# FILED
March 31, 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. 01C01-9706- CC-00231 ) Appellee, ) ) ) MARION COUNTY VS. ) ) HON. BUDDY PERRY JOS EPH MAR TIN TH URM AN,) JUDGE ) Appe llant. ) (Direct Appe al - Preme ditated First ) Degree M urder)

FOR THE APPELLANT : FOR THE APPELLEE : HOWARD B. BARNWELL, J R. JOHN KNOX WALKUP 829 McCallie Avenue Attorney Generaland Reporter Chattanooga, TN 37403 TIMOTHY F. BEHAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 J. MI CHAEL TAY LOR Distri ct Attorney General STE VE ST RAIN Assistant Distri ct Attorney Jaspe r, TN
ORDER FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 According to W illi am Bark er, an arson investigator with the State Fire Marshall’s Office, the fire burned through the floor i n the master bedroom, so th at the vi ctim’s body was actually on the gr ound in the area wh ere the b edroom had bee n previou sly. -2- 

## OPINION
The appellan t, Joseph Martin Thurman, was convicted by a Marion Coun ty jury of one (1) coun t of premedit ated fir st degree murder and o ne ( 1) count of
arson. He was sentenced to conc urrent sentences of li fe i mprisonment for murder and three (3) yea rs for arson. On appeal, he claim s that the trial court erred in (1) failing to s uppres s his statem ents to law enfo rcement authorities; an d (2) denying a continuance and/or sanct ions after the state fa iled to com ply with discovery requests. After a thor ough revi ew of therecord b efore t his Court , we find no rev ersible erro r and affirm the judgm ent of the tria l court.

FACTS

On January 17, 1995, emergency fir e personnel received a cal l regardi ng a burning mobil e home in Bledsoe County. The mobile home belon ged to th e appellant

and his wife, Eli zabeth Thurman. After approximately two hours, emergency personnel were ab le to stop th e fire, but the mobil e home received extensive damage as a result. Autho r ities later r ecovered the burned body of Eli zabeth T hur man i n th e area of themaster b edroom. 1 When questioned r

egarding theincident , appell ant denied any knowledge of how th e fire sta rted. Ap pellan t told in vesti gators that he left the trai ler at appro ximate ly 2:00 p.m., a nd when he returned appro ximate ly one a nd on e-half hours later, he found the t railer burning. However, upon fur ther inve stigati on,-3-

authorit ies were ab le to elimina te accide ntal caus es of the fire . I nstead, the investigato rs found evidenc e that acc elerants w ere use d in starting the fire. Dr. Charles Harlan p erforme d an au topsy on the bod y of Elizabe th Thurman. Dr. Harlan fo und a nega tive carb on m onoxid e level in the victim ’s blood, whi ch i ndi cat ed t hat thevi cti m di ed prior to the fir e. Further , Dr. Harl an found no soot or smoke in the victi m’s trachea, which also indi cated that the victim’s death o ccurred prior to the fire

. Dr. Harlan determ ined th at the vic tim did not die as a result of nat ural causes, a gunshot wound or sharp for ce trauma, but could not eli minate suffocation or strangulat ion as a cause of death. Due to the extensive burn d ama ge to th e victim ’s body, thedoctor coul d not determine the precise c ause o f death. In the course of hi s investi gation, TBI Agent David Emiren interv iewed the appellant

in May of 1995. Wh en confronte d with the informa tion that his wife did not die as a result of the fire, app ellant told Emire n that Eli zabeth committed suicideby hang ing herse lf. He claimed that w hen he disc overed his wife’s bo dy, there was a fire burning in the mid dle of the b edroom

. Accord ing to app ellant, he then decided to let the fire bu rn in orde r to conce al his wife’s s uicide. After appellan t gave the statem ent, Emire n ask ed him if he would consent to take a po lygraph e xamina tion, to which ap pellant ag reed. At the concl usion of this examin ation, app ellant cha nged h is story onc e again

. In this statem ent, appellant

admitted that he and his wife we re having marital problems. On the day of thefi re, he a nd El iza bet h hadgotten int o an arg ument

in themaster b edroom. Elizabe th left t he bedroom and return ed with a jug o f keros ene. T he victim then poured the kerosene o nto so me clothes on the floor and ign ited a lighter. Appellant

told Agent

Emiren that

he gra bbed the ligh ter from her ha nds, th rew it down, and the room caugh t on fire. The victi m physicall y attacked hi m, and in an-4-

effort to subdue her, the appellant placed his hands

around his wife’s neck and choked her. App ellant state d, “I don’t kn ow wha t happe ned. I don ’t know if I broke herneck or if

