IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED AUGUST SESSION, 1998 January 28, 1999 Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710-CC-00503 ) Appellee, ) ) LINCOLN COUNTY V. ) ) ) HON. CHARLES LEE, JUDGE JOAN ELIZABETH HALL, ) ) Appe llant. ) (FIRST DEGREE MURDER)

FOR THE APPELLANT: FOR THE APPELLEE: RAYMOND W. FRALEY, JR. JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter JOHNNY D. HILL, JR. TIMO THY B EHAN Attorney at Law Assistant Attorney General East Market Street 2nd Floor, Cordell Hull Building P.O. Box 572 425 Fifth Avenue North Fayetteville, TN 37334 Nashville, TN 37243 RICHARD McGEE W. MICHAEL McCOWN Attorney at Law District Attorney General Woodland Street Nashville, TN 37206 WEAKLEY E. BARNARD Assistant District Attorney General P.O. Box 904 Fayetteville, TN 37334

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Defendant, Joan E. Hall, appeals as of right following her conviction in the Linco ln Coun ty Circuit Co urt. Following a jury trial, she was convicted of criminal respon sibility for the conduct of another committing first degree murder and was subs eque ntly senten ced to life im prisonm ent. In this appeal, Defendant raises the following issues: 1) Whether the State withheld evidenc e in violation o f Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), such that Defe ndan t’s due proce ss righ ts were violated warra nting a new tria l; 2) Wh ether the trial court erre d in failing to g rant a new trial du e to the perjured testimony of Natalie Romine; and 3) Whether, in light of the Brady violations and the perjured testimony of Natalie Romine, sufficient evidenc e exists to c onvict the D efenda nt.

We affirm the ju dgme nt of the trial co urt.

Stan Golden testified that he was traveling, on August 1, 1995, across Eldad Bridge at approximately 4:08 p.m. when he was flagged down by the De fendan t.

The Defendant told him that “they had shot her husband,” and her husband was now laying in the river dead .

Dane tta Mars hall lived in the vicinity of the Eldad Bridge and was alerted by her next door neighbor, on August 1, 1995, that someone had been shot. When Mars hall came outside, the Defendant was c rawling up he r drivew ay and eventu ally sat next to M arsha ll’s car. Defenda nt scream ed, “[T]hey sho t my husba nd. They’re going to kill me.” M arshall’s n ext door n eighbo r, Michael Ke y, then went inside Marshall’s home to call 911.

-2- Michael Key lived next door to Danetta Marshall. Key left work on August 1, 1995, at 3:30 p.m. and arrived home fifteen (15) to tw enty (2 0) min utes la ter. W hile feeding his dogs, Key heard someone screaming for help, and he estimated the time he first heard the screams to be between 4:00 and 4:30 p.m.

Adrian Key, M ichae l’s Key’s son, w as ale rted by his brother of the situation.

Adrian Key walked outside and found the Defendant screaming, “Don’t let them get me. They shot my husband.” Aron Key, Michael Key’s older son, also observed the Defendant screaming between 4:00 and 4:30 p.m. that “they” killed her husband and we re going to kill her.

Chad Robinson, the eighteen (18) year old stepson of Michael Key, drove to his home on the afternoon of August 1, 1995. When he got out of his car and started walking toward the house, he heard a gunshot. He went inside for five (5) or ten (10) minutes, then left again to go to an auto parts store nearby. Robinson spent ten (10) minutes driving to the store and approximately six (6) minutes inside the store, then returned home to find his brother and father sitting w ith the Defendant on the side of the road. Robinson estimated that the time between hearing the gunshot until he saw the Defen dant to have been about twenty (20 ) or twenty-five (25) minutes. Robinson also recalled that Defendant used the word “they” when describing who had shot her husband.

Johnny Simmons, a deputy with the Linco ln Coun ty Sheriff’s D epartm ent, received a call at 4:18 p.m. on August 1, 1995. Simmons went to the scene at Eldad Bridge, arriving at 5:1 0 p.m. a s one o f the first officers on the scene. Simmons observed the victim’s body lying next to the river bank.

-3- Andy Cline, the head of Crime Stopp ers in L incoln County, traveled to Eldad Road to videotape the crime scene on August 1, 1995. His video of the crime scene was show n to the jury.

Mac Kidd, pa ramed ic with the Lincoln County Regional EMS, responded to a call at the Eldad River Bridge on August 1, 1995. The body of the victim had already been pulled from the river when he arrived on the scene. Kidd noted that the victim had a gunshot wound to the back of his head without an exit wound, blood coming from his left ea r, and a poss ible en trance woun d to the uppe r left qua drant o f his body with a p ossib le exit point in the lower right side of his abdomen. The body was transp orted to Linco ln Reg ional H ospita l.

Mam ie Ruth Hall, mother of the victim, testified that her son had two adopted daughters, one biological da ughter and tw in sons. He had been married to the Defenda nt for seven years on July 31, 1995. While the victim had been employed at Amana Refrigeration, he was laid off in July 1995. The Defendant’s two daughters lived with the victim and the Defendant, and following the death of the Defe ndan t’s mother, the Defendant’s biological son, Richard Romine, also cam e to live with them . A year prio r to the victim’s death, Richa rd Rom ine left to live with Michael Rom ine in Oh io. Mam ie Hall exp lained tha t Michael Romine was the Defe ndan t’s older brother, and Richard was the Defendant’s biological son who had been a dopted by the De fendan t’s parents .

Mam ie Hall stated that her relationship with the victim and the Defendant was good and they saw each other often. She described an incident during which the Defendant had threatened to kill her son, although she perceived that to be said “in -4- jest.” Hall often went fishing with the Defendant and the victim, and she had fished at the same spot where the shooting occurred just four (4) days prior to the shooting incident.

Following the victim’s death and funeral, the Defendant told Hall that she did not know wha t happene d. Howeve r, on the evening of the shooting, H all overheard the Defendant tell her daughter that Richard Romine had shot the victim. Because she was suspicious, Hall hired Larry Shavers to independently investigate the murde r. Their first m eeting w as on O ctober 2 1, 1995 .

Joyce McCo nnell, Inves tigator for the Lincoln C ounty S heriff’s De partme nt, answered a 911 call at 4:15 p.m. on August 1, 1995 by traveling to the Eldad River Bridge on Elda d Roa d. After sh e arrived, M cCon nell was d irected to D anetta Mars hall’s home where she found the Defendant sitting on the front porch.

McC onne ll described the Defendant as hysterical, crying and scared. Defendant stated that “they” were go ing to get her, indicating that while she did not witness her husb and’s shooting, she believed more than one (1) person was involved as she overheard someone say, “[T]here she goes,” when she attemp ted to flee the area.

Defendant had left the spot where she and the victim were fishing to use the bathroom, and while she was finishing she heard he r husba nd yell, “Ru n Joan ie.”

