The opinion
01/27/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 16, 2020
STATE OF TENNESSEE v. BALDOMERO GALINDO
Appeal from the Criminal Court for Knox County
No. 83885 Bobby R. McGee, Judge
___________________________________
No. E2020-00556-CCA-R3-CD
___________________________________
A Knox County jury convicted the defendant, Baldomero Galindo, of first degree murder,
for which he received a sentence of life imprisonment. In this delayed appeal, the
defendant argues the trial court erred in denying his motion for mistrial following the late
disclosure of several discovery materials in violation of Brady v. Maryland, 373 U.S. 83
(1963). After reviewing the record and considering the applicable law, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT L. HOLLOWAY, JR., JJ., joined.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Baldomero Galindo.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Charme Allen, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On direct appeal, this Court summarized the facts surrounding the defendant’s
conviction for first degree murder, as follows:1
1
Due to the length of the trial court testimony, we have included only those facts relevant to the
issues raised in this appeal.
This case involves a fatal assault of Heather Lovette, the [d]efendant’s
former girlfriend. The evidence at trial demonstrated that the victim died as
a result of blunt force trauma to her head, which had been inflicted with a
hammer.
Barbie Swann testified that she and the victim were best friends from
age twelve forward. She said that a week before the victim was killed in
August 2005, she moved out of the victim’s apartment and into her
grandmother’s house, “two buildings up” from the victim’s apartment. She
said she moved because the victim was going to regain custody of her four
children. She said that when she and her boyfriend lived in the victim’s
apartment, the [d]efendant, the [d]efendant’s brother, and the victim also
lived there. She said the [d]efendant was the victim’s boyfriend.
...
Ms. Swann testified that she went to the victim’s apartment around
6:00 or 7:00 p.m. on August 18 to retrieve a few belongs remaining in the
apartment. She also said she felt uncomfortable because she knew the victim
was trying to get away from the [d]efendant and that she and her boyfriend
chose to go to the victim’s apartment when the [d]efendant and his brother
were away. She said she retrieved some of her property in a box. She said
there was a red hammer she had borrowed from the victim in the box. She
said she left the hammer on the kitchen table. She identified the hammer as
the one that was an exhibit and stated that it was not missing parts of its
plastic handle on August 18. Ms. Swann testified that as she and her
boyfriend were walking home, they saw the [d]efendant and his brother
returning. She said that her memory was vague but that her boyfriend may
have spoken to them for a minute while she went ahead to her new home.
On cross-examination, Ms. Swann testified that she told the police
about the hammer. She said that if this was not reflected in the tape of her
interview by the police, it would be because “they would have had to cut that
part out.” She admitted the [d]efendant did not like that she and the victim
used drugs together, but she denied suspecting that the victim asked her to
move out due to pressure from the [d]efendant. She said she thought the
victim and the [d]efendant planned to get married but their plans changed
when the victim decided to regain custody of her children. She said the
victim wanted to reunite with Michael Leuty because he would help her with
the children. She acknowledged telling the police the reason the victim
-2-
wanted to reunite with Mr. Leuty was that he would provide financial
assistance.
...
On redirect examination, Ms. Swann testified that she was []
interviewed by the authorities on [August 19,] August 26[,] and September
30. She acknowledged mentioning the hammer on September 30, although
she said she thought she had mentioned it on August 26. She said she was
not asked about a hammer on August 19. She said that when she was shown
a photograph of the hammer at a later date, it was in a different condition
than it was when she left it on the table.
...
[Michael] Leuty testified that he met the victim through her sister in
2002. He said that he and the victim were romantically involved and that
they began living together in June 2002. He said that the victim’s four
children also lived in their home and that he assisted in supporting them. He
said he lived with the victim “off and on” for three years. He said that the
victim had a problem with crack cocaine and that he needed to stay away
from crack.
Mr. Leuty testified that he and the victim were separated from
February or March 2005 until the victim’s birthday on August 7, 2005. He
said that he did not know the [d]efendant during this time. He said he moved
across the street from the victim on August 8 because he was still in love
with her. He said he saw the [d]efendant at the victim’s home during this
time. He said he and the victim first talked about reconciliation on the
following Wednesday, when the victim moved into his home. He said this
was approximately August 16 or 17. He said the victim did not leave his
home because she did not want the [d]efendant to know where she was.
