         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs June 21, 2000

          CLAUDE FRANCIS GARRETT v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                           No. 92-B-961    Seth Norman, Judge

                                        ______________

                    No. M1999-00786-CCA-R3-PC - Filed March 22, 2001


The defendant, after being convicted of first degree murder and sentenced to life imprisonment,
was denied post-conviction relief by the Criminal Court of Davidson County. Defendant now
appeals that denial and asserts that (1) the State withheld exculpatory evidence in violation of
Brady v. Maryland, thereby undermining the confidence of the outcome of the trial; (2) the trial
court erred by unconstitutionally instructing the jury; (3) the defendant was not afforded
effective assistance of counsel; and (4) juror misconduct and bias violated the defendant’s
constitutional rights. The issue of juror misconduct was addressed by this court on direct appeal
and, therefore, is not properly before this court. After review, we affirm the trial court’s finding
that the defendant received effective assistance of counsel; however, we reverse and remand the
case for a new trial because the prosecution withheld exculpatory evidence in violation of Brady
v. Maryland, thereby undermining the confidence in the outcome of the trial.

  Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court Reversed and
                                       Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Claude Francis Garrett.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Victor S. (Torry) Johnson III, District Attorney General; and John C. Zimmermann,
Assistant District Attorney, for the appellee, State of Tennessee.


                                            OPINION

                                          Introduction

       The defendant, Claude Francis Garrett, was tried and convicted of first degree murder
and sentenced to life imprisonment. After direct appeal and denial for permission to appeal to
the Tennessee Supreme Court, the defendant petitioned the Criminal Court of Davidson County
for post-conviction relief. The trial court held a post-conviction relief hearing on July 15, 1998.
At the conclusion of the hearing the trial judge denied the petition without making any findings
of fact or conclusions of law. Defendant then appealed the denial to this Court and this Court
remanded the case to the trial court to make findings of fact and conclusions of law. The trial
court entered findings of fact and conclusions of law in support of its denial and the defendant
now appeals from that denial and his appeal is properly before this court.

                                       Background Facts

       The underlying background facts surrounding this case were summarized by this Court
on direct appeal as follows:

       At approximately 5:00 a.m. on February 24, 1992, the victim, Lorie Lance, died
       from smoke inhalation when a fire engulfed the residence she shared with the
       defendant. When firefighters arrived, the defendant reported that he had escaped
       the blaze, but that the victim was still inside. Later, firefighters found the
       unconscious victim in a locked utility room. A large window in the room had
       been covered with boards. Efforts to revive the victim failed.

       Investigators found traces of kerosene on the living room floor, a kerosene soaked
       bedspread in front of the refrigerator, and a five gallon plastic container filled
       with kerosene between the refrigerator and the utility room. A smoke detector
       from which the battery had been removed was found on the utility room dryer.
       All of these circumstances suggested that the defendant had locked the victim
       inside the room and then set the house on fire.

       At trial, Sandra Lee Jones, the victim's mother, testified that her twenty-four-year-
       old daughter was a student at Volunteer State Community College and was an
       employee of Uno's Pizzeria at the time of her death. Ms. Jones, diagnosed as a
       manic depressive, had visited her daughter on several occasions and had
       expressed concern about her daughter's safety because her residence had no back
       door. The victim had installed a smoke detector in the kitchen to alleviate her
       mother's fears.

       Michael Wayne Alcorn, who lived across the street from the victim and the
       defendant, testified that he was awakened by his wife on the night of the fire and
       saw flames extending from the windows, the room, and the front door. Alcorn,
       who saw the defendant stooping near a tree, stated that he started to cross the road
       in an effort to help, at which point the defendant picked up a lawn chair, began
       breaking windows of the residence, and called the victim's name. When Alcorn's
       son Bobby arrived at the scene, the defendant handed him an axe, and began to
       spray water through one of the windows. Alcorn noted that the defendant's left
       hand had been badly burned and that his facial hair had been singed. He
       described the defendant's emotional state as "sort of cold."


                                               -2-
Fireman Patrick Hunt was one of the first to arrive at the scene. He testified that
the defendant first informed Hunt that he had last seen the victim just outside the
bedroom; when Hunt was unable to find her there, the defendant then said, "I
know where she's at, if you'll go straight through the back of the house she's
through a back door, the door in the back of the house by the kitchen."

A short time later, Captain Otis Jenkins found the unconscious victim in the
utility room wedged between the washer and dryer and the wall. Captain Jenkins
testified that the door to the utility room had been locked from the outside.

Immediately after the fire, Detective William Michael Roland had gone to the
hospital to interview the defendant. The defendant appeared to be nervous and
claimed that he and the victim had been asleep when the fire started. He also
claimed that he saw the victim re-enter the residence and walk towards the
kitchen. Although he had not yet been accused of setting the fire, the defendant
asked if he was under arrest. When Detective Roland asked him to go to the
police station for further questioning, a second statement given by the defendant
did not match the first but was closely aligned to his trial testimony.

Detective David Miller, who led the investigation, questioned the defendant at the
police station, had an officer photograph the defendant's injuries, and took
possession of his clothing for testing purposes. Detective Miller testified that the
defendant refused to provide a hand swab.

The defendant stayed at the Alcorn home for two days after the fire. During that
time, the defendant appeared nervous but not despondent. He informed Bobby
Alcorn that the police suspected he had "done it" and had taken his clothes to
check for gasoline or kerosene.

When the police decided to place charges, they were unable to find the defendant
at the address he supplied. Using information received from an anonymous
source, they eventually located the defendant in Hiawatha, Kansas.

Special Agent James Cooper, with the ATF Department of the U.S. Treasury
Department, had led efforts to determine the cause of the blaze. He testified that
the fire's point of origin was the living room and that a liquid accelerant had been
poured on the floor. Agent Cooper determined from the burn pattern that the door
to the utility room was closed during the fire.

Agent Sandra Paltorik Evans, a forensic scientist, tested each item collected by
the police to determine whether an accelerant was present. She found that the
bedspread, the five-gallon container, the smoke detector, and the living room
flooring contained a "kerosene-type" distillate. Agent Evans also tested the



                                        -3-
smoke detector by inserting a nine-volt battery and applying smoke; she found it
to be in proper working order. She testified that the pants and shirt taken from the
defendant tested negative for accelerant.

