IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 18, 2000

JAMES DUBOSE v. STATE OF TENNESSEE

 Appeal as of Right from the Circuit Court for Williamson County

No. 198-43 Donald P. Harris, Judge

No. M2000-00478-CCA-R3-CD - Filed February 1, 2001

The petitioner, James DuBose, was convicted by a jury in the Williamson County Circuit Court of

one count of first degree felony murder with the underlying felony being aggravated child abuse.

The trial court sentenced the petitioner to life imprisonment in the Tennessee Department of

Correction. This court and the Tennessee Supreme Court affirmed the petitioner’s conviction. The

petitioner subsequently filed a petition for post-conviction relief. After a hearing, the postconviction court denied the petitioner’s request for relief. On appeal, the petitioner raises the

following issues for our review: (1) whether the State engaged in prosecutorial misconduct during

the course of the petitioner’s trial; (2) whether petitioner’s trial counsel provided ineffective

assistance of counsel; (3) whether the trial court erred in failing to give curative jury instructions;

and (4) whether the petitioner was charged pursuant to a faulty indictment. Upon review of the

record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

ROBERT W. WEDEMEYER, JJ., joined.

James DuBose, Clifton, Tennessee, pro se, (post-conviction); Eugene Honea, (post-conviction) and

Robert Plummer, Franklin, Tennessee (trial and direct appeal), for the appellant, James DuBose. 

Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General,

Joseph Baugh, District Attorney General (trial), Ronald L. Davis, District Attorney General (postconviction), and Jeffrey Burks, Assistant District Attorney General (post-conviction), for the

appellee, State of Tennessee.

OPINION

I. Factual Background

The evidence as summarized in the petitioner’s direct appeal established that on the

afternoon of July 3, 1993, the victim, sixteen-month-old Rufus Jones, Jr., was left in the sole care
1

 For a more thorough recitation of the facts, see State v. DuBose , 953 S.W.2d 649 , 650-652 (Tenn. 1997);

State v. DuBose , No. 01C01-9405-CC-00160, 1995 WL 504803, at *1-7 (Tenn. Crim. App. at Nashville, August 25,

1995).

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of the petitioner, James DuBose, while the victim’s mother, Ann Jones (hereinafter “Jones”), left to

get a pizza and to rent a movie video. When she left, the victim was sitting at the kitchen table

eating a hot dog. When Jones returned home with the movies, she discovered the victim “asleep”on

the bedroom floor covered with a blanket. The petitioner told Jones that he had put the victim to bed

because the victim was sleepy. During the movie, the petitioner checked on the victim and

discovered that he was not breathing. Jones attempted to perform mouth to mouth resuscitation on

the victim, but the victim exhibited little indication of life. The petitioner and Jones then took the

victim to the hospital. At the hospital, the petitioner claimed that he had found the victim pinned

between the bed and the wall. According to the petitioner, the victim had dropped his bottle and was

trying to retrieve it when he was injured. Hospital staff unsuccessfully attempted to resuscitate the

victim and pronounced the victim dead at approximately 9 p.m.

Dr. Julia Goodin performed an autopsy on the victim. The autopsy revealed that the

victim died as a result of blunt trauma to the abdomen, consistent with trauma caused by an adult

fist. Furthermore, Dr. Goodin noted bruising on the victim’s abdomen which she opined could have

been caused when the knuckles of the fist struck the victim. The victim also had older injuries, some

of which had left internal scarring that could have contributed to the victim’s death. Dr. Goodin

found no indication that the victim had been pinned between the bed and the wall, and there were

no signs that the victim had asphyxiated. 

At trial, Jones testified that the petitioner was generally good with the children and

was a substitute father. However, the petitioner’s uncle, Harvey Wood (hereinafter “Wood”),

testified that the petitioner hated the victim’s father and the victim. Furthermore, Wood witnessed

the petitioner strike the victim on one occasion. Wood also stated that the petitioner tried to get

Wood to change his testimony at trial.1

A jury convicted the petitioner of one count of first degree felony murder with the

underlying felony being aggravated child abuse. The trial court sentenced the petitioner to life

imprisonment in the Tennessee Department of Correction. On direct appeal, this court and the

Tennessee Supreme Court affirmed the petitioner’s conviction. The petitioner subsequently filed

a petition for post-conviction relief. After a hearing, the post-conviction court denied the petitioner’s

request for relief. On appeal, the petitioner raises the following issues for our review: (1) whether

the State engaged in prosecutorial misconduct during the course of the petitioner’s trial; (2) whether

petitioner’s trial counsel provided ineffective assistance of counsel; (3) whether the trial court erred

in failing to give curative jury instructions; and (4) whether the petitioner was charged pursuant to

a faulty indictment.

