### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Septem ber 17, 200 2 Session
DENNIS J. HUGHES v. STATE OF TEN NESSEE
Appeal from the Criminal Court for Davidson County No. 96-C-1802 Walter Kurtz, Judge

No. M2001-02454-CCA-R3-PC -Filed March 13, 2003

Dennis J. Hughesappealsthe David son County Crimi nal Court’ s denial o f his petit ion for po stconviction relief. He claims on appeal that the lower cour t erred in (1) de nying his cl aim that hi s constitutional rights w ere abr idged b y the state’ s failure to disclose

evidenc e aga

inst him pri or to trial as part of the bill of particulars, and (2) ruling that he could not impeach the prosecutor from the convicti on proceedings with th e pro secutor’s own alleged prior bad a cts. Because we are unpersuaded of reversible error , we affirm the post-conviction court’s denial of relief

. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and R OBER T W. W EDEMEYER , J.J., joined. Charles R. Ray, Nashville, Tenne ssee, for the Appellant, Dennis J. Hughes

Paul G. Summers, Attorney Gene ral & Repor

ter; Kim R. Helper, Assistant Attorney G eneral; Victor S. Jo hnson, I II , District Attorney Gene ral; and John Zimmerman, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

In 1997, the pet itio ner, formerly a member of the Davidson County Bar, was convictedat a jury

trial of b ribery of a witne ss and conspiracy to bribe a witness. See State v. D ennis J. Hughes , No. M1997-0 00 84-CCA-R3-CD (Tenn. Crim. App., Nashville, Dec. 28, 1999), perm. app. denied

(Tenn. 2000). Following an unsuccessful cour se of litigation in the appella te courts, the petitioner fil ed the present petition for post-conviction relief. Primarily , he complained in the petition of prosecutorial tactics in the cour se of the conviction proceedings. An evidentiary hearing
was conducted. Through counsel, the petitioner fra med his issues at the hearing as rel ating to (1) the state’s alleged violation of the trial court’s order regar ding the bill of particulars, (2) the state’s alleged sponso rship of perjured testimony via witness Rhonda Williamson, and (3) the state ’s violation of Brady v. Maryland in failing to provide during discovery a letter from the co-defendant’s1 W illiamso n and the co -defen dan t are he ard ta lking on all three ta pes. H ughe s is heard on o nly the first.

2 As the petition er fram es the issu e in his br ief, the conve rsat ion in questi on invol ved a tel ephone call between Willi amson an d t he co-defendant in which Williamson overheard Hughes in the background making inculpatory statem ents about providing money to W illi amson. W illi amson’s testi mony at the petit ioner’ s tr ial was imprecise on the point of whether she actually spoke to Hughes on the telephone or merely heard him talking i n the background during the call. It is not clear whether t he witn ess’ s tes timony was ir reconcil able or whet

her her t esti mony shoul d be constru ed to mean that Hughes was in the background init ially while she was talkin g to the c o-de fenda nt, but t hat he l ater pi cked up the tel ephone a nd spoke wit h her . The mos t damag ing vers ion of events t o which she test ifi ed came when she clai med that she spoke with Hughes and he said “[t]hat they were going t o bring me the money.” At the post-convict ion hearing, she tes ti fi ed th at Hugh es got on the phone and identified himsel f and said that he and the co-d efend ant wer e com ing to see he r. For p urpo ses of this p ost-co nviction app eal, it is not ne cessa ry for us to resolv e any fac tual disc repa ncy. -2- attorney to the district attorney ’s office which sta ted that th

e co-defendant

would not im

plicate Hughes in her testimony. Following receipt of the proof, the parties were allowed to submit written memoranda, and the post-conviction court then ente red a de tailed, w ritten or der in which it found
no basis for grantingthe petitioner’s requested relief. On appea l, the petitioner has pursued only the first of his three hearing issues but also c ompl ains t hat th e lowe r court , at th e evid entia ry hearing, improper ly limited his examination o f A ssistant District Attorney Gener al John Zimmerman regar ding disc overy

