# FILED January 28, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE AUGUST SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710- CC-00503 ) Appellee, ) ) LINCOLN COUNTY V. ) ) ) HON. CHARLES LEE,JUDGE JOAN ELIZABETH HALL, ) ) Appe llant. ) (FIR ST DEGREE MURDER)

FOR THE APPELLANT : FOR THE APPELLEE : RAYMOND W. FRA LEY, JR . JOHN KNOX WALKUP Attorn ey at Law Attorney General& Reporter JOHNNY D. HI LL, JR. TIMO THY B EHAN Attorn ey at Law Assistant Attorney General 205 East Market St reet 2nd Floor, Cordel l Hull Bui lding P.O. Box 572 425 Fifth Avenue North Fayet tev il le, TN 37334 Nashvill e, TN 37243 RICHARD McGEE W. MICHAE L McCOWN Attorney at

Law Distri ct Attor ney General 601 Woodland Street Nashvill e, TN 37206 WEAKLEY E. BARNARD Assistant Distri ct Attor ney General P.O. Box 904 Fayettevi lle, TN 37334 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Joan E. Hall, appeal s as ofright f ollowing her convict ion in t he Linco ln Coun ty Circuit Co urt. F o llowing a jury t rial, she was convicted of crimi nal respon sibility for the condu ct of anot her committi ng first degree murder and was subs eque ntly senten ced to life im prisonm ent. In this appeal, Defendant

raisesthe following i ssues: 1) Whether the S ta te withheld evidenc e in violation o f Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963), suc h that Defe ndan t’s due proce ss righ ts were violated warra nting a new tria l; 2) Wh ether the trial court erre d in failing to g rant a new trial du e to the perjured testimony of Natalie Romine; and 3) Whether, in li ght of the Brady violat ions and the per jured testimony of Natalie Romine, suffic ientevidenc e exists to c onvict the D efenda nt. We affirm the ju dgme nt of the trial co urt.
Stan Golden testifi ed that he was traveli ng, on August 1, 1995, acr oss Eldad Bridge at approxi mately 4:08 p. m. when he was flagged down by the De fendan t. The Defendant tol d him that “t hey had shot her hu sband,” and her husband was now laying in the river dead
.

Dane tta Mars hall lived in the vici nity of the Eldad Bri dge and was alerted by her next d oor neighbor, on August 1, 1995, that someone had been shot . When Mars hall came outside, t he Defendant was c rawling up he r drivew ay and eventu ally sat next to M arsha ll’s car. Defenda nt scream ed, “[T]hey sho t my husba nd. They’re going to kill me.” M arshall’s n ext door n eighbo r, M ichael Ke y, then went ins ide Marshall’ s home to call 91 1.-3- Michael Key lived next door to Danetta Marshall. Key left work on August 1, 1995, at 3:30 p.m. and arrivedhome fifte en (15) to tw enty (2 0) min utes la ter. W hile feeding his dogs, Key heard someone screaming forhel p, a nd heest imated t he t ime he f irst h eard th e sc rea ms t o be between 4:0 0 and4:3 0 p. m.

Adrian Key, M ichae l’s Key’s son, w as ale rted by his brother of the si tuation. Adrian Key walked outsi de and found the Defendant scr eaming, “Don’t

let them get
me. They shot my husband.” Aron Key, Michael Key’s older son, also obser

ved the Defendant screaming between 4: 00 and 4:30 p.m. t ha t “they” kill ed her husband and we re going to kill her.

Chad Robinson, the ei ghteen (18) year old ste pson of Michael Key, drove to his home on the afternoon of August 1, 1995. When he got out of hi s car and started walki ng towa rd the house, he heard a gunshot. He went insidefor five (5)
or ten (10) minutes, then l ef t again togo t o an auto parts store nearby . Robinson spent ten (10) minutes drivi ng to the store and approx imately six (6) minutes insi de the store, t hen returned home to find his brother and father sitting w ith the Defendant
on the side of the ro ad. Robins on estimated t hat the ti me between hearing t he gunshot until he saw the Defen dant to have been about twenty (20 ) or twenty-five (25) minutes. Robins on also recal led that Defendant used the word “they” when describi ng who had shot her husband.
Johnny Simmons, a depu ty wi th t he Linco ln Coun ty Sheriff’s D epartm ent, received a call at

4:18 p.m. on August

1, 1995. Simmons went to the scene at El dad Bridge, arriving at 5:1 0 p.m. a s one o f the first off i cers on the scene. Simmons observed the victi m’s body lying next to the river bank.-4- Andy Cli ne, theheadof C ri me Stopp ers in L incoln County, tr aveled to El dad Road to videotape the crime scene on August 1, 1995. His video of t he crime scene was show n to the jury.

Mac Kidd, pa ramed ic with the Lincoln County Regional EMS, responded t o a call at the Eldad Ri ver Bridge on August 1, 1995. The body of the vict im had already been pulled f rom the river when he arri ved on the scene. Kidd noted that the victim had a gunshot wound to the back of his head wit hout an exit wound, blood coming fro m hi s left ea r, and a poss ible en trance woun d to the uppe r left qua drant o f his body with a p ossib le exit poi nt in the lower ri ght side of his abdomen. The body was transp orted to Linco ln Reg ional H ospita l.

Mam ie Ruth Hall, mother of the vi ctim, testifi ed thather son had two adopted daughters, one biological da ughter and tw in sons. He had been marri ed to the Defenda nt for seven years on July 31, 1995. While the vi ctim had been employed
a t Ama na Refri gerati on, he was l aid off in Jul y 1995. TheDefendant ’s two daughters liv ed with thevicti m and the Defendant, and followi ng the death of the Defe ndan t’s mother, the Defendant’s bi ologicalson, Richard Romine, also cam e to live with them . A year prio r to th e victi m’s dea th, Richa rd Rom ine left to live with Michael Rom ine in Oh io. Mam ie Hall exp lained tha t Micha el Romine was the Defe ndan t’s older brot her, and Richar d was the Defendant’ s biologi cal son who had been a dopted by the De fendan t’s parents
.

Mam ie Hall stated that her r elations hip with t he victi m and the Defendant was good and they sa w each othe r often. She described an i ncident duri ng which the Defendant had threatened to killher son, al though she percei ved that to be said “in-5-

jest.” Hall often went fis hing with the Defendant and t he victi m, and she had fished at the same spot where the shooting occur red just f our (4) days

prior to the shooti ng incident.
Following the victi m’s death and funer al, the Defendant told Hall that she did not know wha t happene d. Howeve r, on the evening of the shooting, H all overheard the Defendant tel l her daughter that Richar

d Romine had shot thevictim. Because she was su spicious, Hall hir ed Larry Shaver

s to independent ly investigate the murde r. Their first m eeting w as on O ctober 2 1, 1995
. Joyce McCo nnell, Inves tigator for the Lincoln C ounty S heriff’s De partme nt, answered a 911 call at 4:15 p.m. on August

1, 1995 by tr

aveling to the Eldad River Br idg e on Elda d Roa d. After sh e arrived, M cCon nell was d irected to D anetta Mars hall’s home where s he found t he Defendant sit ting on th e front por ch. McC onne ll described t he Defendant as hysterical, crying a nd scar ed. Defendant stated that “they” were go ing to get her, indicat ing that whi le she did not wi tness her husb and’s sho oting, s he believed more t han one (1) person was involved as she overheard someone say, “[T] here she goes,” when she attemp ted to flee the area. Defendant had lef

t t he s pot

wher e sh e andthevi cti m were fi shing to use t he bat hro om, and while she was finishi ng sh e h eard he r husba nd yell, “Ru n Joan ie.” W hile Defe ndan t did no t men tion Ric hard R omin e’s presence at t he time, she l ater told McCo nnell he h ad bee n with them while t hey were fi shing, but she did not

know where he was at thetime of t he shooting.

