### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Jul y 1, 200 8 S es sio n
STA TE OF TEN NES SEE v. BR IAN DA VID SON

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 04-02122 Chris Cr aft, Judge

No. W2007-00294-C CA-R 3-CD - Filed September 9, 2008

The de fenda nt, Brian Davidson, was c onvicted by a Shelby County Criminal Court jury of one count of manufa cturing methamphe tamine, two counts of possession of methamphetamine with the intent to sell and/or deliver , one count of possession of anhydrous a mmonia, one count of p ossession of

mari jua na , tw o c ou nts of

po sse ssi on of

Hy dr oc od on e , a ndtw o c ou nts of po sse ssi on of Al pr a z ola m. After merging the manuf

acturing and possession of m ethampheta mine convictions, the possession of Hydroc odone convic tions, andth e p o s session of Alpra zolam convic tions, the trial court sentenc ed the def endant to f

ive year s for manufa cturing methamphetamine, eighteen months for possession of anhydrous a mmonia, and eleve n months, twenty-nine days for eac h of the c onvictions for possession of Hydroc odone, Alpraz olam, and marijuana
, with the sentenc es to be served conc urre ntly to each other but conse cutively t o the def endant’ s sentence s in a fede ral c ase. The defe ndant ar gues on appea l that the trial court e rre d in denying his motion to dismiss based upon a violation of the speedy tr ia l provi si on of

the In te rs ta te Compa c t on De ta ine rs , in de ny ing his mot ion to s up pr e ss a detec tive’s in-court identific ati on of him, in denying his discovery re quest for the impeaching

c onvi cti on s o f h is c od e fe nd a nt, a ndin o rd e ri ng that he se rv e his se nte nc e s c on se c uti ve ly t o h is fede ral sente nces. H aving re viewed the rec ord and found no err or, we a ffirm the judgments of the tr ia l c ou rt

. Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

A LA N E. G LE NN , J., delivere d the opinion of the court, in w hich J OHN E VERET T W I L L I AMS a ndJ. C. M C L IN , JJ., joined.
Ryan B. Feeney, Selmer , Tenne ssee, f or the a ppellant, Brian Da vidson.

Rob e rt E. Coo pe r, Jr ., At torne y Ge ne ra l a nd Re po rt e r; J. Ros s Dy e r, As sis ta nt At to rney Gen era l; William L . Gibbons, District Attorney Ge nera l; and Alanda H . Dwyer and Chris We st, Assistant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.-2- OP IN ION

FA CT S
On August 22, 2003, a patrol office r with the Shelby County S heriff ’s Depa rtment notified Narco t i cs Di vision Detective Ja mes Masters of his discovery of a

possible methamphetamine laboratory located in rural northe rn Shelby County. After de termining that the site was, in fa ct, an old methamphetamine labor atory, De tective Ma s te rs and f ellow nar cotics off

icer s contac ted the land

owner , who gave them permission to c heck periodica lly f or criminal activity on the property, whic h consisted of a

pproximately five mostly wooded acr es with a small f ield or gra ssy opening on top of a ridge.

When the office rs re turned to the prop erty at noon on August 29, 2003, they discovere d a ref rigerator lying on its bac k in the field. Inside the r efrigera tor, they found c omponents used in the manufa cture of m ethampheta mine, including Red Devil lye, ammonia nitrate , lithium batterie s, and various plasti c vessels, tubing, and funnels. Because these mate rials suggested “ [t]hat someone was prepa ring to cook methamphe tamine,” they le ft the sce ne as the y fo u n d i t b ut returne d later tha t evening to do a “ still watch.” Upon their return at approximate ly 7:30 p.m., they f irst detecte d the d i s t i n ct odor of a nhydrous ammonia, assoc iated with the manuf actur e of me thamphetamine, a nd then, upon re aching the tree line, observe d two men in the field opening ba gs of ammonia nitrate

. Two older mode l Chevrolet pickup truc ks were parke d near by.