Dr. Mona Gretel Harlan, Assistant Medical Examiner for Davidson County,
conducted the autopsy. Dr. Harlan testified that the victim had first and second
degree burns over approximately twenty percent of her body and had an
accumulation of soot at the opening of her mouth and nose. The "rather pink
color" of the victim's blood led Dr. Harlan to conclude that the victim had died
from an excessive intake of carbon monoxide. The blood alcohol level of the
victim was .06 percent. No traces of narcotics were present. While examining
the scene of the fire, Dr. Harlan found that when locked, the door to the room
where the body was found could only be opened from the outside.

The defendant, a construction worker who conceded that he had previously been
convicted of grand theft, two burglaries, and a jail escape, testified in his own
behalf. He stated that he and the victim had been involved in a relationship for
one and one-half years and planned to be married. He claimed that on the night
of the fire, he and the victim spent several hours at a local bar, where they saw the
victim's stepfather and stepbrother. He testified that they returned to their
residence, watched television for a time, and fell asleep on the couch for a time
before going to bed. The defendant claimed that upon discovering the fire, he got
out of bed, walked to the bedroom door, and yelled for the victim. The defendant
testified that the victim grabbed his arm but pulled away and turned as if she was
going back toward the rear of the house.

The defendant remembered that [Michael] Wayne Alcorn directed Ms. Alcorn to
"call the fire department." The defendant claimed that he had called to the victim
as he broke out the windows and had instructed Bobby Alcorn to chop the
bathroom window when he thought he heard water running. He contended that
when firefighters arrived, he immediately informed them that he had last seen the
victim in their bedroom. The defendant denied telling one of the firemen that he
was a brother to the victim. He explained that when fireman were unable to find
the victim on their first try, he had merely suggested the utility room as a possible
alternative. He stated that when the victim was finally located, she was taken to a
nearby hospital where efforts to revive her failed. The defendant, who had severe
burns to his left arm and his face, testified that he sat with the victim's family as
they awaited a report on her condition. He claimed that when medical personnel
informed the group that the victim had died, he responded, "Why Lorie?"

The defendant testified that he fully complied with all requests made by
investigating officers and specifically denied refusing to provide a "hand swab."
He provided explanations for some of the statements he had made to firefighters
and law enforcement officials. The defendant denied locking the victim in the
utility room and pointed out that Captain Jenkins was incorrect about there being

                                        -4-
a second lock and a door knob on that door. He believed that the door was not
locked, but merely hard to open. The defendant testified that kerosene located
beside the refrigerator and beside the kerosene heater in the living room were
routinely kept there as a matter of convenience. He explained that he had spilled
some kerosene while filling the heater on two or three different occasions. The
defendant testified that he had purchased the smoke detector found on the dryer as
a Christmas present for his mother and stepfather; his mother had returned the gift
after noticing a strong kerosene smell at the defendant's residence. The defendant
claimed the smoke detector was inoperable because the victim kept forgetting to
buy batteries. He stated that the detector had been taken down a few days before
while the kitchen was being painted.

The defendant believed that his neighbor, Stacy Floyd, might have started the fire
by throwing a "molotov cocktail." He testified that the victim told him she had
stolen eighty dollars and some marijuana from Ms. Floyd's mobile home on the
day of the fire. The defendant acknowledged that he and the victim smoked some
of the marijuana later that evening. He suggested that the girlfriend of the
victim's uncle was a possible suspect in the crime. The defendant admitted that
he had "beaten" the victim on three prior occasions.

When asked why he "ran off" to Kansas after being questioned about the fire, the
defendant claimed that he had gone there to stay with his mother. He testified
that several people knew how to reach him there, including his aunt, whose
telephone number he had given to the police.

Fireman William McCormick testified for the defense. He stated that he and
Captain Corbin had to restrain the defendant from re-entering the house. When
he asked the defendant about his relationship to the person trapped inside, he
claimed that the defendant said that he was her brother. McCormick noted that
the defendant smelled of alcohol and appeared to be "slightly intoxicated."

Captain Corbin confirmed that he had to help McCormick restrain the defendant.
He testified that the defendant, who appeared to be intoxicated, began beating on
the door of the fire truck and frantically telling firemen that the victim was in the
bedroom.

Henry Lance, the victim's grandfather, testified that he had known the defendant
for about a year and that the two had worked together. He had observed the
defendant and victim together on numerous occasions and believed that they "got
along all right."

Sylvia Hall, wife of the victim's cousin, testified that the defendant and the victim
had lived with her and her husband for approximately two months before renting



                                        -5-
      their own home. She said that the victim and the defendant argued, like "normal
      couples" do, but never engaged in a physical confrontation. She did, however,
      admit that the victim once claimed to have received bruises during a fight with
      the defendant.

      The defendant's aunt, Gladys Adkins, testified that the defendant stayed at her
      home for about a week after his house burned. She stated that she transported
      him back to the hospital to get the burns on his face, forehead, nose, hand, and
      arm redressed. At the end of his stay, she and her daughter drove the defendant to
      the bus station so that he could travel to Kansas to stay with his mother.

      Betty Satterfield, the defendant's mother, corroborated the defendant's claim
      about the smoke detector. She recalled having observed that the defendant stored
      extra kerosene inside the house. Ms. Satterfield claimed that, after the fire, she
      called her sister-in-law and asked her to send the defendant out to Kansas so she
      could take care of him.

      Connie Matthews, a waitress at the bar the defendant and victim visited on the
      evening of the fire, confirmed that the two were there until about 2:00 a.m. She
      testified that the victim and the defendant had not fought during the course of the
      evening but had noticed that the victim seemed to be fearful of the defendant.
      Sometime after the fire, the defendant stopped at the bar and told Ms. Matthews
      that he did not kill the victim. She said he also showed her a pistol and told her
      that it was for "anybody who wanted to mess with him."

      The state called Stacy Floyd to testify in rebuttal. She testified that she and her
      roommate had a party on the night of the fire. Because it was a warm night and
      she had no air conditioning, Ms. Floyd had left her door open and, therefore,
      remembered the defendant and victim returning to their residence at
      approximately 3:00 a.m. Ms. Floyd, who thought about inviting them to join her
      party, decided not to because it was raining. Ms. Floyd empathically denied that
      she had started the fire, as the defendant theorized, and denied having a motive to
      do so.

      Tina Harris, the victim's supervisor at Uno's Pizzeria for approximately a year and
      a half, also testified in rebuttal. Ms. Harris, who described the victim as friendly
      and very "happy-go-lucky," remembered her coming to work once with a black
      eye and marks on her leg and lower back.

