IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 21, 2016

DENNIS L. ROSE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Sullivan County

No. C62353 R. Jerry Beck, Judge

No. E2015-00768-CCA-R3-PC – Filed June 2, 2016

_____________________________

A Sullivan County jury found the Petitioner, Dennis L. Rose, guilty of one count of first 

degree premeditated murder and two counts of aggravated assault. On appeal, this Court 

affirmed the Petitioner‟s sentences and convictions. State v. Dennis Lee Rose, No. 

E2010-00734-CCA-R3-CD, 2012 WL 335548, (Tenn. Crim. App., at Knoxville, Feb. 1, 

2012), perm. app. denied (Tenn. May 21, 2012). The Petitioner filed a post-conviction 

petition and the post-conviction court denied relief following a hearing. On appeal, the 

Petitioner maintains that: (1) the post-conviction court erred when it denied his motion to 

recuse the District Attorney General‟s office in light of his post-conviction allegation of 

prosecutorial misconduct; (2) he received the ineffective assistance of counsel at trial; 

and (3) the post-conviction court erred in denying him relief on the basis of prosecutorial 

misconduct. We affirm the post-conviction court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA 

MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Ilya I. Berenshteyn, Bristol, Tennessee, for the appellant, Dennis L. Rose.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;

Barry Staubus, District Attorney General; and Joseph Eugene Perrin, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

A. Background and Procedural History
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A Sullivan County Grand jury indicted the Petitioner for one count of first degree 

premeditated murder and two counts of aggravated assault. The proof at trial showed that 

the victim stole pills from the Petitioner. In the weeks and days leading up to the offense, 

the Petitioner made several threats, in the presence of others, regarding the “money” the 

victim owed to the Petitioner for the stolen pills. On November 13, 2007, the Petitioner 

pursued the victim and his cousin in their vehicle at speeds of up to eighty miles an hour. 

Ultimately, the two vehicles came to a stop at the victim‟s residence, where the victim 

walked over to the Petitioner‟s vehicle and, while still in the vehicle through the open 

driver‟s side window, the Petitioner stabbed the victim in the area midway between the 

victim‟s armpit and hip. The victim died as a result of the stab wound. The jury 

convicted the Petitioner as charged, and the trial court sentenced him to concurrent 

sentences of life for the murder conviction and three years for each of the aggravated 

assault convictions.

The Petitioner appealed these convictions on numerous bases. After review, this 

Court affirmed the judgments. Rose, 2012 WL 335548, at *1. 

The Petitioner filed a petition for post-conviction relief on May 23, 2012. The 

post-conviction court appointed counsel, who filed amended petitions. On October 13, 

2013, the Petitioner filed a motion to recuse the Sullivan County Office of the District 

Attorney General due to the Petitioner‟s post-conviction allegation of prosecutorial 

misconduct. On November 19, 2013, the post-conviction court issued an order denying 

the motion. The post-conviction court reasoned that the Petitioner‟s allegation that the 

prosecutor had failed to turn over a witness statement had already been addressed on 

direct appeal. The post-conviction court noted that issues decided on direct appeal are 

generally not relitigated in a post-conviction proceeding. In declining to recuse the 

District Attorney‟s office, the post-conviction court further found that the Petitioner‟s 

motion was “at best vague” and failed to cite any prejudice that would be suffered by the 

Petitioner if the Sullivan County District Attorney‟s office was not recused.

Post-Conviction Hearing

The Petitioner‟s trial attorney (“Counsel”) testified that, during his more than forty 

year career, he had represented “a lot” of criminal defendants and handled “numerous” 

homicide cases. Counsel stated that his theory of the Petitioner‟s case at trial was that the 

stabbing was accidental. He said that he did not consider raising self-defense nor did he 

request an instruction for self-defense. Regarding his failure to request a change of 

venue, Counsel testified that he was aware of three articles about the stabbing. Two of 

the articles were published in the newspaper on November 14, 2007, and November 15, 

2007, fifteen months before the Petitioner‟s February 9, 2009 trial. The third article was 
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the “[i]nternet version” of the November 15 article, which included a comment section 

with six comments. 

