State of Tennessee v. Colin Reed Wells

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 20, 2002 Session

STATE OF TENNESSEE v. COLIN REED WELLS

Appeal from the Criminal Court for Knox County

No. 70048A Mary Beth Leibowitz, Judge

No. E2001-02612-CCA-R3-CD

December 6, 2002

The defendant, Colin Reed Wells, was convicted by a Knox County Criminal Court jury of

carjacking (Class B felony), robbery (Class C felony), aggravated assault (Class C felony), resisting

arrest (Class B misdemeanor), violation of driver’s license law (Class B misdemeanor), evading

arrest (Class A misdemeanor), evading arrest (Class D felony), and assault (Class A misdemeanor).

Following his convictions, the trial court merged some convictions and imposed an effective

sentence of 32 years as a multiple offender in the Department of Correction. On appeal, he claims

his carjacking conviction is infirm because the prosecution failed to disclose exculpatory evidence.

Discerning no error, we affirm.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,

and ROBERT W. WEDEMEYER , J., joined.

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

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;

Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

The defendant’s convictions resulted from his actions on October 17, 1999. The

state’s evidence showed that the female victim of the carjacking and robbery was sitting in her

automobile in the parking lot of a supermarket on Clinton Highway in Knoxville. She was waiting

for her male companion who was shopping in the store, and she sat in the driver’s seat and had her

car engine idling. The defendant opened the passenger-side door, entered the vehicle, and ordered

the victim to exit the car and to leave her purse on the seat. As she complied, she saw a female, who

was the defendant’s sister and co-defendant, standing beside the driver’s door.

The defendant drove away in the victim’s car, and at some point, police officers

pursued the defendant. The assaultive and evading and resisting arrest offenses occurred during the

chase and ultimate apprehension of the defendant. After the defendant was apprehended, the

arresting officers handed over the defendant to Knoxville Police Officer J.D. Brown, who transported

the defendant back to the supermarket for a show-up identification by the victim. Afterward, Officer

Brown transported the defendant as well as the co-defendant to jail. During both trips when the

defendant was confined in the rear compartment of Officer Brown’s cruiser, the cruiser’s video

camera was operating and recording the defendant’s conversation in which he asserted that he had

been involved in a drug transaction with the victim and her boyfriend.

The prosecutor did not discover the existence of the videotape until a few days before

trial. The defense reviewed the tape on Friday before the trial began on the following Wednesday.

The defendant believed that the recorded conversation supported the defendant’s claim at trial that,

although he took the victim’s car, he did not do so by carjacking.

The state moved the court to exclude the videotape from evidence. Initially, because

the trial court determined that the content of the tape was hearsay and self-served the defendant, it

sustained the motion to exclude the tape from evidence. However, during the defendant’s case-in-

chief, the trial judge relented and allowed the defendant and the co-defendant to introduce pertinent

portions of the videotape. Thus, neither the exclusion nor the somewhat belated disclosure of the

tape is an issue on appeal; rather, the defendant is aggrieved that the state obstructed him in his bid

to locate and interview Officer Brown.

Prior to trial, the defendant had moved to discover any written or recorded statements

of the defendant, “a list of the names and current addresses of all witnesses who the state intends to

call to testify,” statements of witnesses who are not to be called to testify, and any exculpatory

evidence, including “the names and addresses of any witness whom the State believes would give

testimony favorable to the defendant . . . regardless whether the State intends to call the witness.”

After trial, the defendant’s counsel asserted in an affidavit filed with the motion for

new trial that during the trial, he asked the prosecutor where he could find Officer Brown, who as

of the time of trial, was no longer employed in the police department. Counsel’s affidavit further

asserts that the prosecutor replied “that she did not know where [Brown] was, that she assumed he

was still at the police department.” The defendant also appended to his new trial motion the

affidavits of Knox County Sheriff’s Department officers who, during the defendant’s trial, discussed

Brown’s whereabouts with the prosecutor. She told them that she had been unable to locate Brown.

