         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON               FILED
                           DECEMB ER SESSION, 1997          April 21, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,             )    C.C.A. NO. 02C01-9706-CC-00223
                                )
      Appellee,                 )
                                )
                                )    LAUDERDALE COUNTY
VS.                             )
                                )    HON. JOE H. WALKER
TIMMY FULTON,                   )    JUDGE
                                )
      Appe llant.               )    (Direct Appeal - 2nd Deg ree Murde r)



FOR THE APPELLANT:                   FOR THE APPELLEE:

C. MICHAEL ROBBINS                   JOHN KNOX WALKUP
3074 East Street                     Attorney General and Reporter
Memphis, TN 38128
                                     DEB ORA H H. T ULLIS
GARY F. ANTRICAN                     Assistant Attorney General
District Public Defender             425 Fifth Avenu e North
25th Judicial District               Nashville, TN 37243
P. O. Box 700
Somerville, TN 38068                 ELIZABETH RICE
                                     District Attorney General

                                     MARK DAVIDSON
                                     WALT FREELAND
                                     Assistant District Attorn eys
                                     302 Market Street
                                     Somerville, TN 38068



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION

      On October 18, 1996 a Lauderdale County jury convicted Appellant, Timmy

Fulton, of murder in the second degree. After a sentencing hearing, the trial court

sentenced Appellant to twenty-two years incarceration to be served at one

hundred percen t pursua nt to Tennes see Cod e Annotate d § 40-35-5 01(I)(1)&(2).

Appellant appeals from his conviction, presenting two issues:

      1. whether the trial court erred in refusing to grant a mistrial based upon
      prosecutorial misconduct; and
      2. whether the evidence presented at trial was sufficient to support the jury
      verdict.


      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                       FACTS

      On July 7, 1995, Appellant and his sister, Teresa Spivey, picked up Kevin

Currie from Currie’s aunt’s house in Ripley, Tennessee. The y took C urrie to h is

house so that he could change clothes. When Currie emerged from the house,

he had a gun with him which was loaded with one bullet in the clip. Appellant then

drove, with Spivey and Currie, from Ripley, Tennessee to Halls, Tennessee.



      When they reached Halls, Appellant parked the car on the side of Pearl

Street. The victim, Wayne Cunningham, stopped his car near the car driven by

Appellant. Currie testified that Appellant asked him for his gun. Currie gave the

gun to Appellant who said he was going to “get” Cunningham. Spivey testified

that it was Currie who identified the victim as the man who had shot at Appe llant,

and that Currie pulled out his gun, offering it to Appellant and said, “[i]t’s not

loaded--loaded. If you don’t do it, I’ll do it.” Spivey did not see Appellant take the


                                         -2-
gun, though she assumed that he had done so. Appellant got out of the car and

got into the car driven by the victim.



       Currie then drove hims elf and Spive y to Sp ivey’s au nt’s house on Church

Street. Spivey visited with her aunt and other people who were standing around

in her aunt’s yard. Currie left on foot down Church Street. About ten minutes

later, Spivey and th e others in the yard h eard a c rashing sound and we nt to

where th e victim’s ca r had cra shed into a nearb y house .



       Testimony revealed that the victim’s car had rolled down Ceder Street with

it’s lights out and the passenger door open. The victim was found inside the car

with a gun shot wo und to h is leg. He b led to death quickly due to the severance

of his fem oral artery b y a bullet.



       Appellant appeared on the scene of the car crash, w alking down Pearl

Street. He asked witness Alfred R ound tree wh at had happ ened . Currie

approached from the direction of Church Street. Currie testified that Appellant

told him that Appellant had shot the victim and that Appellant thought that “that

guy was going for a --- make a fa ke pistol break.” Currie also testified that he

went to his co usin’s hous e and told his cousin that he, Currie, had killed a man.

Currie claimed that he told his cousin this because he was afra id of App ellant,

however Appe llant wa s not w ith Cur rie when he visited his cousin. Ms. Martha

Spivey, Appellant ‘s mother and Currie’s aunt, testified that Currie came to her

house around five o’clock in the morning of July 8, 1995. Currie told her that he

had been in an argument with a man in Halls and that he had shot the man. She

testified that Currie was nervous, crying, and sick to the point of throwing up.