Counsel testified that he did not seek a change of venue because he “didn‟t have 

any trouble picking . . . an unbiased jury.” He stated that during voir dire, he would have 

eliminated any juror indicating bias or prejudice. Counsel agreed that he did not file a 

motion for individual voir dire. He had no independent recollection of his decision not to 

do so but stated that he generally only made this request when necessary. Counsel 

testified that he only sought release of grand jury materials in federal court and was 

unaware of any such procedure in state court. Counsel explained his decision to not 

request funds for an investigator, saying that in his experience he had learned that it is 

better for him to conduct any investigation himself. 

Counsel testified that he did not seek funding for an expert witness in serology 

because there was never “any question that the victim‟s blood was on” the knife. Further, 

the defense theory was that the stabbing occurred but that it was an accident. Counsel 

stated that the evidence and the Petitioner‟s assertions did not support a self-defense 

instruction. 

Counsel testified that the State made an offer of twenty-five years, which he 

conveyed to the Petitioner. When asked why he never made a counter-offer, Counsel 

responded that the Petitioner only authorized him to go to trial. 

On cross-examination, Counsel testified that the State had a “very strong case 

against” the Petitioner but that he also felt there was a strong defense. Counsel agreed 

that the Petitioner‟s denial of the chase was inconsistent with witness statements and that 

the Petitioner‟s position that he did not know how the victim‟s blood would have gotten 

on his knife was “at odds” with the evidence. Counsel agreed that there were no defense 

witnesses available other than the Petitioner, who testified at trial. Counsel confirmed 

that the three articles from his file were the only articles published about the incident. 

Regarding individual voir dire, Counsel reiterated that he did not believe that there was a 

need to request individual voir dire. He explained that the trial judge‟s practice was for 

the trial judge to ask the jury as a whole if anyone knew anything about the case and, if a 

juror responded affirmatively, then proceed with individual voir dire of that juror. 

Counsel testified that the Petitioner‟s initial statement to the police was, “This was 

an accident.” The Petitioner testified consistently at the preliminary hearing. Counsel 

identified his request to the trial court to include all lesser-included offenses in the jury 

instruction. The Petitioner testified consistently at trial with his statement and prior 

testimony that the stabbing was an accident. Counsel recalled that the Petitioner declined 
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the State‟s plea offer because he believed that the victim‟s family would not want him to 

serve jail time because the stabbing was an accident. 

The Petitioner testified that Counsel never spoke with him about a motion to 

change venue and that he never asked Counsel about filing such a motion because he was 

unfamiliar with the law. The Petitioner stated that Counsel should have discussed a 

change of venue with him because of the publicity of the case. The Petitioner was 

unaware of what evidence was presented to the grand jury but thought Counsel should 

have sought a release of the grand jury materials. The Petitioner said that he never 

questioned Counsel‟s decision to not individually voir dire jurors because he did not 

know it was possible to do so. He believed, however, that there were jurors who 

“probably should have been more questioned” and that there were jurors who were “not 

looking out for [him].” 

The Petitioner testified that he sent a letter to Counsel in January 2008 requesting 

Counsel employ an investigator and a blood spatter expert. In response, Counsel told the 

Petitioner that “there was no need for that.” The Petitioner said that his defense would 

have been “stronger” had Counsel employed an expert witness or investigator. The 

Petitioner explained that during the “altercation,” he saw two individuals. He did not 

know the individuals or their names but believed an investigator might be able to locate 

the individuals who could have possibly testified on his behalf. 

The Petitioner testified that a serology expert could have tested his vehicle for 

blood spatter. He said that the victim reached into his car and choked him while the 

victim‟s cousin, Douglas Dorton, swung a blade through the window. The Petitioner 

pushed the blade away from himself, and the blade “hit” the victim. Because the victim 

was so close to his vehicle at the time of the stabbing, the Petitioner said there would 

have to have been blood spatter on his vehicle and “that would have made my defense 

stronger.” The Petitioner agreed that at trial, the evidence showed that there was no 

blood on his vehicle. He said that his vehicle was not towed to the police department but 

instead a police officer drove the vehicle to the police department, which may have 

altered evidence. 

