             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT NASHVILLE           FILED
                             DECEMBER 1998 SESSION
                                                               February 24, 1999

                                                              Cecil W. Crowson
                                                             Appellate Court Clerk
STATE OF TENNESSEE,                        )
                                           )   C.C.A. NO. 01C01-9709-CR-00412
             Appellee,                     )
                                           )   DAVIDSON COUNTY
VS.                                        )
                                           )   HON. THOMAS H. SHRIVER,
JOHN EARL SCALES,                          )   JUDGE
                                           )
             Appellant.                    )   (First-Degree Murder and
                                               Attempted Aggravated Robbery)



FOR THE APPELLANT:                             FOR THE APPELLEE:


RAYBURN McGOWAN, JR.                           JOHN KNOX WALKUP
500 Wilson Pike Circle, Suite F-218            Attorney General & Reporter
Brentwood, TN 37027
      (On Appeal)                              KAREN M. YACUZZO
                                               Asst. Attorney General
DAVID I. KOMISAR                               John Sevier Bldg.
211 Printer’s Alley Bldg., Suite 400           425 Fifth Ave., North
Nashville, TN 37201                            Nashville, TN 37243-0493
      (At Trial)
                                               VICTOR S. JOHNSON, III
                                               District Attorney General

                                               JOHN C. ZIMMERMANN
                                               Asst. District Attorney General
                                               Washington Square, Suite 500
                                               222 Second Ave., North
                                               Nashville, TN 37201-1649



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



             The defendant was convicted of first-degree felony murder and attempted

aggravated robbery.     Following a sentencing hearing, he was sentenced to life

imprisonment for the murder conviction and a concurrent three year term for the

attempted aggravated robbery conviction. After his motion for new trial was denied, the

defendant filed a notice of appeal with this Court. He presents the following issues for

review:

      I. Whether the jury’s verdict was contrary to the weight of the evidence;

      II. Whether his trial counsel rendered ineffective assistance;

      III. Whether the trial court erred in failing to give a curative instruction in
      response to comments Vera Thompson made during her testimony;

      IV. Whether the investigating police officers engaged in misconduct by
      failing to recover surveillance tapes that the defendant argues would have
      helped him establish his alibi defense; and

       V. Whether the trial court erred in denying the defendant’s motion for new
       trial on newly discovered evidence.

Finding no merit to the defendant’s claims, we affirm his convictions and sentence.



              In the early evening of Wednesday, December 13, 1995, around 6:00 or

6:30 p.m., two men approached Vera Thompson and Alvin Bevels, who were sitting on

the patio of Thompson’s apartment. At least one of the men carried a gun. They asked

Thompson and Bevels for their money and began going through Bevels’ pockets. When

Thompson spoke to one of the men as if she recognized him as a former neighbor in the

apartment complex, the men walked away. They then confronted Chester Martin and his

friend. They told Martin to “set it out,” which apparently means to give them their money,

and began to go through his pockets. When Martin asked them if they were “tripping,”

one of the robbers said, “You think you’re smart.” Martin was then shot, and as he

attempted to run away, he was shot again.


                                            2
              After talking with several witnesses, who gave “real consistent” descriptions

of the shooter, the police believed the shooter to be the defendant, who had previously

lived in the apartment complex with his sister, Nicole Scales. In an effort to prepare a

photographic line-up, the police went to Nicole’s new residence. The police told Nicole

about the murder, including the approximate time it occurred, and advised her that they

were attempting to eliminate her brothers as suspects. At the time, the defendant was

in the room, and although the police did not ask him any questions, he volunteered that

he had been at Nicole’s residence the entire day and evening. Nicole and Lamont, one

of the defendant’s brothers, agreed the defendant had been home with them all night.



              Two eyewitnesses who lived at the apartment complex where the shooting

occurred, Vera Thompson and Angela Hornbeck, identified the defendant in a

photographic line-up. John Alexander, Jr., who was Martin’s companion when he was

shot, was also shown a photographic line-up that included the defendant’s picture, but

he could not identify anyone.     The man accompanying the defendant was never

identified.