Defendant was advised to come by the Sherif f’s Depart ment. When she did, her Miranda rights wer e administered to h er an d a sta teme nt was taken . This-6-

statementwas recorded and thetape was playedto the j ury. McConnelldescribed thatduring the interview D efendant did n ot know wh o shot her hu sband. After le aving th e area where they were fishi ng to go to t he bathroom, she hear d her husband yell, “Run Joa nie,” a nd then she heard shot s. Defendant i ndicated t hat Richard Rom ine had been with t hem earlier, but they dr opped him off at

the intersect ion of Eldad Road and Libe rty Road. I n Defendant’s handwritten supplement to her s tatem ent to p olice g iv e n on August 1, 1995, the Defendant included t he followi ng: “[A] nother ti me, Richard tol d my daughter that he would kill Olen by shoo ting him. I asked him how he wou ld get away wi th i t. H e told me that he wo uld bla me i t on me saying that I had him do it.” Other investigati on in which McC onne ll was involved included a sear ch of the Defendant

and thevi cti m’shome for weapons, but none of t hose found were determined to be the weapon used for the shooting. The Defendant was tested for gunshot resi due, but theresult was not positi ve.

McC onne ll stated th at Richard Romi ne was charged wit h the murder of t he victim on the evening of August 1, 1995
. The investi gation continued un til February
or Marc h 199 6. The Defe ndan t and D avid M ichae l Rom ine we re sub sequ ently charge d.

Kevin D uff, life i nsurance clai ms examiner for Pr incipal Financial Group, testif ied that the Defe ndan t was p aid $84,69 2.38 in de ath ben efits for a life insurance policy t he victi m had in effect at the ti me of his death.

Mike Hunt er, inve stigato r with the Lewis burg P olic e, als o interv iewed the Defendant who stated t hat she, Richar d Romine and the v ictim ha d gone fishi ng.-7-

After she left the fishi ng scene to go to t he bathroom, she heard her hu sban d yell, “Run Joanie,” and then heard one ( 1) ortwo (2) shots. After running back to find her husband, she sa w him lying fac edow n in the water. The Defendant descri bed that the victi m and Richard Romine had problems, with Richar d threaten ing to k ill the victim if gi ven the chance. Richa rd had le ft t heir home to l ive wit h his broth er Michael Romine in Ohio, but he returned to Tennessee in March 1995. Michael Romine eventuall y moved to the ar ea, then Richard and Michaelmoved in togethe r about o ne-half m ile from the victim and the Defe ndant’s h ome.

Richard Romine testif ied that alt hough he was seventeen (17)years old at the ti me of trial , he was sixteen (16 ) on Augu st 1, 1995. He learned at the ag e of twelve (12) that Defendant

was his biol ogical mother , though he had always known her as his adopted sister while he r esided w ith his a dopte d mo ther an d gran dmo ther in North Carolina. After hi s adopted mother died , Richard went to li ve with t he Defendant and the victim. De fendant’s two d aughters , Jenia an d Mary Jane Latiolai s, were als o livi ng there.
Initially, Richard admitted his fi rst probl ems with the vi ctim were when he found a mark on Jania’s left l eg after t he victi m had hit her with a belt. Also, there
was a dispute over the television during wh ich law enforcem ent officers came to the home and advised Richard to spend the night a way fro m the Hall res idenc e. Sho rtly after this incident Richard moved to Ohio to live with Michael Ro mine. After Rich ard and Michael moved back to Lincoln County , the Defendant found a mobile home for them to live i n. Richard and t he victi m fished on a weekly basis, al though never at the scene of t he shooting.-8- Richard admitted t hat about two (2) or three (3) weeks pri or to the murder , the Defendant dis cus sed thepro ble ms she was having with the victim. S he told Richa rd she wanted him to ki ll the victi m because that was the only way to get rid of all t he problems. Richard did not ta ke her seri ously unti l she produced a Derringer twoshot handgun. Defendant s howed Richard howto opera te the gun and then pl aced it back inside h er purse. Four (4) or five (5) days later, the Defendant told him that if he were going to k ill the victi m, t hen it woul d have to be done pri or to August 1, 1995, because the victim’s insuranc e was runn ing out on that da te. A third conversati on regarding ki lling the vict im occurred a few days later , and it was then that Rich ard told the Defen dant he would co mm it the murd er.

Tw o (2) or t hree (3) days prior to August 1, 1995, Richard again talked wit h the Defendant whi le Michael Romine was presen t. The D efenda nt then offe red to give him the v ictim’s truck , $10,00 0.00, an d to pay his heal th insurance in return for his kill ing her husband. The plan was for Ri chard to shoot the Defendant i n the leg while theywere fishi ng so that i t would appear t o be a robbery. The Defendant then advised Richard that because the victi m’s employer had paid to renew his insurance polici es and the poli cies would not lapse , there w as no hurry to com mit the murder prior to Augu st 1, 1995
. The day prio r to the s hootin g, the p lans ch ange d sligh tly such that Ri char

d was not sup pose d tobe p res ent at t he t ime of the shooting, nor was he sup posed to shoot th e Defe ndant in the leg to mak e it look like a robbery. Michae l Rom ine show ed Rich ard how to load the handgun using real bullets , then the Defendant gave hi m four (4) hollow poi nt bullets . Two (2) bul lets were pl aced in the gun , with the rem aining two left in Richa rd’s pock et.-9- After their meeti ng, Richard began writi ng a contract for the Defendant to si gn. He messed up the first version and threw it away in a shoe box. The second contract provided that Richard was “supposed to of f Olen [vict im]” with the Defendant to supply the gun , gloves, and alibi. Also, the D efendant wa s to give Richard $10,000.00, the vict im’s truc k and pay his heal th insurance fortwo (2) yea rs. He met the Defen dant later th at sam e day, bu t she refused to sign the contrac t. Richard stated that Defendant did agree with its contents. He alsoput this co ntract into the shoe box. A plan was made for Michael to pick hi m up after the s hooting.

On August 1, 1995, after 2: 30 p.m., the Defendant pickedup Richard and he got the gun, gloves , and fishing gea r. Richa rd put th e gun in his pocket. When they went to the Def endant’s reside nce, th e victim was “b eing q uiet.” R ichard told Defendant that the victim knew a bout the ir plan, but D efenda nt denied this. Richard claimed that theplan w as for h im to s hoot th e victim on the path lea ding to the river, but he could not

get his glo ves on s o he we nt to the op posite side of t he bridge fr om the vi ctim. Defendant stated she had to go to the bat hroom, and then Richar d approached the vict im from behind and shot him. Af ter thevictim fell into the water, Defendant cameup behind him and was poi nting at the vi ctim so he shot h im in the head. The gun was th rown into the river, and he fled t he scene to be pic ked up by Micha el.

Richard and Mic hael dro ve to Bi-Lo Supermarket to pay th eir telep hone bill, and Richard told M ichael that, “[H]e was shot. He wa s dead.” After pa yi ng t he phone bill, they drove to the Defe ndant’s residen ce where R ichard place d his gloves and his shoes in a barr el used for

burning trash. Ri chard washed off and changed clothes, leaving his cloth es in th e laun dry. Th ey trave le d towards Pulaski, then-10-

returned to the Defendant’s home to get her daughters. When they ar r ived, t hey “found out” ab out the victim’s shooting so they w ent to the h ospital. After l eaving the hospital and go ing to Ru th Ha ll’ s home, law enfor cement offi cers arri ved and took Richard into cu stody.

