         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   October 16, 2002 Session

                   STATE OF TENNESSEE v. WANDA HINSON

                   Direct Appeal from the Circuit Court for Lewis County
                           No. 6023    Timothy L. Easter, Judge



                  No. M2000-02762-CCA-R3-CD- Filed September 27, 2002


A Lewis County jury convicted the defendant, Wanda Hinson, of criminally negligent homicide, for
which she received a one and a half year sentence, and especially aggravated burglary, for which she
received a twenty-two year sentence. The trial court ordered the defendant to serve these sentences
concurrently. The defendant now appeals her convictions, alleging (1) that the trial court erred by
admitting a hearsay statement, (2) that the trial court erred by failing to grant a mistrial when the
state improperly impeached the defendant’s only alibi witness, (3) that the evidence is insufficient
to support her convictions, and (4) that the trial court erred by failing to grant the defendant a new
trial based on the state’s failure to provide certain exculpatory evidence. For the reasons outlined
below, we find that none of these allegations merit relief and accordingly affirm the decision of the
trial court.


    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court is Affirmed.

JERRY SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J. joined and
DAVID H. WELLES, J. filed a dissenting opinion

Jerry Scott and John L. Kea, Murfreesboro, Tennessee for the appellant, Wanda Hinson.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Ron Davis, District Attorney General; and Jeffrey L. Long, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       On March 20, 1999, Officer Barry Carroll was stopped by Patricia Shelton and Ray Defoe.
Shelton was the sister of James Shelton, whom the couple had found dead in his apartment.
Proceeding to the apartment and joined by Sergeant Steve Vineyard, Carroll discovered the victim
with “a large hole in the back of his head.” In addition, the victim’s key lay on the floor beside him,
and his “pants pockets were turned inside out.” These officers secured the scene and contacted the
Tennessee Bureau of Investigation (TBI).
         Jerry Tenry of the TBI responded at approximately 4:00 a.m. According to this witness the
victim’s telephone was unplugged and the caller ID box was missing, although the bloodstained
power supply for the caller ID box remained. The inside of the victim’s aforementioned pants
pockets were also bloodstained as if someone had reached in to take something from them. In
addition, blood splatter was found on a door, the right-hand side of the hallway, the ceiling, and a
light fixture. The agent further observed other signs of disarray and that the victim’s money clip and
wallet were missing. Nevertheless, there was no evidence of forced entry, no identifiable
fingerprints, no blood other than that belonging to the victim, and no informative hair or fibers found
on the body or the victim’s clothing. According to Tenry two weapons were used on the victim, and
the assailant would have gotten blood on himself or herself. The agent located prescription
medicines under the couch, but did not find the bottles for the victim’s Lortab prescriptions, which
he had filled on March 17th and March 19th. Tenry also could not locate a murder weapon, although
he did find clothes in a dumpster at an apartment complex close to the victim’s complex. Of the
items seized from the victim’s apartment, TBI Agent Oakley McKinney was unable to find a
matching fingerprint. On the 26th, Tenry conducted a search of the defendant’s apartment and
discovered nothing belonging to the victim in her home. Yet another TBI agent searched for blood
in the defendant’s apartment and found none.
         On the morning of the 20th, the morning that the victim’s sister discovered that the victim
was dead, at approximately 5:00 a.m., Officer Carroll, Seargent Vineyard, Officer Barnes, and
Captain Sam Livingston went to the defendant’s apartment. According to some of these witnesses,
it appeared as though the defendant had been up all night. There was also testimony that the
defendant’s husband, David Pollock, with whom the defendant lived, had smoked and paced while
the police were there. Apparently none of the officers observed blood or cuts on the defendant, and
she was said to have cooperated. When the defendant was later arrested, one of the officers allegedly
overheard the defendant telling her mother, “I told you I was in the apartment that night.”
         Dr. Charles Harlan performed the autopsy on the 61-year-old diminutive victim. Harlan
stated that the victim had died from blows to the left side of the head. He added that the victim’s
arms bore defensive wounds and that the victim’s throat evidenced numerous cuts. He further opined
that the weapons used were a knife and a hard object.
         Also testifying was Tom Mann, a pharmacist who had filled a prescription for sixty Lortabs
for the victim on March 19th, the day before the victim’s murder. He further stated that he had
previously filled various other prescriptions for the victim. According to Mann, although the victim’s
doctor had prescribed a high dosage of his medications, including Lortab and Xanax, he had seen
similar dosages prescribed to others. However, he added that patients sometime abuse Lortab and
Xanax.
         In addition, various individuals who knew the victim and/or lived nearby testified. For
example, Ami Wilson stated that she had helped the victim by grocery shopping for him and taking
dinner to him. She had actually spent time with him on the day of his death and, while doing so, had
noticed that he had a bottle containing Lortab and Xanax, a long leather wallet, and $23 in a money
clip. Natasha Conley added that she had seen a man pacing beneath the victim’s apartment at around