Mr. Leuty testified that he was working for Jones Woodcrafters at the
time and that he worked during the day on August 19. He said the victim
was unemployed. He said that he awoke about 6:00 or 6:30 a.m. and that his
boss, Michael Pruitt, picked him up around 7:30 or 8:00 a.m. He said the
victim was still sleeping in his bed when he left. He said she was lying on
her stomach with her head turned to the right away from the window. He
said that he spoke to her before he left and that she acknowledged him. He
said he left the victim a note stating that he would see her on Sunday to help
-3-
her move back into her apartment. He said he did not know whether the
victim would be there when he returned that afternoon. Mr. Leuty testified
that the only air conditioning in the apartment came from a window unit in
Elizabeth [Koelzer’s]2 bedroom.
Mr. Leuty testified that he worked eight or nine hours that day at a job
site that was about five miles past Maryville and that he returned home about
6:30 p.m. He said he did not have a key to the apartment, which was locked
when he came home that evening. Mr. Leuty testified that the [d]efendant’s
red Ford F-150 and Ford Probe were both in front of the victim’s apartment
that morning and when he returned that evening. He said he did not see
anyone home at the victim’s apartment that evening.
Mr. Leuty testified that because they were in a bad neighborhood and
he had his work tools with him, his boss waited with him. He said he used
Mr. Pruitt’s cell phone to call Elizabeth to let him into the house but was only
able to leave her a voice mail message. He said that he remembered the
window to his bedroom at the back of the apartment and that he was able to
open it. He said that he stepped onto the bed and that the victim was still
asleep. He said that he told the victim he was home and to get up but that
she did not respond. He said he ran to the front of the house to open the door
for his boss and to get his tools inside. He said he then went back to the
bedroom to wake the victim. He said that she was in the same position as
she had been that morning and that when he began shaking her, she was
unresponsive. He said that he grabbed her wrist and that it was cold. He said
that he flipped her over by her shoulder. He said that when he did so, he saw
blood everywhere on the bed and in a huge puddle on the floor. He said that
he began screaming and stumbled out of the house. He said that he was
crying and asked Mr. Pruitt to call 9-1-1. He said that the [d]efendant and
his brother were standing across the street watching him cry. He said the
[d]efendant’s brother left in a truck, that the [d]efendant continued watching
him for three or four minutes, but that the [d]efendant left in the Ford Probe
before the police arrived.
Mr. Leuty testified that Detective Huckleby interviewed him three
times and that he told Detective Huckleby he was not involved in the victim’s
death. He said that he learned in the third interview that his handprint was
2
The direct appeal’s spelling of Elizabeth Koelzer’s last name as “Koetzler” appears to be a
typographical error. Because trial counsel later clarified at the motion for new trial hearing that the correct
spelling is “Koelzer,” we use that name in this appeal.
-4-
in the apartment and that Detective Huckleby arrested him after this
interview. He said he was in jail almost thirty days but was released on
September 22. He said that he was angry but that he later provided the police
with information about the victim’s hammer, which he said had been her
grandfather’s. He said the hammer was red and had a rubber handle. He said
he remembered this hammer being in the victim’s apartment when they lived
together previously. He said the only hammer in Elizabeth [Koelzer’s]
apartment was his twenty-two ounce framing hammer, which had a wooden
handle. He denied hitting the victim with a hammer.
...
[On cross-examination,] Mr. Leuty testified that he saw a “shrink”
regularly because he had nightmares about finding the deceased victim. He
acknowledged that he did not find out how the victim was killed until a
couple of weeks after his release from jail on September 22. He
acknowledged sending an e-mail to the prosecutor on October 19, in which
he described a hammer that belonged to the victim but admitted the email did
not say anything about it having been her grandfather’s. He acknowledged
that he knew on October 19 that the [d]efendant had been charged with
killing the victim. On redirect examination, Mr. Leuty said he could not be
sure whether he first saw the puddle of blood underneath the bed on August
19 or after he was released from jail.
Janice Gangwer testified that she was employed by the Knoxville
Police Department and that in 2005 she was assigned to the Forensic Unit.
She said that on August 19, 2005, she responded to the scene of the victim’s
death, 1347 Alliance Avenue, where she took photographs and collected
evidence. She identified several photographs of the scene.
...
Ms. Gangwer testified that there was a wastebasket in the kitchen that
contained a black rubber grip. She said the grip was collected and submitted
for DNA analysis. She said that there was a claw hammer in a drawer next
to the wastebasket.
With respect to another apartment that was identified by other proof
as the victim’s apartment. Ms. Gangwer testified that she collected a pair of
blue jeans with red spots on them. She said she also collected samples from
blood stains on the door and wall of the hallway at this apartment. She said
-5-
this apartment was across the street from the apartment where the victim’s
body was found. She said she measured the distance between the two
apartments as forty-two steps.