I just choked her too har

d. The next t hing I knew was t hat we were laying on the floor an d I was shak ing her trying to get he r up.” Appellant told Emiren that he t hen left t he trailer, not kn owing wheth er the fire was s till burning

. Appellant

was placed under arrest and subsequently charged wit h first degree murder a nd arso n. At trial, t he state pres ented testi mony that the appellant

had a lo ng- term roma ntic relation ship with Michel le Hamby, a co-work er of appellant

and the victim. Althoug h Ham by testified tha t her relation ship with appellant

ha d term inated in Octo ber 19 94, sh e ack nowle dged that sh e aga in beca me intimate with the ap pellant approxim ately one mo nth after Elizab eth’s death. Other witnesses testifi ed thatappellant had announc ed his desire to kill his wife and h ad even solicited an other to commi t t he c ri me in late November of 1994. The state als o presented evi dence of vari ous insura nce p olicies w herein the appellant

was the benefici ary and would gai n substanti al amounts of money in the eve nt of his wife’s dea th. Furthe r, an em ployee w ith the Tennessee Valley Federal Credit U nion testi fi ed that ei ght days pri or to his wife’s d eath, the appellant

opened a single checki ng ac count and named his son as t he beneficia ry. The app e llant tes tified in h is own beha lf at trial. Re gardin g his w ife’s death, the ap pell ant t estifi ed in confor mity wit h his last statement to Agent Emiren, stating tha t he accid entally cho ked his w ife to death. He stated that he did not know whether the t railer was on fire when he left. When he returned, the trail er had burned parti ally, and t he ap pellant retri eved some gasoline and po ured i t i n the h allway, caus ing the fire to ign ite onc e aga in. W hen a sked why he did-5-

such a thing , appe llant rep lied, “I tho ught m aybe th at if it burnedthe rest of the way up that peopl e would thi nk it was an acci dent and thi nk that she di ed in a fi re, ‘cause I know ed nobod y would believe a nything I told them .” The jury returned guilty verdicts for one (1) count of pr emeditated first degree murd er and one (1) count of arson. From his

convicti ons, appell ant brings this ap peal.

MOTION TO SUPPRESS
Appellant

conten ds th at t he trial cou rt erred in de nying a m otion to suppress his statements given to Agent Emiren. He cl aims that, at t he t ime he
was questioned , he had bee n seized witho ut pro bable ca use; theref ore, the statem ents should have been suppr essed as a product of

the illegal seizure (socalled “fruit of the poiso nous tree”). A ddition ally, app ella nt a rgues that his statem ents were inadmissi ble because he requested an attorney dur ing t he interv iew, and that

request was i gnored by Agent Emiren.

A. On May 8, 1995, Agent Emiren and arson invest igator Will iam Barker went to the ap pellan t’s place of em ploym ent to in terview him re gardin g his w ife’s death. Emire n and Barke r arri ved at approx imately 11: 00 p.m., whic h was the beginning of appell ant’s work shift at the La- Z-Boy manufacturi ng plant i n Dayton. W hile Emi ren wa it ed ou tside, B arker w ent ins ide the factory and a sked if appellant

would consent to be ing interv iewed at the TBI officein Chattanooga. Appella nt agree d. A t this point, Barker advised t he appellant that he was not under a rrest.-6- Emiren, Barke r and th e app ellant g ot into A gent E miren ’s vehic l e, and Barkerread the appellant his Miranda rights. When appellant asked whether he
was und er arre st, Emire n said, “N o” and to ld appe llant that the trip to Chattanooga was totally volunta ry. Appellant r esponded, “that’s fi ne” and signed a written w aiver of his rig hts. After arrivi ng in C ha ttanoog a, the app ellant gave an oral sta temen t to Emiren, wherein he cl aimed thathis wife had committed suicide. Appellant t hen agreed to take a pol ygraph examinat ion, conducted by TBI Special Agent Malco lm Elrod. Be fo re a dmi nisterin g the te st, Elrod read th e app ellant h is Miranda rights, and the appell ant signed a waiver of hi s rights, as wellas a document conse nting to the test. A fter El rod completed hi s interv iew, the appellan t gave his s econd statem ent to Em iren. At the hea ring on the motion to suppress, t he appellant testified that he felt
as if he were under arrest at the time he was quest ioned. However, he acknowledged that whe n he as ked the officers if he w as und er arrest, the y responded, “No.” Ap pellant sta ted that, when confronted with thewaiver of righ ts form, he did not r

