### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Marc h 22
, 200 5

WILLIAM P. LIVIN GSTON , JR . v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Ham blen Coun ty

No. 02CR178 Jam es E. Beckner, Judge

No. E2004-01261-CC A-R3- P C - F iled Jul y 21, 2005

The pe titioner, Wi lliam P. Livingston, J r., appea ls the dismiss al by the Hamblen County

Criminal Cou rt of his pe tit ion fo r p os t- c on vic tio n r e lie f. Af te r r e vie w o f the re c or d, we a ff ir m.

Te nn. R . A pp. P . 3 ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

J A M ES C UR WO OD W I TT , J R ., J
., delivere d the opinion of the cour t, in which D AVI D G. H AYES and J ER R Y L. S MI TH , J J ., joined.

Ger ald T. Edison, Gre eneville, Te nnessee , for the A ppellant, Will iam P. L ivingston, Jr.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l & Re po rt e r; Mic ha e l Ma rk ha m, A ssi sta nt A tto rn e y

Ge ne ra l; C. Ber keley Be ll, Jr., D istrict A ttorney Gene ral; and Paig e Miles Collins, Assi stant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION
The pe titioner stands convi ct ed o f three counts of obtaining presc ription drug s by fraud. See Tenn. Code Ann. § 53- 11-402(a ) ( 1 9 9 9). He was sente nced a s a Rang e I I persistent of fe nd e r t o s ix y e ars ’ i nc arc e ratio n f or e a c h c ou nt, wi th the se nte nc e s to be se rv e d c on c ur re ntl y to

eac h other but conse cutively to a pre viouslyimposed 21-y ear sentenc e.

A H am b l en C o u n t y

j u ryfo u n d t h e p et i t i o n ergu i l t y o f o b t ai n i n g p re s cr i p t i o n d ru gs by fraud based on the following evidenc e:

Ac tin g on inf

or ma tio n r e c e i v e d

f r o m a c o n f i d e n tia l in fo rm a nt,

a dr ug ta sk fo rc e of

fi c e r e xami ne d pr e sc ri pti on re c or ds pe rt a ini ng to the [petiti oner] from two drug stores in H amblen County , Tenne ssee. T h e p r e s c r i p t i o n s w e r e f o r v ar i o u s S c h e d u l e III

a n d S c h e d u l e IV controll ed substance s. Ex pert testimony reve aled that the [petit ioner’ s ] prescriptions had bee n x eroxed and that the r efill line-2- had bee n filled in. The phy sician w ho wrote the presc riptions testified that no re fills were order ed on the pr escriptions when he wrote the m and that no per son was authorized by him t o co p ythe orig inal presc riptions. The evidenc e pre sented at trial indicated that the [petit ioner] obta ined controlled substances with prescriptions t hat

wer e dated Fe bruary 12 and J une 11, l997, a lthough th e p h y s i cian purporting to have written those pre scriptions denied ha ving w ritten them on those dates. A forme r g irlfriend of the [petiti oner] testified that the [petiti oner ] h ad told her that he r epeatedly copied pr e sc ri pti on s a t a

lib ra ry a nd the n too k the m to va

ri ou s dr ug sto re s to have the m filled.

State v. W

illiam P. L ivingston
, No. E1999-01362-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App., Knoxvi lle, J uly

31, 2001), perm. app. de nied (Tenn. 2002)

. The pe titioner’s convictions wer e af firmed on dire ct appea l, and the supreme court denied discr etionary Rule 11 review

. Id . There afte r, the pe titioner timelyfiled a pe tition s eeking post-conviction re lief on September 16, 2002, claiming an illeg al sea rch a nd seizure and inef

fec tive assistance of counse l at trial and on appea l. Counsel was a ppointed to repre sent the petitioner, a nd an evide ntiary

hearing w as conduc ted.
At the post-conviction hearing, the petitioner first ca lled Assistant Publ ic Def ender Clifton B arne s to te stify

