IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 17, 2016

DALTON B. LISTER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Bradley County 

No. 14-CR-458 Andrew Mark Freiburg, Judge

No. E2015-01325-CCA-R3-PC – Filed April 27, 2016

The Petitioner, Dalton B. Lister, appeals the Bradley County Criminal Court‟s denial 

of his petition for post-conviction relief from his convictions for first degree felony murder, 

attempt to commit aggravated robbery, and conspiracy to commit aggravated robbery and his 

effective life sentence. The Petitioner contends that the State destroyed evidence, withheld 

exculpatory evidence, and concealed the existence of an agreement with a codefendant, and 

that the cumulative effect of the misconduct deprived him of his constitutional right to a fair 

trial. We affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

D. Mitchell Bryant, Athens, Tennessee, for the appellant, Dalton B. Lister. 

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel;

Stephen Crump, District Attorney General; and Andrew D. Watts, Assistant District Attorney 

General, for the appellee, State of Tennessee.

OPINION

This case arises from the December 22, 2004 attempted robbery of Julius “K. C.” 

Shapley and Beto Villalobos and the shooting death of Mr. Shapley. After a jury trial, the 

Petitioner was convicted of first degree felony murder, attempt to commit aggravated 

robbery, and conspiracy to commit aggravated robbery and sentenced to life in prison. 

Because trial counsel failed to file a timely motion for a new trial, all issues but sufficiency 

of the evidence were waived in the direct appeal of the Petitioner‟s convictions, and this 

court affirmed the convictions. See State v. Dalton Lister, No. E2007-00524-CCA-MR3-CD, 
2

2009 WL 1850882 (Tenn. Crim. App. June 29, 2009) ) (“Lister I”), perm. app. denied (Tenn. 

Oct. 19, 2009). The Petitioner sought post-conviction relief on the ground that he received

the ineffective assistance of counsel relative to counsel‟s failure to file a timely motion for a 

new trial. The post-conviction court granted the Petitioner‟s delayed appeal, the Petitioner 

filed a second motion for a new trial, and the court denied his motion. See State v. Dalton 

Lister, No. E2012-00213-CCA-R3-CD, 2013 WL 3717727, at *1 (Tenn. Crim. App. July 12, 

2013) (“Lister II”), perm. app. denied (Tenn. Dec. 26, 2013). 

The Petitioner again appealed, alleging that the evidence was insufficient to sustain 

his convictions, that the trial court erred by (1) admitting the Petitioner‟s statement to police, 

(2) not requiring the State to produce Detective Felton‟s statement to the Tennessee Bureau 

of Investigation (TBI), and (3) not allowing the Petitioner to cross-examine codefendant 

Richard Jerger regarding codefendant Jerger‟s unrelated pending charges. This court 

affirmed the Petitioner‟s convictions. See id. On September 14, 2014, the Petitioner filed the 

instant petition for post-conviction relief, arguing that his right to a fair trial was violated by 

the cumulative effect of three instances of prosecutorial misconduct. 

Post-Conviction Proceedings

At the post-conviction hearing, Kristie Luffman-Minor, the lead prosecutor at the 

Petitioner‟s trial, testified that she advised law enforcement at the crime scene, reviewed the 

file prior to the grand jury proceedings, participated in the preliminary hearing, argued 

pretrial motions, and extended plea offers to the codefendants. She said that on the evening 

of the murder, the police conducted a video-recorded interview with the Petitioner. She said 

that the Petitioner did not undergo a polygraph examination, although codefendant Tony 

Kincaid underwent a polygraph examination. Ms. Luffman-Minor stated that the Petitioner 

was interviewed a second time, that the recording of the second interview was misplaced, and 

that the recording was subsequently recovered. 

Ms. Luffman-Minor testified that she never spoke directly to codefendant Jerger but 

instead spoke to codefendant Jerger‟s defense counsel. She stated that she and counsel never 

discussed codefendant Jerger‟s testimony and that she told counsel she would “make no 

deals” with codefendant Jerger in exchange for his testimony. Ms. Luffman-Minor said that 

codefendant Jerger‟s and the Petitioner‟s cases were severed for trial and that codefendant

Jerger testified for the State against the Petitioner and the other codefendants. Ms. LuffmanMinor stated that after the severance, she and counsel discussed codefendant Jerger‟s 

testifying but that they did not discuss codefendant Jerger‟s statement to the police or the 

questions codefendant Jerger would be asked at the Petitioner‟s trial. Ms. Luffman-Minor 

said that generally, she prepared witnesses before a trial but that codefendant Jerger was 

“unique” because he had his own experienced attorney, “so I thought Mr. Jerger was 
3

probably in good hands all the way around.” She said that codefendant Jerger “was willing 

to testify on his own, I mean, with no offer in place. That being said, it seemed safer from 

the State‟s position to let his own attorney advise him as to what he should do[.]” Ms. 