                                                 -2-
9:00 p.m. to 10:00 p.m. on the night of the offense. She then saw the same man along with the
defendant knocking on the victim’s door between 11:30 and midnight. The next morning this
witness saw the defendant with a cut on her hand, appearing as though she had been awake all night,
smelling like “something dead”, and trying to sell the witness “little white pills.” Conley further
stated that the defendant had claimed to have gone to the victim’s apartment because someone had
told her that he was not answering his phone. This witness also acknowledged that she had initially
told the district attorney that the defendant had blood on her arm, shoes, and jacket; however, she
had not mentioned this detail, the cut, the odor, or the pills to the police. Kathreen Carroll recounted
that she lived above the victim at the time of his death and that on the night in question she heard
what sounded like two men and a woman arguing at approximately 2:00 in the morning. Later she
heard a woman scream, “Oh, my God!” at which point this witness went to the window to discover
two people drive away in a Grand Am. Brian Willis, who shared Carroll’s apartment, indicated that
he had heard a disturbance below at around 1:40 a.m. To him, it had sounded as if two men were
arguing.
         Carla Reynolds, who lived in the same complex with the victim, added that the defendant
called her several times between approximately 10:00 p.m. to 10:30 p.m. and asked Reynolds about
locating some Lortab tablets. Furthermore, the defendant asked her numerous times to call the
victim for this purpose, and Reynolds finally acquiesced. The victim told Reynolds that he would
sell the four pills for ten dollars each. Reynolds conveyed this information to the defendant, and the
defendant complained about the victim’s suggested price. Nevertheless, the defendant allegedly
asked Reynolds to arrange a meeting between the victim and the defendant at Reynolds’ house, but
Reynolds refused because the victim had told Reynolds that he did not get along well with the
defendant. Reynolds last talked to the defendant at around 12:30 a.m. Finally, Reynolds stated that
she had seen the defendant a few months before trial. During that encounter the defendant had told
Reynolds that they had last spoken at about 10:00 on the night in question and that Reynolds should
“stick to that” story.
         Various additional witnesses had contact with the defendant the day following the victim’s
death. Vonda Mercer, a good friend of the defendant’s, stated that on the 20th the defendant had
offered to sell her two knives. The defendant claimed that she was selling them because Pollock
had cut her with them. Mercer also detailed that she had overheard the defendant respond to a
question posed by Janice Sharp concerning what had happened to the victim. The defendant
recounted that “she thought he’d got his head beat in.”1 The state also called Janice Sharp who
testified that she had heard that the victim had been shot in the head, but the defendant told her
otherwise. In addition, Sharp testified that the defendant sold her one of the knives. Sharp in turn
gave the knife to Tina Richardson. While testifying, Tina Richardson confirmed portions of Sharp’s
account and indicated that the knife had smelled of cleaning fluid when she received it. Having
tested the weapon, Mark Squibb, a TBI serologist, indicated that it held traces of human blood;
however, Squibb was unable to tell if the blood was fresh or to type or successfully DNA test the
substance because of degradation of the sample. He explained that such degradation could have been
caused by a cleaning fluid.

