                                                                                                       08/14/2020
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs January 15, 2020

                 LAVAR R. JERNIGAN v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Rutherford County
                            No. F-71221 Royce Taylor, Judge
                       ___________________________________

                              No. M2019-00182-CCA-R3-PC
                          ___________________________________

The Petitioner, LaVar R. Jernigan, appeals the order of the Rutherford County Circuit
Court denying post-conviction relief from his convictions for six counts of especially
aggravated sexual exploitation of a minor, for which he received an effective sentence of
thirty years’ imprisonment. See State v. LaVar Jernigan, No. M2016-00507-CCA-R3-CD,
2017 WL 1019513 (Tenn. Crim. App. Mar. 15, 2017). The Petitioner argues the State
failed to disclose the existence of a “notebook” compilation containing over 6000 text
messages between the victim and the Petitioner, in violation of Rule 16 of the Tennessee
Rules of Criminal Procedure and in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194 (1963).1 He additionally argues that trial counsel was ineffective in failing to (1)
advise the Petitioner of the existence of the notebook thereby resulting in the Petitioner’s
rejection of a four-year offer by the State to settle the case; (2) object to the admission of
the “notebook” at trial; and (3) prepare and preserve the record in his direct appeal. Upon
our review, we vacate the Petitioner’s convictions, reverse the judgment of the post-
conviction court, and remand this matter for a new trial.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and J. ROSS DYER, JJ., joined.

Kris M. Oliver, Murfreesboro, Tennessee, for the Petitioner, Lavar R. Jernigan.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Jennings H. Jones, District Attorney General; and Hugh T. Ammerman,
III, Assistant District Attorney General, for the Appellee, State of Tennessee.

        1
          The Petitioner presents eleven issues in his brief. For ease of analysis, these issues have re-
numbered and combined for appellate review. We also observe the petition for post-conviction relief and
the order denying the same addressed various other issues not raised on appeal for our review.
                                               OPINION

        At some point in October 2012, the Petitioner, an assistant to the band director at a
high school in Lawrence County, Tennessee, and the sixteen-year-old victim, a student and
band member at the same high school, began exchanging emails. The victim testified at
trial that the emails initially were about stressful events in her life, including the deaths of
her grandfather and a close friend. Within a few weeks, the Petitioner and the victim began
talking on the phone and exchanging text messages. Their relationship eventually became
“physical” after a football game when the Petitioner placed his hand on her leg, and in
another incident, when he kissed her and touched her buttocks in a closet after a band
competition. State v. LaVar Jernigan, 2017 WL 1019513, at *3-4.

       A Lawrence County Sheriff’s detective learned a concerned parent at the victim’s
school thought the Petitioner and the victim were having an inappropriate relationship. On
April 10, 2013, the detective spoke to the victim and her mother and took the victim’s cell
phone with her mother’s consent. The victim admitted she had sent the Petitioner sexually
explicit videos of herself and that he had sent her videos of himself masturbating. Based
upon his investigation, the Lawrence County detective obtained an arrest warrant in
Lawrence County for the Petitioner for sexual exploitation of a minor by electronic means
and solicitation of a minor. LaVar Jernigan, 2017 WL 1019513, at *9. Detectives from
Lawrence County and Rutherford County later interviewed the Petitioner, which was
recorded and played for the jury. The Petitioner initially denied having an inappropriate
relationship with the victim; however, when pressed, he admitted their relationship had
“escalated.” Id. at *8. The Petitioner said the text messages concerned the victim wanting
to have sexual intercourse, but he told the victim they had to wait until she was age
eighteen. They discussed various sexual acts and had phone sex. The victim asked for a
video recording of him “ejaculating,” the Petitioner sent her a recording of the same, and
the Petitioner said it was “stupid.” He denied the victim sent him any recordings. Id. at
*8. On September 9, 2013, the Petitioner pleaded guilty [in Lawrence County] to one count
of sexual exploitation of a minor by electronic means, see Tenn. Code Ann. §39-13-
529(b)(2),2 and received a two-year sentence to be served on probation. Id. at *1.



        2
           Tennessee Code Annotated section 39-13-529(b)(2), a Class E felony, provides, in relevant part,
that “It is unlawful for any person eighteen (18) years of age or older, directly or by means of electronic
communication, electronic mail or internet service, including webcam communications, to intentionally . .
. . (2) Display to a minor, or expose a minor to, any material containing simulated sexual activity that is
patently offensive or sexual activity if the purpose of the display can reasonably be construed as being for
the sexual arousal or gratification of the minor or the person displaying the material[.]”


                                                   -2-
       Nearly six months later, on February 4, 2014, the Rutherford County Grand Jury
returned a forty-five-count indictment charging the Petitioner with multiple counts of
especially aggravated sexual exploitation of a minor, aggravated sexual exploitation of a
minor, and sexual exploitation of a minor, all stemming from the Lawrence County
investigation. Lavar Jernigan, 2017 WL 1019513, at *1. Although Lawrence County
authorities had possession of the Petitioner’s and the victim’s cell phones at the time of the
Petitioner’s guilty plea, photographs believed to have been deleted on the Petitioner’s cell
phone were later recovered by an analyst with the Murfreesboro Police Department. The
Rutherford County charges were based upon the victim’s sending the Petitioner nude
photographs of herself at the Petitioner’s request. The prosecutor stated that both counties
had jurisdiction and that the Rutherford County prosecution was based upon conduct that
occurred in Rutherford County. Id. at *2.

        As relevant to the issues raised in this appeal, the victim testified at trial that she and
the Petitioner sent text messages to each other daily, and she agreed she probably
exchanged approximately 6000 text messages between October 9, 2012, and February 9,
2013. She sent the Petitioner photographs of herself once or twice a week, and she
identified seven photographs at trial she had taken of herself and sent at the Petitioner’s
request. The photographs showed the Petitioner and the victim’s faces, the victim standing
in front of a mirror naked from the waist up, the victim’s face and breasts, and the victim’s
vagina. The victim denied having sexual intercourse with the Petitioner. Detective West,
the Murfreesboro detective who examined the cell phones belonging to the Petitioner and
the victim testified, in relevant part, as follows:

       [S]he recovered a photograph from the [the Petitioner’s] phone showing [the
       victim] standing in front of a mirror and naked from the waist up, that the
       photograph was “created” on the [Petitioner’s] phone on November 6, 2012,
       that the photograph was accessed on the [Petitioner’s] phone on the same
       date, and that the same photograph, previously identified during [the
       victim’s] testimony, was retrieved from [the victim’s] phone. Detective West
       stated that text messages were exchanged before and after the photograph
       was sent and received, that the message from the [Petitioner] after receiving
       the photograph stated, “Nice,” that the message from [the victim] stated,
       “Thank you,” and that the message from the [Petitioner] stated, “No
       problem.”

       Detective West testified that a photograph of the victim’s breasts was created
       on October 30, 2012, that the photograph was found on the victim’s and the
       [Petitioner’s] cell phones, and that a series of text messages were exchanged
       between the [Petitioner] and the victim regarding the photograph. Detective
       West stated that a message from the [Petitioner] requested a photograph, that
                                               -3-
the victim responded she would send a photograph after 10:00, that the
photograph was sent from the victim’s phone to the [Petitioner’s] phone at
approximately 10:07, and that the [Petitioner] responded “nice.”

