### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

uly 19, 2000

STATE OF TENNESSEE v. MICHAEL N . GREY
Appeal as of Right from the Circuit Court for Dickson County

No. CR-3927 Allen W. Wallace, Judge

No. M1999-01428-CCA-R3-CD - Filed November 9, 2000

The appellant,Michael N. Grey, was convicted by a jury in the Dickson County Circuit Court of two counts of aggr avated robber y, a class B

felony, an

d two counts of thef

t under $500, a cla

ss A misdemeanor. The trial court sentenced the appellant to ten years incarc eration in the Tenne s see Department

of Correction for the aggravated robbery convictions. The trial court also sentenced the appellant to eleven months and twenty-nine days incar ceration in the Dicks on County Jail for the theft co nvictions.The trial co urt fur the r or dere d th at t he ap pel lan t’s sen ten ces b e ser ved con curr ent ly. The appellant raises the following issue for review : whether the app ellant was denied

due process because the State failed to provide him with proper pre-trial exculpatory evidence. Upon review of th e record and the parties’ briefs, we affirm in part and reverse in part the judg ments of the trial court.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nts of the Circuit Co

urt are Affirmed

in Part and Reversed in Part.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYE S , and T HOMAS T. W OODALL , JJ., joined.

Mic hael J. Lo ve, Cla rks vil le, Ten nes see, for the app ell ant , Mi chae l N. Grey.

Paul G. Summers, Attorney General and Reporter, L ucian D . Geis e, Assistant Attorn ey Genera

l, Suzanne Lockert, Assistant Attorney General, for the a ppellee, State of Tennessee.

OPINION
I. Factual Backgr

ound OnD ecember 29, 1997, the appella nt entered West Me

ade Market in Dic

kson County and asked the cashier, Steve Talbert, for a Colt .45 beer. Talbert ascertained from Ric hard Greg ory, who was stocking the cooler, that the store was out of that particular brand of beer. The appellant thenchose a Budweiser beer and approached the front counter. Talbe rt was in the process of1 The a ppellant c laims that the followi

ng written

statement g

iven by Richard Gregory to the police w

as exculpato ry and shou ld have be en disclosed by the State p rior to trial: (continued ...)
-2- completing the sale when the appellant raise

d his jacket, part

ially remove

d a pistol from hi s wai stb and , an d to ld t he ca shi er “t o be coo l” a nd t urn ove r th e mo ney.

Talbert gave the appellant the three hundred and forty-eight dollars and twenty-five cents ($348.25) that was in the cash register. T he ap pellant then instructed Talbert to get into the cooler. Talbert did so, and told Gregory when he entered the c ooler that the market had just been robbed. After remaining in the cooler for

approximately

40 seconds, Talbe

rt left th e cooler and reported the robbery to the police. Talbert described

the robber as being a very light-skinned black male, possibly of mixe

d race, in his l

ate t wenties or early thirties, with a small pencil moustache, standing approximately 5'8" tall, and weighing 145-150 pounds.

A few days later, on January 1, 1998, the a ppellant entered a ParMart convenience store and requested cigarettes from the cashier, Don Wood. After Wood had gotten cigarettes for the appellant, the appellant told Wood, “Look here.” The appellant then lifted his shirt and displayed
a pistol that was located in his waistband. The appellant told Wood, “You’re g

oing to be shot. Thi

s is a robbery.” The appellant instructed Wood to put the money from the cash regi ster in a pap er bag. Woodcomplied and gave the appellant sixty-eight dollars ($68). The appellant complained about the amount, but Wood assu red him that there

was no more money

. The appellant or

dered Wood to lay down on the floor in the kitchen. After the appellant left the store, Wood called t he police. Wooddes cribed the robber as being a very light-skinned black male in his early thirties, standing around 5'7" or 5'8" tall, weighing a bout 150 pounds, having short, dark hair and a moustache, possibly with a mole on either side of his face, and with a possible pierced nose. Ad di tio nal ly, Par Mar t’s sur vei lla nce c ame ra ha d rec ord ed t he ro bbe ry.

A jury in the Dickson

County Circuit Court convicted the appellant of two counts of aggravated

robbery, a

class B felony, and two counts of theft under $500, a class A misdemeanor. The tria l court sentenced the appellant to ten years incarcer ation in the Tennessee Department o f Correction

for the aggravat ed robbery convictions. The t

rial court also se

ntenced the appe

llant to eleven months and twenty

-nine days i

ncarceration i

n the Dickson County Jail for the theft convictions. The trial court f urther ordered

the appellant’ s senten ces to run concurrently. The appellant appeals his conviction s and raises the following issue for review: whether the appellant
was denied due process because the State failed to provi de him with p roper pre-trial exculpatory evidence.
II. Analysis A. Brady violation The appellant claims that he was denied his right to due process when the State failed to disclose a

statement Gregory made to the police regarding the description of the robber, which the appellant argues is exc ulp ato ry. 1 The United States Supreme Court, in Brady v. Maryland , 373 U.S.1 (...continue d) I was filling t

he beer cool

er when [Talber t] and a lig ht ski n man came

over to the c ooler and [Talber t] asked if I had a Colt .45 beer. I saw the back of his head and the side of his

face. Then

[Talber t] came in the coole

r about 2 mi

nutes l ater and said that

he had jus

t been robb ed and the rob ber told him to stay in there for 5 minutes. He was short and thin with short littl e curly hai

r, and what l

ooked like a real thin [mou stache].

