        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs November 27, 2012 at Knoxville

              STATE OF TENNESSEE v. GENE EARL STANLEY

             Direct Appeal from the Criminal Court for Sumner County
                      No. 790-2010     Dee David Gay, Judge




               No. M2012-00664-CCA-R3-CD - Filed January 14, 2013


A Sumner County jury convicted the Defendant, Gene Earl Stanley, of one count of burglary,
two counts of theft of property, felony evading arrest, reckless endangerment, driving under
the influence of an intoxicant, and driving on a canceled, revoked, or suspended license. The
trial court sentenced the Defendant as a Career Offender to an effective sentence of forty-
eight years. Three months after the jury’s verdict and one month after sentencing, the
Defendant filed a motion for new trial, which the trial court ultimately denied. On appeal,
the Defendant contends that he was denied due process when the State failed to provide him
“potentially exculpatory evidence” that was in the State’s possession. The State counters that
the Defendant’s motion for new trial was untimely filed. After a thorough review of the
record and relevant law, we affirm the trial court’s judgments.

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

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

Joseph B. Freedle, Gallatin, Tennessee, for the appellant, Gene Earl Stanley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; L. Ray Whitley, District Attorney General; and Lytle A James, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

                                          I. Facts
        This case arises from the burglary of Vic Jenkins Automotive, during which items,
including a Camaro Z28, were stolen and after which the driver of the Camaro Z28 engaged
in a high speed chase from the police. In relation to this burglary, the Sumner County grand
jury indicted the Defendant for three counts of theft of property, one count of burglary, one
count of felony evading arrest, one count of felony reckless driving, one count of driving
under the influence, one count of driving without a license, one count of driving on a revoked
or suspended license, and one count of violating the implied consent statute. The State later
dismissed one of the counts of theft.

        At the Defendant’s trial on these charges, the following evidence was presented:1
Officer Greg Alvis, with the Gallatin Police Department, testified that, on August 29, 2010,
at about 12:34 a.m., he noticed a red Camaro, driven by the Defendant, come out of the rear
of Vic Jenkins Automotive, from near the shop area, at a high rate of speed. Officer Alvis
was aware that a Camaro had been stolen from that business nine days before, and he decided
to follow the Camaro. While following the Defendant, Officer Alvis only lost sight of him
“momentarily” due to a change in the elevation of the roadway. Officer Alvis followed the
Camaro until it “maneuvered” almost completely into the oncoming lane of travel, after
which the officer initiated his emergency lights in order to pull over the Camaro. The
Defendant turned on his right blinker and activated his brake lights. Before the Defendant
pulled over to the shoulder of the roadway, he accelerated and entered the exit ramp heading
North.

       Officer Alvis activated his siren and followed the Defendant, contacting dispatch to
inform them that the Camaro he had attempted to pull over had failed to stop. He gave the
Camaro’s description and tag number to dispatch. Officer Alvis followed the Defendant,
who reached speeds in excess of 110 miles per hour, while passing other cars on the
roadway. Sumner County officers, who were nearby, informed Officer Alvis that they had
“stop sticks,” which are small metal spikes used to puncture tires making them slowly
deflate. The county officers placed the stop sticks in the road in front of the Defendant’s car,
and the Defendant ran over the spikes, which punctured one of his tires. The sticks also
punctured Officer Alvis’s tires, and he pulled over and yielded the pursuit to other officers.

        Officer Chris Ford picked up the chase after Officer Alvis pulled over. He caught up
to the Defendant and then another officer, Deputy Lester, pulled in front of him, and Officer
Ford fell back to the second car chasing the Defendant. Even after one of his tires had been
punctured by the stop sticks, the Defendant reached speeds over 100 miles a hour. Debris
from the Defendant’s punctured tire began flying up and hitting the police cars. There was


       1
        Because the Defendant does not challenge the sufficiency of the evidence against him, we
summarize the facts presented during the trial in the light most favorable to the State.

                                              -2-
also smoke coming from the tire. The Defendant continued on toward Portland, and Portland
police officers placed a second set of stop sticks in the roadway. The Defendant ran over
these second stop sticks and the Camaro began “fish-tailing” through the lane. Eventually,
the Defendant ran the Camaro off the roadway and onto a grass embankment.