ead the for m o r listen to his Miranda rights, but “just signed whateve r.” He t est if iedthat Emi ren and B ark er wou ld not le t him re trieve h is keys and w allet or m ove his illegally parke d car prior to traveling to Chattanooga. He further stated that Emiren threatened him during t he interv iew, and that he felt intimi dated into gi ving astatement. Appellant testifi ed that he asked Emir en, “do I ne ed an attorn ey? ” Accordin g toappe ll ant , Emi ren re plied, “ [t]hat ’s your right” and continued the interv iew. Appell ant testified that he wanted an attorney present duri ng the inter view, but

due to the l ateness of t he hour, did not feel as if he could contact a n attorne y.-7- Emiren and B arker te stified a t the he aring th at app ellant vo lu ntari ly accompanied them to Chattanooga

. Emi ren stated t hat they spokewith appel lant at night bec ause h is work sh ift began a t 11:00 p.m ., and they wanted to e nsure thatappel lant

was wel l-rested duri ng the i nterview. Em iren did n ot reca ll appellant

everasking to mo ve his vehicle or retrieve his keys and wallet. Barke r, Emiren and Elrod test ifiedthat appel lant never requested an at

torney or inquir

ed whetherhe neede d one. Furthe r, Emiren stated t hat if app ellant had requested
coun sel, he would have stopped all conversation and driven ap pellant back to Dayton

. The trialcourt deni ed the motion to suppress and subs equently f iled a written order detai ling its f indings of fact and conc lusions of law. Th e trial court found that appel lant vol untaril y accompanied Emiren and Barkerto Chattanooga foran inte rview a nd “ap paren tly did not believe he was under a rrest.” The cou rt therefore concluded that appellant

was not under arrest during the q uestioni ng. Additionally, the trial court found that appellant neverrequested counselduring the inter view. In so fi nding, the trialcourt stated, “Mr. Thur man has not hesitated to li e whe n he thi nksit benefi ts h im. His testimony i s generall y self- serving and lacks credibil ity. ” The tria l court, ther efore, conc luded that ap pellan t’s constituti onal rights were not v iolated and denied the motion to suppress. B. A trialcourt’s fi ndings of factin a sup press ion he aring w ill be up held b y this Court unless the evi dence in the reco rd prepo nderate s otherw ise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). In making its determinati on on a motion to suppress, t he trial court “assesses the c redibil ity of the witnes ses, determi nes the weight and val ue to be affor ded the evidence adduced during t he hearing, and resolves any

conflicts in the evidence .” State v. Curtis , 964 S.W.2d 604, 608-8-

(Tenn. Crim. App. 1997). The prevai ling part y in the t rial cour

t is ent itled t

o the strongest legiti mate viewof the evi dence presented at the suppressi on hearing
as well as all reas onab le and legitim ate infer ences whic h may be drawn the ref rom. State v. Odom , 928 S.W.2d at 23. However, an appel late court is not bound by the trial co urt’ s conclus ions of law. State v. Bridges , 963 S.W.2d 487, 490 (T enn. 19 97); State v. Yeargan , 958 S.W .2d 626, 629 (Tenn. 199 7). C. A person is “seized ” with in the mea ning o f the Fo urth A men dme nt if “in viewof all of the circu mstan ces surr oundin g the incid ent, a reasonab le person would have believ

ed thathe was not free to lea ve.” Unite d State s v. Me nden hall , 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L. Ed.2d 497 (1980). Examples of circumstances whi ch might indi cate a seizur e would be: the threatening presence of severalofficers, the display of a weapon by an o ff ice r, somephysical touching of the perso n of the ci tizen, o r the use oflanguage or tone of voice ind icating tha t comp liance with the officer's req uest m ight be co mpelle d. . . . In t he absence of some such evidence, otherwise i noffensiv e contact bet

ween a member of the public and the police cann ot, as a matter o f law, amount to a seizur

e of that pe rson. United States v. Me nden hall , 446 U.S. at 554-55, 100 S.Ct. at 1877 (ci tations omitted). The question in the p resent case becom es whethe r the appellant ’s consent to accompany Emiren and Barker to the T BI o ffices was voluntarily given or rather was the product

