Deshawn Lamar Baker v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 13, 2016 Session

DESHAWN LAMAR BAKER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2009-B-1373 Mark J. Fishburn, Judge
___________________________________

No. M2015-02152-CCA-R3-PC – Filed January 23, 2017
___________________________________

Petitioner, Deshawn Lamar Baker, appeals the lower court‟s order denying post-
conviction relief from his convictions for aggravated robbery, conspiracy to commit
aggravated robbery, and being a felon in possession of a handgun. On appeal, Petitioner
argues that trial counsel provided ineffective assistance and that the State withheld
exculpatory evidence, violating his right to due process under Brady v. Maryland, 373
U.S. 83 (1963). Upon our review of the record and applicable authorities, we affirm the
judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

John Tennyson (at hearing and on appeal) and James Wiggington (at hearing), Nashville,
Tennessee, for the appellant, Deshawn Lamar Baker.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

Over seven years ago, Petitioner was convicted by a Davidson County jury of
aggravated robbery, conspiracy to commit aggravated robbery, and being a felon in
possession of a handgun. He received a sentence of eighteen years. On appeal, Petitioner
argued that the evidence was insufficient to support his convictions and that the State
committed prosecutorial misconduct by failing to disclose key evidence in a timely
manner. State v. DeShawn Lamar Baker, No. M2011-00946-CCA-R3-CD, 2013 WL
1279180 (Tenn. Crim. App. Mar. 28, 2013), perm. app. denied (Tenn. Sept. 10, 2013).
This Court determined that Petitioner had waived the claim of prosecutorial misconduct
by failing to make a contemporaneous objection. Id. at *8. We also held that the
evidence was sufficient to support Petitioner‟s convictions and affirmed the judgment of
the trial court. Id.

I. Trial

The proof presented at trial showed that in July 2008, the victim, Andrew
Osborne, was shopping at Jimmy‟s Bi-Rite in Nashville before returning to the parking
lot. As he was walking to his car, he was approached by two African-American males,
later identified as Petitioner‟s codefendants, John Peoples and Bobby Beples,1 who was a
juvenile at the time. The victim opened his car door and sat down. Mr. Peoples pulled a
gun out of his waistband and pointed it at the victim‟s head, saying “Let‟s go, come up
off your shit, give me your stuff.” The victim emptied his pockets, dropping his keys,
wallet, cell phone, and some coins on the ground. Both men grabbed the items, except
for the victim‟s cell phone. Mr. Peoples began patting the victim down, but then he and
Mr. Beples ran off when a van pulled up next to them. The victim retrieved his phone
from under the car, ran into the store to tell the clerk that he had just been robbed, and
called 911.

The victim testified that, prior to the robbery, he had noticed the two men in the
store along with a third male, later identified as Petitioner. He testified that Petitioner
was wearing a green hat and a white shirt and that Petitioner had been “eyeing” him
while he was in the store. The victim testified that Petitioner was “walking past [the
victim] and like looking over, looking at [the victim].” When the police arrived, the
victim gave them a description of Petitioner “because that‟s who [he] first remembered
vividly as being in the store.” The victim was able to recover his wallet after someone
found it, but it was empty.

Officer Mike Abbott of the Metropolitan Police Department testified that he
responded to the robbery at Jimmy‟s Bi-Rite. He spoke to the victim, who provided a
description of the suspects. He also viewed the store‟s surveillance video for the time of
the robbery. The victim identified himself and Petitioner on the surveillance footage.
Officer Abbott radioed other officers to be on the look-out for at least two suspects, one
of whom was described as wearing a green hat and a white shirt.

1
This individual‟s name is spelled “Pebbles” in the indictment and “Peebles” in the direct appeal
opinion, the post-conviction court‟s order, and Petitioner‟s appellate brief. However, during the post-
conviction hearing, he testified that his name was spelled “Beples,” and that is the name we will use
throughout this opinion.
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 On the day of the robbery, Petitioner and his codefendants went to the home of
Lena Boleyjack and her children in order to wish the eldest daughter a happy birthday.
Ms. Boleyjack testified that Mr. Peoples and Mr. Beples left but that Petitioner was
sitting on her porch when “police cars started coming around.” Ms. Boleyjack told
Petitioner several times not to go into her house, but he ran inside when the police
surrounded the house. Ms. Boleyjack‟s daughter, Sharon Campbell, testified that
Petitioner ran upstairs to one of the bedrooms. Ms. Boleyjack testified that, to her
knowledge, Petitioner and his codefendants had not gone upstairs prior to the police
arriving. The police surrounded the house to prevent Petitioner from escaping out the
back. The police ordered Petitioner several times to come out of the house over the
loudspeaker before Petitioner walked out and was taken into custody. Petitioner was still
wearing a green hat and a white shirt. After Petitioner was arrested, police located Mr.
Peoples and Mr. Beples about six blocks away from the Boleyjack residence.