      On surrebutal, the defendant reiterated that he had never struck the victim. He
      also contended there was not a party at Ms. Floyd's trailer when he and the victim
      came home on the night of the fire. He denied that it was raining that evening.

State v. Garrett, No. 01C01-9403-CR-00081, 1996 WL 38105, at *1-5 (Tenn. Crim. App. Feb.
1), perm. app. denied, (Tenn. July 8, 1996) (emphasis added).

                                              -6-
                                             Analysis

        The defendant asserts four issues for review in this appeal: (1) juror misconduct and bias
violated the defendant’s constitutional rights; (2) the defendant was not afforded effective
assistance of counsel; (3) the trial court erred by unconstitutionally instructing the jury; and (4)
the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), thereby undermining the confidence in the outcome of the
trial.

                                       I. Jury Misconduct

        The defendant contends that juror misconduct and bias resulted in a violation of the
defendant's constitutional rights. Specifically, the defendant claims that juror Stephanie
Huffman untruthfully answered questions in voir dire regarding family members being fire and
police officers. Defendant also claims that Ms. Huffman made comments in jury deliberations
referring to the integrity of her cousins in California that were fire and police officers.

         Although the defendant appears to raise colorable allegations of constitutional violations,
the trial court heard the matter and denied the defendant a new trial. Further, this Court affirmed
that decision on direct appeal stating:

       [T]he defendant claims that he should have been granted a new trial because Ms.
       Huffman, a juror, was dishonest in voir dire when she denied that any members of
       her family were in law enforcement. He argues that, but for her untruthful
       answer, she would not have been seated as a juror because of her potential bias
       toward the state. He further insists that statements the juror made during
       deliberations show that she had an actual bias against the defendant, thus
       depriving him of a fair trial.

       The common law rules governing challenges to juror qualifications fall into two
       categories: (1) propter defectum or (2) propter infectum. Partin v. Henderson,
       686 S.W.2d 587, 589 (Tenn. Ct. App. 1984). Objections based upon general
       disqualifications, such as alienage, family relationship, or statutory mandate, are
       within the proper defectum class and, as such, must be made before the return of a
       jury verdict. Literally translated, proper defectum means "on account of defect."
       State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993).

       In contrast, a propter affectum challenge, translated as "on account of prejudice,"
       is based upon the existence of bias, prejudice, or partiality towards one party in
       the litigation "actually shown to exist or presumed to exist from circumstances."
       Durham v. State, 182 Tenn. 577, 588, 188 S.W.2d 555, 559 (1945); see also
       Toombs v. State, 197 Tenn. 229, 270 S.W.2d 649 (1954). Propter affectum
       challenges may be made after the return of the jury verdict. State v. Furlough,



                                                -7-
       797 S.W.2d 631, 652 (Tenn. Crim. App. 1990). A juror who conceals or
       misrepresents information tending to indicate any lack of impartiality may be
       challenged upon motion for new trial. The burden is on the defendant to show
       that the juror had an actual bias or prejudice. State v. Caughron, 855 S.W.2d 526,
       539 (Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475 (1993).

       At the hearing on the defendant's motion for a new trial, juror Nicholson testified
       that he believed Ms. Huffman had been untruthful in voir dire by failing to
       answer affirmatively that she had relatives in law enforcement. According to
       Nicholson, Ms. Huffman related to fellow jurors during deliberations that she had
       relatives who worked in both the fire and police departments in California and
       that she believed people holding those types of positions were heroes who would
       not "compromise a crime scene" or make a mistake during a "search and rescue."
       Nicholson stated that he then asked her why she failed to mention this connection
       in voir dire; he claimed she did not respond.

       Ms. Huffman also testified at the hearing and denied having any law enforcement
       officers in her immediate family. She conceded that a third cousin worked as a
       firefighter in California. Ms. Huffman further stated that she had mentioned her
       cousin during jury deliberations, but denied saying that members of her family
       worked for the Police or the Sheriff's Department.


       The trial court found that Ms. Huffman had not been dishonest in answering the
       questions propounded to her during voir dire. It ruled that Ms. Huffman was
       asked only whether she had family members who were law enforcement
       personnel, a category which does not encompass firefighters, and that her answers
       were truthful. The trial court concluded that the circumstances had not prejudiced
       the defendant's right to a fair trial. Findings of fact made by the trial court are
       given the weight of a jury verdict. See State v. Burgin, 668 S.W.2d 668 (Tenn.
       Crim. App. 1984). The trial court chose to credit the testimony of Ms. Huffman;
       it acted within its prerogative in doing so. We cannot reverse the holding unless
       the evidence preponderates against the conclusion reached by the trial court. It
       does not in this instance.

State v. Garrett, No. 01C01-9403-CR-00081, 1996 WL 38105, at *8-9 (Tenn. Crim. App. Feb.
1), perm. app. denied, (Tenn. July 8, 1996).


       The trial court granted the defendant a hearing on this matter and denied the defendant
any relief, which was upheld on direct appeal. See Garrett, 1996 WL 38105, at *8-9. An
appellant may not, by way of a post-conviction proceeding, relitigate questions decided and
disposed of on direct appeal. Harvey v. State, 749 S.W.2d 478 (Tenn. Crim. App. 1987); Searles
v. State, 582 S.W.2d 389 (Tenn. Crim. App. 1976); see Tenn. Code Ann. § 40-30-206(h).


                                              -8-
Therefore, this claim, having already been litigated and disposed of on direct appeal, is not
properly before this Court.

                              II. Ineffective Assistance of Counsel

        Defendant next alleges that he received ineffective assistance of counsel at trial.
Defendant claims the following instances of ineffective assistance of counsel: (1) failure to
interview prosecution witnesses; (2) failure to make an adequate record of violations of
sequestration of witnesses; and (3) failure to request Jenks Act material. Defendant also argues
that the cumulative effect of various other omissions amounted to prejudice sufficient to
undermine confidence in the result of the trial.

         Post-conviction defendants bear the burden of proving their allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the appellate court accords
the trial court’s findings of fact the weight of a jury verdict, and these findings are conclusive on
appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

        The Sixth Amendment to the United States Constitution and Article I, section 9 of the
Tennessee Constitution both require that a defendant in a criminal case receive effective
assistance of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
constitutionally ineffective assistance of counsel, the standard applied by the courts of Tennessee
is “whether the advice given or the service rendered by the attorney is within the range of
competence demanded by attorneys on criminal cases.” Summerlin v. State, 607 S.W.2d 495,
496 (Tenn. Crim. App. 1980).