W hile Defe ndan t did no t men tion Ric hard R omin e’s presence at the time, she later told McCo nnell he h ad bee n with them while they were fishing, but she did not know where he was at the time of the shooting.

Defendant was advised to come by the Sheriff’s Department. When she did, her Miranda rights were administered to her and a sta teme nt was taken . This -5- statement was recorded and the tape was played to the jury. McConnell described that during the interview D efendant did n ot know wh o shot her husband. After leaving the area where they were fishing to go to the bathroom, she heard her husband yell, “Run Joanie,” and then she heard shots. Defendant indicated that Richard Romine had been with them earlier, but they dropped him off at the intersection of Eldad Road and Liberty Road. In Defendant’s handwritten supplement to her s tatem ent to p olice g iven on August 1, 1995, the Defendant included the following: “[A]nother time, Richard told my daughter that he would kill Olen by shoo ting him. I asked him how he would get away with it. He told me that he would blame it on me saying that I had him do it.” Other investigation in which McC onne ll was involved included a search of the Defendant and the victim’s home for weapons, but none of those found were determined to be the weapon used for the shooting. The Defendant was tested for gunshot residue, but the result was not positive.

McC onne ll stated that Richard Romine was charged with the murder of the victim on the evening of August 1, 1995. The investigation continued un til February or Marc h 199 6. The Defe ndan t and D avid M ichae l Rom ine we re sub sequ ently charge d.

Kevin Duff, life insurance claims examiner for Principal Financial Group, testified that the Defe ndan t was p aid $84,69 2.38 in de ath ben efits for a life insurance policy the victim had in effect at the time of his death.

Mike Hunt er, inve stigato r with the Lewis burg P olice, also interviewed the Defendant who stated that she, Richard Romine and the victim had gone fishing.

-6- After she left the fishing scene to go to the bathroom, she heard her hu sban d yell, “Run Joanie,” and then heard one (1) or two (2) shots. After running back to find her husband, she sa w him lying fac edow n in the water. The Defendant described that the victim and Richard Romine had problems, with Richard threatening to kill the victim if given the chance. Richard had le ft their home to live with his brother Michael Romine in Ohio, but he returned to Tennessee in March 1995. Michael Romine eventually moved to the area, then Richard and Michael moved in together about o ne-half m ile from the victim and the Defe ndant’s h ome.

Richard Romine testified that although he was seventeen (17) years old at the time of trial, he was sixteen (16 ) on Augu st 1, 1995. He learned at the ag e of twelve (12) that Defendant was his biological mother, though he had always known her as his adopted sister while he resided with his a dopte d mo ther an d gran dmo ther in North Carolina. After his adopted mother died, Richard went to live with the Defendant and the victim. De fendant’s two d aughters, Jenia and Mary Jane Latiolais, were also living there.

Initially, Richard admitted his first problems with the victim were when he found a mark on Jania’s left leg after the victim had hit her with a belt. Also, there was a dispute over the television during wh ich law enforcem ent officers came to the home and advised Richard to spend the night a way fro m the Hall res idenc e. Sho rtly after this incident Richard moved to Ohio to live with Michael Ro mine. After Rich ard and Michael moved back to Lincoln County, the Defendant found a mobile home for them to live in. Richard and the victim fished on a weekly basis, although never at the scene of the shooting.

-7- Richard admitted that about two (2) or three (3) weeks prior to the murder, the Defendant discussed the problems she was having with the victim. S he told Richa rd she wanted him to kill the victim because that was the only way to get rid of all the problems. Richard did not take her seriously until she produced a Derringer two- shot handgun. Defendant showed Richard how to opera te the gun and then placed it back inside her purse. Four (4) or five (5) days later, the Defendant told him that if he were going to k ill the victim, then it would have to be done prior to August 1, 1995, because the victim’s insuranc e was runn ing out on that da te. A third conversation regarding killing the victim occurred a few days later, and it was then that Rich ard told the Defen dant he would co mm it the murd er.

Two (2) or three (3) days prior to August 1, 1995, Richard again talked with the Defendant while Michael Romine was presen t. The D efenda nt then offe red to give him the v ictim’s truck , $10,00 0.00, an d to pay his health insurance in return for his killing her husband. The plan was for Richard to shoot the Defendant in the leg while they were fishing so that it would appear to be a robbery. The Defendant then advised Richard that because the victim’s employer had paid to renew his insurance policies and the policies would not lapse , there w as no hurry to com mit the murder prior to Augu st 1, 1995 . The day prio r to the s hootin g, the p lans ch ange d sligh tly such that Richard was not supposed to be present at the time of the shooting, nor was he sup posed to shoot th e Defe ndant in the leg to mak e it look like a robbery.

Michae l Rom ine show ed Rich ard how to load the handgun using real bullets, then the Defendant gave him four (4) hollow point bullets. Two (2) bullets were placed in the gun , with the rem aining two left in Richa rd’s pock et.

-8- After their meeting, Richard began writing a contract for the Defendant to sign.

He messed up the first version and threw it away in a shoe box. The second contract provided that Richard was “supposed to off Olen [victim]” with the Defendant to supply the gun , gloves, and alibi. Also, the D efendant wa s to give Richard $10,000.00, the victim’s truck and pay his health insurance for two (2) yea rs. He met the Defen dant later th at sam e day, bu t she refused to sign the contrac t. Richard stated that Defendant did agree with its contents. He also put this co ntract into the shoe box. A plan was made for Michael to pick him up after the shooting.

On August 1, 1995, after 2:30 p.m., the Defendant picked up Richard and he got the gun, gloves , and fishing gea r. Richa rd put th e gun in his pocket. When they went to the Defendant’s reside nce, th e victim was “b eing q uiet.” R ichard told Defendant that the victim knew a bout the ir plan, but D efenda nt denied this. Richard claimed that the plan w as for h im to s hoot th e victim on the path lea ding to the river, but he could not get his glo ves on s o he we nt to the op posite side of the bridge from the victim. Defendant stated she had to go to the bathroom, and then Richard approached the victim from behind and shot him. After the victim fell into the water, Defendant came up behind him and was pointing at the victim so he shot him in the head. The gun was thrown into the river, and he fled the scene to be picked up by Micha el.

Richard and Mic hael dro ve to Bi-Lo Supermarket to pay th eir telep hone bill, and Richard told M ichael that, “[H]e was shot. He wa s dead.” After pa ying the phone bill, they drove to the Defe ndant’s residen ce where R ichard place d his gloves and his shoes in a barrel used for burning trash. Richard washed off and changed clothes, leaving his cloth es in th e laun dry. Th ey trave led towards Pulaski, then -9- returned to the Defendant’s home to get her daughters. When they arrived, they “found out” ab out the victim’s shooting so they w ent to the h ospital. After leaving the hospital and going to Ruth Ha ll’s home, law enforcement officers arrived and took Richard into cu stody.