Detective West testified that two photographs of the victim standing in front
of a mirror naked from the waist up were found on the victim’s and the
[Petitioner’s] cell phones. Detective West stated that the photographs of the
victim’s vagina were found on the [Petitioner’s] phone. Detective West
stated that one of the photographs showing the victim’s vagina was created
on January 24, 2013, and that her analysis showed an exchange of text
messages between the [Petitioner] and the victim’s phones. Relative to a
second photograph showing the victim’s vagina, Detective West stated the
photograph was sent from the victim’s phone to the [Petitioner’s] phone
about thirty minutes after the first photograph of the victim’s vagina.
Detective West stated that a third photograph of the victim’s vagina was
created on January 25, 2013, and that messages were exchanged before and
after the photograph was created. Detective West said that her analysis also
showed when a photograph was last accessed but that she could not
determine when a photograph was deleted or backed up.

Detective West testified relative to a “voluminous” notebook, which was
received as an exhibit, containing text messages found on the [Petitioner’s]
and the victim’s cell phones. Detective West read to the jury numerous
messages exchanged between the [Petitioner] and the victim. Detective West
said that on October 21, 2012, the [Petitioner’s] cell phone received a
message, that the message was read, and that the [Petitioner’s] response to
the victim included a frowning face and stated, “[N]aked, please, LOL.”
Detective West stated that the victim responded that she was working and
that she could not send a photograph. Detective West stated that the
Petitioner responded with a frowning face and that the victim apologized and
stated, “Sorry, you have to earn a naked picture .... You don’t get one yet.”
Detective West said the [Petitioner’s] response was a frowning face.

Detective West testified relative to an October 22, 2012 text message
exchange between the [Petitioner’s] and the victim’s cell phones. In the
exchange, the victim stated she missed the [Petitioner], the [Petitioner] asked
the victim how much she missed him and asked her to show him through a
photograph, and the victim stated she was sorry. The [Petitioner] responded
that the victim was not sorry and that she “should prove it.”



                                     -4-
Detective West testified regarding a text message exchange between the
[Petitioner] and the victim on October 24, 2012. In the exchange, the
[Petitioner] requested a photograph and stated that he “want[ed] a p---- pic
so badly, LOL.” Relative to October 27, Detective West stated that the
[Petitioner] sent a text message to the victim stating, “[G]reat pic. I love your
stomach .... Can you please take off your pants and take another one, please.”
Detective West testified regarding a text message exchange between the
[Petitioner] and the victim on October 28, 2012. In the exchange, the victim
stated, “LOL, tank tops is all I ever wear with sweat pants,” and the
[Petitioner] responded, “[S]o pull out them [breasts] and send [a] pic, baby,
LOL ... just playing ... but your [breasts] are nice.” In another exchange later
the same day, the victim asked, “[W]hat do you want a pic of,” and the
[Petitioner] responded that he wanted a photograph of “my” breasts. The
victim stated, “[N]o sorry. And who says they are yours,” and the [Petitioner]
responded, “[Y]ou did when you said you loved me. You did when you said
you’re jealous. You did when you said I want my chocolate teddy bear.”

Detective West testified regarding a text message exchange between the
[Petitioner] and the victim on October 30, 2012. In the exchange, the
[Petitioner] asked, “[W]here my pic,” and the victim responded, “[P]ic first,
and I’ll call.” Detective West stated that a photograph was sent from the
victim’s cell phone to the [Petitioner’s] phone, after which the [Petitioner]
responded, “Nice. When did you take this one. Can I get one of more stomach
and [breasts], please?” Detective West stated that the photograph exchange
was one of the photographs previously received as an exhibit.

Detective West testified that on November 1, 2012, the [Petitioner] sent the
victim the following text message: “finger your p---- once, and send me a pic
of ... your fingers, please.” Detective West stated that on November 25, the
victim sent the [Petitioner] a photograph, that the [Petitioner] responded,
“Nice pic ... but it’s not the pic I’m ... waiting for,” that the victim asked what
type of photograph the [Petitioner] wanted, and that the [Petitioner] stated,
“[P]----, fingers, remember. Naked body, remember.”

Detective West testified that on December 21, 2012, another text message
exchange occurred between the [Petitioner] and the victim. In the exchange,
the [Petitioner] requested a photograph of her vagina, but the victim stated
that she was not in a good mood but that she still loved the [Petitioner].
Detective West testified that on February 18, 2013, another text message
exchange occurred between the [Petitioner] and the victim. In the exchange,
the [Petitioner] stated that he was looking at a photograph of the victim, and
                                       -5-
       the victim inquired whether the [Petitioner] was masturbating. The
       [Petitioner] admitted he was, and the victim responded that she wished she
       could facilitate his orgasm. Detective West stated that later the same day the
       [Petitioner] sent the victim a message stating, “[B]ased on you pic this
       morning, your p---- looks nice and clean. Did you shave?” Again on February
       18 and on February 23, the [Petitioner] sent messages requesting a
       photograph of the victim’s vagina, but the victim declined. The remainder of
       the [Petitioner’s] and the victim’s messages were related to sexually explicit
       topics.

       Detective West testified that on February 25, 2013, the [Petitioner] and the
       victim exchanged text messages related to their deleting photographs from
       their cell phones. In the exchange, the victim said she had deleted the
       photographs from her phone, the [Petitioner] reminded her to delete the
       photographs from the “trash,” and the victim stated she had. Detective West
       testified that on March 3, 2013, the [Petitioner] and the victim exchanged
       text messages and that the [Petitioner] requested a photograph of the victim’s
       vagina. The victim agreed to send a photograph after she finished bathing.
       The [Petitioner] continued requesting a photograph, the victim responded for
       the [Petitioner] to “calm down,” and the [Petitioner] responded, “[N]ice.”
       Detective West testified regarding a March 14, 2013 text message exchange
       in which the [Petitioner] requested another photograph of “something” inside
       her vagina and suggested two objects.

       Detective West testified regarding an April 1, 2013 text message exchange.
       In the exchange, the [Petitioner] stated, “Nice,” and the victim asked if the
       [Petitioner] liked “it.” The [Petitioner] responded, “I thought I said no more
       pics. I’m not trying to go to jail for child porn,” and the victim stated, “I
       thought you would like it, baby.” The [Petitioner] stated he “loved ... it.” An
       April 7, 2013 text message exchange reflected that the [Petitioner] thought a
       woman was suspicious and “fishing for information,” told the victim to
       delete all text message and call log information from her phone, and asked
       the victim to find out why the woman wanted the victim to call the
       [Petitioner]. The victim responded she had deleted the relevant information
       on her phone and agreed to speak to the woman, and the [Petitioner]
       expressed concern about going to jail.

LaVar Jernigan, 2017 WL 1019513, at *5-7.

       The State’s election of offenses consisted of the following: count one the production
of the photograph occurring on October 29, 2012, showing the victim with her arm held
                                            -6-
across her abdomen and her naked breasts exposed; count two the production of the
photograph occurring on October 29, 2012, showing the victim in front of a dry bathroom
mirror with her naked breasts exposed; count three the production of the photograph on
November 6, 2012, showing the victim in front of a fogged bathroom mirror with her naked
breasts exposed; count four the production of a photograph occurring on January 23, 2013,
showing a close up angle of the vagina with the fingers being used to spread it apart; count
five the production of a close up photograph of the same image as in count four on the
same day; count six the production of a photograph on January 24, 2013, showing the
victim’s vagina and four fingers.

       Following his convictions in this case, the Petitioner appealed arguing, inter alia,
that the trial court erred in permitting the State to present evidence of the notebook
containing text messages exchanged between the Petitioner and the victim, from which
Detective West read during her testimony. The Petitioner alleged that the material was
never provided to the defense or disclosed before it was introduced at the trial. Id. at *10.
In denying relief, this court noted as follows:

       [T]he [Petitioner] asserts in his brief that the defense’s discovery request
       pursuant to Tennessee Rule of Criminal Procedure 16 was filed on February
       24, 2014, and that the request included the defense be allowed to inspect all
       books, papers, documents, photographs, and tangible objects. However, the
       [Petitioner’s] discovery request does not appear in the appellate record. The
       notebook containing more than 6000 text messages exchanged between the
       [Petitioner] and the victim is likewise not included in the appellate record,
       although the record reflects that Detective West read some of the messages
       during her trial testimony. To further complicate appellate review, counsel
       raised this issue in his motion for a new trial, but the transcript from the
       motion hearing is not included in the appellate record. The trial court’s
       written order denying the motion merely incorporates its findings from the
       hearing and does not recite individual findings of fact and conclusions of law.