The Petitioner testified that he wanted Counsel to request a self-defense 

instruction. He said that he feared for his life during these events, and, therefore, an 

instruction was warranted. The Petitioner was unsure whether he asked Counsel about 

self-defense but stated that Counsel never spoke with him about pursuing a theory of selfdefense. 

The Petitioner testified that the State offered a twenty-five year sentence on two 

occasions in exchange for his guilty plea. On the first occasion, Counsel told the 
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Petitioner he was confident in their defense, so the Petitioner said he wanted to proceed to 

trial. On the second occasion, the Petitioner asked Counsel about a counter-offer of 

twelve years at 45%, and Counsel again assured him that “we had a good defense and he 

could beat it.” According to the Petitioner, Counsel said that “counteroffering” was not a 

good idea. Based upon these exchanges, the Petitioner instructed Counsel to proceed to 

trial. 

On cross-examination, the Petitioner testified that he had criminal convictions for 

burglary, felony theft, criminal simulation, and possession of cocaine with intent to sell or 

deliver. The Petitioner stated that he believed there were more articles about the incident

than the three earlier presented, but he did not have any evidence with him of additional 

articles about the incident. The Petitioner said that he could not name the jurors that he 

believed Counsel should have struck from the jury. He agreed that jurors are not to “look 

out” for him or the State but are to be fair and impartial. As to the blood spatter expert, 

the Petitioner agreed that blood must be found before a blood spatter expert can analyze 

and interpret the blood. He further agreed that the testimony at trial was no blood was 

found on his vehicle. 

Following the hearing, the post-conviction court issued a written order denying 

relief. The post-conviction court concluded that the Petitioner had failed to establish by 

clear and convincing proof that he was entitled to post-conviction relief. It is from this 

judgment that the Petitioner appeals. 

II. Analysis

On appeal, the Petitioner maintains that: (1) the post-conviction court erred when 

it denied his motion to recuse the District Attorney General‟s office based upon his claim

of prosecutorial misconduct; (2) he received the ineffective assistance of counsel at trial; 

and (3) the post-conviction court erred in denying him relief on the basis of prosecutorial 

misconduct.

In order to obtain post-conviction relief, a petitioner must show that his or her 

conviction or sentence is void or voidable because of the abridgment of a constitutional 

right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual 

allegations in the petition for post-conviction relief by clear and convincing evidence. 

T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate 

the evidence below; all questions concerning the credibility of witnesses, the weight and 

value to be given their testimony, and the factual issues raised by the evidence are to be 

resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 

(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A postconviction court‟s factual findings are subject to a de novo review by this Court; 
6

however, we must accord these factual findings a presumption of correctness, which can 

be overcome only when a preponderance of the evidence is contrary to the postconviction court‟s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). 

A post-conviction court‟s conclusions of law are subject to a purely de novo review by 

this Court, with no presumption of correctness. Id. at 457.

A. Motion to Recuse

The Petitioner asserts that, by denying his motion to recuse, the post-conviction 

court “limited [his] ability to test the issue of prosecutorial misconduct by disallowing the 

[Petitioner] to call” the prosecutor to testify as a witness at the post-conviction hearing. 

The State responds that the post-conviction court properly denied the Petitioner‟s motion 

to recuse the office of the District Attorney General. 

The determination of whether to disqualify the office of the District Attorney 

General in a criminal case rests within the discretion of the trial court. State v. Culbreath, 

30 S.W.3d 309, 313 (Tenn. 2000). Appellate review of such a ruling is limited to 

whether the trial court has abused its discretion. See State v. Tate, 925 S.W.2d 548, 550 

(Tenn. Crim. App. 1995).

At trial, the State provided the prosecutor‟s notes to the defense. The prosecutor‟s 

notes taken when interviewing Mistri Griffith contained a notation “Defendant made no 

threats.” The Petitioner asserted that the State had failed to turn over exculpatory 

material pursuant to his discovery request. On appeal, this Court determined that the 

failure to earlier provide the notes was a “delayed disclosure;” however, the Petitioner 

had failed to show that he suffered prejudice as a result. Rose, 2012 WL 335548, at *13. 