Luffman-Minor stated that to her knowledge, no one at the District Attorney‟s Office 

interviewed codefendant Jerger in anticipation of the Petitioner‟s trial. She said that the

Defendant and his codefendants had complete discovery, including codefendant Jerger‟s 

prior statements. 

Ms. Luffman-Minor testified that then-Assistant District Attorney Stephen Crump1

conducted codefendant Jerger‟s direct examination at the trial. She said that to her 

knowledge, no one in her office spoke to codefendant Heather Massengill about testifying at 

the trial and that codefendant Massengill‟s defense was “very much aligned” with that of her 

codefendants. Although Ms. Luffman-Minor did not recall a discovery issue relative to 

providing criminal histories of State witnesses, she would not dispute that an issue existed. 

She noted that many discovery disputes arose during the case. She said that she did not 

remember a motion hearing regarding the production of codefendant Jerger‟s criminal 

history. 

After reviewing the hearing transcript on the motion to compel the production of 

codefendant Jerger‟s criminal history, Ms. Luffman-Minor testified that she recalled the

discovery dispute and that her office requested a National Crime Information Center (NCIC) 

report on codefendant Jerger on December 30, 2004. When asked why the Petitioner‟s trial 

counsel was not provided with a copy of the NCIC report, Ms. Luffman-Minor said, “I don‟t 

think that Mr. Jerger [was] one of the witnesses that we were referring to at the court 

hearing.” Ms. Luffman-Minor stated that she believed the parties discussed Beto Villalobos, 

the victim who survived the shooting, and other witnesses. She agreed that counsel‟s motion 

referred to the criminal histories of all of the State‟s anticipated witnesses but said that at the 

motion hearing, counsel stated the motion pertained only to a “handful” of witnesses. Ms. 

Luffman-Minor said that the transcript did not referspecifically to Mr. Jerger. Ms. LuffmanMinor stated that after she spoke to counsel off the record, she concluded that counsel‟s 

purpose in requesting the criminal histories was to undermine the credibility of the victims, 

who were drug dealers, and a witness, who was a prostitute. Ms. Luffman-Minor did not 

believe counsel intended to use the criminal histories to impeach codefendant Jerger‟s 

credibility.

 

1 At the time of the Petitioner‟s trial, Stephen Crump was an Assistant District Attorney General. At the time 

of the post-conviction hearing, he was the District Attorney General for the 10th Judicial District. For 

simplicity, we will refer to him as “General Crump.”
4

Ms. Luffman-Minor testified she disputed trial counsel‟s assertion that counsel never 

had the opportunity to review codefendant Jerger‟s criminal history. Ms. Luffman-Minor 

said that her office had an open file discovery policy, that she and counsel reviewed the 

prosecution‟s file multiple times, and that she asked counsel whether counsel wanted 

anything from the file. Ms. Luffman-Minor stated that on several occasions, the detectives 

working on the case brought their files to the District Attorney‟s Office for counsel‟s review. 

Ms. Luffman-Minor said that the discovery materials were so voluminous that she organized 

them in three-ring binders.

On cross-examination, Ms. Luffman-Minor testified that no agreement existed

between the prosecution and codefendantJerger at the time codefendant Jerger testified at the 

Petitioner‟s trial. She said she knew the facts of codefendant Jerger‟s case because she was 

prepared to prosecute the case. She did not believe codefendant Jerger was told that if he 

testified truthfully, the State would give him “consideration down the road.” She said she 

“was very adamant [that] the State would offer no deals; that [codefendant Jerger] could do 

the right thing for the sake of doing the right thing, but there would be no deal.” She said 

that General Crump became involved in the case near the time of the Petitioner‟s trial and 

that she did not recall General Crump‟sspeaking to codefendantJerger‟s counsel. She stated 

that generally, a codefendant‟s testifying truthfully was a factor to be considered in 

subsequent negotiations with the codefendant. Ms. Luffman-Minor said that she did not 

participate in the final negotiated settlement with codefendant Jerger because she left the 

District Attorney‟s Office for a reason unrelated to the case. 