On cross-examin ation, R ichard adm itted so me in cons istenc ies in his testimony and confessions, including that he initially claimed his confession was not a true story. He recalle d telling wo rkers at the Middle T ennes see Me ntal Hea lth Institute that he was “mess ed up in th e head ” and tha t you “have to be a little crazy to do what I did - commit murder.” He also told investigators that Defendant had pulled the trigger, but admitted at trial that was a lie. Richard identified a letter which he wrote to the De fenda nt date d Apr il 26, 19 96, in which he indicated he “did wrong” and should have taken respo nsibility for his acts and neve r should have tried to “put it off on her.”

Donna Pence , special ag ent with the TBI, wa s called in to investigate with McC onne ll in October 1995. She received some torn pieces of paper and a mug from Larry Shavers. Pence first interviewed Michael Romine on January 19, 1996, and she also participated in the interview of Natalie Romine on February 1, 1996.

Notes we re made from both these interviews , and the Defendant received copies of the note s from M ichael R omine ’s interview.

Michael Romine testified that he is the bio logica l uncle and adopted brother of Richard Rom ine. Durin g the sum mer of 1 994, D efendant c ontacte d Micha el to ask if Richard could come to live with him because R ichard and the victim were having problems. Michael agreed, but in February 1995 he se nt Ric hard ba ck to -10- Tennessee. Two (2) weeks later, Michael moved to Tenne ssee and he and R ichard event ually moved into a trailer. The relationship between Defendant and her husband was tense to the point that during the summer of 199 5, the D efend ant told him that the victim needed to go. She described a plan she had devised for him to be sho t while they w ere on a fishing trip.

Two (2) days la ter, the Defendant showed a .38 caliber weapon to Michael and offered him $10,000.00 and a truck. The shooting was supposed to occur that same day. Michael came to the river where the Defenda nt and the victim w ere fishing, but he was unable to pull the gun out. Afterwards, the Defendant said she was only “playing around” with Michael and knew he would not shoot her husband, but then s tated th at she was in the process of poisoning her husband by putting poison in the honey he used in his coffee. Michael recalled seeing the Defendant mix something in the honey she added to Defendan t’s coffee. A week p rior to August 1, 1995, the Defendant mentioned a double indemnity aspect of the insurance and asked Richard to shoot the victim. Three (3) or four (4) days later, the Defendant, Michael and Richard were again discussing shooting the victim. The Defendant told Richard that if he were caught he would only serve six (6) months incarceration in a juve nile fac ility and th at she would provid e his law yer an d an a libi.

The plan was de vised for Richard to shoot the victim, with Michael then picking up Richard, and the Defendant claiming that three (3) men tried to rob them.

On the evening prior to August 1, 1995, the Defendant stated that the shooting was to occur the ne xt day. On the m orning of Aug ust 1, 1995, the D efendant ga ve Michael $300.00 to pay his phone bill in order to provide an alibi for Richard. The Defendant picked up Richard at 2:45 p.m., then Michael went to her home at 3:00 -11- p.m. to start a load of laundry. Michael then drove to Eldad Bridge, and when he arrived he saw Richard running towards the highway. Richard got into the back of Micha el’s vehicle , and th ey dro ve to B i-Lo Su perm arket to pay M ichae l’s pho ne bill.

The bill reflected it was paid at 3:43 p.m. on August 1, 1995. Then they drove back to the Defendant’s residence where Richard took a shower while Michael started a fire in the trash barrel to burn Richard’s shoes. Michael put Richard’s clothes in the washing machine. Michael later found two (2) bullets in the washing machine which he threw in a w oodsh ed, but he later retrieved the bullets and turn ed them over to personnel in the public defender’s office.

In his initial statements to law enforcement officers, Michael admitted that he did not tell the “whole truth” in an effort to assist his brother Richard. He identified a contract found by Natalie Romine in Richard’s room after the victim’s fun eral. It was placed behind a picture in Richard’s room. He saw it aga in while h e was in North Caro lina wh en Na talie gave it to him torn into pieces. Following the indictment against him for criminal res ponsibility and acce ssory after the fac t, he pled g uilty to being a n acce ssory with an agre emen t to serve a tw o (2) year s entenc e.

Louis Kuykendall, special agent forensic toxicologist with the TBI, testified that he tested the victim’s coffee cup for Diazinon or Dursban, commonly known as insecticides. He found a brown residue on the cup. Wh ile the te sts sho wed n o bas ic or acidic d rugs, it did tes t positively for cy anide in th e residue .

Nata lie Rom ine is married to J ame s Fred erick R omin e, the D efend ant’s brother, and she had only met the Defendant on two (2) or three (3) occasions prior to the victim’s death . After lea rning o f the victim ’s death, she called the Defendant -12- and was to ld that Richard had killed him. The Defendant asked Natalie to come for the funeral because she had no other family. Natalie agreed and flew to Huntsville, Alabama where she was picked up by the Defendant and her daughters. After arriving, the De fenda nt app eared to be “fin e,” but to ld Natalie that if it would have happened any late r, she w ould n ot have receive d any in surance money. The Defendant advised N atalie th at she would receive $250 ,000.0 0 from the victim ’s death. Defend ant des cribed the victim as th e “mea nest son of a bitch that ever lived.” Defendant claimed that she was trying to protect Richard. After returning to the De fendan t’s home , the Defe ndant c alled the in suranc e com pany.

At the visitation prior to the victim’s funeral, the Defendant gave various accou nts of how her husband’s shooting occurred, including that Richard had been smoking marijua na prior to killing the victim. Following the funeral, Defendant joked all the way to the cemetery, but adjusted her rearview mirror to prevent people in the car following them from seeing her amusement. After they returned to the funeral home, Defendant gave Natalie and Michael money so that they could get food and beer.

That same evening, Natalie found the contract at Michael and Richa rd’s home.

She stated that the document read, “I want . . . $10,000.00, Olen’s truck, two years’ insurance. You supply me with weapon, alibi and gloves.” While reading the docum ent, Micha el took it from N atalie and stu ck it into his boot. Michael later returned it to her to read. The following day, they went to visit Richard who was being detained at the juvenile detention center. Richard tried to tell Natalie what had happened, but the Defendant warned him not to do so. Th at even ing the y all went drinking, and N atalie returned to N orth Carolina the following day.

-13- Michael cam e to visit N atalie o n two (2 ) or thre e (3) diffe rent oc casio ns in North Carolina , and the D efenda nt move d there to live in a traile r on he r broth er’s land. While Michael was there, Natalie overheard him tell the Defendant that she had better get a lawyer for Richard. Later, sh e heard Michael talking about how the Defendant tried to poison her husband, and the Defendant then implied to Nata lie that “[i]t should have worked,” in reference to her attempts to poison the victim. On another occasion, the Defendant admitted that she asked Michael to kill her husba nd.

