         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   August 20, 2002 Session

                STATE OF TENNESSEE v. COLIN REED WELLS

                      Appeal from the Criminal Court for Knox County
                        No. 70048A     Mary Beth Leibowitz, Judge



                                 No. E2001-02612-CCA-R3-CD
                                       December 6, 2002


The defendant, Colin Reed Wells, was convicted by a Knox County Criminal Court jury of
carjacking (Class B felony), robbery (Class C felony), aggravated assault (Class C felony), resisting
arrest (Class B misdemeanor), violation of driver’s license law (Class B misdemeanor), evading
arrest (Class A misdemeanor), evading arrest (Class D felony), and assault (Class A misdemeanor).
Following his convictions, the trial court merged some convictions and imposed an effective
sentence of 32 years as a multiple offender in the Department of Correction. On appeal, he claims
his carjacking conviction is infirm because the prosecution failed to disclose exculpatory evidence.
Discerning no error, we affirm.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and ROBERT W. WEDEMEYER , J., joined.

Richard Clark and Russell Greene, Knoxville, Tennessee, for the Appellant, Colin Reed Wells.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                The defendant’s convictions resulted from his actions on October 17, 1999. The
state’s evidence showed that the female victim of the carjacking and robbery was sitting in her
automobile in the parking lot of a supermarket on Clinton Highway in Knoxville. She was waiting
for her male companion who was shopping in the store, and she sat in the driver’s seat and had her
car engine idling. The defendant opened the passenger-side door, entered the vehicle, and ordered
the victim to exit the car and to leave her purse on the seat. As she complied, she saw a female, who
was the defendant’s sister and co-defendant, standing beside the driver’s door.
                The defendant drove away in the victim’s car, and at some point, police officers
pursued the defendant. The assaultive and evading and resisting arrest offenses occurred during the
chase and ultimate apprehension of the defendant. After the defendant was apprehended, the
arresting officers handed over the defendant to Knoxville Police Officer J.D. Brown, who transported
the defendant back to the supermarket for a show-up identification by the victim. Afterward, Officer
Brown transported the defendant as well as the co-defendant to jail. During both trips when the
defendant was confined in the rear compartment of Officer Brown’s cruiser, the cruiser’s video
camera was operating and recording the defendant’s conversation in which he asserted that he had
been involved in a drug transaction with the victim and her boyfriend.

               The prosecutor did not discover the existence of the videotape until a few days before
trial. The defense reviewed the tape on Friday before the trial began on the following Wednesday.
The defendant believed that the recorded conversation supported the defendant’s claim at trial that,
although he took the victim’s car, he did not do so by carjacking.

                  The state moved the court to exclude the videotape from evidence. Initially, because
the trial court determined that the content of the tape was hearsay and self-served the defendant, it
sustained the motion to exclude the tape from evidence. However, during the defendant’s case-in-
chief, the trial judge relented and allowed the defendant and the co-defendant to introduce pertinent
portions of the videotape. Thus, neither the exclusion nor the somewhat belated disclosure of the
tape is an issue on appeal; rather, the defendant is aggrieved that the state obstructed him in his bid
to locate and interview Officer Brown.

                 Prior to trial, the defendant had moved to discover any written or recorded statements
of the defendant, “a list of the names and current addresses of all witnesses who the state intends to
call to testify,” statements of witnesses who are not to be called to testify, and any exculpatory
evidence, including “the names and addresses of any witness whom the State believes would give
testimony favorable to the defendant . . . regardless whether the State intends to call the witness.”

                 After trial, the defendant’s counsel asserted in an affidavit filed with the motion for
new trial that during the trial, he asked the prosecutor where he could find Officer Brown, who as
of the time of trial, was no longer employed in the police department. Counsel’s affidavit further
asserts that the prosecutor replied “that she did not know where [Brown] was, that she assumed he
was still at the police department.” The defendant also appended to his new trial motion the
affidavits of Knox County Sheriff’s Department officers who, during the defendant’s trial, discussed
Brown’s whereabouts with the prosecutor. She told them that she had been unable to locate Brown.
The defendant also presented the affidavit of Brown himself, who averred that on the eve of the
defendant’s trial, the prosecutor called him at the Jefferson City Walmart, where he was employed
as an assistant manager. Brown further averred that he told the prosecutor that his entire encounter
with the defendant on October 17, 1999 was recorded on the videotape and that “it had been some
time since the events took place and that she should rely on the videotape.” Brown averred that he
had declined to answer the prosecutor’s questions in the absence of an opportunity to review the
tape.


