### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 20, 2002 Session
STATE OF TENN ESSEE v. COLIN REE D WELLS
Appeal from the Criminal Court for Knox County No. 70048A Mary Beth Leibowitz, Judge

No. E2001-02612-CCA-R3-CD December 6, 2002

The defendant, Colin Reed Wells, was convicted by a Knox County Criminal Court jury of carjacking (Class B felony ), robbe ry (Class C felony

), agg ravate d assault

(Class C felony), re sisting arrest (Class B misdemeanor) , violatio n of driver’s license law (Class B misdemeanor) , evading arrest (Class A mi sdemean or), eva ding ar rest (Cla ss D felony), and assault (Class A misdemeanor). Following his convictions, the trial court merged some convictions and imposed an eff ective sentence of 32 year s as a multiple offender in the Department of Correction. On appeal, he claims his carjacking conviction is infirm because the pr osecution failed to disclose exculpatory e vidence. Discern ing no e rror, we affirm. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.

J AMES C URW OOD W IT T , J R ., J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBER T W. W EDEMEYER , J., joined.

Richard C lark and

Russell Gr

eene, K noxville, Te

nnessee , for the

Appellan t, Colin Ree d Wells.

Paul G. Summers , Attorney Genera l & Repor ter; Eliza beth B. M arney , Assistan

t Attorne y General ; Randall E. Nichols, District Attorney Ge neral; and M arshaMitchell, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

The d efenda

nt’s convictions resulted from his actions on October 17, 1999. The state’s evid ence showed that the female victim of the car jacking and robbery

was sitting in her automobile

in the parking lot of a supermarket on Clinton Hig

hway in Knoxville. She was waiting for her male companion who was shoppingin the store, and she sat in the driver’s seat and had her
car engine idling. The defendant ope ned the passenger-side

door, entered the vehicle, and ordere d the victim to exit the car and to leave her purse on the seat. As she complied, she saw a female, who was the defendant’s sister and co-defe ndant, standing beside the driver’s door.-2- The defenda

nt drove awa y in the victim’s car, a nd at some point, police officers pursued the defendant. The assaultive and evading and resisting arrest offenses occ urred during the chase and ultimate apprehension of the defendant. After the defendant was apprehen ded, the arresting officers handed over the defe ndant to Knoxville Police Officer J.D. Brown, who transported the defendant back to the supermarket for a show-up identification by the victim. Afterward, Officer Brown transpor

ted the de fendant as well a s the co- defenda nt to jail. Duri ng both trips when the defendant was conf ined in th e rear com

partment of Officer Brown’s c ruiser, the cruiser’s video
camera was operating and recording the defendant’s conversation in which he asserted that he had been involved in a drug transaction with the victim and her boy friend.

The prosecu

tor did not discov er the e

xistence o f the vide otape unt il a few day s before trial. The defense reviewed the tape on Friday be

fore the trial be ga n o n t he fo ll ow in g W ed ne sd ay. The defenda

nt believ ed that the recor

ded conv ersation

supporte d the def

endant’ s claim at

trial tha t, although he took the victim’s car, he did not do so by carjacking.

The state moved the court to exclude the videotape from evidenc e. I

nitially , becau se the trial court determined that the content of the tape was hearsay and self-served the

defenda nt, it sustained the motion to exclude the tape from evidence. However, during the defendant’s case-inchief, the trial judge relented and allowed the de fendant and the co-defendant to introduce pe rtinent portions of the videotape. Thus, neither the exclusion nor the somewhat

belated disclosure of the tape is an issue

on appea l; rather , the def

endant is aggr

ieved tha t the state obstruct ed him in hisbid to locate and interview Officer Br own.
Prior to trial, the defendant

had moved

to discove

r any written o r recor ded state ments of the defe ndant, “a list of the na mes and current a

ddresse s of all

witnesse s who the s tate inte nds to callto testify ,” state

ments o f witnesses who are not to be called to testify , and any e xculpatory evidenc e, includ

ing “the names an d addres ses of an y w itness whom the Sta

te believes would give testimonyfavorable to the defendant . . . reg ardless whether the State intends to call the witness.”

After trial, the defenda nt’s coun sel asse

rted in a n affida vit filed with the motion for new trial that during the trial, he asked the prosecutor where he could f ind Officer

