### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 2000 Session

STATE OF TENNESSEE v. THOMAS WAYNE OVERBAY

Direct Appeal from the Criminal Court for Sullivan County

No. S40,007 R. Jerry Beck, Judge

No. E1999-00840-CCA-R3-CD September 5, 2000

Defendant

was convicted by

a jury of fo

ur counts of agg

ravated sexual ba

ttery and te

n counts of rape of a child. In this direct appeal Defendant alleges he did not rece ive a fair trial because (1) the bill of particulars did n

ot sufficiently

inform Defendant of the charges, and (2) the prosecution violated Brady v. Maryland

when it failed to turn-over potentially exculpatory evidence to Defendant pretrial. Held: the bill of particulars adequately appraised Defendant of the crimes with which he was charged. Although the prosecution violated Brady when it failed to turn over potentially exculpatory evidence to Defendant pre-trial, the error was harmless. Judgment of the trial court affir med.

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

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS and A LAN E. G LENN , JJ., joined.

Stephen M. Wallace, District Pub lic Defen der, Blountville, Tennessee, for the appellant, Thomas Wayne Overbay.

Paul G. Summers, Attorney General and Reporter; El izabeth B. Marney, As sistant Attorney General; H. Greeley Wells, Jr., District Attorney General; B arry T. Staubus, Assistant District Attorney General; Tere

sa K. Murray-Smith, Assistant District Attorney General; and G regory A. Newman, Assistant District Attorney General, for the appellee, State of Tennessee

.

OPINION

Defendant

Thomas Wayne Over

bay was con

victed by a S

ullivan County

jury of four

counts of aggravat

ed sexual battery

and ten counts of r

ape of a child. I

n this appeal Defendant

alleges he didnotreceive a fair

trial because

(1) the bill of particulars did not sufficiently inform Defendant of the charges, and (2) the prosecution violated Brady v. M ar yland when it failed to turn-over potentially

exculpatory evidence to Defendant pre-trial. After a review of the record and appl

icable law we concludethat the bill of particulars adequately appraised Defendant of the crimes for which-2-

he was charged. We also conclude that the prosecution committed a Brady violation when it failed to turn over potentially exculpatory evidence to De fendant pre-trial

. However, Defendant cannot show tha t he was mat eri all y prej udi ced b y the vio lation, an d thus the e

rror was harmless . We therefore aff

irm the judgment o

f the trial court.

I. Facts

In the fall of 1995 Defendant lived in Kingsport, Tennessee, with his girlfriend,Martha Lynn Lawson, their

infant son, TAO, a

nd thre e of L awson’ s child

ren fr om a pri or rela tionsh ip, SKJ, CJ, and AJ. (The vi ctim and he r siblings will be referred to by their initials.) Defendant and L awson endedtheir living arrangem ent in Jan uary of 1996, and the proof at trial concerned Defe ndant’s activities from September 1995 until the first week of January, 1996.

In September of 1995 Lawson began working at a Waffle House restaurant in Kingsport, and during the week of

September 21, 1995, she began working the gr

aveyard s hift from 10:00 P.M. t

o 6:00 A.M. During this ti me Defendant wa

s employed a

s a furnitu

re mover at Grand Piano. The couple’s work schedules ov erlapped in

the early m

orning, as L

awson did not get h

ome until 6:30 or 7:30 A.M., and Defendant had to leave for work around 5:30 to 6:00 A.M. Different adult persons helpedwith child care at this time of the day–coming over the night before or early in the morning to watch the children, and staying with the children until Lawson returned from work. Lawson’s sister, Tammy Jenning

s, lived with Defendant and Lawson for approximately six weeks during the fallof 1995, and Lawson testified that she would watch the children on occasion. Defendant testified that two of his sisters, Tammy and Amber, would occasionally wa tch the children. Defendant testified t hat other adults were occasionally hired to watch the children, including persons named Bobby Hill, Regina

Snodgrass, and Sarah Forbes. The testimony showed, however, tha t on weekday

e vening s Defendant was frequently responsible for child care when Lawson was at work. On weekends the ch

ildren usually

stayed at th

e homes of differ

ent family me

mbers.