              The State’s theory at trial was that the defendant attempted to rob Bevels

and shot Martin because he was “strung out” on crack cocaine and needed money to

support his habit. Thompson testified she was sitting on the patio of her apartment

enjoying a “cup of beer” with Bevels when two black males with a gun approached them.

Thompson identified the defendant as one of the men, but she did not know the other.

According to Thompson, the defendant was wearing a jacket with a hood that was

trimmed with fur, but when he approached them, the hood was not on his head.

Thompson testified she knew the defendant because he had previously lived next to her

in the apartment complex, but the defendant did not appear to recognize Thompson, who

was not wearing her glasses at the time. Thompson testified she believed the defendant


                                            3
was playing a joke on them with a fake gun, but Bevels told her to take the men seriously

because the gun was real. According to Thompson, she asked the defendant why he no

longer visited the neighborhood, which prompted the defendant to recognize her, say to

his companion, “Come on, man; let’s go,” pull the hood over his head, and walk away

from them. Thompson testified she then witnessed the defendant and his companion

accost another set of individuals entering the apartment complex. Thompson testified

she saw the defendant pull a gun and shoot the victim twice.



              Bevels’ testified that two males, one dark-skinned and one light-skinned,

approached him while he sat with Thompson on her patio.             Bevels identified the

defendant as the dark-skinned male and testified that although the defendant was

wearing a blue hood when he approached him, the defendant’s face remained visible.

According to Bevels, the defendant held a pistol in his stomach and said, “You know what

it is.” Bevels testified he told the defendant he did not have anything, and the defendant

checked his pockets. According to Bevels, when Thompson spoke to the defendant, the

defendant appeared to recognize her, and as a result, retreated. Bevels testified the

defendant and his companion then approached Martin and Alexander, held a pistol to

Martin as if to rob him, and then shot Martin twice.



              Hornbeck testified that on the night of the shooting, she was near the

window in her second-story apartment when she saw a dark-skinned man wearing a

black hooded jacket, carrying a gun, and scuffling with one or two other people.

According to Hornbeck, she heard two gunshots shortly thereafter. She testified that

because the man with the gun “turned right into the light under [her] window,” she

recognized him as a former resident who had lived in the apartment complex with his

sister, Nicole. Hornbeck identified the defendant as the shooter.




                                            4
             To defeat the testimony of these three eyewitnesses, the defendant relied

upon an alibi defense. Alexander, Martin’s companion when he was shot, testified he

had made eye contact with the shooter and that the shooter was a light-skinned black

male, not a dark-skinned black male. He could not identify the defendant as the shooter.



             Terry Meese testified that on December 13, 1995, around 3:30 p.m., he

visited the defendant at his apartment and within the next hour, they went to a Pharmart

convenience store, where they purchased some soda. According to Meese, they then

returned to Meese’s apartment, where they watched television throughout the early

evening and ate a supper Meese’s girlfriend prepared. Meese testified that the defendant

then took a short nap and left his apartment around 9:15 p.m. Meese’s girlfriend and the

defendant substantially corroborated this testimony.



             A manager at the Pharmart convenience store testified that Meese came

to the store on Friday, December 15, 1995, and asked for the surveillance tapes from the

afternoon of December 13. According to the manager’s testimony, she told Meese that

she could release the surveillance tapes only to a police officer. Meese testified that

when he learned the defendant had been arrested for murder, he contacted Detective

Roland of the Metropolitan-Nashville Police Department and told him that surveillance

tapes at the Pharmart convenience store would prove that he and the defendant had

been there December 13. Officer James Scales of the Metropolitan-Nashville Police

Department, one of the defendant’s brothers, also testified that he called Detective

Roland as soon as he learned of the defendant’s arrest. According to Officer Scales, he

called Detective Roland in order to get more information on the arrest, to tell him about

the surveillance tapes, and to give him names of alibi witnesses, but Detective Roland

became agitated by this information and by Officer Scales’ questions. According to

Officer Scales, when he asked Detective Roland if he was planning to retrieve the


                                           5
surveillance tapes, Detective Roland hung up on him.