W hile not present when the contract was torn into pieces, Natalie saw the contract on her kitche n table after it wa s torn in to piec es by th e Def enda nt. Na talie placed the pieces of the contract into an envelope which she placed in her bedroom, then later gave to Michael. Natalie recalled other conversations she had with the Defendant during which the Defendant advised her that she had Richard kill the victim.

Charles Harla n, foren sic pat holog ist and med ical examiner, performed the autopsy of the vic tim. The death was determined to have been caused by two (2) gunshot wounds to the head, chest and abdomen, with both shots being fatal. The first gunshot wound was a near gunshot wound to the back, with the muz zle of the gun being from six (6) to twelve (12) inches from the victim’s body. The victim bled for somewhere between three (3) to ten (10) minutes from this wound. The gunshot to the victim’s head caused him to cease being a viable organism immediately upon being shot, even though it would have taken several minutes for him to have died.

Upon testing the victim’s bloo d and u rine, no ba sic drugs were de tected. Harlan testified that “the cyanide test was not tested for by the laborato ry.” However, -14- without further explanation, Harlan stated that there was no indication of the presence of cyanide during the autopsy becau se “if cyanid e is prese nt, I can detect it.”

This evid ence c onclud ed the S tate’s cas e-in-chief.

Jeff Bradford, investigator with the Lincoln County S heriff’s De partme nt, testified that he participated in the investigation at the scene of the shooting and then later questioned the Defendant at the Sheriff’s Department. He, along with the Defendant and Inve stigator Mike Hopson, went to the residence of Michael and Richard Romine where they searched the home. They found a shoe box in the bedroom containing drug paraphernalia, but no contract was found.

Jim Cranford, the bro ther of R uth H all, observed that the Defendant and the victim had an excellent marriage. During the funeral, he never observed any inappro priate behavior by the D efendant, an d thought sh e appeare d to truly mourn the dea th of her hu sband .

Palmeda Taylor, a lice nsed p sycholo gist, evaluated Richard Romine and concluded that he was not mentally ill and was com petent to stand trial. Richard admitted to her that, “You have to be a little craz y to do w hat I did , that is, c omm it murde r.” Two (2) weeks later, Richard retracted his confession of killing the victim and named the Defendant as the murderer. She described his behavior as gene rally manipulative and superficially cooperative, having average intelligence and knowing right from wrong. Richard admitted to a poor frustration tolerance and poor anger contro l, stating that he “could not stand too many people. If I don’t like them, I want -15- to hit them.” Dr. Ta ylor found Richa rd as having the potential for reacting with o vert anger w hen he was up set.

This co nclude d the pro of by the D efenda nt.

EXCULPA TORY EVIDENCE

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Sup reme C ourt held that the prosecution has a constitu tional duty to furnish the accused with exculpatory evidenc e perta ining to either th e acc used ’s guilt or innocence and the punishment that may be imposed. Failure to reveal exculpatory evidence violates due proces s where the evide nce is m aterial eithe r to guilt or punishm ent, irrespective of good faith or bad faith of the prosec ution. Brady, U.S. a t 87, 83 S.Ct. a t 1196 -97. A lso, evid ence which may be used by the defense to impeach a witness must be disclosed by the prosec ution. See Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Workm an v. State, 868 S.W.2d 705, 709 (Tenn. Crim. A pp. 199 3), cert. denied, 510 U.S. 1171, 114 S.Ct. 12 07, 127 L.Ed.2d 555 (19 94); State v. Davis , 823 S.W.2d 217, 218 (Tenn. Crim. App. 1991). In determ ining whether a due process violation has occurred, the following four (4) prerequisites must be satisfied: 1) The defe ndant mu st have reque sted the inform ation (unless the evidence is obviously exculpa tory, in which c ase the state is bound to release the inform ation whethe r requested o r not); -16- 2) The state must have suppressed the information; 3) The information must have been favorable to the accused; and 4) Th e inform ation m ust ha ve bee n ma terial.

State v. Edg in, 902 S.W .2d 387 , 390 (T enn.), amended on reh’g (Tenn. 1995) (citations omitted).

Defendant has the burden of proving a con stitutional violation by a preponderance of the evide nce. Id. at 389 (citing State v. Spurlock, 874 S.W.2d 602, 610 (Tenn . Crim. A pp. 199 3)). Proving this constitutional violation is centered upon whethe r the om ission’s sig nificance rises to the level of denying the Defendant a fair trial. Edgin , 902 S.W.2d at 389 (citing United S tates v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976)). The standard by which the materia lity of undisclosed information is measured was pronounced in Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995), which held that, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confiden ce.”

Thus, to prove a Brady violation , the de fenda nt mu st sho w that “th e favor able evidence could reasonably be taken to put the whole case in such a different light as to underm ine the confiden ce of the verdict.” Id. Or, as succinctly stated in the majority opinion of a panel of this court in State v. Jeffrey R. Allen and Jennings Michael Coen, C.C.A. No. 03C01-9708-CC-00367, slip op. at 7, Anderson Coun ty (Tenn. Crim . App., Knox ville, Jan . 8, 199 9) (citatio ns om itted), “[e ]videnc e is considered material 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.”

-17- Defendant argues that the State withhe ld exculpatory evidence in violation of Brady and its progeny. Basically, Defen dant has ca tegorized the e xculpatory evidence as follows: I. The written witness statements o f Dan etta M arsha ll, Aron Key, Adrian Key, Michael Key, and Chad Robinson; II. A written state ment o f Natalie Romine, which was a sixty-nine (69) page s worn sta temen t given by N atalie Romine to Larry Shavers, an independent investigator; and III. A TBI report by Special Agent Donna Pence.

Genera lly, if there is only a delayed disclosure of information, in contrast to a comp lete failure to disclose exculpa tory inform ation, Brady normally does not apply, unless the delay itself cause s prejudic e. Sylvester S mith v. Sta te, C.C.A. No. 02C01-9801-CR-00018, slip op. at 13, Sh elby Co unty (Te nn. Crim . App., Jackson, Dec. 28, 199 8); State v. Sydney M. Ewing, C.C.A. No. 01C01-9612-CR-00531, Davidson Coun ty, (Ten n. Crim . App., Nash ville, June 1 9, 1998 ), vacated and re- entered, (Tenn . Crim. A pp., Nas hville, Aug. 1 8, 1998 ); State v. Jim Inman, C.C.A.

No. 03C01-9 201-CR -00020 (T enn. Crim. A pp., Knoxville, Nov. 23 , 1993) perm. to appeal denied, (Tenn ., April 14, 19 94).

W e note that while the Defendant expended a considerable portion of her brief and reply brief to the issues regarding exculpatory evidence, in many instances, citations to the record in support of the argument are lacking. On the other hand, the State does not complain about the lack of citation to the reco rd by De fendan t. The State has de voted a m inimal po rtion of its argument to this issue. Its brief basica lly cites the law applicable to exculpatory evidence and takes the conclusory position that all of the statemen ts are merely Jencks material required to be produced pursuant to the provisions of Rule 26.2 of the Tennessee Rules of Criminal -18- Procedure. In this particular case, we will therefore examine Defendant’s issues as best as w e can u nder the circums tances .

