IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON FILED DECEMB ER SESSION, 1997 April 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9706-CC-00223 ) Appellee, ) ) ) LAUDERDALE COUNTY VS. ) ) HON. JOE H. WALKER TIMMY FULTON, ) JUDGE ) Appe llant. ) (Direct Appeal - 2nd Deg ree Murde r)

FOR THE APPELLANT: FOR THE APPELLEE: C. MICHAEL ROBBINS JOHN KNOX WALKUP 3074 East Street Attorney General and Reporter Memphis, TN 38128 DEB ORA H H. T ULLIS GARY F. ANTRICAN Assistant Attorney General District Public Defender 425 Fifth Avenu e North 25th Judicial District Nashville, TN 37243 P. O. Box 700 Somerville, TN 38068 ELIZABETH RICE District Attorney General MARK DAVIDSON WALT FREELAND Assistant District Attorn eys Market Street Somerville, TN 38068

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION On October 18, 1996 a Lauderdale County jury convicted Appellant, Timmy Fulton, of murder in the second degree. After a sentencing hearing, the trial court sentenced Appellant to twenty-two years incarceration to be served at one hundred percen t pursua nt to Tennes see Cod e Annotate d § 40-35-5 01(I)(1)&(2).

Appellant appeals from his conviction, presenting two issues: 1. whether the trial court erred in refusing to grant a mistrial based upon prosecutorial misconduct; and 2. whether the evidence presented at trial was sufficient to support the jury verdict.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS On July 7, 1995, Appellant and his sister, Teresa Spivey, picked up Kevin Currie from Currie’s aunt’s house in Ripley, Tennessee. The y took C urrie to h is house so that he could change clothes. When Currie emerged from the house, he had a gun with him which was loaded with one bullet in the clip. Appellant then drove, with Spivey and Currie, from Ripley, Tennessee to Halls, Tennessee.

When they reached Halls, Appellant parked the car on the side of Pearl Street. The victim, Wayne Cunningham, stopped his car near the car driven by Appellant. Currie testified that Appellant asked him for his gun. Currie gave the gun to Appellant who said he was going to “get” Cunningham. Spivey testified that it was Currie who identified the victim as the man who had shot at Appe llant, and that Currie pulled out his gun, offering it to Appellant and said, “[i]t’s not loaded--loaded. If you don’t do it, I’ll do it.” Spivey did not see Appellant take the

-2- gun, though she assumed that he had done so. Appellant got out of the car and got into the car driven by the victim.

Currie then drove hims elf and Spive y to Sp ivey’s au nt’s house on Church Street. Spivey visited with her aunt and other people who were standing around in her aunt’s yard. Currie left on foot down Church Street. About ten minutes later, Spivey and th e others in the yard h eard a c rashing sound and we nt to where th e victim’s ca r had cra shed into a nearb y house .

Testimony revealed that the victim’s car had rolled down Ceder Street with it’s lights out and the passenger door open. The victim was found inside the car with a gun shot wo und to h is leg. He b led to death quickly due to the severance of his fem oral artery b y a bullet.

Appellant appeared on the scene of the car crash, w alking down Pearl Street. He asked witness Alfred R ound tree wh at had happ ened . Currie approached from the direction of Church Street. Currie testified that Appellant told him that Appellant had shot the victim and that Appellant thought that “that guy was going for a --- make a fa ke pistol break.” Currie also testified that he went to his co usin’s hous e and told his cousin that he, Currie, had killed a man.

Currie claimed that he told his cousin this because he was afra id of App ellant, however Appe llant wa s not w ith Cur rie when he visited his cousin. Ms. Martha Spivey, Appellant ‘s mother and Currie’s aunt, testified that Currie came to her house around five o’clock in the morning of July 8, 1995. Currie told her that he had been in an argument with a man in Halls and that he had shot the man. She testified that Currie was nervous, crying, and sick to the point of throwing up.

-3- Currie was arrested along w ith Appellant and charged with murder in the second degre e. Cu rrie pled guilty to facilitation of a felony of second degree murder in exchange for an eight year sentence.

I. Prosecutorial Misconduct Appe llant alle ges th at the tria l court e rred in r efusin g to gra nt App ellant’s motion for a mistrial after the State revealed that it had withheld a statement by Teresa Spive y from the de fense . At trial, Teresa Spivey testified that she never saw Currie hand Appellant t he gun. T he State, who had called M s. Spivey, impeached this tes timon y, using a state men t Ms. S pivey g ave Ju ly 12, 19 95, in which she said, “[Currie] ha nded th e gun to Timm y.” Ms. Spivey testified at trial that she had assumed that Currie handed the gun to Appellant but that she re ally did not see the exchange. After Ms. Spivey was released and the trial had progressed, the State disclosed that Ms. Spivey had given a second statement eight months prior to trial in which she said exactly what she said at trial, that though she assumed that the gun changed hands, she did not actually see it do so. The State knew about this second statement, but failed to provide it to the defense either as Brady material or as Jencks mate rial. Appe llant argue s that, because the pro secu tion’s w ithholding of Ms. Sp ivey’s statemen t could have affecte d the ju ry verdic t to his p rejudic e, he is entitled to a ne w trial.