              Detective Roland testified that Officer Scales called him on Friday,

December 15, to give him names of alibi witnesses, but he first learned of the possible

existence of surveillance tapes on December 18, when Meese called him. According to

Detective Roland, he then called the Pharmart store and spoke with a clerk, who told him

that she did not have access to the surveillance tapes and that he needed to talk with a

manager. Detective Roland testified he left a message for the manager, and when he

finally spoke with her on December 21, she informed him that the tapes were no longer

available and that even if they had been available, they would not have reflected the date

or whether the time was a.m. or p.m. According to the Pharmart manager, approximately

one week passed between the time she spoke with Meese and a police officer contacted

her about getting a copy of the surveillance tapes, but by then, the tapes were

unavailable because they had been taped over, erased, or otherwise destroyed.



              Several people acquainted with the defendant testified that the defendant

did not appear as if he took drugs. The defendant himself testified he was not a drug

addict and had not been using crack cocaine within six months of the murder, although

he did admit to using marijuana at least twice a week during that time. He denied killing

Martin and testified he was with Meese when the shooting occurred. The defendant also

testified that on the night of the murder, when Detective Roland and other police officers

visited his sister Nicole’s residence, he said he had been at her residence that evening,

but he did not indicate how long he had been there. He testified that when he talked with

the police that evening, it had “slipped [his] mind” he had been with Meese at the time the

shooting occurred because, according to the defendant, he was distracted by his curiosity

why the police were interested in where his brother Lamont had been that evening.




                                            6
                                             I.



              The defendant first argues that the verdict is contrary to the weight of the

evidence, in that the testimony of his alibi witnesses “objectively” outweighs the testimony

of the State’s eyewitnesses. The defendant does not challenge the sufficiency of the

evidence. Questions concerning witnesses’ credibility, the weight and value given to

evidence, and all factual issues raised by the evidence are resolved by the trier of fact,

not by this Court. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). While the trial

court may sit as “thirteenth juror” and grant a new trial if it disagrees with the jury about

the weight of the evidence, Tenn. R. Crim. P. 33(f), this Court may not, Cabbage, 571

S.W.2d at 835. For this reason, the defendant’s argument must fail.




                                             II.



              The defendant next argues that the ineffectiveness of his trial counsel

entitles him to a new trial. According to the defendant, his trial counsel, David Komisar,

was ineffective because he failed to object or move to strike when Thompson made

“highly prejudicial” statements during her testimony; failed to attack Thompson’s credibility

by questioning her about her criminal record; and failed to object to questioning during

the defendant’s testimony regarding the method he employed to use crack cocaine. The

defendant also argues that the attorney appointed to represent him during the preliminary

hearing, Bobby Ballinger, was ineffective for failing to obtain the Pharmart surveillance

tapes.



              In challenging the effectiveness of counsel, the defendant has the burden

of establishing that he received deficient representation and that this deficiency


                                             7
prejudiced him. Strickland v. Washington, 466 U.S. 668, 686 (1984); Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel provides

assistance that falls below the range of competence demanded of criminal attorneys.

Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the

reasonable likelihood that but for deficient representation, the outcome of the

proceedings would have been different. Overton v. State, 874 S.W.2d 6, 11 (Tenn.

1994). On review, there is a strong presumption of satisfactory representation. Barr v.

State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).



              When determining whether counsel’s performance was deficient, “every

effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a

particular strategy or tactic failed or even hurt the defense does not, alone, support a

claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.

1992). Further, unless the defendant carries his burden to show that the evidence

contained in the record preponderates against a trial court’s findings of fact, those

findings are conclusive. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991);

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



              Here, at the conclusion of the hearing on the defendant’s motion for new

trial, in which the defendant raised the issue of ineffective assistance, the trial court’s

findings of fact included the following:

              Mr. Komisar testified, and I believe it to be true, that he spent over
       a hundred hours in preparation. Moreover, at his request, the Court
       permitted the hiring of Jim Ball.