The defendant also presented the affidavit of Brown himself, who averred that on the eve of the

defendant’s trial, the prosecutor called him at the Jefferson City Walmart, where he was employed

as an assistant manager. Brown further averred that he told the prosecutor that his entire encounter

with the defendant on October 17, 1999 was recorded on the videotape and that “it had been some

time since the events took place and that she should rely on the videotape.” Brown averred that he

had declined to answer the prosecutor’s questions in the absence of an opportunity to review the

tape.

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In his motion for new trial, the defendant claimed that Brown would have

corroborated the defendant’s trial testimony that the defendant’s possession of the victim’s car was

the result of a “drug deal gone bad” and not a carjacking. The trial court overruled the motion for

new trial, finding that the state was not required to supply addresses of witnesses and that, in any

event, former officer Brown said in his affidavit that he “told her to rely on the videotape.” The trial

court found that the “tape came [in] so I’m not sure there’s been any major prejudice to [the

defendant].” The trial judge commented, “I’m not sure that what we have here was exculpatory

evidence, and even if it was, it came in anyway [through the videotape and through the defendant’s

testimony].” Furthermore, the trial court relied upon the defendant’s failure to move for a

continuance when counsel was unable to locate Officer Brown. The court correctly recalled that,

after the defendant had reviewed the videotape and after the court’s initial ruling on the state’s

motion in limine, the defendant announced that he was ready to proceed to trial.

On appeal, the defendant claims that the prosecutor violated her obligations set forth

in Brady v Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by failing to disclose to the defense the

address or whereabouts of J.D. Brown. The defendant argues in his brief that Brown could have

corroborated that the defendant asserted facts during the defendant’s conversation in Brown’s police

cruiser that would have contradicted the theory of carjacking. The defendant also claims that Brown

could have affirmed that the defendant was the only one who would have known “certain facts” and

that “[t]here was not enough time for the Defendant to fabricate and/or know certain facts had they

not occurred as defense counsel’s theory supposed.”

In Brady, the United States Supreme Court held that the prosecution has the duty to

furnish exculpatory evidence to the accused upon request. “Any suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.

at 87, 83 S. Ct. at 1196-97. The duty to disclose extends to all “favorable information” regardless

whether the evidence is admissible at trial. State v. Marshall, 845 S.W.2d 228, 232-33 (Tenn. Crim.

App. 1992). Both exculpatory and impeachment evidence fall under the Brady rule. United States

v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985).

Before an accused is entitled to relief via Brady, he must establish several

prerequisites: (a) the prosecution must have suppressed the evidence; (b) the evidence suppressed

must have been favorable to the accused; and (c) the evidence must have been material. See id. at

674-75, 105 S. Ct. at 3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; Marshall, 845 S.W.2d

at 232. Evidence is material under the Brady rule only if there is a reasonable probability that had

the evidence been disclosed to the defense, the results of the proceeding would have been different.

Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1556 (1995). In State v. Spurlock, 874 S.W.2d

602 (Tenn. Crim. App. 1993), this court recognized a fourth prerequisite to relief, that “the accused

must make a proper request for the production of the evidence, unless the evidence, when viewed

by the prosecution, is obviously exculpatory in nature and will be helpful to the accused.” Id. at 609.

The defendant bears the burden of proving a Brady violation by a preponderance of the evidence.

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

App., Nashville, Jan. 28, 1999).

Applying these principles, we hold that, although the defendant requested

J.D.Brown’s address or whereabouts, the defendant has failed to establish by a preponderance of the

evidence that due process principles, via Brady, compelled disclosure of Brown’s address or

whereabouts. The trial judge did not believe that the prosecutor suppressed this information, but

even if she had determined that the state suppressed the information, the record is devoid of any

showing that the information was material. Indeed, Mr. Brown’s affidavit, advanced by the

defendant, reveals that the affiant recalled nothing about the October 17, 1999 encounter with the

defendant other than what was revealed on the videotape. Although the tape contains self-serving

statements of the defendant, there has been no showing that Mr. Brown could have imparted

additional information that would have been favorable to the defendant or that probably could have

produced a different result. Thus, the trial court did not err in overruling the Brady claim presented

in the defendant’s motion for new trial.

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

____________________________________

JAMES CURWOOD WITT, JR., JUDGE

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