and discl osure sho

rtcoming s in other

criminal cases.
The facts pertinent to this post-conviction action are these. The defendant anda codefendant were convicted of bribery of a witness and conspiracy to commit bribery. See Dennis J. Hughes , slip op. at 2. These convictions related to a scheme in which the defendant and his codefendant were ult imately found guilty

of bribing a state’s witness who they anticipated would give damaging testimony aga

inst an individual charged with murder. See id. , slip op. at 3. The charged individual was t he defendant’s client and the co-defe ndant’s boyfrie

nd. See id. The sche

me also allege d ly involved an alleged attempt to solicit the murder of the witness who had bee n the target of the bribery sc

heme, altho ugh the cha

rge of solicitation to commit first degree murder was dismissed when the trial court granted the def e ndant s’ motion f

or judgm ent of ac quittal on t

his count. See id ., slip op. at 2, 8-9. During the course of pretrial litiga tion in the conviction proceedings, the trial court gr anted Hughes’s motion for a bill of particulars. The state responded by filing a bill of particulars which represented that the bribery and conspira

cy charg es were

factua lly basedupon an offer of money on a specified date. The state disclosed that the offe nses were more specific ally described in three surre ptitiously taped conversations in which Hug hes, his co-defendan t , and Rhonda Williamson, who was the alleged targ et of the bribe, are the various p articipa

nts. 1 The bill of particulars alleged

that recordings of the three conve rsations had already

been provided

to the defense in the course of

discover y. Si gnific antly , the bill of particulars did

not allege that there was
an additiona l , unrecorded telephone conversation in which Williamson spoke with Hughe s’s codefendant about the particulars of the bribe and overhea

rd Hugh es making incrimina

ting sta tements in the background. 2 Likewise, at a hearing on a motion in limine at the beginning of the defendant’s trial which dealt with admissibility of a co-c onspirator’s hearsay testimony , the state

did not tip it s hand that it inte

nded to of

fer such evidenc e. Evide nce to thi s effect, howeve r, was offered at the defendant’s trial during the testimony of Rhonda Williamson as part of the state’s case-in-chief. The3 Th e petitio ner d id no t pursu e a claim of ineffec tive assistan ce of tria l coun sel.
-3- defense did not object to intro duction of the evide

nce or ma

ke any claim of unfair s urprise or constituti onal viola

tion eithe r during trial, in t he motion f

or new tr ial, or on direct a ppeal.

In his p os t-conviction petition, however, Hughes complains that his constitutional rights under

Amendments 5, 6 and 14 of the United States Constitution and Article 1, sections 8 and 9 of the TennesseeConstitution were abridged by the state’s failure to disclose this evidence prior to trial.

At

the post-conviction hearing, the petitioner testified that he was surprised at trial when the assistant districtattorney g eneral mentioned in his opening statement a phone conver sation betweenMs. Williamson and the co-defendant in which Wi lliamson overheard the defendant making statemen ts in th e background about bringing money to Williamson. Likewise, he was surprised when Ms. Williamson testified consistently with the prosecutor’s opening state ment, and he characterized

the testimony as untruthful. The petitioner claim ed tha t the d efense was “ha mstr ung” in trying to re

fute Ms. Williamson’s testimony without advance notice. In e xplaining why he and his attorney s did not dis cuss cross-e xamination o f Ms. Williamson a bout the da

te and time

of this conversation, he testified that his reactions to the evidence were devastation and astonishment and that he was rely

ing on “t wo ve ry g oo d l aw yer s” to ha nd le th e c as e a pp ro pr ia te ly. 3 He acknowledged that he did not b

ring to c ounsel’sattention that th e state was off

ering evidence that had not been produced in pre-trial discovery

or pursuant to the bill of particulars. After his conviction, it later occurred to the incarcerated

petition er to have his brother retrieve his calenda r from storage and forward it to his post-conviction counsel. The petitioner introduced a copy of his calendar for the date of the unrecorded telephone call, which showed several court appearance s scheduled fo r the morning and an aft ernoon a ppointmen t. He test ified tha t he spec ifically

remembe

red the d ate in question and that h

e was in v arious c ourts all morning; he did not, however, remember whether he kept the afte rnoon ap pointment. He also in

troduce d court do cuments s howing h is appea rance in court on the date in question.