              Jim Ball is a former Metro Homicide detective; and I can tell you,
       from -- from personal association with Mr. Ball at -- at the Metro Police
       Department, he’s one of the most effective, best criminal investigators I
       ever saw in any context.

                                            8
             Mr. Ball, I assume, earned the thousand dollars that I authorized to
       be paid to him for his investigative work.

              Mr. Komisar has experience in the State Attorney General’s Office,
       he was a former Assistant District Attorney, and has been in private
       practice now for some years, and is an experienced and capable lawyer.

              And that experience and ability were certainly present in the
       representation of Mr. Scales. Mr. Scales got a first-class defense at the
       hands of Mr. Komisar. The -- I think the record will reflect that none of the
       allegations about his shortcomings are -- are, in fact, true.

              And I find, as a matter of fact, that Mr. Komisar did an excellent job
       of representing Mr. Scales and that it was far beyond that normally
       expected in the criteria set out in Baxter against Rose. There is no merit
       to the complaint that -- that Mr. Komisar’s representation was defective.



                                             A.



              The defendant first complains that Mr. Komisar failed to object to certain

remarks Vera Thompson made during her testimony, which included the following:

       * When asked if she picked out the defendant’s picture from the
       photographic lineup, Thompson replied she did and then stated, to the
       defendant, “You know you did it, boy. He did it.”

       * When asked how often she would see the defendant when he lived in her
       apartment complex, Thompson replied, “Well, we -- most nigh [sic]
       everyday because -- uh -- not putting him down or anything; but, he -- he
       was a Crack head. And, Crack heads can’t stay in the house all day.”

       * At the conclusion of direct examination, following a pause in the
       proceedings, Thompson remarked, without prompting, “Why did you do it?”

       * When asked on cross-examination whether she recognized or knew who
       was with the defendant on the night of the murder, Thompson replied, “No.
       And that -- that’s scarey [sic], too. See, you really need to tell us who the
       other man was so you won’t take the rap by yourself.”

The record fails to reflect any objections, requests for curative instructions, or motions to

strike these statements.



              At the hearing on the motion for new trial, Mr. Komisar testified he

remembered Thompson offering numerous extemporaneous statements during her


                                             9
testimony. When asked whether he thought her remarks had any effect on the jury, Mr.

Komisar replied, “Vera Thompson had a great effect on the jury. I think Vera Thompson

was -- was the -- the most crucial witness for -- for the State. Now, as to those particular

statements, whether those had an effect on a jury, I wouldn’t -- I mean, she was a very

powerful witness for the State.” Given that this was the extent of the evidence on whether

Mr. Komisar was ineffective for failing to object to Thompson’s statements, the

defendant’s argument must fail. The absence of evidence on this issue renders it

“practically impossible” to show the prejudice necessary to prove ineffective assistance

on this basis. See Strickland, 466 U.S. at 687. As the State points out, it is certainly

possible that Mr. Komisar did not object to Thompson’s statements for fear his objection

would have emphasized her comments and called more attention to them.                  The

defendant has not carried his burden of showing that Mr. Komisar’s representation was

deficient for failing to object to these remarks and that this deficiency prejudiced him.



                                            B.



              The defendant next argues that Mr. Komisar was ineffective because he

failed to impeach Thompson’s credibility by questioning her about her criminal record.

At the hearing on the motion for new trial, Mr. Komisar testified that he was unsure

whether Thompson’s prior convictions were the type that could have been used for

impeachment purposes. Because the record does not reflect the nature of Thompson’s

prior convictions, we cannot properly evaluate this issue in light of Mr. Komisar’s

testimony. For all we know, Thompson’s convictions would have been prohibited from

introduction for impeachment purposes by the Tennessee Rules of Evidence.



              Despite this, the record reflects that Mr. Komisar engaged in great efforts

to impeach Thompson on grounds other than her criminal record. During her trial


                                            10
testimony, Thompson admitted to once having a serious alcohol and drug abuse problem.

