### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs O

ctober 18, 2000

JAMES DUBOSE v. STATE OF TENNE SSEE

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 coun t of first degree felony murder with the underly ing felony being aggra

vated child abuse. The trial court sentenced the petitioner to life imprisonment in the Tenne ssee Departm ent of Correction. This court and the Tennessee Supreme Court affirmed the petitioner’s conviction. The petitioner subsequently

filed a petition fo

r post-conviction

relief. Afte

r a hear ing, the postconviction court denie

d the petiti oner’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 co urse 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 jur y ins tructions; and (4) whether the

petitioner was ch arged pursuant to a faulty indictment. Upon review of the record and the p

arties’ briefs,

we affirm the jud

gment of the post-

conviction court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which T HOMAS T. W OODALL and R OBERT W. W EDEMEYER , 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, T odd R. Kelley, A

ssistant Attorney

General, Joseph Baugh, District Attorney General (trial), Ronald L. Davis, District Attorney General(postconviction), a nd J effrey Burks, Assistant District Attorney General (post-conviction), for the appellee, State of Tennessee.

OPINION

I. Factual Backgr

ound The evidence as summarized in the petitioner’s direct appeal established that on the afternoonof July 3, 1993, the victim, sixteen-

month-old Rufus Jones,

Jr., was left in the sole care1 For a more thorough reci tation of t

he 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. Cri

m. App. at Nas

hvill e, August

25, 1995).

-2- of the petitioner, James DuBose, while the victim’s mother, Ann Jones (hereinaft er “Jones”), lef

t to get a pizza and to rent a movie video. When she l eft, the victim wa s sitting at the kitc

hen table eating a hot dog. When Jones returned home with themovies, 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 pe titioner chec ked on the victim and discovered

that he was not bre

athing. Jones atte

mpted toperform

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 hospit

al. At the hospital, the petitioner claimed that he had found the victim pinned betweenthe bed and the wall. According to the petitioner, the vic

tim had dropped his bottle and was trying to retrieve it when he was injured. Hospital staff unsuccessfully attempted to resuscitate the victim and pronounc

ed the victim dead

at approximately

9 p.m.

Dr. Julia Goodin perfor

med an autopsy

on the victim. The autopsy revealed that the victim died as a resul t of blunt trauma to t he abdomen, consi

stent with trauma c

aused 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 t he victim. The vict

im also had older in

juries, some of which had left inte

rnal scarring

that could

have con tributed to the vict im’s death. Dr. Go

odin 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 (here inafter “Wood”), testified that the petitioner hated the victim’s father and the victim. Furthermore, Wood witnessed the peti tioner s trike the victim on one occasion. Wood also stated that the petitioner tried to get Wood to change his

testimony at t

rial. 1

A jury convic

ted the petitioner

of one count o

f first degree felony murder with the underlying

fel ony being aggravated child abuse. The trial court sentenced the petitioner to life i mprisonmentin the Tennessee Department of Correction. On direct appeal, this court and th e Tennessee Su preme Cou rt affirmed the petitioner’s conviction. The petitioner subsequently filed

a petition for post-conviction relief. After a hearing, the pos t- conviction court denied the petitioner’s request for relief. On a

ppeal, 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 as sistance of couns el; (3) whether the trial court erred in failing to give curative jury instructions; and (4) whether the petitioner

was charged p

ursuant to a faulty ind

ictment.

II. Analysis2 The petitioner f ailed to incl

ude the tria

l transcri pt in the re

cord for our revie

w.
-3- Because the petitioner init

iated his post-conviction proceedings after May 10, 1995, he must prove all of his factual allegations by clear and convinc ing evidence. Tenn. Code Ann. § 40-30-210(f)(1997). Unless the evidence p re ponderates otherwise, the post-conviction court’s factua l findings are bin

ding upon this cour

t. 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 att rib ute d to the ir t est imo ny. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Additionally, we m ay n ot re-weigh or reevaluate the evidence or substitute our inferences for those dr awn 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 alle

gations of prose

cutorial 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 elic ited and failed to

correct false testimony givenby 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 occurre d. The State requested a

jury-out hearing

at that po int 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 f or the motel room.

