his truck, which possibl

y could have furnished so me support to the defendant's claim of self-defense. In our view , the defendant was not prejudic ed by the delayed disclosure. The defendant would not be entitled to a new tr ial on this ground.

III The def endant a lso maint ains that the trial c ourt erre d by allowin g Frye to testify because the state disregarded its continuing duty to disclose discoverable information u nder Rule 16 (c), Tenn. R . Crim. P. The state included Frye 's name and last known address on the indictment. See Tenn. Code Ann. § 40-17-106. Although defense counsel made a concer ted effort to locate and intervi ew Frye, he17 was unable to do so. The s tate respond s that after the victim's death, Fry e became homeless and had no address. The pros ecutor asserted that she promptl y informed defense counsel of Frye's location at a Nashville hospital several days before trial.

The trial court heard the arg uments of counsel at the motion in li mine. Frye testified that he w as an eyewitness to th e murder of the victim and that, although he was a resident of Nashville, he had no address. He slept on docks or in old junk cars. He did not keep the District Attor

ney's office advised of his l ocation and admitted that he would be a di fficult person to locate. Fry e testified that at the time of trial he lived at Meharry Hospital i n a de-tox unit. He specifically recalled tha t about a week earlier defense c ounsel had contacted him to req uest an interview. Frye testified that he had r efused and would do so again. The trial court found no bad faith on the part of the prosecution and no prejudice to the defendant, "it's ... crucial that [Frye]

was here last Monday and apparently ... refused to t alk at that time."
The pretrial discovery motion by the defense is not in the record. It is the duty of the appellant to prepar e a record that convey

s a fair, accurate, and complete account of what transpi red in the trial court w ith respect to the issues that form the basis for the appeal. Tenn. R. App. P. 24(b); State v. Miller , 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). When the record is incomplete and does not contain information relevant to a particular issue, this court may not make a rul ing. State v. Cooper , 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987). In the absence of an adequate record, this court must presume the correctness of the trial court's ruling. Appellate cour

ts may only revi ew what is in the r ecord and not what might have been or should have been included. Dearborne v. State , 575 S.W.2d 259, 264 (Tenn. 1978). In consequence, w e defer to the ruling of the tri al court.18 Even if the discovery

motion had been included in the r ecord, the defendant would not be entitled to r elief. There has been no showing of prejudice. When there has been a failure to produce discov erable material withi n the allotted time, the trial judge has the discretion to fashion an appropriate remedy, such as a continuance. Tenn. R. Crim. P.16(d)(2). Whether the defendant has been prejudiced by the failure to disclose is alway s a significant factor. State v. Baker , 751 S.W.2d 154, 16 0 (Tenn. Crim. App. 1987). Exclusion of the evidence is a drastic remedy and should not be implemented unless the re is no other reasonable alternative. See, e.g. , State v. House , 743 S.W.2d 141, 147 (Tenn. 1987).

In this instance, the defendant knew Frye would be his primary accuser. The name was incl uded on the indictment. The only possible prejudice to the defendant was the lack of opportuni ty to investigate Frye's background. Frye, however, testified that he rarely stayed i n one place more than one night and he was emphatic in his refusal to tal k with defense counsel. Mo reover, the trial cou rt had instruct ed the st ate to ma ke Frye avai lable som etime be fore the trial bega n if Frye would talk with defense counsel. Such a witness is not required to cooper ate with the defense so long as that failure to cooperate does not result fro m any action on the part of the state. State v. Singleton , 853 S.W.2d 490, 49 3 (Tenn. 1993).