Th e o fficers re mained undete cted at the tree line, fifty yar ds from the suspec ts, for

app ro xim a te ly thirty m inu te s w hil e De te c tiv e Ma ste rs us e d b ino c ula rs to w a tc h th e me n’ s a c tiv ity and obser ve their facia l features. When one of the suspects, later ide ntified as Sterritt Wa lker, got int o h is v e hic le a ndsta

rt e d it s e ng ine , th e off

ic e rs e me rg e d f

ro m th e wo od s a nda nn ou nc e d th e ir prese nce. I nstead of stopping, Wa lker fir st acc eler ated towa rd the off icer s and then turne d and drove at a h ig h r a te o f s p e e d in th e o p p o s it e d ir e c ti o n

. W h e n h is v e h ic le b e c a me s tu c k o n th e ridge, he exited and r an towar d the woods, yelling, “[T ]hey’ re on to us, the pol ice are on to us.” Two of the detec tives chase d and ca

pt ured W alker

while Dete ctive Master s and anothe r dete ctive ra n up the ridge to the spot wher e the second man had been working. Howeve r, by the time they a rrived, he was gone

.
Th e se c on d ve hic le
, a 19 72 Che vr ole t truc k, c on taine d me thamph e ta min e comp on e nts , various prescription drugs, and sever al documents, including a letter f rom “Mom” a ddresse d to the defe ndant, traf

fic ticke ts in the defendant’s name, a nd the vehicle ’s ce rtificate of t i t l e, which indicated that the de fenda nt was the owne r of the ve hicle. Wh en t h e o ffice rs aske d Walke r if he knew the de fenda nt, he re plied t h at he wa s the man with whom he ha d been c ooking

me tha mph e ta min e . A fe w hour s late r, De te c tiv e Ma ste rs ran th e de fe nd a nt’ s n a me thr ou gh his computer a nd obtained his photograph, f rom which he confirme d that he wa s the second ma n he had observe d working in the methamphe tamine laboratory that eve ning.

The de fenda nt was subseque ntly charge d in a nine-c ount indictment with one count of

ma nu fa c turing me tha mph e ta min e , tw o c ou nts of po sse ssi on of me thamph e ta min e wi th the int e nt t o sell and/or deliver , one count of possession of anhydrous am m o n i a, two counts of posse ssion of-3-

Hydroc odone with the intent to sell and/or deliver, two counts of poss ession of Alpra zolam with the intent to sell and/or de liver, and one count of possession of marijuana. Wa lker, who w as indicted with t he def

endant f or the metha mphetamine-r elated of fense s, entere d guilty pleas in connec tion with the offe nses in October 2004 and testified against the defe ndant at his November 13-16, 2006 trial. Following deliberat i o n s , t he jury c onvicted the de fenda nt of the methamphe tamine-re lated offe nses a nd of the marijuana off ense a s char ged in the indictment and of the lesser -included offe nses of simple possession of Hydroc odone and simple possession of Alpr azola m.

AN AL YSI S

I. Interstat e Com pact on Detainer s Act
As his first issue, the defe ndant conten d s t h at the trial c ourt err ed in not dismiss ing the ind ic tme nt b a se d o n the Sta te ’s fa ilu re to bring him to t ri a l w ith in 1 80 da ys of

wh e n it re c e ive d h is petition for final disposition of the case , in violation of the Interstate Compact on De tainers Ac t (“the ICD”) . He a sserts that t h e t ri al co urt and the district a ttorney re ceive d his petition on March 20, 2006, and that the time pe riod was tolled for only fifty-one days based on c ontinuances he reque sted, which mea nt that 187 days had e lapsed prior to the start of his trial.

The State fir st argues tha t t h e d ef en d ant has wa ived the issue by his failure to provide an adequate record for appellate review. The S tate notes that there is nothing i n the re cord othe r than the asser tions of defe nse counse l to indicate that Marc h 20, 2006, is the date on whic h the trial court and the district attorne y rec eived the de fenda nt’s reque st for trial and that it is unclea r fr om the

rec ord h o w much of the delay in bringing the c ase to trial wa s occa sioned by the def endant. The Sta te fu rthe r a

rg ue s th a t e ve n if

the Ma rc h 2 0, 20 06 , d a te is c or

re c t, the de fe nd a nt w a ive d h is righ ts under the ICD by his failure to object t o t h e No v em ber 13, 2006, tria l date at the time it was proposed by the trial court.