She also admitted to taking multiple medications for various ailments and to drinking beer

at the time she witnessed the shooting. Although Thompson testified that her doctor told

her she could drink beer while on her medication, Mr. Komisar called an expert medical

witness who testified that drinking beer while taking the medication Thompson was taking

would intensify the medication’s side effects, which included dizziness and blurred vision,

and would greatly impair the patient’s vision. Despite this testimony, the jury still

accredited Thompson’s testimony that she had no doubt the defendant was the man who

attempted to rob Bevels and shot Martin. The defendant has not shown how further

impeachment by introducing evidence of Thompson’s prior convictions---whatever the

nature of those convictions might be---would cause the jury to reject Thompson’s

testimony. Thus, because the defendant has not shown prejudice, his argument must

fail.




                                            11
                                            C.



              The defendant also argues that Mr. Komisar was ineffective for failing to

object to testimony regarding the defendant’s past drug use. The defense filed a motion

in limine to exclude “[a]ny references to any prior criminal conduct or bad acts by the

Defendant.” The defendant does not cite---and our independent review of the record

does not disclose---a ruling on this motion. At the close of the State’s evidence, the

prosecutor advised the court and the defense that in a pretrial statement, the defendant

had denied having a drug problem, but had admitted to using illegal drugs twice a week.

The prosecutor stated that it would request a jury-out hearing on the admissibility of that

statement “should that issue come up.” Subsequently, during its presentation of proof,

the defense introduced evidence of the defendant’s good character, and on cross-

examination, the prosecutor attempted to impeach this evidence with questions regarding

the defendant’s drug usage.



              The defendant does not seem to take issue with the State’s “mere

impeachment” of defense witnesses by reference to his prior drug usage. Rather, the

defendant argues that “State counsel went beyond mere impeachment . . . to the extent

that counsel for the State had the Defendant explaining the proper method in which to

smoke crack.” The characterization of this questioning as “the proper method in which

to smoke crack” is not quite accurate.      The trial transcript reflects that during his

testimony, the defendant denied he had been using crack cocaine around the time of the

shooting, but he admitted using crack cocaine at a previous time in his life. The

prosecutor asked, “When you would do crack cocaine, would you explain to the ladies

and gentlemen of the jury how you would do crack cocaine? How did you do it?” The

defendant replied he smoked it. The prosecutor asked, “How did you smoke it? Can you

explain that to them? They may not know.” The defendant replied, “Just hold up a lighter


                                            12
and light it up to a stem and put the stuff on there and just smoke it.” The prosecutor

asked, “Like, to a pipe?” The defendant replied affirmatively and added, “Sort of like

smoking opium.” The defendant further explained that he had seen people on television

smoking opium.



              Mr. Komisar failed to object during this line of questioning, but this failure

does not render his assistance ineffective. The defendant has not proven that Mr.

Komisar’s failure to object constitutes deficient performance. As stated previously,

choosing not to object may be a strategic decision to not unduly emphasize prejudicial

testimony. The transcript from the motion for new trial hearing seems to indicate that Mr.

Komisar in fact had good reason not to object to this line of questioning; when asked why

he did not object, Mr. Komisar did not answer, replying that the attorney/client privilege

prevented him from fully and accurately answering that question. As the record stands,

however, there is strong indication that strategy motivated Mr. Komisar’s decision not to

object. Because this Court will not second-guess strategic decisions, the defendant has

not proven deficient performance.



              Even so, by the defendant’s own admission, he had previously used crack

cocaine. As the State points out, “If the jury intended to use that fact against him, it would

have done so regardless of whether he chose to inhale it, smoke it, or inject it.” Thus,

even assuming that Mr. Komisar’s performance was deficient for failing to object, the

defendant has not shown how he was prejudiced.




                                             13
                                             D.



              The defendant also argues that the attorney who represented him at his

preliminary hearing, Bobby Ballinger, rendered ineffective assistance because he failed

to obtain the surveillance tapes from the Pharmart convenience store. Because Mr.

Ballinger did not testify at the hearing on the motion for new trial, the defendant failed to

present any evidence that might prove Mr. Ballinger performed deficiently and that this

prejudiced him. Moreover, the Pharmart manager’s trial testimony indicated that she was

not authorized to release surveillance tapes to anyone other than a police officer, so even

if Mr. Ballinger had tried to obtain the surveillance tapes, he would have been unable to

do so personally. The defendant has not proven ineffective assistance.