...
TBI Special Agent Jennifer Millsaps testified as an expert witness in
forensic DNA analysis. She said that she analyzed items of evidence
collected from the scene and compared them with standards collected from
the victim, the [d]efendant, and Mr. Leuty. She said that there was blood on
the sunglasses and the floor tile that matched the victim’s DNA profile. She
said the probability that the profile matched someone other than the victim
exceeded the world population. She said that the reddish-brown stain from
the porch matched the [d]efendant’s DNA profile and that the probability that
the profile matched someone other than the [d]efendant exceeded the world
population. She said that the reddish-brown stain from the front door
matched the [d]efendant’s DNA in some locations but that the results were
inconclusive in a few locations.
Knoxville Police Department Detective Joseph Huckleby testified
that he was assigned to the Major Crimes Unit and that he investigated the
victim’s death. He said that he responded to 1349 Alliance Drive about 8:00
p.m. on August 19, 2005. He said that he could not tell from viewing the
victim’s body how she had been killed, although he could tell she had a head
injury. He said her body and hair were in disarray and that there was a large
amount of blood.
Detective Huckleby testified that after a witness told him the victim
lived across the street, he also investigated at an apartment across the street.
He said that no one was home at that apartment but that he found several
items of evidence. He said he found a tool handle, a red-handled claw
hammer, and stained blue jeans.
Detective Huckleby testified that after learning the [d]efendant was at
a location on Pleasant Ridge Road, he traveled there and had contact with the
[d]efendant for twenty or twenty-five minutes. He said that the [d]efendant
had a bleeding head injury and that the [d]efendant agreed to go to the police
station. He said that there was a language barrier because he did not speak
Spanish, that he needed a certified interpreter present to interview the
[d]efendant, and that he photographed the [d]efendant’s injury but did not
interview him.
-6-
Detective Huckleby testified that he later asked the [d]efendant to
return for an interview through an interpreter and that the [d]efendant did so
voluntarily. He said he interviewed both the [d]efendant and the
[d]efendant’s brother on August 20. He said that at that point, he did not
have any information about how the victim died. He said the [d]efendant
claimed to have no knowledge about the victim’s death and to have last seen
the victim on August 16. He said the [d]efendant claimed to have left for
work between 7:45 a.m. and 8:00 a.m. and not to have returned until after he
left work between 5:00 p.m. and 5:45 p.m. He said that the [d]efendant first
told him the cut on his head happened at work but that he admitted in a later
interview that the victim hit him.
Detective Huckleby testified that he learned from a crime technician
that the bloody handprint found at the crime scene belonged to Michael
Leuty. He said, however, that he did not see any blood on Mr. Leuty when
he talked to him shortly after the crime. He said that he interviewed Mr.
Leuty at least three times and that he eventually arrested Mr. Leuty for the
victim’s murder. He said that in the first interview, Mr. Leuty was unable to
explain how his handprint got onto the floor and that he was upset and
“elusive.” Detective Huckleby identified a hammer that was recovered from
a kitchen drawer at the crime scene. He also identified a “black rubber grip”
that was taken from the kitchen trash can.
Detective Huckleby testified that after speaking with Agent Millsaps
on the telephone and learning that some of the blood samples were the
[d]efendant’s, he interviewed the [d]efendant again. He said the [d]efendant
came to the police station voluntarily on September 22. He identified the
[d]efendant’s waiver of rights form from this interview. He said that at the
time, he did not know whose blood was on the hammer and that he had not
seen any blood on the hammer. He said that after the interview, he
immediately had Michael Leuty released and apologized to him. A videotape
of the [d]efendant’s September 22 statement was played for the jury, in which
the [d]efendant admitted hitting the victim on the head with a hammer and
claimed that she hit him first.
On cross-examination, Detective Huckleby acknowledged that his
written “continuing report” omitted information he learned during the
investigation. He said he did not have information from Ms. Swann and Mr.
Leuty about the hammer until after the [d]efendant was arrested. He
acknowledged that when he was on the scene, he had the hammer
-7-
photographed and collected despite not knowing how the victim was killed.
He also acknowledged that contrary to his earlier testimony, Mr. Leuty
claimed never to have touched the victim’s body but that he wrote in his
report that Mr. Leuty admitted having climbed over the body and having
turned it over. He said his report also stated that Mr. Leuty claimed he had
not looked at or seen anything on the victim’s body. He also admitted that
his report omitted information about a child having seen the [d]efendant and
the [d]efendant’s brother at the scene and said he did not include the
information because he was unable to confirm it due to the child’s mother
not cooperating.