       As soon as the Camaro came to a stop, Officer Ford ran toward to the driver’s side
door of the Camaro. As the officer was approaching the Camaro, the Defendant exited the
Camaro and attempted to flee. The seatbelt of the Camaro, however, was wrapped around
the Defendant’s leg, preventing his flight. The officers approached the car, yelling
commands, and the Defendant failed to heed their commands and continued trying to run.
The officers then deployed a taser weapon and took the Defendant into custody. Officer Ford
and Officer Shaun Lester both testified that the Defendant was alone in the Camaro.

       Officer Ford noticed the strong odor of alcohol emanating from the Defendant when
he took the Defendant into custody. Officer Ford looked inside the car, and he noted there
were “rims and tires” in both the back seat and the front passenger seat. He testified that,
because the rims and tires were in the car, there was not room for a passenger.

       The owner of the Camaro that was stolen, Paige Raynor, testified that her father gave
her the car to restore in June of that year. The car, she said, had a value of between $8,900
and $9,500. She took the car to Vic Jenkins Chevrolet to have some paint work done on the
hood. The car was stolen from the Vic Jenkins Chevrolet service shop lot while it was there
for repair.

      Officer Alvis investigated the Defendant’s driving history and learned that the
Defendant’s driver’s license was suspended at the time of his arrest. He further learned that
the Defendant’s driving privileges had been suspended on three previous occasions.

        Darrell Barber, the Collision Repair Manager with Vic Jenkins Automotive, testified
that, on the night of this incident, a “significant amount of damage [was] done to the [Vic
Jenkins Automotive] building.” It appeared that the gate had been broken into or climbed
over in order for the burglar to gain access to the building. The burglar broke the rear
window of the collision repair center, where he took tires and wheels from the shop valued
in excess of $1,000. The burglar also took a Camaro, which was located inside the shop.
Barber said the work to the Camaro was almost completed, pending his receipt of one part.
He had parked the Camaro inside the collision repair center while he was awaiting that part.
Barber recalled that a week before the Camaro was taken, the collision repair center had been
burglarized and a company truck had been driven through the gate surrounding the building.

       Detective Tim Anschuetz, with the Gallatin Police Department, interviewed the

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Defendant after the Defendant’s arrest. The Defendant told the officer that he had no
recollection of the incident. He told the officer that all he recalled was being in the parking
lot of Hank’s Bar. He remembered that he drank two twenty-four ounce beers and a half-pint
of vodka. He said he began talking with a man and a lady who had some whiskey, and he
drank some of their whiskey and “hit a joint with them,” which was the last thing he
remembered. The Defendant said his next memory was awaking in the hospital. When the
detective asked him about driving the Camaro, the Defendant said “if I’m driving something
does that mean I stole it?”

        Detective Anschuetz testified during cross-examination that he believed that an
evidence technician dusted for fingerprints and obtained several latent prints from the
Camaro. He said he thought those prints were never sent for further testing. He said there
were also multiple shoe prints in the dust on the floor of the garage, and the evidence
technician conducted two “electro-static” lifts of the shoe prints. The detective learned that,
at the time of these crimes, the Defendant was living with the Defendant’s brother and the
Defendant’s brother’s wife, who lived on a street behind Vic Jenkins Cheverolet.

        The Defendant testified that he had previously been convicted of felonies and that he
pled guilty to each of those because he was guilty. He said he was not, however, guilty of
the charges in this case. He said that, the week before this incident, he had been kicked out
of his apartment for fighting with another man. He said that his truck was “bowed up,” and
he was at that point homeless. He asked his brother if he could live with him for a couple
of weeks and, in exchange, the Defendant would work on his brother’s house. His brother
agreed and, as of August 29, 2010, he had lived with his brother for about a week.

       The Defendant described how, on August 29, he worked on his brother’s house for
most of the day and then ate dinner with his brother. He said he drank “one beer” and then
took a bath and talked to his “ex-old lady” for about thirty minutes on the phone while
drinking another beer. The Defendant estimated that it was “close to 10:00” p.m. at this
point. He said he walked to Broadway Liquor Store and bought a half-pint of whiskey and
then walked back to the house. He said that he drank the entire half-pint in approximately
one hour.

       At around 11:00 p.m., the Defendant decided to go to Hank’s Bar. In the parking lot
before he entered the bar, he met a man and a woman who were sitting in their cars, one of
which was the maroon Camaro that the Defendant was later seen driving. He asked if the
couple had a light for his cigarette, and they provided it for him. The three struck up a
conversation and then began drinking whiskey that the couple had with them. The Defendant
said he sat in the driver’s seat of the Camaro, noting that there were rims and tires in the car
and that the keys were in the ignition. The Defendant then smoked marijuana with the

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couple.