A. Impeachment of the State’s Own Witness Appellant contends that the trial court erred in refusing to grant a mistrial after the State im permis sibly impe ached Ms. Sp ivey with he r prior statem ent.

Initially, we note that Appellant failed to raise this issue in his motion for a new trial. In so doing, Appellant effectively waived this issue. State v. Sexton, 917 -4- S.W.2d 263, 266 (Tenn. Crim. App. 19 95); State v. Moffett, 729 S.W.2d 679, 682 (Tenn. Crim. App. 1986 ); Tenness ee Rules o f Appellate Proc edure 3(e). In any event, the Tennessee Rules of Evidence Rule 607 provides: “The credibility of a witness may be attacked by any pa rty, including the party ca lling the witne ss.”

This rule abolishes the “common law prohibition against impeaching one’s own witness.” Rule 607 Tennessee Rules of Evidence Advisory Commission Commen ts. This rule allows impeachment by either party so long as the questioning is not a pretext for putting inad missible hea rsay before the jury.

State v. Johnson, C.C.A . No. 0 2-C0 1-950 4-CC -0009 7, Ob ion County (Tenn. Crim. App., Jackson, February 27, 1997) (citing State v. Mays , 495 S.W.2d 833 (Tenn . Crim. A pp. 197 2), cert. denied (Tenn. 197 3)).

In this case, we d o not find that the im peachm ent of Ms. Spive y was for any impro per pu rpose . Ms. S pivey’s testim ony es tablished a “fact of consequence” which was c rucial to the State’s case, by providing the corroboration neces sary for C urrie’s acc omplice testimon y. State v. Han kins, C.C.A. No. 02C01-9603-CR-00098, Shelby County (Tenn. Crim. App., Jackson, May 23, 1997). Appellant has also failed to show how the impeachment of Ms. Spivey in any has prejudiced his case. Ms. Spivey testified at trial that she assumed that C urrie ha nded Appe llant the gun. W hile perhaps less damning than Currie ’s testim ony, M s. Spiv ey’s pre trial and trial testim ony pu t Appe llant in the car with the victim shortly before the victim was killed and placed him at the scene shortly after the killing. Any effect that any improper impeachment might have had was harmless. The State w as free u nder the Rules o f Evidenc e to impea ch Ms. S pivey. Th is issue is w ithout me rit.

-5- B. Brady Violation Appellant also con tends tha t the State violated the provisions set out by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to disclo se Ms . Spive y’s second statement prior to trial. There are four p rerequis ites a defe ndant m ust demon strate in ord er to establish a due process violation u nder Brady. They are:

1. The defendant must have requested the information (unless the evidence is obviously exculpa tory, in which c ase the State is bo und to release the information wh ether reques ted or not); 2. The State must have suppressed the information; 3. The information must have been favorable to the accused; and 4. The in formatio n mus t have be en ma terial.

State v. Edg in, 902 S.W .2d 387,389 (Tenn. 199 5)(citing State v. Evans, S.W .2d 185 (Tenn . 1992); State v. Spurlock, 874 S.W.2d 602 (Tenn. Crim.

App.19 93); Wo rkman v. State, 868 S.W.2d 705 (Tenn. Crim. App.19 93); State v. Marshall, 845 S.W .2d 228 (Tenn . Crim. A pp.199 2); Strouth v. S tate, 755 S.W.2d 819 (Tenn. Crim. App.1986 )). The standard of materiality of the evidence for a Brady violation requires that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been d ifferent." State v. Edg in, 902 S.W .2d 387, 390 (Tenn. 199 5).