       The [Petitioner] has the burden of preparing a fair, accurate, and complete
       account of what transpired in the trial court relative to the issues raised on
       appeal. This includes the obligation to have a transcript of the evidence or
       proceedings prepared. When the record is incomplete, or does not contain
       the proceedings relevant to an issue, this [c]ourt is precluded from
       considering the issue. Likewise, this [c]ourt must conclusively presume that
       the ruling of the trial court was correct in all particulars. The [Petitioner] has
       failed to prepare an adequate record for this issue, and he is not entitled to
       relief.

                                             -7-
       We have not overlooked the State’s argument that the defense failed to object
       contemporaneously to the admission of the text message exchanges. The
       record reflects that although trial counsel mentioned during his cross-
       examination that he had not seen “these” previously, counsel did not object
       when the State requested that the notebook be received as an exhibit or when
       Detective West read from the messages during her testimony. Therefore, the
       inadequate record notwithstanding, appellate review of this issue is waived
       for the defense’s failure to object contemporaneously to the admission of the
       evidence. The [Petitioner] is not entitled to relief.

Id. at * 10 (internal quotations and citations omitted).

        On March 20, 2018, the Petitioner, acting pro se, filed a twenty-two-page petition
for post-conviction relief alleging numerous grounds of ineffective assistance of counsel.
Attached to the petition were various exhibits including copies of an April 11, 2013 report
detailing the findings and analysis of the cell phones belonging to the Petitioner and the
victim by Detective West; excerpts from the transcript of the motion for bill of particulars
during which the State averred they were not required to provide the defense with specific
dates and times of the photographs recovered from the Petitioner’s phone; the Lawrence
County arrest warrant and grand jury presentment; and a March 13, 2018 affidavit of the
Petitioner affirming his chronology of the events in this case. One of the exhibits to the
petition is a copy of the State’s February 28, 2014 response to the Petitioner’s discovery
request. Notably, the response explicitly provided, among other things, as follows:

       1. Physical evidence: none known[.]
       2. Documents and Tangible objects: Pursuant to Rule 16(a)(1)(f) Rules of
       Criminal Procedure based upon defendant’s request, the State shall permit
       the defendant to inspect and copy or photograph: Copies are not made of
       child pornography without a court order. You may make arrangements to
       view the evidence by contacting the District Attorney’s Office. Placed in the
       court file: Certified conviction, picture, warrants, phone report search
       warrant, detective notes.

        The Petitioner also attached to his petition copies of a May 15, 2015 motion in
limine by the State moving to exclude from trial the disposition of the Petitioner’s
Lawrence County case, because the court had previously ruled in the motion to dismiss
that “while arising out of the same act or transaction, [the offenses] do not violate double
jeopardy.” Accordingly, the State averred the disposition of the Lawrence County case
was not relevant and inadmissible in the trial of the Rutherford County case. On March
26, 2018, by order of the post-conviction court, the petitioner was appointed counsel, who
later filed a Rule 28 notice asserting no amended petition would be filed in this case.
                                             -8-
Without specifically addressing any of the Petitioner’s claims, the State filed a written
response denying the allegations in the petition.

       The post-conviction court conducted an evidentiary hearing on September 13, 2018.
Before the hearing began, post-conviction counsel alerted the court that the notebook in
question was “missing.” Post-conviction counsel said, “I’ve checked with the clerk’s
office and my understanding is now they, I’m not sure if they have the notebook, I don’t
know where the notebook is, and I need to . . . make it part of the record of this hearing in
the event” of an appeal.3 Upon questioning by the court, the State advised that it had
checked with the clerk’s office again that morning, and that they had been unable to locate
the notebook. The post-conviction court acknowledged that the missing exhibit was
problematic, but the hearing proceeded.

        Trial counsel was retained to represent the Petitioner at trial and on appeal. Asked
whether he recalled the notebook being admitted as an exhibit at trial, counsel advised that
he did. However, counsel said he had not seen the notebook prior to trial, and he did not
know it existed. Counsel explained, “I didn’t know there was a large bound notebook with
6,000 text messages. I knew that there had been some communication between the
[Petitioner and the victim], but the compilation, I had no idea about.” In fact, counsel
testified that he had not seen any actual text messages between the Petitioner and the victim
before trial, and no one advised him about them. Counsel had represented the Petitioner in
the Lawrence County case and was aware the authorities had taken the Petitioner’s phone.
He knew there were photographs, videos, and “communications” on the phone. He
conducted a preliminary hearing and received some discovery in the Lawrence County
case; however, he did not get a notebook or a compilation of text messages from the
Petitioner’s phone. Counsel settled the Lawrence County case “quickly” by plea
agreement, which he believed was in the Petitioner’s favor. Counsel also advised following
the Rutherford County indictments, the Petitioner’s case was handled by three different
prosecutors, none of whom provided him with the notebook or advised him text messages
from the Petitioner’s phone would be admitted at trial. Counsel’s discovery request from
the Petitioner’s trial was admitted as an exhibit to the post-conviction hearing.

       Counsel acknowledged he was provided an “extraction report” of the Petitioner’s
phone. He described the report as “a couple of, three sheets of paper” and denied receiving
a hard copy or an electronic file of the report. Asked if he had viewed “the video,” in this
case, counsel explained he had viewed photographs taken from the victim’s phone in the

        3
           Yet again, the record in this post-conviction appeal did not contain the notebook. However, based
on post-conviction counsel’s comments and the order of the post-conviction court requiring the notebook
to be exhibited to the hearing, we deem the omission of the exhibit to be a clerical error. This court ordered
supplementation of the record by the trial court clerk and received the notebook, which was admitted at
trial as exhibit 4 and at the post-conviction hearing as exhibit 1, on June 3, 2020.
                                                    -9-
privacy of the district attorney’s office. Counsel knew about the photographs and the video
of the Petitioner prior to trial, which he described as “devastating.” However, counsel “had
no idea” about the text messages. Asked why he did not object to the admission of the
notebook at trial, counsel explained it would have taken him a day or two to read the
entirety of the notebook, and he feared the delay would anger the jury. Asked why he
raised the issue in the motion for new trial knowing that it had been waived, counsel replied,
“‘Cause you, I just do.”

       On cross-examination, counsel acknowledged having received the April 11, 2013
analysis and “hard” report by Detective West prior to trial, which was admitted as an
exhibit to the hearing. A paragraph in the report noted “the program that proved the most
valuable with respect to retrieving data from the victim’s phone was SUSTEEN’s SV3.
The phone had to be processed separately for CONTACTS, DATA, CALL HISTORY,
MESSAGING, AND FILES, due to the volume.” Nevertheless, counsel denied having
received any digital media from the State prior to trial. Counsel acknowledged that his
assistant at the time picked up various items of discovery from the district attorney’s office
and that he was aware from the preliminary hearing in Lawrence County of numerous text
messages between the Petitioner and the victim. Finally, counsel agreed that even if he
had been successful in excluding the notebook at trial, there was “exceedingly strong”
evidence against the Petitioner in this case.