All of Lawson’s children, including SKJ, were in Def endant ’s care during

the evenings in the Falland Winter of

1995 up until some time in January of 1996. At that time SKJ was 5 years old. SKJ testified that beginning when her mother worked “grave yard” (refe

rring to the Waff

le House shift) the Defen

dant would wait unti

l Lawson had le

ft for work, and t

hen sexually

abuse SKJ. SKJ testified that the abuse consisted of Defendant placing

his mouth on SKJ’s genitals, Defendant’s touching of SKJ’s genitals, Defendant requiring SKJ to touch his penis, Defendant requi ring SKJ to perform fellatio, and Defendant’s touching of SKJ’s genitals with his penis. SKJ testified that she could not remember the exact number of times that Defendant abused her, but that it was “a lot” and

more than five times.SKJ testified that she did not tell anyone about the abuse because Defendant told her that he would whip her if she told, and that she was afraid of Defendant.

On cross examination SKJ testified tha t the abuse occu rred ever y day ex cept Frid ay, Sat urd ay, and Sunday. When prompted to elaborate she stated that the abuse occurred every day of the week other than the weekends. When Defense counsel questioned her regarding the nature of-3-

the abuse, he asked “one of the t hings you said he di d to you was he put his private part in your private part, is tha

t rig ht?” SKJ responded with “Right.” SKJ then agreed that this occurred more than ten times, but she did not know if it occur

red more than twe

nty times.She also agre ed that Defendant touched his mouth to her genitals every day of the week.

SKJ told her grandmother of the abuse in January or Febru ary of 19 96. In March of 1996 SKJ was takento the Advocacy Center in Blountville for a medical evaluation. Dr. Judith Fischer examined SKJ. Although Dr. Fischer’s general exam revealed no abnormalities in SKJ’s genetalia,

a closer examination with a magnification device showed SKJ’s hymen to be “blunted,” or thinner than normal. Th e ma gnification device also showed SKJ’s hymenal opening to be large r than normal. Dr. Fischer testified that this type of ab nor mal ity w as co nsi ste nt w ith pen etr ati on b y a human finger or tongue, and perhaps consistent with partial penetration by an adult male penis. She testified, however, that tot al penetration by

a penis would

typically result in extens ive damage and subsequent scarring, and her examination uncovered no evidence suggesting this type of trauma.

The S tate presented other incriminating proof in the form of statements made by the Defendant

to L awso n on four separate occasions. In the spring of 1996 L awson questioned Defendant

about SKJ’s allega

tions. Lawson testified that “he never said he wasn’t guilty , he didn’t say he wasn’t guilty, he just said he wa sn’t going to jail for this. He was not going to jail for this. That was all that was ever said.” The second statement occurred when Defendant moved to Texas in Mar ch of 1996, and Lawson went with him to Texas to discuss the future of their relationship. Lawson aga

in raised the subje

ct of SKJ’s allega

tions, and she testified that “he never admitted, he never said, he just was always say ing he wasn’t going to go to jail for this.”

Following Lawson’s Texa s visit, Lawson a

nd Defendant co

ntinued to

discuss the future of their relationship, and Defendant requested that L

awson bring thei

r son to Texas to live w

ith him. Lawson told Defendant that if

she did she would be worried about the safety of their son given SKJ’s allegations.Defen

dant re plied t hat “wh at happ ened to [SKJ] i t was [Lawson’ s] fault, because–beca

use it didn’t have anything to do with him, that it wasn’t planned . . . . He said the only way that he could find relief

he was at home with my children while I worked a nd he didn’t go out anywhere.”

When questioned she clarified this answer by explaining that at this time Defendant and Lawson’s sexual relationship was non-existent. F

inally, L awson went to

Texas to visit

Defendant again in June and July of

1996. During this

time Defendant “

said that he was no

t going to go to j ail for this. If he

went to jail, he was going to go to jail for something else. A

nd then if I ha

ppened to be around and he ha

ppened to be arr

ested, he would jus

t kill me and take care of it. He kept asking me if I knew what they did to people when they went to prison for things like this.”

At trial Defendant

testified and den

ied all of the cha

rges. He also

denied moving to Texas because he trying to flee prosecution.

