        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 1, 2012

               DARNELL HUBBARD v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                       No. 06-08051     Paula Skahan, Judge



                 No. W2011-02037-CCA-R3-PC - Filed July 20, 2012


A Shelby County jury convicted the Petitioner, Darnell Hubbard, of first degree murder,
and he received a sentence of life without the possibility of parole. On appeal, this Court
affirmed the Petitioner’s conviction.               State v. Darnell Hubbard, No.
W2007-02482-CCA-R3-CD, 2009 WL 2568200, at *1 (Tenn. Crim. App., at Jackson,
Aug. 20, 2009), perm. app. denied (Tenn. Nov. 23, 2009). The Petitioner filed a petition
for post-conviction relief, asserting several claims of ineffective assistance of counsel and
a claim that the State failed to disclose exculpatory evidence to the defense. After a
hearing on the petition, the post-conviction court denied the petition. On appeal, the
Petitioner contends that the post-conviction court erred when it denied his petition. After
a thorough review of the record and applicable law, we affirm the post-conviction court’s
judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D. K ELLY
T HOMAS, J R. and C AMILLE R. M CM ULLEN, JJ., joined.

Sharon Fortner, Memphis, Tennessee, for the appellant, Darnell Hubbard.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and A. Brooks Irvine, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          I. Facts


                                             1
                                         A. Trial

      This case arises from the murder of the victim, the Petitioner’s wife, Lexie
Hubbard. On direct appeal, our Court summarized the underlying facts of the case as
follows:

             In the early morning hours of June 12, 2006, the [Petitioner] stabbed
      Lexie Hubbard twelve times, killing her.          At trial, the victim’s
      fifteen-year-old daughter, Ashley Jones, testified that she arrived home
      around midnight and saw her eleven-year-old brother and the victim
      watching television together in the dining room. The victim’s son and
      another daughter were asleep in their bedrooms, and the [Petitioner],
      “Ricky,” was in the victim’s bedroom. Jones went to bed. She was
      awakened by a crashing sound, and she heard the victim say, “No, Ricky,
      no. Don’t do it; don’t do it.”

             Jones rushed to her mother’s bedroom and saw the [Petitioner] pull a
      nine-inch knife out of the victim’s chest while the victim was “slouched”
      over on the floor. Jones yelled for her older brother, Demarlon Davis, and
      told him the [Petitioner] had stabbed their mother. Jones ran to the kitchen,
      obtained two knives, and gave them to Davis. The [Petitioner] emerged
      from the bedroom; swung the knife he had used to stab the victim at Jones,
      Davis, and others in the house; and ordered them to move. During the
      confrontation, the victim moved into Jones’ bedroom and locked the door.
      The [Petitioner] grabbed the victim’s keys and ran outside, and Davis
      chased him. Jones initially ran after Davis and the [Petitioner] but returned
      to the house because she was concerned about the victim. Before
      paramedics arrived, the victim was breathing hard and was in and out of
      consciousness. A firefighter at the scene informed Jones that the victim had
      died.

              Jones testified that the victim wanted a divorce from the [Petitioner]
      so that she could marry someone else. Three days before the stabbing, the
      [Petitioner] called and left messages on the victim’s cellular telephone. The
      victim let Jones listen to one of the messages in which the [Petitioner], in an
      angry voice, threatened to kill the victim. Jones said that the [Petitioner]
      had threatened to “get” her and her mother in the past. She said that the
      [Petitioner] often threatened and tried to fight with the victim when Jones’
      brothers were not around but that when the victim’s sons were present it
      “would be a peaceful day.” Jones recalled that the victim called the police a



                                            2
few days before the stabbing because the [Petitioner] was trying to get into
their home. The police came but told the victim that the [Petitioner] was
allowed in the house because they were married.

       Jones said that she occasionally cleaned her mother’s room and that
a few times she found a large knife from the kitchen knife set tucked under
the mattress on the [Petitioner’s] side of the bed. The knife the [Petitioner]
used to kill the victim was one of the knives. Jones removed the knives she
found in the victim’s bedroom and hid them elsewhere because she was
worried that the [Petitioner] was going to kill the victim.

