State of Tennessee v. Deshawn Lamar Baker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 19, 2012

STATE OF TENNESSEE v. DESHAWN LAMAR BAKER

Direct Appeal from the Criminal Court for Davidson County

No. 2009-B-1373 Mark J. Fishburn, Judge

No. M2011-00946-CCA-R3-CD - Filed March 28, 2013

A Davidson County Grand Jury returned an indictment against Defendant, DeShawn Lamar

Baker, charging him with solicitation of aggravated robbery, conspiracy to commit

aggravated robbery, aggravated robbery, and felony possession of a handgun. Following a

jury trial, Defendant was convicted of conspiracy to commit aggravated robbery, aggravated

robbery, and felony possession of a handgun. Defendant was sentenced to ten years for the

conspiracy charge, eighteen years for aggravated robbery, and four years for the handgun

charge to be served concurrently for an effective eighteen-year sentence in the Department

of Correction as a Range II offender. On appeal, Defendant argues: (1) that the evidence was

insufficient to support his convictions; and (2) that the State commited prosecutorial

misconduct by failing to timely disclose the discovery of his wallet containing the victim’s

driver’s license and that John Peoples would be called as a witness at trial. After a thorough

review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M T IPTON, P.J.

and J OHN E VERETT W ILLIAMS, J., joined.

Michael A. Colavecchio, Nashville, Tennessee, (on appeal); and Paul Walwyn, Nashville,

Tennessee, (at trial), for the appellant, DeShawn Lamar Baker.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; Bret Gunn, Assistant

District Attorney General; and Rob McGuire, Assistant District Attorney General, for the

appellee, State of Tennessee.

OPINION

I. Background

Trial Testimony

At approximately 1:30 p.m. on July 22, 2008, the victim, Andrew Osborne, stopped

at Jimmy’s Bi-Rite located at the intersection of Douglas Avenue and Lischey Avenue in

Nashville. He was in the store for approximately ten minutes and left. As he was walking

to his car, two African-American males, later identified as John Peoples and Bobby Peebles,

a juvenile, were walking toward him in the parking lot. As the victim opened his car door

and sat down, John Peoples pulled a gun out of his waistband, pointed it at the victim’s head

and chest, and said, “Let’s go, come up off your shit, give me your stuff.” The victim then

emptied his pockets onto the parking lot, which included his keys, wallet, cell phone, and

some coins. Both men grabbed the items from the ground, except for the victim’s cell phone

that had rolled under the victim’s car. The victim testified that Mr. Peoples began patting

him down, but he and Mr. Peebles ran away when a van pulled up next to them. The victim

then retrieved his phone from under the car, ran inside the store and told the clerk that he had

been robbed, and he dialed 9-1-1.

The victim testified that he had briefly noticed the two men in the store earlier, along

with a third male, later identified as Defendant. He said that Defendant was wearing a green

hat and a white shirt and had been “eyeing” him while he was “making a transaction” in the

store. The victim further described Defendant’s actions as “[s]ort of just walking past me

and like looking over, looking at me.” He said that Defendant, Mr. Peoples, and Mr. Peebles

were standing to his right when he walked out of the store. The victim further testified that

when he walked out of the store, Defendant “was in the direction, off in the same direction

as the other two that actually approached me, I want to say he was a little bit farther in the

end of the building.”

The victim testified that police arrived within five minutes, and he gave them a

description of Defendant “because that’s who [he] first remembered vividly as being in the

store, . . .” The victim later identified Defendant, Mr. Peoples, and Mr. Peebles. At trial, he

identified himself and Defendant on the surveillance video from the store. The victim

testified that his wallet was returned to him later, on the afternoon of the robbery, but it was

empty. He said, “Somebody down the street said they had seen it or somebody found it and

had thrown it back there. I didn’t - I didn’t have my license or my social or any of that stuff

in it.” The victim testified that he received his driver’s license back “months after the

robbery.” He was informed that it was found in Defendant’s wallet.

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Lena Boleyjack testified that on July 22, 2008, she was living at 1018 Pinok Avenue

with her son and five daughters. On that day, Defendant stopped by her house along with

John Peoples and Bobby Peebles. Ms. Boleyjack testified that that Mr. Peoples and Mr.