The police recovered a gun from under a mattress in one of the upstairs bedrooms
in the Boleyjack residence. Ms. Boleyjack testified that no one in her family owned a
gun. Several months later, Ms. Campbell was cleaning under a dresser in her bedroom
when she found a wallet underneath it. She gave the wallet to her mother, who
discovered that it contained both Petitioner‟s identification as well as the victim‟s driver‟s
license. The wallet was found in a different bedroom from where the gun had been
found. Ms. Boleyjack turned the wallet over to the police. Photographs of the wallet‟s
contents were entered into evidence, but the actual wallet was lost sometime before the
trial.

After Petitioner was apprehended, Detective William Stewart drove the victim to
the Boleyjack residence where he identified Petitioner as one of the individuals who
robbed him. Detective Stewart then drove the victim to where Mr. Peoples and Mr.
Beples had been located, and he identified them as well. Detective Stewart later
conducted a recorded interview of Petitioner. Petitioner admitted that he was in the store
with Mr. Peoples and Mr. Beples but denied any involvement in the robbery. Petitioner
stated that he left the store and that, when he met up with the two men later, he suspected
that they had done something because Mr. Peoples had a wallet and a gun and Mr. Beples
had a set of keys. Petitioner denied hiding the gun in the Boleyjack residence.

Mr. Peoples testified for the State. He admitted that he pled guilty to aggravated
robbery for the incident at Jimmy‟s Bi-Rite. Mr. Peoples stated that he did not remember
either the statement he gave to Detective Stewart or the statement of the facts read by the
prosecutor at his plea hearing. After consulting with an attorney and having his memory
refreshed with the transcript of his plea hearing, Mr. Peoples gave the following account
of what transpired during the robbery.

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 Mr. Peoples testified that Petitioner and Mr. Beples went into the store while he
remained outside talking to someone who wanted to buy some pills. Petitioner and Mr.
Beples eventually came out of the store and joined Mr. Peoples in the parking lot. Mr.
Beples stated, “Guy in there got some cash,” and Petitioner gave Mr. Peoples a gun. Mr.
Peoples admitted that he and Mr. Beples robbed a man and fled the scene. The two men
were later apprehended at Mr. Peoples‟s grandmother‟s house.

Mr. Peoples denied that he pointed the gun at the victim or that he “stuck the gun
in the man‟s face.” Mr. Peoples testified that he simply showed the gun to the victim.
He told Detective Stewart that he had given his gun to Petitioner earlier. Mr. Peoples
testified that he did not know what happened to the contents of the victim‟s wallet
because Mr. Beples picked it up. Mr. Peoples testified that he had known Petitioner for
only two weeks before this incident. Mr. Peoples admitted that he and Mr. Beples met up
with Petitioner at the Boleyjack residence after the robbery.

Mr. Peoples testified that much of his statement to Detective Stewart was “made
up” because he was afraid that he would be “locked up” by himself. Mr. Peoples
admitted that he agreed with the State‟s statement of the facts at his guilty plea hearing
but testified that he did so because he was afraid that he would get more jail time for
lying. On cross-examination, Mr. Peoples testified that he had been in the upstairs
bedrooms of the Boleyjack residence before. Mr. Peoples also admitted that he had never
spoken to trial counsel prior to his testimony.

II. Motion for New Trial

At the hearing on Petitioner‟s motion for new trial, Mr. Peoples testified that he
was sentenced to eight years on his plea to aggravated robbery. Mr. Peoples wrote an
affidavit in April 2010, stating that the prosecutor told him that he was facing twenty to
thirty years but offered the eight-year plea deal in exchange for his testimony against
Petitioner. Mr. Peoples testified that Petitioner did not coerce him into writing the
affidavit. Mr. Peoples stated that his testimony at trial that Petitioner handed him the gun
before the robbery was false and that Petitioner was not present when he and Mr. Beples
robbed the victim. Mr. Peoples testified that a prosecutor told him what to say and that
he felt that he had to go along with it to avoid additional jail time. Prior to accepting his
plea, Mr. Peoples had been told that Petitioner would testify against him. Mr. Peoples
said that he lied on the witness stand in order to get a better deal.