       Jones testified that a couple of years before the victim’s death, she
saw the [Petitioner] threaten to kill the victim with a knife. On that
occasion, the [Petitioner] waited until everyone in the house was asleep.
Jones awoke to see the [Petitioner] standing over the victim with a knife in
his hand. The [Petitioner] threatened to kill the victim, but the victim and
her children convinced him to leave instead. Jones also recalled another
instance when she saw the [Petitioner] punch the victim, “busting” her lip.

        The victim’s son, Demarlon Davis, testified that on the night of the
stabbing he heard the [Petitioner] urging the victim to go to bed. He also
heard the [Petitioner] tell the victim that if he could not have her, nobody
would. The victim told Davis that the [Petitioner] threatened to kill her and
that she did not feel right with the [Petitioner] in the house. Davis offered
to force the [Petitioner] to leave, but the victim declined and said that she
was going to sleep. Davis went to bed and was awakened by his sister’s
screams. Davis said that upon hearing the screams, he “ran down toward
like in [his] momma’s room and [his] momma’s whole gown was soaking
wet with nothing but blood.” The victim told him that she was “fixing to
die” and that the [Petitioner] had stabbed her “a whole lot of times.” Davis
saw the [Petitioner] come out of the victim’s bedroom with a knife. The
[Petitioner] was “swinging” the knife at Davis and his daughter. Afterward,
the [Petitioner] ran from the house. Davis chased the [Petitioner] until the
[Petitioner] was apprehended by police.

       Dr. Bruce Levy, the Chief Medical Examiner for the State of
Tennessee, described the victim’s multiple stab wounds. He said that the
victim had twelve sharp force injuries. Ten wounds were described as
“major stab wounds,” and one pierced the right ventricle of the heart. The
victim bled to death as the result of the injuries.



                                      3
        The victim’s sister, Leslie Adams, testified about the [Petitioner’s]
relationship with the victim. She said that the victim and the [Petitioner]
fought frequently and often lived apart. According to Adams, the victim
moved to the home where she was living at the time of her death in order to
get away from the [Petitioner]. When the victim lived at her previous
residence, she asked Adams to stay with her at times when the [Petitioner]
was at the residence because she was afraid of him. Adams never saw the
[Petitioner] hit the victim, but, on one occasion, she saw him try to stab her.
She said that on that occasion, the victim and [the Petitioner] were arguing
over something petty and the [Petitioner] tried to stab the victim with a long
kitchen knife. Adams said that she jumped between the [Petitioner] and the
victim to prevent the stabbing.

        Adams also testified regarding an altercation involving the
[Petitioner] and the victim at their place of employment. Adams said the
[Petitioner] had “whupped” the victim with a chair and poured bleach on
her. Adams said that after the altercation, the victim left work and went to
Adams’ home. The victim was on her way to “press charges” against the
[Petitioner]. The victim was very upset and was crying. The victim told
Adams that “that ----, well, . . . you know, said in a violent way that he had
done whupped on her jaw.” Adams said that the [Petitioner] had knocked
the victim’s teeth out and that she was “all bruised up.” The victim was
“shaken” and said that she could not believe that the [Petitioner] “flipped”
and “did this.” Adams had heard the [Petitioner] threaten the victim many
times and had heard him tell her that if he could not have her, nobody
would. The victim told Adams that the only way the [Petitioner] would
“get” her would be in her sleep.

        Debora Coffman, a counselor with the Shelby County Citizen’s
Dispute, testified that she met with the victim on November 9, 2005, and
helped the victim apply for an ex parte order of protection against the
[Petitioner]. The victim told Coffman that she was afraid of the [Petitioner]
because he had threatened to “get” her and because he had struck her with a
chair and his fist in the past. Although an ex parte order of protection was
issued, the case was dismissed a couple of weeks later because neither party
showed up for the court hearing.