The ICD is codif

ied at Te nnessee Code Annotated se ction 40-31-101 et seq . Article III,

su bs e c tio n ( a ) p ro vid e s in pe rt ine nt p art :

(a) Whene ver a

person ha s entere d upon a term of imprisonment in a pena l

or cor rec tional insti tution of a party state , and whe never during the c o ntinuance of the term of i m p ri sonment there is pe nding in any other pa rty state any untried indictment, information or complaint on the ba si s of which a detainer has bee n lodged aga inst the prisoner, the pe rson shall be brought to trial within one hundred eighty (180) days after

having cause d to be delivere d to the prosec uting officer and the appr opriate c ourt of the pr osecuting off icer ’s jurisdiction written n o t i ce of the place of the pe rson’s imprisonment a nd reque st for a f inal dispositi on to be made of the i nd ictme nt, inf

or ma tio n o r c omp la int ; pr ov ide d, that f or go odc a us e sh ow n in open court, the prisoner or prisoner’ s counsel being pr esent, the c ourt having jurisdiction of the matter may gr ant any ne cessa ry or r easona

ble continuanc e.

Tenn. Code Ann. § 40-31-101, a rt. III (a) (2006). “ The primary purpose of the Inter state Compact is t o p ro vid e a n e xp e di ent, or de rl y d isp os iti on of the ou t- of

-s ta te c ha rg e up on wh ic h a

de ta ine r i s-4-

based.” State v. Garmon, 972 S.W.2d 706, 709 (Tenn. Crim. App. 1998) (citing Dillon v. St ate, 844 S.W.2d 139, 141 (Tenn. 1992) ). Its provisions are to be construed l ibera lly in favor of the prisone r. Di llo n, 84 4 S. W .2 d a t 14 1. Th os e provi si on s, ho we ve r, inv olv e statut ory righ ts a s o pp os e d to fundame ntal, constitutional, or jurisdictional rights. Garmon, 972 S.W.2d at 710 (citing Grizz ell v. Tenne ssee, 601 F. Supp. 230, 231 (M.D. Tenn. 1984)). “Failure to c omply with the one-hundredeighty-day time limit does not automatically require a dismiss al of the indictment if a continuanc e beyond that period is necessa ry or r easona

bl e. ” Id. (citing State v. Gipson, 670 S.W.2d 637, 639 (Tenn. Crim. App. 1984)). The speedy trial provisions of the Act are tolled by delay “occ asioned by the de fe nd a nt. ” Di llo n, 84 4 S. W .2 d a t 14 2 ( c itatio ns omi tte d) . N e gli ge nc e on the pa rt of the Sta te does not constitute good cause for a delay. Ga

rmon, 972 S.W.2d at 710 (c itation omit ted).

Th e 18 0- day ti me pe ri odfo r a de fe nd a nt t o b e br ou gh t to tr ia l un de r the IC D d oe s n ot b e gin to run until the St ate a nd the trial court have r ece ived notice of the peti t i o n

. State v. Moore, 774 S.W .2 d 59 0, 59 3 (T e nn

. 19 89 ). De fe ns e c ou ns e l a sse rt s in h is b ri e f that th e tr ia l c ou rt re c e ive d h is petition on Marc h 20, 2006. In support of t hat claim, howeve r, he cites onl y his statement to the trial court a t the h ea ri n g o n t h e motion for new trial that, based on his re cords a nd his review of the prosec ution’s file, he “ believe [d ] t h e d ate that we’re starting with is March 20th of 2006.” The petition its elf is not included in the rec ord, and neither the prosec utor nor the tria l court said anything to indicate that they we re in a gree ment with defe nse counse l abou t t h e d at e. In fa ct, at an e arlier hearing, held on September 1, 2006, the prosec utor expre ssed her belief tha t the six-month period sh ou ld b e gin to ru n fr om the da te of that he ari ng , wh ile the tr ia l c ou rt pr op os e d th a t it be ga n o n A pr il 25, 2006, the day on whi ch t h e d ef en d an t came into the Shelby County Jail. It is the defe ndant’s duty to prepar e a f

air, a ccur ate, a nd complete r ecor d on appea l, see Te nn. R. App. P. 24(b), and whe n
nece ssary pa

rts of the re cord a

re not include d, we must pres u m e t h at t he trial c ourt’s ruling was

corr ect. See State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Thus, we a gree with the State that the def

endant ha s waived this issue by his failure to inc lude his pe tition in the rec ord on

app e a l.