       On re-direct examination, counsel acknowledged he could have prepared a better
defense of the Petitioner had he known the specific dates, times, and location of the
Petitioner as outlined by the text messages in the notebook. He reiterated his strongest
defense pertained to where the Petitioner was located at the time of the photographs and
the video or the State’s inability to establish venue, and he continued to believe prosecution
of the Petitioner in both Lawrence County and Rutherford County violated principles of
double jeopardy, regardless of the trial court’s denial of his motion.

       The Petitioner testified and agreed he had never seen the notebook prior to trial.
The first time he saw the text messages was on screen at trial, and he was “shocked”
because they had not been provided to him in discovery. The Petitioner acknowledged he
was aware of the pictures and the video of him masturbating; however, he said he had never
actually seen them. He believed the same pictures and video were the basis of the
Lawrence County conviction, and he pleaded guilty to the same upon the advice of trial
counsel. Had he known about the text messages in the notebook, the Petitioner believed
he would have been successful in the motions to dismiss based on double jeopardy and his
motion for a bill of particulars. He reasoned the text messages narrowed down the specific
dates and times of the alleged offenses. The Petitioner queried, “how can you prepare for
something that you can’t see?”

                                            - 10 -
        Finally, the Petitioner said he would not have proceeded to trial had he known about
the information contained in the notebook. He rejected the State’s last four-year offer to
settle the case because he believed, after talking with counsel, that the Lawrence County
and Rutherford County cases were “the same thing.” He sought review of the double
jeopardy issue on appeal; however, he believed counsel was ineffective in the direct appeal
of his case. His main concern was the fact that counsel had failed to include several items
in the technical record. The Petitioner also believed that counsel was ineffective in failing
to object to the admission of the notebook at trial. The Petitioner recalled a law school
class was in court the day the notebook was admitted, and a teacher “took the Tennessee
Rules of Evidence [book] and threw . . . [it] over the rail to the table” at them. The
Petitioner testified, “if another law school person know[s] that you should object to this,
maybe you should.”

        The post-conviction court conducted another hearing on November 16, 2018, to
address the missing notebook. At this point, the court noted that the notebook had been
found for review and had been made an exhibit to the hearing. By written order on January
3, 2019, the post-conviction court denied relief, finding that the Petitioner had failed to
establish by clear and convincing evidence that counsel was deficient in his representation
and that none of the alleged deficiencies prejudiced the Petitioner’s case. The Petitioner
filed a timely notice of appeal, and this case is now properly before this court for review.

                                        ANALYSIS

        I. Discovery and Brady Violations. Because they are interrelated, we have
combined issues five through eleven as outlined in the Petitioner’s brief concerning his
pre-trial claims involving the State’s notebook compilation, which contained over 6000
text messages between the victim and the Petitioner that was subsequently admitted into
evidence at trial. The Petitioner first argues that neither the notebook nor the 6000 text
messages contained therein were provided to trial counsel in discovery in violation of Rule
16 of the Tennessee Rules of Criminal Procedure. See Tenn. R. Crim. Proc. 16(F)(i)-(iii).
The Petitioner asserts further that the State’s Rule 16 discovery violation was compounded
when the State refused to provide him with the location of the instant offenses at the hearing
on his bill of particulars and motion to dismiss. At the time, trial counsel had theorized
that prosecution of the instant, Rutherford County cases was based on the same criminal
conduct as the prior, Lawrence County convictions, which was barred by principles of
double jeopardy. The Petitioner now contends the text messages that were withheld in
discovery and admitted at trial established the location of the offenses as Lawrence County
and, as such, the State was unable to establish jurisdiction. Accordingly, the Petitioner
asserts the text messages were therefore exculpatory and the State’s failure to provide them
violated his due process rights under the Fourteenth Amendment of the United States
Constitution. See State v. Downey, 259 S.W.3d 723, 737 (Tenn. 2008); Sample v. State,
                                            - 11 -
82 S.W.3d 267, 270 (Tenn. 2002) (“The United States Supreme Court has 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 the
good faith or bad faith of the prosecution.’”)(quoting Brady v. Maryland, 373 U.S. 83, 87
(1963)). In response, the State argues generally that the order denying post-conviction
relief should be upheld.4

        As relevant here, the post-conviction court determined as follows:

                The [P]etitioner’s second assertion in his petition for post-conviction
        relief is that the State failed to disclose favorable evidence prior to trial.
        Specifically, the [P]etitioner claims that the State failed to disclose prior to
        trial the “notebook” of the text messages and a video of the [P]etitioner
        masturbating. The Court finds that the [P]etitioner has failed to disclose
        evidence in violation [of] the Fourteenth Amendment of the United States
        Constitution.
                                              ....

               Turning to the facts of this case, the [P]etitioner has failed to prove by
        clear and convincing evidence that the State failed to disclose favorable
        evidence prior to trial in violation of the Fourteenth Amendment to the
        United States Constitution.

                At the hearing, [trial counsel], testified that three (3) Assistant District
        Attorneys (ADA) handled the prosecution of the [P]etitioner’s case. First,
        ADA [one] handled the preliminary discovery matters on the case. Next,
        ADA [two] handled the [P]etitioner’s motion for a bill of particulars, motion
        to dismiss on the basis of double jeopardy, and other various pretrial motions.
        Finally, ADA [three] handled various other pretrial discovery matters and the
        [P]etitioner’s trial.

                [Trial counsel] testified that he had visited the District Attorney’s
        Office to view the video and the pictures that were extracted from the
        [P]etitioner’s cellular phone. He testified that the photographs and video
        were “devasting[.]” Further, [trial counsel] agreed that the three (3) separate
        discovery receipts (collective exhibit 3) were signed by his assistant [her
        name] and picked up on May 15, 2015. Moreover, [trial counsel] testified

        4
           We acknowledge that the State argued waiver of these issues based on the absence of the notebook
in the record on appeal. Waiver notwithstanding, the State argued, alternatively, that the Petitioner was not
entitled to relief because he failed to establish prejudice.
                                                   - 12 -
that he had viewed the extraction report from the victim’s cellular phone in
a previous case that arose from the same facts in Lawrence County. He
testified that the extraction report mentioned thousands of text messages
between the victim and the [P]etitioner. Additionally, [trial counsel]
acknowledged that he had viewed the [P]etitioner’s audio/video recorded
interview in which the [P]etitioner confessed to sending numerous text
messages, including text messages that were sexual in nature. Finally, [trial
counsel] testified that even if he had managed to exclude the “notebook”
from evidence through some type of discovery violation, the proof was still
exceedingly strong against the [P]etitioner.

        The Court finds that while [trial counsel] may not have actually
viewed the bound “notebook” of the text messages as a whole, he did have
actual knowledge that the text messages existed and possessed the extraction
report from the victim’s cellular phone. [Trial counsel] knew that there were
several thousand text messages that existed from the cellular phone
extractions of both the victim and the petitioner’s phones. Further, [trial
counsel] had viewed the sexual images and the video of the [P]etitioner
masturbating that were sent via text message. [Trial counsel] was aware that
there were numerous text messages because the [P]etitioner confessed to
sending daily texts to the victim in his recorded interview with police. While
[trial counsel] had not viewed the text messages as a whole in the bound
“notebook” introduced at trial, he had viewed numerous text messages that
were included in the bound “notebook” and the sexual images and video that
were recovered in the text messages. Therefore, the Court finds that the
[P]etitioner has failed to show by clear and convincing evidence that the State
failed to disclose favorable evidence in violation of the Fourteenth
Amendment to the United States Constitution.

                                      ...