I. THE WRITTEN WITNESS STATEMENTS OF DANETTA MARSHALL, ARON KEY, ADRIAN KEY, MICHAEL KEY, AND CHAD ROBINSON

The written state ments of Dane tta Marshall, Aron Key, Adrian Key, Michael Key, and C had R obinso n are no t part of the record in this app eal, and there appa rently was no effort to preserve them for the record as they are not included in the list of exhibits at trial. From the cro ss-exa mina tion of th e witne sses , it is apparent that at least some of the statements were used during cross-examination.

It is clear from the record that the State produced the statements of these witnesses after direct te stimon y of each witness.

It is the duty o f the Appellant to prepare an adequate record for appellate review. Tenn . R. App . P. 24(b); State v. Bunch, 646 S.W .2d 158, 160 (Tenn. 198 3); State v. Robe rts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). When no evidence is preserved in the record for review, we are precluded from considering the issue.

Robe rts, 755 S.W .2d at 836 .

In her brief, D efenda nt lists various inconsis tencies in the witnes s statem ents of Michael Key, Danetta Marshall, and Chad Robinson as to the time period that certain events occurre d. The re are n o citatio ns to th e reco rd, whic h is unde rstand able as, stated above, the statements of these witnesses were not included in the record. Defendant argues in her brief that “[i]n their totality, these suppressed statements contained material inconsistencies which tended to rebut the

-19- State ’s theory that the defendant remained at the scene of the shooting for an extended p eriod of time befo re seeking he lp.”

Our examination of the rec ord rev eals that the cro ss-exam ination of D anetta Mars hall was rem arkably b rief. Defense counsel brought out on cross-examination that the witness had signed a statement saying that at appro ximate ly 3:45 p.m., one of the neighbor children had come into her living room stating that “someone had been shot and to come quick.” Michael Key was not cross-examined at all by defense coun sel. While Adrian Key was cross-examined, defense counsel did not examine the witness about anything occurring at a particular time. Aron Key was not cross-examined by defe nse c ouns el. Cha d Rob inson was c ross-e xamin ed by defense counsel, using a portion of his written statement pertaining to whether or not he had spoke n with his fa ther prior to re turning h ome fro m a trip to th e store.

It is clear from the record that the Defendant requested to be given access to all witness statements prior to trial, and that the State did not provide these statem ents to Defendant until after each witness had testified on direct examination.

Howeve r, there is nothing in the record to indicate that the witness statements of Dane tta Marshall, Aron Key, Adrian K ey, Michael Key, a nd Ch ad Ro binso n me t all the requirements in order to be classified as Brady materia l.

The statem ents, e ven if exculpatory, were provided during trial, and therefore, under Smith , slip op. at 13, Ewing, slip op. at 7-9, and Inman, slip op. at 10, unless the delay itself ca uses p rejudice, Brady does not apply. Defendant has shown no prejudice and therefore Brady does not apply for this reason also.

-20- II. SWORN STATEMENT OF NATALIE ROMINE TO LARRY SHAVERS

The Defendant refers to numerous examples of exculpatory evidence contained within the sixty-nine (69) page sworn statement of Natalie Romine which was provided to defense counsel prior to the direct examination testim ony of N atalie Romine, but after the trial had already begun . In the argu ment p ortion of he r brief, Defendant refers to specific examples of purported exculpatory evidence contained in the sixty-nine (69) pag e stateme nt by a general referenc e to the rec itation of facts contained in the “state ment o f facts” portion of her brief. In many instances, references to the record of this information is either non-existent or inadequate. For example, some referenc es to the record are to the statements of counsel during the hearin g of the motio n for ne w trial. It is well-settled that statements of counsel are not evidenc e. See Trotter v. State, 508 S.W .2d 808, 809 (Tenn. Crim . App. 1974 ).

W e will add ress th e spe cific examples of purported exculpatory evidence as best we are able to in light of the se deficie ncies in D efenda nt’s brief.

(1) Defendant asse rts that c ertain p ortions of the s tatem ent of N atalie Romine are exculp atory bec ause th ey contra dict testimony of Michael Romine, Richard Romine, and the victim’s mother, Ruth Hall. The specific contradictions between the statement of Natalie Romine and testimony at trial of Michael Romine and Richard Romine are not delineated in the brief. Natalie Romine, in her statem ent, told that the Defen dant had talked disparagingly about her deceased husband as being “one mean SOB” and “the meanest man that ever walked on the face of this earth .” Defend ant con tends tha t “other witne sses,” sp ecifically Mrs . Ruth Hall, the victim’s mother, had testified at trial that it was th eir observation that a good -21- relation ship existed between the victim a nd the D efenda nt. Defen dant no w asse rts that the portio n of Nata lie Rom ine’s statem ent rega rding De fendan t’s statem ents contrary to what trial witnesses later testified to is exculpatory evidence.

Defendant does not explain how a statement can be recognized by the prosecution prior to trial as exculpatory evidence based upon the testimony of other witnesses during the trial. Howe ver, even if the prosecutor could have been clairvoyant enough to know that a state ment o f one witne ss migh t contrad ict with other witnes ses’ tria l testim ony, w e do n ot belie ve that th is particular instance cited by the D efenda nt mee ts the “m ateriality test” of Kyles, 514 U.S. at 434.

(2) Defendant asserts in her brief tha t the statement of Natalie Romine “that Michael Romine was trying to frame the Defendant,” is exculpatory and she refers to page 40 of the Natalie Romine statem ent. T hat po rtion of M s. Rom ine’s statem ent, referring to this matter, includes the follo wing, “I d idn’t rea lly know at this point if Mike [Romine] was trying to frame [Defendant] or if [Defendant] was trying to frame Mike [Romine]. I knew that bo th of the m ha d a ha nd in p lay, but I d idn’t know h ow big o f a part they were pla ying.”

Nata lie Romine testified during the trial to essentially the same information contained in this portion of the state ment. Therefore, since this was presented to the jury, we fail to se e that this m eets the “m ateriality test” of Kyles, 514 U.S. at 434.

(3) The Defendant argues that exculpatory evidence included a portion of Nata lie Rom ine’s statement which describes that Michael Romine received an indication from a police investigator that he would get cu stody o f the D efend ant’s -22- children and property if he could come up with sufficient evidence to implicate Defendant in the death of the victim. Defendant does not cite the specific portion of Nata lie Romine ’s statement w here this can b e found. Ho wever, in our review of Ms. Rom ine’s statem ent, we h ave foun d this part o f her statem ent. W e also note that Ms. Romine testified to the same information during the trial. Th erefor e, sinc e this information was provided to the jury during trial, we do not see that it meets the “materia lity test” of Kyles, 514 U.S . at 434.