We f

urther a gree with the State that even if the petiti o n was rece ived by the court and the State on Marc h 20, 2006, defe nse counsel’s agre ement to the final date proposed by the trial court
re su lte d in a

wa ive r o f h is s pe e dy tr ia l rig hts un de r the IC D. Th e c a se wa s a pp are ntl y r e se t a t le a st twice at the reque st of defe nse counse l. On September 1, 2006, the parties agre ed to a trial date of October 2, 2006. On Octobe r 2, howe ver, de fense counsel informed the trial court that he had bee n
no tif ie d by the pr os e c uto r that dr ug re su lts fr om the Te nn e sse e Bur e a u of In ve sti gatio n we re s ti ll pending. The trial court then propose d a new trial date of November

13, to which def

ense c ounsel agre ed without objection, stating that November 13 “look[e d] like a fine date” for him and that the “we ek look[e d] very good.” Although disc ussion of the 180-day period had occur red earlier in the

case , d ef en se counse l did not again raise the issue until after the jury had alr eady be en impanele d and sworn, the indictment rea d, and opening state ments delivere d.

This court has c oncluded that a defe ndant’s fa ilure to object to a tria l date proposed outside the 180-da y period re sults in a waiver of his rights unde r Article III of the ICD. See Ga rmon, 972 S.W .2 d a t 71 1 ( “ He re , de fe ns e c ou ns e l fr om a ll app e aranc e s a gr e e d to re sc he du le the tr ia l a nddid not mention the violation of the Interstate Compact on Deta iners until afe r t he ti me for c ompliance ha d p a sse d. Th a t w ou ld c on sti tut e a wa ive r. ” ); Sta te v. Sua

re z , 68 1 S. W .2 d 5 84 , 5 86 (T e nn . Crim.-5-

App. 19 8 4), over

ruled on other

grounds by State v. Moore, 774 S.W.2d 590 ( Tenn. 1989) ( “[W ]e hold that the defe ndant’s fa ilure to o b j ec t t o t h e trial da te at the time it was set or during the

re ma ind e r o f the 18 0- da y period r e su lte d in wa ive r o f h is righ ts u nd e r Art ic le II I o f the In te rs ta te Compact on Deta iners.”) . We c onclude, therefor e, that the de fenda nt is not entit led to relief on the basis of this claim.

II. In-Court Identif ication

Th e de fe nd ant n e xt cont e nd s th a t th e tr ia l c ourt e rr e d in de nyinghis mot ion

to s up pr e ss Detec tive Masters’ in-court identific ation of him on the bas i s t hat “the pr ocedur e by which the ide nti fi c a tio n w a s ma de wa s so su g g e sti ve that th e re lia bi li ty of the ide nti fi c a tio n w a s ir re pa ra bly ta int e d. ” Spe c if

ic a lly , he argue s that De te c tiv e Ma ste rs ’ pr e tr ia l ide nti fi c a tio n of him fr om a sin g le photogr aph af

ter lea rning h i s name fr om Walker and fr om paper s found in the pickup truc k was analog ous to a hig hly

sug g estive “show-up” identification, which viol ated his due process r ights a nd should have re sulted in the s u p p ression of the later in-c ourt identification. The State responds by

ar g u i n g t h a t t h e r e c o r d s h o w s t h a t D e t e c t i v e M a s t e r s ’ i n
- c o u rti d e n t i f i c a t i o nw a s b a s e d

o nh i s t h i rt yminute observation of the defe ndant at the crime scene . The State fur ther a rgues that the a ctions of which the de fenda

nt complains amounted to nothing more than normal police investigation.

