         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 19, 2000

                  STATE OF TENNESSEE v. MICHAEL N. GREY

                Appeal as of Right from the Circuit Court for Dickson County
                          No. CR-3927     Allen W. Wallace, Judge



                   No. M1999-01428-CCA-R3-CD - Filed November 9, 2000


The appellant, Michael N. Grey, was convicted by a jury in the Dickson County Circuit Court of two
counts of aggravated robbery, a class B felony, and two counts of theft under $500, a class A
misdemeanor. The trial court sentenced the appellant to ten years incarceration in the Tennessee
Department of Correction for the aggravated robbery convictions. The trial court also sentenced the
appellant to eleven months and twenty-nine days incarceration in the Dickson County Jail for the
theft convictions.The trial court further ordered that the appellant’s sentences be served concurrently.
The appellant raises the following issue for review: whether the appellant was denied due process
because the State failed to provide him with proper pre-trial exculpatory evidence. Upon review of
the record and the parties’ briefs, we affirm in part and reverse in part the judgments of the trial
court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed in
                               Part and Reversed in Part.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES, and
THOMAS T. WOODALL , JJ., joined.

Michael J. Love, Clarksville, Tennessee, for the appellant, Michael N. Grey.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General,
Suzanne Lockert, Assistant Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                       I. Factual Background
               On December 29, 1997, the appellant entered West Meade Market in Dickson County
and asked the cashier, Steve Talbert, for a Colt .45 beer. Talbert ascertained from Richard Gregory,
who was stocking the cooler, that the store was out of that particular brand of beer. The appellant
then chose a Budweiser beer and approached the front counter. Talbert was in the process of
completing the sale when the appellant raised his jacket, partially removed a pistol from his
waistband, and told the cashier “to be cool” and turn over the money.

               Talbert gave the appellant the three hundred and forty-eight dollars and twenty-five
cents ($348.25) that was in the cash register. The appellant then instructed Talbert to get into the
cooler. Talbert did so, and told Gregory when he entered the cooler that the market had just been
robbed. After remaining in the cooler for approximately 40 seconds, Talbert left the cooler and
reported the robbery to the police. Talbert described the robber as being a very light-skinned black
male, possibly of mixed race, in his late twenties or early thirties, with a small pencil moustache,
standing approximately 5'8" tall, and weighing 145-150 pounds.

                 A few days later, on January 1, 1998, the appellant entered a ParMart convenience
store and requested cigarettes from the cashier, Don Wood. After Wood had gotten cigarettes for
the appellant, the appellant told Wood, “Look here.” The appellant then lifted his shirt and displayed
a pistol that was located in his waistband. The appellant told Wood, “You’re going to be shot. This
is a robbery.” The appellant instructed Wood to put the money from the cash register in a paper bag.
Wood complied and gave the appellant sixty-eight dollars ($68). The appellant complained about
the amount, but Wood assured him that there was no more money. The appellant ordered Wood to
lay down on the floor in the kitchen. After the appellant left the store, Wood called the police.
Wood described the robber as being a very light-skinned black male in his early thirties, standing
around 5'7" or 5'8" tall, weighing about 150 pounds, having short, dark hair and a moustache,
possibly with a mole on either side of his face, and with a possible pierced nose. Additionally,
ParMart’s surveillance camera had recorded the robbery.

                A jury in the Dickson County Circuit Court convicted the appellant of two counts of
aggravated robbery, a class B felony, and two counts of theft under $500, a class A misdemeanor.
The trial court sentenced the appellant to ten years incarceration in the Tennessee Department of
Correction for the aggravated robbery convictions. The trial court also sentenced the appellant to
eleven months and twenty-nine days incarceration in the Dickson County Jail for the theft
convictions. The trial court further ordered the appellant’s sentences to run concurrently. The
appellant appeals his convictions and raises the following issue for review: whether the appellant
was denied due process because the State failed to provide him with proper pre-trial exculpatory
evidence.

                                              II. Analysis
                                          A. Brady violation
                 The appellant claims that he was denied his right to due process when the State failed
to disclose a statement Gregory made to the police regarding the description of the robber, which the
appellant argues is exculpatory.1 The United States Supreme Court, in Brady v. Maryland, 373 U.S.


        1
          The appellant c laims that the following written statement given by Richard Gregory to the police was
exculpato ry and shou ld have be en disclosed by the State p rior to trial:
                                                                                                   (continued ...)