                                             III.



              The defendant argues that the trial court erred by failing to give curative

instructions to the following remarks Thompson made during her testimony: “You know

you did it, boy.”; “[H]e [the defendant] was a Crack head.”; “Why did you do it?”; and

“See, you really need to tell us who the other man was so you won’t take the rap by

yourself.” Because no objection or request for curative instruction was made, this issue

is waived. T.R.A.P. 36(a). Even so, any resulting error must be deemed harmless

because the defendant has not shown how these particular statements affected the jury’s

verdict, especially considering that notwithstanding these remarks, the thrust of

Thompson’s testimony was that the defendant attempted to rob Bevels and murdered

Martin. Tenn. R. Crim. P. 52(a).




                                             14
                                                     IV.



                 Next, the defendant argues that Detective Roland’s failure to diligently

procure the Pharmart surveillance tapes constituted prosecutorial misconduct and

prejudiced his right to a fair trial. Citing State v. Marvin K. Ferguson, No. 03C01-9406-

CR-00235, Washington County (Tenn. Crim. App. filed July 17, 1997, at Knoxville),

appeal granted (Tenn. March 23, 1998), the defendant argues that the police must

preserve material evidence, including exculpatory evidence, and that Detective Roland’s

“lack of effort” in obtaining the surveillance tapes “directly resulted in the tapes being

erased before their retrieval,” which prejudiced his ability to prove his alibi.



                 In Arizona v. Youngblood, 488 U.S. 55, 58 (1988), the United States

Supreme Court held that the prosecution’s failure to preserve evidence potentially useful

to the defendant may constitute a denial of due process of law, assuming the defendant

can prove the police acted in bad faith. In a dissenting opinion, three members of the

Court disagreed that a “bad faith” standard was appropriate, instead positing that the

focus of the inquiry should be on the materiality of the evidence, its potential to exculpate,

and the existence of other evidence on the same point of contention. Id. at 67-70.



                 In Ferguson, the unpublished opinion relied upon by the defendant here,

the special judge writing for the panel rejected the majority holding in Youngblood,

instead choosing to rely on the standard preferred by the Youngblood dissent. The two

other members of the Ferguson panel, however, each wrote separate concurring

opinions, agreeing in the result only, but disagreeing with the special judge on the

application of Youngblood.1 Moreover, in numerous other opinions, two of which are

        1
         One of the concurring judges wrote that the bad faith standard pronounced by the Youngblood
majority should be applied, whereas the other concurring judge wrote that he did not believe that the
Ferguson case was the proper case in which to decide whether “due process under the Tennessee
Constitution requires bad faith on the part of the state [i.e., the Youngblood standa rd] in all instanc es.”

                                                     15
published, this Court has followed the majority opinion in Youngblood. See, e.g., State

v. Eldridge, 951 S.W.2d 775 (Tenn. Crim. App. 1997); State v. Jefferson, 938 S.W.2d 1

(Tenn. Crim. App. 1996); see also State v. Ricky Hill Krantz, No. 01C01-9406-CR-00207,

Davidson County (Tenn. Crim. App. filed January 7, 1998, at Nashville); Robert Lloyd

Wiggins v. State, No. 03C01-9605-CC-00191, McMinn County (Tenn. Crim. App. filed

March 20, 1997, at Knoxville), app. denied Tenn. 1997); State v. Jerry Douglas Franklin,

No. 01C01-9510-CR-00348, Davidson County (Tenn. Crim. App. filed February 28, 1997,

at Nashville), app. denied (Tenn. 1997). For these reasons, we question the defendant’s

reliance on Ferguson.