         1
                   This statement became significant because the police had not released information regarding the cause
of the victim’s death at this time.

                                                          -3-
        Patricia Shelton, the victim’s sister, added that she had spoken with the victim at midnight
on the 20th. He informed her that “Wanda was there” and spoke in a low voice throughout their
conversation. Because of the call, this sister later drove with her husband to the victim’s apartment
to check on him. Finding the door ajar and the victim dead, she screamed, “Oh my God!” and left
the apartment complex in a blue Grand Am. When Shelton encountered the defendant that day, the
defendant had allegedly told her that she had not been to the apartment, but subsequently claimed
that she had visited the victim’s apartment while on an errand for Carla Reynolds. Additionally,
Bennie Lou Fry, another sister, recalled that she had also spoken with the victim the night of the
murder at approximately 12:30 a.m. During this conversation with the victim, Fry heard a knock on
the victim’s door, and during a later conversation with the victim at approximately 2:30 a.m., Fry
heard loud banging, and the phone call was subsequently disconnected. After calling back to no
avail, a woman finally answered at around 2:40 a.m. This woman confirmed that Fry had indeed
called 4491, the victim’s phone number, but claimed to have no knowledge of the victim.
         David Pollock, the defendant’s husband, testified for the defendant and claimed that the
defendant went to the victim’s apartment at about 9:00 p.m. for ten minutes and at about 10:00 p.m.
for four to five minutes on the night in question. She then went to bed at 11:15 p.m. and remained
there until 4:00 a.m. or so. Although Pollock admitted that the defendant was addicted to Lortab,
he denied that he had been to the victim’s apartment that night and that he had been pacing when the
police had arrived at his apartment the next morning.
         In rebuttal, the State presented two witnesses. Ami Wilson identified Pollock as the person
whom she saw near the victim’s apartment windows on the 19th. Nevertheless, she acknowledged
that she had not mentioned to the police that she saw a man beneath the victim’s windows and that
the State had shown her a mug shot of Pollock. Thereafter, Bridget Moniz, Pollock’s former
girlfriend, testified that she spoke with Pollock in July following the victim’s death. When she told
Pollock that he needed to tell the truth about the incident, he had allegedly responded by stating,
“But, Bridget, she’s the mother of my children.”
         As aforementioned, the jury subsequently found the defendant guilty of especially aggravated
robbery and criminally negligent homicide, and the defendant received concurrent sentences of one
and a half years for her criminally negligent homicide conviction and twenty-two years for her
especially aggravated robbery conviction. The defendant now appeals her convictions, alleging (1)
that the trial court erred by admitting certain hearsay statements, (2) that the trial court erred by
failing to grant a mistrial when the state improperly impeached the defendant’s only alibi witness,
(3) that the evidence is insufficient to support her convictions, and (4) that the trial court erred by
failing to grant the defendant a new trial based on the state’s failure to provide certain exculpatory
evidence. After reviewing the record and applicable case law, we find that none of the defendant’s
allegations merit relief, and we therefore affirm the judgments of the trial court.


                                 Admission of Hearsay Statement

        The defendant complains that the trial court erred by allowing the state to offer into evidence
a hearsay statement made by the victim a few hours before his murder. After hearing testimony from
the victim’s two sisters, Shelton and Fry, in a jury-out hearing, the trial court eventually agreed to