Detective Huckleby testified that he interviewed Elizabeth [Koelzer]
four times. He denied any memory of saying to her that he thought she was
responsible for the victim’s death. After a portion of one of the video
recorded interviews was played, he said he was unsure whether his statement
to her, “I still think you did it, all I [have] to do is prove it,” was about the
killing.
...
Detective Huckleby acknowledged that the police lie to suspects “all
the time” as an investigative technique. He admitted telling the [d]efendant
he would not hold anything said in confidence against the [d]efendant. He
admitted he knew the [d]efendant’s admissions would be used against him
but said he meant he would not personally hold anything against the
[d]efendant. He said the [d]efendant told him that he had gone to the
apartment across the street and that the victim threatened to kill him if he did
not leave. Detective Huckleby said the [d]efendant claimed he “kind of
blacked out” when the victim hit him and that he then saw the hammer and
reacted by hitting the victim. He said the [d]efendant claimed not to
remember how many times he hit the victim. He said that after the
[d]efendant said he left the hammer “at the side of the apartment,” he asked
the [d]efendant if the hammer was in the kitchen drawer and that the
[d]efendant said it was. He said that he asked whether there was a piece in
the trash can and that the [d]efendant said, “Probably, I don’t remember.”
He said the [d]efendant claimed he had not given this information during the
first interview because he was scared.
Detective Huckleby clarified that in the last interview, the [d]efendant
mentioned the hammer first. He admitted that he already knew about the
-8-
hammer. He said he did not recall the [d]efendant’s stating where he was in
the house when the victim hit him with the hammer.
...
The [d]efendant did not present any proof. The jury found the
[d]efendant guilty of first degree murder. The trial court imposed a life
sentence.
State v. Baldomero Galindo, E2009-00549-CCA-R3-CD, 2010 WL 4684469, at *1-10
(Tenn. Crim. App. Nov. 19, 2010), perm. app. denied (Tenn. Apr. 13, 2011).
Although the judgment in this case was entered on March 27, 2008, trial counsel
did not file a motion for new trial until May 2, 2008, and the trial court dismissed the
motion as untimely. On direct appeal, the defendant argued, in part, that the trial court
erred in denying his motion for new trial based on the State’s delayed disclosure of
discovery materials. Because the defendant’s motion for new trial was untimely, this Court
reviewed the issue under plain error. After summarizing the contentious relationship
between trial counsel and the prosecutor regarding the discovery in this case, this Court
agreed that discovery violations had occurred. However, because the record lacked any
proof of prejudice to the defendant from the violations, the defendant was not entitled to
relief. Id. at 16-19.
Following the denial of his direct appeal, the defendant filed a timely petition for
post-conviction relief, requesting the right to file a delayed motion for new trial. The trial
court granted the defendant’s motion and appointed counsel to represent the defendant. On
March 1, 2013, the defendant filed a delayed motion for new trial, arguing, in part, that the
trial court erred in declining to grant his motion for mistrial due to cumulative discovery
violations by the State. Specifically, the defendant argued the State withheld information
regarding Mr. Leuty’s mental health treatment, Ms. Swann’s third police statement, and
the results of Ms. Koelzer’s polygraph examination.
At the evidentiary hearing, trial counsel testified he was appointed to represent the
defendant prior to his preliminary hearing. Because trial counsel was fluent in Spanish, he
did not have any problems communicating with the defendant. Early in his representation,
trial counsel filed a request for discovery, which he received from the prosecutor initially
assigned to the case.
As part of the pre-trial discovery, trial counsel received two police statements given
by Ms. Swann, and he had no reason to believe she had given any additional statements.
Trial counsel also spoke with Ms. Swann prior to trial, and she did not mention anything
-9-
about seeing a hammer in the defendant’s apartment on the day before the murder.
However, during her direct testimony, Ms. Swann testified she had seen a red claw hammer
in the defendant’s apartment on the day before the murder. When trial counsel cross-
examined Ms. Swann about why she had not disclosed this information to the police, Ms.
Swann informed trial counsel that she had provided this information to the police. This
was when trial counsel discovered Ms. Swann had given the police a third statement, which
had not been disclosed to the defense. If he had received this statement at the proper time,
trial counsel could have spoken with the defendant about whether Ms. Swann’s statement
was true or whether the defendant had seen the hammer anywhere else. On cross-
examination, trial counsel agreed he could have asked Ms. Swann if she had seen a hammer
in the apartment when he spoke with her prior to trial.