Two of De f

endant’s yo

unger sisters, T

ammy Hohens

ee and Amber Qui

ntillana, both testified on behalf of Defendant. Hohensee testified that she took care of Defendant and Lawson’s children frequentl

y on w eekd ay mornings in the fall of 1995 when Defendant had to work. She-4-

would typically arrive around 5:00 to 5:30 in the morning, a nd watch the children until Lawson returned home. She testified that

sometimes Law

son’s sisters, Tam

my and Mary

, would spend the night and Hohensee would see them in the morning when she arrived. Quintillana testified that she

was living in the King

sport area in the

fall of 1995, and th

at s he spent th e nigh t at Defendant and Lawson’s home on one occasion. She testified that she s aw or heard nothing that indicated that Defen dant wa s sexua lly a busing SKJ.

Brenda Baker

, a friend of Def

endant’s in

Kingsport, testified onbehalf of Defendant. She stated that she visited Defendant’s home frequently in 1995, and that she saw no indications of child abuse. Baker’s daughter, Sarah Forbes, also tes

tified on behalf o

f Defendant. She

testified that in 1995 she was 12 years old, and she babysat Defendant and Lawson’s chi

ldren on two Frida

y nights. On those nights she spent the night at the residence, and she saw and heard nothing that indicated that De fenda nt was s exuall y abu sing SK J.

Defendant

pres ent ed t est imo ny by Detect ive Darla Anderson of the Kingsport Police Department. Anderson testified regarding her interview of SKJ on March 4 th , 1996. Anderson’s notes from the intervie

w reflected tha

t SKJ told Anderson tha

t Defendant “ne

ver touched my

private withhis private.” On cross-examination Anderson testified that the March4 th , 1996, interview was the first interview w

ith SKJ, and that it was d ifficult to get a

bused children to t

alk during the fi

rst interview. During subseque nt interviews SKJ told A nderson that the D

efendant touch ed SKJ’s genital area, made SKJ touc h his penis, made SKJ touch her mouth on Defendant’s penis, and that Defendant had SKJ “sit on him.”

Defendant

also presented medical

evidence through Dr. Robert Fay and L inda Iris Henerson, R.N. Dr. Fay testified that he did not examine SKJ personally, but he reviewe d phot ographs o f SKJ’s genitali a tak en by Dr. Fischer. He testified that although SKJ’s hy men was thinner than average, and her hymenal opening was l arge r than a verage, both of these characteristics were not abnormal for a child of her age and weight. Linda Henerson testified that she performed a physical examinat ion of S KJ in her capacity as a public health

nurse for the Sulli

van County He

alth Department. This exam was performed on November 15, 1995, when Defendant brought SKJ to the Health Department for a

health screening. He

nerson testified t

hat this examination included a visual examination of SKJ’s external genitalia, and that Henerson’s notes from the exam showed that she did not observe an

y abnormali

ties.

II. Analysis

Defendant

alleges he did not receive a fair trial becau se (1) the bill of particulars did not suff iciently inform Defendant of the charges, and (2) the prosecution violated Brady v. Mary lan d when it failed to turn-over potentially exculpatory evidenc e to Defendant pre-trial.-5- A. Bill of Particulars

Defendant

argues that his conviction must be revers ed because the prosecution’s bill of particulars did not provide sufficient evidentiary

details regar

ding the alleg

ed offenses.As a result, Defendant

alleges that he was unfairly surprised at trial. Defe ndant also argues that the prosecution had additional information regarding the time and place of the offenses, and that

the insufficiency of the bill combined with the prosecution’s non-disclosure constitutes reversible error under State v. Byrd . 820 S.W.2d 739 (Tenn. 1991).

The Rules of Criminal Procedure allow a trialcourt, on the defendant’s motion, to direct the prosecution to file a bill of par ticulars “so as to

adequately

identify the

offense charg

ed.” Tenn. R. Crim. P. 7(c). In Byrd

our Supreme Court discussed when a bill of particulars is sufficient to meet the purposes for which a bill is required. 820 S.W.2d at 741. “ According to applicable case law and treatises, the bill serves to provide [a] defendant with information about the details of the charge against him if this is necessary

to the preparati

on of his defense

, and to avoid prej udicial surprise at trial

. . . . Furthermore, th e bill of particula

rs enables the de

fendant to prese

rve a plea of dou

ble jeopardy.” Id. (citations omitted) . Informa tion that may be required in the bill of particulars includes details as to the nature, time, date, or locationof the offenses. State v. Speck , 944 S.W.2d 598, 600 (Tenn. 1997).

