IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 15, 2002

MICHAEL O. BROWN v. STATE OF TENNESSEE 

 Appeal from the Circuit Court for Lincoln County

No. S0000009 Charles Lee, Judge

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

JOSEPH M. TIPTON, J., concurring.

I agree with the results reached and most of the reasoning used in the majority opinion. I

respectfully disagree, though, 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 abandoned 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 response, and the state’s

objection for lack of notice justified the trial court’s sustaining the state’s objection regarding the

Jencks Act issue. I view neither the record nor the trial court’s discretion to authorize the trial

court’s actions regarding 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 them to be based upon the

petition that has been filed?” The petitioner’s attorney generally noted that the issues related to the

ineffective assistance of counsel and referred to his amended petition in order that he could “possibly

cover those” issues. After reciting several, the attorney said that those were “basically the issues”

to be raised. When asked whether those were the issues, the state’s attorney said, “I think so, yes,

sir.” As the majority opinion notes, during the course of the hearing, the petitioner’s attorney crossexamined trial counsel about several claims of ineffective assistance of counsel that were not

mentioned at the beginning of the hearing, although alleged in the original petition for 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 attorney was given reasonable

notice that his comments at the beginning of the hearing would rigidly limit him in his issues or be

deemed abandonment of the issues not mentioned. The tenor of the record is that the trial court’s

request was informational, made to both parties. The purpose of a post-conviction hearing 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 issues raised in the petition, and even with an objection to evidence because it relates
-2-

to issues not raised in the pleadings, “the court may allow amendments and shall do so freely when

the presentation of the merits of the cause will otherwise be subserved. The court shall liberally

allow a continuance in the event an amendment is allowed to enable the objecting party to meet the

evidence.” I believe our supreme court intends for post-conviction claims to be fully aired, not

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 petitioner made no proffer of evidence relating 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 prejudice from the trial court’s actions. Therefore, I concur in the results.

____________________________________

JOSEPH M. TIPTON, JUDGE