While preparing the defense, trial counsel attempted to speak with Mr. Leuty, but
he refused to discuss the case. At trial, during cross-examination, Mr. Leuty testified he
saw a mental health professional due to nightmares stemming from the trauma of
discovering the victim’s body. Following this disclosure, the State admitted they learned
about Mr. Leuty’s mental health issues the previous night but did not tell trial counsel. If
trial counsel had been aware of Mr. Leuty’s mental health issues the night before his
testimony, he would have requested a continuance to obtain Mr. Leuty’s medical records.
Trial counsel would have reviewed the records to determine why Mr. Leuty was having
mental health issues and to see if they resulted from Mr. Leuty’s participation in the
murder. Although trial counsel conceded he had no knowledge Mr. Leuty had ever
confessed to participating in the murder, he noted that the police found Mr. Leuty’s bloody
handprint at the crime scene. On cross-examination, trial counsel conceded the trial court
ruled Mr. Leuty’s medical records were not relevant.
Regarding Ms. Koelzer, trial counsel received a copy of her police statements in
discovery. Additionally, Ms. Koelzer spoke with trial counsel multiple times prior to trial.
However, neither Ms. Koelzer nor her statements mentioned she had taken a polygraph
examination in this case. During his cross-examination of Detective Huckleby, trial
counsel asked to look at the report Detective Huckleby was reading from and noticed the
report was several pages longer than the report trial counsel was given in discovery.
Included in the longer report was information related to a failed polygraph examination by
Ms. Koelzer. Trial counsel then requested permission to examine Detective Huckleby’s
investigation notebook and discovered Ms. Koelzer’s polygraph examination report, which
indicated she had been untruthful.
After the trial court was made aware of the polygraph report, which had been
excluded from pre-trial discovery, the trial court ruled the State could not call Ms. Koelzer
as a witness. Trial counsel testified this was “unfortunate” because he “kind of like[s]
having a witness testify who’s been lying about the murder.” Her deception during the
- 10 -
polygraph examination would give the jury the “possibility of another suspect.” If trial
counsel had the polygraph results prior to trial, he could have discussed it with her.
Although trial counsel conceded the results of the examination would not be admissible at
trial, Ms. Koelzer may have had a “Perry Mason moment” if confronted with her deception
and confessed to playing a role in the murder. On cross-examination, while trial counsel
acknowledged he could have called Ms. Koelzer as a witness, he testified he did not “know
that we ever had that conversation” because he was “neutral” toward her possible
testimony. Trial counsel was also unsure whether he could ethically call Ms. Koelzer as a
witness because he did not trust her after learning about the failed polygraph examination.
On cross-examination, trial counsel agreed the defendant gave a statement admitting
to hitting the victim with a hammer after an argument. He also acknowledged there was
physical evidence presented at trial which corroborated the defendant’s statement.
However, trial counsel insisted his investigation would have been different if he had been
given Ms. Swann’s statement, information regarding Mr. Leuty’s mental health treatment,
and the results of Ms. Koelzer’s polygraph examination.
Philip Morton, the prosecutor at the defendant’s trial, testified he was assigned to
the defendant’s case when the initial prosecutor, Jo Helm, left the District Attorney’s
Office. At that point, discovery had already been provided to the defendant, and Mr.
Morton focused on preparing for trial.
Prior to trial, trial counsel filed a “notice of discovery in possession of the defense”
which listed the items he had received from Ms. Helm. The notice listed several police
reports but did not identify which reports they were. Instead, they were listed as “a one-
page report, a two-page report, certain dates and so forth.” In response, Mr. Morton filed
a motion to clarify the exact discovery trial counsel possessed. When trial counsel
specified which reports he had, the report numbers matched the ones in Mr. Morton’s file,
and he assumed trial counsel’s discovery was complete. However, at trial, Mr. Morton
learned that Detective Huckleby had updated one of his reports, and the new version had
not been provided to either trial counsel or the State. On cross-examination, Mr. Morton
testified it was possible Detective Huckleby generated a new report and did not give it to
the State. Mr. Morton agreed it was the policy of the District Attorney’s Office to turn
over anything that was subject to discovery or that was potentially Brady material.