II. Analysis
2

 The petitioner failed to include the trial transcript in the record for our review.

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Because the petitioner initiated his post-conviction proceedings after May 10, 1995,

he must prove all of his factual allegations by clear and convincing evidence. Tenn. Code Ann. §

40-30-210(f)(1997). Unless the evidence preponderates otherwise, the post-conviction court’s

factual findings are binding upon this court. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

Likewise, the post-conviction court resolves all questions pertaining to the credibility of witnesses

and the weight and value to be attributed to their testimony. Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). Additionally, we may not re-weigh or reevaluate the evidence or

substitute our inferences for those drawn by the post-conviction court. Williams v. State, No.

03C01-9801-CC-00013, 1999 WL 58608, at *2 (Tenn. Crim. App. at Knoxville, February 9, 1999).

A. Prosecutorial Misconduct

The petitioner’s allegations of prosecutorial misconduct relate to audio and video

tapes that the Tennessee Bureau of Investigation made of a meeting between the petitioner and Wood

at a motel prior to trial. The petitioner contends that the meeting was planned so that the petitioner

could persuade Wood to change his testimony. 

The petitioner first alleges that the State elicited and failed to correct false testimony

given by Wood at trial. The petitioner claims that Wood testified at trial that Wood had sold a stereo

to pay for the motel room where the meeting occurred. The State requested a jury-out hearing at that

point in Wood’s testimony and informed the court that the meeting was set up by the Tennessee

Bureau of Investigation. The petitioner contends that the State never corrected Wood’s testimony

regarding the source of payment for the motel room. 

This court has stated:

[i]t is a well established principle of law that the state’s knowing use

of false testimony to convict an accused is violative of the right to a

fair and impartial trial as embodied in the Due Process Clause of the

Fourteenth Amendment to the United States Constitution and Article

I, §§ 8 and 9 of the Tennessee Constitution. [Moreover,] [w]hen a

state witness answers questions on either direct or cross examination

falsely, the district attorney general, or his assistant, has an

affirmative duty to correct the false testimony.

State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993)(citations omitted). However, the

false testimony must be material to entitle the accused to a new trial. Id. at 621.

Initially, we note that the source of payment for the motel room was not material.

Moreover, there is no evidence in the record before us to suggest that the tapes were ever introduced

as part of the State’s proof against the petitioner or by the petitioner at trial.2

 Additionally, the

District Attorney General testified at the post-conviction hearing that he was not aware of any

testimony that was falsely given at trial. The post-conviction court found that the petitioner failed
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to prove that the District Attorney General engaged in prosecutorial misconduct. We cannot

conclude that the post-conviction court was in error. This issue is without merit.

The petitioner also claims that the State suppressed evidence favorable to him at trial

in violation of Brady v. Maryland. The petitioner claims that he was denied his right to due process

when the State failed to disclose the potentially exculpatory audio and video tapes of the meeting

between the petitioner and Wood at the motel. The United States Supreme Court held in Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,1196-97 (1963), that the State has a constitutional duty

to furnish the petitioner with exculpatory evidence pertaining to the petitioner’s guilt or innocence

or to the potential punishment faced by the petitioner. Furthermore, “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87, 1196-97. Moreover, the State’s duty to disclose exculpatory evidence

extends to evidence which may be used by the petitioner for impeachment purposes. Giglio v.

United States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 766 (1972).

The petitioner bears the burden of proving a Brady violation by a preponderance of

the evidence. State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995). In order to prove that a Brady

violation exists, the petitioner must show that: (1) the petitioner requested the information (unless

the evidence is obviously exculpatory, in which case the State is obligated to release such evidence

regardless of whether or not it was requested); (2) the State suppressed the information; (3) the

information was favorable to the petitioner; and (4) the information was material. Id.

We note that the record reveals that the State did disclose the tapes, but delayed

disclosure until Wood’s testimony. This court must analyze a delayed disclosure of evidence

differently than a complete nondisclosure of evidence. In fact, “if there is only a delayed disclosure

of information, in contrast to a complete failure to disclose exculpatory information, Brady normally

does not apply, unless the delay itself causes prejudice.” State v. Hall, No. 01C01-9710-CC-00503,

1999 WL 34782, at *9 (Tenn. Crim. App. at Nashville, January 28, 1999), perm. to appeal denied,

(Tenn. 1999).

Accordingly, the petitioner must establish that the delayed disclosure prevented him

from using the disclosed material effectively in preparing and presenting his case. State v.

Caughron, 855 S.W.2d 526, 548 (Tenn.1993)(Daughtrey,J.,dissenting)(citing United States v.