         In Strickland v. Washington, the United States Supreme Court outlined the requirements
necessary to demonstrate a violation of the Sixth Amendment right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the defendant
must show that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms and must demonstrate that counsel made errors so serious that he
was not functioning as “counsel” guaranteed by the Constitution. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064. Second, the defendant must show that counsel’s performance prejudiced him
and that errors were so serious as to deprive the defendant of a fair trial, calling into question the
reliability of the outcome. Id.; Henley, 960 S.W.2d at 579.

         “When addressing an attorney’s performance it is not our function to ‘second guess’
tactical and strategic choices pertaining to defense matters or to measure a defense attorney’s
representation by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)). Rather, a court reviewing counsel’s performance should “eliminate
the distorting effects of hindsight . . . [and] evaluate the conduct from the perspective at the
time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “The fact that a particular strategy or
tactic failed or hurt the defense, does not, standing alone, establish unreasonable representation.”



                                                 -9-
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). On the other hand, “deference to matters of
strategy and tactical choices applies only if the choices are informed ones based upon adequate
preparation.” Goad, 938 S.W.2d at 369.

        To establish prejudice, a party claiming ineffective assistance of counsel must show a
“‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at
2068.).

        In reviewing a claim of ineffective assistance of counsel, an appellate court need not
address both prongs of Strickland if it determines that the defendant has failed to carry his
burden with respect to either prong. Henley, 960 S.W.2d at 580. When the claim is predicated
upon counsel’s failure to present potential witnesses, their testimony should be offered at the
post-conviction hearing. In this manner the court can consider (1) whether a material witness
existed and could have been discovered but for counsel’s neglect or a known witness was not
interviewed by counsel; and (2) whether the failure to discover or interview a witness prejudiced
the defendant or the failure to call certain witnesses denied critical evidence to the prejudice of
the defendant. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

        The defendant first asserts that his trial counsel did not interview two key witnesses,
specifically Fire Captain Otis Jenkins and Detective David Miller. However, at the post-
conviction relief hearing the defendant’s trial counsel testified that he spoke with Detective
Miller over the phone and Detective Miller told him that the door was unlocked. This
information from Miller did not contradict what the District Attorney had told trial counsel; that
he had no information that the door was locked. Trial counsel made adequate effort to contact
the detective and did in fact speak with him.

        Defendant’s trial counsel did not, however, speak with Captain Otis Jenkins. Trial
counsel testified at the post-conviction relief hearing that he repeatedly phoned and attempted to
contact various fire fighters, including Captain Jenkins. Trial counsel also testified that he left
messages for these individuals to return his calls. Furthermore, trial counsel consulted with the
defendant about which witnesses to contact and subpoena. We find that trial counsel made an
adequate attempt to contact the prosecution witnesses and agree with the trial court’s conclusion
that this was not ineffective assistance of counsel.

        Next, the defendant asserts that trial counsel failed to make an adequate record of
violations of the sequestration of witnesses. Although this violation may have been an important
event in the underlying trial that caused potential problems, trial counsel testified that he did not
know at that point in the trial whether the violations were serious enough to ask for a mistrial.
The defendant should have called, at the post-conviction hearing, the alleged witnesses who
were part of the violation to substantiate the potential prejudice of the violations to allow the
post conviction court to determine whether a mistrial would have been proper. The defendant
did not call such witnesses.


                                                -10-
        We do note that in the direct appeal this Court relied on trial counsel’s inactions in
holding that there was insufficient information in the record to determine whether the trial court
erred in its handling of the sequestration violations. We stated, “We must presume . . . that the
trial court acted appropriately. Moreover, the defendant did not request that the trial court take
curative measures, nor did he voice any objection to the manner in which the court handled the
matter. That constitutes a waiver of the issue.” State v. Garrett, No. 01C01-9403-CR-00081,
1996 WL 38105, at *8 (Tenn. Crim. App. Feb. 1), perm. app. denied, (Tenn. July 8, 1996)
(citations omitted).

        Although we previously placed significant weight on the fact that the defendant waived
this issue, our reliance alone does not deem that inaction by trial counsel constitutionally
ineffective assistance of counsel. In fact, issues are waived through the course of many criminal
trials and seldom do they give rise to a successful ineffective assistance claim. While it is
obvious that the post-conviction court neglected to make findings of fact and conclusions of law
on this issue, after a complete review of the record and the transcript, we do not think that trial
counsel’s waiver of this issue amounted to ineffective assistance of counsel causing prejudice
that undermined the confidence in the outcome of the trial.

        Next, the defendant claims that trial counsel’s failure to request Jencks material on three
different occasions amounted to ineffective assistance of counsel. The three witnesses that the
defendant claims trial counsel was unable to effectively cross-examine because of his failure to
request Jencks material were Fireman Hunt, Captain Otis Jenkins, and Detective David Miller.

        Tennessee Rule of Criminal Procedure 26.2, commonly known as the Jencks Act,
provides for, upon motion of the party that did not call the witness, production of any statements
made by that witness relating to the subject matter of their testimony. The moving party is
entitled to such statement only after the witness has testified on direct examination. Tenn. R.
Crim. P. 26.2. As this court has previously held in State v. Robinson, 618 S.W.2d 754, 760
(Tenn. Crim. App. 1981), this provision applies to reports made by officers during the course of
an investigation. In the event the non-moving party claims that the material contains matter not
relating to the subject matter testified to by the witness, “the court shall order that it be delivered
to the court in camera . . . [and] the court shall excise portions of the statement that do not relate
to the subject matter concerning which the witness has testified.” Tenn. R. Crim. P 26.2(c).

         Although trial counsel could have requested Fireman Hunt’s report that he filed after the
fire, the defendant did not present any evidence at the post-conviction hearing on how the failure
to request this report prejudiced the outcome of the trial. Defendant also failed to show how this
report could have been used to effectively cross-examine Fireman Hunt. Therefore, there is no
evidence that this failure undermined the confidence in the outcome of the trial nor rendered the
defendant’s assistance of counsel ineffective.