The prosecutor testified that he never had any contact with Mr. Peoples without
his attorney present. He testified that he discussed the possibility of Mr. Peoples‟s
testifying against Petitioner but that it was never a formal part of the plea deal. The
prosecutor testified that Mr. Peoples acted confused and was lying at the beginning of his
testimony during Petitioner‟s trial. The trial court appointed an attorney to discuss with
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Mr. Peoples the possibility of being charged with perjury prior to Mr. Peoples resuming
his testimony and implicating Petitioner. The prosecutor testified that after Mr. Peoples
pled guilty, it would not be possible for any member of the District Attorney‟s Office to
change the agreement.

III. Post-Conviction Hearing

In June 2014, Petitioner filed a petition for post-conviction relief. Counsel was
appointed, and an amended petition was filed on October 27, 2014. A second amended
petition was filed on March 4, 2015. Petitioner alleged that he had received ineffective
assistance of counsel when trial counsel failed to adequately investigate the case and
prepare for trial, including speaking to witnesses and Petitioner‟s codefendants; failed to
communicate plea offers to Petitioner or explain to Petitioner the concept of criminal
responsibility; failed to provide Petitioner with a copy of the discovery materials; and
failed to request a continuance or object to the admission of late-disclosed evidence,
thereby waiving the issue on appeal. Petitioner also requested a writ of error coram nobis
based on the State‟s alleged failure to turn over exculpatory evidence under Brady,
namely a supplemental police report containing the statement of an independent third-
party witness. A post-conviction hearing was held in July of 2015.

At the hearing, Mr. Peoples testified that he had been warned not to commit
perjury during his testimony against Petitioner at trial. Mr. Peoples identified the
affidavit he signed, and it was entered into evidence. Mr. Peoples testified that his trial
testimony against Petitioner was false. Mr. Peoples stated that he lied during the trial
because the prosecutor threatened him with twenty to thirty years‟ incarceration. Mr.
Peoples denied knowing that his testimony at Petitioner‟s trial could not affect his plea
deal.

Mr. Peoples further stated that, before the robbery, Petitioner told him that he had
left his wallet at home. Mr. Peoples offered to go back to retrieve Petitioner‟s wallet;
however, Mr. Peoples never returned the wallet to Petitioner. Mr. Peoples testified that
he had been to the Boleyjack residence before because he was dating one of the
daughters. Mr. Peoples testified that he left his gun at a friend‟s house after the robbery.
Mr. Peoples denied that Petitioner ever had a gun.

On cross-examination, Mr. Peoples did not recall testifying that Mr. Beples picked
up the victim‟s wallet and that Mr. Peoples never touched the victim‟s property. He
testified that it was possible that Mr. Beples might have given him “the [victim‟s] stuff”
when they met up at “the girl‟s house.” Mr. Peoples testified that he hid the gun and
Petitioner‟s wallet behind a dresser in an upstairs bedroom of the Boleyjack residence.

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 Mr. Beples testified that he was fourteen or fifteen years old when he witnessed
his cousin, Mr. Peoples, commit the robbery. Mr. Beples did not see Petitioner give the
gun to Mr. Peoples and did not know where Mr. Peoples got the gun. Mr. Beples denied
that either he or Mr. Peoples were ever in possession of Petitioner‟s wallet. Mr. Beples
denied his own involvement in the robbery but admitted that he accepted a plea
agreement in juvenile court for this incident. Mr. Beples testified that he fled after
witnessing Mr. Peoples commit the robbery, that he went straight to his grandmother‟s
house, and that he did not recall going to the Boleyjack residence. Mr. Beples also
testified that his memory of the incident was “spotty” because of his heavy drug use at
the time. Mr. Beples testified that he was never contacted by Petitioner‟s trial counsel.

Trial counsel testified that he had been practicing law for nearly twenty years and
that almost all of his practice was criminal defense. Trial counsel testified that he had
represented Petitioner on several prior occasions and was retained to represent Petitioner
in this case. However, trial counsel testified that he was going through a divorce from his
wife at the time and was also one of the primary caregivers for his terminally ill father.
Trial counsel testified that he had a heavy caseload, including three or four non-capital
first degree murder cases. However, trial counsel believed that he spent “an appropriate
amount of time with [Petitioner‟s] case.”

Trial counsel knew that Petitioner was being tried under a theory of criminal
responsibility. His trial strategy was to argue that Petitioner did not have the gun and did
not commit the robbery. Trial counsel testified that he explained the concept of criminal
responsibility to Petitioner in layman‟s terms and that he thought that it was “clear” that
Petitioner understood their discussion. Trial counsel explained that he did not pursue an
alibi defense because Petitioner admitted that he was at the store.