Mr. Morton was unsure why Ms. Koelzer was given a polygraph examination and
could not recall whether she was considered a suspect in this case. He also could not recall
whether Mr. Leuty or the defendant were given polygraph examinations in regards to this
case. Although he initially testified he did not know about Ms. Koelzer’s polygraph
examination until trial, Mr. Morton later acknowledged it was possible he did know about
the polygraph but did not attach significant weight to it because it would not be admissible
- 11 -
at trial. Prior to the trial court’s ruling that Ms. Koelzer could not be called as a State
witness, Mr. Morton had intended to call her to testify regarding her knowledge of the
crime and to ask whether she had any involvement in the murder. Upon questioning from
the trial court, Mr. Morton agreed information regarding Ms. Koelzer’s polygraph
examination was something he would have provided to the defendant.
Regarding Ms. Swann’s third police statement, Mr. Morton could not recall whether
Detective Huckleby had reminded him of the fact that Ms. Swann had mentioned seeing
the hammer in the defendant’s apartment, and Mr. Morton testified he was not trying to
hide this information from the defendant.
On cross-examination, Mr. Morton testified he learned about Mr. Leuty’s mental
health issues the night before trial. Mr. Leuty contacted Mr. Morton and mentioned that
he was seeing a mental health professional due to the trauma of having discovered the
victim’s body.
After its review of the evidence presented, the trial court denied the motion for new
trial, and this timely appeal followed.
Analysis
The defendant’s sole issue on appeal is the trial court’s denial of the defendant’s
motion to declare a mistrial. Specifically, the defendant argues the State’s cumulative
discovery violations created prejudice which necessitates a new trial. The State contends
the trial court acted within its discretion in denying the motion for mistrial based on the
delayed disclosures. We agree with the State.
The decision of whether to grant a mistrial is within the sound discretion of the trial
court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). Normally, a
mistrial should be declared only in the event that a manifest necessity requires such action.
State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). “In other words, a
mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage of justice
would result if it did.” State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). The
burden to show the necessity for a mistrial falls upon the party seeking the mistrial. Id.
This Court will not disturb the trial court’s decision unless there is an abuse of discretion.
State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990).
Suppression of evidence favorable to the defendant is a due process violation where
the evidence is material to guilt or punishment. Brady, 373 U.S. at 87. The duty to disclose
extends to all “favorable information” regardless of whether the evidence is admissible at
trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn. Crim. App. 2012). In order to establish a
- 12 -
violation based on the withholding of favorable evidence, the defendant must demonstrate
that: (1) the defendant requested the information or that it was obviously exculpatory; (2)
the State suppressed evidence in its possession; (3) the information was favorable to the
accused; and (4) the information was material. State v. Jackson, 444 S.W.3d 554, 594
(Tenn. 2014). Favorable evidence has also been defined as:
evidence which provides some significant aid to the defendant’s case,
whether it furnishes corroboration of the defendant’s story, calls into
question a material, although not indispensable, element of the prosecution’s
version of the events, or challenges the credibility of a key prosecution
witness.
Johnson, 38 S.W.3d at 56-57 (internal citations omitted).
Evidence is material if there is a reasonable probability the result of the proceeding
would have been different had the evidence been disclosed. State v. Cureton, 38 S.W.3d
64, 77 (Tenn. Crim. App. 2000). A reviewing court must determine whether the defendant
has shown that the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine the confidence of the verdict. Johnson, 38 S.W.3d
at 58 (internal quotations omitted).
In addition, “the prosecutor is responsible for ‘any favorable evidence known to the
others acting on the government’s behalf in the case, including the police.’” Strickler v.
Greene, 527 U.S. 263, 275 n.12 (1999) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995).
This includes “evidence in police possession which is not turned over to the prosecution.”
Jackson, 444 S.W.3d at 594. However, the prosecution is not required to disclose
information that the defendant either possesses or is able to obtain. Johnson, 38 S.W.3d at
56.
However, this Court must analyze the State’s delayed disclosure of evidence
differently than the State’s non-disclosure of evidence. “Generally, if there is only a
delayed disclosure of information, in contrast to a complete failure to disclose exculpatory
information, Brady normally does not apply, unless the delay itself causes prejudice.” State
v. Caughron, 855 S.W.2d 526, 548 (Tenn. 1993) (Daughtrey, J., dissenting) (citations
omitted). When there is a delayed disclosure of evidence, rather than complete non-
disclosure of significant exculpatory evidence, this Court must determine whether the delay
kept defense counsel from effectively using this evidence in presenting and preparing the
defendant’s case. Id. “‘Brady generally does not apply to delayed disclosure of
exculpatory information, but only to a complete failure to disclose.’” State v. Justin Terrell
Knox, No. W2014-01577-CCA-R3-CD, 2015 WL 6122257, at *4 (Tenn. Crim. App. Oct.