Peebles left, but Defendant was sitting on her porch when “police cars started coming

around.” Defendant then said, “I’m not studin’ them” meaning that he did not care about the

police. Ms. Boleyjack testified that she told Defendant three times not to go inside her

house, but he ran inside when police surrounded the house. She told police officers to catch

Defendant coming out the back door. Ms. Boleyjack testified that she told police that her

three oldest daughters were still inside the house. Because she thought Defendant ran out

the back door, she went inside the house to get her daughters. She then learned that

Defendant had run upstairs to her daughter’s room. To her knowledge, Defendant, Mr.

Peoples, or Mr. Peebles had not been upstairs prior to the police arriving. Ms. Boleyjack

testified that police got on the loudspeaker and ordered Defendant out of the house three or

four times, and he finally walked out and was taken into custody. She said that Defendant

was wearing a green hat. Ms. Boleyjack was aware that police found a gun in her seventeen-

year-old daughter’s bedroom. To her knowledge, no one in her house had a gun. Ms.

Boleyjack told police where they might be able to locate Mr. Peoples and Mr. Peebles.

Ms. Boleyjack testified that approximately three months later, her daughter, Sharon

Campbell, gave her a wallet containing Defendant’s driver’s license and social security card,

and it also contained the victim’s driver’s license and a bank or credit card. It was found in

a bedroom of her house, but not the same bedroom where the gun had previously been found.

She called detectives and notified them of the wallet, and they picked it up the following

morning.

On cross-examination, Ms. Boleyjack testified that Defendant dated her husband’s

niece and that he had been to her house on previous occasions. She explained that Mr.

Peoples and Mr. Peebles attended school with her daughter, and they had also been to her

house on previous occasions. Ms. Boleyjack testified that July 22, 2008, was significant to

her because it was her eldest daughter’s birthday. Two of Ms. Boleyjack’s daughters told her

that Mr. Peoples and Mr. Peebles “stepped in the front door and told my daughter happy

birthday and went out.” Ms. Boleyjack testified that she told one of her daughters that she

did not want the two men in her house because she did not want her children involved in any

of their activities.

Sharon Campbell, Ms. Boleyjack’s daughter, testified that she was at home when

Defendant, Mr. Peoples, and Mr. Peebles showed up on July 22, 2008. She said that Mr.

Peoples and Mr. Peebles walked inside the house first and went into the second bedroom on

the first floor to tell her oldest sister happy birthday. Ms. Campbell testified that Defendant

later walked into the house and told her sister happy birthday, and he left. She said that when

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police arrived, she stepped out of the bathroom and heard Ms. Boleyjack say, “Don’t go in

my house.” Ms. Campbell testified that Defendant then ran past her and “through the living

room into the den and to the upstairs because the upstairs is going into the den.” She

explained that her bedroom was located upstairs, along with her sister, Laura Campbell’s

bedroom. Ms. Campbell said that she did not see Mr. Peoples or Mr. Peebles go upstairs.

Ms. Campbell testified that approximately three months later, she was cleaning under

her “shifferobe” and found a billfold under it. She then took the item to her mother, who

opened it and called a detective.

Laura Campbell testified that she was at home on July 22, 2008, when police arrived

and arrested Defendant. She later learned that police recovered a gun from her bedroom.

Ms. Campbell testified that the gun did not belong to her, and she was not aware that it was

in her room. She saw Mr. Peoples and Mr. Peebles go into her sister’s room and tell her

happy birthday, and they left. Ms. Campbell did not see anyone go upstairs because she was

in her mother’s bedroom using the telephone.

Officer Mike Abbott of the Metropolitan Nashville Police Department testified that

he responded to the robbery at Jimmy’s Bi-Rite on July 22, 2008. He spoke with the victim,

who gave him information about the suspects. Officer Abbott then went into the store and

viewed the surveillance tape of the time period that the victim was inside. He later radioed

the other officers to be on the look-out for at least two suspects. The description included

a suspect wearing a white T-shirt and green ball cap.