        Memphis Police Department Sergeant Degrah Bell testified that she
investigated the victim’s domestic violence complaints against the
[Petitioner]. In April 2002, the victim filled out a police report, alleging



                                      4
       that the [Petitioner] had attacked her with a metal chair while she was
       working. Sergeant Bell met with the victim. The victim was afraid and told
       Sergeant Bell that the [Petitioner] had attacked her because she had refused
       to give him a ride home. After a prosecutor determined that there was
       probable cause, Sergeant Bell prepared a warrant for aggravated assault
       against the [Petitioner]. In 2004, Sergeant Bell spoke with the victim by
       telephone to investigate another police report the victim had filed against
       the [Petitioner] alleging domestic violence. The victim told Sergeant Bell
       that the [Petitioner] attacked her physically and threatened to kill her with a
       knife and some bleach. The victim said that no further action was needed
       on the police report because the [Petitioner] had moved out of the home and
       she felt safe.

Hubbard, 2009 WL 2568200, at * 1-3.

       After hearing the evidence, a Shelby County jury convicted the Petitioner of first
degree murder of his wife, and he was sentenced to life without the possibility of parole.

                               B. Post-Conviction Hearing

        The Petitioner filed a petition for post-conviction relief, contending that his trial
counsel was ineffective for: (1) failing to adequately communicate with the Petitioner; (2)
failing to challenge a juror who knew the victim; and (3) failing to present mitigating
factors at the sentencing hearing. The petition also asserted that the State had failed to
disclose exculpatory evidence, depriving the Petitioner of his sixth amendment rights of
“fundamental fairness” and a “fair and impartial trial.” The post-conviction court held an
evidentiary hearing, wherein it heard the following evidence: The Petitioner testified that
the trial court appointed his counsel (“Counsel”) to represent him at trial, and Counsel
explained the State’s evidence during the “two or three” meetings between them. The
Petitioner testified that, other than these two or three face-to-face meetings, he had no
additional communication with Counsel. He stated that he attempted to contact Counsel
through letters, but Counsel never responded. The Petitioner testified that Counsel did
not call witnesses on the Petitioner’s behalf, such as the victim’s ex-husbands or
boyfriends. The Petitioner further stated that Counsel refused to call the Petitioner’s
sister as a witness because “she wouldn’t be good for the case.” He acknowledged that he
knew that the victim’s daughter and her sister would act as witnesses for the State. The
Petitioner did not object to them acting as witnesses. The Petitioner also testified that it
was his own choice not to testify, but he explained that he based this choice on his
emotions, a promise to the victim’s eldest daughter, and advice from Counsel.




                                             5
       The Petitioner also testified that Counsel represented him on his direct appeal of
the case. On appeal, Counsel presented two issues: (1) the trial court erred by admitting
evidence of prior acts of violence against the victim, including an ex parte order of
protection; and (2) the trial court erred by admitting evidence regarding statements the
victim made to her son and police officers.

       On cross-examination, the Petitioner testified that Counsel discussed the case with
him during courtroom hearings. The Petitioner stated that he could not recall discussing
possible defenses with Counsel, but he acknowledged that he told Counsel “what had
happened.”

        Counsel testified that he had practiced criminal defense with the Public Defender’s
Office since 1995 and had handled nine or ten murder cases in the past four or five years.
He stated that, after voir dire, Counsel learned that one of the jurors knew the victim’s
sister, who was a witness for the State, because they had gone to the same high school.
Counsel testified, however, that, after extensive individual questioning of the juror by the
trial court, he “was satisfied that she could be nonbiased” and “believed she could be . . .
fair and impartial.” Counsel further stated that he “liked her or [he] wouldn’t have left
her on the jury.”

       Counsel testified that he could not put on proof at trial that the Petitioner “acted
under strong provocation” because “[t]here was no proof in the record of that” and
because the Petitioner refused to testify. Counsel stated that he asked the Petitioner
whether he wanted to testify, informing him that, without the Petitioner’s testimony, there
existed no proof of strong provocation. Although the Petitioner had told Counsel that he
acted in self-defense, the Petitioner decided not to testify, and, as a result, Counsel could
not present that defense.