16, 2015) (quoting United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002). If the defense
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fails to request a continuance after receipt of the evidence, fails to call or recall a witness
to testify regarding the evidence, or fails to extensively cross-examine a witness regarding
the evidence, the Brady violation may be cured. State v. Sidney M. Ewing, No. 01C01-
9612-CR-00531, 1998 WL 321932, at *9 (Tenn. Crim. App. June 19, 1998), perm. app.
denied (Tenn. Feb. 22, 1999).
A. Barbie Swann’s Third Police Statement
The defendant argues he was prejudiced because he was not given Ms. Swann’s
third police statement until after her testimony on cross-examination. The State contends
Ms. Swann’s statement is not exculpatory and the defendant has not shown that its delayed
disclosure caused prejudice.
Following Ms. Swann’s testimony that she had seen a red hammer in the defendant’s
apartment on the day before the murder, trial counsel was given a copy of a police statement
dated September 30, 2005, in which Ms. Swann told police she left the hammer on the
kitchen table in the defendant’s apartment on the day before the murder. The trial court
asked trial counsel if he needed time to review the statement, but trial counsel declined to
take the offered continuance. During recross-examination, trial counsel questioned Ms.
Swann extensively about her statement to police regarding the hammer. Following Ms.
Swann’s testimony, trial counsel requested a mistrial due to the State’s failure to disclose
Ms. Swann’s third statement. The trial court denied the motion but instructed the
prosecutor to ensure all Jencks3 material was provided to the defendant. At the motion for
new trial hearing, trial counsel testified that, if he had received the statement at the proper
time, he could have spoken with the defendant about whether Ms. Swann’s statement was
true and whether the defendant had seen the hammer anywhere else.
We conclude the delayed disclosure of Ms. Swann’s third police statement
indicating she had seen a hammer in the defendant’s apartment prior to the murder was not
prejudicial. First, we note the information contained within the police statement was not
exculpatory. Additionally, although trial counsel testified he would have asked the
defendant whether Ms. Swann’s statement was true and whether the defendant had seen
the hammer anywhere else, trial counsel knew the hammer was found in the defendant’s
apartment after the murder. Therefore, he had evidence which could have led him to ask
the defendant whether he recognized the hammer. Furthermore, trial counsel failed to take
a continuance when the trial court asked if he needed time to review the newly discovered
statement, and the record shows trial counsel extensively questioned Ms. Swann regarding
her statement during recross-examination. Accordingly, the defendant is not entitled to
relief on this issue.
3
Jencks v. United States, 353 U.S. 657 (1957).
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B. Michael Leuty’s Mental Health Treatment
The defendant argues he was prejudiced by the delayed disclosure that Mr. Leuty
was seeking mental health treatment because this information could have been used to
impeach Mr. Leuty’s testimony. The State contends the delayed disclosure was not
prejudicial because the trial court ruled the evidence was not relevant.
During cross-examination, Mr. Leuty spontaneously admitted to seeing a therapist
due to nightmares stemming from his discovery of the victim’s body. When trial counsel
asked if Mr. Leuty had disclosed this information to the prosecutor, Mr. Leuty stated that
he told the prosecutor the previous day. Following this admission, trial counsel continued
his cross-examination of Mr. Leuty with no further mention of his mental health treatment.
Following the conclusion of Mr. Leuty’s testimony, trial counsel made a second
motion for mistrial, arguing that information regarding Mr. Leuty’s mental health treatment
was discoverable and that “psychiatric problems [] can affect his ability to perceive, his
ability to remember, his ability to recall.” The trial court took the matter under advisement
in order to obtain Mr. Leuty’s medical records. After reviewing the records, the trial court
held that the prosecutor should have informed the defense that Mr. Leuty was receiving
mental health treatment when Mr. Leuty told him the night before trial. However, the trial
court denied the motion for mistrial, holding nothing in Mr. Leuty’s medical records was
relevant to this case. At the motion for new trial hearing, trial counsel testified, if he had
been made aware of Mr. Leuty’s mental health issues the night before trial, he would have
requested a continuance in order to obtain Mr. Leuty’s medical records. Trial counsel
would have then reviewed the records to determine why Mr. Leuty was having mental
health issues and to see if they resulted from Mr. Leuty’s participation in the murder.
However, trial counsel conceded he had no knowledge that Mr. Leuty had ever confessed
to participating in the murder.