On cross- e xamin ation, R ichard adm itted so me in cons istenc ies in his testimony

and confessions , incl uding thathe init ially claimed his confession was not
a tru e sto ry. He recalle d telling wo rkers at the Middle T ennes see Me ntal Hea lth Institute that he was“mess ed up in th e head ” and tha t you “have to be a littl e crazy to do what I di d - commit murder.” He also tol d investi gat ors that Defen dant had pulled the trigger, but admitted at tri al that was a lie. Richard identifi ed a letter which he wrote to the De fenda nt date d Apr il 26, 19 96, in which he indi cated he “di d wrong” and should have taken respo nsibility for his acts and neve r should have tried to “put it off on her.”

D onn a Pence , special ag ent with the TBI, wa s called in to investigate with McC onne ll in October 1995. She received some torn pieces of paper and a mug from Larry Shaver

s. Pence fi rst interviewed Mic hael Romine on January 19, 1996, and she also part icipated in t he interv iew of Natal ie Romine on February 1, 1996. Notes we re made from both these i ntervi ews , and the Defendant received copies of the note s from M ichael R omine ’s interview.

Michael Romine testified that he is the bio logica l uncle and adopted brot her of Richard Rom ine. Durin g the sum mer of 1 994, D efe ndant c ontacte d Micha el to ask if Richar

d could come to l ive wit h hi m be cause R ichard and the victim were having problems. Mic hael agreed, bu t in Februar y 1995 he se nt Ric hard ba ck to-11-

Tennessee. Two (2) weeks later, Michael moved to Tenne ssee and he and R ichard event ually moved into a trail er. The rel ationshi p between Defendant and her husband was tense to t he point that during t he summer of 199 5, the D efend ant told him that the v ictim needed to go. She descr ibed a plan she had devised for him to be sho t while they w ere on a fishing trip.

Two (2) days la te r, t he Defendant showed a .3 8 caliber weapon to Michael and offered hi m $10,000.00 and a tr uck. The shooti ng was supposed to occur that
same day. Mich ael came to the river where the Defenda nt and the victim w ere fishin g, but he was unable to pul l the gun out. Afterwards, t he Defendant said she
was only “playi ng around” wit h Michael and knew he woul d not shoot her husband, but then s tated th at she was in the process of poisoni ng her husband by put ting poison in t he honey he u sed i n his coffee. Mi chaelreca ll ed see ing t he De fendan t mix something in the honey sh e added to De fendan t’s coffee. A week p rior to August 1, 1995, th e Defendant mentioned a double indemnit

y aspect of the insurance and asked Richard to shoot the vi ctim. Three ( 3) or four (4) days l ater, t he Defenda nt , Michael and Richar d were again di scussing shoot ing the vi ctim. The Defendant tol d Ri chard that if he were caught he woul d only serve six (6) months incarcerat ion in a juve nile fac ility and th at she would provid e his law yer an d an a libi. The plan was de vised for Richard to shoot t he victi m, with Michaelthen picki ng up Ric hard, a nd t he De fen dant cl aimi ng t hat

thr ee ( 3) me n tried to r

ob t hem.

On the evening prior to August 1, 1995, th e Defendant stated that the shooting
was to occur the ne xt day. On the m orning of Aug ust 1, 1995, the D efendant ga ve Micha el $ 300.00 to pay hi s phone billin order to provide an al ibi for Richard. The Defendant picked up Richar d at 2:45 p. m., then Michaelwent to her home at 3:00-12-

p.m. to start a load of laundry. Michael the n drove to El dad Bridge, and when he arrivedhe saw Richard runni ng towards thehighway. Richard got into the back of Micha el’s vehicle , and th ey dro ve to B i-Lo Su perm arket to pay M ichae l’s pho ne bill. The bill reflected it waspaid at 3:43 p.m. on August 1, 1995. Then they drove back to the Defendant’s residence where Richard took a shower whil e Michael started a fire in the trash barrel to burn Richard’s sh oes. Michael put Richard’ s clothes i n the washing machine. Michaellater f ound two (2) bul lets i n the washing machine which h e threw in a w oodsh ed, but he later retrieved the bullets and turn ed them over to personnel i n the publi c defender’s office.

In his ini tial statements to law enforcement officer s, Michael admitted t hat he did nottell the “whole t ruth” i n an effort to assist

his brothe r Richard. He identif ied
a con tract

fou nd by

Nat ali e Romi ne i n Ri char d’s roo m after the vi ctim’s fun eral. It
was placed behind a picture in Ri chard’s room. He sa w it aga in while h e was in North Caro lina wh en Na talie gave it to him torn i nto pieces. Followingthe indi ctment against him for criminal res ponsibility and acce ssory after the fac t, he pled g uilty to being a n acce ssory with an agre emen t to serve a tw o (2) year s entenc e.

Louis Kuykendall, speci al ag ent forensi c toxicol ogist wi th the TBI, testifi ed that h e testedthe vi ctim’ s coffee cup for Diazino n or Dursba n, commonly known a s insecticides. He found a brown resi due on the cup. Wh ile the te sts sho wed n o bas ic or acidic d rugs, it did tes t positively for cy anide in th e residue
.

Nata lie Rom ine is ma rried to J ame s Fred erick R omin e, the D efend ant’s brother, and she had only met the Defendant on two (2) or three (3) occasions pri or to the victim’s death . After lea rning o f the victim ’s death, she cal led the Defendant-13-

and was to ld that Richar d had kill ed him. The Defendant asked Natalie to come for the funeral because she had no other f amily. Natalie agreed and flewto Huntsvil le, Ala bamawhere she was picked u p b y t he Defendant and her daughters. After arrivi ng, the De fenda nt app eared to be “fin e,” but to ld Na talie that if it would have happened any late r, she w ould n ot have receive d any in suran ce money. The Defendant adv ised N atalie th at she would receive $250 ,000.0 0 from the victim ’s death. Defend ant des cribed the victim as th e “mea nest son of a bitch t hat ever lived.” Defendant clai med that she was t rying to protect Ri chard. After returning to the De fendan t’s home , the Defe ndant c alled the in suranc e com pany.

At the visitation prior to t he vict im’s funer al, the Defendant gave var ious
accou nts of how her husband’s shoot ing occurred, includi ng that Richar d had been smoking marijua na prior to kill ing the vict im. Foll owing the fune ral, Defe ndant joked all the way to t he cemetery, but adjusted her

rearview mirror to prevent peopl e in the
car followi ng them from seeing her amusement. After they returnedto the fune ral home, Defendant gave Natal ie and Michael money so that t hey could get food and beer.

That same evening, Natalie found the contract at Mich ael and Richa rd’s ho me. She stated that the document read, “I want . . . $10,000.00, Olen’ s truck, two years’ insurance. You s upply me with weapon, al ibi and gl oves.” While reading the docum ent, Micha el took it from N atalie and stu ck it i nto his boot . Michael l ater returned it to he r toread . Th e followi ng day, they went to vi sit Richar d who was being detained at

the juveni le detenti on center. Ri chard tri ed to tellNatalie what had happened, but the Defendant warned him not to do so. Th at even ing the y all went drinking, and N atalie returned to N orth Carolina the following day.-14- Michael cam e to visit N atalie o n two (2 ) or thre e (3) diffe rent oc casio ns in North Carolina , and the D efenda nt move d th ere to li ve in a traile r on he r broth er’s land. While Michael wasthe re, Natal ie overhear d him tellthe Defendant t hat she had better get

a lawyer for Richard. Later, sh e heard Michael tal king about how t he Defendant tried to poison her husband, and the Defendant t hen implied to Nata li e that“[i]t should have worked,” in reference to her attempts to poison t he vi cti m. On another occasi on, the Defendant admit ted that s he asked Michael to killher husba nd.