       The [P]etitioner alleged in his petition that his convictions violated the
Double Jeopardy clause of the Fifth Amendment of the United States
Constitution. However, the [P]etitioner failed to present any evidence of this
allegation at the hearing. Further, this Court and the Tennessee Court of
Criminal Appeals have previously ruled that the [P]etitioner’s convictions do
not violate the Double Jeopardy clause of the Fifth Amendment. Therefore,
the Court finds that this issue is waived.




                                     - 13 -
      Rule 16 of the Tennessee Rules of Criminal Procedure governs disclosure of certain
categories of information and provides, in relevant part, as follows:

             Upon a defendant’s request, the state shall permit the defendant to
      inspect and copy or photograph books, papers, documents, photographs,
      tangible objects, buildings, or places, or copies or portions thereof, if the item
      is within the state’s possession, custody, or control and:

             (i) the item is material to preparing the defense;
             (ii) the government intends to use the item in its case-in-chief
             at trial; or
             (iii) the item was obtained from or belongs to the defendant.

              Reports of Examinations and Tests. Upon a defendant’s request, the
      state shall permit the defendant to inspect and copy or photograph the results
      or reports of physical or mental examinations, and of scientific tests or
      experiments if:

             (i) the item is within the state’s possession, custody, or
             control;
             (ii) the district attorney general knows--or through due
             diligence could know--that the item exists; and
             (iii) the item is material to preparing the defense or the state
             intends to use the item in its case-in-chief at trial.


Tenn. R. Crim. P. 16(a)(1)(F), (G). These mandatory discovery provisions are intended to
contribute to the fair and efficient administration of criminal justice by providing the
defendant with sufficient information upon which to base an intelligent a plea; by
minimizing the undesirable effect of surprise at trial; and by contributing to the accuracy
of the fact[-]finding process. See United States v. Alvarez, 987 F.2d 77, 85 (1st Cir.
1993)(citing Fed. R. Crim. P. 16, advisory committee’s note.) If a party fails to comply
with this rule, the trial court may order that party to permit the discovery or inspection;
specify its time, place, and manner; and prescribe other just terms or conditions; grant a
continuance; prohibit the party from introducing the undisclosed evidence; or enter such
other order as it deems just under the circumstances. Tenn. R. Crim. P. 16(d)(2)(A)-(B).

       A discovery violation amounts to reversible error only when the defendant
establishes an abuse of discretion and substantial prejudice. United States v. Alvarez, 987
F.2d at 85; United States v. Camargo-Vergara, 57 F.3d 993, 998-99 (11th Cir.1995); United
States v. Salerno, 108 F.3d 730, 738-39 (7th Cir. 1997). Substantial prejudice exists when
                                            - 14 -
a defendant is unduly surprised and lacks an adequate opportunity to prepare a defense or
if the mistake substantially influences the jury. Id. (internal citations omitted).

        Although there is no general right to discovery in a criminal trial, see Weatherford
v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 846 (1977), in the landmark case of Brady v.
Maryland, the United States Supreme Court held, “that the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87; see Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001)(“Every
criminal defendant is guaranteed the right to a fair trial under 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.”); State v. Jackson, 444
S.W.3d 554, 593 (Tenn. 2014)(noting that the Due Process Clause of the Fourteenth
Amendment requires that criminal prosecutions comport with prevailing notions of
fundamental fairness and that this standard of fairness requires that criminal defendants be
afforded a meaningful opportunity to present a complete defense)(internal
citations/quotations omitted)). “The materiality standard for Rule 16 ‘essentially tracks
the Brady materiality rule, though some courts have found that materiality under Rule 16
is broader than under Brady.’” See United States v. Bulger, 928 F. Supp. 2d 305, 323 (D.
Mass. 2013), aff’d, 816 F.3d 137 (1st Cir. 2016) (quoting United States v. LaRouche
Campaign, 695 F.Supp. 1290, 1306 (D.Mass. 1988) and United States v. Pesaturo, 519 F.
Supp. 2d 177, 189 (D. Mass. 2007))(noting that Rule 16’s mandatory discovery provisions
were designed to contribute to the fair and efficient administration of justice by providing
the defendant with sufficient information upon which to base an informed plea and
litigation strategy; by facilitating the raising of objections to admissibility prior to trial; by
minimizing the undesirable effect of surprise at trial; and by contributing to the accuracy
of the fact-finding process).

         A. Discovery Violation. During trial and upon direct examination of Detective
West, the State explained that the text messages were a collaboration between the
prosecutor and the detective upon review of the extraction report, selecting the relevant
text messages, and compiling them in a usable format. After trial counsel noted he had not
previously seen any of the text messages that were apparently being displayed on a screen
during the detective’s testimony, the State continued to illicit testimony from the detective
pertaining to the text messages. This culminated in the admission of the entire notebook
at trial. The proof at trial further showed that Detective West had previously provided the
State with a thumb-drive of the full extraction report. Here, we note the difference between
(1) a digital copy of the full extraction of the phones (i.e. thumb-drive or USB drive); (2) a
paper copy of the report of the extraction; and (3) access to a compilation of the extraction
report. At the motion for new trial, the State further advised that “[t]he notebook that was
presented as proof at trial was simply the sort of work product, if you will, or printouts of
                                              - 15 -
that information that is specifically referenced in those documents regarding the fact that
the following extractions were done on these two devices.” At the post-conviction hearing,
trial counsel testified that he received a report of the extraction of the cell phones. As such,
we acknowledge the State appears to have provided trial counsel with a report of the
extraction. However, to the extent the State argues that providing a report of the extraction
discharged their Rule 16 duty to disclose in this case, we disagree. See State v.
Schiefelbein, 230 S.W.3d 88, 111-12 (Tenn. Crim. App. 2007) (noting that the language
of Rule 16 is straightforward, the State’s duty is mandatory, and “the state shall permit ”
inspection and copying); see also Tenn. Rule Evid. 1006 (“The contents of voluminous
writings, recordings, or photographs which cannot conveniently be examined in court may
be presented in the form of a chart, summary or calculation. The originals or duplicates
shall be made available for examination or copying, or both, by other parties at reasonable
times and places. The court may order that they be produced in court.”).

        With the ever-increasing use of metadata extracted from cell phones, we are
compelled to discuss the requirements of Rule 1006 of the Tennessee Rules of Evidence,
which governs summaries of the contents of voluminous documents. Tenn. R. Evid. 1006,
Adv. Comm’n Comments. To utilize a compilation of voluminous information, as the State
did here, the proponent must make the originals or duplicates available for examination or
copying, or both, to other parties at a reasonable time prior to trial. United States v.
Dunnican, 961 F.3d 859, 873 (6th Cir. 2020)(noting that Rule 1006 was designed for cell
phone extractions because the amount of evidence is so “unwieldly and robust that it would
take multiple months (possibly, even years) for a court to examine”). Because the summary
is substantive evidence to be used in the party’s case in chief, the summary must be
provided to opposing counsel pursuant to Rule 16 of the Tennessee Rules of Criminal
Procedure. United States v. Bray, 139 F.3d 1104, 1111 (6th Cir.1998) (“At bottom,
because summaries are admitted as evidence in lieu of the records themselves, they must
be both ‘accurate and nonprejudicial.’”); see e.g Wade V. Davies, Using the Summary Rule
to Advance Your Trial Theory, Tenn. B.J., March 2017, at 28-29 (discussing modern
application of Rule 1006). In other words, in addition to providing the opposing party with
access to the underlying material, the evidence to be summarized must be admissible at
trial and the information must be voluminous.