Ingraldi, 793 F.2d 408,411,412 (1st Cir. 1986)). Moreover, if the petitioner failed to move for a

continuance after receiving the information, thoroughly cross-examined the witness regarding the

evidence, or failed to call or recall an available witness concerning the exculpatory statements, the

potential Brady violation may be cured. See id., State v. Ewing, No. 01C01-9612-CR-00531, 1998

WL 321932, at *9 (Tenn. Crim. App. at Nashville, June 19, 1998), opinion vacated and reentered

by State v. Ewing, No. 01C01-9612-CR-00531, 1998 WL 485614, at *1 (Tenn. Crim. App. at

Nashville, August 18, 1998).

This court previously addressed this issue on direct appeal. We stated:
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[w]e point out that this recorded statement was not introduced into

evidence against the [petitioner]. As soon as the trial court learned of

its existence, the court ordered the [petitioner] to have access to the

recording and further volunteered additional time if necessary to

evaluate and respond to the recording. The [petitioner] did not argue

at trial that any additional time was needed for further investigation

or research. While it is clear that the [petitioner] was entitled, as

continuing discovery, to have a copy of the statement, because the

statement was not used in any way, we are unable to conclude that the

[petitioner’s] right to a fair trial was in any way prejudiced by the

failure of the State to advise the [petitioner] in advance of the

recorded statement. 

State v. DuBose, No. 01C01-9405-CC-00160, 1995 WL 504803, at *11 (Tenn. Crim. App. at

Nashville, August 25, 1995). “A matter previously determined is not a proper subject for postconviction relief.” Forrest v. State, 535 S.W.2d 166, 167 (Tenn. Crim. App. 1976). Furthermore,

“[a] ground for relief is previously determined if a court of competent jurisdiction has ruled on the

merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-206(h) (1997). Accordingly, because

we have previously determined this issue, we will not now reconsider our decision. See Cole v.

State, 798 S.W.2d 261, 264-65 (Tenn. Crim. App. 1990).

B. Ineffective Assistance of Counsel

Because a claim of ineffective assistance of counsel is a mixed question of law and

fact, our review of this issue is de novo. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). To

establish a cognizable claim of ineffective assistance of counsel, the petitioner must demonstrate two

things: 

First, the [petitioner] must prove that his lawyer failed to render

competent legal representation. Once the [petitioner] proves

incompetence, he must then prove that the incompetent representation

prejudiced him to the extent of undermining confidence in the

outcome of the trial.

State v. Harris, 978 S.W.2d 109, 114 (Tenn. Crim. App. 1997); see also Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). In determining whether or not counsel’s

performance was deficient, the applicable test is whether counsel’s performance was within the range

of competence required of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930 (Tenn.

1975). 

The petitioner claims that his trial counsel was ineffective because he failed to more

aggressively cross-examine Jones and Wood. Particularly, the petitioner contends that his trial

counsel should have cross-examined Wood about his statements concerning Wood’s meeting with

the petitioner at the motel. Petitioner’s trial counsel testified at the post-conviction hearing that,

while the video tape of the meeting showed that the petitioner told Wood that the petitioner could

not advise Wood to change his testimony, the tape also showed that the petitioner made the statement
3

 We note that the petitioner has failed to include a copy of either the video or audio tape of this meeting

between the petitioner and Woo d. 

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while searching the room in a suspicious manner, as if looking for recording devices. Trial counsel

maintained that he was afraid of the impact that might be made on the jury upon witnessing the

video.3 Therefore, as part of his trial strategy, petitioner’s trial counsel chose not to pursue this

avenue. This court has stated that, “[w]hen reviewing trial counsel’s actions, this court should not

use the benefit of hindsight to second-guess trial strategy and criticize counsel’s tactics.” Irick v.

State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998). 

Additionally, the petitioner claims that his trial counsel should have more

aggressively cross-examined Jones concerning her alleged abuse of the victim. Trial counsel

testified that he was pleased with the cross-examination of Jones. This court has noted that “crossexamination is a strategic and tactical decision of trial counsel, which is not to be measured by

hindsight.” State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App. 1991). Accordingly, the

petitioner has failed to prove ineffective assistance of counsel on this basis. See Jackson v. State,

No.01C01-9412-CR-00427, 1995 WL 747843, at *10 (Tenn. Crim. App. at Nashville, December

19, 1995).

The petitioner also alleges that his trial counsel failed to call witnesses that would

have testified to facts suggesting that Jones or Wood could have killed the victim. However, the

petitioner did not present any of these witnesses at the post-conviction hearing. The petitioner’s own

testimony was the only evidence introduced by the petitioner at the post-conviction hearing. This

court has stated:

[w]hen [a petitioner] contends that trial counsel failed to discover,

interview, or present witnesses in support of his defense, these

witnesses should be presented by the [petitioner] at the evidentiary

hearing. As a general rule, this is the only way the [petitioner] can

establish that (a) a material witness existed who could have been

discovered but for counsel’s neglect in the investigation of the case;

(b) a known witness was not interviewed; (c) the failure to discover

or interview a witness inured to his prejudice; and (d) the failure to

have a known witness present or call the witness to the stand resulted

in the denial of critical evidence which inured to the prejudice of the

[petitioner]. 