The Byrd court also directly addressed the utilization of a bill of partic ulars in child sex ab

use cases when the victim, and therefore the prosecution, is unable to identify specific dates on which the alleged abuse occurred. Byrd , 820 S.W.2d at 741-42. Although the court noted that a mino r victim often presents si

gnificant probl

ems regarding specificsof the alleged crime, and thus a datespecific indictment is often not plausible, the court held that when the pros

ecution does posse

ss information that narrows the t ime frame of the i

ndictment it must

disclose such info

rmation in

the bill of particulars. Id. at 742. The court also held that if the prosecution is unable to give

even an approximate

time of the alleged offenses by means of descriptive ref erence,
a conviction may nevertheless be aff i rmed if in the course of the trial it does not appear that the defendant’s def

en se h as b een h amp ered by th e la ck o f sp eci fic ity. Con vers ely, a conviction must be reversed if trial testimonyestablishes that th e state had in its poss ession, either actually or constructively, a dditional information that could have helped pinpoint the nature, time, or place of the offense, and withheld that information from t

he defendant. Id. at 742.

We must consider Def

endant’s alleg

ations with

the above strictures in mind. Defendant was charged with 14 counts of rape of a child, and the indictment alleged that Defendant committed one act of child rape per

week from Septe

mber 1 995 until January of 1996, except no offenses were alleged to have occurred during one week in October. With the

exception of the da

te of each offe

nse the language used

for each count in the indictment was identical, and read in part “on or about [date] and [da te]

. . . did unl awfu lly, int ent ion all y, kn owi ngly, and feloniously have sexual penetration of-6-

[SKJ].” Defendant filed a “motion for discovery,”and requested, inter alia, information regarding “the exact date, time and place of the alleged offense.” The

State’s response was brief, stating in part that the “dates of the offenses are contained in the Presentment. The State cannot be more specific. These offenses occurred at the

victim’s residence at 1382 Waverly Road,Kingsport, Tenn essee in the evening hours w

hile her mother was at work at the Waffle House in Kingsport.” Defendant then filed a “motion to compe l ad equate response to motion for bill of p

articulars,” a

nd the State responded

that the “State ca

nnot be more spec

ific as to the dates of the offenses due to the fact that the allegations were made by a child,” and the “State would specifically state that the penetration was by the Defendant or

ally penetr

ating the victim’s vagina and by the Defendant penetrating the victim’s mouth

with his penis,

and by placing his penis into the victim’s vagina and the Defendant placing his fingers and hands into the victim’s vagina.”

As previously d

iscussed, at trial

SKJ testif

ied that Defendant placed his mouth on and manually touche d SKJ’s genitals, required SKJ to touch his penis and perform fellatio, touched SKJ’s gen itals with his penis, and penetrated SKJ’s vagina with his penis. SKJ testified that she could not remember the exact

number of times that Defendant abused her, but that it was “a lot,” and that the abuse occurred every day except Friday , Saturday, a nd Sunday. De

tective Anderso

n also testified about an interview with SKJ, during which SKJ told Anderson essentially the same details that SKJ testified to, but during which SKJ also said that Defendant “nev er touched my

private with his private.” Following the conclusion of the State’s proof, the trial court required the state to elect what dates the offenses occurred on. The State picked one week day within each week-long per iod: 9/25/95; 10/ 2/95 ; 10/10/95; 10/24/95; 11/1/95; 11/8/95; 11/13/95; 11/21/95; 11/28/95; 12/6/95; 12/12/95; 12/20/95; 12/27/95; 1/1/96.