Codefendant Jerger‟s defense counsel testified that he obtained a severance of

codefendant Jerger‟s trial from that of the codefendants. Counselsaid he spoke with General

Crump before the Petitioner‟s trial regarding codefendant Jerger‟s trial testimony. Counsel

stated that although he did not remember the substance of the conversation, he remembered 

the “absence of an agreement.” Counsel said that although codefendant Jerger had been 

charged with first degree felony murder, the proof against codefendant Jerger was “almost 

non-existent” and that codefendant Jerger‟s being held on unrelated charges in another 

county led to “the type of agreement that we reached regarding his testimony.” Counsel 

stated that the agreement was a “no deal deal . . . . [Codefendant Jerger] would testify for the 

State and the only promise that they would make is that they would consider his cooperation 

in further evaluation of his case after he testified.” Counsel said that when codefendant 

Jerger testified, counsel was surprised because codefendant Jerger admitted to previously 

undisclosed “things that he was involved in.” Counsel acknowledged that codefendant 

Jerger‟s trial testimony differed from codefendant Jerger‟s three previous police statements

and said that counsel did not know which account was true. Counsel did not remember how 

long codefendant Jerger had been in confinement at the time he pleaded guilty.
5

Codefendant Jerger‟s plea agreement, waiver of trial by jury, waiver of appeal, and 

judgments of conviction were received as exhibits. Codefendant Jerger‟s defense counsel

testified that he signed each document, that codefendant Jerger initially was charged with 

first degree felony murder, and that codefendantJerger pleaded guilty to reckless homicide, a 

Class D felony, and to conspiracy to commit aggravated robbery, a Class C felony. Counsel

stated that codefendant Jerger received an effective six-year sentence and was released on 

“time served” and that the result was a “pretty good reduction.” Counsel agreed codefendant

Jerger testified at the Petitioner‟s trial that a religious conversion led to his desire to testify. 

Counsel said that he and codefendant Jerger discussed his possible range of punishment as 

originally charged.

On cross-examination, codefendant Jerger‟s defense counsel testified that an 

“understanding” existed that if codefendant Jerger testified truthfully, the State would 

consider his cooperation. Counsel said that codefendant Jerger‟s trial testimony relative to 

the existence of an agreement with the State was accurate. On redirect examination, counsel 

testified that codefendant Jerger was mistaken when he said counsel never reviewed the 

potential sentence codefendant Jerger faced at a trial. 

District Attorney General Stephen Crump, the third prosecutor in the Petitioner‟s trial, 

testified that Ms. Luffman-Minor asked him to participate in the case near the Petitioner‟s 

trial date because John Williams, the second-chair prosecutor, was “a relatively young 

lawyer.” General Crump said that he conducted codefendantJerger‟s direct examination. He

did not remember whether codefendant Jerger‟s case had been severed when General Crump 

began working on the Petitioner‟s case. General Crump said that discovery problems existed

because the Petitioner‟s counsel did not receive witness statements, law enforcement never 

provided the statements at issue to the District Attorney‟s Office, and Detective Felton found 

the missing statements in his desk drawer. General Crump did not remember whether 

Detective Felton threw away compact discs containing the statements but knew “there was 

some issue with Detective Felton.” General Crump did not remember whether codefendant

Jerger‟s testimony was important to the State‟s case, but he agreed that codefendant Jerger‟s 

testimony would have been important if it contained information relative to planning and 

preparation for the crime. General Crump said that to his knowledge, the prosecutors and the 

codefendants did not discuss severing the cases for trial and testifying for the State but that 

he was only involved “right before trial.” 

General Crump said that generally, when he questioned an informant at a trial, he did 

not prepare the informant to testify. He stated that he would ask the informant‟s attorney to 

provide General Crump with the substance of the anticipated testimony and to prepare the 

informant for a trial. General Crump remembered generally speaking with codefendant 

Jerger‟s defense counsel regarding codefendant Jerger‟s testimony. He did not remember 
6

whether codefendant Jerger had pending charges in another jurisdiction at the time of the 

Petitioner‟s trial. He said that no agreement existed with codefendant Jerger and that his 

practice was not to enter into pretrial agreements in exchange for testimony because it gave a

witness incentive to embellish and “undercut . . . already . . . problematic testimony.” 

General Crump said that generally, he determined whether the State would offer 

consideration for the testimony based upon statements the witness made to law enforcement 

or to counsel. He said that consideration meant, “At some point in time, because of your 

cooperation . . . [we] will take that into account in sentencing or in our recommendation.”

General Crump testified that it was not his practice before a trial to discuss with a 

witness the possibility of consideration after testifying because “everybody in the system 

understands that if you‟re [going to] testify on behalf of the State . . . there will be some 

consideration of that given, either by a Court or by the District Attorney‟s Office.” General 

Crump believed that he told codefendant Jerger‟s defense counsel and codefendant Jerger, 

“In the event that you do testify truthfully . . . , at some point in time that will be evaluated 

when we make a recommendation as to a case that you may have in front of us.” General 

Crump agreed that codefendant Jerger pleaded guilty to a significantly reduced charge and 

was sentenced to time served. He said that it was “unthinkable” for a defendant charged with 

first degree felony murder to be released on time served based solely upon testimony in 

another case and that “there [had] to be some other reason for that, and I don‟t know if it‟s a 

proof issue[.]” He did not remember a meeting with Ms. Luffman-Minor, codefendant

Jerger, and counsel. General Crump said he did not extend a plea offer to codefendant

Massengill and that any offers would have come from Ms. Luffman-Minor.