Holt v. State, No. M2000-00163-CCA-R3-PC, 2000 WL 1612352, at *3 (Tenn. Crim. App. at

Nashville, October 30, 2000). Additionally, “[n]either the trial court nor this court may speculate

as to what [the witnesses’] testimony may have been.” Id. In the instant case, “because none of the

witnesses testified at the hearing, the petitioner was simply unable to show prejudice.” Thompson

v. State, 958 S.W.2d 156, 164 (Tenn. Crim. App. 1997); see also Meeks v. State, M1998-00791-

CCA-R3-PC, 2000 WL 235825, at *6 (Tenn. Crim. App. at Nashville, March 3, 2000). This issue

is without merit.
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The petitioner also complains that his trial counsel failed to obtain statements by

Jones and Wood prior to trial. As the post-conviction court noted, 

[i]t is unclear whether petitioner objected to his trial attorney’s failure

to interview these witnesses or whether her feels his attorney should

have made an effort to obtain written statements in the possession of

the state prior to trial.

In either case, the petitioner has failed to prove that counsel was ineffective. First, the petitioner

failed to prove that the State possessed any statements that the petitioner could have obtained prior

to trial. Regardless, the petitioner would not have been entitled to this information until after the

witness had testified at trial. See Tenn. R. Crim. P. 26.2. Additionally, petitioner’s trial counsel

testified that he made several efforts to interview Jones and other witnesses prior to trial. We agree

with the post-conviction court that the petitioner failed to prove that his trial counsel was ineffective

by failing to obtain the statements prior to trial.

C. Jury instructions

The petitioner claims that the trial court erred by instructing the jury on the length of

the sentence that the petitioner would receive for each offense with which he was charged. The

petitioner argues that if the jury had not been so instructed, the jury would have convicted him of a

lesser offense. However, the petitioner has failed to include a copy of the trial transcript or the jury

instructions in the record for our review. Because the burden is on the petitioner to provide a record

for our review, his failure to do so is considered a waiver of the issue. Tenn. R. App. P. 24.

Additionally, we note that the petitioner did not raise this issue before the post-conviction court. We

have stated that “[i]ssues not presented in the petition for post-conviction relief cannot be raised on

appeal unless they have been fully litigated at the trial court level.” Gribble v. State, Nos. 02C01-

9303-CC-00039 and 02C01-9303-CC-00045, 1995 WL 46379, at *5 (Tenn. Crim. App. at Jackson,

February 8, 1995).

The petitioner also contends that the trial court erred in failing to instruct the jury that

evidence of the victim’s prior injuries was admissible for the sole purpose of proving intent and lack

of accident. We again note that the petitioner did not include the trial transcript with the record on

appeal. Tenn. R. App. P. 24. Accordingly, we are unable to determine the content of the instructions

given by the trial court. Additionally, this issue should have been resolved in the petitioner’s direct

appeal. Tenn. Code Ann. § 40-30-206(g) provides that

[a] ground for relief is waived if the petitioner personally or through

an attorney failed to present it for determination in any proceeding

before a court of competent jurisdiction in which the ground could

have been presented unless:

(1) The claim for relief is based upon a constitutional right not

recognized as existing at the time of trial if either the federal or state

constitution requires retroactive application of that right; or

(2) The failure to present the ground was the result of state action in

violation of the federal or state constitution.
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The petitioner has failed to set forth the reasons for his failure to raise this issue on direct appeal.

Accordingly, for the foregoing reasons, we conclude that the petitioner has waived this issue. See

Forrest, 535 S.W.2d at 167.

D. Indictment

Finally, the petitioner argues that, due to a faulty indictment, the trial court did not

have jurisdiction over him in his original trial. We observe that the petitioner has not included the

indictment in the record for our review. This court has found that “when challenging the sufficiency

of an indictment, the failure of a petitioner to include a copy of the indictment in the record precludes

both the trial court and this Court from addressing the merits of the argument.” Jackson v. State,

No.03C01-9904-CC-00164, 2000 WL 66090, at *1 (Tenn. Crim. App. at Knoxville, January 27,

2000); see also Tenn. R. App. P. 24(a); State v. Hopper, 695 S.W.2d 530, 537 (Tenn. Crim. App.

1985). Accordingly, the petitioner has also waived this issue.

III. Conclusion

Based upon the foregoing, we affirm the judgment of the post-conviction court.

___________________________________ 

NORMA McGEE OGLE, JUDGE