# FILED
May 27, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

RONALD DAVID DUKES and * C.C.A. NO. 03C01-9703-CC-00112 EDGAR VIRGIL DUKES, III, * UNION COU NTY

Appellants, * VS. * Hon. Lee Asbury, Judge STATE OF TENNESSEE, * (Post-conviction)

Appellee. *

For Appellants: For Appellee: Douglas A. Trant John Knox Walkup Attorney for Ronald Dav id Dukes Attorney General & Repor ter 900 S. Gay Street Suite 1502 Sandy C. Patrick Knoxville, TN 37902 Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Michael L. DeBusk Nashville, TN 37243-0493 Attorney for Edgar Vir

gil Dukes, III 5344 North Broadway Clifton H. Sexton Knoxville, TN 37918 Assistant District A ttorney General P.O. Box 10 Huntsville, TN 37756

OPINION FILED: __________________

AFFIRMED

GARY R. WADE, JUDGE1 This court vacate d a conviction fo r using a firearm t o commit kidna pping. 2 OPINION The petitioners, Ronald David Dukes and Edgar Virgil Dukes, III, were convicted of the robbery,kidnapping and murder of the v ictim, Hollis Kitts.The trial court ordered Ronald Dukes to serve consecutiv

e life sentences for first degr ee felony murder and armed robbery; a sentence of life plus five y ears was imposed for kidnapping to commit robbery by the use of a firearm. Edgar Dukes received identica l sentenc es with the exception that the terms are to be serve d concurr ently.

In this appeal of right, the pe titioners claim that they are entitled to a new trial or reduction in sentence because the state suppressed exculpatory eviden ce in violati on of Brady v. Maryl and , 373 U.S. 83 (1963). In the al ternative, the petitioners argue that the facts presented at the post-conviction hearing would have warranted the g rant of a motion to reopen as prov ided by statute. See Tenn. Code Ann. § 40-30-217. We disagree and affirm the j udgment of the trial court.

The victim operated a sporti ng goods store in Uni on County. On December 23, 1976, the petitioner s and their accomplice, Robe rt Sands, who was tried separately, robbe d the store of cash and firearms and abd ucted the victim. The body was discover ed several days later

along a road in Knox C ounty. The victim had been shot once in the head. The petitioners con fessed to their participation in an "insurance scam" which, they claimed, included the victim as a perpetrator. Later, at tri al, each of the petitioners denied being present when the victim was robbed, k

idnapped, and shot to death.
On direct appeal, this court affirmed the convictions. 1 Dukes v. State , 578 S.W.2d 659 (Tenn. Crim. App. 1978), app. denied , (Tenn. 1979). On April 12,3 1985, the petitioners filed their first petitions for post-con viction relief alleg ing ineffective assistance of counsel and due p rocess violations.

At the first post-convic

tion hearing, Ronald Duk es testified that his trial counsel was ineffective for failing to use his cousin, Larry Sharp, as a witness. He claimed that Sharp would hav e testified that Sands admitted to ki lling the victim. Sharp, a witness at the ev identiary hearing, t

estified that he had a telephone conversation with Sands prior to their tri al during which Sands admitted responsibility for the murder. Sharp testified that he had be en prepared to give this testimony at their trial. Attorney William Davidson, trial counsel for the petitioners, recalled that until the tr ial began, the defense theory was that the robbery and kidnapping was an "insurance job" and that the victim "was in on it also, and that Mr. Sands had planned all this ....They had no knowledge w hatsoever that Mr. Sands was going to shoot the man in the back of the head ...." Dav idson testified that when the trial began, the petitioners insisted on a change of strategy to an alibi defense, a theory that conflicted w ith the petitioners' pretr ial statements to law enforcement. Davidson expr essed particular concern because the alibi defense was contrary to the result

s of his own investigation. The trial court denie d the initial petition for post convicti on relief. This court affirmed and the s upreme court denied review. Edgar Virgil Duk es, III, and Ronald Davi d Dukes v. State , C.C.A. No. 25, slip op. at 1 (Tenn. Crim. Ap p., at Knoxville, Aug . 25, 1986), app. denied , (Tenn. Nov. 24, 1986).

On December 17, 1987, Ronald Duk es filed a second petition for post
conviction relief all eging double jeopardy and Brady

violations. The trial court entered a summary dismissal . On appeal, this court found the do uble jeopardy claim to be previously

determined but reversed and remanded for a hearing on the4 Brady claim. State v. Ronald Davi d Dukes , C.C.A. No . 26, slip op . at 8 (Tenn. C rim. App., at Knoxville, A

pr. 4, 1989). In May of 1989,Edgar Dukes filed a second petition for post-conviction relief alleging similar constitutional violations. Some six years later and after repeat ed continuances, a consolidated evidentiary hearing was held, after which the trial court denied relief. Although Ronald Dukes f iled a timely notice of appeal, Edgar Dukes did not file his notice within the statutory time period. This court may, howev er, waive the timely

filing of the notice in the i nterest of justice. Smith v. State , 873 S.W.2d 5 (Tenn. Crim. App. 1993).