On cross-examination, General Crump testified that to his knowledge, no agreement 

existed between the State and codefendantJerger “as to outcome or any favorable treatment.” 

General Crump said that to his knowledge, codefendant Jerger testified truthfully at the 

Petitioner‟s trial. General Crump stated that had he known or thought a witness testified 

untruthfully, “I would have dealt with it then.”

An audio recording of codefendant Jerger‟s guilty plea hearing was played for the 

post-conviction court. In relevant part, the prosecutor asked the trial court to accept a plea to 

reckless homicide and recommended a four-year sentence suspended to time served. 

Relative to codefendant Jerger‟s testifying at the Petitioner‟s trial, the prosecutor told the 

court, “Mr. Jerger . . . was truthful and he cooperated with the State, kind of an unwritten, 

[in]formal agreement was that in exchange for that cooperation, then the State would do all 

that it could to help him in the State‟s plea.” 

Codefendant Massengill‟s judgments of conviction and codefendant Kincaid‟s plea 

agreement, waiver of trial by jury, waiver of appeal, and judgments of conviction were 
7

received as exhibits. Codefendant Massengill was convicted of facilitation of first degree 

murder, facilitation of attempt to commit aggravated robbery, and conspiracy to commit 

aggravated robbery, and she was sentenced to seventeen years. Codefendant Kincaid

pleaded guilty to attempted aggravated robbery and facilitation of second degree murder, and 

he was sentenced to twenty-two years.

The Petitioner testified that he was serving a life sentence and that he had become a 

prison trusty and barber and that he worked in the segregation unit. He said that he had not 

been disciplined during the ten years he had been in confinement. The Petitioner said

codefendant Jerger‟s trial testimony was false. The Petitioner admitted he went to the 

victim‟s hotel because he was angry, drunk, and wanted to fight, but he denied a robbery 

occurred. Relative to codefendant Jerger‟s testimony that the Petitioner attempted to obtain a 

gun before the robbery, the Petitioner said that he sold drugs and had guns and that obtaining

another gun was unnecessary. The Petitioner stated that he was a different person at the time 

of the shooting. The Petitioner characterized the incident leading to the victim‟s death as “a 

fight that got completely out of hand.”

The Petitioner testified that he lived with Mr. Villalobos in Texas, that Mr. Villalobos 

was arrested, the Petitioner visited Mr. Villalobos weekly in jail, and that the Petitioner 

allowed Mr. Villalobos‟s pregnant girlfriend to stay at the Petitioner‟s home while Mr. 

Villalobos was in jail. The Petitioner stated that after Mr. Villalobos‟s release from jail, the 

Petitioner gave Mr. Villalobos a car, “got him on his feet,” and helped him find housing. The 

Petitioner said that he moved to Tennessee to get away from “everything and everybody to 

start all over” but that Mr. Villalobos and the victim followed him.

The Petitioner testified that he and the victim were childhood best friends and that if 

the Petitioner had robbed the victim, the Petitioner would never have been able to return 

home to Texas. The Petitioner said that when the victim and Mr. Villalobos came to 

Tennessee, the Petitioner told them, “Look, I‟m through, I‟m done, take it back home,” and 

the three of them argued on the telephone for three or four days. The Petitioner said that in 

the course of these conversations, Mr. Villalobos made “a statement toward me and my 

daughter,” that the Petitioner saw red, and that the Petitioner went to Mr. Villalobos‟s hotel

room to fight him. The Petitioner stated that he asked codefendant Kincaid to accompany 

him “just to have [the Petitioner‟s] back” and that he told codefendant Kincaid not to carry a 

gun. 

The Petitioner testified that trial counsel told him codefendant Massengill had been 

offered a “deal with the devil,” which consisted of probation in exchange for severing her 

case for trial and testifying against the Petitioner. He said that codefendant Massengill

declined the offer because she refused to lie about the events leading to the victim‟s death. 
8

The Petitioner stated that codefendant Jerger testified against him after accepting the same 

offer extended to codefendant Massengill. The Petitioner said that codefendant Jerger was 

released three days after the Petitioner was convicted and that it was evident codefendant 

Jerger had reached a plea agreement with the State. The Petitioner noted codefendant Jerger 

had thirteen felony convictions and had been to prison several times. The Petitioner said that 

he knew codefendant Jerger and the State had an agreement but could not prove it at the trial.

Relative to the compact discs Detective Felton threw away, the Petitioner testified that 

“they can say all day long that it was on a computer . . . Well, what else did this man do? . . . 