On a pp e a l, a tr ia l c ourt ’s fi nd ing s o f f

a c t r e g ard inga

mot ion t o s up pr e ss a

re c on c lus ive un le ss the evidenc e pre ponderates ag ainst them. State v. Reid, 213 S.W .3d 792, 825 (Tenn. 2006) (c iting State v. Ros s, 49 S.W. 3d 83 3, 83 9 (T e nn . 200 1) ). Any qu e sti on a bo ut t he “ c re dib ili ty

of wi tne sse s, the weig ht and value of

the evidenc e, and a

resolution of conf

licts in th e evidenc e ar e matter s entrusted to the tria l judge as the trier of fa ct.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party preva iling at the suppr ession hear ing is aff orded the “strong est leg itimate view of the e vidence and all re asonable and leg itimate inf ere nces that may be drawn from that evidenc e.” State v. K eith, 978 S.W .2d 861, 864 (Tenn. 1998) . Thus, unless the def endant de mon s t ra t es t hat “the e vidence preponde rate s ag ainst the judg ment of the trial court, thi s court must defe r to the ruling of the trial court.” Reid, 213 S.W .3d at 825 (c iting State v. Cribbs, 967 S.W .2d 773, 7 9 5 (Tenn. 1998) ). Ho we ve r, the a

pp lic a tio n o f t

he law t o th e fa c ts f

ound by the tr ia l c ourt

is a qu e sti on of

law a nd is revie wed de novo . See State v. Ye arg an, 958 S.W.2d 626, 629 (Tenn. 1997).

I n N e il v . B ig g e rs , 4 09 U. S. 1 88 , 1 99 , 9 3 S. Ct. 37 5, 38 2 (1 97 2) , the Un ite d St a te s Su pr e me C o u rt es t ab lished a two-pa rt test to determine when a de fenda nt’s due proc ess rig hts have be en violated by

a pre trial id en t i fi ca t i on. Under this test, the court first consider s whether the identification proc edure itself was unduly or unnec essar ily

s u ggestive. I d. I f the identification proce dure is found to have be en sug g estive, the c ourt next considers “whe ther unde r the totality of the circ umstances the ide ntification was r eliable e ven thoug h t h e co n frontation procedure was
s u gges tive.” I d. (interior quotations omi tted). The f actor s to be consider ed in eva luating the reliability of an ide ntification include: (1) the opportunity of the witness to view the criminal at the time of the cr ime; (2) the witness’ s deg ree of attention; (3) the acc urac y of th e wi t n ess’s prior desc r ip ti o n o f th e c r im in a l; ( 4 ) th e le v e l o f c e rta inty d e mo n s tr a te d b y th e w it n e s s at the confr ontation; and (5) the le ng th of time betwee n the cr ime and the confr ontation. I d. I f, howe ver, the cour t first determines that the identification proc edure itself was ne ither unnec essar ily or-6-

impermissibly

sug g estive nor likely

to cre ate a

s u b s ta nti a l l ik e li h o o d

o f irre para

ble misidentification, the re is n o n e e d to a

pp ly the tot a lity

of the c ir c ums tanc e s te st o utl ine d in B ig g e rs . Se e State v. B ig g s, 211 S.W .3d 744, 749 (Tenn. Crim. App. 2006) (citations omitted).
Although it is not entirely clea r fr om its order, the trial court appear s to have based its denial of the de fenda

nt’s motion to s uppress on finding s that the pre trial identification proc edure was not
un du ly su g g e sti ve a

nd that De te c tiv e Ma ste rs ’ ide nti fi c a tio n wa s re lia ble de sp ite any

su g g e sti ve ne ss involved in the proce dure. The rec ord supports these f indings. De tective M as ters, a tr ained

narc otics office r, unequivoc ally testified that his ide ntification of the defe ndant was ba sed on having observe d him with binoculars for a pproxi mately

thirty min u t es as he a

nd Walker worke d in the methamphetamine laboratory

. After lear ning the defe ndant’s name from documents foun d i n the vehicle a nd from Walker, he obtained his photog raph f rom the Attorney

Gene ral’s w ebsite and confirme d t h at h e was the se cond man he had obser ved at the sc ene. D etec tive Masters made po sit ive c ourt

room id ent if

ic a tio ns of

the de fe nd ant at bo th t

he su pp re ssi on he ari ngand

a t tr ia l, testifying at the suppression hea ring that he knew that it was the def endant “ as soon as the pic ture c[a]me up” beca

use he ha d seen him just a fe w hours ea rlier, a nd at trial that he w as able to see the defe ndant’s fa ce w ith binoculars and wa s cer tain in his identification.