                                                 -4-
allow Shelton to testify that the victim called her from his apartment around midnight a few hours
before his death and in response to her question about what was wrong, the victim told her that
“Wanda was there.” After Shelton gave this testimony, the trial court gave the jury a limiting
instruction, informing the jury that they were to consider Shelton’s statement that the victim told her
that “Wanda was there” for the sole purpose of “establish[ing] the defendant’s presence near the time
of the murder.”
         The trial court allowed the admission of this statement based on its interpretation of State v.
Carpenter, 773 S.W.2d 1, 8-11 (Tenn. Crim. App. 1989), a case in which this Court affirmed a trial
court’s admission of two hearsay statements, one of which was an excited utterance and the second
of which was admissible to show the identity of the subject of the other statement. In the instant
case, the trial court interpreted Carpenter to allow admission of Shelton’s hearsay statement in this
factual scenario for “the limited purpose of establishing the defendant’s presence near the time of
the murder.” Defense counsel objected, pointing out to the court that it had previously ruled that
the hearsay statement at issue did not qualify as an excited utterance, and the trial court responded
by stating that it did not believe that “the Carpenter case [is] an excited utterance [case].”
         The state contends that while the hearsay statement was not admissible based on the trial
court’s analysis, it was admissible under the “state-of-mind hearsay exception.” The defendant
contends that the hearsay statement at issue is not admissible under any of the bases considered by
the trial court, including Carpenter, the excited utterance exception, or the forfeiture by wrongdoing
exception and that the admission of the hearsay statement had a prejudicial effect on the defendant
and violated her constitutional right to confront her accusers. While we agree with the defendant that
the statement was not admissible hearsay, we find that the admission of the statement was not so
prejudicial as to affect the outcome of the trial because the evidence against the defendant was
strong.
         A hearsay statement is “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Moreover, a hearsay statement is not admissible unless it falls within an exception contained
in the rules of evidence or otherwise by law. See Tenn. R. Evid. 802. The trial court correctly
determined that the proposed hearsay statement was not admissible under the excited utterance
exception because the declarant-victim was not reacting to a startling event or condition, an element
of the excited utterance exception. See State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997). Indeed,
the victim-declarant’s actions before and after he made the contested statement do not indicate that
he was in a state of excitement. As noted by the trial court, before he made the contested statement
to his sister, he allowed the subject of his comment, Wanda, to enter his apartment, and after he
made the statement to his sister, he told his sister that he intended to lie down. Such actions do not
indicate that the victim was in an excited state.
         Furthermore, the hearsay statement is not admissible under Carpenter. In Carpenter, the
victim-declarant made two statements referencing the defendant. Carpenter, 773 S.W.2d at 8. The
victim made the first statement during a telephone conversation with her friend, Ms. Smith, at about
9:00 a.m. In the first statement, the victim named the defendant because she suspected the defendant
of having stolen money from her store earlier that day. Id. The victim made the second statement
during another call to Ms. Smith at approximately 6:20 p.m. Id. During this conversation, she told
Ms. Smith that she would have to hang up because “that little son-of-a-bitch is coming back in the


                                                  -5-
store.” Id. Ms. Smith asked the victim if she was talking about “the guy you thought got your
money,” and the victim responded affirmatively. Id.
         The trial court allowed the admission of both hearsay statements, and this Court affirmed the
trial court’s decision by finding that the second hearsay statement was admissible under the excited
utterance exception and that the first hearsay statement was admissible for the limited purpose of
clarifying the meaning of the second hearsay statement. Id. at 10. Therefore, Carpenter did not
create a new hearsay exception unrelated to the excited utterance exception, as the trial court in the
instant case found, but rather allowed the admission of a second hearsay statement in order to clarify
another hearsay statement that was admissible under the recognized excited utterance exception.
Thus, Carpenter does not create new law allowing the admission of the contested hearsay statement
in the case at bar.
         The trial court also considered the admissibility of the hearsay statement under Tennessee
Rule of Evidence 804(b)(6), the “forfeiture by wrongdoing” hearsay exception allowing admission
of a hearsay statement “against a party that has engaged in wrongdoing that was intended to and did
procure the unavailability of the declarant as a witness.” Tenn. R. Evid. 804(b)(6). While our courts
have not published a case construing this hearsay exception, it appears that a hearsay statement may
be admitted against a party under this exception only if that party intentionally procured the
unavailability of the declarant: “Even intentional misconduct, such as killing a witness, does not
qualify unless done for the purpose of procuring the witness’s unavailability.”2 Neil P. Cohen, et al.,
Tennessee Law of Evidence § 8.39[2][c] (4th ed. 2000). Because there is no proof in the record to
support a finding that the defendant harmed the victim for the purpose of procuring his
unavailability, we find that the victim’s hearsay statement was not admissible under this hearsay
exception.
         The state argues that the contested hearsay statement is admissible under the state-of-mind
hearsay exception. See Tenn. R. Evid. 803(3). However, in order for the victim’s statement to be
admissible under the state-of-mind hearsay exception, the statement would not be a mere factual
assertion offered to prove the truth of the matter asserted, as in the instant case, but it would express
the declarant’s “then existing state of mind, emotion, sensation, or physical condition[,] such as
intent, plan, motive, design, mental feeling, pain, and bodily health[].” Tenn. R. Evid. 803(3). The
victim’s statement to his sister that Wanda was present in his apartment does not express the victim’s
sensations, emotions, or motivations, and accordingly, it was not admissible under this hearsay
exception.
         Nevertheless, although we find that the trial court erred by admitting the victim’s hearsay
statement, we find that the admission to be harmless error. While the hearsay statement was proof
of the defendant’s presence in the victim’s apartment at approximately midnight on the night of his
murder, there was other evidence linking the defendant and the victim on that evening. Specifically,
the defendant’s husband testified that the defendant visited the victim that evening at approximately
10:00 p.m.; a witness saw the defendant and an unidentified man kicking on the defendant’s door
at sometime between 11:30 p.m. and midnight; a witness testified that the defendant knew that the
victim’s head had been beaten, although this information had not been released to the public; the