        The Defendant said that the woman was acting like the Camaro belonged to her. The
couple asked him if he wanted to go with them to “party” for the night, and the Defendant
agreed if someone would bring him home in the morning. The man then said that the woman
was “kind of messed up pretty good” and asked the Defendant to drive her Camaro. He told
the Defendant that he would ride as a passenger and that the woman could drive his truck
back to the house. The Defendant said the woman got her pocketbook out of the Camaro and
also retrieved something from the glove box.

        The Defendant testified that after the man got into the passenger seat, he started the
Camaro. The Defendant recalled that the car was powerful and the gas pedal was “tight,”
so that when he pushed the gas pedal “it kind [of] goosed it,” causing him to “sho[o]t out of
the bar” parking lot. The man instructed the Defendant to go to the left, so the Defendant
drove through a gas station parking lot and then made a right to head in the direction the man
had indicated. The Defendant recalled that there was static on the radio station and that he
attempted to tune the radio, which caused him to go outside of his lane of traffic. He said
that he then noted that the blue lights of a police car were activated behind him. The
Defendant said he activated his turn signal and slowed down to pull over.

        The Defendant said that the man with him then smacked him in the face with a pistol
and told him to drive. He said that this bruised the right side of his face, as shown in the
photograph police took of him later that evening. The Defendant said the man said, “Don’t
get me caught in this car,” pointed the gun at him, and insisted he drive. The Defendant said
that, at that point, he knew something was not right. He said he drove while the man kept
the gun pointed at his face. The Defendant said he swerved into the oncoming lane of traffic
because the man told him, “do not let none of them get up beside me and see me in this car.”
He said he was worried about getting into an accident and the gun going off. The man told
the Defendant to make a left because the man was going to get out of the car. The Defendant
said he was traveling 110 mph at that point, and one of the tires of the Camaro blew out. The
Defendant insisted that there was a man in the front passenger seat when he crashed and also
that there was no tire in the front seat before the crash. He offered a guess that, as a result
of the crash, a tire from the back seat landed in the front seat.

       During cross-examination, the Defendant agreed he was under the influence when he
was driving that night and that he was driving on a suspended license. He agreed that he had
previously been convicted of driving on a suspended license on three prior occasions. The
Defendant denied that he told Officer Ford that the man with him waved a gun at him when
they were at the Shell gas station, so he jumped in the driver’s seat and drove away. The
Defendant then said that he had, in fact, told the officer that he got “smacked” with a gun

                                              -5-
while he was at the Shell station. The Defendant agreed he had been previously convicted
of felonies on October 1, 2009, March 11, 2004, and March 17, 2000.

       In rebuttal, Deputy Shaun Lester testified that, after this crash, he went to the
passenger side of the car and lifted the handle of the door. The handle “popped” out of his
hand, and he had to break the passenger’s side window to search the Camaro. Deputy Lester
looked in the Camaro to see if there was anyone else inside, and he did not see anyone.

        Based upon this evidence, the jury convicted the Defendant of one count of burglary,
two counts of theft of property, felony evading arrest, reckless endangerment, driving under
the influence of an intoxicant, and driving on a canceled, revoked, or suspended license. It
is from these judgments that the Defendant now appeals.

                                          II. Analysis

        On appeal, the Defendant concedes that he “was witnessed by law enforcement
officers driving a stolen vehicle, possessing stolen tires and rims, evading arrest, driving
under the influence, and driving on a suspended license.” He contends, however, that no one
witnessed him “burglarizing Vic Jenkins Chevrolet, [a] crime for which he was sentenced
to serve twelve (12) years.” The Defendant contends that the State did not provide him with
any of the photographs of the dusty footprints on the floor of the auto shop, violating Brady
v. Maryland, 373 U.S. 83, 87 (1963). He asserts that none of the footprints matched his, and
this evidence was therefore exculpatory. The State counters that the Defendant failed to
preserve this issue because his motion for new trial was not timely filed. The State concedes
that the Defendant raised the issue in the motion for new trial but asserts that the motion’s
untimeliness renders this Court unable to review the issue. Further, the State contends that
the Defendant has failed to show how the footprints, if disclosed, would have impacted the
jury’s verdict.