Trial counsel testified that his investigation of this case consisted of his going
through discovery materials, watching the surveillance footage, and going to the scene of
the crime. Trial counsel admitted that he did not speak to “very many” witnesses. Trial
counsel testified that he spoke to Petitioner once or twice while Petitioner was in jail and
that his legal assistant also spoke to Petitioner; however, trial counsel‟s name did not
appear on the jail log of attorney visits. Trial counsel testified that he typically did not
give incarcerated clients all of the discovery materials because of the risk of other
inmates reading it and interfering with the case. Trial counsel testified that he went over
all of the discovery materials with Petitioner but that he did not recall if certain
statements were missing from the discovery.

Trial counsel testified that the prosecutor communicated “a couple” of plea offers,
including one for six years followed by one for eight years closer to trial. Trial counsel
testified that Petitioner rejected the plea offers because they involved sentences to serve.
Trial counsel testified that he conveyed all plea offers to Petitioner but that Petitioner
-6-
maintained his innocence. Trial counsel did not believe that any offer that included jail
time would be acceptable to Petitioner and strongly believed that they would prevail at
trial.

Trial counsel testified that he was informed by the prosecutor late in the discovery
process about a wallet being found that allegedly belonged to Petitioner. Trial counsel
recalled seeing pictures of the wallet but not the actual wallet. He did not seek a
continuance after learning about the existence of the wallet or make a contemporaneous
objection to the admission of the photographs of the wallet‟s contents during trial. Trial
counsel explained that he did not see a good-faith basis for objecting. Trial counsel told
Petitioner that the wallet was a significant piece of evidence that they would have to
explain at trial.

Trial counsel testified that he did not speak to either of Petitioner‟s codefendants
prior to their respective guilty pleas because their attorneys would not allow him to speak
to them. Trial counsel admitted that he also did not speak to either codefendant after they
had entered their pleas. Trial counsel testified that the codefendants‟ statements to police
were contained in the discovery and were not helpful to Petitioner‟s case. Based on
information that trial counsel had, he did not believe either codefendant would testify
against Petitioner. When trial counsel learned shortly before trial that Mr. Peoples would
be a witness for the State, he did not seek a continuance or object to his testifying.

Trial counsel did not recall receiving in the discovery a supplemental police report
documenting Officer Abbott‟s interview with a witness at the scene named Angela
Clegget. According to the supplement, Ms. Clegget pulled into the parking lot of the
store as the robbery was in progress. However, Ms. Clegget did not know until she later
spoke to Officer Abbott that what she had witnessed was a robbery. She described a
black male wearing a black shirt, dark hat, and shorts. She saw this man pull up his shirt
and display a pistol in his waistband. Then she saw this man and another subject run off
in different directions. Trial counsel agreed that Ms. Clegget‟s description of what she
witnessed was consistent with Mr. Peoples‟s trial testimony that he did not point his gun
at the victim but simply showed it to him. Trial counsel testified that if he had known
about Ms. Clegget‟s statement, he would have attempted to interview her to determine if
she could be helpful to Petitioner‟s case as the only known independent witness. Trial
counsel acknowledged that the officer who prepared the report, Officer Abbott, testified
at trial and that his supplement would have constituted Jencks material.2

Petitioner testified that he was not present during the robbery and that he was not
involved. Petitioner admitted that he walked to the store with his codefendants.

2
See Jencks v. United States, 353 U.S. 657 (1957); Tenn. R. Crim. P. 26.2 (commonly referred to
as the Tennessee Jencks Act).
-7-
Petitioner was planning to buy some cigars but received a phone call and went outside.
Petitioner then left the store about five minutes before his codefendants and eventually
went to the Boleyjack residence. Petitioner wished Ms. Boleyjack‟s daughter happy
birthday, then got something to drink and sat on the porch. Petitioner testified that he
went back into the house before he heard the police outside calling his name “on a PA
system.” Petitioner ran into a bathroom to dispose of ecstasy pills that he had in his
possession before surrendering to the police. Petitioner testified that the victim then
“pointed at me and said I was the one that robbed him.”

Petitioner testified that he only discussed “bits and pieces” of the case with trial
counsel. Petitioner called trial counsel several times, but trial counsel never answered the
phone. Petitioner requested that trial counsel provide him with discovery materials on
several occasions, but he did not receive a complete copy of the discovery until after his
sentencing hearing. On one occasion, Petitioner spoke to trial counsel‟s secretary, who
told him that trial counsel was “too good to give out discoveries.” During the ten months
between Petitioner‟s arraignment and trial, Petitioner was brought to court a number of
times but often did not see or speak to trial counsel. Petitioner did not know the status of
his case or what the evidence against him would be at trial. Petitioner testified that he
had known trial counsel for a long time and “that wasn‟t the [trial counsel] that [he] knew
when [he] was being represented” in previous cases.