W hile not present when the contrac t was torn i nto pieces, Natalie saw t he contract on her kitche n table after it wa s torn in to piec es by th e Def enda nt. Na talie placed the pieces of

the contrac

t into an envelope which she pla ced in her bedr oom, then later gave to Michael. Natalie reca lled oth er conversat ions she had wit h the Defendant during which the Defendant advise d her that she had Richard kil l the victim.

Charles Harla n, foren sic pat holog ist and med ical e xaminer, per formed the autopsy of the vic ti m. The death was determin ed to have been caused by two (2) gunshot wounds to the head, chest and abdomen, with bot h shots being f atal. The first gunshot wound was a near guns hot wound to theback, wit h the muz zle of the gun being from si x (6) to twelve ( 12) inches f rom the victi m’s body. The vi ctim bled forsomewhere between three(3) to ten (10) minutes from this wound. The gunshot to the vict im’s head caused hi m to cease being aviable or ganism immediately

upon being shot, even though it would have take n several minutes for him to have died. Upon testing the victim’s bloo d and u rine, no ba sic drugs were de tected. H arlan testif ied that “t he cyanide test was not te sted for by the laborato ry.” However,-15-

without further e xplan ation, Har lan stated that ther e was no indicat ion of the presence of cyanide during the autopsy becau se “if cyanid e is prese nt, I can detect it.”

This evid ence c onclud ed the S tate’s cas e-in-chief.

Jeff Bradford, investi gator wit h the Li ncoln C ounty S heriff’s De partme nt, testif ied that he part icipated in the i nvestigat ion at thescene of the shoot ing and then later questioned t he Defendant at t he Sheriff ’s Department. He, along wit h t h e Defendant and Inve stigato r Mike Ho pson, went to the residence of Michael and Richard Romine wher e they se arched the home. They f ound a shoe box in t he bedroom containi ng drug paraphernal ia, but no contract was

found.
Jim Cranford, the bro ther of R uth H all, observed that the Defendant and t he victim had an excell ent marriage. During the f un eral, he ne ver observed a ny inappro priate behavior by the D efendant, an d thought sh e appeare d to truly mourn the dea th of her hu sband
.

Palmeda Taylor, a lice nsed p sycholo gist, evalua ted Richard Romine and concluded that hewas not me ntally

ill an d was com petent to stand trial. Richard admitted to her that, “ You have to be alittle craz y to do w hat I did , that is, c omm it murde r.” Two (2) weeks later, Richar d retracted his confessi on of kil ling thevictim and named the Defendant as t he murderer. She described his behav ior as gene rally manipulative and superfi ciall y cooperati ve, havi ng average intellige nce and knowing right from wrong. Ri chard admittedto a poor frustrati on tolerance and poor anger contro l, statingthat he “could not stand too many peopl e. If I don’t l ike them, I want-16-

to hit them.” Dr. Ta ylor found Richa rd as having the potential for reacting with o vert anger w hen he was up set.

This co nclude d the pro of by the D efenda nt.



### E XCULPA TORY 

### E VIDENCE

In Brady v. Mary land , 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) , the United States Sup reme C ourt held that the prosecut ion has a constitu tional duty to furnish the accused with excu lpatory e videnc e perta ining to either th e acc used ’s guilt
or innocence an d the punishment t hat may be imposed. Fai lure to r eveal exculpatory evidence vi olates dueproces s where the evide nce is m aterial eithe r to guilt or punishm ent, irrespective of good fai th or bad faith of theprosec ution. Brady , 373 U.S. a t 87, 83 S.Ct. a t 1196 -97. A lso, evid ence which may be used by t he defense to impeach a wit ness must be discl osed by the prosec ution. See Giglio v. Unite d States , 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L. Ed.2d 104 (1972) ; Workm an v. State , 868 S.W.2d 705, 709 (Tenn. Crim. A pp. 199 3), cert
. denied , 510 U.S. 1171, 114 S.Ct. 12 07, 127 L.Ed.2d 555 (19 94); State v. Davis , 823 S.W.2d 217, 218 (Tenn. Crim. App. 1991). In determ ining whether a due process vi olation has occurred, t he following four (4) prerequi sites must be s atisfi ed: 1) The defe ndant mu st have reque sted the inform ati on (unless t he evidence is obviously exculpa tory, in which c ase the state is bound to release the inform ation whethe r requested o r not);-17- 2) The state must hav e suppressed the i nformation; 3) The informat ion must have been favorable to the accused; and 4) Th e inform ation m ust ha ve bee n ma terial. State v. Edg in , 902 S.W .2d 387 , 390 (T enn.), amended on reh ’g (Tenn. 1995) (citations omitted).
Defendant has the burden of proving a con stitutional violation by a preponder ance of the evide nce. Id . at 389 ( citing State v. Spurlock , 874 S.W.2d 602, 610 (Tenn . Crim. A pp. 199 3)). Proving t his consti tutionalviolat ion is centered upon whethe r the om ission’s sig nificance rises to the levelof denying the Defendant
a fair trial. Edgin , 902 S.W.2d at 389 ( citing United S tates v. Agur s , 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (197 6)). T he standard by whi ch the
m ateria lity of undiscl osed informati on is measured was pronounced in Kyles v. Whitley , 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995), which held that, “[ t]he quest ion is not whether the defendant would more l ikely t han not have received a

differ en t verdi ct with t he evidence, b ut whether i n its absence he received a fair t rial, understood as a t rial resulti ng in a verdi ct worthy of confiden ce.” Thus, to prov e a Brady violation , the de fenda nt mu st sho w that “th e favor able evidence could reason ably be taken to put the whole case i n such a different li ght
as to underm ine the confiden ce of the verdict.” Id . Or, as succi nctly stated in th e majority opinion of

a pa nel ofthis cour

t in State v. Jeffrey

R. Allen and Jenni ngs Michael Coen , C.C.A. No. 03C01-9708- CC-00367, slip op. at 7, Ander son Coun ty (Tenn. Crim . App., Knox ville, Jan . 8, 199 9) (citatio ns om itted), “[e ]videnc e is considered mater ial only if there is a reasonable probabili ty that, had t he evidence b een disc losed to t he defense, t he results of the proce eding would have been different.”-18- Defendant argues that the State withhe ld exculpatory evidence i n violat ion of Brady and its pro geny. Basically, Defen dant has ca tegorized the e xculpatory evidence as follows: I. The written witne ss statem ents o f Dan etta M arsha ll, Aron Key, Adrian Key, Mi chael Key, and Chad Robi nson; II. A written state ment o f Natalie Rom ine, which was a sixty-nine (69) page s worn sta temen t given by N ata lie Rom ine to Larry Shavers, an i ndependent investigator ; and III. A TBI report by Speci al Agent Donna Pence.
Genera lly, if ther

e is only a delayed disclosure of i nformation, in contr ast to a comp lete failure to disclose exculpa tory inform ation, Brady normally does not apply, unless the delay its elf cause s prejudic e. Sylvester S mith v. Sta te , C.C.A. No. 02C01-9801-CR-00018, slip op. at 13, Sh elby Co unty (Te nn. Crim . App., Jackson, Dec. 28, 199 8); State v. Sydney M. Ewing , C.C. A. No. 01C01- 9612- CR- 00531 , Davidson Coun ty, (Ten n. Crim . App., Nash vil le, June 1 9, 1998 ), vacated and reent e red , (Tenn . Crim. A pp., Nas hville, Aug. 1 8, 1998 ); State v. Jim Inman , C.C. A. No. 03C01-9 201-CR -00020 (T enn. Crim. A pp., Knoxville, Nov. 23 , 1993) perm . to appeal denied , (Tenn ., April 14, 19 94).

