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

Briefs M ay 15, 2002

MICHAEL O. BROWN v. STATE OF TEN NESSEE

Appeal from the Circuit Court for Lincoln County No. S0000009 Charles Lee, Judge

No. M2001-00917-CCA-MR3-CD - Filed August 8, 2002

J OSEPH M. T IPTON , J., concurring.

I agree w ith the results reached and most of the reasoning used in the majority opinion. I respec tfully disag ree, thoug h, with its view of the trial court’s limiting the issues raised by the petitioner. The majority opinion states that the record reflects that the petitioner abandone d issues that were not mentioned at the beginning of the hearing. The majority concludes that the trial court’s request that his attorney define the issues in contention, the attorney’s respons e, an d the state’s objection for lac k of notic e justifie d th e trial court’s sustaining the state’s objection regarding the Jencks Act

issue. I view neither the record nor the trial cour t’s discretion to autho rize the trial court’s actions r

egardin g this issue.

At the beginning of the hearing, noting that both parties waived opening statements, the trial
court asked the parties, “Would you outline the issues as you perceive the m to be based upon the petition that

has been filed?” The petitioner’s attorney ge nerally noted that the issues related to the ineffective assistanc e of coun sel and r eferr ed to his amend

ed petitio n in order th at he could “possib ly cover th ose” issu es. Afte r reciti ng sever

al, the attor

ney said t hat those were “ basical ly the issue s” to be raised. When asked whether those were the issues, the state’ s attorne y said, “I think so, ye s, sir.” As the major

ity opinion

notes, dur

ing the course of t

he hear ing, the pe

titioner’ s attorne

y crossexaminedtrial cou

nsel abou t several claims of ineffective assistance of counsel that we re not mentioned at the be ginning of the hear ing, although all eged in th e origina l petition f

or postconviction relief. The only matter to which the state objected was the Jencks Act issue.

Given the circumstances, I cannot see how the petitioner’ s attorn ey was give n reason able notice that his comments at the beginning of the he aring wo uld rigidly limit him in hi s issues or be deemed abandonment of the issues not mentioned. The tenor of the rec ord is that the trial court’s request was informational, made to both parties. The purpose of a post-conviction hea ring is to air all legitimate claims. Pursuant to Rule 28 § 8(D)(4) and (5), Tenn. S. Ct. R., the hearing shall be based upon the issue s raised in the pet ition, and even with

an objec tion to evid

ence be cause it

relates-2-

to issues not

raised in the plea dings, “th e court m ay allow a

mendment s and shall

do so fre ely when the presentation of t he merits of the ca use will ot

herwise be subser

ved. The court sha ll libera lly allow a continu ance in t

he even t an amen dment is allowed to enable the objecting party to meet the evidence.” I believe our supreme court intends for post-conviction claims to be fully aire d, no t limited by procedural technicality. No hint of improper harm to the state was indicated by allowing trial counsel to respond to the question asked.

On the other

hand, the petitione r made no proffe r of evid ence re lating to the Jencks Act

issue. His brief certainly gives no clue of what he expected to prove. I do not believe that the petitioner has shown

any prej udice fr

om the tria

l court’sactions. Theref

ore, I c oncur in t

he resul ts.

____________________________________ JOSEPH M. TIPTON, JUDGE