                                          A. Waiver

        The Defendant was convicted of the charged offenses on June 29, 2011, and he was
sentenced on August 12, 2011. On September 20, 2011, the Defendant’s counsel filed a
motion for extension of time to file a motion for new trial. New counsel for the Defendant
filed a motion seeking an extension of time to file a motion for new trial, which the trial court
granted. The Defendant’s new counsel filed the motion for new trial on October 28, 2011.

       Our rules of criminal procedure provide that “[a] motion for a new trial shall be in
writing or, if made orally in open court, be reduced to writing, within thirty days of the date
the order of sentence is entered.” Tenn. R. Crim. P. 33(b). “[T]his thirty day period is

                                               -6-
jurisdictional and cannot be expanded.” State v. Hatcher, 310 S.W.3d 788, 800 (Tenn.
2010)(emphasis added). Thus, “[a] trial judge does not have jurisdiction to hear and
determine the merits of a motion for a new trial which has not been timely filed.” State v.
Bough, 152 S.W.3d 453, 460 (Tenn. 2004). In this case, the motion for new trial was filed
more than two months after the judgment was entered. Nevertheless, the trial court
conducted a hearing on the merits of the motion. As a result of the untimely filed motion for
new trial, the trial court was without jurisdiction to consider the motion. See State v. Dodson,
780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Additionally, “[i]f a motion for new trial is
not timely filed, all issues are deemed waived except for sufficiency of evidence and
sentencing.” Bough, 152 S.W.3d at 460.

        Moreover, a notice of appeal must be filed “within 30 days after the date of entry of
the judgment appealed from.” Tenn. R. App. P. 4(a). An untimely motion for new trial will
not toll this thirty-day period. See Tenn. R. App. P. 4(c); State v. Davis, 748 S.W.2d 206,
207 (Tenn. Crim. App. 1987). Here, the notice of appeal was filed more than thirty days after
judgment was entered. However, “in all criminal cases the ‘notice of appeal’ document is
not jurisdictional and the filing of such document may be waived in the interest of justice.”
Tenn. R. App. P. 4(a).

        Unlike other rules of procedure, Rule 33 does not contain a provision for untimely
filed motions for new trial. See, e.g., Tenn. R. Crim. P. 32(f) (withdrawal of guilty plea
allowed “for any fair and just reason” before sentence is imposed or “to correct manifest
injustice” after judgment entered but before it becomes final); Tenn. R. App. P. 4(a) (in
criminal cases, “notice of appeal” document is not jurisdictional and filing may be waived
“in the interest of justice”). While this Court may waive the untimely filing of the notice of
appeal, we do not have the authority to waive the untimely filing of a motion for new trial.
State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997); State v. Stephens, 264 S.W.3d 719, 728
(Tenn. Crim. App. 2007); see also Tenn. R. App. P. 4(a).

        As previously noted, if a motion for new trial is not filed within the mandatory
thirty-day period, all issues are deemed waived except for sufficiency of the evidence and
sentencing. Bough, 152 S.W.3d at 460; Martin, 940 S.W.2d.at 569. None of the issues
raised by the Defendant involve sufficiency of the evidence or sentencing. As such, for the
purpose of our appellate review, all of the Defendant’s issues are waived. See, e.g., Melissa
L. Grayson, No. M2011-00648-CCA-R3-CD, 2012 WL 3611821, at *10-11 (Tenn. Crim.
App., at Nashville, Aug. 20, 2012), no Tenn. R. App. P. 11 application filed. This Court,
however, may review issues normally waived pursuant to the plain error doctrine. Tenn. R.
App. P. 36(b).

                                       B. Plain Error

                                              -7-
       This Court may review an issue which would ordinarily be considered waived if the
Court finds plain error in the record. For example, this Court may consider errors affecting
the substantial rights of the defendant if review is necessary to do substantial justice.
Because, according to Tennessee Rule of Appellate Procedure 13(b), “[r]eview generally will
extend only to those issues presented for review,” we may review the issues presented by the
Defendant herein pursuant to Tennessee Rule of Appellate Procedure 36(b), which states that
“[w]hen necessary to do substantial justice, an appellate court may consider an error that has
affected the substantial rights of a party at any time, even though the error was not raised in
the motion for a new trial or assigned as error on appeal.”