Defendant

argues that the proof at trial establishes that the State possessed ad ditional in form ation rega rdi ng th e al lege d cri mes tha t sh oul d ha ve b een d isc los ed t o De fend ant . Sp eci fic all y, Defendant

contends that the State knew that the victim was touched sexually by Def en da nt with considerable

frequency, with the

total number of as saults per week v astly excee

ding the one off

ense per week alleged i

n the indictment. Defendant contends that the victim’s and Detective Anderson’s testimonyshows that the State k new the exa ct nature of the sexual touching. Defendant also p oints outthat the victim’s testimony established that the victim was not raped by Defe ndant on F rid ay, Sat urd ay, and Sunday of each week. De fendantargues that this proof shows that information regarding the specifics of the alleged crimes was within the prosecution’s possession pre-trial, and that it should have bee

n disclosed to

Defendant beca

use it would have helped Defendant pinpoint the nature, time

and place of ea

ch alleged off

ense. As a result

, Defendant arg

ues that Byrd

requires reversal.

We do not agree wit

h Defendant’s co

ntention. The disc

losure requirem

ent set forth

in Byrd is not independent of the fundamental purposes served by a bill of particulars . The di sclosure requirement

is designed to ensure that the bill of particulars will enable D efe ndant to prepare a defense, avoid

pr ejudicial surprise at trial, and preserve a Defendant’s ability to ra ise a claim of double jeopardy. Byrd , 820 S.W.2d at 741. Accordingly, the prosecution must disclose information sufficient to protect these constitutional rights. This does not mean, however, that the prosecution-7-

must di scl ose all of the information in its possession regarding the time, place, and nature of the alleged crimes. The bill is not to b e used by a defendant as a broad discovery device. Tenn.R.Crim.P. 7(c), Advisory Comm’n Commen ts. “A defen dant shoul d be given eno ugh information about the ev ents charged so that he m ay, with dili ge n ce, adequately prepare for tr

ial .

. . . A bill of particulars is not intended to be a means of learning the State’s evidence and theories

. . . .” Statev. Stephenson , 878 S.W.2d 530, 539 (Tenn. 1994). The Byrd requirements ar

e simply a threshold that must be crossed.

Here, when the prosecution’s bill of particulars and a dditi onal response ar

e viewed in this ligh t it is clear that Defe

ndant was apprai

sed of the charg

es in such a manne

r that enabled him

to preparea Defense and avoid un fair surprise at trial. Defendant knew where the offenses were alleged to have occurre

d, the time of day

, the span of time

in which they allegedly oc curred, and the nature of the sexual contact alleged by the victim. Defendant

has simply not shown that his pre-trial preparationor method of defense would have been different had Defendant been appraised of exact details of the alleged offenses, the frequency

of the offenses,

and the fact that

the offenses did

not

occur on Friday, Saturday, a

nd S und ay. Phrased differently, Defendant has not shown that he suffered prejudice because the of the lack of disclosure.

To begin, pre-trial preparation by Defendant would have uncovered Martha Lawson’s work schedule at Waffle House, a

nd thus Defendan

t would have known that the offenses were not alleged to have occurred on weekends or during days when Lawson did not work. Thus Defendant’ s claim that he was prejudiced because he did not know that the alleged offenses did not occur on F rid ay, Sat urd ay, or Sunday

is without merit. Second, Defendant was informed of all the types of offenses alleged by the victim: the “State would sp ecifically state that the penetration was by the Defendant orally penetrating the

victim’s vagina

and by the De

fendant penetra

ting the victim’s m

outh with his penis, and by placing his peni s in to the victim’s vagina and the Defendant placing his fingers and hands into the vi ctim’s vagi na.” Altho ugh the pro secution knew tha t the victim would tes

tify in slightly more detail , Defendant knew what co nduct he was being a ccused o f. Finally, alt hough Defendan t claim s that had he known the alleged frequency of the of fenses he would have had prepared differently for trial, we cannot see how this argument has merit.