                                         -3-
       Currie was arrested along w ith Appellant and charged with murder in the

second degre e. Cu rrie pled guilty to facilitation of a felony of second degree

murder in exchange for an eight year sentence.



                             I. Prosecutorial Misconduct

       Appe llant alle ges th at the tria l court e rred in r efusin g to gra nt App ellant’s

motion for a mistrial after the State revealed that it had withheld a statement by

Teresa Spive y from the de fense . At trial, Teresa Spivey testified that she never

saw Currie hand Appellant t he gun. T he State, who had called M s. Spivey,

impeached this tes timon y, using a state men t Ms. S pivey g ave Ju ly 12, 19 95, in

which she said, “[Currie] ha nded th e gun to Timm y.” Ms. Spivey testified at trial

that she had assumed that Currie handed the gun to Appellant but that she re ally

did not see the exchange. After Ms. Spivey was released and the trial had

progressed, the State disclosed that Ms. Spivey had given a second statement

eight months prior to trial in which she said exactly what she said at trial, that

though she assumed that the gun changed hands, she did not actually see it do

so. The State knew about this second statement, but failed to provide it to the

defense either as Brady material or as Jencks mate rial. Appe llant argue s that,

because the pro secu tion’s w ithholding of Ms. Sp ivey’s statemen t could have

affecte d the ju ry verdic t to his p rejudic e, he is entitled to a ne w trial.



                  A. Impeachment of the State’s Own Witness

       Appellant contends that the trial court erred in refusing to grant a mistrial

after the State im permis sibly impe ached Ms. Sp ivey with he r prior statem ent.

Initially, we note that Appellant failed to raise this issue in his motion for a new

trial. In so doing, Appellant effectively waived this issue. State v. Sexton, 917

                                             -4-
S.W.2d 263, 266 (Tenn. Crim. App. 19 95); State v. Moffett, 729 S.W.2d 679, 682

(Tenn. Crim. App. 1986 ); Tenness ee Rules o f Appellate Proc edure 3(e). In any

event, the Tennessee Rules of Evidence Rule 607 provides: “The credibility of a

witness may be attacked by any pa rty, including the party ca lling the witne ss.”

This rule abolishes the “common law prohibition against impeaching one’s own

witness.” Rule 607 Tennessee Rules of Evidence Advisory Commission

Commen ts.      This rule allows impeachment by either party so long as the

questioning is not a pretext for putting inad missible hea rsay before the jury.

State v. Johnson, C.C.A . No. 0 2-C0 1-950 4-CC -0009 7, Ob ion County (Tenn.

Crim. App., Jackson, February 27, 1997) (citing State v. Mays , 495 S.W.2d 833

(Tenn . Crim. A pp. 197 2), cert. denied (Tenn. 197 3)).



       In this case, we d o not find that the im peachm ent of Ms. Spive y was for

any impro per pu rpose .        Ms. S pivey’s testim ony es tablished a “fact of

consequence” which was c rucial to the State’s case, by providing the

corroboration neces sary for C urrie’s acc omplice testimon y. State v. Han kins,

C.C.A. No. 02C01-9603-CR-00098, Shelby County (Tenn. Crim. App., Jackson,

May 23, 1997). Appellant has also failed to show how the impeachment of Ms.

Spivey in any has prejudiced his case. Ms. Spivey testified at trial that she

assumed that C urrie ha nded Appe llant the gun. W hile perhaps less damning

than Currie ’s testim ony, M s. Spiv ey’s pre trial and trial testim ony pu t Appe llant in

the car with the victim shortly before the victim was killed and placed him at the

scene shortly after the killing. Any effect that any improper impeachment might

have had was harmless. The State w as free u nder the Rules o f Evidenc e to

impea ch Ms. S pivey. Th is issue is w ithout me rit.