2 Additionally, the appellant never claims that he made any di scovery req uests at all; the app ellant’s only argument is t

hat Gregory’s s

tatement i s obviously ex culpatory and t

herefore shoul

d have been disclosed by the State.
-3- 83, 87, 83 S. Ct. 1194,1196-97 (1963), held that the State has a constitutional duty to furnish the accused with exculpatory evidence pertaining to either the accused’s g uilt or inno c ence and the potential punishment that may be im posed. Failure to reveal exculpatory evidence violates due process where the evide

nce is material to

either guilt or p

unish ment irr espective of the

good faith
or bad faith of the prosecution. Id . Furthermore, the prosecution must disclose evidence which may be used by the

appellant to impeach a

witness. Giglio v. United States , 405 U.S. 150, 154-5 5, 92 S. Ct. 763, 766 (1972).

All of the following elements must be present before this court can find a Bra d y violation: (1) the ap pella

nt must have reque

sted the informati

on (unless the evid

ence is obviously exc ulp ato ry, in which case the State is bound to release the information whether reques

ted or not); (2) the State must ha

ve suppressed the

information; (3) the information must have been favorable to the appellant; and, (4) the information must have been material. State v. Edgin

, 902 S.W.2d 387, 390 (Tenn. 1995); see also State v. Hamlin , No. 01C01-9604-CC00174, 1999 WL 77853, at *5 (Tenn. Crim. App. at Nashville, February 19, 1999). Moreover, the appellant bears the bu rden of esta blishing a Brady vio lat ion by a preponderance of the evidence. Id.

We can find no evidence in the record of any dis covery request(s) made by the appellant. 2 Acco rdi ngly, Brady would app ly on ly if

Greg ory’ s st ate men t is obv iou sly e xcu lpa tor y. State v. Belcher , No. 03C01-9608-CC-00299, 1997 WL 749392, at *7 (Tenn. Cr im. App. at Knoxville, November 26, 1997). We conclude that it is not. The description given by Gregory

in his statement is substantially similar to the descriptions given by both Wood and Talbert to t h e police. Moreover, the description does not suggest that the appellant did not commit the crimes of whichhe is accused. Accordingly, the appellant could have only used Gregory’s stat

emen t for impeachment purp

oses.
Add iti ona lly, “the prosecution is not required to disclose information that the accused already possesses or

is able to obtain....” Workman v. State , 868 S.W.2dat 709. Gregory testified for the defense. The

appellant had the

opportunity

to question him reg

arding his description of the robber, and

could have asked if Gregory had made a ny statements to the police. This information-4-

was equally available to both side s. See State v. Ewing , No. 01C01 -9612-CR- 00531, 199 8 WL 321932, at *9 (Tenn. Crim. App. at Nashville, June 19, 1998).

Furthermore, even if

Gregory’s statement

was exculpatory, it was not material to the appellant’s def

ense. This court h

as stated that: [t]he evidence is material only if there is a reasonable probability that, had th e evidence been

disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probabili ty sufficient to undermine confidence in the outcome. Workman , 868 S.W.2d 705, 710 (Tenn. Crim. App. 1993)( citing United States v. Bagley, 473 U.S. 667, 681-682, 105 S. Ct. 3375, 3383 (1985).

Gregory testified for the defense regarding his description of the robber. Moreover, the State cross-examined Gregory concerning the c ontents of the statement and then introduced the statement into evidence. Th

erefore, bec

ause th e information contained in the statem ent was presented to the jury, the materiality test has not been met. See State v. Hall , No. 01C01-9710-CC-00503, 1999 WL 34782, at

*11 (Tenn. Crim. App. at Nashville, January 28, 1999), perm. app. denied , (July 12, 1999)(statingthat because the witness testified a

t trial to essential

ly the same information that
was contained in her statement, the materiality test was not met). The jury had Gregory ’s description of the appellant, as well as the descriptions given by Talbert and Wood, and simply chose

to credit the testimony of the State’s witnesses. Not hing in th e record indicates that the result of the proceeding wo

uld have been dif

ferent.
Furthermore, because the State produced Gregory’s state men t during their crossexamination of Gregory, this was a delay ed disclosure of evidence, not a complete non-disclosure of evidence. We have previously found that “if the

re is only a delayed disclosure of inf

ormation, in contrast to acomplete failure to disclose exculpatory information, Brady

nor mal ly do es n ot a ppl y, unless the dela

y itself causes prejudice.” State v. Hall ,1999 WL 34782, at *9 . Accordingly, a delayed disclosure requires an inquiry into whether

the delay prevented the defense from using the disclosed material effectively in preparing and pre senting the appellant’s case. State v.Caughron, 855 S.W.2d 526, 548 (Tenn. 1993)(cit ing United States v. Ingraldi , 793 F.2d 408 (1st Cir. 1986)).