IV The defendant asserts that the prosecutor acted improperly duri ng closing argument. He challenges the state's us e of religious references, i ncluding use of the phrase, "I pray." He also asserts that the prosecutor displayed "croco dile tears" to inflame the jury. On this basis, defense counsel requeste d a mistrial, which the trial court denied.19 Trial courts have subst antial discretionary

authority in determini ng the propriety of final argument.Although counsel is g enerally given w ide latitude, courts must restrict any impr

oper argument. Sparks v. State , 563 S.W.2d 564 (Tenn . Crim. App. 1978). Closing argument must be temperate, must be based upon evidence introduced during trial , and must be relevant to the i ssues at trial. State v. Sutton , 562 S.W.2d 820 (Te nn. Crim. App. 1978). The bounds of proper argume nt largely depend upon the facts in evidence, the character of the trial, and the conduct of opposing counsel. See State v. Byerley , 658 S.W.2d 134 (Te nn. Crim. App. 1983); Evans v. State , 557 S.W.2d 927 (Tenn. Crim. App. 1977); Gaston v. State , 506 S.W.2d 802 (Tenn. Crim. App. 1973).

The test to be applied in rev iewing prosecutori al misconduct is whether "the improper conduct could hav e affected the verdict to the prej udice of the defendant." Harrington v. State , 385 S.W.2d 758, 75 9 (Tenn. 1965). The factors are set out in Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), as adopted by the Tennessee Supreme Cour t in State v. Buck , 670 S.W.2d 600, 609 (Tenn. 1984):

(1) the conduct complained of, v iewed in light of the facts and circumstances of the case; (2) the curative measur es undertaken by the court a nd the prosecutor; (3) the intent of the prosecutor in making the improper argument; (4) the cumulative effect of the impr oper conduct and any other errors in the rec

ord; and (5) the relative str

ength or weakness of the cas e. Both the state and the defense must be gi ven the opportunity to ar gue not only the facts in the record but any reasonable inferences drawn therefrom. See Russell v. State , 532 S.W.2d 268 (Tenn. 1976). Confusing or irr elevant arguments should n ot20 be permitted. See Burns v. State , 591 S.W.2d 780 (Te nn. Crim. App. 1979); Brazelton v. State , 550 S.W.2d 7 (Tenn. Crim. App. 1974).

Again, we are confronted w ith an incomplete record. N o transcript of the closing argument is included for our review. The appellant has the duty to prepare a record that conv eys a fair, accurate, and c omplete account of what transpired in the trial

court with respect t

o the issues that form the basis for the appeal. Tenn. R. App. P. 24(b); Miller , 737 S.W.2d at 568. We may not rule on an incomplete record. Cooper , 736 S.W.2d at 131. In the absence of an adequate record, our court must pre sume the correctness of the tri al court's ruling. Appellate courts may only rev

iew what is in the

record and not what mig ht have been or should have been included. Dearborne , 575 S.W.2d at 264. Without the transcript of the prosecutor's closing argument, we cannot ev aluate the appropriateness of the her remarks to and conduct before the jury.

V In his final issue, the defendant cont ends that the state failed to maintain and produce Jencks material, pursuant to Rule 26.2, Tennessee Rules of Criminal Procedure. The st ate maintains that the trial c ourt correctly rul ed the information in question w as not Jencks material.
After the direct testimony o f Detective Gray, the d efendant demanded the notes made by the detective during the course of his investigation. W hile Detective Gray conc

eded that he had used his notes to pr epare his formal report, he asserted that the formal report c ontained the material included i n his notes. Upon further questioning, the t rial court then determined from Detective Gray that the21 report provided to defense coun sel was "a typed trans cript of [his] handwrit

ten notes" and ruled that the Jencks rule had been satisfied.

The applicable rule defines Jencks material as follows: (1) A written statement made by the witness that is signed or otherwise adopted or approved by him; or (2) A substantially

verbatim recital of an or al statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic mechanical, electrical,or other recording or tr

anscription thereof. Rule 26.2(g), Tenn. R. Cr im. P. Investigation notes are not Jencks material because the information uncovered duri ng investigation i s not the signed, adopted or approved statement of the inves tigator/witness. State v. Payton , 782 S.W.2d 490 (Tenn. Crim. App. 1989). Nor do the investigation no tes in question come wi thin the purview of Rule 26.2(g)(2), as they are not stenographic, electrical or otherwise recorded and transcribed. Id. ; see State v. Daniel , 663 S.W.2d 809, 811-12 (Tenn. Crim. App. 1983).

Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:

________________________________ William M. Barker, Judge

________________________________ Curwood Wi tt, Judge