Brown, who as of the time of trial, was no longer employ ed in the police department. Counsel’s affidavit further asserts that the prosecutor replied “that she did not know where [Brown] was, that sheassumed he
was still at the

police de

partmen t.” The d

efenda nt also ap

pended to

his new tria

l m otion the affida vits of Knox County Sheriff’s Depar tment office rs who, d uring the defendant’s trial, discussed Brown’s whereabouts with the prosecutor. She told them that she had been unable to locate Brown. The defendant also presented the affi davit of Brown himself, who averred that on the eve of the defendant’s trial, the prosecutor called him at the Jefferson City Walmart, where he was employed
as an assistant

manager. Brown furthe

r averred that he told the prosecutor that his entire encounter withthe defendant on October 17, 1999 was rec orded on the videotape and that “it had bee n some time since the events took place and that she should rely on the videotape.” Brown averred that he had de cl in ed to an sw er th e p ro se cu to r’ s q ue st io ns in th e a bs en ce of an op po rt un it y t o r eview the tape.-3- In his motion for new trial, the defendant claimed that Brown would have corroborated

the defendant’s trial testimony that the defendant’s possessionof the victim’s car was the result of

a “drug deal go ne bad” and not a carjac king. The trial court overruled the motion for
new trial, fi nding tha

t the state was not re

quir ed to supply addresses of witnesses and that, in any event, former officer Brown said in his aff idavit that he “told her to rely on the videotape.” The trial court found tha

t the “ta pe came [in] so I’m not sure there’s been any major pr ejudice to [the defendant].” The trial judge commented, “I ’m notsu re that what we have here wa s exculpatory evidence, and eve

n if it was , it came in anyway [through the videotape and through the defendant’s testimony].” Furthermore, the t rial court relied upon the defendant’s failure to move for a continuance when counsel was unable to locate Office r Brown. Th e court c orrect ly r ecalle d that, after the defendant had reviewed the videotape and after the court’s initial ruling on the state’s motion in limine , the defendant announced that he was re ady to proceed to trial.

On appeal, the defendant claims that the prosecutor violated her obligations set forth in Brady v Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963), by failing to disclose to the defense the addressor whereabouts of J.D. Brown. The defenda nt arg ues in his brief that Brown could have corroborated

that the defendant asserted facts during the defendant’s conversation in Brown’spolice cruiser that would have contradicted the theory of carjacking. The defendant also claims that Brown could have affirmed that the defendant was the only one who would have known “certain facts” and that “[t]here was not enough time for the Defendant to fa bricate and/or

know certain facts had they not occurred as defense counsel’s the ory supposed.”

In Brady , the United States Supreme Court held that the prosecution has theduty to furnish exculpatory evidence

to the accused upon request. “Any suppression by the prosec ution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good fa ith or bad faith of

the prosecution.” Id. at 87, 83 S. Ct. at 1196 -97. The duty to disclose extends to all “favorable information” regar dless whether the evidence is admissible at trial. State v. M arshall , 845 S.W.2d 2 28, 232-3 3 (Tenn. Crim. App. 1992). B oth exculpa tory and impea

chment evidence

fall under

the Brady rule. United States v. Bagley , 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985).

Before an ac cused is entitled to relief via Brady , he must establish several prereq uisites: (a) the prosecution must have suppressed

the evidence; (b) the evidence suppre ssed must have

been fa vorable to the accused; and (c) the evidence must have been material. See id. at 674-75, 105 S. Ct. at

3379-80; Brady , 373 U.S. at 87, 83 S. Ct. at 1196-97; Marshall , 845 S.W.2d at 232. Evidence is material under the Brady rule only if there is a reasonable probability that had the evidence been disclosed to the defense, the results of the proceedingwould hav e been d iffere nt. Kyles v. Whitley , 514 U.S. 419, 433, 115 S. Ct. 1555, 1556 (1995). In State v. Spurlock , 874 S.W.2d 602 (Tenn. Crim. App. 1993), this court recognized a fourth prerequisite to relief, that “the acc used must make a proper request for the production of the e vidence, unless the evidence, when viewed by the prosecution, is obviously exculpatory in nature and will be helpful to the accused.” Id. at 609. The defendant bears the burden of proving a Brady vi olati on by a preponde rance of the evidence.-4-

Id. at 610; State v. J

oan Elizabe th Hall , No. 01C01-9710-CC-00503, slip op. a t 19 (Tenn . Crim. App., Nashville, Jan. 28, 1999).

Applying these principles, we hold that, a lt hough the defendant requested J.D.Brown’s address or

whereabouts, the defendant has failed to establish by a preponderance of the evidence that due process principles, via Brady , compelled discl osure of B rown’s address or wherea bouts. The tria

l judge d id not beli eve that

th e prosecutor suppressed this information, but
even if she ha

d determ ined that the state suppress ed the inf

ormation, the rec ord is devoid of any showing that the information was material. Indeed, Mr. Brown’s affidavit, adv an ce d b y t he defe n dant, reveals that the affiant recalled nothing about the October 17, 1999 encounter with the defendant other than what was revealed on th e vide otape . Alt hough the tape contains self-serving statemen ts of t he defendant, there has been no showing that Mr. Brown could have imparted additional information that would have been favorable to the defendant or that probably could have produced a different result. Thus, the trial court did not

err in overruling the Brady claim presented in the defendant’s motion for new trial.

Having addressed the issue raised on appeal, we a f f irm the jud

gment of the trial court.

____________________________________ JAMES CURWOOD WITT, JR., JUDGE