What did he not get caught doing[?]” The Petitioner said that he believed Detective Felton 

acted in bad faith because Detective Felton admitted in court he intentionally destroyed the 

discs. The Petitioner stated that he was the only defendant still serving a prison sentence.

Upon examination by the post-conviction court, the Petitioner testified that Michelle 

Bunting lived with him and that on the evening of the victim‟s death, the victim asked the 

Petitioner if he “[had] a girl you all can bring over and drop off[.]” The Petitioner said that 

Ms. Bunting volunteered to go to the victim‟s hotel and that the Petitioner did not know she 

was a prostitute before that evening. The Petitioner stated that he told Ms. Bunting she could 

not return to his house. The Petitioner said that he and Mr. Villalobos were arguing during 

this time but that the Petitioner and the victim remained friendly. The Petitioner stated Ms. 

Bunting testified that she was “excused” from the hotel room before the fight began and that 

no conspiracy to rob the victim existed. The Petitioner said her testimony conflicted with 

codefendant Jerger‟s testimony. The Petitioner said he was frustrated that codefendant

Kincaid killed the victim and received a twenty-two-year sentence, that codefendant

Massengill received a seventeen-year sentence, that codefendant Jerger received six years‟

probation after time served, and that the Petitioner received a life sentence. The Petitioner 

stated that he regretted his decision not to testify because the jury only heard “their side of the

story.” On cross-examination, the Petitioner testified that he had no proof, only his word,

that codefendant Jerger lied during his trial testimony.

The post-conviction court denied relief. The court concluded that all nonconstitutional claims raised in the Petitioner‟s pro se petition had been previously litigated or 

waived. The court also found that several constitutional claims, including an ineffective 

assistance claim, were knowingly and voluntarily waived after post-conviction counsel was 

appointed. The court credited the testimony of Ms. Luffman-Minor, codefendant Jerger‟s 

trial counsel, and General Crump, finding that their testimony was “supported by 

corroboration of the record of this case, the other testimony of fellow post-conviction 

witnesses, and/or deeply rooted in circumstantial logic.” The court also credited the

Petitioner‟s testimony, finding that the Petitioner “was articulate, genuine, and sincere 

throughout his testimony.” The court found that the Petitioner admitted many of his claims 
9

were resolved by the jury‟s verdict and that the Petitioner was frustrated by his life sentence

because the Petitioner did not fire the gun resulting in the victim‟s death. The court noted the 

“tortured” procedural history of the case. 

Relative to codefendant Jerger‟s alleged false testimony, the post-conviction court 

determined that the Petitioner did not offer clear and convincing proof that codefendant 

Jerger testified falsely. The court found that codefendantJerger testified at the trial about the 

events leading to the victim‟s death and about codefendant Jerger‟s religious conversion as 

the motivation for his testimony. The court also found that codefendantJerger was subject to 

a thorough cross-examination at the trial, that codefendant Jerger was impeached with “a 

mountain of . . . evidence,” including multiple prior convictions, prior bad acts, and prior 

inconsistent statements, and that any issues of codefendant Jerger‟s credibility were resolved 

by the jury‟s verdicts. The court determined that the jury, the trial court, and the Tennessee

Court of Criminal Appeals had previously considered this issue and that the Petitioner had 

presented no new allegations or proof.

Relative to the alleged plea agreement between codefendantJerger and the State at the 

time of the trial, the post-conviction court found that Ms. Luffman-Minor testified no

agreement for leniency existed and that Ms. Luffman-Minor and codefendant Jerger did not 

discuss such an agreement. The court also found that codefendant Jerger‟s defense counsel 

denied having a conversation with the prosecutors about an agreement. The court found that 

General Crump‟s involvement in the case was limited and that General Crump, counsel, and

codefendant Jerger never discussed an agreement. The court found that the other 

codefendants‟s sentences were comparatively favorable. The court noted that codefendant

Jerger was likely eligible to be sentenced as a career criminal but that he was sentenced as a 

Range I, standard offender. The court concluded that the “disparate nature of the sentencing 

of the four [codefendants] does not, in itself, counter the uncontroverted, direct testimony of 

all the post-conviction witnesses that no agreement for leniency ever existed.” The court 

noted that codefendant Jerger testified at the trial as to the lack of an agreement with the 

State. 