Defendant

argues that had he known of the increased number of alleged offenses he would have had greater

incentive to locate and interview adult relatives and friends who either lived in the home or stay

ed as overnight

guests in order t

o watch the childr

en. Defendant’ s brief states tha t

This change in the nature of the accusation had an effect on the investigation of the

case. As the offenses w

ere alleged to

have occurred

in his own home, it wa

s highly unlikely that he could establish an alibi. However, there was evidence that other adults, such as the victim’s aunt, either lived or stayed overnight at the appellant’s homeduring the perio

d included in the pr

esentment. Prior to

tr ia l, the defense did notinvestigate evidence

that would have established a date that another adult wou

ld have been in the household overni ght. Duri ng the trial, witnesses for both the prosecution and the defense all agreed that there were occasions in which other adults-8-

were present in the hous

e on weekday

nights. However

, establishing a d

ate would be of little value to the defense as the prosecution could simply

claim the offense

occu rre d on another day

that week. If

, however, the a

ccusation is that th

e offense occurred four to five times a week excluding weekends, evidence proving the presenceof anoth er adult in the house on a date certain is much more likely to be

exc ulp ato ry. Had the defense known that Keagan Jennings had told police officers that the of fenses happened “all th e time”, they

would have had an

incentive to investigate evi

dence establishi

ng the dates of v

isits by other

adults.

We fail to see how an allegation of five offenses per week in the indictment would have increased Defendant’s incentive to locate these witnesses. Whether Defendant is acc used of on e offense or five offenses per week, the crucial ingredient is the fact that the in dictm ent is not da te-sp ecifi c. In bothinstances any adult who stayed or lived in the home would

be a primary source of information for what life in the home was like and what kind of interaction Defendant had with t he vic tim. If Defendant

had known that the victim was alleging multip le offenses per

week hisincentive would have been to get information regarding as many of the day s within the scope of the indictment as was possible. Ho wever, giventhat the prosecut ion did not allege

specific dates in

the indictment, Defendant’s incentive regarding the allegation of one offense per we ek was the same. Defendant still needed t o get inf

ormation regar

ding as many

of the dates within

the indictment bec

ause Defendant

would needevidence to rebut any date the prosecution set forth as the exact date of the offense.

Assuming, arguendo, that the bill of particulars is insufficient under Byrd , we note that the prosecution had no additional informationregarding the time, place, or nature of the offenses that it could have disclosed to defendant. As discussed above, Defendant knew ever ything th e prosecution knew–albeit in lesser detail. The non-disclosed evidence here contained no descriptive references that would have furthered Def endant’s ability

to prepare a defense. Accordingly , under Byrd
, if “the state is tru

ly unable to g

ive even an appr

oximate time of the alleged offenses by means of descriptive reference, a

conviction may nevertheless be affirmed if in the course of the trial it does notappear that the defendant’s defense has been hampered by the lack of specificity .” 820 S.W.2d at 742. As our prior discussion evidences, Defendant has not shown how his defense was prejudiced by the bill’s lack of specificity. Defe ndant is not entitled to relief on this issue.

B. Brady

violation

Defendant

alleges that the prosecution violated Brady v. Maryland

when it failed to turn over interview notes from a March 4, 1996, interview of the victim by Detective Darla Anderson of the Kingsport Police Department. Defendant contends that the in terview notes ar e potentially

exc ulp ato ry, and thus the failur e of the prosecu

tion to produce the notes during pre-trial disclosure violated Defend

ant’s due proce

ss rights.

In Brady v. Maryland

the United States Supreme Court held that “suppression by the prosecution of evidence fa vorable to an ac

cused upon reque

st v iolates due process where the-9-

evidence is material either to guilt or punishment.” 373 U.S. 83, 87 (1963). When such evidence is suppresseda due process violation occurs irrespective of the good or bad faith of the prosecution. Id. Evidence that is favorable to the acc used incl udes that which may be used to impeach the prosecution’s witnesses. Giglio v. United States , 405 U.S. 150, 154-55 (1972). A defendant must prove four criteria in order to establish a due process violation under Brady :

1. The defend ant mu st have requeste d the information (

unless the evidenc

e is obviously exculpator y, in wh ich case the state is bound to release the information whether requested or not);

2. The state must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information mu

st have been mate

rial.

State v. Edgin

, 902 S.W.2d 387, 390 (Tenn.), amended on r eh'g (Tenn.1995) (citations omitted).