        As will be discussed more fully below, the record shows that trial counsel made
repeated attempts to obtain discovery from the State to pinpoint the date, time, and location
of the offenses at issue. We are at a loss to understand why the State was insistent in
refusing trial counsel’s repeated efforts to obtain this information, which easily could have
been satisfied with a copy of the text messages or access to the notebook compilation. A
prudent prosecutor will err on the side of full disclosure so that justice may be done, rather
than seek a short-term tactical advantage to ensure a conviction. The record shows that
trial counsel never received nor was permitted access to review a copy of the extraction
                                             - 16 -
thumb-drive, the actual text messages from the extraction report, or the notebook
compilation of the text messages prior to trial. Accordingly, on this record, we conclude
the State failed to comply with Rule 16 and Rule 1006. We must now determine the effect,
if any, of these violations on the Petitioner’s trial or whether the Petitioner suffered any
prejudice.

        The State argues that the Petitioner has failed to establish any prejudice because the
evidence of guilt was overwhelming. In this case, the State indicted the Petitioner with
forty-five-counts of especially aggravated sexual exploitation of a minor, aggravated
sexual exploitation of a minor, and sexual exploitation of a minor. No specific date for the
offenses was given, and trial counsel’s motions to dismiss and for a bill of particulars were
denied. The State also conceded pre-trial that the offense-conduct for the instant offenses
arose from the same criminal conduct as the Lawrence County case. The proof at trial
consisted of an extremely graphic video of the Petitioner, testimony of the victim about her
relationship with the Petitioner, photographs the victim sent to the Petitioner at his request,
the Petitioner’s statement, and the notebook compilation of over 6000 text messages. At
the close of their proof, the State elected to rely on only six photographs that were shown
to trial counsel prior to trial: two on October 29, 2012, one on November 6, 2012, two on
January 23, 2013, and one on January 24, 2013. There were approximately three pages of
text messages in the notebook relative to the October 29, 2012 photograph (eight texts from
October 30 were highlighted in red and pertained to Petitioner’s request for photographs),
four pages of text messages relative to the November 6, 2012 photographs (four texts were
highlighted in red), and no text messages in the notebook relative to the photographs sent
on January 23 and January 24, 2013.

        The record shows that at least 5000 text messages in the notebook were admitted
into evidence and had no bearing on the offenses in this case. While we do not condone
trial counsel’s failure to lodge a full and proper objection to the text messages, the State’s
admission of the voluminous notebook compilation midway through trial was unduly
surprising and deprived trial counsel of an opportunity to prepare a defense. This is
especially true given trial counsel’s defense theory that the instant convictions were
previously adjudicated in Lawrence County and barred by double jeopardy. In addition,
we find the bulk of the remaining text messages to be highly inflammatory and extremely
prejudicial. Any probative value attributed to the remaining text messages was
substantially outweighed by their unfair prejudicial effect. Tenn. Rule Evid. 401, 402.
Indeed, there was a substantial amount of proof establishing the Petitioner’s guilt in this
case. However, this was due, in large part, to the State’s failure to comply with Rule 16
and Rule 1006. To allow the State to capitalize on a situation it created, in our view, would
defeat the very purpose of the rules of discovery. As will be discussed more fully below,
had trial counsel, acting as appellate counsel, adequately preserved this issue on direct
appeal by including in the record the motion for discovery and the notebook compilation
                                            - 17 -
of the text messages, the Petitioner would have successfully established that the State
substantially prejudiced the Petitioner’s case by failing to disclose the contents of the full
extraction report and the notebook compilation containing over 6000 text messages
between the Petitioner and the victim prior to trial. Accordingly, we are compelled to
reverse the judgment of the post-conviction court, vacate the Petitioner’s convictions, and
remand this matter for a new trial.

       B. Brady Violation. In order to establish a due process violation pursuant
to Brady, the defendant must prove by a preponderance of the evidence that (1) he
requested the information, unless it is obviously exculpatory, (2) the State must have
suppressed the information, (3) the information must be favorable to the accused, and (4)
the information must be material. Johnson v. State, 38 S.W. 3d at 56 (internal citations
omitted). Evidence that is “favorable to an accused” includes both “evidence deemed to
be exculpatory in nature and evidence that could be used to impeach the State’s witnesses.”
Favorable evidence has also been defined as:

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

Johnson, 38 S.W.3d at 56-57 (internal citations omitted).

        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.”
Id. at 58 (internal quotations omitted). Significantly, the test for materiality

       is not whether the defendant would more likely than not have received a
       different verdict had the evidence been disclosed. See Strickler v.
       Greene, 527 U.S. 263, 275, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Nor is
       the test of materiality equivalent to that of evidentiary sufficiency, such that
       we may affirm a conviction or sentence when, “after discounting the
       inculpatory evidence in light of the undisclosed evidence, the remaining
       evidence is sufficient to support the jury’s conclusions.” Id.; Kyles v.
       Whitley, 514 U.S. 419, 435 n. 8, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)
       (“This rule is clear, and none of the Brady cases has ever suggested that
       sufficiency of evidence (or insufficiency) is the touchstone [of
       materiality].”).



                                            - 18 -
Johnson, 38 S.W.3d at 58 (internal footnote omitted). Rather, 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. (internal quotations omitted). In other words, evidence is material when,
because of its absence, the defendant failed to receive a fair trial, “understood as a trial
resulting in a verdict worthy of confidence.” Id. (internal citations and quotations omitted).

        Where there is a delayed disclosure of evidence, rather than complete non-
disclosure of significant exculpatory evidence, this Court must determine whether the delay
kept defense counsel from effectively using this evidence in presenting and preparing the
defendant’s case. State v. Caughron, 855 S.W.2d 526, 548 (Tenn. 1993) (Daughtrey, J.,
dissenting). An incomplete response to a Brady request might cause the defense to
“abandon lines of independent investigation, defenses, or trial strategies that it otherwise
would have pursued.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985)
(citations omitted). If the defense fails to request a continuance after receipt of the
evidence, fails to call or recall a witness to testify regarding the evidence, or fails to
extensively cross-examine a witness regarding the evidence, the Brady violation may be
cured. This court has recognized that a “[d]elayed disclosure results in prejudice to the
defendant and may deny the defendant due process when it is ‘too late for the defendant to
make use of any benefits of the evidence.’” State Sidney M. Ewing, No. 01C01-9612-CR-
00531, 1998 WL 321932, at *8 (Tenn. Crim. App., at Nashville, June 19, 1998).

        Finally, the “materiality” aspect of a Brady claim is governed by the same prejudice
standard as an ineffective assistance of counsel claim; that is, a petitioner must show that
there is a reasonable probability that the result of the proceedings would have been
different. Cauthern v. State, 145 S.W.3d 571, 598-99 (Tenn. Crim. App. 2004) (citing
United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383); Larry McKay v. State, No.
W2008-02274-CCA-R3-PD, 2010 WL 2384831, at *7-9 (Tenn. Crim. App. June 15,
2010)). Accordingly, whether a petitioner is entitled to a new trial based on a violation of
Brady presents a mixed question of law and fact. The post-conviction court’s findings of
fact, such as whether the petitioner requested the information or whether the state withheld
the information, are reviewed on appeal de novo with a presumption that the findings are
correct unless the evidence preponderates otherwise. The post-conviction court’s
conclusions of law, however, such as whether the information was favorable or material,
are reviewed under a purely de novo standard with no presumption of correctness.