One of the petitioner’s trial attorney s was called as a witnessand testif ied that he did notrecall the evidence coming up until the trial was underway . Counsel claimed that had he known about this evidence at an earlier stage, he could have marshaled other evidence to re but it. He characterized

the proof at trial r elative t o the date and time of the conversation to be vague, and he admitted t

hat his client, the petitioner, did not mention the possibility of challenging the evidence withhis calendar for the pertinent time period. Counsel admitted that it did not occur to him at the time that this type of evidence might be employe d to contradict the state’s proof.

Three assistant

d istri ct attorneys g eneral testified, as did an investigator from the Metro Police De

partmen t. Although their

recollections we

re vag ue due to t

he passa ge of time, their testimonygener

ally indicate d that t

he stat e did, in all likelihood, have knowledge well before the petitioner’s trial of M s. Williamson ’s c lai ms relative to the unrecorded telephone conver sation. Their testimony did nothing to refute the pe titioner’s claim that this evidence was not provided prior-4-

to trial. However, John Zimmerman, the lead prosecutor dur ing the conviction proceedings, took the position tha

t the state had ade quately

complied with the tr

ial judg e’s orde

r gran ting the bill o f particulars.

The petitioner’s examination of General Zim merman, who was called by the petitioner as an adverse witness, was protracted a nd contentious. At one point , the peti tioner attempted to examine General Zimmerman about an a lleged pattern or practice in other cases of failing to disclose information to the de fen se, failing to comply with court orders, pursuing trial strategies that wer

e belied by t he evide nce of th e case, and providing defense c ounsel wit h misleading infor

mation re lative to the state’s evidenc e, all to d emonstra te that an y shortcoming

in turning over evi dence to

the defe nse in the pe titi oner’s convi ction procee dings was not an innocent mistake or acci dent. The post-con viction c ourt, how ever, r uled that t his lin e of inquiry wa s not permissib le under

the petiti oner’s t

heory of admissi

bility , which wa s Tennes see Rule of Evidence 404(b). The court disallowed an offer of pr oof v ia examination of the witness, but it did allow counsel t o recite at some length the factual allega tions into which he would have inquired had the court ruled otherwise. Some of these factual alleg ations were b ased upon matters reported in the opinions of state and federal courts.

At the conclusion of the hearing , the petitioner charact erized the state’s f ailure to disclose evidenc e via the

bill of par

ticularsas so eg

regiou s that it w ent bey ond mere violation of Tennessee Rule of Criminal Procedure 7, relative to disclosu

re in a bill of particulars, and amounted to violati on of

the defendant’s constitutional rights to due process, a fa ir trial, and fundamental fairness.

The court allowed the parties to submit written memoranda, and the court thereafter issued a detailed, written order denying relief. In pertinent pa

rt, the court’s order found

that a ltho ugh the bill of particulars had not specifically disclosed the evi denc e of the t elephone convers ation in question, it had “put the defendant on more particularized notice as to the allegations.” Moreover, the indictment itself identified the pertinent date of the offenses. The cour t found that in view of the information provided , it was “dou btful” tha t the state violated the cour t’s orde r relati ve to the b ill of parti culars, and even if it had, the petitioner was not entitled to relief for a variety of

r easons
. First, the petitioner

failed to demonstrate a constitutional violation. Second, the issue had not been raisedin the convi ction pro ceeding s and wastheref ore waiv ed. Fina

lly, the petiti oner had

failed to demonstrate prejudice.

Following the adverse ruling in the lower court, the pe titioner filed the appeal that is now before us for disposition.

I

We consider first wh ether the post-conviction court improperly limited the petitioner’s evidence at the post-conviction hearing by cur tailing his examination of Assistant-5-