         2
          Examples of such intentional wrongdoing “includ e brib ing or threatening a witne ss to secure the witness’s
unavailability.” C ohen et al., supra, at § 8.39[2][d].

                                                         -6-
defendant sold a knife smelling of cleaning fluid the day after the victim’s death, and the victim’s
throat had been slit by a knife or knife-like object; after the murder the defendant was trying to sell
Lortab and Xanax tablets, the same types of prescription medications missing from the victim’s
apartment; and the defendant was overheard telling her mother that she was in the victim’s apartment
on the night of his murder. Considering the strong evidence against the defendant, we cannot say
that the erroneous admission of this hearsay statement affected the outcome of the trial. We
therefore find that the admission of this hearsay statement was harmless error and accordingly find
that this issue does not merit relief.


                           Improper Impeachment of Defense Witness

        The defendant argues that the trial court erred by refusing to grant a mistrial or new trial after
the state improperly impeached Pollock, the defendant’s husband and alibi witness. The state
contends that the defendant has waived this issue by failing to request a mistrial and that the trial
court’s curative instruction was sufficient to safeguard the defendant from the prejudicial effect of
the impeachment evidence.
        We first note that the decision regarding whether to grant a mistrial is within the trial court’s
sound discretion and will not be disturbed absent an abuse of that discretion. State v. McPherson,
882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). “Generally a mistrial will be declared in a criminal
case only when there is a ‘manifest necessity’ requiring such action by the trial judge.” State v.
Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991).
        In the instant case, the prosecutor asked the defendant’s husband and sole alibi witness,
David Pollock, whether he had ever been convicted of a crime, and Pollock responded that he had
been convicted of resisting arrest. Defense counsel objected, and the trial court excused the jury.
The trial court chastised the prosecutor for asking such a question without first requesting a jury-out
hearing and announced that it would instruct the jury to disregard that portion of Pollock’s testimony.
Defense counsel then responded, “I don’t know what else to do. I don’t want a mistrial at this point
on it. I don’t think it’s a basis for a mistrial, but they need . . .” The trial court then called for the
jury to return and gave the following curative instruction:

        Ladies and gentlemen, just before you left the assistant district attorney asked a
        question of this defendant [sic] regarding prior convictions. I’m instructing you at
        this time, as I told you I might during the course of this process, to disregard his
        question and the answer. You’re not to consider that for any purpose.