We conclude the delayed disclosure of Mr. Leuty’s mental health treatment was not
prejudicial. Although trial counsel testified he would have requested a continuance to
obtain the medical records, he failed to do so. Instead, trial counsel continued his cross-
examination and did not request a mistrial until after recross-examination was completed.
Trial counsel also testified that he would have reviewed the medical records to ascertain if
Mr. Leuty admitted to participating in the murder. However, the trial court reviewed the
medical records in question and found that they contained no relevant information.
Furthermore, although it appears the trial court gave the defense a copy of the medical
records obtained from Mr. Leuty’s psychologist, the medical records are not included in
the record on appeal. Therefore, we are unable to review the trial court’s determination of
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their relevancy. It is the defendant’s duty to provide a full and complete record. Tenn. R.
App. P. 24(b). Accordingly, the defendant is not entitled to relief on this issue.
C. Elizabeth Koelzer’s Polygraph Results
The defendant argues he was prejudiced by the delayed disclosure of Ms. Koelzer’s
polygraph examination report, which indicated she was untruthful, because it was received
too late to be useful. The State contends the polygraph results would not have been
admissible at trial and any violation was cured by the defense’s failure to call Ms. Koelzer
as a witness.
During the testimony of Detective Huckleby, trial counsel requested permission to
review the detective’s investigation notebook. Inside, trial counsel discovered a police
report indicating Ms. Koelzer had failed a polygraph examination as well as the polygraph
results. Following trial counsel’s discovery, the trial court ruled that the fact that Ms.
Koelzer had taken a polygraph and the results of the examination were not admissible for
any purposes. Additionally, the trial court held Ms. Koelzer’s polygraph results were
Brady material and should have been turned over prior to trial. Instead of granting the
defendant’s request for a mistrial, the trial court held the State was not allowed to call Ms.
Koelzer as a witness. However, although the trial court clarified that its ruling did not
prevent the defense from calling Ms. Koelzer as a witness, trial counsel chose not to do so.
At the motion for new trial hearing, trial counsel testified that if he had been given the
polygraph results prior to trial, he could have discussed them with Ms. Koelzer. Although
trial counsel conceded the results of the examination would not be admissible at trial, he
believed Ms. Koelzer may have had a “Perry Mason moment” if confronted with the results
and confessed to playing a role in the murder. When asked why he did not call Ms. Koelzer
as a witness, trial counsel testified he no longer trusted her.
According to the polygraph report, during Ms. Koelzer’s examination, the
polygraph examiner detected an indication of deception to the following questions:
1. Regarding [the victim’s] death, do you intend to answer truthfully all questions?
(ANS: YES)
2. Did you participate in any way in causing [the victim’s] death? (ANS: NO)
3. Did you lie about being asleep and not knowing that [the victim] was beaten? (ANS:
NO)
4. Did you see Baldo (Baldomero Galindo) beat [the victim]? (ANS: NO)
We conclude the delayed disclosure of Ms. Koelzer’s polygraph results was not
prejudicial. Although a polygraph result is not admissible, this Court has previously held
that a deceptive polygraph result is exculpatory. See Lavely Brown v. State, E2004-00886-
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CCA-R3-PC, 2005 WL 1882453, at *14 (Tenn. Crim. App. Aug. 8, 2005), perm app denied
(Tenn. Dec. 19, 2005). Here, a polygraph examination indicated Ms. Koelzer might have
been untruthful about her statements regarding her involvement in the victim’s murder, and
the State did not disclose this information to the defense. However, while the results of the
polygraph are exculpatory, we conclude they are not material. The argument that this
information could have changed trial counsel’s strategy or produced a “Perry Mason
moment” is not supported by the proof. The defendant confessed to hitting the victim with
a hammer, and his DNA was discovered at the crime scene. No testimony presented at the
trial or the motion for new trial hearing suggested that Ms. Koelzer had any involvement
in the commission of the crime. Moreover, the results of the polygraph examination would
not have been admitted at trial, and the jury would never have been able to hear them.
Finally, while trial counsel was explicitly given permission to call Ms. Koelzer as a witness
during trial, he chose not to do so. The defendant is not entitled to relief on this issue.
Because he has failed to prove he was prejudiced by the State’s discovery violations,
we conclude the defendant has not established the “manifest necessity” required for a
mistrial. Thus, the trial court did not abuse its discretion in denying the defendant’s
requests for a mistrial.
Conclusion
Based on the foregoing authorities and reasoning, the judgment of the trial court is
affirmed.
____________________________________
J. ROSS DYER, JUDGE
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