         A court will grant relief for plain error pursuant to Rule 36(b) of the Tennessee Rules
of Appellate Procedure only when: “(1) the record clearly establishes what occurred in the
trial court; (2) the error breached a clear and unequivocal rule of law; (3) the error adversely
affected a substantial right of the complaining party; (4) the error was not waived for tactical
purposes; and (5) substantial justice is at stake; that is, the error was so significant that it
‘probably changed the outcome of the trial.’” State v. Hatcher, 310 S.W.3d 788, 808 (Tenn.
2010) (citing State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting State v. Adkisson,
899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)). “If any of these five criteria are not met,
we will not grant relief, and complete consideration of all five factors is not necessary when
it is clear from the record that at least one of the factors cannot be established.” Id. “The
party claiming plain error has the burden of persuading the appellate court. Id. (citing State
v. Banks, 271 S.W.3d 90, 119 (Tenn. 2008)).

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

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

Johnson, 38 S.W.3d at 56-57 (quoting Commonwealth v. Ellison, 376 Mass. 1, 379 N.E.2d
560, 571 (1978)). The State has an obligation to disclose “‘any favorable evidence known
to the others acting on the government’s behalf in the case, including police.’” Johnson, 38
S.W.3d at 56 (quoting Strickler v. Green, 527 U.S. 263, 275 n.12 (1999)). Additionally,

                                              -8-
“The duty to disclose exculpatory evidence extends to all ‘favorable information’ irrespective
of whether the evidence is admissible at trial.” State v. Robinson, 146 S.W.3d 469, 512
(Tenn.2004) (citing Johnson, 38 S.W.3d at 56).

       A defendant must prove the following four prerequisites in order to establish a
violation of due process under Brady:

        1. The defendant must have requested the information (unless the evidence is
        obviously exculpatory, in which case the State is bound to release the
        information whether requested or not);

        2. The State must have suppressed the information;

        3. The information must have been favorable to the accused; and

        4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The defendant must prove a due process
violation by a preponderance of the evidence. Id. (citing State v. Spurlock, 874 S.W.2d 602,
610 (Tenn. Crim. App. 1993)). The Tennessee Supreme Court defined “material” within the
context of Brady:

        Evidence is deemed to be material when “there is a reasonable probability that,
        had the evidence been disclosed to the defense, the result of the proceeding
        would have been different.” . . . [A] reviewing court must determine whether
        the defendant has shown that “the favorable evidence could reasonably be
        taken to put the whole case in such a different light as to undermine the
        confidence of the verdict.” In other words, evidence is material when, because
        of its absence, the defendant failed to receive a fair trial, “understood as a trial
        resulting in a verdict worthy of confidence.”

Johnson, 38 S.W.3d at 58 (citations omitted).

       At the motion for new trial, the Defendant’s counsel alleged that the State withheld
exculpatory evidence because it failed to provide him copies of electrostatic lifts of footprints
that were made at the scene.2 During the investigation, law enforcement officers gathered
fingerprints and footprints from Vic’s Automotive collision repair center. The officers did


       2
          The record indicates that the Defendant’s counsel also argued that the State failed to provide
fingerprints lifted from the scene, but the Defendant does not raise that issue in his brief.

                                                  -9-
not send these footprints or fingerprints for further testing or comparison, thinking it
unnecessary.

        We conclude that the Defendant has not proven that the State committed a Brady
violation. The State’s theory of the case included that the police officer saw the Defendant
drive away from Vic’s Automotive in the Camaro. The officer followed him, never losing
sight of him for a significant period of time, and the Defendant ultimately crashed the
Camaro. After he crashed, officers approached the Camaro, in which the Defendant’s foot
was caught. There was no one in the passenger’s seat, and there was a tire and rim of a car
located in the front passenger seat. At trial, the Defendant presented a theory of defense
based upon the fact that another man stole the car and later forced the Defendant, at gun
point, to drive the car. Police officers refuted that they saw the Defendant exiting the bar
parking lot rather than the Vic’s Automotive parking lot.

        Under this set of facts, law enforcement officers did not send the footprints for further
testing, deeming it an unnecessary expense. Neither these officers nor the State is required
to anticipate the Defendant’s seemingly far-fetched defense. We conclude that the footprint
evidence is not material because there is not a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. See
Johnson, 38 S.W.3d at 58. Accordingly, the issue presented is not one that requires our
review pursuant to the plain error doctrine. The Defendant is not entitled to relief.

                                        III. Conclusion

         Based on the foregoing reasoning and authorities, we affirm the judgments of the trial
court.




                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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