District Attorney Gene

ral John Zimmerman relative to General Zimmerman’ s alleged prior bad acts

. The petitione

r claims t hat Gene ral Zim merman’ s conduc t in other cases dem onstrates
a pattern or practice of failing to disclose information to the defense, failing to comply with court orders, pursuing trial strategies that were be lied by the evidenc e of the case, and providing

defense counsel with misleading information relativeto the stat e’s evid ence, a ll of which tend to prove that any shortcoming in turning over evidence to the de fense in the petitioner’s convi ction procee dings
was not an innocent mistake or accident. The petitioner theorizes that under Te nnessee Rule of Evidence 404(b), evidence of a common schem e or plan by the witness is relevant to rebut the witness’s claim that there w as a ben ign explanation for any wrong doing on his part in the instant
case.
Rule 404(b) isgener ally used in cr iminal prosecutions as a means for admitting evidence of the defendant ’s other wise inad mi ssibl e crimes, wrongs, or acts. See, e.g., State v. Robinson , 73 S.W.3d 136 , 152 (Te nn. Crim. App. 2001), perm. app. denied (Tenn. 2002); State v. Brewer , 932 S.W.2d 1, 24-25 (Tenn. Crim. App. 1996).

It is not nec essary

for us to e ngag e in a lab orious inq

uiry into the a pplicabi lity

of Rule 404(b) in post-conviction actions, however. Disposition of the issue before us is possible on a more basic level. Only that evidence which is relevant is admissible. Tenn. R. Evid. 402. For the reasons that follow, th e petitioner’s pr

offere d evidenc e is not relevant in that it does not “hav[e] any tendency to make the existence of any fact tha t is of consequence to the determination of the action more probable or less pr obable than it would be without the evidence.” See Tenn. R. Evid. 401 (definition of relevant evidence).

The petitioner argues in his brief that his proffered bad char act er evidence about General Zimm e rman “was germane to the issue of w hether [General Zimmerman’s] denials of remembering when he became aware of Ms. Williamson’s testimony and that he was the victim of
an innocent

mistake in

not turnin g it

[the evide

nce rel ative to th

e unrec orded telephone c all] over t o the defense were an ong oing pattern or practice, or a sc heme to evade his responsibilities.”

The problem with this the ory of admissi

bility is that n eit her the time that General Zi mmerman became aware of Ms. Williamson’s prospective testimony nor the question whet

he r Zimmermanmade an innocent mistake in not turn ing ove r the evi dence a

re the su bject of inquiry in this c ase. Ra

ther, the inquiry foc

uses on whether the state was required to disclose this evidence , and if so, whe

ther the non-disc losure wa s so damag ing tothe defendant that

his constit

utional ri ghts
were violated. As we discuss in Section II below, we have determined that the state was not required to disclose the evidence, and therefore, there was no constitutional shortcoming. Thus, the proffered evidence was irrelevant to the issue before the court, and its exclusion was not error.
Furthermore, Genera

l Zimmer man did nottestify

that he in nocently or acci dentally overlookeddisclosing

the evide

nce in que stion in re sponding to the cou

rt’s orde r th at a billof particulars be provided. His testimony was that he thought he had

complied with the le

tter and spirit4 Tenness ee Rul e of Crimi nal Procedur e 16(a) gover ns a c rimi nal defen dant’ s di scove ry of inf ormat ion f

rom the st ate, but i t ha s no appl icat ion to the un reco rded teleph one call in which M s. W illiamso n claim s to hav e talked with
or overheard t he p etitioner . The rule pr ovid es for d iscov ery of state -held sta teme nts mad e by the defen dan t but on ly when the stat ements are written or recorded or, if oral, were made to an interrogating l aw enforcement officer. Tenn. R. Crim. P. 16(a)( 1) ( A)

. Mo reov er, the ru le exp licitly doe s not au thorize the disc ove ry of statem ents ma de b y state witn esses or prospecti ve sta te wi tness es. Tenn. R. Crim. P. 16(a)(2). At oral argument , th e petit ioner conce ded that Rule 16(a) was not i mplicat ed by the fact s of hi s case. -6- of the court’s order in making the disclosures which were g iven in the bill of particulars. Thus, there
was no claim of mistake or acc ident to be rebutted, so the proffered bad act evidence is irrelevant for this r eason, a s well.