I The petitioners contend that the state f ailed to disclose exculpatory information in v

iolati on of Brady v. Maryl and , 373 U.S. 83 (1963 ). They all ege two separate violations:

(a) the state did not inform the petiti oners prior to trial that Sands was a suspect i n two other murders accor ding to a 1977 report; and (b) the state had an obligation to inform petitioners about statements given by James Potter to FBI officials in 1981, some four years after trial.
Although we address the petitioners' issues on the merits, we agree with the trial court

's assessment that the Brady issues have been waived. The postconviction statute in effect when these petitions were filed def ines waiver:

(b)(1) A ground for r

elief is waived if the petitioner knowingly and under

standingly failed to pr

esent it for determination in any procee ding before a court of compete nt jurisd iction in which the gr ound cou ld have been presented. (2) There is a rebuttable pr esumption that a ground for relief not raised in any such proceeding which was held was wai

ved. Tenn. Code Ann. § 40-30-112(b) (r epealed 1995).5 Our supreme court has held that "the rebuttable presumption of w aiver is not over come by an allegatio n that th e petitio ner did no t persona lly, knowing ly, and understandingly fail to raise a ground for reli ef." House v. State , 911 S.W.2d 705, 714 (Tenn. 1995). "Waiver in the post-c onviction context is

to be determined by an objective standar d under which a petitioner is bound by the action or inaction of his attorney." Id. Both the report and Potter's statement were in the posse ssion of TBI a gents in 1 983. The petition ers' firs t post-co nviction p etitions were filed two years later. The petiti oners have not presented any evidence to rebut the presumption of waiver.

In the landmark c

ase of Brady v. Maryl and , the United States Supre me Court ruled that the prosecutor has a duty to furnish ex culpatory evidence to

the defendant. 373 U.S. at 87. Excul patory evidence may pertain to the guilt or innocence of the accused and/or the punishment which may be imposed if the accused is convicted of the crime. State v. Marshall , 845 S.W.2d 228 (Tenn . Crim. App. 1992). The Supreme Court in Brady reasoned that a fair trial and a just result could not be obtained when, at the time of trial, the prosecuti on suppressed information favorable to the accus ed. Brady , 373 U.S. at 87-88.
Any "suppression by the prosecution of evidence favor able to an accused upon request vi olates due process where the evidence is material either to guilt or punishment, ir

respective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87. This duty t o disclose extends to al l favorable information irrespective of whether the evidence is admiss ible. Branch v. State , 469 S.W.2d 533 (Tenn. Crim. App. 1969). Information use ful for impeaching a witness is considered favorable informati on that the prosecutor may not withhold. Giglio v. United States , 405 U.S. 150 (1972). And, w hile Brady

does not require the state to6 investigate for the defendant, i t does burden the prosecution w ith the responsibility of disclosing statements of w itnesses favorable to the defense. State v. Reynolds , 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The duty does not extend to information that the defense already possesses or is able to obt ain or to information not in the possession or cont rol of the prosecution. Banks v. State , 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977).

Before this court may find a due process violation under Brady , the following elements must be e stablished: 1. The defendant must have requested the information (unless the evidence is obviously exculpatory, in which case the State is bound to release the information whether requested or not); 2. [t]he State must have suppress ed the information; 3. [t]he information must have been fav orable to the accused; and 4. [t]he information must have been material. State v. Edgin , 902 S.W.2d 387, 39 0 (Tenn. 1995) (as amended on rehearing).

In Edgin , our supreme court adopted the foll owing standard for materia lity: [T]here is constitutional error "if there is a reasonable

probability that, had the e vidence been disclosed to the defense, the result of the proceeding would have been different." ... "[T]he touchsto ne of materiality is a 'reasonable probability ' of a different result, and the adjective is important.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 t rial, understood as a tri al resulting in a verdict worthy of confidence. A 'reasonable probabi lity' of a d iffere nt result is accordi ngly shown when the government's evidentiary suppres sion 'undermines confidence in the outcome of the trial.'" Edgin , 902 S.W .2d at 390-91 (qu oting Kyles v. Whitley , 115 S. Ct. 1555, 15667 (1995)).
To prevail on a petition for post-conviction relief, a petitioner must prove a constitutional v iolation by a preponderanc e of the evidence. State v. Spurlock , 874 S.W.2d 602, 610 (Tenn. Crim. App. 1993). This c ourt is bound by the post-conviction court's findings unless the ev idence preponderates otherw ise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). This court may n ot reweigh or reevaluate the evidence or substitute its inferences for those drawn by the post-conviction court . Moreover, questi ons concerning the credi bility of witnesses and weight and value t o be given their testi mony are for resolution by the post-conviction court

. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
(a)

The petitioners claim that the s tate suppressed a report, obtai ned by Knoxville police on January 3, 1977, implic ating Sands in a murder in Kentucky and a murder in Indiana. Sands, w ho testified at the post-conv iction hearing, denied any involvement in the murder s and stated he had never been i nvestigated in the matters. The petitioners testi fied they only recently

learned of the report. After hearing testimony and cons idering the report, the t rial court ruled that the report was likely inadmissable and not exculpatory.