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83, 87, 83 S. Ct. 1194,1196-97 (1963), held that the State has a constitutional duty to furnish the
accused with exculpatory evidence pertaining to either the accused’s guilt or innocence and the
potential punishment that may be imposed. Failure to reveal exculpatory evidence violates due
process where the evidence is material to either guilt or punishment irrespective of the good faith
or bad faith of the prosecution. Id. Furthermore, the prosecution must disclose evidence which may
be used by the appellant to impeach a witness. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.
Ct. 763, 766 (1972).

                All of the following elements must be present before this court can find a Brady
violation:
        (1) the appellant 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 appellant; and,
        (4) the information must have been material.
State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); see also State v. Hamlin, No. 01C01-9604-CC-
00174, 1999 WL 77853, at *5 (Tenn. Crim. App. at Nashville, February 19, 1999). Moreover, the
appellant bears the burden of establishing a Brady violation by a preponderance of the evidence. Id.

               We can find no evidence in the record of any discovery request(s) made by the
             2
appellant. Accordingly, Brady would apply only if Gregory’s statement is obviously exculpatory.
State v. Belcher, No. 03C01-9608-CC-00299, 1997 WL 749392, at *7 (Tenn. Crim. App. at
Knoxville, November 26, 1997). We conclude that it is not. The description given by Gregory in
his statement is substantially similar to the descriptions given by both Wood and Talbert to the
police. Moreover, the description does not suggest that the appellant did not commit the crimes of
which he is accused. Accordingly, the appellant could have only used Gregory’s statement for
impeachment purposes.

               Additionally, “the prosecution is not required to disclose information that the accused
already possesses or is able to obtain....” Workman v. State, 868 S.W.2d at 709. Gregory testified
for the defense. The appellant had the opportunity to question him regarding his description of the
robber, and could have asked if Gregory had made any statements to the police. This information



        1
          (...continued)
         I was filling the beer cooler when [Talbert] and a light skin man came over to the c ooler and [Talber t]
         asked if I had a Colt .45 beer. I saw the back of his head and the side of his face. Then [Talbert] came
         in the cooler about 2 minutes later and said that he had just been robbed and the rob ber told him to
         stay in there for 5 minutes. He was short and thin with short little curly hair, and what looked like a
         real thin [mou stache].

         2
          Additionally, the appellant never claims that he made any discovery req uests at all; the app ellant’s only
argument is that Gregory’s statement is obviously exculpatory and therefore should have been disclosed by the State.

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was equally available to both sides. See State v. Ewing, No. 01C01-9612-CR-00531, 1998 WL
321932, at *9 (Tenn. Crim. App. at Nashville, June 19, 1998).

               Furthermore, even if Gregory’s statement was exculpatory, it was not material to the
appellant’s defense. This court has stated that:
       [t]he evidence is material only if there is a reasonable probability that, had the
       evidence been disclosed to the defense, the result of the proceeding would have been
       different. A ‘reasonable probability’ is a probability sufficient to undermine
       confidence in the outcome.
Workman, 868 S.W.2d 705, 710 (Tenn. Crim. App. 1993)(citing United States v. Bagley, 473 U.S.
667, 681-682, 105 S. Ct. 3375, 3383 (1985).

                Gregory testified for the defense regarding his description of the robber. Moreover,
the State cross-examined Gregory concerning the contents of the statement and then introduced the
statement into evidence. Therefore, because the information contained in the statement was presented
to the jury, the materiality test has not been met. See State v. Hall, No. 01C01-9710-CC-00503,
1999 WL 34782, at *11 (Tenn. Crim. App. at Nashville, January 28, 1999), perm. app. denied, (July
12, 1999)(stating that because the witness testified at trial to essentially the same information that
was contained in her statement, the materiality test was not met). The jury had Gregory’s description
of the appellant, as well as the descriptions given by Talbert and Wood, and simply chose to credit
the testimony of the State’s witnesses. Nothing in the record indicates that the result of the
proceeding would have been different.

                Furthermore, because the State produced Gregory’s statement during their cross-
examination of Gregory, this was a delayed disclosure of evidence, not a complete non-disclosure
of evidence. We have previously found that “if there is only a delayed disclosure of information, in
contrast to a complete failure to disclose exculpatory information, Brady normally does not apply,
unless the delay itself causes prejudice.” State v. Hall,1999 WL 34782, at *9. Accordingly, a
delayed disclosure requires an inquiry into whether the delay prevented the defense from using the
disclosed material effectively in preparing and presenting the appellant’s case. State v.Caughron,
855 S.W.2d 526, 548 (Tenn. 1993)(citing United States v. Ingraldi, 793 F.2d 408 (1st Cir. 1986)).