The de fenda

nt in Big g s, cited by

the State, similarl y co m plained that a na rcotics of fice r’s pretria l identificatio n o f h i m from his driver’ s license photog raph should have been suppr essed beca use the identification procedur e of vie wi n g a sing le photog raph w as unduly sug g estive. 211 S.W .3d at 748. Unlike in the ca se at ba r, the officer ’s viewingof the sing le photog raph oc curr ed some two months afte r t he undercove r drug transaction in which the office r participated had taken pla c e and the of fi c e r w a s una

ble to la te r ide nti fy the de fe nd ant at tr ia l. I d. Th is c ourt ne ve rt he le ss aff irmed the trial c ourt’s d en i al of the defenda nt’s motion to s uppress the pr etrial identification, concludingthat the offic er’ s training and experienc e re ndere d his identification more re liable than that of the a ve ra g e lay

pe rs on . We wr ote :

Fur ther, the de fenda

nt’s argument fails to a cknowledg e that Offic er Tha y er
was a trained a nd experience d police officer and not a lay

witness. The a

uthorities

are clea r that this disti nction must be made. See Manson v. Br athwaite, 432 U.S. 98, 115, 97 S. Ct . 2243, 2253, 5 3 L

. E d

. 2d 140 (1977) ( in assessing the deg ree of attention paid by the witness, the court noted that “Glover was not a casua l or passing observe r, as is so often the c ase w ith ey ewitness identification. Trooper G lover wa s a tra ined police of

fice r on duty and specialized and dange rous duty when he called at the third floor of

201 Westland in Hartford on Ma y 5, 1970.”); United States v. Dring , 930 F. 2 d 687, 693 (9th Cir. 1991) (identifica tions of single photog raph of defe ndant two wee ks after event by customs ag ents not tainted beca use ag ents “we re trained profe ssionals, e x pert at observing criminals, and eac h ag ent had a good opportunity

to view the per son on the pier dur ing the nig ht in question”); Thomas v. State, 139 Md. App. 188, 775 A.2d 406, 420 (2001) ( six -we ek dela y betwee n drug sale a nd office r’s view ing of

single photogr aph did not make unr eliable his in-cour t identification of defe ndant when office r had stood “within arm’s leng th, for thre e or-7-

four minutes under

brig ht lights,” o ff

icer ’s “e ntire attention wa s focuse d” on defe ndant, and of

fice r “wa s not a lay witness descr ibing a criminal to police; he w as
a police office r making a mental note of what he had seen dur ing the commission of

a cr ime”).

Ba sed upon t he proof befor e the trial court that Offic er Thay er, a trained a nd experience d narc otics office r, viewe d the def endant in the da

ylight o n th r e e o c c asions for a total of at l east two minutes, the last and le ng thiest of these be ing f ace -to-fa ce,
and tw o mo nt hs late r w a s p os iti ve in h is i de nti fi c a tio n o f t he de fe nd ant f

ro m a photogr aph, we conclude that the re cord suppor ts the trial court' s determination that the mot ion

to s up pr e ss w a s w ith out me ri t.

I d. at 751-52.

Detec tive Masters, a

highly trained na

rcotics of fice r who wa s acc epted by the trial cour

t as an expert in the detection of m ethamphetamine laboratories, positively and unequivoc ally

identified the def endant at the suppression hear ing and at tria l as the man he had obser ved for thirty minutes workingin the methamphetamine la boratory

. Fr om his testimony , it was c lear that his identification was ba sed on his observation of the defe ndant at the c ri me sce ne and that his identification of the defe ndant from the photog raph w as mere ly to c onfirm that the name he had obta ined matche d the person he had observe d. We c onclude that this proc edure was not unduly sug g estive an d d i d not taint the detec tive’s in-cour t identification of the de fenda nt. Acc ording ly , we a ffirm the tria l court’s denial of the defe ndant’s motion to suppress the in-cour t identification.