The post-conviction court determined that the codefendants‟s convictions must be 

considered in light of the jury‟s overall verdict. The court found that the jury assigned 

culpability to each of the three codefendants when it convicted the codefendants of separate 

offenses. Relative to codefendant Jerger‟s guilty plea hearing, the court found that Assistant 

District Attorney Williams “indicated the existence” of an unwritten and informal agreement

in which the State “would do all they could” to help codefendant Jerger in exchange for his 

cooperation. The court found that the technical record from the trial showed Mr. Williams‟s 

involvement in the Petitioner‟s case was “only tangential,” and he was not “actively 

engaged” in the prosecution. The court found that Mr. Williams‟s basis of knowledge 
10

regarding any agreement was questionable. The court determined that Mr. Williams‟s 

phrasing was “more a product to convince the trial court to accept a probationary plea in a 

homicide case rather than a proclamation of fact binding the prosecution of this case in its 

entirety.” The post-conviction court found that this conclusion was supported by the postconviction witnesses‟s testimony that no agreement existed. The court noted codefendant 

Jerger‟s defense counsel‟s testimony that codefendantJerger‟s “minimal involvement” in the 

victim‟s death “would have precluded any successful prosecution” and found that the 

reduction in codefendant Jerger‟s charges was more indicative of the lack of proof than the 

existence of an agreement. The court found counsel‟s testimony was consistent with Ms. 

Luffman-Minor‟s testimony that given counsel‟s professional experience and the lack of 

proof, an absence of pretrial negotiations was not unusual. The court noted that codefendant

Jerger‟s testimony was consistent with a previous statement he made to law enforcement and 

with codefendant Jerger‟s voluntary cooperation with law enforcement in the early stages of 

the investigation.

Relative to the Petitioner‟s prosecutorial misconduct claim regarding the withholding 

of criminal histories and to the presentation of codefendantJerger‟s false testimony, the postconviction court found that the availability of criminal history information was “a point of 

contention” throughout the case, that trial counsel filed motions to compel the disclosure of 

the criminal history reports, that the State initially claimed it was prohibited from running 

criminal background checks on prosecution witnesses, that the trial court found the State‟s 

position was not supported by law, and that the State later claimed it could not disclose 

criminal history documents to a defense attorney. 

The post-conviction court found that the trial court ordered the disclosure of criminal 

history reports of “fact witnesses the State intended to rely upon” but that the order was 

inarticulate. The post-conviction court also found that after a second hearing, the trial court 

ordered the State to make a reasonable, good faith inquiry into the criminal histories of its 

witnesses to uncover potentially exculpatory information but that trial counsel “made a later, 

unrefuted reference” she never received codefendantJerger‟s full criminal history. The postconviction court concluded that the State‟s position relative to the disclosure of the criminal 

history documents was “untenable.” The post-conviction court noted that “disclosing 

exculpatory information as required by law does not necessarily entail providing defense 

counsel with the criminal history documents which remain confidential pursuant to a user 

licensing agreement.” However, the court later noted that “[c]onstitutional obligations 

override any user agreement into which the district attorney‟s office may have entered.” The 

court found that the State obtained codefendant Jerger‟s criminal history on December 30, 

2004, and that the State had possession of it for the entirety of the trial. 
11

The post-conviction court concluded that the State‟s failure to disclose the NCIC 

report, however, was not material because the only possible unknown fact contained in the 

NCIC report was codefendant Jerger‟s arrest in Johnson City on unrelated charges, which 

information trial counsel obtained through other means before the trial. The court found that 

because counsel knew of the other charges, she knew all potentially impeaching information 

relative to codefendant Jerger. The court concluded that in light of the defense‟s extensive 

and impeaching cross-examination of codefendant Jerger, the failure to disclose codefendant 

Jerger‟s full criminal history was not material and that no error existed because the Petitioner 

had not discovered new evidence unknown to counsel at the time of trial. Given that the 

information in the NCIC report was not material, the court concluded that no violation 

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), occurred. 

Relative to the prosecution‟s withholding Detective Felton‟s statement to the 

Tennessee Bureau of Investigation (TBI) regarding his destroying compact discs containing 

copies of witness statements, the post-conviction court found that the issue was “fully vetted 

and explored” by the trial court and the Tennessee Court of Criminal Appeals. The postconviction court found that the Petitioner did not prove the existence of a prior, memorialized 

witness statement that required disclosure. The court also found that the Petitioner did not 

request the post-conviction court to issue process to obtain such a statement. The court 

determined that Detective Felton was thoroughly cross-examined at the trial about the 

destruction of the discs and his subsequent demotion. The court noted that although 

Detective Felton‟s motives were “troubling,” the original digital recordings of the witness 

statements remained intact and were properly submitted to the jury. 

Relative to the cumulative effect of the errors, the court determined that no error

existed, and therefore, the cumulative effect of the incidents did not deprive the Petitioner of 

a fair trial. This appeal followed. 

The Petitioner contends that he was denied his constitutional right to a fair trial based 

upon the cumulative effect of three instances of prosecutorial misconduct. He argues that a 

law enforcement officer destroyed evidence, the prosecution withheld the criminal history 

report of codefendant Jerger, and the prosecution allowed codefendant Jerger to testify

falsely regarding an agreement for leniency with the State. The State responds that some of 

these issues were fully litigated in the appeal of the Petitioner‟s convictions and that the 

evidence does not preponderate against the post-conviction court‟s finding no harmful error 

occurred at the trial.