. He explained that the public defe nder’ s office had b ee n ap p o inted

orig ina lly to repr ese nt the pe tit ion e r i n c on ne c tio n w ith his po st- c on vic tio n p e tit ion . A c on fl ic t, howeve r, prompted the public defe nder’ s office to w ithdraw from the c ase. Mr . Ba rnes testified that one of the attorney s in his office had re prese nted Lisa Gentry , who had testified at the petitioner’s trial. Mr. B arne s had Ms. Gentry ’s file with him; included there in was a le tter date d J uly 11, 1997, from Ms. G entry ’s public defe nder advising that the “District Attorne y is willi ng (to postpone y our serving o f a s e n te n c e ) s o lo n g a s y o u c o n ti n u e to w o rk f o r O f f ic e r [n a me d e le te d ]. T h e District Attorney cannot g o lower tha n 11 months and 29 day s.”

Th e pe tit ion e r’ s f

or me r tr ia l c ou ns e l te sti fi e d that th e pe tit ion e r’ s mo the r r e ta ine d h is service s for he r son’s def

ense. A s counsel re called, the state’s case was circ umstantial, and none of the state’s w itnesses had a ny first-hand knowledg e of criminal activiti es on the part of the pe titioner. One of the witnesses listed on the pre sentment was Lisa Gentry . Counsel said that he could not

reme mber whe ther he interviewe d her be fore trial.

Evidently Tommy Reag an, a f

orensic handwriting expert, was re tained by the petitioner, and f

rom Mr. Reag an’s a naly sis and comparison o f h an dwriting samples, he ha dFr om t he di s cus s i on i n t he po s t

- convi ct i on r ecor d amo ng t he wi t nes s , coun sel, a nd the cour t , s ubs t ant i al 1

co nf usi o n exi st ed regardi ng what t he p et i t i o ner may have si gned and what t he exp ert had revi ewed

. C ust o m ari l y , t he

o nl y i nd i vi d ual who s i gns t he act ual “ p res cri p t i o n” i s t he i ss ui ng p hy si ci an. O f t ent i m es, ho wever, t he p ers o n who picks up t he pres cr i pt i on medi ci ne wi l l be as ked t o s i gn a pha r macy “ l og. ”

-3- conclude d that it was “[h] ighly probable that [t he pre scriptions] were not sig ned by [t he petitioner].” 1 The de fense called Mr . Reag an as a witness at trial and w as able to el i cit his opinion t hat “the qu e sti on e d d oc ume nts we re no t si g ne d b y [the pet it io ner ].” I mme diate ly the re a ft e r, the state objected that the petitioner had f ailed to provide the state with rec iproca l discovery reg arding Mr. Re a g a n, a ndthe tr ia l c ou rt re fu se d to allo w an y fu rthe r que sti on ing by the de fe ns e

. Tria l c ou ns e l di d not dispute what had ha

ppened, but he simplydid not reca ll why he had failed to turn over r ecipr ocal discovery

. He t es t i fi ed, “I t would be my prac tice to do that, y es. It’s very rar e whe n I

have something within my control which we turn over to the s tate, but the R ule provides that we have to, and I don’t know why

I didn’t.”

Tri al c ou ns el w as as ked abo utth e st atu s o f L is a Gen tr y as a wi tn ess in th e case . By revie wing court rec o rd s , h e was able to rec all that she wa s listed as a state witness on the prese ntment; the presentment showe d her a ddress a s being in c are of the Drug Task F orce . Counsel

wa s sh ow n a nd ide nti fi e d a mot ion he fi le d in the c a se fo r the state to d isc los e a ny a g re e me nts wi th pr os e c uti on wi tne sse s, inc lud ing L isa Ge ntry . N e xt, he wa s sh ow n th e July 11 , 1 99 7 le tte r t o M s. Gentry communicating the s tate’s offer to postpone service of her sentenc e; counsel testified that he had neve r see n the letter a nd was ne ver a dvised of the state ’s offe r.