Officer Misty Hobbs also responded to the area in which the robbery occurred. She

ultimately drove to a residence on Pinok Avenue located approximately two and a half to

three blocks from Jimmy’s Bi-Rite because another officer believed he saw the three suspects

involved in the robbery at the residence. Officer Hobbs and three other officers arrived at

the residence and saw Defendant standing on the front porch wearing a white T-shirt and a

green hat. When Defendant saw the officers pull up, Officer Hobbs testified that “he turned

around like he was going to casually walk back in the house, and as soon as we got out of the

car and we yelled ‘stop,’ he bolted in the house, so we immediately surrounded the house to

be sure he didn’t run out the back door.” Officer Hobbs spoke to a resident at the house who

told her Defendant’s name. She then “got on [her] PA system in [her] car, gave [Defendant]

verbal commands, told him to come out of [the] house with his hands up, do not resist.”

Officer Hobbs repeated the command three times, and Defendant finally walked out and

surrendered himself. Defendant was taken into custody, and the officers “cleared” the house.

Sergeant Lawrence Hansen located a handgun in an upstairs bedroom under a mattress.

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It was later determined that John Peoples and Bobby Peebles had been with

Defendant. Officer Hobbs drove approximately six blocks to 209 Cleveland Street where the

two men were located. Officer Hobbs testified that she had previously dealt with Mr.

Peoples and Mr. Peebles.

Detective William Stewart was dispatched to the robbery. He first drove to Jimmy’s

Bi-Rite, spoke with the victim and the on-scene officer, and he viewed the surveillance video

from inside the store. Detective Stewart then drove the victim to the address on Pinok

Avenue. The victim identified Defendant as one of the individuals who robbed him.

Detective Stewart viewed the green cap and the handgun found in the residence. Detective

Stewart then drove to the address on Cleveland Street. The victim identified John Peoples

and Bobby Peebles as also being involved in the robbery.

Detective Stewart testified that as he was transporting the victim back to Jimmy’s Bi-

Rite, the victim said that an acquaintance told him that he had found the victim’s wallet and

placed it next to a trash container near the store. When the victim and Detective Stewart

arrived back at the store, they observed the trash container, and the victim retrieved his

wallet. However, the contents were missing.

Detective Stewart later conducted a recorded interview with Defendant. Defendant

admitted that he was in the store with Mr. Peoples and Mr. Peebles, but he denied being

involved in the robbery. Defendant told Detective Stewart that he left the store and later met

up with the two men and suspected that they had done something. He said that he saw John

Peoples with a wallet and a gun in his front pocket. He also saw Bobby Peebles with a set

of keys. He denied hiding the gun upstairs at Ms. Boleyjack’s house. Detective Stewart

testified that he received a phone call from Sharon Campbell or Ms. Boleyjack on October

14, 2008, indicating that Ms. Campbell was cleaning under her bed and found a brown

wallet. The wallet contained Defendant’s identification, Social Security card, bank cards,

and the victim’s driver’s license. Detective Stewart drove to Ms. Boleyjack’s house and

retrieved the items. He later returned the victim’s driver’s license to him.

John Peoples testified that he pled guilty to aggravated robbery arising out of the

incident at Jimmy’s Bi-Rite on July 22, 2008. When asked at Defendant’s trial about the

circumstances of the robbery, Mr. Peoples said:

Me and [Defendant] and my cousin [Bobby Peebles] walked into the store, and

[Defendant] and [Bobby Peebles] had walked into the store, and I was outside

the store, and the guy that was outside the store wanted to buy some pills and

I was out there talking to him, and he was like “Do you got any pills,” I was

like, “No, but wait until my cousin come out and I’ll ask him.” And they came

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out the store and I asked them do they got some pills or whatever, they was

like, no, they don’t have no pills, so I got his number, and I was talking to

Bobby or whatever and he was like, “Guy in there got some cash” or whatever,

so I had got the gun from [Defendant] and robbed the guy and me and [Bobby

Peebles] had fled and ran, and like 30 minutes later they came and picked us

up at my granny’s house.

Mr. Peoples testified that he told Detective Stewart that Defendant first attempted to

get Mr. Peebles to commit the robbery, but Mr. Peoples then said that he would commit the

offense, and he took the gun from Defendant. However, Mr. Peoples claimed that he “made

up” the statement to Detective Stewart because he was afraid that he would be “locked up.”

Mr. Peoples testified that Defendant had the gun, and he did not discuss the robbery with Mr.

Peebles. He said that he also agreed to that statement in the facts at the guilty plea hearing

because he was scared that he would receive more jail time for lying.