As a preliminary matter, we note that in the Petitioner‟s brief, post-conviction counsel 

framed the issue presented as follows: “The proof in this matter supported the proposition 

that the State and/or its agent, had committed one or more inappropriate acts, including the 
12

willful destruction of evidence and known presentation of perjured testimony, such that the 

cumulative effect of these acts denied [the Petitioner] a Constitutionally fair trial.” Counsel 

included an additional ground of prosecutorial misconduct, contending that the State

withheld the criminal history of codefendant Jerger. However, counsel cites no legal 

authority supporting his contentions and arguments. See T.R.A.P. 27(a)(7); Tenn. Crim. Ct. 

R. 10(b). Given the already tortured procedural history in this case, we will consider whether 

the Petitioner was denied his right to a fair trial.

Post-conviction relief is available “when the conviction or sentence is void or voidable 

because of the abridgement of any right guaranteed by the Constitution of Tennessee or the 

Constitution of the United States.” T.C.A. § 40-30-103 (2014). A petitioner has the burden 

of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f) 

(2014). A post-conviction court‟s findings of fact are binding on appeal, and this court must 

defer to them “unless the evidence in the record preponderates against those findings.” 

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-

57 (Tenn. 2001). A post-conviction court‟s application of law to its factual findings is 

subject to a de novo standard of review without a presumption of correctness. Fields, 40 

S.W.3d at 457-58. 

The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution and article I, section 8 of the Tennessee Constitution afford every criminal 

defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).

Prosecutorial Misconduct

a. Destruction of Evidence

The Petitioner contends that prosecutorial misconduct occurred when Detective Felton 

destroyed compact discs containing witness statements. The State responds that this issue 

was fully litigated in the appeal of the Petitioner‟s convictions and that consideration of the 

issue by this court is barred by Tennessee Code Annotated section 40-30-106(h) (2014), 

because the issue was previously determined by a court of competent jurisdiction. See Lister 

II, 2013 WL 3717727, at *4-5. 

In Lister II, this court considered whether the witness statements contained on the

compact discs should have been suppressed in light of Detective Felton‟s destroying them, 

not whether the effect of Detective Felton‟s actions deprived the Petitioner of a fair trial.

Tennessee Code Annotated section 40-30-106(g) states, “A ground for relief is waived if the 

petitioner personally or through an attorney failed to present it for determination in any 

proceeding before a court of competent jurisdiction in which the ground could have been 
13

presented” unless two circumstances inapplicable in this case exist. Because the Petitioner 

did not raise an issue related to whether Detective Felton‟s actions deprived him of his right 

to a fair trial in the appeal of his conviction, consideration of it is waived. 

We note, though, that the post-conviction court found, and this court‟s opinion in 

Lister II reflects, that the Petitioner obtained access to the witness statements in their entirety

before the trial, that Detective Felton testified at the Petitioner‟s trial regarding his destroying 

the compact discs, and that the Petitioner had the opportunity to cross-examine Detective 

Felton at the trial. Despite the Petitioner‟s expressed concern at the post-conviction hearing 

that Detective Felton may have engaged in undiscovered misconduct, the Petitioner did not 

present proof of any misconduct. As a result, Detective Felton‟s actions did not deprive the 

Petitioner of his right to a fair trial. The Petitioner is not entitled to relief on this basis.

b. Criminal History

The Petitioner also contends that his right to a fair trial was violated when the State 

withheld codefendant Jerger‟s NCIC criminal history report in violation of Brady v. 

Maryland. The State responds that the NCIC report was not material and therefore, no Brady

violation occurred.

Pursuant to constitutional due process jurisprudence, the State has a constitutional 

duty to furnish a defendant with exculpatory evidence pertaining to his guilt or lack thereof 

or to the potential punishment faced by a defendant. See Brady, 373 U.S. at 87. In order to 

show a due process violation pursuant to Brady, the defendant must prove by a 

preponderance of the evidence that (1) he requested the information, unless it is obviously 

exculpatory, (2) the State must have suppressed the information, (3) the information must be 

favorable to the accused, and (4) the information must be material. State v. Edgin, 902 

S.W.2d 387, 389 (Tenn. 1995). Favorable evidence includes that which “challenges the 

credibility of a key prosecution witness.” Johnson, 38 S.W.3d at 56-57 (internal quotation 

marks and citation omitted). Evidence that provides value for impeachment of a state‟s 

witness is within the purview of Brady. State v. Jackson, 444 S.W.3d 554 (Tenn. 2014); see 

United States v. Bagley, 473 U.S. 667, 767 (1985); Giglio v. United States, 405 U.S. 150, 154 

(1972). Evidence is material when “„there is a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been different.‟” 

Johnson, 38 S.W.3d at 58 (quoting Edgin, 902 S.W.2d at 390).