        Counsel testified that he met with the Petitioner “two or three times in jail,” but he
also met with the Petitioner “a good eight or nine times” in court. Counsel said that he
reviewed the case, discussed the possible defenses, and explained all of the evidence to
the Petitioner. Counsel stated that the Petitioner “knew everything that they had against
him.” Counsel testified that he had called the Petitioner’s sister and either his brother or
an uncle to testify on the Petitioner’s behalf at the sentencing hearing, but “[t]hey
disappeared before the trial.” Further, Counsel stated that the Petitioner’s son arrived to
testify at the sentencing hearing, but “[h]e showed up frankly so stoned he could hardly
talk.” Counsel told the Petitioner that they could still put the Petitioner’s son on the stand
to talk about the Petitioner’s work ethic and responsibilities as a father, but the Petitioner
told Counsel that he didn’t “want him up there.” As far as other witnesses, Counsel
testified that the Petitioner did not mention any other witnesses he wanted Counsel to call,



                                              6
either for trial or sentencing. Lastly, after the other witnesses had fallen through, Counsel
again asked the Petitioner if he wanted to consider testifying at the sentencing hearing,
but the Petitioner refused.

       On cross-examination, Counsel stated that he did not engage in much negotiation
with the State about a possible plea deal because the State wanted to either “try the case
or let [the Petitioner] go life without parole.” At the sentencing hearing, the victim’s
mother testified that she had forgiven the Petitioner, which Counsel stated that he tried to
emphasize to the jury. Counsel testified that he asked the jury to forgive the Petitioner
just as the victim’s mother forgave him and “just give him life with the possibility of
parole.” Counsel stated that, although he handled more than a hundred cases in any given
year, he always had adequate time to prepare for his cases.

         Based upon this testimony, the post-conviction court denied post-conviction relief.
It is from this judgment that the Petitioner now appeals.

                                        II. Analysis

        On appeal, the Petitioner argues that the post-conviction court erred when it denied
his petition for post-conviction relief because he received the ineffective assistance of
counsel. He further argues that the State failed to disclose exculpatory evidence. The
State argues that the post-conviction court properly found that the Petitioner did not prove
his allegations by clear and convincing evidence, did not establish that he was prejudiced
by any alleged deficiencies in Counsel’s representation, and did not prove that the State
withheld exculpatory evidence. We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2006). Upon our review, the trial judge’s findings of fact are
given the effect and weight of a jury verdict, and this Court is “bound by the trial judge’s
findings of fact unless we conclude that the evidence contained in the record
preponderates against the judgment entered in the cause.” Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990). Thus, this Court will not re-weigh or re-evaluate the
evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony and the factual issues raised by the evidence are to be
resolved by the trial court, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court’s conclusions of law, however, are subject to a purely de novo review by this Court,



                                             7
with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

                          A. Ineffective Assistance of Counsel

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
       Amendment.        Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial
       whose result is reliable. Unless a [petitioner] makes both showings, it
       cannot be said that the conviction or death sentence resulted from a
       breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417,
419 (Tenn. 1989).

        In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show
that “counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at
690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court
must be highly deferential and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State, 945


                                             8
S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only
what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed
to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App.
1980). “The fact that a particular strategy or tactic failed or hurt the defense does not,
standing alone, establish unreasonable representation. However, deference to matters of
strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation.” House, 44 S.W.3d at 515 (internal quotations omitted).

        If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable
probability must be “sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694; see also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

      In its order denying the Petitioner relief on this issue, the post-conviction court
made the following findings:

               Petitioner did not overcome the presumption that . . . Counsel’s
       actions could be legitimate trial strategy considering the particular
       circumstances of Petitioner’s case.         Additionally, Petitioner fails to
       articulate any specific failure on the part of . . . Counsel to support a claim
       of ineffective assistance of counsel. Petitioner fails to show how . . .
       Counsel’s performance fell outside of the range of reasonable professional
       assistance and deprived the Petitioner of a fair trial. Therefore, this Court
       concludes that Petitioner has failed to prove by clear and convincing
       evidence that he was deprived of his constitutional right to effective
       assistance of counsel.