III. Denial of

Discover y Request for Crim inal H istory of Walk er

The de fenda

nt next contends that the tria l court er red in denying his discovery reque st for the impeachingconvictions of Sterritt Walker, arguing that it constit uted mater ial exculpatory evidenc e that the State was c ompelled to turn over to the de fense under B rady v. Maryland, 373 U.S. 83, 83 S. Ct . 1194 (1963). The State argues, alter natively , that the trial cou rt did not err in deny ing the reque st on the basis that the information was available to the defe ndant as a matter of public r ecor d and that any er ror in deny ing the reque st was har

mless since Walker’ s only potential impeaching conviction consisted of be ing a n habitual motor vehicle offe nder.

The du ty to disclose exculpatory

evidenc e extends to all “favor able infor mation” irre spective of whe ther the evidenc e is a dmissibl e at trial. State v. Robinson, 146 S .W.3d 469, 512 (Tenn. 2004); J ohnson v. State, 38 S.W .3d 52, 56 (Tenn. 2001) . The prose cution’s duty to disclose Br ady

materia l also applies to evidenc e af fec ting the cre dibilit y of a g overnme nt w itness, inc luding evidenc e of a ny
a g re e me nt o r p ro mis e of

le nie nc y g ive n to the wi tne ss i n e xch ang e fo r f a vo ra ble te sti mony

a g a ins t
an ac cused. Johnson, 38 S .W.3d at 56. Bra dy , howeve r, does not require the State to investigate for the def endant, se e State v. Rey

nolds, 671 S.W .2d 854, 856 (Tenn. Crim. App. 1984), and the State’ s du ty to d isc los e do e s n ot e xten d to inf or matio n th a t th e de fe ns e a lr e a dy po sse sse s or is a

ble to o bta in-8-

o r t o i n f o r m a t i o nn o t i nt h e p o s s e s s i o no r c o n t r o l o f t h e p r o s e c u t i o no r

an o t h e r g o v e r n m e n t a l a g e n c y. State v. Marsha ll, 845 S.W .2d 228, 233 (Tenn. Crim. App. 1992)

.
F ur the rm or e , in

or de r t o e sta

bli sha du e pr oc e ss v iol a tio n und e r Brady , a de fe nd ant m

us t
s h o w t h e f

o l l o wi n g:

1. Th e de fe nd ant m

us t ha ve re qu e ste d th e inf

or matio n ( un le ss t

he e vid e nc e is obviously exculpatory , in which ca se the St at e i s b o und to relea se the infor mation whether reque sted or not);
2. The State must have suppr essed the inf ormation;

3. The infor

mation must have bee n favor able to the a ccuse d; and

4. The infor

mation must have bee n materia l.
State v. Edg in, 902 S.W .2d 387, 389 (Tenn. 1995) (citations omitted).

I n denying the reque st, the trial court noted that the information the def endant sought wa s a matter of public rec ord and available to the defe ndant. We c onclude that the tr ial court did not err in t his ru lin g

. Rul e 16 of the Te nn e sse e Rul e s of Cr imi na l Pr oc e dure pr ov ide s that the State sh a ll furn is h th e d e f

e n d an t’ s p r io r

r e c o r d to th e d e f

e n s e u p o nr e qu e s t. T e n n

. R. Cr im

. P. 1 6(a) (1)( B)

. There is nothing in the rule that require s the State to f urnish the prior ar

rest re cord of

a prose cution wi tne ss. F ur

the rm or e , the re is nothin g in the re c or d to sh owtha t th e inf or matio n w a s n ot o bta ina

ble by the def endant or that the State did a

ny thing to pr event him f

rom acc essing it. At the hea ring on the motion for new tri al , the prosec utor observe d that the pre sentenc e re port of Walker, who had alre ady been c onvicted and se ntence d, was include d in the cler k’s jacke t and was a

vailable to the defe nse. The de fenda

nt is not entit led to relief

on the basis of this claim.