II

The remaining issue is whether the post-conviction court err ed in declining to find constitutional short comin gs in the pet itioner’ s trial ba sed upon th e state’ s pretria

l failure to disclose evidence of the unrecorded, inculpatory telephone call. In his brief, the petitioner

vigorously a

rgues that the state ’s nondisc losure of the evide nce wen t so far bey ond the realm of a simple violation of Tennessee Rule of Criminal Procedure 7(c) that it constituted a violation o f his cons titutional fair trial, co nfronta

tion, and d

ue proce ss right s.
We will first consider whether there was a violation of Rule 7(c ). If that question can be answer

ed in th e negative, then there is no need for this court to inquire further into the alleg ed const itut ional viol ation s that are the subj ect of t his p ost-c onvi ction procee ding. However, if Rule 7(c) was violated, then we must consider whether the violation was so egregious that it amounted to a const itutional d

eprivat ion which prejudic ed the pe

titioner a t trial.

Tennessee Rule of Criminal Procedure 7(c) provides, “Upon motion of the defe ndant the court ma

y di rect the filing o f a bill of

particulars so a s to adequa te ly id entify the offe nse charged.” The Advisory Commission Comments further define the pa rameters of

the rule as allowing the bill

of particulars “where needed by the defe ndant in order that the defendant can know precise ly what he or she is charged with.” Te nn . R. C rim. P. 7, A dvisory Comm’n Comme

nts. Moreover, the Comments admonish, “This provision is to be construed to serve that singular purpose, and is not meant to be used for purposes of broad discovery. ” Id. (emphasis added). 4

In this case, the trial judge granted the d efen dant’s mo tion for a bill of par

ticulars

. In so doing, the trial judge made the following comments relative to the scope of his order

. I think the

Stateshould provide a bill of particulars. There’s really no way that the judge can set out the parameters of that exce pt in sort of

gener al terms. But I

think the State shoul d just tell him in plain de scription

what it is sp ecifica

lly t he State alleges that he did.5 The motion for bill of particular s is exhaust ive in i ts r equest f

or parti culari zed details of the offenses . In the post- convi cti on pro ceed ings, t h e petitio ner ha s chara cterize d the m otion as hav ing be en “gra nted . . . in its entire ty without limit ation.” However, we believe that the parameters of the court ’s order granti ng a bill of part icul ars i s defi ned by the l imit s descri bed above.
-7- If the State knows particularization of time and pla ce of the alleged offense – now I’m not talking about a four or five page response. Probably – perhaps ev en a paragraph is goin g to do it. And I know y ou two [attorneys] have been a round a long time and seen bills of particular. I don’t think I need to be any more [sic] specific than that, I hope. (Emphasis added.) 5

The ind ictment identified the offenses as first, involving an offer , conference, o r agreement

to confe r money to Rhonda Willia ms on with the intent to corruptly influence her testimonyin an official proceeding. The second count charged a

conspiracy

between Hughes and his co-defendant to bribe a witness. The second count particularly

described the following

overt act:

A meeting was ar

r anged by Suvonnya L

akeisha Smith [the co-defendant] between Dennis J. Hughesand Rhonda Williamson on January 25, 1995, in Nashville, Tennessee. The purpose of the meeting was for Rhonda Williamson to recant he r pr ev io us tr ut hf

ul te st im on y ag ai ns t W ayfor d D em on br eu n i n e xc ha ng e for mo ne y.
The bill of particulars filed by the state informed the de fen dant of the following.

COUNT 1 The state alleges that the defenda nts offered, or agree d to offer or conferred, a sum of money on the dat

e set for th inthe indictment. The substance of the offers are [sic]
more specifically de scribed throughout the conve rsations between the defendants and RhondaWilliamson as transcribed in the draft transcripts labeled tapes number 1, 2, and 3, heretofore submitted to defendants’ counsel as part of the Sta

te’s res ponse to defenda nts’ request

for discovery. The se conversations occurred through te lephone communication to Rhonda Williamson at her residence at 2331 Oak Court, Nashville, Tennessee. The meeting described in draft transc ript of Tape #1 occurred

near the residenceof Rhonda

Williamson a

t 2331 Oak Court, Nashville, Tennessee, and within a la

te model L

exus automo

bile oper ated by defenda nt Dennis H

ughes.