Mr. Peoples testified that he left his gun at his grandmother’s house, and someone

came and picked it up. However, he agreed that he told Detective Stewart that he gave the

gun to Defendant. He also agreed that the statement was true at the guilty plea submission

hearing. Mr. Peoples claimed that he did not know what happened to the contents of the

victim’s wallet because Mr. Peebles had picked it up. He testified that he met up with

Defendant and Mr. Peebles after the robbery at the house on Pinok Avenue to wish a girl

named “Shay” happy birthday. Mr. Peoples testified that he had been at the house on a

couple of previous occasions and had been upstairs.

Motion for New Trial

At the hearing on Defendant’s motion for new trial, the following exchange took place

between John Peoples and Defendant’s trial counsel:

[Defendant’s counsel]: Okay, so you weren’t actually tried at the same

time, you testified at the trial?

[John Peoples]: Yes, sir.

[Defendant’s counsel]: Okay. And were you represented by an attorney

at that time?

[John Peoples]: Yes.

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[Defendant’s counsel]: All right. Now, after you testified at

[Defendant’s] trial, did you eventually enter a

guilty plea in this case?

[John Peoples]: Yes.

[Defendant’s counsel]: And what was the amount of - what kind of

sentence did you receive?

[John Peoples]: Eight years at thirty percent.

[Defendant’s counsel]: Now, eight years at thirty percent, now that’s -

what you were accused of, you were looking at a

lot more time than that, weren’t you?

[John Peoples]: Yes.

Mr. Peoples testified that he completed an affidavit on May 19, 2010, several months

after Defendant’s trial, “basically saying that the DA told me that I was facing twenty or

thirty years, or I can say what he wanted me to say and they would give me eight years at

thirty percent with a recommendation of parole.” Mr. Peoples testified that Defendant did

not coerce him into “making out” the affidavit.

Mr. Peoples claimed that his testimony at trial indicating that Defendant handed a gun

to him during the commission of the robbery was false. He said that he was not truthful

“[b]ecause I felt like I was going to do more time if I didn’t say what he told me to say.”

Defendant testified that before his testimony at Defendant’s trial, the “DA” sat down with

him in one of the holding cells and told him what to say. He said that his attorney was not

present when he spoke with the prosecutor. Defendant testified that prior to his testimony at

Defendant’s trial, he had been advised that Defendant told police that Mr. Peoples had

committed the robbery and that Defendant was going to testify against him. He said that he

lied on the witness stand because he was given an opportunity to testify against Defendant

in order to receive a better deal.

On cross-examination, Mr. Peoples admitted that he pled guilty to the robbery

“months” before Defendant’s trial, on February19, 2009. He was asked about the plea at

Defendant’s trial. Defendant agreed that he was asked by the trial court at his guilty plea

hearing whether he had been promised, coerced, or threatened in any way, and he said “no.”

However, he claimed that he was lying to the judge. The following exchange then took place

between the prosecutor and Mr. Peoples:

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[Prosecutor]: Okay. And - but you said that you were - you were

threatened with more time if you didn’t testify, right? Is

that what you’re saying?

[Defendant]: Yes, sir.

[Prosecutor]: Well, how could you have gotten more time when your

case was already done with us?

[Defendant]: Because they told me if, uh, if I didn’t say what they told

me to say they were going to take me to the judge and tell

him to give me some more time.

[Prosecutor]: Even though you had already pled guilty, your case - you

had been - the case was al - the guilty plea was five or six

months old and you were already doing your time?

[Defendant]: Yeah.

Mr. Peoples testified that Defendant was not present when he and Mr. Peebles robbed the

victim.

Assistant Attorney General Bret Gunn testified that he was assigned to prosecute

Defendant’s case. Prior to Defendant’s trial, he had prosecuted John Peoples. He did not

recall “any direct contact with Mr. Peoples, other than negotiating with Mr. Mayes about the

disposition that he took. I can only recall discussing the possibility that he might have to

testify in the future.” Mr. Gunn testified that Mr. Peoples’ testimony against Defendant was

not part of his plea agreement. He said,

I don’t think it was discussed. I mean I - I might have had it in my mind and

that’s why I went through a fairly detailed reading of the facts and made sure

that he said that those facts were true, but it was not part of the negotiations of

the deal.

Mr. Gunn testified that he did not have any contact with Mr. Peoples between the time of Mr.