                Under the Youngblood analysis, the defendant’s argument must fail

because there is no evidence that the police acted in bad faith in failing to secure the

surveillance tapes.2 Even assuming that Ferguson was the proper standard to apply in

this case, however, the defendant’s argument still fails because nothing in the record

establishes that the surveillance tapes were either material or exculpatory. Detective

Roland testified the Pharmart manager told him that while the surveillance tapes reflected

a time, they did not reflect whether the time was a.m. or p.m., and they did not reflect a

date. Moreover, according to the defendant and other defense witnesses, the defendant

was in the Pharmart convenience store (and thus on the Pharmart surveillance tapes)

between 4:00 and 5:00 p.m., but the shooting in this case occurred between 6:00 and

7:00 p.m., giving the defendant ample time to commit the crimes charged in this case

even if he was in fact at the convenience store earlier that afternoon. Thus, contrary to

the defendant’s assertions, the surveillance tapes were neither material nor exculpatory

because obtaining them would have done little if anything to establish an alibi for the

shooting.



        2
          Because the defendant relies upon the special judge’s opinion in Ferguson, which omits a “bad
faith” requirement, he does not even attempt to show any evidence of bad faith in the record.

                                                  16
             Further, even assuming that the surveillance tapes were material and

exculpatory, nothing in the record establishes that it would have been possible for

Detective Roland to obtain the tapes, even if he exercised due diligence. Detective

Roland testified that he learned of the tapes’ existence on December 18 and that on

December 21, he learned the tapes were no longer available because they had already

been erased, taped over, or otherwise destroyed. Nothing in the record, however,

establishes when the tapes were erased, taped over, or otherwise destroyed. In fact, it

is possible that the tapes were erased, taped over, or otherwise destroyed before

Detective Roland even learned of their existence.



                                           V.



             Finally, the defendant argues that the trial court erred in denying his motion

for a new trial because “newly discovered evidence,” i.e., a statement by Morris Swanson

that he had witnessed the murder, requires a new trial. At the hearing on the motion for

new trial, Michael Gulley, a case worker at the Mental Health Cooperative, testified that

one of his clients, Morris Swanson, lived at the apartment complex where the murder and

attempted robbery occurred. According to Gulley, Martin was also a patient at the Mental

Health Cooperative, so when the murder was reported to them, Gulley became

concerned about Swanson and called him. Gulley testified that Swanson told him he had

seen “the whole thing” and had been robbed earlier that evening by the same men who




                                           17
shot Martin. According to Gulley, Swanson told him after the defendant’s conviction that

“they’ve got the wrong guy.”



              Swanson, a schizophrenic on medication, also testified at the hearing on

the motion for new trial. Swanson admitted being robbed between 5:00 and 7:00 p.m.

on December 13, but he repeatedly denied telling Gulley that “they had the wrong

person.” Swanson also testified that he did not know the name or the face of the man

who shot Martin.



              Contrary to the defendant’s argument, this evidence does not entitle him

to a new trial. In order to receive a new trial on the basis of newly discovered evidence,

a defendant must demonstrate that he exercised reasonable diligence in seeking the

evidence, that the evidence is material, and that it will likely change the outcome of

trial. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994). Even assuming that the

defendant could meet the first two prongs of this test, he has not shown a likelihood of

acquittal on retrial. As the trial court recognized, Swanson’s testimony is not helpful to

the defendant: “[H]is testimony here was very clear and extremely emphatic, that he did

not see who did the murder. And I don’t know how you’re going to get him to say

anything different from that.” Moreover, Gulley’s testimony that Swanson apparently told

him he witnessed the murder and that the defendant was not the murderer is not helpful

to the defendant because it is sketchy at best. The jury here heard testimony from the

defendant and other alibi witnesses that the defendant was not in the area at the time of

the shooting and did not commit the crimes with which he was charged, but the jury still

chose to believe the testimony of three eyewitnesses, each of whom claimed the

defendant was the shooter. There is no reason to believe that the hearsay testimony of

a mental health case worker regarding statements his patient made to him would change




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that, especially when considering that Swanson would deny ever making those

statements. Accordingly, the trial court properly denied the motion for new trial on this

basis. See Nichols, 877 S.W.2d at 737.



                                           VI.



             The defendant has failed to show reversible error.         Accordingly, his

convictions and sentence are affirmed.



                                                 _______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
NORMA McGEE OGLE, Judge




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