Additionally, trial counsel did not inform Petitioner until the day before trial of the
wallet discovered at the Boleyjack residence. Petitioner testified that he had his wallet in
his possession and could only speculate that he dropped it while in the Boleyjack
residence. Petitioner did not deny that the wallet found belonged to him. Petitioner did
not know how the victim‟s identification got into his wallet and denied that Mr. Peoples
was ever in possession of his wallet. Petitioner agreed that trial counsel told him that the
wallet “was going to be the hardest thing of the defense.” Petitioner asked trial counsel
to request a continuance, but trial counsel said that the prosecutor would not agree to it.
Other than the wallet, Petitioner did not know what the evidence against him would be at
trial. Petitioner did not know he was being tried under a theory of criminal responsibility
until the prosecutor began explaining it to the jury. Petitioner also did not learn that Mr.
Peoples would be testifying against him or the substance of his testimony until he took
the witness stand at trial.

Petitioner testified that trial counsel never spoke to him about any plea offers.
Petitioner was informed of a potential plea offer by Mr. Peoples‟s attorney, wherein
Petitioner would be sentenced to twelve years and Mr. Peoples would be sentenced to
eight years. Petitioner was also informed of a plea offer for six years by an “associate” of
trial counsel in March. However, Petitioner did not accept that offer because he was told
that “there wasn‟t no evidence against [him].” Petitioner testified that if he had known

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about the evidence that would be used against him at trial, he would have taken the six-
year offer.

Ms. Clegget testified during the evidentiary hearing, but her testimony is not
included in the transcript. The appellant bears the burden of preparing an adequate
record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn.1993), which includes
the duty to “have prepared a transcript of such part of the evidence or proceedings as is
necessary to convey a fair, accurate and complete account of what transpired with respect
to those issues that are the bases of appeal,” see Tenn. R. App. P. 24(b). Failure to do so
risks waiver of the issue. Id. In the absence of an adequate record on appeal, this Court
must presume that the post-conviction court‟s summary of Ms. Clegget‟s testimony
contained in the order denying relief is accurate. See State v. Caudle, 388 S.W.3d 273,
279 (Tenn. 2012) (citing State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991))
(creating a “presumption that the missing transcript would support the ruling of the trial
court”). Ms. Clegget agreed with the substance of her statement to Officer Abbott
contained in the supplemental police report. Ms. Clegget testified that she did not get a
good look at the robbery because it happened quickly. She did not see property taken or
a gun pointed at the victim. She did not see anyone wearing a white shirt and a green hat.
Ms. Clegget testified that she was never contacted by either the prosecutor or trial
counsel and that if she had been contacted sooner, she might have remembered more
details.

In the order denying relief, the post-conviction court found that trial counsel was
experiencing several personal problems and had a heavy caseload during his
representation of Petitioner. As to the allegation that trial counsel failed to adequately
investigate the case and prepare for trial, the post-conviction court found that trial counsel
never interviewed either of Petitioner‟s codefendants, even after learning that one of them
would be testifying for the State at trial. Trial counsel also did not interview any of the
other State‟s witnesses, did not visit Petitioner in jail, did not present testimony at
Petitioner‟s bond hearing, and did not inform Petitioner of the status of his case until the
day before trial. The post-conviction court found that trial counsel did explain the theory
of criminal responsibility to Petitioner.

The post-conviction court found that trial counsel knew about the existence of the
wallet found at the Boleyjack residence four to six weeks before trial but did not discuss
it with Petitioner until the eve of trial.3 The post-conviction court found the wallet to be
“highly inculpatory” and trial counsel‟s failure to even discuss it with Petitioner to be
“inexplicable.” Trial counsel believed that he could argue that the wallet may have been

3
The post-conviction court noted that according to the trial testimony, the wallet was turned over
to police in October 2008 and that it was unclear why there was an approximately eight-month delay in
the State providing the evidence to trial counsel.
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manipulated because it was found well after Petitioner‟s arrest. However, the post-
conviction court found this theory to be “pure conjecture” because trial counsel did not
conduct an investigation to provide an evidentiary basis for it. Trial counsel did not seek
a continuance or object at trial to either the admission of the wallet or the testimony of
Mr. Peoples, who was a late addition to the State‟s witness list, thereby waiving the issue
on appeal.

The post-conviction court agreed with Petitioner‟s allegation that trial counsel
failed to adequately communicate with him. The post-conviction court found that trial
counsel “had some substantive discussions about the merits of the State‟s case with the
general consensus of both parties that the State‟s case was relatively weak.” Petitioner
rejected plea offers presented to him based on this assessment of the evidence. The post-
conviction court found that trial counsel failed to communicate with Petitioner once he
became aware of the existence of the wallet and the fact that Mr. Peoples would be
testifying for the State until the eve of trial. The post-conviction court found that trial
counsel‟s failure to discuss “clearly inculpatory evidence” with his client during the
process of plea negotiations to be “objectively insupportable by any applicable standard
of attorney performance.”