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                 In his motion for new trial, the defendant claimed that Brown would have
corroborated the defendant’s trial testimony that the defendant’s possession of the victim’s car was
the result of a “drug deal gone bad” and not a carjacking. The trial court overruled the motion for
new trial, finding that the state was not required to supply addresses of witnesses and that, in any
event, former officer Brown said in his affidavit that he “told her to rely on the videotape.” The trial
court found that the “tape came [in] so I’m not sure there’s been any major prejudice to [the
defendant].” The trial judge commented, “I’m not sure that what we have here was exculpatory
evidence, and even if it was, it came in anyway [through the videotape and through the defendant’s
testimony].” Furthermore, the trial court relied upon the defendant’s failure to move for a
continuance when counsel was unable to locate Officer Brown. The court correctly recalled that,
after the defendant had reviewed the videotape and after the court’s initial ruling on the state’s
motion in limine, the defendant announced that he was ready to proceed to trial.

                On appeal, the defendant claims that the prosecutor violated her obligations set forth
in Brady v Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by failing to disclose to the defense the
address or whereabouts of J.D. Brown. The defendant argues in his brief that Brown could have
corroborated that the defendant asserted facts during the defendant’s conversation in Brown’s police
cruiser that would have contradicted the theory of carjacking. The defendant also claims that Brown
could have affirmed that the defendant was the only one who would have known “certain facts” and
that “[t]here was not enough time for the Defendant to fabricate and/or know certain facts had they
not occurred as defense counsel’s theory supposed.”

                 In Brady, the United States Supreme Court held that the prosecution has the duty to
furnish exculpatory evidence to the accused upon request. “Any 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.” Id.
at 87, 83 S. Ct. at 1196-97. The duty to disclose extends to all “favorable information” regardless
whether the evidence is admissible at trial. State v. Marshall, 845 S.W.2d 228, 232-33 (Tenn. Crim.
App. 1992). Both exculpatory and impeachment evidence fall under the Brady rule. United States
v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985).

                Before an accused is entitled to relief via Brady, he must establish several
prerequisites: (a) the prosecution must have suppressed the evidence; (b) the evidence suppressed
must have been favorable to the accused; and (c) the evidence must have been material. See id. at
674-75, 105 S. Ct. at 3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; Marshall, 845 S.W.2d
at 232. Evidence is material under the Brady rule only if there is a reasonable probability that had
the evidence been disclosed to the defense, the results of the proceeding would have been different.
Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1556 (1995). In State v. Spurlock, 874 S.W.2d
602 (Tenn. Crim. App. 1993), this court recognized a fourth prerequisite to relief, that “the accused
must make a proper request for the production of the evidence, unless the evidence, when viewed
by the prosecution, is obviously exculpatory in nature and will be helpful to the accused.” Id. at 609.
The defendant bears the burden of proving a Brady violation by a preponderance of the evidence.



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Id. at 610; State v. Joan Elizabeth Hall, No. 01C01-9710-CC-00503, slip op. at 19 (Tenn. Crim.
App., Nashville, Jan. 28, 1999).

                Applying these principles, we hold that, although the defendant requested
J.D.Brown’s address or whereabouts, the defendant has failed to establish by a preponderance of the
evidence that due process principles, via Brady, compelled disclosure of Brown’s address or
whereabouts. The trial judge did not believe that the prosecutor suppressed this information, but
even if she had determined that the state suppressed the information, the record is devoid of any
showing that the information was material. Indeed, Mr. Brown’s affidavit, advanced by the
defendant, reveals that the affiant recalled nothing about the October 17, 1999 encounter with the
defendant other than what was revealed on the videotape. Although the tape contains self-serving
statements of the defendant, there has been no showing that Mr. Brown could have imparted
additional information that would have been favorable to the defendant or that probably could have
produced a different result. Thus, the trial court did not err in overruling the Brady claim presented
in the defendant’s motion for new trial.

               Having addressed the issue raised on appeal, we affirm the judgment of the trial court.




                                                       ____________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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