Applyi ng the p rincip les of Edgin , we conclude that the petitioners made a general, pre-trial

discovery req uest for exculpatory or favorable information and that the state suppressed the re port. If, however, w e were to find the report to be favorable to the petitioners, it does not matter. Sands' susp ected involvement in other murders was irr

elevant in this case. M oreover, Sands did not testify at8 petitioners' trial, thu s he had no opportunity to g ive damaging testimony that required impeachment. Any suppression of the report by the state would have had no effect on the fairness of the trial.
(b)

The petitioners' second clai m concerns a statement made to FBI officials by James Potter four y ears after the trial. In hi s statement, Potter reveal ed that while they w

ere cellmates, Sands had admitted to him that the petitioners knew nothing about his plan to ki ll the victim. A memorandu m indicates that the TBI had Potter's information as early as March 16, 1983.
At their hearing, the peti tioners denied involv

ement in the murder of the victim. They admitted to giving false testimony at trial. They a cknowledged that, at the time of trial, their c ousin Larry Sharp coul d have testified to similar statements by Sands in which Sands claimed responsibility

for the murder but that Sharp did n ot testify. The state questioned Ronald Dukes as follows:

General: So, what - of what importance is what Mr.

Potter had to say - Petitioner: Well, he - General: I mean, he says the same thing that Larry

Sharp would have said,and we talked about Larry Sharp at the first postconviction, it hasn't changed what he knows, isn't that w

hat Potter says - that Sands actually killed Mr. Kitts? Petitioner: Well, Mr. Sands did kill Mr. Kitts. It was -

you know, we feel li ke if the truth had been presented to the jury, al l of the truth, not just a part of it - if all of the truth had been presented to the jury, that more consideration would hav e been given .... The post-conviction tri al court found no Brady violation as to their

trial because the evidence was obtained by the state "well after the original Dukes trial." The court also held that failure to prov ide the information before the first pos t-conviction9 hearing was not a Brady violation because the infor mation was not exculpator y and that the jury did not hear all of the facts as a direct r esult of the petitioners' deci sion to perjure themselves at trial.

The petitioners contend that the st ate shirked its continuin g duty, posttrial, to reveal material exculpatory evidence, i.e., the substance of Potter's statement to the FBI. They rel y on the ABA Standards of Cri minal Justice and the Tennessee Code of Professional Responsi bility.

Relief under the Post-Conviction Procedure Act may be granted only when there has been an abridg ment of a constitutional right during the course of the guilt or sentencing p hase of the trial. Tenn. Code Ann. § 4 0-30-105 (repealed 1995). See Alley v. State , 958 S.W.2d 138, 148 (Tenn. Crim. App. 1997). The ruling in Brady

does not necessarily i mpose a duty on the state to dis close during post-conviction proceedings exculpatory evidence discovered by the state years after trial. Even if such a duty exists, there is no error here because Brady does not apply to evidence the defense already possesses. Banks , 556 S.W.2d at 90. In this instance, the petitioners admitted at the post-conviction he aring that Sharp would have testified at trial t

o similar declarations by Sands.

II Lastly, the petitioners

argue that this petition should be considered a motion to reopen pursuant to Tenn. Code An n. § 40-30-217(a)(4). The petitioners have not satisfied the procedur al requirements for motions t o reopen under the Post-Conviction Proc

edure Act of 1995. See Tenn. Code Ann. § 40-30-217(c). A motion to reopen is a limited a venue for relief and is only appropriate as follows: (1) The claim in the motion is based upon a final ruling of an appellate court establishi ng a constitutional rig ht10 that was not recognized as existing at the time of trial, if retrospective application of that right is required. Such motion must be filed within one (1) year of the ruling of the highest state appellate c ourt or the United States supreme court establishing a constitutional right

that was not recognized as ex

isting at the time of trial ; or (2) The claim in the motion is based upon scientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which th e petitioner was conv

icted; or (3) The claim asserted in the motion seeks reli ef from a sentence that was enhanced becaus e of a previous conviction and such conv iction in the case in w

hich the claim is asserted was

not a guilty plea w

ith an agreed sentence, and the previous conviction has subsequently been held to be invalid, i n which case the motion must be filed within one (1) y

ear of the finality of the rulin g holding the previous convic

tion invalid; and (4) It appears that the facts underlying the clai m, if true, would establish by c

lear and convincing e

vidence that the petitioner is entitled to have the conviction set aside or the sentence reduced. Tenn. Code Ann. § 40-30-217 (emphasis added). To obtain relief under this section of the Act, a petitioner must satisfy the requirements set f orth in any one of the first three subsections as wel l as those contained in the fourth subsection. Donald Wayne Easley v. State , C.C.A. No. 01C01-9609-CC-00407, slip op. at 4 (Tenn. Crim. App., at Nashvil le, Nov. 6, 1997). Her e, the petitioners do not all ege the existence of a constitutional right not recogniz

ed at the time of trial. They do not offer new scientific evidence of actual innocence no r do they claim an invalid previous convicti on entitles them to relief from an enhanc ed sentence.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:

_______________________________ William M. Barker, Judge

_______________________________ Curwood Wi tt, Judge