       On appeal, the Petitioner specifically alleges that Counsel was ineffective for the
following reasons: (1) he failed to communicate with the Petitioner; (2) he failed to
challenge a juror who knew the victim and her family; and (3) he failed to present
mitigating proof at the sentencing hearing. Regarding Counsel’s communication with the
Petitioner, the record shows that Counsel met with the Petitioner on several occasions,
specifically two or three times in jail and nine or ten times in court; he consulted with the
Petitioner regarding possible trial defenses; and he explained the evidence in the case to



                                             9
the Petitioner. Further, after he realized that they had no proof to corroborate the
Petitioner’s defense of self-defense, Counsel repeatedly asked the Petitioner if he wanted
to testify on his own behalf. Counsel explained that, without any testimony regarding the
Petitioner’s defense, he would not be able to present it to the jury. Accordingly, the
evidence in the record does not preponderate against the post-conviction court’s finding
that the Petitioner failed to show by clear and convincing evidence that Counsel’s
performance was deficient or that the Petitioner was prejudiced as a result.

       Regarding the Petitioner’s second allegation of ineffective assistance of counsel,
Counsel’s failure to challenge a juror who knew the victim’s sister, the record supports
the post-conviction court’s findings. Counsel requested an individual voir dire of the
juror after he found out that the juror had gone to high school with the victim’s sister.
Counsel testified that the trial court held an individual voir dire of the juror and, after he
heard the juror’s answers to the trial court’s questions, he “was satisfied that she could be
nonbiased.” Based on that observation, he decided not to challenge her position on the
jury. Counsel testified that he “liked [the juror] or [he] wouldn’t have left her on the
jury.” After questioning, Counsel made a strategic decision to allow the juror to remain
on the jury. This Court notes that it is well established that “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690. As such, this Court will not disturb on
appeal the post-conviction court’s finding that the Petitioner was not deprived of effective
assistance of counsel on this issue.

        Lastly, the Petitioner argues that Counsel was ineffective because he failed to
present mitigating proof at the sentencing hearing, leading to the jury’s verdict that the
Petitioner deserved a sentence of life without parole. Counsel testified that the
Petitioner’s sister and either his brother or an uncle planned to testify on the Petitioner’s
behalf at the sentencing hearing, but the two “disappeared before the trial.” Counsel also
stated that the Petitioner’s son arrived to testify at the sentencing hearing, but “[h]e
showed up . . . so stoned he could hardly talk.” Counsel told the Petitioner that they could
still put the Petitioner’s son on the stand to testify about the Petitioner’s work ethic and
responsibilities as a father. The Petitioner, however, said that he didn’t “want him up
there.” The Petitioner also refused to take the stand on his own behalf to present
mitigating proof. Left with little mitigating proof to present, Counsel testified that he
used the testimony of the victim’s mother, who stated that she forgave the Petitioner.
Counsel worked with the facts and testimony at his disposal in attempting to persuade the
jury to give the Petitioner a life sentence with parole. Further, the Defendant did not call
additional witnesses at the post-conviction hearing to establish mitigation. The evidence
in the record does not preponderate against the post-conviction court’s finding that the
Petitioner failed to show by clear and convincing evidence that he was deprived of his



                                             10
constitutional right to effective assistance of counsel. As a result, the post-conviction
court correctly found that “[i]n light of the State’s ‘overwhelming evidence’ . . . ,
Petitioner fail[ed] to meet his burden of demonstrating how mitigating factors had a
reasonable probability of changing the outcome of the trial or prejudiced the judicial
process.”

        Accordingly, we conclude that the Petitioner failed to show that Counsel’s services
fell outside the range of competence normally required of attorneys in criminal trials. See
Baxter, 523 S.W.2d at 936. Having failed to show the first prong of the Strickland
standard, the Petitioner has not met his burden of showing that he is entitled to
post-conviction relief based upon Counsel’s performance. Id. He is not entitled to relief
as to this issue.

                               B. Exculpatory Evidence

       The Petitioner contends that the State failed to disclose an ex parte order of
protection obtained by the victim that was later dismissed and police reports of domestic
violence complaints that were later dropped. The State argues that the post-conviction
court correctly denied the petition because the Petitioner did not prove that the State
withheld this information or that Counsel did not receive it. We agree with the State.