                                            -5-
                                B. Brady Violation

      Appellant also con tends tha t the State violated the provisions set out by the

United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215 (1963) by failing to disclo se Ms . Spive y’s second statement prior

to trial. There are four p rerequis ites a defe ndant m ust demon strate in ord er to

establish a due process violation u nder Brady. They are:



      1. The defendant must have requested the information (unless the
evidence is obviously exculpa tory, in which c ase the State is bo und to release the
information wh ether reques ted or not);

      2. The State must have suppressed the information;

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

      4. The in formatio n mus t have be en ma terial.


      State v. Edg in, 902 S.W .2d 387,389 (Tenn. 199 5)(citing State v. Evans,

838 S.W .2d 185 (Tenn .1992); State v. Spurlock, 874 S.W.2d 602 (Tenn. Crim.

App.19 93); Wo rkman v. State, 868 S.W.2d 705 (Tenn. Crim. App.19 93); State

v. Marshall, 845 S.W .2d 228 (Tenn . Crim. A pp.199 2); Strouth v. S tate, 755

S.W.2d 819 (Tenn. Crim. App.1986 )). The standard of materiality of the evidence

for a Brady violation requires that “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been d ifferent." State v. Edg in, 902 S.W .2d 387, 390 (Tenn. 199 5).



      In the matter sub judice, Appellant filed a Brady request on O ctober 12,

1995, requesting any exculpatory materials which the State might have in its

possession or constructive possession. Nevertheless the State did not turn over

to the defense Ms. Spivey’s second statement. The information in the second


                                         -6-
statement clarified Ms. Spivey’s initial statement to the authorities, saying that

she did no t actua lly see Currie hand Appellant the gun, but rather that she mere ly

assumed he did so. While it appears that the State failed to turn over Ms.

Spive y’s statement, we cannot find even a slim probability that the disclosure of

Ms. Spivey’s statem ent would ha ve resulted in Appellant’s ac quittal. Further,

even if the State had failed to co mply with Brady, a Brady violation results in a

breach in due process only if the withholding of evidence prevents material

exculpatory evidence from effe ctively being used a t trial. United States v. Peters,

732 F.2d 10 04 (1st C ir. 1984); United States v. Higgs, 713 F .2d 39 , 44 (3rd Cir

1983); United States v. Xheka, 704 F.2d 974, 981 (7th Cir. 19 83); United States

v. McPartlin, 595 F.2d 1 321, 1346 (7th Cri.) cert, denied, 444 U.S . 833, 100 S.Ct.

65, 62 L.Ed . 2d 43 (1 979); State v. Caughron, 855 S.W.2d 526 (Tenn.

1993)(Daughtrey, J., dissenting). Not only has the evidence not bee n show n to

be exculpatory or material, Appellant has not put forth any proof of prejudice

which resulte d from the de lay in disclosure of the statement. This issue is without

merit.



                                 C. Jencks Violation

         Appellant further argues that the State violated the provisions of Rule

26.2(e) of the Tennessee Rules of Criminal Procedure, also known as the Jencks

Act, by failing to provide the defense with a copy of Ms. Spivey’s second

statement after her direct testimony. In pertinent part, the rule reads as follows:

               Production o f Statemen ts of Witne sses.--



                (a) Motion for Production. After a witness other than
         the defendant has testified on direct examination, the trial
         court, on m otion o f a party who d id not c all the witness,

                                      -7-
       shall order the attorney for the state or the defendant and
       his attorney, as the case may be, to produce, for the
       examination and use of the moving party, any statement
       of the witn ess th at is in the ir poss essio n and that relates
       to the subject matter concerning which the witness has
       testified.

             (e) Sanction for Failure to Produce Statement. If the
       other party elects not to com ply with an order to de liver a
       statement to the moving party, the court shall order that
       the testimony of the witness be stricken from the record
       and that the trial proceed, or, if it is the attorney for the
       state who elects not to comply, shall declare a mistria l if
       required by the interest of justice.


       The defense filed a pretrial motion reques ting Rule 26.2 material be

disclo sed s ubse quen t to the te stimo ny of ea ch witn ess. F ollowin g Ms. S pivey’s

testimony, the State provided the defense with one of Ms. Spivey’s stateme nts

but failed to present the defense with the second. According to the record, the

State ’s failure to provide the defense with the statement was no t an intentional

act, but rather a miscommunication resulting from the defense indicating it had

the witness’ statement and the State not seeking clarification as to whether the

defense had both statements.