       The record clearly shows that the Petitioner requested the information. Trial counsel
filed a seven-page discovery motion entitled, “Request for Discovery, Inspection, And
Notice of Intent to Use Evidence,” which was attached as an exhibit to the hearing. Trial
counsel characterized the discovery motion as covering “everything [he] could think of
from the kitchen sink on[.]” We agree. The discovery motion was comprehensive and
                                            - 19 -
requested, among other things, to be advised of the exact date, time, and location of the
alleged offense, to be allowed to inspect all documents, photographs, tangible objects,
which are intended to be used by the State in its case-in-chief, to be allowed to inspect the
same items which would be material to the preparation of the defense, and to be allowed
to inspect or copy any results of scientific tests. The discovery motion also specifically
requested Brady material. Additionally, and most importantly, in the Petitioner’s motion
for bill of particulars, he explained that, following the Lawrence County arrest, his cellular
phone was seized by the police. After his conviction in Lawrence County, his cellular
phone was returned; however, there were no photographs on the phone. Trial counsel
averred that although the State allowed trial counsel to view the photographs in question,
there was no information that furnished the date and time of the photographs. He
specifically requested the State to provide the date and time of the photographs sent from
the victim’s phone to the Petitioner’s phone, the specific location of the victim and her
phone when the photographs were sent, the date and time that each photograph sent by the
victim was received by the Petitioner’s phone, and the specific location of the Petitioner’s
telephone when the photographs sent by the victim to the Petitioner’s phone were received.
He also requested the time, date, and location of the Petitioner for each of the charged
offenses.

       In its written response to the motion for bill of particulars, the State acknowledged
receipt of the Petitioner’s request for information but noted that it “ha[d] already provided
to defendant all of the discovery and evidence it has in its possession. Information as to
the approximate dates of these offenses is contained in the discovery [the Petitioner] has
received.” Because “this information” had already been provided, the State averred a bill
of particulars was not necessary and urged denial of the motion.

        At the hearing on the bill of particulars, trial counsel said, “I have a response from
[the prosecution] that basically says if I don’t already have it, it doesn’t exist. Well, I don’t
have those photographs. Because of the law, I’m not allowed to possess them. I have got
to go to the Attorney General’s Office one time and look at them. But, frankly, did not
note if there was any date or time indicia on those photographs as to where someone was
when the photograph was received on that phone and what date that was received and what
time that was received on that phone.” In response, the State said, “I don’t have that
information. And I don’t have to have that information, Judge. The case law is very clear.
All the State has to allege is that an offense happened prior to the finding of the Grand Jury.
We have alleged that. I don’t have to have an exact date. And as far as location goes, [the
Petitioner] lived in Rutherford County.”

       In its order denying the bill of particulars, the trial court stated as follows:



                                             - 20 -
       The forty-five counts of the indictment against [the Petitioner] stem from
       fifteen pictures that were allegedly on [the Petitioner’s] phone at some point
       in time. At the hearing, [the Petitioner] claimed that the State cannot prove
       that [the Petitioner] ever possessed the pictures in Rutherford County, and he
       needs the Bill of Particulars to see the State’s proof on venue. The State
       responded that it has given everything in its possession to [the Petitioner],
       and that it is not required to show the [the Petitioner] how it intends to prove
       its case.

       The post-conviction court did not determine whether the Petitioner, in fact, made a
request for the information. Upon our de novo review, we conclude that counsel made a
request for the evidence.

         Next, we must determine whether the State suppressed the evidence. Here, the
record shows that trial counsel received only a two-page “hard” report indicating that an
examination had been conducted on the cell phones for the Petitioner and the victim. The
hard report also reflected the type of software utilized to perform the exams, which was
Lantern, Cellebrite, and MPE+ for the Petitioner’s phone, and Cellebrite and SUSTEEN’s
SV3 for the victim’s phone. The hard report had a section reflecting the files of evidentiary
interest. However, the report did not provide any information concerning the text
messages, and trial counsel denied having received an electronic file of the extraction
report of the cell phone data. The notebook was replete with over 6000 text messages
between the victim and the Petitioner. Specifically, between October 9, 2012 and February
9, 2013, the notebook compilation showed 5419 text exchanges in a format with columns
reflecting the folder, party, date and time, network, status, message, and whether the text
had been previously deleted. Between February 8, 2013 through April 11, 2013, the
notebook compilation consisted of 87 pages of data in fine print extracted from the victim’s
phone showing conversations exclusively with the Petitioner in a format with columns for
the “rectype,” time, to, from, message, status, and attachments. Although the post-
conviction court determined that trial counsel was “aware” of the text messages, the record
does not establish that the State provided trial counsel with a copy of
the extraction report or a copy of a flash drive or electronic storage device (CD) in response
to trial counsel’s request for pretrial discovery or his motion for bill of particulars, or before
seeking admission of the notebook compilation of the text messages at trial. Accordingly,
the record preponderates against the findings of the post-conviction court. Upon our de
novo review, we conclude that the State suppressed the evidence.

        We must now determine the favorability of evidence. As relevant here, evidence
that is considered “favorable to an accused” is evidence deemed to be exculpatory in nature
or evidence which provides some significant aid to the defendant’s case, whether it
furnishes corroboration of the defendant’s story, calls into question a material, although
                                              - 21 -
not indispensable, element of the prosecution’s version of the events. The Petitioner’s
defense theory was that the instant, Rutherford County charges were based on the same
criminal conduct as the prior, Lawrence County convictions. Trial counsel zealously
argued at the hearing on the motion to dismiss that the instant offenses were barred by
principles of double jeopardy. Trial counsel stated that [Detective Neese] told him that his
testimony before the Lawrence County Grand Jury was that the victim had sent photos to
the Petitioner. He insisted that at that point “all the proof that had ever been adduced in
this case was on the table” in Lawrence County. He maintained that after the Lawrence
County conviction, “the Petitioner was indicted for having photographs here in Rutherford
County that we knew existed at the whole time of the prosecution in Lawrence County.”
The State countered that the indictments in the instant case were in fact based on the victim
sending nude photos of herself to the Petitioner in Rutherford County, while the Lawrence
County convictions were based on the Petitioner sending nude videos/photos of himself to
the victim in Lawrence County. The State disputed trial counsel’s characterization of the
Lawrence County case. However, trial counsel pointed out that the Lawrence County
search warrant was specifically based on the fact that the victim sent the Petitioner nude
photos, and Detective Neese testified to the same at the preliminary hearing in Lawrence
County. The trial court then clarified that the issue “would be a question of where [the
Petitioner] was when the pictures were sent[,]” and not double jeopardy. Trial counsel
agreed with the court, requested the information from the State, and later filed a formal
motion for bill of particulars.

       Based on the defense theory that the State could not establish venue or that the
Petitioner was not in Rutherford County at the time the photos were sent to him, in addition
to the fact that the Petitioner had previously pled guilty to similar charges in Lawrence
County, we conclude that the technical information, including dates and times the text
messages were sent, provided in the extraction report and compiled in the notebook was
favorable to the Petitioner.

        Finally, we must determine whether the evidence was material. In review of this
issue, we are mindful that evidence is material when, because of its absence, the defendant
failed to receive a fair trial. The Petitioner argues that the State’s failure to disclose the
notebook compilation or the extraction report of the text messages was material because it
caused him to abandon his defense theory challenging venue. While that may be true, the
Petitioner has failed to demonstrate on appeal, in fact, how any of the thousands of text
messages deprived the State of venue or jurisdiction in this case. Accordingly, the
Petitioner has not established all four prerequisites to establish a Brady violation. He is not
entitled to relief on this issue.

      II. Ineffective Assistance of Counsel Claims. Next, the Petitioner argues trial
counsel was ineffective in failing to disclose the existence of the notebook to him prior to
                                            - 22 -
trial. The Petitioner insists that but for trial counsel’s failure to apprise him of the notebook,
he would have accepted the State’s four-year offer to settle instead of proceeding to trial.
The Petitioner argues as issues one and two in his brief that trial counsel was ineffective in
failing to object to the admissibility of the notebook. Additionally, the Petitioner asserts
trial counsel was ineffective in failing to object to the admission of the notebook
compilation during trial, arguing that any reasonably prudent counsel would have objected
to the notebook, especially had they not previously reviewed its content. Finally, the
Petitioner argues as issues three and four in his brief that trial counsel was ineffective in
failing to adequately preserve the appellate record for direct appeal. Once again, the State
relies on waiver due to the omission of the notebook in the record, and posits, even if trial
counsel was deficient, the Petitioner has failed to establish prejudice based on the
overwhelming evidence of guilt.