Although listed a s a state’ s witness, Ms. Gentry did not testify

at trial for

the state. I nstead, trial c ounsel ca lled her a s a def ense witness to elicit the following testimony , which appe ars in the orig inal trial transc ript, a copy of which is an e x hibit in t he post-convic tion recor d:

Q Hi

.

A Hello.

Q Y o u ’ r e L i s a

G e n tr y?

A Ye s, I

a m.
Q Ms. Gentry , let me as k y ou a question if I may . Have y ou
ever lived at 1700 B eac on Road, in Talbott, Tennesse e?

A Yes, I

have.

Q No fu rthe r q ue sti on s. Th a nk y ou , ma ’am.-4-

At the po st- c on vic tio n h e ari ng , c ou ns e l e xpla ine d that his pu rp os e in c a lli ng Ms. Ge ntry wa s to e lic it her a ddress, whic h was the same addre ss listed on the presc riptions, ther eby sug g esting to the jury that she, not the petitioner, was responsible for obtaining the pre scriptions. As it turned out in the trial, the state’ s cross-e x aminati on of Ms. Gentry was de vastating for the de fense . Ms. Gentry testified that the petitioner ha d photocopied pre scriptions at the c o u nty library , and her

testimony pr ov ide d a

dir e c t li nk

be tw e e n th e pe tit ion e r andthe pr e sc ri pti on s.
Reg arding pretria l motions, counsel testified tha t the petitioner had f iled numerous pro s e mot ion s, wh ic h c ou ns e l a do pte d o ut o f an a bu nd a nc e of

c a uti on . Co un sel recal led th at a

se arc h wa rran t su ppre ssi on mot ion ha d b e e n f ile d, bu t he didno t be lie ve that th e state ’s c a se involved items taken from the hom e. He did reme mber that the pe titioner wanted the items that were seized returne d, but counsel said that he did not re prese nt the petitioner on that matter.

Th e pe tit ion e r c a lle d Sh ir le y Ste wa rt a s a wi tne ss at th e e vid e nti ary he ari ng . M s. Stewart kne w the petitioner a nd Ms. G entry

. She had bee n interviewe d by trial counsel, but she w as not called a s a witness at pe titioner’s trial. Ms. Stewa rt testified at the post-c onviction hearing that i n 1 9 9 8 s h e wa s ad d i ct ed t o d ru gs an d t h at s h e an d M s

. Ge n try“r an ar o u n d t o get h er

. . . t o get d ru gs and thing s of that nature .” Ac cording to Ms. St ewa rt, Ms. Gentry

told her about taking one of the petitioner’s pre scriptions, photocopy ing it, and using the photocopies to obtain re fills. Ms. Gentry also told her that “the first one, thoug h, that [t he petitioner] knew that down [sic] -- that [the petitioner] had sent her.”

On c ro ss- e xami na tio n, the state a sk e d th e wi tne ss to cla ri fy abo ut “the fi rs t one .” Ms. Stewart testified tha t Ms. Gentry “didn’t say

that h e t o o k her to g et the pre scription,” but rather

“ [t]ha t he kn e w sh e wa s g oin g to g e t it. ” Ms. Ste wa rt a ff ir me d that sh e pr ovid ed t he sam e inf orma tio n to the pe tit ion e r’ s c ou ns e l w ho didno t c a ll h e r a s a wi tne ss.

Patricia Col lier t estified that in 1998 she was acquainted with both the petitioner and Ms. Gentry . Ms. Coll ier re called a conversation wit h Ms. Gentry wher ein Ms. Gentry

disclosed that she had be en photocopying the petitioner’s pre scriptions at the library and taking them to the ph arm a c y to b e fi lle d. Ms. Col lie r s a id that sh e tol d th e pe tit ion e r a bo ut the c on ve rs a tio n p ri or to his tr ia l, b ut s he wa s n e ve r i nte rv ie we d b y tr ia l c ou ns e l.