       A more plausible argument has been made for the failure to request Detective David
Miller’s report. This report, which the prosecution never produced, contained detailed



                                                 -11-
information about Miller’s investigation and revealed that Captain Jenkins reportedly found the
door to the utility room unlocked. Regarding cross-examination of Detective Miller, however,
there is no evidence how the report could have been used effectively against him. If defense
counsel would have possessed the report, the report could possibly have been used by calling
Miller as a rebuttal witness to potentially impeach Captain Jenkins’ testimony at trial that the
door to the utility room was locked. However, the most damaging portion of the report that
would have been used for impeachment, Jenkins’ statement, most likely would have been
excised from the report in the event the prosecution objected to its production because it was not
Detective Miller’s statement. See, e.g., State v. Jones, 1989 WL 1123 (Tenn. Crim. App. filed
Jan 11, 1989, at Nashville); see also Robinson, 618 S.W.2d 754. Although the post-conviction
court failed to make findings of fact and conclusions of law on this issue also, after reviewing
the record, we find that this failure did not undermine the confidence in the outcome of the trial
and did not render counsel’s assistance ineffective.

       The defendant’s assertion that trial counsel’s failure to request Jencks material from
Captain Jenkins constituted ineffective assistance of counsel is misplaced. In Tennessee Rule of
Criminal Procedure 26.2(g), a statement for purposes of Jencks material means:

       (1) A written statement made by the witness that is signed or otherwise adopted or
       approved by the witness; or (2) A substantially verbatim recital of an oral
       statement made by the witness that is recorded contemporaneously with the
       making of the oral statement and that is contained in a stenographic, mechanical,
       electrical, or other recording or a transcription thereof.

        The defendant has submitted no such evidence that any Jencks material existed
pertaining to Captain Jenkins. Defendant only asserts that he could have impeached Captain
Jenkins on his prior inconsistent statement. Although this assertion is correct, the material that
would have been used to impeach Jenkins would not have come from a Jencks request of
Jenkins; the material would have come from Miller’s report. The defendant has not shown that
there were any statements that trial counsel could have received upon a Jencks request after
Jenkins’ direct testimony. Therefore, we find that counsel was not ineffective for this failure.

        The defendant’s final assertion of ineffective assistance of counsel is based on the fact
that trial counsel failed to cross-examine the State’s witnesses regarding the omission of a
kerosene soaked bedspread in front of the refrigerator on the diagrams of the crime scene. The
prosecutor listed a bedspread on the evidence log; however, by looking at crime scene diagrams
trial counsel had no knowledge of the location of such evidence at the crime scene. This
bedspread was not included on a sketch of the crime scene made by crime scene Fire
Investigator Kenneth Porter, Jr. nor others who made crime scene sketches. In fact, this piece of
evidence was found by prosecution investigator West after the fire investigators concluded their
investigations and prepared their reports.

        This discrepancy most likely did not appear as significant until the defendant discovered
the letter from the Metro Police Department’s homicide division pointing out that the bedspread
needed to be added to the diagrams to avoid any questions of the crime scene, which is one of the

                                               -12-
bases of the defendant’s Brady violation claim. In hindsight, perhaps trial counsel should have
cross-examined the State’s witnesses on the omission of this crucial piece of evidence when they
began to testify about finding it at the crime scene. However, we cannot merely speculate as to
what trial counsel should have and would have asked, given the lack of knowledge of the
homicide department’s letter. Although the post-conviction court neglected to make findings of
fact and conclusions of law on this issue also, after review of the post-conviction petition and
hearing, we find that the defendant did not present sufficient evidence that trial counsel rendered
ineffective assistance of counsel when he failed to cross-examine the State’s witnesses regarding
the omission of a kerosene soaked bedspread in front of the refrigerator on the diagrams of the
crime scene.

        After review of the record and considering the unique situation that trial counsel was
placed after receiving information from the prosecutor that was contradicted by the State’s
witnesses, we hold that the cumulative effect of trial counsel’s errors does not rise to the level of
constitutionally ineffective assistance of counsel.

                   III. Moral Certainty/Mind Rest Easily Jury Instructions

        The defendant next asserts that the trial judge incorrectly instructed the jury. Initially, we
again note the post-conviction court’s omission of findings of fact and conclusions of law
pertaining to this and other issues even after remand with instructions to do so. Therefore, we
will again take it upon ourselves to review the entire record before us to make such findings and
conclusions.

       The defendant specifically contends that the jury instruction given by the trial judge
lowered the burden of proof by which the State had to prove him guilty of every element of the
offense. Defendant points to the following instruction on reasonable doubt as being erroneous:

       Reasonable doubt is that doubt engendered by an investigation of all the proof in
       the case, and an inability, after such an investigation, to let the mind rest easily as
       to the certainty of guilt. Reasonable doubt does not mean a capricious, possible, or
       imaginary doubt. Absolute certainty of guilt is not demanded by the law to convict
       of any criminal charge, but moral certainty is required as to every proposition of
       proof requisite to constitute the offense.

       The defendant points to one Federal District Court case, Rickman v. Dutton, 864 F. Supp.
686 (M.D. Tenn. 1994), in support of his contention that the trial court incorrectly instructed the
jury. In Rickman, the Federal District Court for the Middle District of Tennessee held that the
“moral certainty language in conjunction with the mind rest easily language suggests to a
reasonable juror a lower burden of proof than what is constitutionally required.” Rickman, 864 F.
Supp. at 707. However, as this Court recently pointed out, “the Sixth Circuit has cast grave doubt
on the viability of the district court’s ruling in Rickman by upholding the constitutionally of the
reasonable doubt/moral certainty instruction given at a Tennessee death-row inmate’s trial in



                                                -13-
Austin v. Bell, 126 F.3d 843, 846-47 (6th Cir. 1997), cert. denied, ___ U.S. ___, 18 S. Ct. 1526,
1547, 140 L. Ed. 2d 677 (1998).” Williams v. State, No. 01Co1-9709-CR-00441, 1998 WL
748689, at *1 (Tenn. Crim. App. 1998). Furthermore, the Tennessee Supreme Court has
repeatedly upheld the constitutionally of substantially identical jury instructions as the ones the
defendant contends are erroneous. See, e.g., State v. Bush, 942 S.W.2d 489, 520-21 (Tenn.
1997); State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994). In light of the foregoing precedent,
we hold that the trial court’s jury instructions pertaining to moral certainty in this case are also
constitutional.

