           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
March 23, 2016 Session Heard at Lincoln Memorial University, Duncan School of
                                    Law

            STATE OF TENNESSEE v. MICHAEL D. HERNANDEZ

                 Appeal from the Circuit Court for Anderson County
                   No. A9CR0883       Donald Ray Elledge, Judge
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              No. E2015-01365-CCA-R3-CD – Filed September 27, 2016
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JOHN EVERETT WILLIAMS, J., concurring in part and dissenting in part.

        I agree with the majority‟s conclusion upholding the Defendant‟s conviction for
rape of a child and his twenty-five-year sentence. Moreover, while I agree with the
majority‟s conclusion that Ms. Powell‟s notes do not qualify as a “statement” of the
victim pursuant to Tennessee Rule of Criminal Procedure 26.2, I write separately to
address the issue of whether Ms. Powell‟s notes qualify as a “statement” of Ms. Powell as
the testifying witness pursuant to Rule 26.2.

        This court has recognized that “„an officer‟s own investigation report constitutes a
prior statement by that officer, unless for some reason it fails to qualify under paragraph
(F) of [Rule 26.2.]‟” Johnson v. State, 145 S.W.3d 97, 122 (Tenn. Crim. App. 2004)
(quoting State v. Robinson, 618 S.W.2d 754, 760 (Tenn. Crim. App. 1981)). However,
“[a] government agent‟s rough notes will not be Jencks Act statement when they are not
complete, are truncated in nature, or have become an unsiftable mix of witness testimony,
investigator‟s selections, interpretation, and interpolations.” United State v. Mincoff, 574
F.3d 1186, 1200 (9th Cir. 2009) (citations omitted).1

      In Clancy v. United States, 365 U.S. 312 (1961), the United States Supreme Court
addressed the issue of whether an agent‟s report was a “statement” producible for the
purposes of impeaching the agent himself following the agent‟s testimony on direct

       1
         “[T]he phrase „Jencks material‟ is derived from Jencks v. United States, 353 U.S. 657
(1957), and the subsequent congressional action that was ultimately incorporated into Rule 26.2
of both the Federal and Tennessee Rules of Criminal Procedure.” State v. Jerry James Hayes,
No. 02C01-09810-CC-00338, 1999 WL 668719, at *3 (Tenn. Crim. App. Aug. 26, 1999).
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examination. The defense sought notes and memoranda prepared by agents of interviews
of the defendants and another witness. Clancy, 365 U.S. at 313-14. The trial court
granted the defense‟s request for the notes but denied the request for the memoranda
because they were not made “contemporaneously” with the interview. The government
conceded error, and the Court agreed. Id. The Court reasoned:

      Each of these statements related “to the subject matter as to which the
      witness has testified.” Each was a “stated” as that word is defined in the
      Act. The requirement that it be contemporaneous applies only to “a
      substantially verbatim recital of an oral statement” made to a government
      agent. By the terms of the Act, “a written statement made by said witness
      and signed or otherwise adopted or approved by him” is also included.
      These statements fell in that category and should have been produced.

Id. at 314-15 (footnotes omitted). Thus, even though Ms. Powell‟s notes were not subject
to disclosure under Rule 26.2 as the victim‟s statement in order to impeach the victim‟s
testimony, the notes were subject to disclosure pursuant to Rule 26.2 as Ms. Powell‟s
statement.

      Our supreme court has instructed that

      [w]hen demand for [the materials] was made[,] it was the duty of the trial
      judge to determine first of all that a writing existed. Having found there
      was such a writing in existence[,] his next duty was to establish that it was
      related to the subject matter of the witness‟ testimony, and that it was a
      statement within the definition of the rule. The court may consider
      whatever evidence is necessary to determine these issues. Once it has been
      determined that a statement is producible, the court should examine the
      document in camera. If any part of it does not relate to the subject matter
      of the witness‟ testimony[,] it is the court‟s duty to excise the unrelated
      material and order the remainder to be delivered to the moving party.

State v. Daniel, 663 S.W.2d 809, 811-12 (Tenn. 1983). The trial court erred in failing to
take these steps and examine whether Ms. Powell‟s notes were subject to disclosure
pursuant to Rule 26.2.

       I have reviewed the notes and conclude that they reflect evidence that was
presented at the trial and some statements from the victim that are inconsistent with some
of the victim‟s statements at trial. These inconsistencies were explored by defense
counsel during the trial. Accordingly, the trial court‟s error was harmless. See State v.
Danny Howard, No. W2012-02109-CCA-R3-CD, 2013 WL 6254679, at *12 (Tenn.
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Crim. App. Dec. 2, 2013), perm. app. denied (Tenn. May 15, 2014) (holding that a
violation of Rule 26.2 was harmless because the information included in the withheld
document was cumulative to the evidence in possession of the defense). The Defendant
has failed to demonstrate that the error more probably than not affected the judgment.
See Tenn. R. App. P. 36(b).




                                           ____________________________________
                                          JOHN EVERETT WILLIAMS, JUDGE




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