Th e pe tit ion e r t oo k th e sta nda ndte sti fi e d th a t he c ur re ntl y wa s on pa

ro le fr om h is fraudulent presc ription drug co n victions and sentenc es. He was a sked about his ineff ective assistance of counse l claim rela ting to the ha ndwriting expert. The petitioner sa id that he hired Mr

. Reag an and that trial co u n s el was awar e that the e x pert ha d been r etained. A ccor ding to the petitioner, he r ece ived Mr. Rea g an’s r eport in ea rly 1998 sever al m onths prior to t rial. The pe titioner believed that Mr. Reag an had se parately mailed a copy of t he report t o trial counsel. The petitioner te sti fi e d th a t “ the da y

of tr ia l . .

. [he ] a sk e d [co un se l] abo ut To mmy [Re a g a n], and[co un se l] sa id that he ha dn ’t c a lle d him
, so [the pe tit ion e r] h a d [hi s] si ste r- in- la w g o o ut t o th e pa y ph on e a ndc a ll him, and he ca me on up that af ternoon.”-5- As to the issue surrounding Lisa Gentry , the petitioner e x plained by way of backg round that aft er h av i n g s u rgery in 1997, Ms. Gentry

stay ed with him as a c are g iver; she cooked for the petitioner and would take his pre scriptions to the pharmac y to have them f

illed. The petitioner d en i ed ev er living at 1700 B eac on L ane, w hich was the addre ss connec ted with the pr e sc ri pti on s. He a g re e d th a t e lic iti ng the fa c t that Ms. Ge ntry liv e d a t th a t a dd re ss w a s impo rt a nt, but he also maintained that other wa y s exi sted to prese nt that information. The pe titioner testified that Ms. Gentry

had an ex t en s i v e cr i minal history , but the state neither disclosed that history

nor
a d v i s e d h i mab o u tt h e p r o s e c u t i o n ’ s o f f e r o f c o o p e r a t i o n e x t e n d e d t o M s

. G e n tr y.

Th e pe tit ion e r’ s c omp la int abo ut c ou ns e l’ s failu re to lit ig a te the su pp re ssi on of ite ms seized pursuant to a sea

rch w arr an t p ro ved to be unr elated to the c riminal char g es. The c ourt inquired if any

of the e vidence had bee n used aga i n s t t h e p eti tioner in the criminal case, a nd the petitioner re sponded that none of it had. We discern from the pe titioner’s rema rks that his conce rn
wa s f oc us e d o n h a vin g his pr op e rt y re turne d to him

. The pe titioner’s next complaint dealt with counsel’s fa ilure to prese nt witnesses who could have testified favor ably for the petitioner that Ms. G entry had admitted to c opy ing and passing the pr e sc ri pti on s. Th e pe tit ion e r lis te d the na me s o f p e op le oth e r tha n Sh ir le y Ste wa rt a ndPa tr ic ia Colli er w ho would have g iven basica lly the same te stimonyas the two women who testified at the post-conviction hea

ring . The pe titioner also felt t hat t rial counse l had bee n ineffe ctive bec ause he

never discussed trial strate g ies with the petitioner.

Th e pe tit ion e r c on c lud e d his e xami natio n b y makin g brie f c omm e nts that prima ri ly focuse d on issues that had bee n raised in his motion for new trial. The state’s cross-e x amination was brief and develope d littl e re levant information.

The post-c onviction court took the m atter under advise ment and later issued a written memorandum a nd order

dismiss ing the petition. The court f ound that tri al co u n s el invested considera ble time in prepa

ring the ca se for

trial and on the appea l. T he court noted that discovery was obtaine d and all appr opriate motions wer e filed and heard, and it also noted that counse l’s trial tactics we re r easona

ble.
On appeal, t he petiti oner raises two issues. He asks this court to find that trial counsel rende red c onstitut i o n al l y i neff ective a ssistance by

calling Ms. Gentry

as a w itness and by

not interviewing or ca lling Patricia Colli er a s a witness. He further complains, with o u t s ee k i n g a specific reme dy , that the pos t-conviction court failed to consider or rule upon his alleg ation that the p r o s e c u t i o n h a d w i t h h e l d e v i d e n c e o f a n a g r e e m e n tb e t w e e n l a w e n f o r c e m e n ta n d M s

. G e n tr y.