The Defendant has the burden of proving a constitutional violation by a preponderance of the evidence. Id. at 389 (citing Statev. Spurlock , 874 S.W.2d 602, 610 (T enn. Crim. App. 1 993). In Kyles v. Whitleythe United States Supreme Court hel d th at the materiality of the undisclosed evidence i s deter mined by asking if there is a reasonable probability that, had the evidence been disclosed to the defense, th e result of the pr

oceeding would

have been different. 514 U.S. 419, 434 (1995). The Court elaborated by stating that “the question is not whether the defendant

would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Id. If there is a delayed discl osure of i nformation, in contrast to a complete failure to disclose exculpatory inform ation, Brady

does not normally apply unless the delay itself causes prejudice. State v

. Danielle Jordan , N o. 0 1C01-9801-CR-00021, 2000 WL 85364, at *10, Davidson County (Tenn. Crim. App., Nashville, Jan. 27, 2000) perm. app. pending ; State v. Joan Elizabet h Hall , No. 01C01- 9710-CC-00503, 1999 WL 34782, at *9, Lincoln County (Tenn. Crim. App., Nashville, Jan. 28, 1999) perm. to appeal denied (Tenn. 1999) (citations omitted).

Defendant

argues that Brady

applies to interview notes from a March 4, 1996, interview of the victim

by Detective

Darla Anderson of the Kingsport Police Department. Defendant contends that the notes are exculpatory because they do not support the prosecution’s allegation that the Defendant

forced SKJ to perform fellatio, and because t he notes contain a statement by SKJ that Defendant

“n ever touchedmy private with his private.” Defendant points out that exculpatory information was specifically requested b y Def endant in a “Motion

for Discovery

” filed pre-tria

l, which asked for-10-

any and all evidenc e in possession of the state or in the possession of any governmentalagency that might fairly be termed ‘favorable,’ whether that evidence either be completely

exculpatory

in nature or simply tends to reduce the degree of the offense or punishment ther

efore, or wheth

er that e v idence might be termed “favorable,” in the sense that it might be fairly used by the defendant to impeach the credibility of any witness the gove rnment intends to call in this matter . . . .

The prosecution did not turn Anderson’s notes over pre-t rial, but did disclos

e the notes to Defendant following the victim’s testimony during the prosecution’s proof-in-chief. After t he State’s proof Defendant

moved to dismiss the case based on the prosecution’s failure to disclose the notes, but the trial court overruled the motion, holding that Defendant failed to prove the materiality requirement set forth in Brady

.

We first examine Defendant’s contention that Anderson’s notes are pot ent ial ly ex cul pat ory. As regards the statement Def endant “never t

ouched my pr

ivate with his priva

te” we agree

with Defendant. However, we do not agree with Defendant’sassertion that the notes are exculpa

tory in general because they

do not support the a

llegations that D

efendant requir

ed th e vi ctim to perform fellatio. The notes were ente red into evidence and published to the jury, and the last paragraph r eads in part “ [SKJ] said Tommy wo uld put his private in

her mouth until white

stuff would

come out.”

Although we agree

that the statement

regarding pe

nile penetration

is potentially

exc ulp ato ry, Defendant

is not entitled to relief because we c o nclude that Defendant has failed to establish the materialit y criterion of Brady

We base our holding

on different gr

ounds than the tria

l c ourt

. Because the interview notes were disclosed to the defense during trial, Defendant must show that the delay in disclosure caused prejudice to Defendant. Jordan , 2000 WL 85364, at *10; Hall , 1999 WL 34782, at *9. Defendant has not shown any such prejudice.The notes were disclosed before the victim was excused as a witne ss, and as a result

Defendant was a

ble to cross-examin

e the victim regarding the content of

the notes. Defen

dant was also

able to call Detective Anderson to the stand

as part of Defendant’s proof and the statement that Defendant “nev

er touched my

private with his private” was read into the record. The notes themselves weremade an exhibit and published to the jur y. Finally, De

fendant presen

ted a very s

trong defense

regarding pe

nile penetr

ation, in cluding medical proof that contradicted the victim’s asser

tion that Defenda

nt penetrated he

r with his penis. We do not think that there is a reasonable probability that, had the evidence been disclosed to the defense pre-trial, the result of the proceeding would have been different. Defe ndant received a fair trial, and thus is not entitled to relief.

III. Conclusion

For the above re

asons we AFFI

RM the judgment of

the trial court.

___________________________________ THOMAS T. WOODALL, JUDGE