We note that whi le the Defendant expended a consider

able porti on of her bri ef and reply br ief to t he issues reg ar ding exculpatory evi dence, in many instances, citati ons to the recor

d in support

of the argument are lacki ng. On the other hand, the State does not complain about the lack of citation to the reco rd by De fendan t. The State has de voted a m inimal po rtion of its argument to thi s issue. I ts brief basica lly citesthe law appli cable to exc ulpatory evidence and takes the concl usory posit ion thatall of the statemen ts are merely Jencks material r equired to be produced pursuantto the prov isions of Rule 26.2 of t he Tennessee Rules of Cri minal-19-

Procedure. In this part icular case, we will therefore examine Defendant’ s issues as best as w e can u nder the circums tances
.


### I. T HE 

### W RITTEN 

### W ITNESS 

### S TATEMENTS OF 

### D ANETTA 

### M ARSHALL 

### , A RON 

### K EY 

### , A DRIAN 

### K EY 

### , M ICHAEL 

### K EY 

### , AND 

### C HAD 

### R OBINSON
The written state ments of Dane tt a Marshall, Aron Key, Adri an Key, Michael Key, and C had R obinso n are no t part of the record in this app eal, and there appa rently was no effort to preserve t hem for the recor d as they are not

included in the list of exhibits at t ria l. From the cro ss-exa mina tion of th e witne sses , it is apparentthat at least

some of the statements were used duri ng cross-examinat ion. It is clear

from the record that t he State produced the statements of these witnesses after direct te stimon y of each witness.

It is the duty o f t he Appellant t o prepare an a dequate record for appellate review. Tenn . R. App . P. 24(b); State v. Bunch , 646 S.W .2d 158, 160 (Tenn. 198 3); State v. Robe rts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). When no evidence is preserved i n the record for review, we are precluded from consideri ng the issue. Robe rts , 755 S.W .2d at 836
.

In her brief, D efenda nt lists various inconsis tencies in the witnes s statem ents of Mich ael Key, Danetta Marshall , and Chad Robinson as to the time per iod that certain events o ccurre d. The re are n o citatio ns to th e reco rd, whic h is unde rstand able as, stated abo ve, the statements of these wit nesses were not included i n the record. Defendant argues in her brief t hat “[i] n their total ity, t hese sup pressed statements contained material i nconsistencies which tended to rebut th e-20-

State ’s theory th at t he defendant remai ned at the scene of the shooti ng for an extended p eriod of time befo re seeking he lp.”

Our examination of

the rec ord rev eals that the cro ss-exam ination of D anetta Mars hall was rem arkably b rief. Defense counsel br ought out on cross-examinat ion thatthe witnes s had signed a statement saying that at appro ximate ly 3:45 p.m., o ne of the ne ighbor chi ldren had come into her liv ing room stat ing that “someone had been shot and to come qui ck.” Michae l Key was not cross- examined at allby defense coun sel. While Adrian Keywas cross-examin ed, defense counseldid not examine the witnes s about anythi ng occurring at a parti cular time. Aron Key was not cross-examined by defe nse c ouns el. Cha d Rob inson was c ross-e xamin ed by defense counsel, usi ng a portion of his writ ten statement

pertaini ng to whether or not he had spoke n with his fa ther prior to re turning h ome fro m a trip to th e store.

It is clear

from the record t hat the Defendant requested to be given access to all witness statements prior to tri al, and th at the State did not provide t hes e statem ents to Defendant unt il after each witnes s had testi fied on directexamination. Howeve r, there is not hing in the record to indi cate that the witness statements of Dane tta Marshall, Aron Key, Adrian K ey, Michael Key, a nd Ch ad Ro binso n me t all the requirements in order to be classified as Bradymateria l.

The statem ents, e ven if exculpator y, were prov ided during trial , and therefor e, under Smith , slip op. at 13, Ewing , slip op. at 7-9, and Inman , slip op. at 10, unless the delay itself ca uses p rejudice, Brady does not apply . Defenda nt has shown no prejudice and therefor e Brady does not apply for thi s reason also.-21- 

### II. S WORN 

### S TATEMENT OF 

### N ATALIE 

### R OMINE TO 

### L ARRY 

### S HAVERS

The Defendant refers to numerous examples o f exculpatory evi dence contained within t he sixty-nine (69) page sworn statement of Natalie Romine which
was provided to defense counsel prior to the direct ex amination testim ony of N atalie Romine, but after

the tri al had alre ady begun
. In the argu ment p ortion of he r brief, Defendant refers to specific examples of purported exculpatory ev idence contained in the sixty-nine (69) pag e stateme nt by a general referenc e to the rec itation of facts contained in the “state ment o f fac ts” portion of her brief. I n many instances, referencesto the record of this i nformation i s either no n-existent or inadequate. For example, some referenc es to the record ar e to the statements of counselduring the hearin g of the motio n for ne w trial. It is well-set tled that statements of

counsel are not evidenc e. See Trotter v. State , 508 S.W .2d 808, 809 (Tenn. Crim . App. 1974 ). We will add ress th e spe cific examples of purpo rted exculpatory evidenceas best we are able to in light of the se deficie ncies in D efenda nt’s brief.
(1) Defenda nt asse rts that c ertain p ortions of the s tatem ent of N atalie Romine are e xculp atory bec ause th ey contra dict testimony of Michael Romine, Richard Romine , and the v ict im’s mother , Rut h Hall . Th e specifi c contradi ctions between the state ment of Natali e Romine and testimony at tri al ofMichael Romine and Ri chard Romine are not deli neated in t he brief. Natalie Romine, in her statem ent, told that the Defen dant had tal ked disparagi ngly about her deceased husband as being “onemean SOB” and “the meanest man that ever walked on the face of this earth .” Defend ant con tends tha t “other witne sses,” sp ecifically Mrs . Ruth Hall, the vict im’s mother, had testi fied at t rial t hat it was th eir observati on that a good-22-

relation ship existed between the victim a nd the D efenda nt. Defen dant no w asse rts that t he portio n of Nata lie Rom ine’s statem ent rega rding De fendan t’s statem ents contrary to what trial wit nesses later testif ied to i s exculpator y evidence.

Defendant does not expl ain how a statement can be recognized by the prosecution prior to trialas exculpatory evidence based upon the testimony of other witnessesduring the trial. Howe ver, eve n if the prosecuto r could have been clairv oyant enoug h to know t hat a state ment o f one witne ss migh t contrad ict with otherwitnes ses’ tria l testim ony, w e do n ot belie ve that th is particular i nstance cited by the D efenda nt mee ts the “m ateriality test” of Kyles , 514 U.S. at 434.
(2) Defendant asserts in her brief tha t th e statement of Natalie Romine “ that Mic haelRomi ne wa s tr yi ng t o fr

ame the Defendant, ” is excul patory and she refers to page 40 of the Natal ie Romine statem ent. T hat po rtion of M s. Rom ine’s statem ent, referring to this matter, incl udes the follo wing, “I d idn’t rea lly know at this pointif Mike [Romine] was t rying t o f rame [Defendant]or if [ Defendant] was t rying to frame Mi ke [ Romi ne] . I knew that bo th of the m ha d a ha nd in p lay, but I d idn’t know h ow big o f a part they were pla ying.”