(4) In her sta teme nt, Na talie Ro mine told that the De fendan t admitted to Ms. Rom ine that sh e (Defe ndant) h ad attem pted to po ison the vic tim. Defendant contends this wa s excu lpatory eviden ce be caus e it contrad icts the trial testimony of the forensic p atholog ist that there was no evidence of poison in the victim’s b ody.

Again, th ere are n o spec ific citations to th e record in Defen dant’s brie f.

Howeve r, we have reviewed the testimony of the forensic pathologist, Dr. Harlan. As sta ted els ewhe re in this opinion, Dr. Harlan testified that there was no laboratory test for cyan ide poiso n. Howeve r, Dr. Harlan added that if cyanide had been presen t, he would have detected it. In any event, Ms. Romine testified at trial concerning the De fenda nt’s statement to her that she had tried to poison the victim.

Therefore, any benefit of the information in the statement was revealed to the jury, and the refore, it doe s not m eet the “m ateriality test” for e xculpato ry evidenc e.

(5) Defendant asserts that the following portion of Nat alie Ro mine ’s statement is exculpatory: “It was nothing that sh e [De fenda nt] said directly, she just led me to believe that Richard [Romine] had been living with [victim] and that they had not been getting a long, they had b een fighting every single day an d she didn’t -23- know what happened.” Defendant a sserts that this is excu lpatory beca use it is inconsistent with trial testimony of “all other witnesses,” includ ing Richard Romine, who testified that there were only a few minor instances of prob lems with the victim and that he did not hate the victim. How ever, th ere are no cita tions to spec ific portions of the re cord c ontain ing the testim ony of a ll these other w itness es wh ich is purportedly contrary to that portion of Natalie Romine’s statement. This does not meet th e “mate riality test” to be e xculpato ry evidenc e.

(6) Defendant contends that the following portion of the Natalie Romine statement is exculpatory: “Because one of the ver y first thing s that [D efend ant] told me was to tha nk Go d that it hap pened when it did becau se if it would’ve any later she would n’t have had a ny insu rance .” She claim s this is e xculpa tory be caus e it is in direct contrad iction to th e trial tes timon y of Ric hard R omin e that th e victim ’s emplo yer had re cently ren ewed th e insuran ce.

Nata lie Rom ine testified to this specific information during the trial. Therefore, the jury rec eived the benefit of th is informa tion. W e do not feel that this meets the “materiality test” of exculpatory information.

(7) In her next reference to exculpatory material, the Defendant asserts that on page 4 of Natalie Romine’s statement, Romine says that Defendant told her she would be getting $250,000.00 in insurance proceeds when the testimony at trial was that she rece ived $84 ,692.38 in insuran ce proc eeds. H oweve r, contrary to Defe ndan t’s asse rtions in her brief, the statement of Natalie Romine at page 4 states as follows : -24- [Defen dant] told me that she [Defendant] knew that she was gonna get almost exactly $250 ,000 d ollars is what s he ha d to ga in from Olen ’s death and tha t with some insurances combined, she believed that she was gonna receive d ouble ind emnity o n one o f them. S he had some stocks and bo nds through a couple of different places. She had an antique coin collection, um, his truck, the hous e, um , sever al othe r little things.

W e do not see a contradiction between the tes timony at trial and the cited portion of Natalie R omine’s state ment. Th erefore, this is not exculp atory.

(8) Defendant asserts that the statement of Natalie Romine contains information that the victim had be en unfa ithful to the Defendant and that the Defendant and vic tim were experiencing problems with their sexual relationship.

There is no citation to a specific portion of the statement containing this information.

She argues that this information is exculpatory because even though they suggest a motive for De fenda nt to be involved in the killing of the victim, they were “inconsis tent” with testim ony pres ented a t trial. Defendant does not cite to testimony in the record that is inconsistent and does not even mention the names of witnesses who gave in cons istent te stimo ny to this particu lar portion of Ms. R omine ’s statem ent.

Defen dant ha s failed to sh ow that th is is exculpa tory eviden ce.

(9) At page 5 of the state ment o f Natalie Romine, she related that Defendant told her that Richard Romine became angry approximately a year prior to the sta teme nt bein g given and s aid “I’m gonn a kill [victim ] and w hen I d o, I’m gonna blame you [Defendan t].” Defendant as serts that this is exculpatory information contained in the statement of Natalie Romine.

-25- Howeve r, in Defendant’s handwritten supplement to her statement to police given on August 1, 1995, the Defendant included the following: “[A]nother time, Richard told my daughter that he would kill Olen by shooting him. I asked him how he would get away with it. He told me that he would blame it on me saying that I had him do it.” There is no indication that the Defendant’s supplement to her statement to the police was n ot provided to he r well before trial. The information was not undisclosed to Defendant; indeed, she had provided the information herself to the police. Therefore, this does not meet the requirement that the State must ha ve withheld the evidence.

(10) Defendant argues as exculp atory e videnc e the p ortion o f Nata lie Rom ine’s statem ent wh ich inclu ded a co nvers ation w ith Def enda nt whe rein Defendant told Na talie Rom ine tha t the victim deserved to die. She urges this is so because it is inconsis tent with all trial testimony which indicated that the Defendant and the victim had a good relation ship. A gain, th ere is n o citation to the record of inconsistent testim ony. E ven if pro per cita tions w ere m ade, w e fail to see how this meets the ma teriality test for exc ulpatory e vidence .

(11) On page 11 of M s. Rom ine’s statem ent, she te lls of a statement made by the Defendant to another person at the funeral home visitation that R ichard Romine had killed the victim because “Richard’s been smoking a lot of pot . . . that’s why he did it be caus e he’s been smo king a lot of po t.” Defe ndan t conte nds th at this is exculpatory information because it suggests a basis for Richard Romine’s actions in shootin g the victim which did not involve th e Defe ndant.

-26- Natalie Romine testified to this precise information during the trial. The jury therefore received the benefit and was able to give it any weig ht it chose . It, therefore, does not meet the “materiality test” for exculpatory evidence.

(12) The statem ent of Na talie Rom ine conta ins a recita tion of how Ms. Romine found the purported “contract” betwee n Richard Romine and Defendant for Richard Rom ine to k ill the vic tim. De fenda nt ass erts tha t this info rmatio n is exculpatory because the statement mentions that the document consists of two (2) pages while the trial testimony of Natalie Romine is that it was one (1) page, and that the statement says the document had some burned edges, contrary to other testimony at trial. Again, there is absolutely no citation to the record in this case where this purported contradictory evidence is contained in the record. We note, however, that the trial testimony of Natalie Romine is that the pages of the “con tract” were not on both sides, but were two (2) separate pieces of paper. Even if some portion of the statement can be deemed to be contradictory to the testimony of Ms. Rom ine at trial, it does not me et the “m ateriality test” for e xculpato ry evidenc e.