I n post-conviction proc eeding s, the petitioner has the burden of proving by

clea r and convincing evidenc e the c laims raised. Te nn. Code Ann. § 40-30- 110(f) (2 0 0 3 ). On appea l, the lower court’s finding s of fa ct ar e re viewed de novo wi th a pr e su mpt ion of c or re c tne ss that may

on ly be overc ome if the evidenc e preponde rate s ag ainst those finding s. Fi e lds v . S tate , 40 S.W .3d 450, 458 (Tenn. 2001)

.-6- When a petitioner c halleng es t he effec tive assistance of counse l in a post-conviction proce eding , he has the burden of establishing (1) deficient re prese ntation and (2) pr ejudice r esulting from that def

iciency

. Strickland v. W

ashington
, 466 U.S. 668, 686, 104 S. Ct . 2052, 2064 (1984); Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975). Def icient re prese ntation occur s when c ounsel provides assistanc e that fa lls below the rang e of c ompetence demande d of att o rn ey s in criminal

case s. Ba nk

sto n v . S tate , 815 S.W. 2d 21 3, 21 5 (T e nn . Crim . App . 199 1)

. Pr e jud ic e is the re a so na

ble likelihood that, but for defic ient repr esenta tion, the outcome o f t h e procee dings w ould have be en differ ent. Ov e rto n v . S tat e , 874 S.W .2d 6, 11 (Tenn

. 1 994). On re view, ther e is a strong presumption of satisfac tory repr esenta tion. Ba rr v . S tat e , 910 S.W .2d 462, 464 (Tenn. Crim. App. 19 95 ). Be c a us e a

pe tit ion e r m us t e sta

bli sh bo th d e fi c ie nt r e pr e se ntatio n a ndpr e jud ic e the re fr om, relief may be denied when proof of either is deficient. Go ad v . S tat e , 938 S.W .2d 363, 370 (Tenn. 1996).

We qu ote the fu ll e xten t of the pe tit ion e r’ s arg ume nt on app e a l di re c te d to his c la im of ine ff e c tiv e a ssi sta nc e of

c ou ns e l:

T r i a l c o u n s e l c o u l d n o tr e m e m b e r i n t e r v i e w i n g L i s a

G e n tr y. Th e tr ia l judg e op ine d tha t she wa s [th e ] onl y dir e c t e vid e nc e a g a ins t [t he petitioner]. Clearly , if he ha d adequately prepa red f or the trial of this matter and had inter viewed he r he w o u l d have disc overe d her involvement with the Drug Task F orce and would not have c alled her

a s a de fe ns e wi tne ss.

Trial counse l neither interview[ed] nor called Patricia Collier

a s a wi tne ss i n th e ini tia l c ri min a l tria l. I f he ha d a de qu a te ly prepa red[,] her testimonywould have be en helpf ul in impeaching L is a Gentry . Further, Patricia Colli er’ s testimonywould have assisted the trier

of fa ct to have be tter knowledg e of who[] committed the crimes the [petiti oner] was a ccuse d of.

We b e g in w ith tr ia l c ou ns e l’ s dec isi on to ca ll M s. Ge ntry a s a wi tne ss. Re g ard le ss wh e the r t ri a l c ou ns e l re me mbe re d ha vin g int e rv ie we d Ms. Ge ntry pr e tr ia l, the pe tit ion e r s pe c if ic a lly

rec alled and so te stified, “I know [counsel] went and interviewe d her, a nd he aske d me the day of court should he use her, a nd I told him Isaid, You’r e my lawy er, use y our opinion.” F urthermor e, the pe tit ion e r t e sti fi e d th a t he a ndhis a tto rn e y ha d d e fi nit e ly

dis c us se d c a lli ng Ms. Ge ntry a s a witness. The pe titioner said that h e “under[stood] the state ha d subpoenae d her, too, a nd then we subpoenae d her, ma inly

over the addre ss on there a nd to present he r police r ecor d.”