       In Brady v. Maryland, the United States Supreme Court held, “We now hold that
the suppression by the prosecution 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 faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963).
Evidence that is “favorable to an accused” includes both “evidence deemed to be
exculpatory in nature and evidence that could be used to impeach the State’s witnesses.”
Johnson v. State, 38 S.W.3d 52, 55-56 (Tenn. 2001). Favorable evidence has also been
defined as:

       evidence which provides some significant aid to the defendant’s case,
       whether it furnishes corroboration of the defendant’s story, calls into
       question a material, although not indispensable, element of the
       prosecution’s version of the events, or challenges the credibility of a key
       prosecution witness.

Johnson, 38 S.W.3d at 56-57 (quoting Commonwealth v. Ellison, 376 Mass. 1, 379
N.E.2d 560, 571 (1978)). The State has an obligation to disclose “any favorable evidence
known to the others acting on the government’s behalf in the case, including police.”
Johnson, 38 S.W.3d at 56 (quoting Strickler v. Green, 527 U.S. 263 (1999)).



                                            11
Additionally, “The duty to disclose exculpatory evidence extends to all ‘favorable
information’ irrespective of whether the evidence is admissible at trial.” State v.
Robinson, 146 S.W.3d 469, 512 (Tenn. 2004) (citing Johnson, 38 S.W.3d at 56).

       The State does not have an obligation to disclose information that is not in the
possession or control of the State. Id. (citing Banks v. State, 556 S.W.2d 88, 90 (1977)).
A defendant must prove the following four prerequisites in order to establish a violation
of due process under Brady:
       1. The defendant must have requested the information (unless the evidence
       is obviously exculpatory, in which case the State is bound to release the
       information whether requested or not);
       2. The State must have suppressed the information;
       3. The information must have been favorable to the accused; and
       4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The defendant must prove a due
process violation by a preponderance of the evidence. Id. (citing State v. Spurlock, 874
S.W.2d 602, 610 (Tenn. Crim. App. 1993)).

      The Tennessee Supreme Court defined “material” within the context of Brady:
      Evidence is deemed to be 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.” . . . [A] reviewing court must
      determine whether the defendant has shown that “the favorable evidence
      could reasonably be taken to put the whole case in such a different light as
      to undermine the confidence of the verdict.” In other words, evidence is
      material when, because of its absence, the defendant failed to receive a fair
      trial, “understood as a trial resulting in a verdict worthy of confidence.”

Johnson, 38 S.W.3d at 58 (citations omitted). Our Supreme Court provided the following
guidance for the review of Brady claims in the post-conviction context: “The
“materiality” aspect of a Brady claim is governed by the same prejudice standard as an
ineffective assistance of counsel claim; that is, a defendant must show that there is a
reasonable probability that the result of the proceedings would have been different.”
Cauthern v. State, 145 S.W.3d at 571, 598-99 (Tenn. Crim. App. 2004) (emphasis added)
(citing United States v. Bagley, 473 U.S. 667, 682 (1985)).

       In the case under submission, the post-conviction court made the following
findings on this issue:
              Prosecutorial suppression of requested evidence both favorable to an



                                        12
             accused and material to either guilt or punishment violates due
             process. Brady v. Maryland, 373 U.S. 83, 87 (1963). Petitioner fails
             to show a due process violation because he fails to present evidence
             based in law or fact to establish the evidence is question was
             favorable to his case. Evidence of several domestic violence
             complaints filed against the Petitioner, even if the complaints were
             later dropped, tends to look incriminating, not exculpating. Further,
             the excluded evidence does not point to the mens rea of the Petitioner
             for purposes of determining whether he had the requisite intent for
             first degree murder; instead, the excluded evidence suggests the mens
             rea of the victim by showing several instances [that] the victim felt
             threatened by the Petitioner. Petitioner has failed to present evidence
             that the excluded evidence was both favorable and material to his
             guilt or punishment. Therefore, this issue is without merit.

After reviewing the record, we conclude that the Petitioner has not proven that the State
withheld information or that the Petitioner’s trial counsel did not receive information
regarding the ex parte order of protection or police reports of domestic violence
complaints. He is, therefore, not entitled to relief as to this issue.

                                    III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that
the post-conviction court properly denied post-conviction relief. Accordingly, we affirm
the judgment of the post-conviction court.


                                                _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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