Nata lie Romine testif ied during the tri al to essent ially the same informati on contained in this portion of the state ment. Therefore, s ince thi s was presented to the jury, we fail to se e that this m eets the “m ateriality test” of Kyles , 514 U.S. at 434.
(3) The Defendant argues t hat exculpatory evidence i ncluded a port ion of Nata lie Rom in e’s statement whi ch describes t hat Michael Romine r eceived an indicat ion from a poli ce investi gatorthat he would get cu stody o f the D efend ant’s-23-

children and property if he coul d come up with suff icient evidence to i mplicate Defendant in the deat h of thevi cti m. Defendant does not cite t he specifi c portion of Nata lie Romine ’s statement w here this can b e found. Ho wever, in our rev iew ofMs. Rom ine’s statem ent, we h ave foun d this part o f her statem ent. W e also note t hat Ms. Romine testif ied to thesame informati on during thetrial. Th erefor e, sinc e this informati on was provided to the jury during trial , we do not see that it meets t he “materia lity test” of Kyles , 514 U.S . at 434.
(4) In her sta teme nt, Na talie Ro mine told that the De fendan t admitted to Ms. Rom ine that sh e (Defe ndant) h ad attem pted to po ison the vic ti m. Defendant contends this wa s excu lpatory eviden ce be caus e it contrad icts the tri al testi mony of the forensic p atholog ist that th ere was no evidence of poison in the victim’s b ody. Again, th ere are n o spec ific citations to th e record in Defen dant’s brie f.

Howeve r, we have reviewed the testi mony of the forensic p a thologist, Dr. Harlan. As sta ted els ewhe re in this opin ion, D r. Harlan testifi ed that ther e was no laboratory test for cyan ide poiso n. Howeve r, Dr. Harlan added that if cyani de had been presen t, he would have detected it . In any event, Ms. Rominetestif ied at trial concerning the De fenda nt’s statement to her that sh e had triedto p ois on t he v ict im. Therefore, any benefit of the i nformation i n the statement was revealed to the jury, and the refore, it doe s not m eet the “m ateriality test” for e xculpato ry evidenc e.
(5) Defendant asserts that the following port ion of Nat alie Ro mine ’s statementis excul patory: “It was not hing that sh e [De fenda nt] said directly, she just led me to believe t hat Richard [Romine]had been liv ing with [ victi m] and that t hey had not been getting a long, they had b een fighting every single day an d she didn’t-24-

know what happene d.” Defen dant a sserts that this is excu lpatory beca use it is inconsistent with trial testimony of “all other witnesses,” includ ing Richard Romine, who testif ied that ther e were only a few minor instances of prob lems with the victim and that he di d not hate t he victim. How ever, th ere are no cita tions to spec ific portionsof the re cord c ontain ing the testim ony of a ll these other w itness es wh ich is purpo rtedly contrary to that portion of Natali e Romine’s statement. This does no t meet th e “mate riality test” to be e xculpato ry evidenc e.
(6) Defendant contends that the fol lowi ng portion of the Natali e Romine statementis exculpator y: “Because one of

the ver y first thing s that [D efend ant] told
me was to tha nk Go d that it hap pened when it did becau se if it w oul d’ve any l ater she would n’t have had a ny insu rance .” She claim s this is e xculpa tory be caus e it is in direct c ontrad ic tion to th e trial tes timon y of Ric hard R omin e that th e victim ’s emplo yer had re cently ren ewed th e insuran ce.

Nata lie Rom ine testified to this speci fic i nformation during the trial . Therefore, the jury rec eived the benefit of th is informa tion. W e do not feel that thi s meets the “material ity test” of exculpatory informati on.

(7) In her next reference to exculpator y material , the Defendant asserts t hat
on page 4 of Natali e Romine’s statement, Romine says that Defendant tol d her she would be getting $ 250,000.00 i n insurance pr oceeds when the test imony at tri al was thatshe rece ived $84 ,692.38 in insuran ce proc eeds. H oweve r, contrary to Defe ndan t’s asse rtions in her brief , the statement of Natali e Romine at page 4 states as follows :-25- [Defen dant] told me that she [Defendant]knew that shewas gonna get al most exac tly $250 ,000 d ollars is what s he ha d to ga in from Olen ’s death and tha t with some insurances combined, she believed t hat she was gonna receive d ouble ind emnity o n one o f them. S he had so me stocks and bo nds th rough a couple of di fferent places. She had an antique coin coll ection, um, his truc k, the hous e, um , sever al othe r little things.
We do not see a contr adicti on between the tes tim ony at tr ial and t he cited portion of Natalie R omine’s state ment. Th erefore, this is not exculp atory.
(8) Defendant asserts t hat the st atement of Natal ie Romine contai ns informati on that the victim had be en unfa ith ful to the Defendant and t hat the Defendant and vic tim were experienci ng problems wit h their sex ual relat ionship. There is no citation to a specifi c portion of the statement containi ng this i nformation. She argues that this i nformation is exculpatory because even though they suggest
a motive for De fenda nt to be involv ed in the ki lling of the victim, they were “inconsis tent” with testim ony pres ented a t trial. Defendant does not cite to testimony in the record t hat is i nconsistent and does not even mention the names ofwitnesses who gave in cons istent te stimo ny to this particu la r portion of Ms. R omine ’s statem ent. Defen dant ha s failed to sh ow that th is is exculpa tory eviden ce.
(9) At page 5 of the state ment o f N a talie Romine, she relate d that Defendant told her t hat Richard Romine became angry approximatel y a year prior to the sta teme nt bein g given and s aid “I’m gonn a kill [victim ] and w hen I d o, I’m gonna blame you [Defendan t].” Defendant as serts that this is exc ulpator y informati on contained i n the stat ement of Natali e Romine.-26- Howeve r, in Defendant’s handwritten supplement to her statement to police given on August 1, 1995, the Defendant i ncluded the following: “[A]not her time, Richard told my daughter that he would kil l Olen by shooting hi m. I asked him how he would get away

with it. He told me that he would blame it on me saying that

I had him do it.”

There is no in dicati on that the Defendant’s suppl ement to her statement to the police was n ot provided to he r w ell be fore tr ial. The informati on was not undisclosed to Defendant; indeed, she had pr ov ided the i nformation her self to the police. Therefore, this does not

meet th e requi rement that the Stat e must ha ve withheld t he evidence.
(10) Defendant argues as exculp atory e videnc e the p ortion o f Nata lie Rom ine’s statem ent wh ich inclu de d a co nvers ation w ith Def enda nt whe rein Defendant told Na talie Rom ine tha t the victim deserved to die. She urges thi s is so because it is inconsis tent with all t rial testimony whic h indicated that the Defendant and the victim had a good relation ship. A gain, th ere is n o cit ation to the record of inconsistent testim ony. E ven if pro per cita tions w ere m ade, w e fail to see howthis meets the ma teriality test for exc ulpatory e vidence
. (11) On page 11 of M s. Rom ine’s statem ent, she te lls of a statement made by the Defendantto another per son at the f uneral h ome visitation that R ichard Romine had kill ed the vict im because “Richard ’s been smoking alot of pot . . . that’s why he did it be caus e he’s been smo king a lot of po t.” Defe ndan t conte nds th at this is exculpator

y infor mation because it suggests a basi s for Richar d Romine’s acti ons in shootin g the victim which did not involve th e Defe ndant.-27- Natalie Romine testifi ed to this preciseinformati on during the trial . The jury therefore received t he benefit and was able to give it any weig ht it chose . It, therefor e, does not meet t he “material ity test” for exculpator

y evidence.
(12) The statem ent of Na talie Rom ine conta ins a recita tion of h ow Ms. Romine found the purported “contract” betwee n Richard Romine and Defendant for Richard Rom ine to k ill the vic tim. De fenda nt ass erts tha t this info rmatio n is exculpatory because the statement mentions that the document consi sts of t wo (2) pages while thetrialtestimony of Natalie Romine i s thatit was one(1) page, and t hat the statement says