However, the post-conviction court found that trial counsel‟s deficient
performance did not undermine the reliability of the trial outcome. Petitioner did not
present any evidence that trial counsel‟s interviewing Mr. Peoples or any subsequent
follow-up investigation would have resulted in the development of exculpatory evidence
or led to a different outcome at trial. The post-conviction court found that Mr. Peoples
gave “varying versions of the robbery from the outset of this case and his various
versions contain numerous inconsistencies.” The post-conviction court determined that
Mr. Peoples‟s testimony at the evidentiary hearing “was so incredulous that the Petitioner
himself refuted his account of the events.” Additionally, Petitioner did not provide a
legal basis to exclude the wallet from evidence and did not provide an alternative
explanation of how the victim‟s identification came to be inside it. As to trial counsel‟s
failure to adequately advise Petitioner regarding any plea offers, the post-conviction court
found Petitioner‟s testimony that he would have accepted a plea offer if he had known of
the evidence against him “to be suspect” and that there was no evidence that the plea
offer was even still available.

As to the alleged Brady violation, the post-conviction court found that Petitioner
had failed to prove that trial counsel requested the supplemental report from the State,
that the State suppressed the evidence, or that the statement would be favorable or
material to his defense. Even though “Ms. Clegget was not listed as a witness and her
name was not referenced in any of the available discovery,” the post-conviction court
found that trial counsel could have found her through reasonable investigation after
Officer Abbott testified but that he did not make a request for Jencks material. The post-
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conviction court noted that Ms. Clegget‟s testimony would have been favorable to
Petitioner because she did not see him at the scene but that her testimony would not have
“exonerate[d] [Petitioner] from providing the gun and instructions to Mr. Peoples” before
the robbery. Petitioner argued that Ms. Clegget‟s testimony could have been used to
impeach the victim‟s statement that Mr. Peoples pointed the gun at him, but the post-
conviction court found this claim to be “without merit” because her statement did not
“directly refute” the victim‟s account.

As to Petitioner‟s request for a writ of error coram nobis, the post-conviction court
found that Ms. Clegget‟s statement qualified as newly discovered evidence. Post-
conviction counsel argued that the supplemental police report was not discovered until
September 2014, which the State did not dispute. However, the post-conviction court
found that Petitioner did not establish that he was without fault in failing to present the
evidence in a timely manner because trial counsel could have requested the report as
Jencks material after Officer Abbott testified. Additionally, the post-conviction court
found that “Ms. Clegget‟s testimony would not have led to a different result.”

Analysis

On appeal, Petitioner argues that he received ineffective assistance of counsel and
that the State violated his right to due process under Brady by failing to turn over
exculpatory evidence, namely the police report containing Ms. Clegget‟s eyewitness
statement. We shall address each issue in turn.

I. Standard of Review

Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). This Court will review
the post-conviction court‟s findings of fact “under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of
law and application of the law to the facts are reviewed under a purely de novo standard,
with no presumption of correctness. Fields, 40 S.W.3d at 458.

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 II. Ineffective Assistance of Counsel

Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel‟s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v.
State, 960 S.W.2d 572, 580 (Tenn. 1997).

The test for deficient performance is whether counsel‟s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. While “[n]o particular set of
detailed rules for counsel‟s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding
how best to represent a criminal defendant,” courts may consult the American Bar
Association‟s Standards for Criminal Justice and Tennessee Supreme Court‟s Rules of
Professional Conduct in evaluating an attorney‟s performance. Strickland, 466 U.S. at
688-89; see also Baxter, 523 S.W.2d at 932. “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Id. at 691. In order to put the State to its proof, counsel “should interview
not only his own witnesses but also those that the government intends to call, when they
are accessible.” Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (quoting Baxter, 523
S.W.2d at 932-33). Additionally, counsel has a duty to communicate with the defendant
regarding the evidence against him and the status of the case in order for the defendant to
make reasonably informed decisions. See Tenn. Sup. Ct. R. 8, RPC 1.4. “Counsel
should confer with his client without delay” and “should discuss fully potential strategies
and tactical choices with his client.” Id. Counsel also has a duty to timely communicate
formal plea offers to a defendant, see Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012), and
to render effective assistance in advising a defendant whether to accept a plea offer, see
Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012).