At the post-conviction hearing, the Petitioner informed the post-conviction court that he 

intended to call the prosecutor as a witness relevant to his post-conviction claim 

involving prosecutorial misconduct. The post-conviction court denied the motion to 

recuse, finding that the issue of the prosecutor failing to turn over his notes until trial had 

already been determined on direct appeal.

We cannot conclude that the post-conviction court abused its discretion in denying 

the Petitioner‟s motion to recuse. As the post-conviction court correctly noted, this 

Court, on direct appeal, held that the Petitioner had failed to show he suffered prejudice 

due to the prosecutor‟s delayed disclosure of the notes. The issue of prosecutorial 

misconduct had already been reviewed and no resulting prejudice identified. 

Accordingly, the Petitioner is not entitled to relief as to this issue.

B. Ineffective Assistance of Counsel
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The Petitioner asserts that he received ineffective assistance of counsel. 

Specifically, he asserts that Counsel: (1) failed to seek a change of venue; (2) failed to 

seek release of grand jury materials; (3) failed to seek individual voir dire of the potential 

jurors; (4) failed to request funds for an investigator and/or expert for the defense; (5) 

failed to request self-defense instructions; and (6) failed to make a counter-offer to the 

State‟s twenty-five-year offer. The State responds that there is no evidence that Counsel 

rendered deficient performance or that the Petitioner suffered prejudice from any alleged 

deficiency. We agree with the State.

In a written order issued after the hearings, the post-conviction court found the 

Petitioner‟s testimony at the post-conviction hearing not credible. The post-conviction 

court further found that Counsel was a credible witness at the hearing. The postconviction court denied relief, finding that the Petitioner had failed to prove by clear and 

convincing evidence the allegations set forth in his petition and that he had failed to 

prove any prejudice from Counsel‟s alleged deficient performance.

The right of a criminally accused to representation is guaranteed by both the Sixth 

Amendment to the United States Constitution and article I, section 9 of the Tennessee 

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 

S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The 

following two-prong test directs a court‟s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel‟s performance was 

deficient. This requires showing that counsel made errors so serious that 

counsel was not functioning as the “counsel” guaranteed the [petitioner] by 

the Sixth Amendment. Second, the [petitioner] must show that the 

deficient performance prejudiced the defense. This requires showing that 

counsel‟s errors were so serious as to deprive the [petitioner] of a fair trial, 

a trial whose result is reliable. Unless a [petitioner] makes both showings, 

it cannot be said that the conviction . . . resulted from a breakdown in the 

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 

S.W.2d 417, 419 (Tenn. 1989). 

In reviewing a claim of ineffective assistance of counsel, this Court must 

determine whether the advice given or services rendered by the attorney are within the 

range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 

936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show 

that counsel‟s representation fell below an objective standard of reasonableness.” House
8

v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 

(Tenn. 1996)).

When evaluating an ineffective assistance of counsel claim, the reviewing court 

should judge the attorney‟s performance within the context of the case as a whole, taking 

into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 

753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the 

“distorting effects of hindsight” and “judge the reasonableness of counsel‟s challenged 

conduct on the facts of the particular case, viewed as of the time of counsel‟s conduct.” 

Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly 

deferential and “should indulge a strong presumption that counsel‟s conduct falls within 

the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally, 

we note that a defendant in a criminal case is not entitled to perfect representation, only 

constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. 

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of 

counsel, „we address not what is prudent or appropriate, but only what is constitutionally 

compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.

Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been 

ineffective merely because a different procedure or strategy might have produced a 

different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). 

“„The fact that a particular strategy or tactic failed or hurt the defense, does not, standing 

alone, establish unreasonable representation. However, deference to matters of strategy 

and tactical choices applies only if the choices are informed ones based upon adequate 

preparation.‟” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369). 

If the petitioner shows that counsel‟s representation fell below a reasonable 

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by 

demonstrating “there is a reasonable probability that, but for counsel‟s unprofessional 

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 

694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability 

must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694; See Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

1. Venue

“[V]enue may be changed . . . if it appears to the court that, due to undue 

excitement against the defendant in the county where the offense was committed or any 

other cause, a fair trial probably could not be had.” Tenn. R. Crim. P. 21(a). The 

ultimate test is whether the jurors who actually sat and rendered verdicts were prejudiced 

by the pretrial publicity. State v. Garland, 617 S.W.2d 176, 187 (Tenn. Crim. App.