       We apply the following well-established legal framework to post-conviction relief,
which is only warranted when a petitioner establishes that his or her conviction or sentence
is void or voidable because of an abridgement of a constitutional right. Tenn. Code Ann.
§ 40-30-103. The Tennessee Supreme Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless the
       evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn, 202 S.W.3d at 115 (internal citations and quotation marks omitted); see Felts v.
State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State, 303 S.W.3d 674, 679 (Tenn.
2010). A post-conviction petitioner has the burden of proving the factual allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Tenn. Sup. Ct. R. 28, §
8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is considered
clear and convincing when there is no serious or substantial doubt about the accuracy of
the conclusions drawn from it.         Lane v. State, 316 S.W.3d 555, 562 (Tenn.
2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 S.W.2d
240, 245 (Tenn. Crim. App. 1998).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Because a
                                              - 23 -
petitioner must establish both prongs of the test, a failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “below an objective standard of reasonableness
under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at
688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘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). The key inquiry regarding the prejudice prong is
“‘whether counsel’s deficient performance renders the result of the trial unreliable or the
proceeding fundamentally unfair.’” Kendrick v. State, 454 S.W.3d 450, 458 (Tenn. 2015)
(quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)).               “Representation is
constitutionally ineffective only if it ‘so undermined the proper functioning of the
adversarial process’ that the defendant was denied a fair trial.” Harrington v. Richter, 562
U.S. 86, 110 (2011) (quoting Strickland, 466 U.S. at 686).

        The Strickland two-prong analysis applies to challenges of guilty pleas based on the
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)
(petitioner’s acceptance of a plea offer based on trial counsel’s erroneous advice). While
the elements to establish the first deficiency prong of Strickland remained the same, a
petitioner establishes the second prejudice prong by showing “a reasonable probability that,
but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S. at 59; Lafler v. Cooper, 566 U.S. 156, 160-75
(2012); Missouri v. Frye, ––– U.S. ––––, 132 S. Ct. 1399, 1407-09 (2012) (in the context
of guilty pleas a defendant must show the outcome of the plea process would have been
different with competent advice); accord Bush v. State, 428 S.W.3d 1, 20 (Tenn. 2014)
(citing Frye, 132 S. Ct. at 1407). The prejudice prong of Strickland in the context of
a rejected plea offer also requires the petitioner to show:

       but for the ineffective advice of counsel there is a reasonable probability that
       the plea offer would have been presented to the court (i.e., that the defendant
       would have accepted the plea and the prosecution would not have withdrawn
       it in light of intervening circumstances), that the court would have accepted
       its terms, and that the conviction or sentence, or both, under the offer’s terms
       would have been less severe than under the judgment and sentence that in
       fact were imposed.

Lafler, 566 U.S. at 164.
                                            - 24 -
      In considering the remedy for successful ineffective-assistance-of-counsel claims,
the Court cautioned that

       Sixth Amendment remedies should be tailored to the injury suffered from the
       constitutional violation and should not unnecessarily infringe on competing
       interests. Thus, a remedy must “neutralize the taint” of a constitutional
       violation, while at the same time not grant a windfall to the defendant or
       needlessly squander the considerable resources the State properly invested in
       the criminal prosecution.

Lafler, 566 U.S. at 170 (internal citations and quotation marks omitted).

        The order of the post-conviction court neither analyzed whether trial counsel was
deficient in failing to advise the Petitioner of the existence of the notebook nor provided
an analysis of the prejudice prong as required under Lafler. In any event, the Petitioner
argues, in effect, that trial counsel’s failure to advise him of the existence of the notebook
caused him to reject a four-year offer by the State to settle the case. We cannot hold trial
counsel to be deficient based on the State’s failure to disclose the notebook compilation
prior to trial. Accordingly, the Petitioner is not entitled to relief on this issue.

       With respect to trial counsel’s failure to object to the admission of the notebook, the
post-conviction court determined as follows:

              At the hearing, [trial counsel] testified that he did not view the
       “notebook” of text messages prior to trial. However, he knew that they
       existed and that they would likely be used as evidence at trial. He testified
       that by the time the “notebook” of messages was admitted into evidence, the
       jury had already viewed a video of the petitioner masturbating and pictures
       that were sexual in nature that were recovered from the [P]etitioner’s cellular
       phone. Further, he testified that he did not object to the admission of the
       “notebook” of the text messages because the evidence was overwhelming at
       that point. Moreover, [trial counsel] testified that it was a strategic decision
       not to object because he did not want to inflame the jury because he needed
       the jury to “work with him[.]” Additionally, he felt the “notebook” of text
       messages “was nothing more than the icing of the cake at that time[.]” When
       faced with the enormous amount of evidence against his client and the nature
       of he charges, this type of strategic representation by [trial counsel] was
       clearly not deficient and did not prejudice the [P]etitioner. Furthermore, the
       additional evidence admitted against the [P]etitioner was overwhelming, thus
       any error in not objecting to the “notebook” would not have prejudiced the
                                            - 25 -
       [P]etitioner. Therefore, the Court finds that Petitioner has failed to show by
       clear and convincing evidence that [trial counsel] was deficient in his legal
       representation and that he was prejudiced by any alleged deficiencies.

        Although trial counsel testified that he did not object to the admissibility of the
notebook for fear it would anger the jury and because, at that point, the evidence was “icing
on the cake,” the record shows that trial counsel did not review the notebook containing
over 6000 text messages prior to trial. As such, we are unable to conclude that trial
counsel’s failure to object to its admission was an informed choice based upon adequate
preparation. Moore v. State, 485 S.W.3d 411, 420 (Tenn. 2016)(citing Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996), Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992)) (stating that “deference to matters
of strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation”). Accordingly, we conclude that trial counsel was deficient in
failing to object to the admission of the notebook at trial. For the same reasons articulated
in the prejudice prong of the discovery section, we conclude that the result of the
Petitioner’s trial would have been different had trial counsel objected to the admission of
the notebook.

        The order of the post-conviction court also does not address trial counsel’s failure
to prepare an adequate appellate record. In determining whether a petitioner was deprived
of effective assistance of appellate counsel, we apply the same standards as set forth
in Strickland v. Washington, above. We are also mindful that the “failure to preserve
and/or assert all arguable issues on appeal is not per se ineffective assistance of counsel,
since the failure to do so may be a part of the counsel’s strategy of defense.”
State v. Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984). Here, we do not
consider trial counsel’s failure to include in the record on direct appeal the discovery
motion, the notebook compilation, or the transcript from the motion for new trial litigating
the same to be trial strategy. Under these circumstances, the Petitioner must establish a
reasonable probability that the inclusion of the motion for discovery, the notebook
compilation, and the transcript from the motion for new trial would have entitled him to
relief on direct appeal. For the reasons articulated in the discovery section supra, we
conclude that appellate counsel was deficient on direct appeal and that the Petitioner would
have established (1) that the State’s failure to comply with pretrial discovery was
prejudicial; and (2) that the result of the proceedings on direct appeal would have been
different but for appellate counsel’s failure to adequately preserve the record.




                                           - 26 -
                                 CONCLUSION

      Based on the above reasoning and analysis, we reverse the order of the post-
conviction court, vacate the Petitioner’s convictions, and remand for a new trial.




                                        ____________________________________
                                        CAMILLE R. MCMULLEN, JUDGE




                                      - 27 -