In Kyles v. Whitley, the Supreme Court observed:

[The] touchstone of materiality is a “reasonable probability” of a 

different result, and the adjective is important. The question is not whether the 
14

defendant would more likely than not have received a different verdict with the 

evidence, but whether in its absence he received a fair trial, understood as a 

trial resulting in a verdict worthy of confidence. A “reasonable probability” of 

a different result is accordingly shown when the government‟s evidentiary 

suppression “undermines confidence in the outcome of the trial.”

514 U.S. at 419, 434 (1995) (quoting Bagley, 473 U.S. at 678); see Jackson, 444 S.W.3d at 

595.

As a preliminary matter, we note that Tennessee Code Annotated section 40-30-106(g) 

states that a ground for relief is waived when the issue is not raised before a court of 

competent jurisdiction in which the issue could have been previously presented. Because the 

Petitioner did not raise an issue related to whether the prosecution‟s withholding the NCIC 

report deprived him of his right to a fair trial in the appeal of his conviction, consideration of 

it at this juncture is waived.

We note, though, that in the appeal of the Petitioner‟s convictions, this court addressed 

trial counsel‟s knowledge of codefendant Jerger‟s criminal history in its discussion of 

codefendant Jerger‟s cross-examination. We agree with the post-conviction court that the 

information contained in the NCIC report, as applied to this case, was impeachment evidence 

pursuant to Bagley, and that the State‟s justifications for withholding it were “untenable.” 

This court noted counsel was able to obtain the information contained in the NCIC report 

before the trial, which supports the post-conviction court‟s finding that counsel obtained all 

information in the NCIC report by other means before the trial. This court‟s opinion in Lister 

II reflects that “the jury was made aware that co-defendant Jerger was involved in an 

aggravated robbery in Johnson City [and] co-defendant Jerger‟slengthy criminal history[.]” 

2013 WL 3717727, at *6. The evidence does not preponderate against the post-conviction 

court‟s finding that counsel knew all the impeachment evidence contained in the NCIC report

before the trial. The Petitioner is not entitled to relief on this basis. 

c. Agreement between the State and Mr. Jerger

The Petitioner contends that his right to a fair trial was violated because the State 

failed to disclose the existence of an agreement for leniency with codefendant Jerger and

because codefendant Jerger gave perjured testimony at the trial regarding the agreement. The 

State responds that the Petitioner is not entitled to relief because he has not proven the 

existence of an agreement. 

As a preliminary matter, we note that Tennessee Code Annotated section 40-30-106(g) 

states that a ground for relief is waived when the issue is not raised before a court of 
15

competent jurisdiction in which the issue could have been previously presented. Because the 

Petitioner did not raise an issue in the direct appeal related to whether the State‟s failure to 

disclose the existence of an agreement for leniency with codefendant Jerger deprived him of 

his right to a fair trial in the appeal of his conviction, consideration of it is waived. 

We note, though, that this court‟s opinion in Lister II reflects codefendant Jerger 

testified he had no agreement with the state, which was consistent with post-conviction 

testimony of the prosecutors and codefendant Jerger‟s defense counsel and the postconviction court‟s finding that no agreement existed. Furthermore, the Petitioner testified at 

the post-conviction hearing that he had no proof codefendant Jerger lied at the trial. The 

Petitioner is not entitled to relief on this basis.

d. Cumulative Error

The Petitioner contends that the cumulative effect of the instances of prosecutorial 

misconduct deprived him of a fair trial. The State responds that the Petitioner has not proven 

prosecutorial misconduct. We agree with the State.

“The cumulative error doctrine exists to protect a criminal defendant‟s state and 

federal constitutional right to a fair trial.” State v. Herron, 461 S.W.3d 890, 909 (Tenn. 

2015) (citing State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010)). 

The cumulative error doctrine is a judicial recognition that there may be 

multiple errors committed in trial proceedings, each of which in isolation 

constitutes mere harmless error, but which when aggregated, have a 

cumulative effect on the proceedings so great as to require reversal in order to 

preserve a defendant‟s right to a fair trial. 

Hester, 324 S.W.3d at 76. This court applies cumulative error analysis when two or more 

errors existed during the trial court proceedings. Id. at 77. 

Because the Petitioner failed to establish the existence of any misconduct, we

conclude that no cumulative error existed. The Petitioner is not entitled to relief.

In consideration of the foregoing and the record as a whole, we affirm the judgment of 

the post-conviction court.

 

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ROBERT H. MONTGOMERY, JR., JUDGE