The appellant claims that if he had possessed Gregory’s statement prior to trial then he could have used it to impeach Talbert’s testimony regarding the descri ption o f the robber. Spe cif ica lly, the appellant alleges that he could have used the Gregory statement to “pry Talbert’s remainingfingers [loose] from his stubborn refusal to admit that [the appellant] did not rob him.” The appellant’s argument is misplaced; Gregory’s statement could not have been used to impeach Talbert’s testimony. Taylor v. Sta te , No. 01C01-9809-CC-00384, 2000 WL 641148, at *7 (Tenn. Crim. App. at Nashville, May 19, 2000); see also Tenn. R. Evid. 613 (discussing the impeachment of a witness by witness’ own prior statement and not the statement of a third party ).
Moreover, even if the appe llant had possesse

d Gregory ’s statement prior to trial, it is unclear how the appellant’s cross-examination of Talbert would have diff er ed. The appellant-5-

questioned

Talbert at leng

th regarding

his identification

of the appella

nt as the robber. The appellant has failed to show that he was prejudiced by the delay ed disclosure of the Gregory statement,particularly in light of the fact that the jury heard Gregory

testify to his description of the robber and to his b

elief that the app

ellant did not rob th

e store. This issue

is without merit.

B. Plain Error Although n ot ra ised by the appellant, we find, as plain error, that the appellant’s convictions for both aggravated robbery a nd theft violate the principles of double jeopardy. S ee Tenn. R. App. P. 36(b), Te nn. R. Evid. 103(d),

Tenn. R. Crim. P. 52(b

); see also State v. Epps , 989 S.W.2d742, 745 (Tenn. Crim. App. 1998). Therefore, the appellant’s convictions for theft must be reversed and vacated.

The double jeopardy clauses of the United States and Tennessee constitutions protect
anaccused from: (1) a second prosecution following an acquittal; (2) a second prosecution following conviction; and (3) multiple punishments for the same offense. State v. Denton , 938 S.W.2d 373, 378 (Tenn. 1996). The present case involves thethird category. In Tenne ssee, whether two offenses
are the ‘same’ for double jeopardy purposes depends up on a cl ose and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the partic ular facts and circumstances. State v. Black , 524 S.W.2d.913, 919 (Tenn. 1975). This analysis is guided in part by the application of the test announced in Blockburger v. United States : Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one

is whether each provision require

s proof of an addi

tional fact which

the other does not. Blac k , 52 4 S.W.2d a t 919 (quot ing Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180,182 (193 2)). In order to determine if double jeopardy attaches, our supreme court devised a four-part test: (1) a Blockburger

analysis of

the statutory

offenses; (2) an analysis, guided by the princ iples of Duchac , of the evidence used to provethe offenses; (3) a consideration of whether there were multiple victims or discrete acts; and (4) a comparison

of the purposes of

the respective s

tatutes. Denton , 938 S.W.2d at 381.. However, “if the offenses are the ‘same’ under Blockburger, the fede ral constitutional double jeop ardy pro tections have been violated and the inquiry may end.” State v. Hayes , 7 S.W.3d 52, 55 (Tenn. Crim. App. 1999). For example, a lesser-included offense does not require proof of

an additional fact and is therefore considered to be the same offense as the greater, with double jeopardy barring conviction for both. Id. Furthermore, this court has previously found that, because the

ft is an element of

aggravated

robbery, th

eft is therefore

a lesser-includ

ed offense of aggravated robber

y. Id. at 56. Thus, an individual may not be convicted of both theft and aggravated

robbery wh

en the same fact

s establish the off

enses. The appellant was convicted of aggravated robbery of the West Meade Market and of the theft of $368.25 from West Meade Market. Additionally, the appellant was convicted of the aggravated

robbery of

the ParMart and of

the theft of $68 fr

om the ParMart.The same fact s and3 In its brief, the State c oncede s that the appe llant’s theft convictions cannot st and because the y violate dou ble jeopard y.

-6- circumstances leading to the aggra va ted robbery convictions were used to sustain the theft convictions. See Epps , 989 S.W.2d at 746. 3 Acco rdi ngly, we affirm the convictions for aggravated robbery a nd reverse both o

f the appellant’ s theft conviction s.

III. Conclusion Based upon the fore going, we affirm the judgments of the trial court as to the aggravated

robbery c

onvictions, but rev

erse the appella

nt’s theft convic

tions.

___________________________________ NORMA McGEE OGLE, JUDGE