Because counsel did not move for a mistrial, the defendant has waived this issue on appeal. See
Tenn. R. App. P. 36(a). Furthermore, we do not find that the improper impeachment evidence was
so egregious as to create a “manifest necessity” for declaring mistrial. The trial court’s curative
instruction was sufficient to counter the potential for prejudice, and the law presumes that juries
follow the instructions that they receive absent clear and convincing proof to the contrary. See State
v. Vanzant, 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983). No proof of this nature is before this
Court. For these reasons, we conclude that this issue does not merit relief.


                                                   -7-
                                    Sufficiency of the Evidence

        The defendant challenges the sufficiency of the evidence to support her convictions for
especially aggravated robbery or criminally negligent homicide. When a defendant challenges the
sufficiency of the evidence, this Court is obliged to review that claim according to certain
well-settled principles. A verdict of guilty, rendered by a jury and “approved by the trial judge,
accredits the testimony of the” State's witnesses and resolves all conflicts in the testimony in favor
of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54,
75 (Tenn. 1992). Thus, although the accused is originally cloaked with a presumption of innocence,
the jury verdict of guilty removes this presumption “and replaces it with one of guilt.” State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the
defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the accused guilty
of every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris, 839
S.W.2d at 75. In making this decision, we are to accord the State “the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.”
Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or reconsidering the
evidence in evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may
not substitute our own “inferences for those drawn by the trier of fact from circumstantial evidence."
Id. at 779.
        Especially aggravated robbery is defined as robbery that is “(1) accomplished with a deadly
weapon; and (2) where the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a).
Robbery is defined as “the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Tenn. Code. Ann. § 39-13-401(a). A deadly weapon is
defined as “[a] firearm or anything manifestly designed, made or adapted for the purpose of inflicting
death or serious bodily injury; or . . . [a]nything that in the manner of its use or intended use is
capable of causing death or serious bodily injury[.]” Tenn. Code Ann. § 39-11-106(a)(5)(A), (B).
        Criminally negligent homicide is defined as “[c]riminally negligent conduct which results
in death.” Tenn. Code Ann. § 39-13-212(a).

       “Criminal negligence” refers to a person who acts with criminal negligence with
       respect to the circumstances surrounding that person’s conduct or the result of that
       conduct when the person ought to be aware of a substantial and unjustifiable risk that
       the circumstances exist or the result will occur. The risk must be of such a nature and
       degree that the failure to perceive it constitutes a gross deviation from the standard
       of care that an ordinary person would exercise under all the circumstances as viewed
       from the accused person’s standpoint.

Tenn. Code Ann. § 39-11-106(a)(4).

         As discussed supra, the evidence against the defendant is strong. The defendant’s husband
testified that the defendant visited the victim that evening at approximately 10:00 p.m., and a witness


                                                 -8-
saw the defendant and an unidentified man kicking on the defendant’s door at sometime between
11:30 p.m. and midnight. The victim’s sister called the victim’s apartment at approximately 2:40
a.m., and a female voice answered the victim’s phone, claiming to have no knowledge of the victim.
Another witness spoke with the defendant several times on the night in question, the last time at
approximately 12:30 a.m. During these conversations, the defendant was trying to persuade the
witness to arrange a drug sale between herself and the victim. The defendant later told the witness
that the last time they spoke on that night was between 9:30 and 10:00 a.m. and that the witness had
better “stick to that” version of the events. Additionally, the defendant had knowledge that the
victim’s head had been beaten, although this information had not been released to the public. The
victim’s throat had been slit by a knife or knife-like object, and the defendant sold a knife smelling
of cleaning fluid the day after the victim’s death. Furthermore, after the victim’s murder the
defendant was trying to sell Lortab and Xanax tablets, the same types of prescription medications
missing from the victim’s apartment, and the defendant was overheard telling her mother that she
was in the victim’s apartment on the night of his murder. We conclude that a jury could reasonably
find that the defendant had committed the crimes of criminally negligent homicide and especially
aggravated robbery based on this evidence. Therefore, we find that the defendant’s sufficiency of
the evidence challenge lacks merit.