COUNT 2

The State ha s alleged that the defenda nts’ [sic] ac

ted pursu ant to an a

greem ent to brib e Rhonda Williamson and that evidence of such agreement or c oncert of min d is based upon the conversations between the defe ndants’ [s ic] and Rhonda-8-

Williamson as transcribed in the draft transcripts labeled Tapes # 1, 2, and 3, heretoforesubmitted t

o defend ants’ counsel as p art of the State’s r esponse t o defendants’ request for discovery . Additionally, the State would rely

upon the B ill of Particula rs set for th as to Coun

t 1, and fu rther re ly upon the events set forth in the transcript of evidence of proceeding s heretofore submitted in the State’s response to request for disc overy

by d efenda nts’ coun sel.

The function

of a bill of

particulars is to

provide t he defe ndant with

the details of the charge he face s, to avoid

his prejudicial surprise at trial, and to allow him to preserve any claim of double jeopardy. State v. B

yrd , 820 S.W.2d 739, 741 (Tenn. 1991); State v. Hicks , 666 S.W.2d 54, 56 (Tenn. 1 984). The

bill of par

ticularsis not

properl y ut il iz ed fo r t he pu rp os es of br oa d d is co ve ry; rather, it is suffic ient if it p

rovides t he defe ndant with

the infor mation ne cessar

y to prepar e a defe nse and avoid prejudicial surprise. See State v. Stephenson , 878 S.W.2d 53 0, 539 ( Tenn. 1994). Specifically, the bill of par ticulars is nota device

which requires the state

to reveal its evidence or theorie s, except to the extent that those things are revealed v ia disclosure of the necessary information to fulfill the purposes of the bill of particulars. Id.

After carefully considering the issue, we are unconvinced, for the reasons that follow, that the state violated Rule 7(c) by failing to disclose t

he evidence in question in its bill of particulars. First of all, the state’s answer, viewed in the letter and spirit of the trial judge’s ruling in granting the bill of particulars, was ade quate. Likewise, the information disclosed is consistent withthe parameters of the governing law relative to specific information which must be disclosed. The state was not required to provide a laundry list of each and every

minute detail of the defendant’s involvement

in the charged offenses. See Stephenson , 87 8 S .W .2d at 5 39. It was required to provide
reasona ble specificity to allow the de fendant to know the crimes with which he was charged. Byrd , 820 S.W.2d at 741. Its response did so. The response informed the defendant

that he was charged withbribery of a

witness occurring on January 25, 1995, basedupon an a greed exchang e of cas h for RhondaWilliamson’s recantation of her previous testimony implicating Wayford Dem onb reu n. It likewise informed him that he

was cha rged w ith conspiracy

of that offense based upon his agree ment to carry out the of

fense w ith his co- defenda nt. The ind

ictme nt and bill of particulars further informedthe defe

ndant of f

actual spe cifics by re

ferring to three taped conve rsations which were providedduring discovery and by alleg

ing that the co-defendant arra nged a meeting for Hug

hes and Williamson, at which Wi lliamson w as to make a tape r ecording in

which she recanted her previous testimony aga

inst Demonbreun.

The bill of particulars provides much in the way of particular information relative to the charges aga

inst the defendant, and the indictment provides the date of the offense. The bill of particulars does make reference to telephone communication, although it focuses on the taped conversations as providing more specific informa tion relative to the nature of the bribery scheme.
Furthermore, in assessing whether a Rule 7(c) violation existed, we are unconvinced the nondis closure

in this cas e caused prejudicialsurprise to the def

endant. I n order t o fully assess th e impact that the state’s nondisclosure may have had on the dy

namics of the conviction6 The reco rd o f this prior pro ceed ing is not b efore this cou rt. The se facts are g lean ed fr om ass ert ions made by

defen se co unsel d uring o pen ing statem ents at the petition er’s trial.
-9- procee dings, this cour

t has reviewed the

appella te record from thepetitioner’s direct appeal. Upon doing so, this court is struck by sever al things that have not

been highlighted in the post-conviction proceedings but nevertheless have a significant impact on our resolution of the issue.