1981). Prejudice will not be presumed by a mere showing that there was considerable 
9

pretrial publicity. Dobbert v. Florida, 432 U.S. 282, 303 (1977); State v. Kyger, 787 

S.W.2d 13, 19 (Tenn. Crim. App. 1989).

At the hearing, evidence of three articles published in the local newspaper in 

November 2007, near the time of the stabbing was presented. One of the three articles 

was the internet version of one of the printed article and had received six comments on 

the article. These articles were published almost fifteen months before the Petitioner‟s 

trial. According to the testimony at the hearing, the trial court inquired about any 

potential juror‟s prior knowledge of the stabbing, and no one indicated any prior 

knowledge. Counsel, whose testimony the post-conviction court accredited, testified he 

“didn‟t have any trouble picking . . . an unbiased jury.” The Petitioner‟s testimony was 

that he believed some of the jurors should have been questioned more and that he 

believed that some of the jurors on the panel were “not looking out” for him.

In our view, the Petitioner has only shown that there was very limited pretrial 

publicity and not even that there was “considerable” publicity. Accordingly, the 

Petitioner is not entitled to relief as to this issue.

2. Grand Jury Materials

The Petitioner asserts that Counsel was ineffective for failing to “file a motion to 

release grand jury materials.” The Petitioner, however, does not direct us to any 

Tennessee authority allowing for such a release. The Petitioner relies on Federal Rules 

which have not been adopted by Tennessee. Therefore, we cannot conclude that the 

Petitioner was prejudiced by Counsel‟s failure to obtain grand jury materials. See Owens 

v. State, 13 S.W.3d 742, 746 (Tenn. Crim. App. 1999). He is not entitled to relief on this 

issue.

3. Individual Voir Dire

Rule 24(a), Tennessee Rules of Criminal Procedure, provides in part that “[t]he 

court, upon motion of a party or on its own motion, may direct that any portion of the 

questioning of a prospective juror be conducted out of the presence of the tentatively 

selected jurors and other prospective jurors.” The word “may,” as used in this rule, is 

permissive rather than obligatory. State v. Burton, 751 S.W.2d 440, 452 (Tenn. Crim.

App. 1988).

When there is a significant possibility that prospective jurors have been exposed to 

potentially prejudicial material, the parties are entitled to individual voir dire with respect 

to each prospective juror‟s exposure to the prejudicial material. State v. Claybrook, 736 

S.W.2d 95, 98-101 (Tenn. 1987); Sommerville v. State, 521 S.W.2d 792, 797 (Tenn.
10

1975). In State v. Porterfield, our supreme court said that when “a crime is highly 

publicized, the better procedure is to grant the defendants individual, sequestered, voir 

dire.” 746 S.W.2d, 441, 447 (Tenn. 1988). The Court noted however, that “it is only 

where there is a „significant possibility‟ that a juror has been exposed to potentially 

prejudicial material that individual voir dire is mandated.” Id.

The ultimate goal of voir dire is to insure that jurors are competent, unbiased, and 

impartial. State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994). The Petitioner has not 

established that any juror was unqualified to serve, biased, or partial. Three fifteenmonth old articles from a local publication were submitted during the hearing; however, 

there was no proof that any juror was exposed to the articles. Counsel testified that if any 

juror had indicated prior knowledge of the case, he would have requested individual voir 

dire. Furthermore, the Petitioner has failed to establish that trial counsel‟s request for 

individual voir dire would have been successful if pursued or that the outcome would 

have been different if the request had been granted. Accordingly, the record does not 

preponderate against the determination of the post-conviction court that the Petitioner did 

not establish that Counsel was ineffective in selection of the jury.