the document had some burned e dges, contrar y to other testimony

at trial . Again, there i s ab solutely no cit ation to the record i n this case where this purpo rted contr adictory evidence i s contained i n the record. We note, however, that thetrialtestimony of Natalie Romine i s that thepages of the “con tract”
were not on both si des, but were t wo (2) separate pieces of paper . E ven if some portion of the statement can be deemed to be contradictory to the testimony of Ms. Rom ine at trial, it does not me et the “m ateriality test” for e xculpato ry evidenc e.
(13) Nata lie Romi ne’s statement also provi ded that a portion of t he “co ntract ” contained informati on tha t Richar d Romine would driv e to the store and call 911. She c lai ms this is exculpatory bec ause it was “no t mentioned by Richard Romine”
nor was it i ncluded in t he document itsel f. Again, there are no citations to the record which show this c ontradicti on. De fenda nt poin ts out th at inclu ded in Nata lie Rom ine’s statement i s informati on that she found a cardboard“bong,” used f or smoking marijua na, in th e sa me roo m whe re she h ad foun d the “co ntract.” Defendant asserts t hat this is exculpatory because it supports another port ion of Ms. Rom ine’s statem ent tha t “Rich ard R omin e was poss ibly motivate d to kill Olen Hall-28-

as a result of his drugusage.” An inv estiga tor t estifi ed at tri al that drug parap herna lia was fou nd in a shoe box i n a bedroom at Richard Romine’ s home. This information does not meet t he “material ity test” for exculpator

y evidence.
(14) Defendant next assert s that on pages 1 9 and 20 of M s. Rom ine’s statem ent, there is contained the exc ulpatory evidence that Ms. Romine had informed Michael Romine “t hat he needed to goto the pol ice with the evidence that the Defendant was involve d in the deat h of her husband. ” Defendant asser ts that this is incon sisten t with M s. Rom ine’s tria l testim ony “th at she did not know enough about the crimi nal justice s ystem to kno w to wh om in forma tion ab out a c rime s hould be given.”

Again, ther

e is no specifi c citat ion to therecord. In any event , this does not me et the “m ateriality test” of Kyles , 514 U.S. at 434.
(15) In the next i nstance of purpor te d exculpator y evidence, Defendant asserts, in essence, t hat certai n informati on no t c ontained in Ms. R omin e’s statementmakes the statement exculpatory. Specif ically, Defendant argues tha t informati on in the testimony of Ms. Romine at t rial, that one of Defendant’s t rial attorneys advised her t o d est roy the “co ntract,” is no t containe d in her sta temen t. We do not ag ree with the Defe ndant ’s argume nt that this particular exclusion of informati on in the statement made it exculpatory evidence.
(16) In her brief, D efenda nt states, On page 40, Ms. R omine indicated that at a ce rtain period of time, she was convinced the defendant had no role in the death of her husband
. Certainly, such evide n ce would be cruci al not onl y for i mpeachment purposes, but also as exculpatory evidence as the basis for this bel ief might hav e form ed a b asis fo r provin g the D efend ant’s in noce nce if known prior to trial. (Em phasis add ed).-29-

We have examined page 40 of Ms. R omine ’s statem ent. The only port ion of i t that pertains to this issue is as follows : Q. O.K., so, uh, afte r uh, [Defe ndant] got ba ck in North Caroli na, uh, did she have a time to more or less work on you to convince you that she had no part in thi s? A. Yes. Q. Did she do a pre tty good job of that? A. Yes, she did. Q. Did she about have you conv inced that she didn’t

have anythi ng do to with it? A. She had convinced m e that Mike wa s framing he r. Q. O.K. A. She didn’t have me convinced t hat she didn’t have a part in play, she downplayed her par t and said t hat she didn ’t know exactly what was going to happen, but Mike let her know that something was going to hap pen a nd the n [victim ] was k il led and she sa id thatshe had no problem wit h that. She di dn’ t care t hat [v ict im] was deadbec ause[v ict im] need ed t o di e, [ vi cti m] deserve d to die. Ms. Rom ine tes tif ied duri ng the tri al to basi cally t he same informati on. Therefore, the jury had the ben efit o f it, and we do not see how thi s portion of the statement meets t he “material ity test” for exculpator

y evidence.
(17) At page 42 ofthe statem ent, Natalie Romine r elayed, i n describi ng the events surrounding t he Defenda nt first talking to one of her trial attorneys to retain him, that “Jeff Bradford [a polic e inves tigator] g rabbe d his cr otch a nd he said that he had a real hard-on for t he case and he wasn ’t going to rest unt il [Defendant] was behind bars.” D efend ant co ntend s that th is is exc ulpato ry evide nce b ecau se it “sugge sts bia s on the part of t he law enforcement offici als conducti ng the investigatio n.” She po ints out tha t t his is a ttri buted to the same law enforcement-30-

officer who suppo sedl y told Mi chael Romine that he could obtai n custody of the Defe ndan t’s children and all of her mo ney if he su pplied en ough in formatio n to implicate the Defendant i n the death of her husband.
Again, all of

this i nformation was brought out during the tri al in t he testi mony of Natalie Romine. It does not meet the “materi ality test” f or exculpatory evidence.
(18) Defendant asserts t hat a portion of the state ment of Natali e Romine is exculpatory because it cont radicts Romine ’ s testi mony at tri al that on e of Defen dant’s lawyers instructed Defendant to destroy the “contr act.” At trial, Ms. Romine testified duri ng cross-examination in part as follows: Q. Let me stop you right there. I d on’t me an to interru pt you, bu t that’ s one thi ng I want to know. You’re telling t his jury that [Defendant] told you t hat [defense counsel] told her to de stroy a pi ece of evidence? A. [Defen dant] was on the cordless phone talking to it just l ike this. On ou r cordless phone , you can hear in an other roo m. Q. Are you tell ing this jury under

oath that y

ou hea rd [def ense counsel] tell her t

o destroy a pi ece of evidence? A. That I pe rsonally he ard that.

In her statem ent, Ms. Romine related that Defendant said her l awyer had said not to do a nything with the “contra ct,” that h e was going to sen d his as sociate to retrieve the document. She al so indicated that she h eard the defens e lawyer s tate thathis associate “wil l be in Ralei gh [North Carol ina] tomorr ow first thing on a plane.”-31- Nata lie Romine also test ified at the trialthat thelawyer’ s associate woul d be in Ralei gh, North Carol ina to ret rieve t he contract. Any contradi ctions i n the state ment and/or th e testimo ny were put befor e the jury. E ven if a porti on of th e statementhas an irreconcilabl e contradi ction in testi mony at tri al, thi s would not normally be known to the prosecution unti l the witnesstestif ied attrial . Therefore, if it were exculpatory, that fact co uld not be known until the trial. In any event, we do not feel t hat this

meets the “materi ality test” f or exculpatory evidence.

We have examined the Defendant’s cl aims of withheld exculpator y evidence in Nata lie Romine’s statement cumulatively. I t is our conclusion t hat there was not
a violation of Bradyby the prosecuti on in the par ticula r instances reliedupon by the Defendant in the typewritten statem ent of Na talie Rom ine. In additio n, we find t hat the delay in pr

oviding the sixt

y-nine ( 69) page statem ent of N atalie R omin e, even if the material were exculpator y, did not it

self cause prejudice
. Smith , sli p op. at 13; Ewing , slip op. at 7-8 ; Inman , slip op. at 10
.



### III. TBI R EPORT 

### O F 

### S PECIAL 

### A GENT 

### D ONNA 

### P ENCE
Concerning thi s issue of al leged exculp atory materi al, Defendant refers to a porti on of t he “statement of the facts” in her brief to del ineate examples of exculpatory material contained i n a typewri tten repor t ofSpecial Agent Pence. This report was n ot disc losed to Def enda nt until a fter trial, having been placed under seal by the trial cour t during the trial, and un sealed aft er the verdi ct upon motion of Defen dant. Wh ile Defen dant does specif y various

purported examples of exculpatory informati on and inconsist encies b etween the TBI repor t and tri al testimon y or other p ortions of witness statements, the re are absolutely no references-32-

to the record sp ecifyi ng a t what page of a statement or tri al testi mony the inconsistencies w it h the TBI statement occur. However , we have revi ewed the examples of all eged exculpator y infor mation and fi nd thatfor the most pa rt, they are covered in Defen dant’ s allegati ons of excul patory materi al contai ned in the si xty-ni ne (69) page s worn sta temen t given by N atalie Ro mine to the private investi gator. The
ones that are not

specifi cally co ntained i n Natalie R om ine’s statement to the investigato r are not Bradymaterial beca use they are n ot “material.”