It appears from

the petitioner’s trial record that Ms. Williamson had already testified in a prior proceeding that

the co-d efenda nt told her

in a telephone conversation that Hughes wa nted Williamson to recant her previous testimony and provide him with a taped statement in which she would say that she d

id not act ually witness the homi cide of which Hughes’s client was acc used. Williamson further

testifie d in this prior

procee ding tha

t Hughe s was to be

actively involved in this scheme in meeting

Williamson a

t a restaur ant to mak

e the tap e and the

n taking the tape to court on behalf of his clie

nt. 6 On one of the tapes referenced in the bill of particular s, the co-defendant sa ys that sh e has spent the last two day s in Hughes’s office making sure that she understands what he wants her to ha

ve Williamso n say

in her rec antation . With

information available to the defense that the state intended to show this level of culpability on the part of the defendant, we are har d-pressed to see how a

dditional informati on that the defenda nt also participated in the telephoneconversation is critica l to the defense

and it s nondisclosure prejudicial, particularly where the defendant was already awareof the existence and basic substance of the telephone ca ll, albeit not the allegation of his own inv olvement

in it.

In contrav enti on of the petitioner’s claim of paraly zing surprise at trial, the direct appeal record reflects that following that state’s mention in its opening statement of the defendant’s involvement

in th e u nr ec or de d t el ep ho ne ca ll , t he de fe ns e d ir ec tl y r esponded in its own opening statement by forec asting that

the evidence would show that despite any testimonyMs. Williamson might give relative to Hughes’s participation in an unrecorded telephone call, Ms. Williamson had already given sworn testimony in a nother proceeding that only the co-defendant

was involved in the telephone call. Second, the defense cross-examined Ms. Williamson in some detail about her prior testimonyrelative to the unrecorded telephone ca l l. T he petitioner’s defense team used the prior te st im on y, in which Williamson ap parentl y sa id that she spoke only with the co-de fendant and not Hug hes, to impeach her contrary trial testimony that the call involved both Hug hes andthe co

defenda nt. Our discovery

of these facts in the direct appeal rec ord go a g reat distan ce in undermining the defendant’s claim of prejudic ial surpr

ise at tri al. The d

efense was able to respond aggr essively to the state’s evidence even though it had not had adva nce notice of the specific factual allegation.

At

the po st-co nvict ion h earing, the petitioner made much of the potential exculpatory character of his calendar entries for the date of the offense. He claim ed that these entr

ies belie d Ms. Williamson’s claim that he spoke with her by telephone on that da

te. However, the indictment put the petitioner on notice of the date on which the state contended that the off enses took place, and
even absent specific information that the state intended to offer proof of an inculpatory event during7 Actu ally, the pe titioner’s ca lenda r do es no t per se confl ict with Williamson’s testi mony. Although the ti ming is impre cise, it appears tha t Will iams on receiv ed the t elephone cal l in questi on during the morni ng hours. Hughes has multiple n ames e ntered on h is cal endar for 9:00 a.m. He testi fied a t th e post- convict ion hear ing t hat t hese names represent

ed clients o f his, and h e was in variou s cou rts for them all mor ning. It is his tes timony, rat her than the calendar, which direc tly contra dicts W illiamso n’s trial testimo ny. -10- a time when the petitioner had activity noted on the calendar, 7 the potential relevance of his calendar should have been apparent

prior to trial. Furthermore, the petitioner did not testify at his trial, and he did not cla

im in his post

-convic tion te stim ony

that he wo

uld have d

one so in or

der for his calendar to be admitted and so that he could off er evide nce that he was in court for clients the entire
mo rning that the state alleged the telephone ca ll took place. Although he theorizes that he might have been able to seek admission of court records showing hi s appe arance

in court o n the date

in question, records for only

one such case were

offere d for t his p urpos e at th e post -conv icti on hea ring, and they do not ref

lect the actual time the petitioner spent in court relative to his client’s case.

For all of the se reas ons, we are not convinced that the state violated Rule 7(c) in its pretrial disclosures in the bill of particulars. Under the petitioner’s th eo ry, the Rule 7 violation that he contends occurred was so egregious that it amounted to constitutional shortcoming. However, if there was no Rule 7 violation, it follows that there was no c onstitutional shortcoming. In the absence of constitutional error, this court may not grant post-conviction relief. See Tenn. Code Ann. § 40-30-203 (1997). Thus, the petitioner is not entitled to relief.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE