            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE             FILED
                              JANUARY 1998 SESSION
                                                               May 27, 1998

                                                           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
RONALD DAVID DUKES and             *   C.C.A. NO. 03C01-9703-CC-00112

EDGAR VIRGIL DUKES, III,           *   UNION COUNTY

              Appellants,          *

VS.                                *   Hon. Lee Asbury, Judge

STATE OF TENNESSEE,                *   (Post-conviction)

              Appellee.            *




For Appellants:                        For Appellee:

Douglas A. Trant                       John Knox Walkup
Attorney for Ronald David Dukes        Attorney General & Reporter
900 S. Gay Street
Suite 1502                             Sandy C. Patrick
Knoxville, TN 37902                    Cordell Hull Building, Second Floor
                                       425 Fifth Avenue North
Michael L. DeBusk                      Nashville, TN 37243-0493
Attorney for Edgar Virgil Dukes, III
5344 North Broadway                    Clifton H. Sexton
Knoxville, TN 37918                    Assistant District Attorney General
                                       P.O. Box 10
                                       Huntsville, TN 37756




OPINION FILED: __________________




AFFIRMED




GARY R. WADE, JUDGE
                                          OPINION

                The petitioners, Ronald David Dukes and Edgar Virgil Dukes, III, were

convicted of the robbery, kidnapping and murder of the victim, Hollis Kitts. The trial

court ordered Ronald Dukes to serve consecutive life sentences for first degree

felony murder and armed robbery; a sentence of life plus five years was imposed for

kidnapping to commit robbery by the use of a firearm. Edgar Dukes received

identical sentences with the exception that the terms are to be served concurrently.



                In this appeal of right, the petitioners claim that they are entitled to a

new trial or reduction in sentence because the state suppressed exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). In the alternative,

the petitioners argue that the facts presented at the post-conviction hearing would

have warranted the grant of a motion to reopen as provided by statute. See Tenn.

Code Ann. § 40-30-217. We disagree and affirm the judgment of the trial court.



                The victim operated a sporting goods store in Union County. On

December 23, 1976, the petitioners and their accomplice, Robert Sands, who was

tried separately, robbed the store of cash and firearms and abducted the victim.

The body was discovered several days later along a road in Knox County. The

victim had been shot once in the head. The petitioners confessed to their

participation in an "insurance scam" which, they claimed, included the victim as a

perpetrator. Later, at trial, each of the petitioners denied being present when the

victim was robbed, kidnapped, and shot to death.



                On direct appeal, this court affirmed the convictions. 1 Dukes v. State,

578 S.W.2d 659 (Tenn. Crim. App. 1978), app. denied, (Tenn. 1979). On April 12,


      1
          This court vacated a conviction for using a firearm to commit kidnapping.

                                              2
1985, the petitioners filed their first petitions for post-conviction relief alleging

ineffective assistance of counsel and due process violations.



               At the first post-conviction hearing, Ronald Dukes testified that his trial

counsel was ineffective for failing to use his cousin, Larry Sharp, as a witness. He

claimed that Sharp would have testified that Sands admitted to killing the victim.

Sharp, a witness at the evidentiary hearing, testified that he had a telephone

conversation with Sands prior to their trial during which Sands admitted

responsibility for the murder. Sharp testified that he had been prepared to give this

testimony at their trial. Attorney William Davidson, trial counsel for the petitioners,

recalled that until the trial began, the defense theory was that the robbery and

kidnapping was an "insurance job" and that the victim "was in on it also, and that Mr.

Sands had planned all this .... They had no knowledge whatsoever that Mr. Sands

was going to shoot the man in the back of the head ...." Davidson testified that

when the trial began, the petitioners insisted on a change of strategy to an alibi

defense, a theory that conflicted with the petitioners' pretrial statements to law

enforcement. Davidson expressed particular concern because the alibi defense was

contrary to the results of his own investigation. The trial court denied the initial

petition for post conviction relief. This court affirmed and the supreme court denied

review. Edgar Virgil Dukes, III, and Ronald David Dukes v. State, C.C.A. No. 25,

slip op. at 1 (Tenn. Crim. App., at Knoxville, Aug. 25, 1986), app. denied, (Tenn.

Nov. 24, 1986).



              On December 17, 1987, Ronald Dukes filed a second petition for post-

conviction relief alleging double jeopardy and Brady violations. The trial court

entered a summary dismissal. On appeal, this court found the double jeopardy

claim to be previously determined but reversed and remanded for a hearing on the


                                              3
Brady claim. State v. Ronald David Dukes, C.C.A. No. 26, slip op. at 8 (Tenn. Crim.

App., at Knoxville, Apr. 4, 1989). In May of 1989, Edgar Dukes filed a second

petition for post-conviction relief alleging similar constitutional violations. Some six

years later and after repeated continuances, a consolidated evidentiary hearing was

held, after which the trial court denied relief. Although Ronald Dukes filed a timely

notice of appeal, Edgar Dukes did not file his notice within the statutory time period.

This court may, however, waive the timely filing of the notice in the interest of

justice. Smith v. State, 873 S.W.2d 5 (Tenn. Crim. App. 1993).



                                            I

              The petitioners contend that the state failed to disclose exculpatory

information in violation of Brady v. Maryland, 373 U.S. 83 (1963). They allege two

separate violations:

              (a)    the state did not inform the petitioners prior to trial
              that Sands was a suspect in two other murders according
              to a 1977 report; and

              (b)   the state had an obligation to inform petitioners
              about statements given by James Potter to FBI officials
              in 1981, some four years after trial.



              Although we address the petitioners' issues on the merits, we agree

with the trial court's assessment that the Brady issues have been waived. The post-

conviction statute in effect when these petitions were filed defines waiver:

                    (b)(1) A ground for relief is waived if the petitioner
              knowingly and understandingly failed to present it for
              determination in any proceeding before a court of
              competent jurisdiction in which the ground could have
              been presented.

                    (2) There is a rebuttable presumption that a
              ground for relief not raised in any such proceeding which
              was held was waived.

Tenn. Code Ann. § 40-30-112(b) (repealed 1995).


                                            4
              Our supreme court has held that "the rebuttable presumption of waiver

is not overcome by an allegation that the petitioner did not personally, knowingly,

and understandingly fail to raise a ground for relief." House v. State, 911 S.W.2d

705, 714 (Tenn. 1995). "Waiver in the post-conviction context is to be determined

by an objective standard under which a petitioner is bound by the action or inaction

of his attorney." Id. Both the report and Potter's statement were in the possession

of TBI agents in 1983. The petitioners' first post-conviction petitions were filed two

years later. The petitioners have not presented any evidence to rebut the

presumption of waiver.



              In the landmark case of Brady v. Maryland, the United States Supreme

Court ruled that the prosecutor has a duty to furnish exculpatory evidence to the

defendant. 373 U.S. at 87. Exculpatory evidence may pertain to the guilt or

innocence of the accused and/or the punishment which may be imposed if the

accused is convicted of the crime. State v. Marshall, 845 S.W.2d 228 (Tenn. Crim.

App. 1992). The Supreme Court in Brady reasoned that a fair trial and a just result

could not be obtained when, at the time of trial, the prosecution suppressed

information favorable to the accused. Brady, 373 U.S. at 87-88.



              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 punishment, irrespective of the good faith or bad faith of the prosecution."

Brady, 373 U.S. at 87. This duty to disclose extends to all favorable information

irrespective of whether the evidence is admissible. Branch v. State, 469 S.W.2d

533 (Tenn. Crim. App. 1969). Information useful for impeaching a witness is

considered favorable information that the prosecutor may not withhold. Giglio v.

United States, 405 U.S. 150 (1972). And, while Brady does not require the state to


                                           5
investigate for the defendant, it does burden the prosecution with the responsibility

of disclosing statements of witnesses favorable to the defense. State v. Reynolds,

671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The duty does not extend to

information that the defense already possesses or is able to obtain or to information

not in the possession or control of the prosecution. Banks v. State, 556 S.W.2d 88,

90 (Tenn. Crim. App. 1977).



               Before this court may find a due process violation under Brady, the

following elements must be established:

               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.    [t]he State must have suppressed the information;

               3.    [t]he information must have been favorable to the
               accused; and

               4.    [t]he information must have been material.

State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehearing).



               In Edgin, our supreme court adopted the following standard for

materiality:

               [T]here is constitutional error "if there is a reasonable
               probability that, had the evidence been disclosed to the
               defense, the result of the proceeding would have been
               different." ... "[T]he touchstone of materiality is a
               'reasonable probability' of a different result, and the
               adjective is important. The question is not whether the
               defendant would more likely than not have received a
               different verdict with the evidence, but whether in its
               absence he received a fair trial, understood as a trial
               resulting in a verdict worthy of confidence. A 'reasonable
               probability' of a different result is accordingly shown
               when the government's evidentiary suppression
               'undermines confidence in the outcome of the trial.'"

Edgin, 902 S.W.2d at 390-91 (quoting Kyles v. Whitley, 115 S. Ct. 1555, 1566


                                           6
(1995)).



              To prevail on a petition for post-conviction relief, a petitioner must

prove a constitutional violation by a preponderance of the evidence. State v.

Spurlock, 874 S.W.2d 602, 610 (Tenn. Crim. App. 1993). This court is bound by the

post-conviction court's findings unless the evidence preponderates otherwise.

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). This court may not reweigh or

reevaluate the evidence or substitute its inferences for those drawn by the

post-conviction court. Moreover, questions concerning the credibility of witnesses

and weight and value to be given their testimony are for resolution by the

post-conviction court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.

1990).



                                           (a)

              The petitioners claim that the state suppressed a report, obtained by

Knoxville police on January 3, 1977, implicating Sands in a murder in Kentucky and

a murder in Indiana. Sands, who testified at the post-conviction hearing, denied any

involvement in the murders and stated he had never been investigated in the

matters. The petitioners testified they only recently learned of the report. After

hearing testimony and considering the report, the trial court ruled that the report was

likely inadmissable and not exculpatory.



              Applying the principles of Edgin, we conclude that the petitioners made

a general, pre-trial discovery request for exculpatory or favorable information and

that the state suppressed the report. If, however, we were to find the report to be

favorable to the petitioners, it does not matter. Sands' suspected involvement in

other murders was irrelevant in this case. Moreover, Sands did not testify at


                                            7
petitioners' trial, thus he had no opportunity to give damaging testimony that

required impeachment. Any suppression of the report by the state would have had

no effect on the fairness of the trial.



                                            (b)

              The petitioners' second claim concerns a statement made to FBI

officials by James Potter four years after the trial. In his statement, Potter revealed

that while they were cellmates, Sands had admitted to him that the petitioners knew

nothing about his plan to kill the victim. A memorandum indicates that the TBI had

Potter's information as early as March 16, 1983.



              At their hearing, the petitioners denied involvement in the murder of

the victim. They admitted to giving false testimony at trial. They acknowledged that,

at the time of trial, their cousin Larry Sharp could have testified to similar statements

by Sands in which Sands claimed responsibility for the murder but that Sharp did not

testify. The state questioned Ronald Dukes as follows:

              General:       So, what - of what importance is what Mr.
                             Potter had to say -
              Petitioner:    Well, he -
              General:       I mean, he says the same thing that Larry
                             Sharp would have said, and we talked
                             about Larry Sharp at the first post-
                             conviction, it hasn't changed what he
                             knows, isn't that what Potter says - that
                             Sands actually killed Mr. Kitts?
              Petitioner:    Well, Mr. Sands did kill Mr. Kitts. It was -
                             you know, we feel like if the truth had been
                             presented to the jury, all of the truth, not
                             just a part of it - if all of the truth had been
                             presented to the jury, that more
                             consideration would have been given ....

The post-conviction trial court found no Brady violation as to their trial because the

evidence was obtained by the state "well after the original Dukes trial." The court

also held that failure to provide the information before the first post-conviction


                                             8
hearing was not a Brady violation because the information was not exculpatory and

that the jury did not hear all of the facts as a direct result of the petitioners' decision

to perjure themselves at trial.



              The petitioners contend that the state shirked its continuing duty, post-

trial, to reveal material exculpatory evidence, i.e., the substance of Potter's

statement to the FBI. They rely on the ABA Standards of Criminal Justice and the

Tennessee Code of Professional Responsibility.



              Relief under the Post-Conviction Procedure Act may be granted only

when there has been an abridgment of a constitutional right during the course of the

guilt or sentencing phase of the trial. Tenn. Code Ann. § 40-30-105 (repealed

1995). See Alley v. State, 958 S.W.2d 138, 148 (Tenn. Crim. App. 1997). The

ruling in Brady does not necessarily impose a duty on the state to disclose during

post-conviction proceedings exculpatory evidence discovered by the state years

after trial. Even if such a duty exists, there is no error here because Brady does not

apply to evidence the defense already possesses. Banks, 556 S.W.2d at 90. In this

instance, the petitioners admitted at the post-conviction hearing that Sharp would

have testified at trial to similar declarations by Sands.



                                             II

              Lastly, the petitioners argue that this petition should be considered a

motion to reopen pursuant to Tenn. Code Ann. § 40-30-217(a)(4). The petitioners

have not satisfied the procedural requirements for motions to reopen under the

Post-Conviction Procedure Act of 1995. See Tenn. Code Ann. § 40-30-217(c). A

motion to reopen is a limited avenue for relief and is only appropriate as follows:

                (1) The claim in the motion is based upon a final ruling
              of an appellate court establishing a constitutional right

                                             9
              that was not recognized as existing at the time of trial, if
              retrospective application of that right is required. Such
              motion must be filed within one (1) year of the ruling of
              the highest state appellate court or the United States
              supreme court establishing a constitutional right that was
              not recognized as existing at the time of trial; or
                 (2) The claim in the motion is based upon scientific
              evidence establishing that such petitioner is actually
              innocent of the offense or offenses for which the
              petitioner was convicted; or
                 (3) The claim asserted in the motion seeks relief from a
              sentence that was enhanced because of a previous
              conviction and such conviction in the case in which the
              claim is asserted was not a guilty plea with an agreed
              sentence, and the previous conviction has subsequently
              been held to be invalid, in which case the motion must be
              filed within one (1) year of the finality of the ruling holding
              the previous conviction invalid; and
                 (4) It appears that the facts underlying the claim, if true,
              would establish by clear and convincing evidence that
              the petitioner is entitled to have the conviction set aside
              or the sentence reduced.

Tenn. Code Ann. § 40-30-217 (emphasis added). To obtain relief under this section

of the Act, a petitioner must satisfy the requirements set forth in any one of the first

three subsections as well as those contained in the fourth subsection. Donald

Wayne Easley v. State, C.C.A. No. 01C01-9609-CC-00407, slip op. at 4 (Tenn.

Crim. App., at Nashville, Nov. 6, 1997). Here, the petitioners do not allege the

existence of a constitutional right not recognized at the time of trial. They do not

offer new scientific evidence of actual innocence nor do they claim an invalid

previous conviction entitles them to relief from an enhanced sentence.



              Accordingly, the judgment of the trial court is affirmed.



                                           __________________________________
                                           Gary R. Wade, Judge
CONCUR:

_______________________________
William M. Barker, Judge

_______________________________
Curwood Witt, Judge

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