This Court must evaluate questionable conduct from the attorney‟s perspective at
the time, Hellard, 629 S.W.2d at 9, and “should indulge a strong presumption that
counsel‟s conduct falls within the wide range of reasonable professional assistance.”
State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to
second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
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Crim. App. 1994), even if a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).
“The fact that a particular strategy or tactic failed or hurt the defense does not, standing
alone, establish unreasonable representation.” House v. State, 44 S.W.3d 508, 515 (Tenn.
2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to the tactical
decisions of trial counsel is dependent upon a showing that the decisions were made after
adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Even if a petitioner shows that counsel‟s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel‟s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, but for counsel‟s unprofessional errors,
“the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463
(quoting Strickland, 466 U.S. at 694). The petitioner is not required to show that he
would have been acquitted; a showing of a “reasonable probability of being found guilty
of a lesser charge, or [receiving] a shorter sentence” is sufficient to satisfy the prejudice
prong. Brimmer v. State, 29 S.W.3d 497, 508 (Tenn. Crim. App. 1998).

The post-conviction court determined that trial counsel‟s performance was
deficient when he failed to investigate and discuss key evidence with Petitioner. Trial
counsel knew about the discovery of Petitioner‟s wallet for four to six weeks but did not
discuss it with Petitioner until the eve of trial. Trial counsel also failed to conduct any
investigation to support his theory that the wallet could have been tampered with prior to
its discovery. Additionally, trial counsel failed to interview Mr. Peoples even after he
had entered his guilty plea and was no longer represented by counsel. Particularly once
trial counsel learned that Mr. Peoples would be testifying for the State, the post-
conviction court found that the “better practice” would have been for trial counsel to
interview him, which may “have given some direction to [trial counsel] on where to focus
his investigation and his cross-examination.” Trial counsel did not seek a continuance or
object at trial to either the admission of pictures of the wallet or the testimony of Mr.
Peoples, thereby waiving those issues on appeal. The post-conviction court found that
trial counsel‟s failure to discuss “clearly inculpatory evidence” with his client, especially
during the process of plea negotiations, to be “objectively insupportable by any
applicable standard of attorney performance.” We agree with the post-conviction court‟s
determination that trial counsel‟s performance in representing Petitioner was deficient.

As for the prejudice prong of the Strickland analysis, the post-conviction court
found that Petitioner did not present any evidence that “interviewing Mr. Peoples or the
subsequent follow-up investigation would result in the development of any exculpatory
evidence or lead to a different result at trial.” The post-conviction court found Mr.
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Peoples‟s testimony at the hearing, which contradicted much of his trial testimony, to be
“so incredulous that the Petitioner himself refuted his account of the events.” Cf. State v.
Housler, 193 S.W.3d 476, 494 (Tenn. 2006) (citing State v. Mixon, 983 S.W.2d 661, 666
(Tenn. 1999)) (holding that, as one of the factors for whether a new trial should be
granted based upon recanted testimony, the court must be “reasonably well-satisfied that
the testimony given by a material witness was false and that the new testimony is true”).
Additionally, the post-conviction court found that trial counsel‟s failure to call Mr.
Beples as a witness did not result in prejudice because Mr. Beples was an “entirely
unreliable witness who admitted to being under the influence of drugs when he gave his
initial statement to police.” We will not reevaluate a witness‟s credibility on appeal. See
Fields, 40 S.W.3d at 456 (holding that issues of witness credibility are to be resolved by
the post-conviction court). Finally, the post-conviction court found that Petitioner
offered no legal basis for excluding the wallet from evidence and failed to show that any
investigation would produce evidence that could provide a reasonable alternative
explanation for how the victim‟s property ended up in Petitioner‟s wallet. We agree with
the post-conviction court‟s assessment that trial counsel‟s deficient performance in
preparing for trial and communicating with Petitioner did not result in an unreliable
outcome at trial.

Finally, we note that trial counsel‟s failure to discuss “highly inculpatory
evidence” with Petitioner and his reassurances “that there was not enough evidence
against [Petitioner] to be convicted” may have had an impact upon Petitioner‟s decision
to reject a favorable plea offer from the State and proceed to trial.4 See Lafler, 132 S. Ct.
at 1386 (holding that, “[e]ven if the trial itself is free from constitutional flaw, the
defendant who goes to trial instead of taking a more favorable plea may be prejudiced
from either a conviction on more serious counts or the imposition of a more severe
sentence”). However, Petitioner only briefly mentioned trial counsel‟s failure to
adequately communicate with him during the plea negotiation process in his amended
petition and did not address the issue in his brief on appeal. Therefore, this issue has
been abandoned, see Ronnie Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009
WL 3430151, at *6 n.2 (Tenn. Crim. App. 2009), perm. app. denied (Tenn. Apr. 16,
2010), and we will not analyze whether Petitioner would be able to establish that “the
outcome of the plea process would have been different with competent advice.” Lafler,
132 S. Ct. at 1384. Moreover, the post-conviction court found “to be suspect”
Petitioner‟s assertion that he would have accepted a six-year offer had he known what the
evidence against him would be at trial given Petitioner‟s “steadfast claim of innocence.”
Again, we will not second-guess the credibility determinations of the post-conviction
court on appeal. See Fields, 40 S.W.3d at 456. Petitioner is not entitled to relief on this
ground.