of duress or coercion , express or implied

. State v. Bragan , 920 S.W.2d 227, 243 (Tenn. Crim . App. 1995 ). Under Men denh all , this Court is instruct

ed to look to the total ity of the circ umstances. 446 U.S. at 557, 100 S.Ct. at 1879. The presen t case is clo sely ana logous with the ca se of State v. Bra ga n , supra . In that cas e, the defe ndant a nd his wife were as ked by p olice officers to-9-

accompany the offi cers to thepolice ser vices bui lding to give a statement regarding the dea th of defendant’s businesspartner. Id. at 243. The defendant agreed, but claimed tha t the officers would no t allow him to drive his own ca r to the station. Id. He testified at themotion to suppr ess hearing t hat the tone of the officer’s voice made him feelcom pelled to go to the police statio n. Id. When theyarrived at the station, the officers re ad the d efend ant an d his w ife their Miranda rights, and they ans wered th e officers’ qu estions. Id. This Court held t hat the defend ant and his wi fe w ere not “ seized” at the ti me they were question ed. Id. In so holdi ng, the Cou rt noted the lack of thre ats
or coercion when t he police r equested that the defendant accompany them to the station. Id. The C ourt sta ted tha t defen dant’s testim ony at th e hea ring “cle arly indicated that he vol untaril y agreed to accompany the police officers to the police
se rv ices building.” Id. The Court determined that, although the defendant claimed that he di d not feel free to dec line the officer’s request, t he totality of t he circumstancessuppo rted the co nclusion that defe ndant an d his wife were not “seized.” Id. In th e pr esent case, Emir en and Barker requested that the appellant accompany them to the TBI of fice i n Chattanooga for an interv iew concerni ng the victim’s death. They advi sed the appellant that the i ntervi ew was voluntar y, and thathe would not be compell ed to accompany them. Al though Appellant testified thathe believed he was under arrest , he acknowledged t hat when he inqui red on several occasions whether he was under arrest , Emiren and Barker responded, “No.” Furthermore, the a ppellant does not alle ge tha t he wa s phys ically compelled to leave his place of employment with the officer s. Under the totality of the ci rcumstances, t he record support s the tri al court’s f inding that

Appell ant vo luntarily accompa nied Emi ren and Barker to th e TBI-10-

office. Furthermore, we agree w ith the tri al court’ s conclusion that the appel lant
was not “seized” under the Fourt h Amendment. Therefore, his statement was properly admissible. This issu e is withou t merit. D. Appellant

also argues t hat he made an equivocal request for counsel when he asked Agent Emiren, “do I need an attorney?” Therefore, he maintains t hat any furt her inter rogation by Emiren should have b een limited to questi ons clarif ying the appellant’s de sire fo r an attorn ey. See State v. Stephenson , 878 S.W .2d 530, 547 (Tenn. 199 4). The trialcourt foundthat the appellant did not make a requ est for c ouns el, equivocal or une quivoc al. In making this d etermination, the court explicitly found thatappe llant’s te stimo ny was incred ib le , thereby accredit ing the te stimony of t he state’s witnesses. The determination whether t he appellant made a request for
an attorney , equivocalor unequivocal , i s a que stion of fac t for the trial cou rt to determine. State v. Farmer , 927 S.W.2d 582, 594 (Tenn. Crim. App. 1996). The trialcourt d isbelie ved the appe llant’s te stimo ny in this regar d, and the evidence in the record does

not preponderate otherwise. As a re sult, the appe llant’s statem ent was admissible, and the tri al court pr operly deni ed the motion t o suppress. This issu e has n o merit.

DENIAL OF CONTINUA NCE / SA NCTIONS

In his fi nal issue, the appell ant clai ms that he was denied his constitut ional rights to a fair tria l, due process, ef fectiv e assistance of

counsel and confr

ontation-11-

due to the state’s failure to co mply wit h dis cover y rul es. Heargues that the tri al court committed reversible err or by faili ng to impose sanctionsagainst th e state
as a result of such discovery violat ions. He fur