                                       Alleged Brady Violation

         The defendant contends that the trial court erred by failing to grant her request for a new trial
on the basis that the state failed to provide the defendant with the criminal records of and pending
charges against three of the state’s witnesses and that the state made a delayed disclosure of an
exculpatory statement made by one of the state’s witnesses. The defendant claims that the state
violated the mandates of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d
215 (1963), by failing to turn over this exculpatory information.
         In Brady v. Maryland, the Supreme Court held that “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.” Brady,
373 U.S. at 87; see also Hartman v. State, 896 S.W.2d 94, 101 (Tenn. 1995). In order to establish
a due process violation under Brady, four prerequisites must be met:

        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 burden of proving a Brady violation rests
with the defendant, and the violation must be proven by a preponderance of the evidence. Id.



                                                   -9-
         When determining the materiality of undisclosed information, a reviewing court must
establish whether “in [the] absence [of the information, the defendant] received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419,
434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). In other words, evidence is considered material only
if there is a reasonable probability that had the evidence been disclosed to the defense, the results of
the proceeding would have been different. Edgin, 902 S.W.2d at 390-91 (citation omitted).
         Here, the defendant complains that the state failed to turn over Brady material, namely an
exculpatory statement, discussed infra, and the arrest and conviction records of three state witnesses,
Ami Wilson, Tina Richardson, and Vonda Mercer. Specifically, Wilson had a then pending charge
against her for welfare fraud; Richardson had nine convictions for theft of property, three convictions
for forgery, two convictions for writing worthless checks, and two convictions for criminal
impersonation; and Mercer had one conviction for theft. The defendant claims that she could have
impeached the witnesses with these convictions, as they are all convictions for crimes relating to
honesty. Furthermore, she claims that she could have impeached Wilson with her pending charge
for fraud in order show the witness’s possible motivation for cooperating with the state in order to
receive leniency during the resolution of her own case.
         The defendant also claims that the impact of impeaching these three material witnesses would
have been great because of the importance of the substance of their testimony. Wilson testified that
on the day of the victim’s murder, he possessed Lortab and Xanax pills on his person, as well as a
money clip, twenty-three dollars, and a wallet, which are the only items that were discovered to have
been stolen from the victim after his murder. Richardson testified that the defendant sold her a knife
shortly after the victim’s murder and that the knife had an odor of cleaning fluid on it when she
received it from the defendant. Mercer testified that the defendant told her that she had spoken with
the victim the night before his death and that the defendant went to a trailer attempting to sell a
second knife the morning after the victim’s murder.
         In light of these witnesses’ testimony, we find that while there may be a possibility that the
outcome of the trial would have been different if the defendant had been able to impeach these
witnesses with their arrest and conviction records, we cannot say with any certainty that there is a
reasonable probability that the outcome of the trial would have been different. The state put on proof
from nineteen different witnesses, and while the three witnesses in question provided substantive
evidence, we cannot say that even if we were to discount their testimony, there is a reasonable
probability that the result of the proceeding would have been different.
         Furthermore, this Court has previously rejected arguments that a defendant was prejudiced
by the state’s failure to provide arrest and conviction records in response to a discovery motion. In
those contexts, this Court found that the defendant was not prejudiced by the state’s omission
because the arrest records of potential trial witnesses and all conviction records are available upon
request per statute. See Tenn. Code Ann. § 10-7-507 (stating that copies of conviction records are
available to any citizen upon request); Tenn. Code Ann. § 40-32-101(c)(3) (“Release of arrest
histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the
proceeding shall be made available to such attorney upon request.”); State v. Burton, 751 S.W.2d
440, 448 (Tenn. Crim. App. 1988) (affirming a trial court’s denial of a defendant’s motion to compel
the state to furnish defendant with copies of the state’s witnesses’ arrest records); see also State v.
King, 718 S.W.2d 241, 247 (Tenn. 1986), (finding that “the State has no duty, either under the
Tennessee Rules of Criminal Procedure or by decisional law in this state, to provide [the arrest