(13) Natalie Romine’s statement also provided that a portion of the “contract” contained information that Richard Romine would drive to the store and call 911.

She claims this is exculpatory bec ause it was “no t mentioned by Richard Romine” nor was it included in the document itself. Again, there are no citations to the record which show this contradicti on. De fenda nt poin ts out th at inclu ded in Nata lie Rom ine’s statement is information that she found a cardboard “bong,” used for smoking marijua na, in the same roo m whe re she h ad foun d the “co ntract.”

Defendant asserts that this is exculpatory because it supports another portion of Ms. Rom ine’s statem ent tha t “Rich ard R omin e was poss ibly motivate d to kill Olen Hall -27- as a result of his drug usage.” An investigator testified at trial that drug parap herna lia was found in a shoe box in a bedroom at Richard Romine’s home.

This information does not meet the “materiality test” for exculpatory evidence.

(14) Defendant next asserts that on pages 19 and 20 of M s. Rom ine’s statem ent, there is contained the exculpatory evidence that Ms. Romine had informed Michael Romine “that he needed to go to the police with the evidence that the Defendant was involved in the death of her husband.” Defendant asserts that this is incon sisten t with M s. Rom ine’s tria l testim ony “th at she did not know enough about the criminal justice s ystem to kno w to wh om in forma tion ab out a c rime s hould be given.” Again, there is no specific citation to the record. In any event, this does not me et the “m ateriality test” of Kyles, 514 U.S. at 434.

(15) In the next instance of purported exculpatory evidence, Defendant asserts, in essence, that certain information not contained in Ms. R omin e’s statement makes the statement exculpatory. Specifically, Defendant argues that information in the testimony of Ms. Romine at trial, that one of Defendant’s trial attorneys advised her to destroy the “co ntract,” is no t containe d in her sta temen t.

W e do not ag ree with the Defendant’s argume nt that this particular exclusion of information in the statement made it exculpatory evidence.

(16) In her brief, D efenda nt states, On page 40, Ms. R omine indicated that at a ce rtain period of time, she was convinced the defendant had no role in the death of her husband.

Certainly, such evidence would be crucial not only for impeachment purposes, but also as exculpatory evidence as the basis for this belief might have form ed a b asis fo r provin g the D efend ant’s in noce nce if known prior to trial. (Em phasis add ed).

-28- We have examined page 40 of Ms. R omine ’s statem ent. The only portion of it that pertains to this issue is as follows :

Q. O.K., so, uh, afte r uh, [Defe ndant] got ba ck in North Carolina, uh, did she have a time to more or less work on you to convince you that she had no part in this?

A. Yes.

Q. Did she do a pre tty good job of that?

A. Yes, she did.

Q. Did she about have you convinced that she didn’t have anything do to with it?

A. She had convinced m e that Mike wa s framing he r. Q. O.K.

A. She didn’t have me convinced that she didn’t have a part in play, she downplayed her part and said that she didn’t know exactly what was going to happen, but Mike let her know that something was going to hap pen a nd the n [victim ] was k illed and she sa id that she had no problem with that. She didn’t care that [victim] was dead because [victim] needed to die, [victim] deserve d to die.

Ms. Rom ine tes tified during the trial to basically the same information.

Therefore, the jury had the ben efit of it, and we do not see how this portion of the statement meets the “materiality test” for exculpatory evidence.

(17) At page 42 of the statem ent, Natalie Romine relayed, in describing the events surrounding the Defenda nt first talking to one of her trial attorneys to retain him, that “Jeff Bradford [a polic e inves tigator] g rabbe d his cr otch a nd he said that he had a real hard-on for the case and he wasn’t going to rest until [Defendant] was behind bars.” D efend ant co ntend s that th is is exc ulpato ry evide nce b ecau se it “sugge sts bias on the part of the law enforcement officials conducting the investigatio n.” She po ints out tha t this is attributed to the same law enforcement -29- officer who supposedly told Michael Romine that he could obtain custody of the Defe ndan t’s children and all of her mo ney if he su pplied en ough in formatio n to implicate the Defendant in the death of her husband.

Again, all of this information was brought out during the trial in the testimony of Natalie Romine. It does not meet the “materiality test” for exculpatory evidence.

(18) Defendant asserts that a portion of the statement of Natalie Romine is exculpatory because it contradicts Romine’s testimony at trial that one of Defendant’s lawyers instructed Defendant to destroy the “contract.” At trial, Ms. Romine testified during cross-examination in part as follows:

Q. Let me stop you right there. I d on’t me an to interru pt you, but that’s one thing I want to know.

You’re telling this jury that [Defendant] told you that [defense counsel] told her to destroy a piece of evidence?

A. [Defen dant] was on the cordless phone talking to it just like this.

On ou r cordless phone , you can hear in an other roo m.

Q. Are you telling this jury under oath that you heard [defense counsel] tell her to destroy a piece of evidence?

A. That I pe rsonally he ard that.

In her statem ent, Ms. Romine related that Defendant said her lawyer had said not to do a nything with the “contra ct,” that h e was going to sen d his associate to retrieve the document. She also indicated that she h eard the defens e lawyer s tate that his associate “will be in Raleigh [North Carolina] tomorrow first thing on a plane.”

-30- Nata lie Romine also testified at the trial that the lawyer’s associate would be in Raleigh, North Carolina to retrieve the contract. Any contradictions in the statement and/or th e testimo ny were put befor e the jury. E ven if a portion of the statement has an irreconcilable contradiction in testimony at trial, this would not normally be known to the prosecution until the witness testified at trial. Therefore, if it were exculpatory, that fact co uld not be known until the trial. In any event, we do not feel that this meets the “materiality test” for exculpatory evidence.

W e have examined the Defendant’s claims of withheld exculpatory evidence in Nata lie Romine’s statement cumulatively. It is our conclusion that there was not a violation of Brady by the prosecution in the particular instances relied upon by the Defendant in the typewritten statem ent of Na talie Rom ine. In addition, we find that the delay in providing the sixty-nine (69) page statem ent of N atalie R omin e, even if the material were exculpatory, did not itself cause prejudice . Smith , slip op. at 13; Ewing, slip op. at 7-8 ; Inman, slip op. at 10 .

III. TBI REPORT OF SPECIAL AGENT DONNA PENCE

Concerning this issue of alleged exculpatory material, Defendant refers to a portion of the “statement of the facts” in her brief to delineate examples of exculpatory material contained in a typewritten report of Special Agent Pence. This report was n ot disc losed to Def enda nt until a fter trial, having been placed under seal by the trial cour t during the trial, and un sealed after the verdict upon motion of Defen dant. Wh ile Defendant does specify various purported examples of exculpatory information and inconsistencies between the TBI report and trial testimony or other portions of witness statements, there are absolutely no references -31- to the record specifying at what page of a statement or trial testimony the inconsistencies with the TBI statement occur. However, we have reviewed the examples of alleged exculpatory information and find that for the most pa rt, they are covered in Defen dant’s allegations of exculpatory material contained in the sixty-nine (69) page s worn sta temen t given by N atalie Ro mine to the private investigator. The ones that are not specifically contained in Natalie Romine’s statement to the investigato r are not Brady material beca use they are n ot “material.”