       Under Rule 26.2(e) the trial court “shall declare a mistrial if required by the

interests of justice” if the S tate fails to “comply with an order to d eliver a

statem ent to th e mo ving pa rty.” Also , if a party elec ts not to com ply with a Rule

26 court order, the trial court “shall order that the testimony of the witness be

stricken from the record.” Tennessee Rules of Criminal Proce dure 2 6.2(e) . Rule

26.2 (e) sanctions do not rest upon a showing of bad faith, and even the

“unintentional withholding or destruction of statements, regardless of motive, may

be viewed a s a violation of Rule 26.2 fo r which appropriate sanctions may be




                                          -8-
applied.” State v. Inman, C.C.A.No. 03C01-9201-CR-0 0020, C ampb ell Coun ty

(Tenn. C rim. App., Kno xville, Novembe r 23, 1993).




       Any error which resulted fro m the S tate’s overs ight in provid ing the de fense

with both prior statements was not only harmless, but also could ha ve been cured

by the defense.The parties realized that one of the statements had not been

disclosed prior to the c lose of the State’s pro of. The d efense had the opportu nity

to recall Ms. Sp ivey to reha bilitate her testimony with the second statement. The

defense chose not to d o so. A final jud gme nt sha ll not be se t aside for fa ilure to

com ply with a Rule 26 .2 order unless , considering the e ntirety of the record,

“error involving a substantial right more probably than not affected the judgment

or would result in prejudice to the judicial proces s.” Tenn essee Rules o f Appella te

Procedu re Rule 36 (b). The trial court did n ot abus e its discretion in refusing to

grant a mistrial for this violation of Rule 26.2; such a san ction w ould have been

inappro priate where the defense held the keys to negating the effect of the error

and ch ose no t to do so. T his issue is without m erit.



                          II. Sufficiency of the Evidence

       Appellant argues that the evidence presented at trial was insu fficient to

support the jury’s verdict of second degree murder. When an appellant

challenges the sufficiency of the evidence, this Court is obliged to review that

challenge acco rding to certain well-se ttled prin ciples. A verdict of guilty by the

jury, approved by the trial judge, accredits the testimony of the State’s witnesses

and resolves all conflicts in th e testimo ny in favor o f the State . State v. Cazes,

875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992). Although an accused is originally cloaked with a presumption of

                                          -9-
innocence, a jury verdict removes this presumption and replaces it with one of

guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proof re sts with Ap pellant to demonstrate the insufficiency of the

convicting evidence. Id. On appeal, “the [S]tate is entitled to the strongest

legitimate view of the evidence a s well as a ll reasona ble and legitimate

inferences that may be d rawn therefro m.” Id. (citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is

contested on appe al, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reaso nable d oubt. Harris , 839 S.W .2d 54, 75 ; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from

reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996 ); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the tr ier of fact from circum stantial evidence.” Id. at 779. Finally, the

Tennessee Rules of App ellate P roced ure, R ule 13(e) provides, “findings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at 780.



       Appellant contends that the evidence presented at trial was insufficient to

convict him on two accounts: (A) the only evidence the State presented against

Appellant was uncorroborated accomplice testimony, and (B) the S tate failed to

prove beyond a reasonable doubt that the killing was not in self-defense.




                                          -10-
Addressing these issues in turn, we hold that the evidence was sufficient to

suppo rt the jury verd ict.



                              A. Accomplice Testimony

         Appellant contends he was impermissibly convicted upon uncorroborated

accomplice testim ony, ar guing that oth er than the tes timon y of Cu rrie, his

accomplice, there was no evidence presented at trial which tied Appellant to the

crime. It is well-settled that Tenne ssee law req uires only a modicum of evidence

in order to sufficiently corroborate the testimon y of an ac comp lice. Clapp v . State,