Th e pe tit ion e r f

a ils to e xpla in wh y fo re kn ow le dg e of Ms. Ge ntry ’s inv olv e me nt w ith the Drug Task F orce would have c hang ed the de cis i o n t o call her as a de fense witness. The petitioner testified that one of the re asons Ms. Gentry was c alled as a

wit n es s wa s t o “p resent her police re cord.” Her

involvement with the Drug Task For ce would have served the same or a simil ar purpose in putting f

orth her police rec ord. To be sure , in hindsight the dec ision to call Ms. Gentry-7-

a s a de fe ns e wi tne ss c re a te d a wi nd fa ll fo r the state in bo lst e ri ng its c a se , bu t a n in fo rm e d, re a so na ble tactica l decision made a fter c onsultation with t he client doe s not in thi s case rise to the leve l of ineffe ctive assistanc e of c ounsel afte r the tac tic “bac kfires,” so to speak.

As for tria l counsel’s fail ure to c all Patricia Collier, the pe titioner arg ues that her testimonywould have be en helpf ul in i mpeac hing L

isa Gentry . I nasmuch a s the petitioner complains, in the first instance, that counsel never should ha ve called Ms. G entry as a witness, we fail to g ra sp the log ic of his c omp la int re la te d to Ms. Col lie r. I n a dd iti on , e ve n if the failu re to c a ll Ms. Coll ier wa s somehow profe ssionally unrea sonable, the pe titioner has fa iled to make his case for prejudice resulting from counse l’s actions.

Wit hout question, M s

. Ge ntry ’s testimony was de vastating for the de fense . Her te sti mon y , h ow e ve r, wa s n ot the on ly e vid e nc e lin kin g the pe tit ion e r t o th e pr e sc ri pti on s. I t is , in our opinion, an over statement to say that the state’s c ase r ose or f ell on Ms. Gentry ’s testimony . At the origi n al t ri al , the state pre sented testimony from Steve Rippetoe, the owner and pharmacist at Ho wa rd ’s ph arm a c y . T he state e lic ite d fr om Mr

. Rip pe toe that the pe tit ion e r p e rs on a lly c a me int o the pharmacy

for a bout eig ht months t o have his p re s cr i p tion refilled. Mr. Rippetoe sa id that the

rea son he re membere d the petitioner wa s that the petitioner alway s talked about the g ood pharma cy price s and about Mr. Rippetoe’ s mother using the petitioner’s pr operty to sell flea mar ket items. Mr. Rippetoe had no re coll ec t i o n of any one else ever coming in and picking up presc riptions for the petitioner or bringing in a pre scription to be filled.

Robert Cantwell, a pharma cist with Minnis Drug Store, also testified for th e st ate. Mr. Cantwell wa s persona lly acqua inted with the petitioner and r eca lled him coming in thep h a rmacy to ge t prescriptions fill ed.

I n s umm ary , th e pe tit ion e r h a s fa ile d to carry his bu rd e n to sh ow e nti tle me nt t o p os tc on vic tio n r e lie f b a se d o n in e ff e c tiv e a ssi sta nc e of

c ou ns e l.

Th e oth e r i ssu e raise d b y the pe tit ion e r i s th a t th e po st- c on vic tio n c ou rt faile d to addre ss all of the issues t hat he raised. Specif ically , he complains that the c ourt overlooke d his due proce ss claim reg arding the state’s f ailure to disclose th e o ff

er ma de to Ms. Gentry

to postpone

se rv ic e of he r s e nte nc e a s lon g a s sh e c on tin ue d to wo rk wi th on e of the la w e nf or c e me nt o ff

ic e rs

.
The petitioner is c orre ct that the court did not specifically addre ss his claim that the state withheld exculpatory evidenc e. The post-conviction court’s order does re fer ence Ms. Gentry ’s cooper ation with the Drug Task For ce “in exchang e for a plea ag ree ment in another c ase,” but it does

no t c on sid e r the me ri ts o f the c la im. I n o ur op ini on , th is clai m do es no t ent itl e the pe tit ion e r t o relief