Peoples’ plea agreement in February of 2009 and Defendant’s trial in August of 2009. He

never spoke with Mr. Peoples alone.

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Mr. Gunn testified that when Mr. Peoples was brought out for Defendant’s trial, he

acted confused and began lying about the incident when questioned by Mr. Gunn. The trial

court then appointed Mr. Peoples an attorney to discuss the possibility of perjury prior to Mr.

Peoples continuing his testimony. After Mr. Peoples spoke to the attorney, he resumed his

testimony and described Defendant’s role in the robbery. His testimony was somewhat

similar to the facts that he had agreed to at his guilty plea submission hearing. Mr. Gunn

testified that after Defendant entered his guilty plea, it would not have been possible for any

member of the District Attorney General’s office to change the agreement.

II. Analysis

I. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence for his convictions of conspiracy

to commit aggravated robbery, aggravated robbery, and felony possession of a handgun. He

argues that he was not present and did not participate in the robbery and that he never

possessed the weapon or hid it in the house. He also contends that the accomplice testimony

of John Peoples was not sufficiently corroborated.

When an accused challenges the sufficiency of the convicting evidence, our standard

of review is whether, after reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979). The trier of fact, not this Court, resolves questions concerning the

credibility of the witnesses, and the weight and value to be given the evidence as well as all

factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.

1995). Nor may this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Id. Because a verdict of guilt removes

the presumption of innocence and replaces it with a presumption of guilt, the accused has the

burden in this Court of illustrating why the evidence is insufficient to support the verdict

returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “[D]irect

and circumstantial evidence should be treated the same when weighing the sufficiency of

[the] evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

It is well-settled that “a conviction may not be based solely upon the uncorroborated

testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). Regarding

the rule of corroboration, our Supreme Court has stated:

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The rule of corroboration as applied and used in this State is that there must be

some evidence independent of the testimony of the accomplice. The

corroborating evidence must connect, or tend to connect the defendant with the

commission of the crime charged; and, furthermore, the tendency of the

corroborative evidence to connect the defendant must be independent of any

testimony of the accomplice. The corroborative evidence must of its own

force, independently of the accomplice's testimony, tend to connect the

defendant with the commission of the crime.

Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811, 815 (1959). “In short, the evidence must

confirm in some manner that (a) a crime has been committed and (b) the accused committed

the crime.” State v. Griffis, 964 S.W.2d 577, 589 (Tenn. Crim. App. 1997). However,

Tennessee requires only a modicum of evidence in order to sufficiently corroborate such

testimony. State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984).

To support Defendant’s conviction for aggravated robbery, the State was required to

prove that Defendant committed the intentional or knowing theft of property from the person

of another using violence or fear and accomplished with a deadly weapon or an article used

to lead a victim to reasonably believe it to be a deadly weapon. See Tenn.Code Ann. §§ 39-

13-401(a),-402(a). As for conspiracy to commit aggravated robbery, Tennessee Code

Annotated section 39-12-103(a) defines conspiracy: The offense of conspiracy is committed

if two (2) or more people, each having the culpable mental state required for the offense that

is the object of the conspiracy, and each acting for the purpose of promoting or facilitating

commission of an offense, agree that one (1) or more of them will engage in conduct that

constitutes the offense. In order to be convicted of felony possession of a handgun, the State

was required to prove beyond a reasonable doubt that Defendant possessed a handgun after

being convicted of a felony.

Viewing the evidence in a light most favorable to the State, the proof showed that the

victim stopped by Jimmy’s Bi-Rite on July 22, 2008. Defendant, who has convictions for

at least six prior felonies, John Peoples, and Bobby Peebles were also in the store at the time,

and the victim noticed Defendant, who was wearing a white shirt and green hat, “eyeing” him

while he was making a transaction in the store. As the victim left the store, he noticed

Defendant “off in the same direction” as John Peoples and Bobby Peebles. The victim was

walking to his car and saw Mr. Peoples and Mr. Peebles walking toward him in the parking

lot. As the victim opened his car door and sat down, Mr. Peoples pulled a gun out of his

waistband, pointed it at the victim’s head and chest, and said, “Let’s go, come up off your

shit, give me your stuff.” The victim emptied his pockets onto the parking lot, which

included his keys, wallet, cell phone, and some coins. Both Mr. Peoples and Mr. Peebles

then grabbed all but the victim’s cell phone from the ground. Mr. Peoples began to pat down

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the victim, but he ran away when a van pulled up next to them. The victim then retrieved his

cell phone, notified the store clerk of the robbery, and dialed 911. His wallet was later found

and placed next to a trash container near the store; however, the contents were missing.