thercontends tha t the trial court erred in deny ing his moti on for a cont inuance. A. The following sequence of events r epresents an apparent gross miscommunication among the defense attorneys, the pros ecuting at torneys, and the medic al exam iner’s office. T he certifica te of death i nitial ly li sted the cause of Elizabe th Thurman’s death to be “burns.” The death ce rtificate was signed by Dr. C harl es Harlan and dated Janu ary 24, 1995. H owever, in the au topsy report signed by Dr. Harl an and dated April17, 1995, t he cause of death waslisted as “undete rmined .” As Dr. Harlan explained at trial , due to a ne ga tive carbon monoxide level in t he victim’s blood as wellas the lack of smoke o r soot in the victi m’s trachea, he determined that the victim d id not die as a r esult of the fir e. Further, due to the severity of the burn da mage, Dr. Harlan coul d not determine the exac t cause o f death. During the autopsy pr ocess, Dr. Harl an made various pi ctures of t he victim’s body. Althoug h the ph otograp hs were subject to discover y pursua nt to Tenn. R. Crim. P. 16, the defense had not received t he photos as of September 1996. On Se ptemb er 20, 19 96, Ass istant Distric t Atto rne y Ja me s Pope transmitted correspond ence to Ho ward Barn well, defense counsel, that the photog raphs w ere availa ble to view a t Dr. Harla n’s office. Two d ays later , defense counselfiled a motion for s anctions due to th e state’s failure to comply with disc overy requ ests. On September 24, the tri al court conducted a hearing wi th the part ies regarding the state’ s failure to produce the photographs. Stan Carney, an employ ee with Dr. Harlan’s of fice, te stifi ed2 During the cour se of this hearing, Dr . Harlan agr eed to send samples of t he victi m’s trachea as well as the interna l organs to the defense’ s expert for examination, which were recei ved by the Fulton Coun ty Medica l Exam iner’s Off ice. -12- thathe received a r

equest from Mr. Barnwell’s office for the autopsy photographs,
as well as enl argements and the negat ives. Car ney placed an orde r with Moto Photo for the photographs plus an extr a set of negat ives on Apri l 25, 19 96
. The reafter , he retr ieved th e orde r and m ailed it to Barnwell ’s offi ce on June 15. According to Mr. B arnwe ll, however, t he photographs and negat ives were never received at his of

fice. Af ter an inqui ry by the Di strict Attorney’ s office, Car ne y checked Elizab eth T hurm an’s a utops y file and noticed t hat the ori ginal autopsy photog raphs a nd neg atives we re missin g. Dr. Harla n also testifie d at t he hearing. He stated that the photographs depict t he v ict im’ s burned body, but were not helpfulin making his autopsy determinations. He also checked the autopsy file of the vict im an d cou ld not locate the photogra phs or neg atives. He further t estifi ed that, i n his opini on, another similar ly qualified p athol ogist cou ld not dete rmine th e caus e of dea th merely by viewing the autopsy photographs. 2 At the conclusion of the hearing, the trial cou rt found that Mr. C arney mailed the photographs, but those photographs were apparentl y misplace d in the mail. Further, the court found that t he loss of the photogr aphs was accid ental. Subseq uently, Mr. Ca rney lo cated the orig inal a utopsy photogr aphs and negativesin another file the medical examiner’s offi ce. The tri al cou rt held another hearin g, where defense counsel requested a continuance and/ or the exhumation of the decedent ’s body. Af terreviewi ng the photographs which were deliver ed by Mr. Carney, the tri al cou rt denied t he motion for a continuance,-13-

i mplic itly finding that the pho tographs w ere of no ben efit to either part y. Furtherm ore, the trial co urt denie d the m otion for a c ontinua nce. B. T enn. R. Crim. P. 16(d) (2) provi des the sancti ons that a t rial cour t may order if a party