94 Tenn . 186, 30 S .W.2 d 214 (1 895); State v. Copeland, 677 S.W.2d 471 (Tenn.

Crim. App. 1984). This Court held in State v. Barnard that “an acco mplic e’s

testimony is deemed sufficiently corroborated by placing a defendant at the

scene of the crime as described by th e accom plice.” State v. Barnard , 899

S.W.2d 617, 626 (Tenn. Crim. App. 1994 ). W e have further held that “if the

corroborating evidence fairly and legitimately tends to connect the accused with

the commission of the crime charged it satisfies the requirement of the rule on

corroboration of an accomp lice’s testimony.” State v. Copeland, 677 S.W.2d 471,

475 (Tenn. Crim . App. 1984 ). In this case , Appella nt was seen in the company

of the victim shortly before the time of the murder. Under the precedent set by

this Court, the evidence presented by Ms. Spivey that Appellant got into the

victim’s car a mere ten minutes b efore the shooting, that she assumed he had a

gun, and that he sh owed up at the scene o f the car crash moments after it

happened is sufficient corroboration to sustain the verdict. This issue is without

merit.

                                  B. Self-Defense




                                          -11-
       Appellant also argues that the evidence presented at trial, through the

testimony of Currie supports a defen se the ory of se lf-defen se in th at Cu rrie

testified that Appellant thought the victim was about to draw a gun. Further, the

evidence presented at trial revealed that there were spent cartridge shells from

a .22 found in the car, perhaps also indicating that the occupant of the car shot

at someo ne, possibly Ap pellant. It is true that, once prop erly presented, a

defense of self-d efens e nec essita tes tha t the Sta te prov e beyo nd a re ason able

doubt that the defendant did not commit the crime in self-defense. Tenn. Code

Ann. § 39-11-201(a)(3). In this case, the issue of self-defense was not presented

by Appellant, but was brought out during the State’s case-in-chief. Since

evidence produced at trial whether prese nted on direct or c ross of a State or

defense witness may be utilized by either party, the defense of self-defense was

raised in th is case. See Tenn. C ode Ann . § 39-11-201 (d).



       Appellant requested that the trial court charge the jury as to the defense

of self-defense, and the trial court said it would so c harge the jury if the

Appe llant’s closing argume nt included discu ssion of that theory. T he record does

not conta in the ju ry instru ctions , thus it is impo ssible for this Court to determine

whether the jury was given an instruction regard ing se lf-defen se. Be caus e it is

Appe llant’s responsibility to put before this Cou rt all of the record which is needed

in adjudicating his claim s, any issue rega rding the trial court’s self-defense

instruction or failure to so charge the jury is waived. Tennessee Rules of

Appellate Procedure, Rule 24.



       Our task, on appellate review is to determine whethe r, based on the

evidence presented, the jury could have determined beyond a reasonable doubt

                                          -12-
that Appellant did not commit this crime in self-defense. In the instant case

Appellant was tied to the crime through the testimony of two witnesses. Ms.

Spivey testified that Appellant got into the victim’s car some time before the

killing, which clearly implicates Appellant as a possible perpetrator of the crime.

The State also presented Appellant’s accomplice, Currie. Currie testified at trial

that Appellant told h im tha t Appe llant killed the victim in self-d efens e. Th is

testimony, without m ore, wou ld not me et the State’s burden of proof. However

Currie testified in court that he gave a statement to the police on July 11, 1995.

In that sta teme nt, Cu rrie stated that Appellant told him prior to the crime that

“[Appe llant] was going to get the guy.” Currie conceded this latter statement was

made when his memory of the crime was clearer. Obviously the jury accredited

the statement Currie made to the police July 11, 1995 over his testimony

concerning self-defense.



       The jury was free to resolve the apparent conflict in Currie’s testimony

however it chose. Weight and credibility of the witness es’ testimony are matters

entrusted exclusively to the jury as trie rs of fact. State v. Wright, 836 S.W.2d 130

(Tenn. Crim. App. 1992) (citing State v. She ffield, 676 S.W.2d 542 (Ten n. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978)). The State presented

evidence, which if be lieved, neg ated the defens e theory o f self-defen se. Th is

issue is w ithout me rit.




                                        -13-
    Therefore, the judgment of the trial court is affirmed.



                              ____________________________________
                              JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
J. CURWOOD WITT, JR., JUDGE




                                     -14-