                The appellant claims that if he had possessed Gregory’s statement prior to trial then
he could have used it to impeach Talbert’s testimony regarding the description of the robber.
Specifically, the appellant alleges that he could have used the Gregory statement to “pry Talbert’s
remaining fingers [loose] from his stubborn refusal to admit that [the appellant] did not rob him.”
The appellant’s argument is misplaced; Gregory’s statement could not have been used to impeach
Talbert’s testimony. Taylor v. State, No. 01C01-9809-CC-00384, 2000 WL 641148, at *7 (Tenn.
Crim. App. at Nashville, May 19, 2000); see also Tenn. R. Evid. 613 (discussing the impeachment
of a witness by witness’ own prior statement and not the statement of a third party).

              Moreover, even if the appellant had possessed Gregory’s statement prior to trial, it
is unclear how the appellant’s cross-examination of Talbert would have differed. The appellant


                                                 -4-
questioned Talbert at length regarding his identification of the appellant as the robber. The
appellant has failed to show that he was prejudiced by the delayed disclosure of the Gregory
statement, particularly in light of the fact that the jury heard Gregory testify to his description of the
robber and to his belief that the appellant did not rob the store. This issue is without merit.

                                         B. Plain Error
               Although not raised by the appellant, we find, as plain error, that the appellant’s
convictions for both aggravated robbery and theft violate the principles of double jeopardy. See
Tenn. R. App. P. 36(b), Tenn. R. Evid. 103(d), Tenn. R. Crim. P. 52(b); see also State v. Epps, 989
S.W.2d 742, 745 (Tenn. Crim. App. 1998). Therefore, the appellant’s convictions for theft must be
reversed and vacated.

                 The double jeopardy clauses of the United States and Tennessee constitutions protect
an accused from: (1) a second prosecution following an acquittal; (2) a second prosecution following
conviction; and (3) multiple punishments for the same offense. State v. Denton, 938 S.W.2d 373,
378 (Tenn. 1996). The present case involves the third category. In Tennessee, whether two offenses
are the ‘same’ for double jeopardy purposes depends upon a close and careful analysis of the
offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts
and circumstances. State v. Black, 524 S.W.2d.913, 919 (Tenn. 1975). This analysis is guided in part
by the application of the test announced in Blockburger v. United States:
         Where the same act or transaction constitutes a violation of two distinct statutory provisions,
        the test to be applied to determine whether there are two offenses or only one is whether each
        provision requires proof of an additional fact which the other does not.
Black, 524 S.W.2d at 919 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct.
180,182 (1932)). In order to determine if double jeopardy attaches, our supreme court devised a
four-part test:
        (1) a Blockburger analysis of the statutory offenses;
        (2) an analysis, guided by the principles of Duchac, of the evidence used to prove the
        offenses;
        (3) a consideration of whether there were multiple victims or discrete acts; and
        (4) a comparison of the purposes of the respective statutes.
Denton, 938 S.W.2d at 381.. However, “if the offenses are the ‘same’ under Blockburger, the federal
constitutional double jeopardy protections have been violated and the inquiry may end.” State v.
Hayes, 7 S.W.3d 52, 55 (Tenn. Crim. App. 1999). For example, a lesser-included offense does not
require proof of an additional fact and is therefore considered to be the same offense as the greater,
with double jeopardy barring conviction for both. Id. Furthermore, this court has previously found
that, because theft is an element of aggravated robbery, theft is therefore a lesser-included offense
of aggravated robbery. Id. at 56. Thus, an individual may not be convicted of both theft and
aggravated robbery when the same facts establish the offenses.

                 The appellant was convicted of aggravated robbery of the West Meade Market and
of the theft of $368.25 from West Meade Market. Additionally, the appellant was convicted of the
aggravated robbery of the ParMart and of the theft of $68 from the ParMart. The same facts and


                                                   -5-
circumstances leading to the aggravated robbery convictions were used to sustain the theft
convictions. See Epps, 989 S.W.2d at 746.3 Accordingly, we affirm the convictions for aggravated
robbery and reverse both of the appellant’s theft convictions.

                                        III. Conclusion
              Based upon the foregoing, we affirm the judgments of the trial court as to the
aggravated robbery convictions, but reverse the appellant’s theft convictions.




                                                                      ___________________________________
                                                                      NORMA McGEE OGLE, JUDGE




         3
             In its brief, the State c oncede s that the appe llant’s theft convictions cannot stand because the y violate dou ble
jeopard y.



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