fails to comply wi th discovery. The rule states: If at any tim e durin g the c ourse of the p rocee din gs i t is brough t to the attention of t he co ur t that a p arty ha s failed to com ply with th is rule, the court may order su ch party t o permit the d iscovery or inspecti on, grant a cont inuance, or prohibit the p arty from introduci ng eviden ce no t disclos ed, or it may enter such ot her order as it deems just under the circum stance s. The c ourt ma y specify the time, pl ace, and manner of making the di scovery and inspecti on and m ay presc ribe such terms a nd con ditions as are just. The sanction to be imposed for non-compliance must fit t he circumstances of the indivi dual case. State v. Street , 768 S.W .2d 703, 710 (Tenn. Crim . App. 1988 ). The decision whet her to grant a continuance i s a matter that is wi thin the sound discret ion of thetrial court. State v. Griffis , 964 S.W.2d 577, 593 (Tenn. Cri m. App. 19 97); Harris v. S tate , 947 S.W.2d 156, 173 (T enn. Crim. A pp. 1996). This Court wil l not i nterfere with the t rial cour t’s deci sion in thi s regard unles s the evidence in the record indi cates an abuse of disc retion. S tate v. G riffis , 964 S.W.2d at 593. In this case, the defense wasunable to vi ew the autop sy pho tograp hs un til
one day prior to trial. Howeve r, Dr. Harlan test ified t hat the photographs were of
no bene fit to anyo ne, an d no o ther sim ilarl y qua lified pathologist could ha ve determined the caus e of dea th mere ly by viewing them. The trialcourt agreed. Upon our view in g of the photographs, we reach the same concl usion. The photographs depict t he burned body of El izabeth Thurman, and, as Dr. Har lan described, “all they show is a lum p of black.” No am ount of time co uld transform these photographs

into materi al evidence.-14- Furthermore, contrary to appell ant’s asser tion, t he cause ofdeath was not
an issue at t rial. The appellant testified that he acci dentally choked or str

angled his wife to d eat h andthe n left her in the ir mobi le h ome to burn. The only issue before the jury w as wh ether th e victim ’s dea th was accide ntal or in tention al. Additionally, an exhumation of the victi m’s body would have been fruitless. As Dr. Harlan testifi ed at tri al, after the autopsy has been condu c ted, the dece ased ’s internalorgans are removed from the body and cremated. Thus, there would be no evi dence for the defense expert to examine. M oreover, t he defen se ex pert was prov ided with a tissue sample of the vi ctim’s t rachea and interna l organ s prior to trial. The appellant

has not demonstrate d how he was prejudi ced by the al leged trialcourt erro rs. See State v. Griffis , 964 S.W .2d at 593 ; State v. Hix , 696 S.W.2d 22, 25-26 (Tenn. Crim. App. 1984). We, therefore, conclude that the tri al court did not ab use its discreti on by denying a continuance or

other sanct ions as a result of the state’s failure to co mply with discove ry. C. This Court furt her holds t hat the appel lant’s constit utional rights were not offended by any discov ery viol ation. I n Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 1 0 L.Ed.2d 215 (1963) , the Supreme Court he ld tha t “suppress ion b y the prosecut ion of evi dence favorabl e to an accused upon request violates due process where t he evidence is materi al eithe r to guilt or to punish ment, irrespect ive of good fa ith or bad fa ith of the prosecu tion.” See also Hartman v. State , 896 S.W.2d 94, 101 (Tenn. 1995). In order to establi sh a due process violation u nder Brady , four prere quisites m ust be m et: 1. The defendant must have r equested theinformati on (unless t he evidence is obviously exculpatory, i n which case the Sta te is bound to release the inform ation whethe r requested o r not);-15- 2. The State must have suppressed the i nformation; 3. The information must have been favorable to the accused; and 4. The inform ation m ust ha ve bee n ma terial. S tate v. Edg in , 902 S.W.2d 387, 389 (Tenn. 19 95). As we have determine d previously, the photograp h s at issue wer e not favor

able evidence for the appellan t. By the same token, ther e has been no showing that the photographs
were material evidence. A s a result , there was no due process vi olation under Brady v. Mary land

. Furthermore, in Arizona v. Youngblood , 488 U.S. 51, 109 S.Ct . 333, 102 L.Ed.2d 281 (1988 ), the majority opinion h eld that failure to preserve poten tially useful evidence can be a deni al of due pro ces s if the defendant can show bad faith on the part of

the poli ce. The Court noted that thepresen ce of bad faith
necessa ri ly turns on the poli ce's knowledge of the exculpat

ory nature of the evidence at the ti me it is l os t or mispla ced. Id. at 56, 109 S.Ct . at 336. In the pre sent case, t he tri al cour t found no bad fai th on th e part of the state, andwe see no evid ence to the c ontrar y in the record. Add itionally, the photographs can hardly be viewed a s “poten tially useful” to th e defen se. Appellant’s due process rights were not violated under Youngblood

. This issu e is withou t merit.-16- CONCLUSI ON

A thorough review of the briefs and rec ord in the case convinces us there is not rever

sible err or in thi s case. Accordi ngly, t he judgment of t he trialcourt is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID G. WELLES , JUD GE

___________________________________ JOHN K. BYERS, JUDGE