IV . C ons e c ut ive Se nt e nc ing

As his fi na l is su e , th e de fe nd ant co nte nd s that the tr ia l c ourt e rr e d in or de ri ngthat hi s st a te sentenc es be se rved c onsecutively to the sentenc es in his fede ral c ase, ar gu i n g that the trial cour t failed to take into co n s i d er at i o n the leng th of his fede ral sente nce or the fa ct that orde ring

consec utive sentenc es “w ould effe ctively result in a prison ter

m of approximately

20 y ear s.” The State argues that t he trial c ourt consider ed the a ppropriate fac tors and prope rly imposed consec utive sentenc ing unde r Rule 32 of the Te nnessee Rules of Criminal Procedure

.
When an accuse d challeng es t he length and manner of service of a sentence, it is the duty of this court to conduct a de novo revie w on t h e re co rd with a pre sumption t hat “the de terminations made by the c o u rt f

r o m wh ic h th e a

p p e a l i s ta

k e nar e c o r

r e c t. ” T e n n

. Co d e A n n

. § 4 0

- 3 5

- 4 0 1 ( d) (2006). This pre sumption i s “conditioned upon the a ffirmative showing in the rec ord that the trial

c o u rtc o n s i d e r e d

t h e s e n t e n c i n g p r i n c i p l e s an d a l l r e l e v an t f

a c t s an d c i r c u m s t an c e s

. ” S t a t e v

. A s hb y,-9-

823 S.W .2d 166, 169 (Tenn. 1991)

. T h e p re s u m p t ion does not apply to the leg al conc lusions

rea ched by the trial court in sentencingthe ac cused or to the deter

minations made by

the trial cour

t wh ic h are pr e dic a te d u

po n unc on tr ov e rt e d f

a c ts. State v. B utl e r, 90 0 S. W.2 d 3 05 , 3 11 (T e nn . Cr im. App. 1994); State v. Smit h, 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994) ; State v. Bone stel, 871 S.W .2d 163, 166 (Tenn. Crim. App. 1993) , overr uled on oth er gro u n d s by State v. Hooper , 29 S.W .3d 1, 9 (Tenn. 2000). Howeve r, this c ourt is r equire d to g ive g reat weig ht to the trial court’s deter mination of controve rted fac ts a s the trial court' s deter mination of these fa cts is predicated upon the witnesses’ de meanor and a p p ea ra n ce when testifying. T he par ty challeng ing the sentenc e imposed by

the trial cour

t has the burde n of establishi ng that the sentenc e is err oneous. Tenn. Code Ann. § 40-35-401, Sente ncing Commi ssion Cm ts.; Ashby , 823 S.W .2d at 169.

Rul e 32 (c )( 2) of

the Te nn e sse e Rul e s o f C ri min a l Pr oc e dure pr ov ide s in pe rt ine nt p art :

I f the defe ndant has additional sentenc es or por tions thereof to ser

ve, as the result of conviction in o t h er states or in fe dera l court, the sente nce imposed sha ll be

consec utive there to unless the court shall dete rmine in the exercise of its discretion that g ood cause exis ts to run the sentenc es conc urre ntly and explicitly

so order s.

We a g re e wi th t

he State that th e tr ia l c ourt a pp ro pr iate ly

c on sid e re d the ru le and

a pp lic a ble

c a se law i n it s im

po sit ion of c on se c uti ve se nte nc ing . T he tr ia l c ourt state d:

L ooking a

t concur rent/conse cutive with fe dera l co nvictions, we have a mandatory

consec utive sentenc e natur e subjec t to the C ourt’s di scre tion in Rules of Criminal Procedure 32(c) (2).
Quoting f rom State versus B rown at 5 3 S

. W

. 3rd pag e 287, “T his Rule of Cr i m i n al Proce dure pr ovides that when the Def endant ha s additional sentence s or po rt ion s th e re of

to s e rv e a s a

re su lt o f a

c onvic tio n in

oth e r s tate s or

in F e de ra l Co ur

t, the sentenc e imposed shall be consec utive there to unless the Court shall determine in the exerci s e o f i t s discretion that g ood cause exis ts to run the sentenc es
concur rently and explicitly

so order s.”

Isee no f act or circ umstance in th i s case which would c ause me to depar t from Rule 32(c )(2) and orde r these to be serve d concur rently with his feder al sentenc e, so, therefore, they ’re g oing to be run conse cutively to those other two fede ral sente nces.

The re cord suppor

ts the trial court’s deter

mination that the def

endant f ailed to establish g ood

cause for or deringthat the sentenc es not be ser ved conse cutively

.
CO NC LU SION

Ha vin g re vie we d th e re c or d a nd fo un d n o e rr or , w e a ff

ir m th e jud g me nts of the tr ia l c ourt

.-10- ___________________________________ ALAN E. G LENN, JUD GE