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histories of state’s witnesses] to the defendant”) (citing State v. Workman, 667 S.W.2d 44, 51 (Tenn.
1984)); State v. Guy William Rush, No. 03C01-9805-CR-00193, 1999 Tenn. Crim. App. LEXIS
1021, at *33 (Tenn. Crim. App. at Knoxville, Oct. 13, 1999) (stating that this Court has previously
held that “when exculpatory evidence is equally available to the prosecution and the accused, the
accused must bear the responsibility of seeking its discovery”) reversed on other grounds, State v.
Rush, 50 S.W.3d 424 (Tenn. 2001).
         When promulgating the rule that requires prosecutorial disclosure of exculpatory evidence
to defendants, the Brady Court reasoned that it would be unfair for the state to hoard and secrete
evidence that could exculpate the defendant. Brady, 373 U.S. at 88. However, per Tennessee Code
Annotated sections 10-7-507 and 40-32-101(c)(3), these records were available to the defendant
upon request. See Tenn. Code Ann. §§ 10-7-507, 40-32-101(c)(3). Because these arrest and
conviction records were equally available to the defendant, the harm that the Brady disclosure
requirement was designed to prevent was not present in the instant case.3
         We now turn to the defendant’s complaint that the state failed to turn over the statement that
Donna Bennett made to the police. In her statement, Bennett states that several hours after the
victim’s murder, Billy Hinson told her that he thought that Raymond Davidson had killed the victim
in a jealous rage. Bennett also mentions that the victim told her that he had been forced to hide his
medications throughout his apartment in order to prevent Billy Hinson, Teresa Williams, and the
defendant from taking them from him. Furthermore, Bennett also mentions that the victim went to
collect some settlement money the day before his murder with “Amy” and that he was concerned that
Amy would try to “get some of his money.”
         Mid-trial after the state had put on six witnesses, the state disclosed this statement to the
defendant in response to a Jencks request. The defendant then called the court’s attention to the
state’s omission and requested a break so that she could arrange to subpoena Bennett. However, the
defendant never apprised the court regarding her success in attempting to locate Bennett, and she
failed to ever object to the late disclosure of this statement or request a continuance or mistrial.
Therefore, the defendant has waived the issue and cannot now complain that she was given
inadequate time to investigate the statement, as she did not request a continuance in order to do so.
See Tenn. R. App. P. 36.
         Furthermore, in situations where there was only a delayed disclosure of exculpatory
information, in contrast to a complete failure to disclose exculpatory information, Brady does not
apply, unless the delay itself causes prejudice. See Sylvester Smith v. State, No. 02C01-9801-CR-
00018, 1998 Tenn. Crim. App. LEXIS 1316 (Tenn. Crim. App. at Jackson, Dec. 28, 1998); State v.
Jim Inman, No. 03C01-9201-CR-00020, 1993 Tenn. Crim. App. LEXIS 781 (Tenn. Crim. App. at
Knoxville, Nov. 23, 1993). Because the defendant has failed to state whether she was ever able to
contact Bennett and how the delayed disclosure prejudiced her ability to procure Bennett as a
witness, we cannot determine whether the delayed disclosure of this information did indeed prejudice
the defendant. For these reasons, we find that this issue lacks merit.




         3
                    Mo reover, while both of the cases that the defendant cites in support of her contention that the state
violated the m andates of Brady, United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) and
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), address the ram ifications of the
prosecutor’s failure to disclose impeachment evidence, both cases are distinguishable from the instant case in that the
undisclosed forms of impeachment material were not prior convictions o r arrest re cord s. Bagley addresses a prosecuto r’s
failure to disclose that witnesses wou ld be pa id for their testimon y, Bagley, 473 U.S. at 672, and Giglio addresses a
prosecuto r’s failure to disclose that a witness received a pro mise o f immunity, Giglio , 405 U.S. at 154.

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                                         Conclusion

      For the foregoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgments of the trial court are AFFIRMED.



                                                    ___________________________________
                                                    JERRY L. SMITH, JUDGE




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