In the matter sub judice, Appellant filed a Brady request on O ctober 12, 1995, requesting any exculpatory materials which the State might have in its possession or constructive possession. Nevertheless the State did not turn over to the defense Ms. Spivey’s second statement. The information in the second

-6- statement clarified Ms. Spivey’s initial statement to the authorities, saying that she did no t actua lly see Currie hand Appellant the gun, but rather that she mere ly assumed he did so. While it appears that the State failed to turn over Ms. Spive y’s statement, we cannot find even a slim probability that the disclosure of Ms. Spivey’s statem ent would ha ve resulted in Appellant’s ac quittal. Further, even if the State had failed to co mply with Brady, a Brady violation results in a breach in due process only if the withholding of evidence prevents material exculpatory evidence from effe ctively being used a t trial. United States v. Peters, 732 F.2d 10 04 (1st C ir. 1984); United States v. Higgs, 713 F .2d 39 , 44 (3rd Cir 1983); United States v. Xheka, 704 F.2d 974, 981 (7th Cir. 19 83); United States v. McPartlin, 595 F.2d 1 321, 1346 (7th Cri.) cert, denied, 444 U.S . 833, 100 S.Ct. 65, 62 L.Ed . 2d 43 (1 979); State v. Caughron, 855 S.W.2d 526 (Tenn. 1993)(Daughtrey, J., dissenting). Not only has the evidence not bee n show n to be exculpatory or material, Appellant has not put forth any proof of prejudice which resulte d from the de lay in disclosure of the statement. This issue is without merit.

C. Jencks Violation Appellant further argues that the State violated the provisions of Rule 26.2(e) of the Tennessee Rules of Criminal Procedure, also known as the Jencks Act, by failing to provide the defense with a copy of Ms. Spivey’s second statement after her direct testimony. In pertinent part, the rule reads as follows: Production o f Statemen ts of Witne sses.--

(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the trial court, on m otion o f a party who d id not c all the witness, -7- shall order the attorney for the state or the defendant and his attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witn ess th at is in the ir poss essio n and that relates to the subject matter concerning which the witness has testified.

(e) Sanction for Failure to Produce Statement. If the other party elects not to com ply with an order to de liver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistria l if required by the interest of justice.

The defense filed a pretrial motion reques ting Rule 26.2 material be disclo sed s ubse quen t to the te stimo ny of ea ch witn ess. F ollowin g Ms. S pivey’s testimony, the State provided the defense with one of Ms. Spivey’s stateme nts but failed to present the defense with the second. According to the record, the State ’s failure to provide the defense with the statement was no t an intentional act, but rather a miscommunication resulting from the defense indicating it had the witness’ statement and the State not seeking clarification as to whether the defense had both statements.

Under Rule 26.2(e) the trial court “shall declare a mistrial if required by the interests of justice” if the S tate fails to “comply with an order to d eliver a statem ent to th e mo ving pa rty.” Also , if a party elec ts not to com ply with a Rule court order, the trial court “shall order that the testimony of the witness be stricken from the record.” Tennessee Rules of Criminal Proce dure 2 6.2(e) . Rule 26.2 (e) sanctions do not rest upon a showing of bad faith, and even the “unintentional withholding or destruction of statements, regardless of motive, may be viewed a s a violation of Rule 26.2 fo r which appropriate sanctions may be

-8- applied.” State v. Inman, C.C.A.No. 03C01-9201-CR-0 0020, C ampb ell Coun ty (Tenn. C rim. App., Kno xville, Novembe r 23, 1993).

Any error which resulted fro m the S tate’s overs ight in provid ing the de fense with both prior statements was not only harmless, but also could ha ve been cured by the defense.The parties realized that one of the statements had not been disclosed prior to the c lose of the State’s pro of. The d efense had the opportu nity to recall Ms. Sp ivey to reha bilitate her testimony with the second statement. The defense chose not to d o so. A final jud gme nt sha ll not be se t aside for fa ilure to com ply with a Rule 26 .2 order unless , considering the e ntirety of the record, “error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial proces s.” Tenn essee Rules o f Appella te Procedu re Rule 36 (b). The trial court did n ot abus e its discretion in refusing to grant a mistrial for this violation of Rule 26.2; such a san ction w ould have been inappro priate where the defense held the keys to negating the effect of the error and ch ose no t to do so. T his issue is without m erit.

II. Sufficiency of the Evidence Appellant argues that the evidence presented at trial was insu fficient to support the jury’s verdict of second degree murder. When an appellant challenges the sufficiency of the evidence, this Court is obliged to review that challenge acco rding to certain well-se ttled prin ciples. A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts in th e testimo ny in favor o f the State . State v. Cazes, S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a presumption of -9- innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof re sts with Ap pellant to demonstrate the insufficiency of the convicting evidence. Id. On appeal, “the [S]tate is entitled to the strongest legitimate view of the evidence a s well as a ll reasona ble and legitimate inferences that may be d rawn therefro m.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is contested on appe al, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reaso nable d oubt. Harris , 839 S.W .2d 54, 75 ; Jackson v. Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996 ); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those drawn by the tr ier of fact from circum stantial evidence.” Id. at 779. Finally, the Tennessee Rules of App ellate P roced ure, R ule 13(e) provides, “findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact beyond a reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at 780.

Appellant contends that the evidence presented at trial was insufficient to convict him on two accounts: (A) the only evidence the State presented against Appellant was uncorroborated accomplice testimony, and (B) the S tate failed to prove beyond a reasonable doubt that the killing was not in self-defense.