4. Motion to Request Funds for an Investigator or Expert

The Petitioner contends that Counsel should have filed a motion to request funds 

for an investigator or expert for his defense. The Petitioner, however, failed to 

demonstrate Counsel was ineffective for failing to request funds for an investigator or 

expert for the defense. The Petitioner did not present any evidence at the post-conviction 

hearing providing information about what evidence an investigator or blood spatter 

expert would have discovered. In Tennessee, the petitioner must meet a rigorous test to 

prove that Counsel‟s failure to present a witness was prejudicial:

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

or present witnesses in support of his defense, . . . the petitioner [must 

prove] that (a) a material witness existed and the witness could have been 

discovered but for counsel‟s neglect in his investigation of the case, (b) a 

known witness was not interviewed, (c) the failure to discover or interview 

a witness inured to his prejudice, or (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.

State v. Black, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Without proof of what 

that evidence would have shown, and that without the evidence the Petitioner received an 

unfair trial, we cannot grant the Petitioner relief on this claim.
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5. Self-Defense Instruction

The Petitioner contends that Counsel was deficient for failing “to object to the 

absence of the self-defense instructions in the charging of the jury.” As the State 

correctly notes, the record indicates that the jury was charged as to self-defense. The 

Petitioner is not entitled to relief. 

6. Counter-offer

The Petitioner asserts that Counsel failed to exercise reasonable diligence by not 

countering the State‟s plea offer. The post-conviction court accredited Counsel‟s 

testimony that Counsel was not authorized by the Petitioner to do anything other than 

proceed to trial. The Petitioner is not entitled to relief as to this issue.

C. Prosecutorial Misconduct

The Petitioner asserts that the State committed prosecutorial misconduct when it 

failed to turn over “potentially exculpatory material before trial.” The State responds that 

this issue has already been addressed on direct appeal.

 

Relief under the terms of the Post-Conviction Procedure Act may be granted only 

when “the conviction or sentence is void or voidable because of the abridgement of any 

right guaranteed by the Constitution of Tennessee or the Constitution of the United 

States.” T.C.A. § 40-30-103 (2014). Prosecutorial misconduct qualifies as a 

constitutional basis for relief. The “touchstone of due process analysis in cases of . . . 

prosecutorial misconduct is the fairness of the trial . . . .” Smith v. Phillips, 455 U.S. 209, 

218 (1982).

On direct appeal, the Petitioner raised an issue as to whether “the trial court erred 

by refusing to allow the defense to use the prosecutor‟s notes for impeachment and by 

refusing to allow the defense to make an offer of proof regarding the State‟s failure to 

provide the notes to the defense before trial.” After the first witness at trial, the State 

provided the prosecutor‟s notes to the defense. The prosecutor‟s notes, taken when 

interviewing Mistri Griffith, contained the notation “Defendant made no threats.” In a 

jury-out hearing, the prosecutor told the trial court that he spoke to Mistri Griffith along 

with other witnesses and that he could not recall who made the statement. Counsel then

questioned Mistri Griffith about whether she had told the prosecutor that the Petitioner 

had not made threats to the victim, and Ms. Griffith denied making that statement. On 

appeal, this Court determined that the notation was a “delayed disclosure” and, therefore, 

the Petitioner must show that the delay caused prejudice. Rose, 2012 WL 335548, at *13. 
12

In analyzing the facts of this case, this Court concluded that the Petitioner failed to show 

prejudice from the delay. Id.

While the Petitioner‟s issue is not framed in exactly the same language in this 

appeal as it was in his direct appeal, the outcome remains the same. The Petitioner 

alleges that he is entitled to relief because of prosecutorial misconduct. The prosecutorial 

misconduct that he bases this claim on is the prosecutor‟s withholding his notes 

containing the notation “Defendant made no threats.” The statement certainly could be 

exculpatory if a witness said the Defendant made no threats; however, the trial court 

allowed Counsel to ask Ms. Griffith about whether she made the statement and she 

indicated that she did not make that statement to the prosecutor. The Petitioner does not 

allege that anyone else made the statement. The Petitioner did not then, nor does he now 

address what prejudice he suffered as a result of the prosecutor providing his notes after 

the first witness‟s testimony rather than at some point earlier in time. Accordingly, the 

Petitioner has failed to show he was prejudiced by prosecutorial misconduct. The 

Petitioner is not entitled to relief as to this issue. 

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that 

the post-conviction court properly denied post-conviction relief. Accordingly, we affirm 

the judgment of the post-conviction court. 

_________________________________

ROBERT W. WEDEMEYER, JUDGE