Howeve r, we do find tha t it was error for the State to not prod uce at lea st a portion of Age nt Pen ce’s re port to D efend ant afte r Nata lie Rom ine tes tified as it is Jencks material. Included wi thin thedefinition of a “statem ent” of a witn ess in R ule 26.2(g) of

the Tennessee Rules of Criminal Procedure is th e followi ng: (1) A written s tatem ent m ade b y the witn ess th at is si gned or otherwis e adop ted or ap proved b y the witne ss . . . .
T he second paragraph of the fir st page of t he TBI report by Agen t Penc e states as foll ows: (Age nt’s Not e: The first port ion of the statement was writ ten by Mrs. [Natali e] Rom ine prior to our arri val and turned over to this agent after the oral inte rview).
The remaining port ion of thefirst page of the report, the secon d and third typ ewritten pages of the r eport and the f irst par agraph of the f

ourth p age of th e report are indica ted to be a verbatim transcript o f the writt en s tatem ent of N atalie Romine provided to the TBI agent. In fact , at the endof this quotation from the written state ment is typ ed “(En d of written s tateme nt).”-33- There is no doubt that this port ion of Agent Pence’ s report cont ains a writ

ten statementof Natalie Romine whi ch should have been provided to defense counsel
no later than after

the direct

examination of Natali e Romine. The prosecuti on cannot incorpo rate a witness’ statement, as defined by Rule 26.2( g), into a law enforcement
r eport and thereby avoid the requir ement to provide the statement to defense counsel as prov ided in Rule 2 6.2.

It appears from the record that there was some amount of confusion d u ring the jury out hea ring concer ning d iscl osure of thi s repor t by TBI Agent Pe nce. At one point, the dist rict attorney announced as follows:

Mr. McCown: Let me add something to t hem. That is exac tly right.

It [the statement given to Pence by Na talie Romine] is a 13 1⁄2 page part of a j ournal that Natalie Romine wrote out in her own handwriting. I have g ot it. It is J e ncks material at

the time, and if and when she [Natalie R omine ] testifies, I will give it to the m. Subs eque ntly in the jury out hearing, it appears that the f

ollowing colloquy occurred between one of the defens e coun sel, t he assistant district a ttorney particip ating in the trial, and the cour t: M r. Fraley [defen se co unse l]: My qu estion is: After s he [N atali e Romine] testif ies , can I ask for that [Pence]report t hat she gave a statement on as Jencks material at that - - Mr. Barnard [assistant district attorney]: The State objects. The C ourt: I have already ru led that appare ntly she d id not

ado pt that as her own statement, that particu la r statem ent. There may be, accordi ng t o the State, portions- - or t hey may be in po ssession of ot her informati on thatshe has adopted that theysay they are only going to supply t o y ou after sh e [Na talie Rom ine] testifies.-34- Mr. Fraley: I f I had the report , i t wo uld hel p me i n mycrossexamination. “Did you tellher this? Did you tellher this?” The C ourt: You will be given an opport un ity to reviewan y

Jencks materia l that is provide d to you. B ut there has to b e so me rule that you are enti tled to it. You are correct. It would be helpful to yo u to have that. But I do not know of any rule that prov ides they must gi ve it to you based u pon wha t I have heard today. Are we ready to pr

oceed? Mr. Barnard: Yes. The jury was cal led back into the court a nd the tri al proceeded.

We have revi ewed t his stat ement by Nat ali e Ro m ine, and while there are some incon sis ten cies, t hey appear to be min or and/or were brought out within the sixty-nine (69) page sworn st atement ofNatalie Romine to the investi gator or dur ing her trialtestimony. The error which resulted by the f ailure of compliancewith R ule 26.2 of the Tennessee Rules of CriminalProcedure is harmless beyond a reasonab le doubt. Ten n. R. App. P. 3 6(b); Tenn. R . App. P. 52(a);



### P ERJURED 

### T ESTIMONY

Defendant argues that the tri al court erred in fai ling to granta new trialfor the Defendant when it was demonstr ated that

Natalie Romine committ ed perjury

during her testimony at

trial. Specificall y, Defendant points to t he fact that when quest ioned
as to her h i story of

arrest, she claimed to h ave been arrested on only two (2)
occ asio ns, one o f which was a “mista ke”. H owev er, follow ing the Defe ndan t’s convicti on, evidence wasdiscovered that Ms. Romine was not arrested “ by mistake”-35-

fortheft of a car batte ry and had also been convicted of numerous other offenses includi ng second d egree trespa ss and dri ving off enses. Furthermore, when questioned as to her hist ory of experience wit h law enforcement , Natali e Romine failedto reveal her

husband’s extensive arr est record. The State counter s that even i f the Defe ndant could have impeached this witness wit h the newly di scovered evidence, t he outcome of the t rial woul d have been the same.

The trial court has the sound dis cretion i n determining whether to gr ant a new trialon the ba sis of new ly discovere d eviden ce. State v. Goswick , 656 S.W.2d 355, 358 (Tenn. 198 3) (citations omitted). In ord er to acquire a new trial , the defendant must demonstrate: (1) reasonab le dilige nce in seeking the newly di scovered evidence; (2) materia lity of the evi dence; and (3) t hat the evi dence willlikel y change the result of the trial. Goswi ck , 656 S.W.2d at 358-60. Upon consi deration of the newly discovered evid ence in this case , the trial court refused to gra nt a new trial. New ly discov ered im peac hme nt evide nce, a s a ge neral rul e, will not con stitute grounds for a new trial. State v. Singleton , 853 S.W.2d 490, 496 (Tenn. 19 93 ). Howeve r, if the impeaching ev idence is so c rucial t o the defendant ’s guil t or innoc ence that its a dmis sion w ill proba bly result in an acquittal, a new trial may be ordered
. Id . (citations om itted).

W hile the trial c ourt fou nd tha t Defe ndan t exerc ised re ason able d iligenc e in the search for eviden ce, it did not fi n d that th e imp each men t eviden ce of N atalie R omin e’s prior conv iction s was so materialas to change the r esul t of th e Defe ndan t’s trial . While this evidence may have di screditedthe testim ony of N atalie Romine, she was not the only witness testify ing against the Defendan t an d her involvement in the murder of the vi ctim. We agree with t he trialcourt that , even if the-36-

jury had h eard th is new ly disco vered evid e nce, a different resu lt would not have followed.


### S UFFICIENCY OF THE 

### E VIDENCE

Defendant argues that due to the State’ s Brady violatio ns and th e new ly discovered evid ence of Natalie Romine’ s perjury which consti tuted grounds f or impea chme nt, that the r emaining testi mony of the two accomplices, Mi chael and Richard Rom ine, is insuffic ient to s ustain the De fenda nt’s convic tion. W e have held contrary to Defendant’ s asserti ons on these iss ues. Also, as the trialcourt stated, “Nata lie Rom ine wa s not a lynch p in witness. T he State presented other witnesses, the most damning of which were the Defendant’ s son and brother who each related the Defen dant’s gu ilt.” There was m ore than sufficient evid ence o f Defend ant’s guilt. This issu e is withou t merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ L.T. LAFFERTY, Special Judge