-10- Addressing these issues in turn, we hold that the evidence was sufficient to suppo rt the jury verd ict.

A. Accomplice Testimony Appellant contends he was impermissibly convicted upon uncorroborated accomplice testim ony, ar guing that oth er than the tes timon y of Cu rrie, his accomplice, there was no evidence presented at trial which tied Appellant to the crime. It is well-settled that Tenne ssee law req uires only a modicum of evidence in order to sufficiently corroborate the testimon y of an ac comp lice. Clapp v . State, Tenn . 186, 30 S .W.2 d 214 (1 895); State v. Copeland, 677 S.W.2d 471 (Tenn. Crim. App. 1984). This Court held in State v. Barnard that “an acco mplic e’s testimony is deemed sufficiently corroborated by placing a defendant at the scene of the crime as described by th e accom plice.” State v. Barnard , 899 S.W.2d 617, 626 (Tenn. Crim. App. 1994 ). W e have further held that “if the corroborating evidence fairly and legitimately tends to connect the accused with the commission of the crime charged it satisfies the requirement of the rule on corroboration of an accomp lice’s testimony.” State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim . App. 1984 ). In this case , Appella nt was seen in the company of the victim shortly before the time of the murder. Under the precedent set by this Court, the evidence presented by Ms. Spivey that Appellant got into the victim’s car a mere ten minutes b efore the shooting, that she assumed he had a gun, and that he sh owed up at the scene o f the car crash moments after it happened is sufficient corroboration to sustain the verdict. This issue is without merit.

B. Self-Defense

-11- Appellant also argues that the evidence presented at trial, through the testimony of Currie supports a defen se the ory of se lf-defen se in th at Cu rrie testified that Appellant thought the victim was about to draw a gun. Further, the evidence presented at trial revealed that there were spent cartridge shells from a .22 found in the car, perhaps also indicating that the occupant of the car shot at someo ne, possibly Ap pellant. It is true that, once prop erly presented, a defense of self-d efens e nec essita tes tha t the Sta te prov e beyo nd a re ason able doubt that the defendant did not commit the crime in self-defense. Tenn. Code Ann. § 39-11-201(a)(3). In this case, the issue of self-defense was not presented by Appellant, but was brought out during the State’s case-in-chief. Since evidence produced at trial whether prese nted on direct or c ross of a State or defense witness may be utilized by either party, the defense of self-defense was raised in th is case. See Tenn. C ode Ann . § 39-11-201 (d).

Appellant requested that the trial court charge the jury as to the defense of self-defense, and the trial court said it would so c harge the jury if the Appe llant’s closing argume nt included discu ssion of that theory. T he record does not conta in the ju ry instru ctions , thus it is impo ssible for this Court to determine whether the jury was given an instruction regard ing se lf-defen se. Be caus e it is Appe llant’s responsibility to put before this Cou rt all of the record which is needed in adjudicating his claim s, any issue rega rding the trial court’s self-defense instruction or failure to so charge the jury is waived. Tennessee Rules of Appellate Procedure, Rule 24.

Our task, on appellate review is to determine whethe r, based on the evidence presented, the jury could have determined beyond a reasonable doubt -12- that Appellant did not commit this crime in self-defense. In the instant case Appellant was tied to the crime through the testimony of two witnesses. Ms. Spivey testified that Appellant got into the victim’s car some time before the killing, which clearly implicates Appellant as a possible perpetrator of the crime.

The State also presented Appellant’s accomplice, Currie. Currie testified at trial that Appellant told h im tha t Appe llant killed the victim in self-d efens e. Th is testimony, without m ore, wou ld not me et the State’s burden of proof. However Currie testified in court that he gave a statement to the police on July 11, 1995.

In that sta teme nt, Cu rrie stated that Appellant told him prior to the crime that “[Appe llant] was going to get the guy.” Currie conceded this latter statement was made when his memory of the crime was clearer. Obviously the jury accredited the statement Currie made to the police July 11, 1995 over his testimony concerning self-defense.

The jury was free to resolve the apparent conflict in Currie’s testimony however it chose. Weight and credibility of the witness es’ testimony are matters entrusted exclusively to the jury as trie rs of fact. State v. Wright, 836 S.W.2d 130 (Tenn. Crim. App. 1992) (citing State v. She ffield, 676 S.W.2d 542 (Ten n. 1984); Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978)). The State presented evidence, which if be lieved, neg ated the defens e theory o f self-defen se. Th is issue is w ithout me rit.

-13- Therefore, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOE B. JONES, PRESIDING JUDGE

___________________________________ J. CURWOOD WITT, JR., JUDGE

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