This court has stated: [i]t is a well establishedprinciple 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 tria

l 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 fal sel y, the district attorney general, or his assistant, has an affi rma tiv e du ty to corr ect the fal se t est imo ny. Statev. 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.

Init ial ly, w e note that the sourc e of paymen

t for the motel room

was not material. Moreover, there is no evidence in the record before us to suggest that the tapes were eve r introduced

as part of the State’s proof against the petitione r or by the pet

itioner at trial. 2 Additionally, the District Attorney General testified at the post-conviction hearing that he wa s not aware of any testimony that

was falsely given at trial. The post-conviction court found that the petitioner failed-4-

to prove that the Di str ict Attorney General engaged in prose cutorial misconduct. We cannot conclude that the

post-conviction c

ourt was in error

. This issue is without

merit.

The petitioner also cl

aims that the State s

uppressed evide

nce favorable

to him at trial in violation of Brady v. Maryland . The petitioner claims that he was denied his right t o due process when the State failed to disclos e the potentially exculpatory audio and video tapes of the me eting betweenthe 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 pote ntial punishment faced by the petitioner. Furthermore, “the suppression by the prosecution of ev idence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punish

ment, irrespecti

ve of the good fa

ith or bad faith

of the prosecution.” Id. at 87, 1196-97. Moreover, the Stat e’s duty to disclose exculpatory evidence extends to evidence which may be used by the petitioner for impeachm ent purpose s. 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 or der 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 oblig atedto release such

evidence regardless

of whether or not it was requested); (2) the State sup pressed the information; (3) the information was favorable to the petitioner; and (4) the information was material. Id.

W e note that the record reveals that the State did disclose the tapes, but d ela ye d disclosure until Wood’s testimony . This court must ana

lyze a delay

ed disclosu

re of evid

ence differently

than a complete nondisclosureof ev ide nce. In fa ct, “if the re i s on ly 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 pre judice.” 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).

Acco rdi ngly, the petitioner must establish thatthe delaye d disclosure prev

ented him from using the disclose

d material effe

ctively in preparing and presenting his case. State v. Caughron, 855 S.W.2d 526, 548 (T enn.1993)(Daug

htrey,J.,dis s enting)(cit ing United States v. Ingraldi
, 793 F.2 d 408,411,412 (1st Cir. 1986)). Moreover , if the petitioner failed to move for a continuance after receiving the information, thor oughly 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:-5- [w]e point out that this re

corded statemen

t was not introduce

d 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 addi tion al time if necessa ry 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. Whil e it is clear that the [petitioner] was entitled, as continuing dis co very, 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 prejud iced by

the failure of the Stat e t o advise the [petitioner] in advance of the recorded statement. Sta te v. DuBose, No. 01C01-9405-CC-00160, 1995 WL 504803, at *11 (Tenn. Cri m. App. a t Nashville, August 25, 1995). “A matter previously determined is not a pr opersubject 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 o ur decis ion. 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, 46 1 (Tenn. 1999). To establish a cognizable claim of ineffective as si stance of counsel, the petitioner must demonstrate two things: First, the [petitioner] must prove that his lawyer failed to render

competent

legal r epre sentation. Once the [petitioner] proves incompetence, he must then pro ve that the incompete nt representation prejudice d him t o the extent of undermining confidence in the outcome of the tria

l. Statev. Harris
, 978 S.W.2d 109, 114 (Tenn. Crim. App. 1 997); see also Strickland v. Washington
, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). In de terminin g whether or not counsel’s performanc e was deficient, th e applicable tes

t is whether couns

el’s performan

ce was with

in the rang e of co mpetenc e 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 aggressivel

y cross -examine Jones and Wood. Particularly, the petitioner contends that his trial counsel should have cross-examined Woodabout his statemen ts concerning Wo

od’s meeting with the petitioner at the motel. Petitioner ’s trial counsel testi fied at the post-c

onviction hearing

that, while the video tape of

the meeting showed that the petitioner told

Wood that the petition

er could notadvise Wood to change his testimony, the tape also showed that the petitioner made the statement3 We note that the p etitioner has fail ed to include a copy of either the video or audio tape of this meeting between the petitioner and Woo d.