Howeve r, we do find tha t it was error for the State to not prod uce at lea st a portion of Age nt Pen ce’s re port to D efend ant afte r Nata lie Rom ine tes tified as it is Jencks material. Included within the definition of a “statem ent” of a witn ess in R ule 26.2(g) of the Tennessee Rules of Criminal Procedure is the following: (1) A written s tatem ent m ade b y the witn ess th at is signed or otherwis e adop ted or ap proved b y the witne ss . . . .

The second paragraph of the first page of the TBI report by Agent Pence states as follows: (Age nt’s Note: The first portion of the statement was written by Mrs. [Natalie] Rom ine prior to our arrival and turned over to this agent after the oral inte rview).

The remaining portion of the first page of the report, the secon d and third typewritten pages of the report and the first paragraph of the fourth page of th e report are indica ted to be a verbatim transcript o f the written statem ent of N atalie Romine provided to the TBI agent. In fact, at the end of this quotation from the written state ment is typ ed “(En d of written s tateme nt).”

-32- There is no doubt that this portion of Agent Pence’s report contains a written statement of Natalie Romine which should have been provided to defense counsel no later than after the direct examination of Natalie Romine. The prosecution cannot incorpo rate a witness’ statement, as defined by Rule 26.2(g), into a law enforcement report and thereby avoid the requirement to provide the statement to defense counsel as provided in Rule 26.2.

It appears from the record that there was some amount of confusion during the jury out hearing concerning disclosure of this report by TBI Agent Pence. At one point, the district attorney announced as follows:

Mr. McCown: Let me add something to them. That is exac tly right.

It [the statement given to Pence by Na talie Romine] is a 13 ½ page part of a journal that Natalie Romine wrote out in her own handwriting. I have g ot it. It is Jencks material at the time, and if and when she [Natalie R omine ] testifies, I will give it to the m.

Subs eque ntly in the jury out hearing, it appears that the following colloquy occurred between one of the defens e coun sel, the assistant district a ttorney particip ating in the trial, and the cour t: Mr. Fraley [defen se co unse l]: My qu estion is: After s he [N atalie Romine] testifies, can I ask for that [Pence] report that she gave a statement on as Jencks material at that - - Mr. Barnard [assistant district attorney]: The State objects.

The C ourt: I have already ru led that appare ntly she d id not adopt that as her own statement, that particular statem ent. There may be, according to the State, portions - - or they may be in possession of other information that she has adopted that they say they are only going to supply to you after sh e [Na talie Rom ine] testifies.

-33- Mr. Fraley: If I had the report , it would help me in my cross- examination. “Did you tell her this? Did you tell her this?”

The C ourt: You will be given an opportunity to review any Jencks materia l that is provide d to you. B ut there has to be some rule that you are entitled to it. You are correct. It would be helpful to yo u to have that.

But I do not know of any rule that provides they must give it to you based u pon wha t I have heard today.

Are we ready to proceed?

Mr. Barnard: Yes.

The jury was called back into the court and the trial proceeded.

W e have reviewed this statement by Natalie Romine, and while there are some incon sistencies, they appear to be minor and/or were brought out within the sixty-nine (69) page sworn statement of Natalie Romine to the investigator or during her trial testimony. The error which resulted by the failure of compliance with R ule 26.2 of the Tennessee Rules of Criminal Procedure is harmless beyond a reasonab le doubt. Ten n. R. App. P. 3 6(b); Tenn. R . App. P. 52(a);

PERJURED TESTIMONY

Defendant argues that the trial court erred in failing to grant a new trial for the Defendant when it was demonstrated that Natalie Romine committed perjury during her testimony at trial. Specifically, Defendant points to the fact that when questioned as to her history of arrest, she claimed to have been arrested on only two (2) occasions, one o f which was a “mista ke”. H owev er, follow ing the Defe ndan t’s conviction, evidence was discovered that Ms. Romine was not arrested “by mistake”

-34- for theft of a car batte ry and had also been convicted of numerous other offenses including second d egree trespa ss and driving offenses. Furthermore, when questioned as to her history of experience with law enforcement, Natalie Romine failed to reveal her husband’s extensive arrest record. The State counters that even if the Defe ndant could have impeached this witness with the newly discovered evidence, the outcome of the trial would have been the same.

The trial court has the sound discretion in determining whether to grant a new trial on the ba sis of new ly discovere d eviden ce. State v. Goswick, 656 S.W.2d 355, 358 (Tenn. 198 3) (citations omitted). In ord er to acquire a new trial, the defendant must demonstrate: (1) reasonable diligence in seeking the newly discovered evidence; (2) materia lity of the evidence; and (3) that the evidence will likely change the result of the trial. Goswick, 656 S.W.2d at 358-60. Upon consideration of the newly discovered evid ence in this case , the trial court refused to gra nt a new trial.

New ly discov ered im peac hme nt evide nce, a s a ge neral rule, will not con stitute grounds for a new trial. State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993).

Howeve r, if the impeaching evidence is so crucial to the defendant’s guilt or innoc ence that its a dmis sion w ill proba bly result in an acquittal, a new trial may be ordered . Id. (citations om itted).

W hile the trial c ourt fou nd tha t Defe ndan t exerc ised re ason able d iligenc e in the search for eviden ce, it did not find that th e imp each men t eviden ce of N atalie Romin e’s prior convictions was so material as to change the result of the Defe ndan t’s trial. While this evidence may have discredited the testim ony of N atalie Romine, she was not the only witness testifying against the Defendant and her involvement in the murder of the victim. We agree with the trial court that, even if the -35- jury had h eard th is new ly disco vered evidence, a different resu lt would not have followed.

SUFFICIENCY OF THE EVIDENCE

Defendant argues that due to the State’s Brady violations and th e new ly discovered evidence of Natalie Romine’s perjury which constituted grounds for impea chme nt, that the remaining testimony of the two accomplices, Michael and Richard Rom ine, is insuffic ient to s ustain the De fenda nt’s convic tion. W e have held contrary to Defendant’s assertions on these issues. Also, as the trial court stated, “Nata lie Rom ine wa s not a lynch p in witness. T he State presented other witnesses, the most damning of which were the Defendant’s son and brother who each related the Defen dant’s gu ilt.” There was m ore than sufficient evid ence o f Defend ant’s guilt.

This issu e is withou t merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ L.T. LAFFERTY, Special Judge

-36-