. The duty

to dis cl o s e exculpatory

evidenc e extends to all “favor able information” irrespe ctive of w hether the evidence is admissible at trial. State v. Robinson , 146 S.W .3d 469, 512 (Tenn. 2004) ; J

oh ns on v . S tat e , 3 8 S. W.3 d 5 2, 56 (T e nn . 2 00 1)

. Th e pr os e c uti on ’s du ty to d isc los e-8-

Brady materia l also applies t o evidenc e affec ting the cre dibilit y of a g overnme nt witness, including

e v i d e n c e o f a n y a g r e e m e n t o r p r o m i s e o f l e n i e n c y g i v e n t o t h e w i t n e s s i n e xc h a n g e fo r f a vo rable testimonyag ainst an ac cused. Johnson
, 38 S.W .3d at 56. Althoug h Brady do e s n ot r e qu ir e the state to investigate for the defe ndant, i t does burden the prosecution with the responsibilityof disclosing statements of witnesse s favor able to the defe nse. State v. Reynolds , 671 S.W .2d 854, 856 (Tenn. Crim. App. 1984). Howe ver, this duty does not extend to information that the defe nse alre ady possesses, or is able to obtain, or to information not in the pos session or control of the prosec ution or anothe r g overnme ntal ag ency

. Sta te v . M ar sh all
, 845 S.W .2d 228, 233 (Tenn. Crim. App. 1992)

.

I n order to prove a

due proc ess violation under Brady , the def endant must show the state suppre ssed “m at eria l” information. Sta te v . E dg in , 902 S.W .2d 387, 389 (Tenn. 1995)

. Undisclosed information is m aterial when “there is a rea sonable proba bilitythat, had the e vidence been disc losed to the defe nse, the re sult of the proceeding would have be en diffe rent.” Id . at 390. To establish materia lity , an ac cused is not re quired to demonstra te “b y a pre pondera nce that disclosure of the suppressed e vidence would have resulted ultimately in the defe ndant’s ac quittal.” Kyles v. W

hitley , 514 U.S. 419, 434, 115 S. Ct . 1555, 1565-66 (1995) . There fore , “[t] he question is not whether the de fenda nt would more likely than not have r ece ived a diff ere nt verdict with the evidenc e, but whethe r in its absence he rec eived a fair trial, understood as a

trial resulting in a ver dict worthy of conf idence .” Id ., 115 S. Ct . at 1566.

I n this case, the only

evidenc e in t he re cord c onsists of the letter sent by Ms. Gentry ’s counsel that c ommunicated an offer by the district attorney g ener al to postpone serving her se ntence as long as she continued to w ork for one of the law enfor ceme nt of fice rs and that advised Ms. Ge ntry that the district at t o rney

g ener al would not “g o lower tha n 11 months and 29 day s.” The le tter conclude s by

instructing Ms. Ge ntry

to contact c ounsel immediately

.
There is no evidence in the rec ord whether Ms. Gentry acc epted the offe r. Also, the

rec ord fa ils to di sclose the nature of the char g e for which the state was offe ring 11 months and 29 day s and for

which the state was off

ering to postpone service

. The re cord, in other words, does not establish that an ag ree ment exis ted betwe en the state and Ms. Gentry . Furthermore , nothing ties a ny alleg ed ag ree ment or promise of leniency to pr oviding favor able testimony ag ainst t h e p etitioner. I ndeed, the state did not call Ms. Gentry as a w itness. Wi thout more, we a re unpe rsuade d that the petitioner’s due proce ss claim merits relief

.

F or a ll the fo re g oin g re a sons , we affirm th e dis mis sa l of the pe tit ion fo r p os tconviction re lief.

___________________________________ J AMES CURW OOD WI TT, J R., J UDGE