                                             IV. Brady Violation

        The defendant claims that his constitutional rights were violated when the prosecution
withheld exculpatory evidence that was material, which undermined the confidence in the
outcome of the trial. Defendant points to three different items that he received after the
conclusion of his direct appeal as the basis of his claim. These items include: (1) an eleven-page
report from Detective David Miller, which contains a summary of Miller’s conversations with
Fire Captain Otis Jenkins indicating that the door to the utility room where the victim was found
was not locked (Miller Report); (2) a toxicology report that indicated the defendant had a blood
alcohol level of .11 after the fire (Toxicology Report); and (3) a diagram of the fire scene attached
to a letter from the homicide department instructing the Fire Marshall’s office to make several
changes and additions to the fire department’s depiction of the fire scene in order to avoid any
questions about discrepancies before placing a diagram in the homicide file (Homicide Letter).1

        The Due Process Clause of the Fourteenth Amendment to the United States Constitution
and the “Law of the Land” Clause of Article I, section 8 of the Tennessee Constitution affords all
criminal defendants the right to a fair trial. The United States Supreme Court, in Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), 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 punishment, irrespective of good faith or bad faith of the
prosecution.” See also Hartman v. State, 896 S.W.2d 94, 101-02 (Tenn. 1995). The duty to
disclose extends to all “favorable information” regardless of whether the evidence is admissible at
trial. State v. Marshall, 845 S.W.2d 228, 232-33 (Tenn. Crim. App. 1992); Branch v. State, 469
S.W.2d 533, 534-36 (Tenn. Crim. App. 1969). Exculpatory evidence includes information or
statements of witnesses which are favorable to the accused and evidence in which the defense
may use to impeach a witness. See State v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995); State v.
Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998); Irick v. State, 973 S.W.2d 643, 657
(Tenn. Crim. App. 1998); see also United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375,
3380, 87 L. Ed. 2d 481 (1985); McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988), cert. denied,
489 U.S. 1033, 109 S. Ct. 1172, 103 L. Ed. 2d 104 (1972).



1
  Although Appellant does not extensively address this letter and diagram in his brief, Appellant did assert the
importance of these in his petition and addressed them at the post-conviction hearing. Therefore, upon our review of
the entire record on appeal, we will also address their importance.

                                                        -14-
       The Tennessee Supreme Court has held on several occasions that in order to establish a
Brady violation, the defendant must show the existence of four elements: (1) that the defendant
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) that the State withheld the
information; (3) that the withheld information was favorable; and (4) that the withheld
information was material. See Erskine Leroy Johnson v. State, No. W1997-00024-SC-R11-PD
(Tenn., filed January 19, 2001, at Jackson); Walker, 910 S.W.2d at 389; State v. Edgin, 902
S.W.2d 387, 390 (Tenn. 1995).

        While there is some confusion about whether the toxicology report was disclosed, we do
not find that the State withheld that particular information nor do we believe that the defendant
could have used this information to convince the jury to make a different guilt determination.
After all, the defendant presented information to the jury of his intoxication. We do, however,
find some problems with the letter sent by the homicide department to the Fire Marshall’s office
instructing the Fire Marshall’s office to alter their fire scene diagram. Although the discoverable
nature of this letter and attached diagram are questionable, the defendant potentially could have
used this material in preparing an effective cross examination of any of the investigators, firemen,
or officers that responded to or investigated the scene. However, we do not believe that
suppression of this information alone undermined the confidence of the verdict. See, e.g., Irwick,
973 S.W.2d 643.

         We are most troubled with the eleven-page Miller Report, which was not disclosed to the
defendant. The State contends that this report was neither withheld, exculpatory, nor material.
We disagree in all respects. The evidence in the post-conviction hearing showed that the
prosecutor led defense counsel to believe that the State had no information about the locked or
unlocked status of the utility room door. However, at trial the State’s witnesses testified that the
utility room door was locked and the prosecutor submitted to the jury as the theory of the State’s
case that the defendant locked the victim in the utility room and set the house on fire. Therefore,
the State did have, prior to trial, information that the door was locked. In fact, not only did the
State have information that the door to the utility room was locked, but they also possessed the
eleven-page Miller Report, which indicated otherwise: that Fire Captain Jenkins, who was the
first to enter the utility room and find the victim’s body, found the door unlocked.

         This eleven-page report was clearly withheld from the defendant. However, the State, in
its brief, claims that because Officer Miller informed defense counsel that the door was unlocked
then this information was not withheld. The State’s assertion that the defendant was aware that
the State had no information that the door was locked is undermined by the State relying so
heavily at trial on testimony that the door was locked. Assistant District Attorney General
Zimmerman, when questioned at the post conviction hearing as to why he did not include the
eleven-page report in discovery, stated, “I felt like Detective Miller’s recollection was vague, he
could not specifically remember the conversation he had with Captain Jenkins, and all he knew is
what he had recorded in his report, which was equivocal, at best, and Jenkins was absolutely clear
on it.” This Court is extremely troubled with General Zimmerman’s decision to himself



                                               -15-
determine the reliability of the evidence and to refuse to turn over evidence he believes is
unreliable, especially when the evidence is requested and is exculpatory.

       Essentially, the State intentionally withheld the information by leading the defendant to
believe they had no information about the status of the door and then pursuing the very opposite
theory at trial: that the defendant had locked the victim in the utility room and set the house on
fire. We agree with the defendant that the information was withheld.

        The State next contends that the information was not exculpatory. This report was clearly
exculpatory given the State’s theory of the case. The State painted a picture of the defendant
locking the victim in the utility room and then pouring kerosene on the floor and setting the house
on fire in order to kill the victim. The information in the report clearly indicated that when
Captain Jenkins found the victim he remembered the door to the utility room being unlocked. In
fact, Captain Jenkins is the one person that would have the most reliable information about the
status of the door because he was the one who entered the utility room and found the victim. This
report was clearly impeachment material that the defendant could have used to undermine the
State’s entire theory. On direct appeal of this case, prior to the defendant’s knowledge of the
eleven-page report, Judge Wade stated:

       The defendant next claims that the trial court improperly refused to grant a mistrial
       despite the state’s failure to disclose, in advance of trial, the fact that Captain
       Jenkins had found that the utility room door was locked. He claims that this
       failure to disclose denied him Brady material. The state’s response is that the
       defendant was not entitled to the evidence under Brady because it was inculpatory
       rather than exculpatory and was not impeachment evidence. . . . That the victim
       was found in a room which had been locked from the outside was damaging to the
       defendant’s case. Had the door not been locked, one of the defendant’s
       hypothesis, that the victim went in the utility room and shut the door in an attempt
       to escape the fire, might have been viable. With the door being locked from the
       outside, however, the logical inference was that the defendant had locked the
       victim in the utility room, set the house on fire, and left the victim to die. In our
       view, the evidence was not exculpatory. The defendant also argues that he was
       entitled to this information because he could have used it to impeach Captain
       Jenkins. He has failed, however, to explain his basis for this assertion. Captain
       Jenkins had not previously made any written or oral statement. We are, therefore,
       unable to see how this statement that the utility room door was locked could have
       been used for impeachment.