-6- while searching the

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

ma intained 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 str

ategy, pe titioner’s trial c

ounsel chose not to

pursue this

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

use the benefit of hindsight to second-gues s trial strategy and criticize counsel’s tactics.” Irick v. State , 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998).

Add iti ona lly, the pe tit ioner claims that his trial counsel should have more aggressivel

y cross- examin ed Jo nes conc erning 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.” Sta te 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 petit ioner also alleg es that his trial co

unsel failed to ca

ll witnesses that wo

uld ha ve 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-convic

tion hearing. Th

is court has stated:

[w]hen [a petitioner] contends that trial coun sel failed to discover, interview, or present witnes ses in support of his defense, these witnesses should be presented by the [petitioner] at th e evidentiary hearing. As a general r

ule, this isth e only way the [petitioner] can establish that (a) a mater

ial witn ess e xisted 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 wit

nes s inured to his prej udice; and (d) the failure to have a known witness pr

esent 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 16123 5 2, at *3 (Tenn. Crim. App. at Nashville, October 30, 2000). Additionally, “[n]either the trial court nor this cour

t may specul

ate

as to what [the witnesses’] testimonymay 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 1 56, 164 (Tenn. Crim. App. 1 997); 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.-7- The petitioner also complains that his trial coun sel 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 w

itnesses or whethe

r her feels his a

ttorney shou

ld have made an effort to obtain written statements in the possession of the state prior to t

rial. In either case, the petitioner has failed to prov e that counsel was ineffective. First, the petitioner failedto prove that the Sta te 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. S ee Tenn. R. Cr

im. 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 withthe post-conviction court that the petitioner failed to prove that his trial counsel was ineffective by failing to obtain the statem

ents 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 eac h 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. Be

cause the burden is on the petitioner to provide a record for our review, his f

ailure to do so is co

nsidered a waive

r of the issue. Ten

n. R. App. P. 24. Add iti ona lly, we note that the petitioner did not raise this issue before the post-con

viction co urt. 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 pri or injuries was ad

missible 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 givenby the trial court. Additionally, this issue should have beenresolved in the petitioner’s direct appeal. Tenn. Code Ann. § 40-30-206(g) provides that

[a] ground for re lief is wai ved if the pe titioner p ersonally or th rough

an att orn ey fai led to p res ent it f or d ete rmi nat ion in a ny p roceeding before a court of comp etent jurisdiction in which the grou

nd could have been prese

nted unless: (1) T he claim for relief is based upon a constitutional right not recognized

as existing at the ti

me of trial if

either the federal or

state constitution requires retroactive application of that right; or (2) The failure to pr

esent the groun

d was the result of

state action in violation of the federal or state constitution.-8-

The petitioner has failed to set forth the rea sons for his f ailure to raise th

is issue on direct a

ppeal. Accordingly, for the

foregoing reasons, we conclude that the petitioner has waived this issue. See Forrest , 535 S.W.2d at 167.

D. Indictment

Fin all y, the petitioner argues that, due to a faulty indictment, the trial court did not have jurisdiction over h

im in his original trial. We observe that the petitioner has not included the indictmentin the record for our review. This court has found that “when challenging the suff iciency of an indictment, the failure of a petitioner to include a

copy of the indictment in the record precludes boththe trial court an

d this Court from add

ressing the mer

its of the argume

nt. ” Jackson v. St ate , No.03C01-9 904-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. Hoppe r , 69 5 S.W.2d 530, 537 (Tenn. Crim. App. 1985). Accordingly, the petitioner has also waived this issue.

III. Conclusion Based upon the f

oregoing, we

affirm the judg

ment of the post-c

onviction court.

___________________________________ NORMA McGEE OGLE, JUDGE