Defendant, who was still wearing a white shirt and green hat, John Peoples, and

Bobby Peebles then went to Lena Boleyjack’s house on Pinok Avenue after the robbery. Mr.

Peoples and Mr. Peebles left the house, and when police arrived at the residence, Defendant

“bolted” inside the house, and was eventually taken into custody by police. Upon searching

Ms. Boleyjack’s residence, police found a gun in the upstairs bedroom of Ms. Boleyjack’s

seventeen-year-old daughter. Ms. Boleyjack testified that to her knowledge, no one who

lived in the house had a gun. The victim later identified Defendant, Mr. Peoples, and Mr.

Peebles as the individuals who robbed him.

Sharon Campbell, one of Ms. Boleyjack’s daughters, testified that she saw Defendant

run upstairs after police arrived. She never saw Mr. Peoples and Mr. Peebles go upstairs.

Approximately three months later, Ms. Campbell was cleaning her bedroom when she found

a wallet containing Defendant’s identification, social security card, bank cards, and the

victim’s driver’s license. The wallet was then turned over to Detective William Stewart.

John Peoples testified that Defendant gave him a gun, and he robbed the victim. Mr.

Peoples initially told Detective Stewart that Defendant first attempted to get Mr. Peebles to

commit the robbery, but Mr. Peoples then said that he would commit the crime, and he took

the gun from Defendant. Mr. Peoples then told Detective Stewart that he gave the gun back

to Defendant after the robbery. Although Mr. Peoples later testified at the hearing on

Defendant’s motion for new trial that his trial testimony concerning Defendant handing him

the gun was false, the trial court specifically said that it “put absolutely no credence” in Mr.

Peoples’ testimony at the motion for new trial hearing.

Based on our review of the evidence, we conclude that Mr. Peoples’ testimony was

sufficiently corroborated, and the evidence was sufficient to support beyond a reasonable

doubt Defendant’s convictions for conspiracy to commit aggravated robbery, aggravated

robbery, and felony possession of a handgun. Defendant is not entitled to relief on this issue.

II. Prosecutorial Misconduct

Next, Defendant argues that the State committed prosecutorial misconduct by failing

to timely disclose its knowledge that police had found a wallet in Sharon Campbell’s

bedroom containing Defendant’s identification, Social Security card, bank cards, and the

victim’s driver’s license. Defendant further contends that the State committed prosecutorial

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misconduct by not disclosing until “just a few weeks prior to trial” that John Peoples would

be called as a witness against him.

Defendant has waived this issue for failing to make contemporaneous objections to

the admission of the evidence. Tenn. R. Evid. 103 (“Error may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is affected,

and . . . [i]n case the ruling is one admitting evidence, a timely objection or motion to strike

appears of the record stating the specific ground of objection if the specific ground is not

apparent from the context[.]”); Tenn. R. App. P. 36(b) (“Nothing in this rule shall be

construed as requiring relief be granted to a party responsible for an error or who failed to

take whatever action was reasonably available to prevent or nullify the harmful effect of an

error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988)( waiver

applies when Defendant fails to make a contemporaneous objection); State v. Jenkins, 733

S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6,11-12 (Tenn.

Crim. App. 1987).

Nevertheless, the trial court specifically found it was clear from the record that the

discovery of the wallet and the fact that Mr. Peoples would be called as a witness were both

disclosed to Defendant. The court pointed out that even without Mr. Peoples’ testimony, the

evidence of Defendant’s guilt was still overwhelming. Defendant at no time requested a

continuance upon receiving the State’s discovery responses concerning the wallet and its

contents or the disclosure of John Peoples as a potential witness. Defendant was aware from

the beginning that Mr. Peoples was also charged in the robbery and that he had already pled

guilty to the offense. The record does not reflect that the State acted in bad faith concerning

the disclosure of the evidence, and Defendant in no way indicates how he was prejudiced by

the disclosure or that he was unable to prepare his defense. Accordingly, Defendant is not

entitled to relief on this issue.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

___________________________________

THOMAS T. WOODALL, JUDGE

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