Garrett, 1996 WL 38105, at *6-7 (emphasis added). The record reveals that Officer Miller’s
report, which Officer Miller contends is correct, contained an oral statement by Captain Jenkins
that supported what Judge Wade classified as a “viable defense.” Id. at *6.

        When viewed in light of the State’s theory, we believe the withheld eleven-page police
report is clearly favorable to the defendant. As Judge Wade noted in the direct appeal, such a
contradictory statement would tend to corroborate the accused’s potentially viable defense.

                                               -16-
Moreover, Zimmerman’s own testimony at the post-conviction hearing supports the exculpatory
nature of the report. Zimmerman testified as follows:

      Q. Is the report from Detective Miller, the 11-page report, that has already been
         put into evidence in this case, indicating the conversation between Detective
         Miller and Fire Captain Otis Jenkins, in your file?

      A.      Oh, yes.

      Q.     Had you –

      A.     And I asked Captain Jenkins specifically about that statement when I
             interviewed him.

      Q.     When you interviewed him? When?

      A.     Before the trial?

      Q.     Before this hearing or before the trial?

      A.     No. Before the trial. And I asked him about that and he denied ever
             making it. He said, “I didn’t say that”. And his memory was extremely
             clear, because he’s the one who unlatched the door.

      Q.     So you had read this report before trial?

      A.     Absolutely. And knew about it and confronted Mr. Jenkins. I said, “This
             is what Detective Miller said”. He said, “Well he’s wrong, I never said
             that”.

      Q.     Did you – what was your opinion regarding this information? Did you
             consider it to be exculpatory information?

      A.     No, I didn’t. I knew that – I knew that Detective Miller had interviewed a
             lot of witnesses in this case, and sometimes detectives get things wrong.
             It’s not unusual for a detective to misunderstand a witness, and that’s why I
             specifically asked Captain Jenkins.

             I don’t know that I showed Captain Jenkins the words that Captain Miller
             put in his report, but I told him, I said, “Well” – and I told him that
             Detective Miller said that the best he could remember, and so forth. And
             he said, “No. I never told him that. He asked if he was locked and he said,
             ‘Yes’”. And how detective Miller got it, I don’t know.



                                              -17-
       Q.      So – but it was your – it was your opinion in the preparation of this trial
               that this information was not exculpatory information, that the defense had
               no right to it; is that what you’re saying?

       A.      Well, all I’m saying is this, that what Detective Miller thought he heard
               was incorrect. Detective Miller still, to this day, doesn’t recall the
               conversation, he just recalls what he put down in the report. But when you
               ask Detective Miller about it, the only recollection he’s written in his
               report, but he doesn’t recall the conversation. That’s – that’s the problem
               you deal with in this kind of thing.

       Q.      Did you not consider this to be sort of like having one of your material
               witnesses misidentified, or in some way misidentified the defendant?

       A.      Well, again, let me say this, when the – when a police officer records
               something that a witness tells him, you always confront the witness first:
               “Did you say this to the police officer? This is what they wrote down.”
               “No. I didn’t say it”; or, “Yes. I said this:; or, “This is what I mean”; or,
               “He only got part of it.” Particularly on a description, because sometimes
               descriptions are a collection of many different witnesses and what they say.

               I felt like Detective Miller’s recollection was vague, he could not
               specifically remember the conversation he had with Captain Jenkins, and
               all he knew is what he had recorded in his report, which was equivocal, at
               best, and Jenkins was absolutely clear on it.

The unavailability of this report, when viewed in light of the State’s theory of the case and Judge
Wade’s classification of such unavailable statement in the direct appeal, combined with General
Zimmerman’s own testimony in the post-conviction hearing, clearly evinces the exculpatory
nature of the unavailable statement. Furthermore, the statement could have been introduced by
calling Miller to the stand to testify about Jenkins’ prior inconsistent statement, thus impeaching
Jenkins’ testimony. Accordingly, we conclude that the defendant has successfully established the
third element needed to assert a constitutional violation under Brady.

        The final step in analyzing this Brady claim is whether the failure of the State to disclose
the eleven-page Miller Report was material in determining guilt.

        Whether the information in this case is material to proving guilt is somewhat complex
given the nature of the crime charged, murder in the perpetration of a felony: to wit arson. If this
were a premeditated and intentional first degree murder, there is no question that the information
that the door was unlocked would have been material. Any evidence that the defendant locked
the victim in the room prior to setting the fire would be very material in proving premeditation
and intent to kill under Tennessee Code Annotated section 39-13-202(a)(1). However, to convict
a person for felony murder, “[n]o culpable mental state is required for conviction under

                                               -18-
subdivision (a)(2) . . . except the intent to commit the enumerated offenses or acts in such
subdivisions.” Tenn. Code Ann. § 39-13-202(b). Therefore, the State must prove that the
defendant intentionally caused an arson and someone died in the perpetration of that arson. We
take judicial notice of this court’s opinion in the direct appeal that the defendant was convicted of
murder in the perpetration of a felony: to wit arson.

         The nature of felony murder calls into question the materiality of whether the door to the
utility room was locked or unlocked. If the jury determined that the defendant intentionally
committed an arson and someone died as a result of the arson then the defendant would be guilty
of felony murder. Such an analysis might normally lead one to conclude that because this was a
conviction for felony murder, then the information about the status of the door was immaterial
because the State only has to show intent to commit the arson, not intent to kill. However, in this
case, and as noted by this Court on direct appeal, the crux of the State’s theory was that the
defendant locked the victim in the room and set the house on fire, and left the victim to die. The
State relied heavily on the fact the utility room door was locked, apparently to show intent to
commit the arson and the door being locked was damaging to the defendant’s case. By heavily
relying on this piece on information and painting such a picture before the jury, the State clearly
established the materiality of the status of the door.

        The Tennessee Supreme Court has established that evidence is material when “there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Edgin, 902 S.W.2d at 390 (adopting the United States
Supreme Court’s materiality standard set out in Kyles v. Whitley, 514 U.S. 419, 435 n.8 (1995)).
Despite the use of the word “probability” in our state’s cases, “the test of materiality is not
whether the defendant would more likely than not have received a different verdict had the
evidence been disclosed. Nor is the test of materiality equivalent to that of evidentiary
sufficiency, such that we may affirm a conviction . . . when, ‘after discounting the inculpatory
evidence, the remaining evidence is sufficient to support the jury’s conclusions.’” Johnson, No.
W1997-00024-SC-R11-PD, at *6 (quoting and citing Strickler v. Green, 527 U.S. 263, 275
(1999)). Essentially, “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.’” Id. at *7
(quoting Kyles, 514 U.S. at 434).

        Here, the State asserts that “[i]n light of the significant evidence presented at trial of the
defendant’s guilt, . . . any error on the part of the State by failing to produce the police report
resulted in no prejudice to the defendant.” The State pursued the same theory in Erskine Leroy
Johnson v. State, No. W1997-00024-SC-R11-PD (Tenn., filed January 19, 2001, at Jackson). The
Johnson court pointed out that a Brady inquiry is not akin to a sufficiency of the evidence
question and stated that “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.’” Id. at *7 (quoting Irwick, 973 S.W.2d at 657).
The Supreme Court discounted the State’s argument in Johnson that even if the prosecutor had
turned over an exculpatory report and the defendant could have rebutted some of the facts going
to prove an enhancing factor, the jury still could have found the presence of the enhancing factor
from the remaining evidence. Id. at *11. We reject the State’s same argument here as well. In

                                                -19-
essence, the Supreme Court found, as we do here, that the State established the materiality of
certain evidence via its particular theory of the case. See id. at *8.

        After our review of the record on appeal, we, as our Supreme Court did in Johnson, find
that the withheld police report can reasonably be taken to place this case in such a different light
as to undermine our confidence in the verdict, even though sufficient evidence may have
otherwise existed to prove the existence of intent to commit the underlying arson. As in Johnson
and Kyles, the “likely damage” from the suppression of the eleven-page report is best understood
by considering the State’s theory of the case: that the defendant locked the victim in the utility
room and set the house on fire. By the State relying so heavily on this theory combined with the
withheld report that would have shown otherwise, we are not confident that every member of the
jury would have still discounted the defendant’s theory and come to the same conclusion.
Therefore, we hold that withheld police report is material within the meaning of Brady and its
progeny. Because the State withheld exculpatory information which was material to the showing
of guilt, and because the withholding of that information undermines our confidence in the
outcome of the trial, we hold that the State committed such a Brady violation as to require a new
trial.

                                V. Inadequate Jury Instructions

       In reviewing the record before us, specifically the portion of jury instructions in the
record, we are troubled with the fact that the jury was not instructed on the elements of the
underlying felony, arson. The portion of jury instructions in the record read as follows:

                                   FIRST DEGREE MURDER

         Any person who commits first degree murder is guilty of a felony. For you to
         find the defendant guilty of this offense, the state must have proven beyond a
         reasonable doubt the existence of the following elements:

            (1)   that the defendant unlawfully killed the alleged victim; and

            (2)   that the killing was committed in the perpetration of or the attempt to
                  perpetrate the alleged arson; that is that the killing was closely
                  connected to the alleged arson and was not a separate, distinct and
                  independent event; and

            (3)   that the defendant intended to commit the alleged arson; and

            (4)   that the killing was the result of a reckless act by the defendant.

The court went on to define “reckless” and “intentionally” and instructed the jury on the lesser
included offense of second degree murder. It is apparent from the included jury instructions that
the jury was never charged on the elements of the underlying felony offense of arson. When read
as a whole, the instructions seem inadequate to convict a defendant for felony murder and serve to

                                                -20-
reinforce the materiality of whether the door was locked. Not only do these inadequate
instructions give rise to the materiality issue, they also call into question whether the instructions
were so inadequate as to be plain error.

        Although appellate courts of this state do not normally consider issues that are not raised
at the trial court, “plain error is a proper consideration for an appellate court whether properly
assigned or not.” State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984). Rule 3 of the Tennessee Rules
of Appellate Procedure embodies the common law practice that challenge to a particular jury
instruction is deemed waived unless the instruction contains plain error. See State v. Cravens,
764 S.W.2d 754, 756-57 (Tenn. 1989); Davis v. State, 793 S.W.2d 650, 651 (Tenn. Crim. App.
1990). Rule 52(b) of the Tennessee Rules of Criminal Procedure states that plain error is an error
affecting “the substantial rights of the accused,” and may be noticed at any time “where necessary
to do substantial justice.” A substantial right is proof of every element of the offense and is one
that is constitutional in nature. See State v. Hassell, No. 02-C-01-9202CR00038, 1992 WL
386311 (Tenn. Crim. App. 1992).

         This Court is also authorized, according to Tennessee Rule of Appellate Procedure 13(b),
to consider issues not properly presented for review “(1) to prevent needless litigation, (2) to
prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process.”
A conviction for a crime which the jury was not instructed would clearly violate an accused’s
constitutional rights. A conviction for felony murder as a result of an arson would require a jury
first finding all of the elements of an arson present. However, according to the jury instructions
in the record, the jury was apparently placed in the position of assuming an arson occurred
without considering the elements of an arson.

        Because a defendant has a right to be proven guilty of each and every element of an
offense, to be convicted of felony murder a defendant has a right to be proven guilty of every
element of the underlying felony offense to felony murder. If the jury in this case was never
instructed on those elements of the underlying offense then it is impossible for the defendant to be
convicted of felony murder. Such a conviction would clearly violate a defendant’s constitutional
and substantial rights and to allow such a conviction would significantly prejudice our judicial
process.

         Because of our finding that the defendant rights were violated by the State’s withholding
of Brady material and thus the defendant must have a new trial, we base our reversal solely on
those grounds. Because of that decision, in the interest of judicial economy, we choose not to
expend our efforts on reviewing the record on direct appeal to determine whether the copy of jury
instructions contained in the record before is a complete depiction of the entire jury instructions.
If the instructions before us are complete and accurate, we would hold that they are inadequate to
support a conviction for murder in the perpetration of a felony: to wit arson. Otherwise, we limit
the basis of our reversal to the Brady violation.




                                                -21-
                                           Conclusion

        After review of the entire record before us, we hold that the State violated the defendant’s
constitutional rights by withholding exculpatory and material information, which undermines our
confidence in the outcome of the trial. Because of this violation, we reverse the trial court and
grant the defendant a new trial.




                                                      ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




                                               -22-