4
Even when a defendant maintains his innocence, he may enter into a best-interest guilty plea
under North Carolina v. Alford, 400 U.S. 25 (1970), or a nolo contendere plea.
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 III. Brady Violation

“Every criminal defendant is guaranteed the right to a fair trial under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and the
“Law of the Land” Clause of Article I, section 8 of the Tennessee Constitution.” Johnson
v. State, 38 S.W.3d 52, 55 (Tenn. 2001). In the landmark case of Brady v. Maryland, the
United States Supreme Court held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. The duty to disclose extends to all “favorable information”
regardless of whether the evidence is admissible at trial. Johnson, 38 S.W.3d at 56.
Additionally, “the prosecutor is responsible for „any favorable evidence known to the
others acting on the government‟s behalf in the case.‟” Strickler v. Greene, 527 U.S. 263,
275 n.12 (1999) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)). However, the State
is not required to disclose evidence that the accused already possesses or is otherwise
able to obtain. State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992).

In order to establish a due process violation under Brady and obtain post-
conviction relief, the petitioner must show that he made a proper request for the evidence
“unless the evidence, when viewed by the prosecution, is obviously exculpatory in nature
and will be helpful to the accused;” that the State suppressed the evidence; and that the
undisclosed evidence was both favorable and material. State v. Spurlock, 874 S.W.2d
602, 609 (Tenn. Crim. App. 1993); see also State v. Edgin, 902 S.W.2d 387, 389 (Tenn.
1995). Whether a petitioner is entitled to a new trial based upon a Brady violation
“presents a mixed question of law and fact.” Cauthern v. State, 145 S.W.3d 571, 599
(Tenn. Crim. App. 2004).

The lower court‟s findings of fact, such as whether the defendant requested
the information or whether the state withheld the information, are reviewed
on appeal de novo with a presumption that the findings are correct unless
the evidence preponderates otherwise. The lower court‟s conclusions of
law, however, such as whether the information was favorable or material,
are reviewed under a purely de novo standard with no presumption of
correctness.

Id. We shall discuss each element in turn.

1. Request for the evidence

First, we must determine whether trial counsel requested the evidence or whether
it was obviously exculpatory, thereby triggering the State‟s duty to disclose it. “When
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the prosecutor receives a specific and relevant request, the failure to make any response is
seldom, if ever, excusable.” United States v. Agurs, 427 U.S. 97, 106 (1976), as modified
by United States v. Bagley, 473 U.S. 667, 667 (1985). However, there is no evidence in
the record that trial counsel made a specific request for the police report. The post-
conviction court found that “[a]lthough Ms. Clegget[] was not listed as a witness and her
name was not referenced in any of the available discovery,” trial counsel could have
made a request for Jencks material after Officer Abbott testified. See Tenn. R. Crim. P.
26.2.5 However, no such request was made during the course of the trial. Post-
conviction counsel argued that trial counsel‟s discovery motion included a request for
“the names and addresses of all persons known to the district attorney general or other
law enforcement officers to have been present at the time and place of the alleged
offense,” which certainly would have included Ms. Clegget. However, even though post-
conviction counsel quoted from a pre-trial discovery motion in the post-conviction
petition, during argument at the hearing, and in the appellate brief, no discovery request
was entered as an exhibit at the hearing. Allegations contained in pleadings, counsel‟s
arguments and statements of facts contained in an appellate brief, and counsel‟s
statements made in open court are not evidence. See State v. Bennett, 798 S.W.2d 783,
789 (Tenn. Crim. App. 1990); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App.
1988). Therefore, based on the evidence before us, we cannot conclude that trial counsel
made a request for the evidence.

The United States Supreme Court has held that in the absence of a specific request
for evidence, the prosecution is still required to disclose any obviously exculpatory
evidence. See Agurs, 427 U.S. at 106. Exculpatory evidence is defined as “[e]vidence
tending to establish a criminal defendant‟s innocence.” Black‟s Law Dictionary (10th ed.
2014). The Brady rule also encompasses impeachment evidence, which “may make the
difference between conviction and acquittal.” Bagley, 473 U.S. at 676. The exculpatory
nature of the evidence must be evaluated from the perspective of the prosecutor. See
Spurlock, 874 S.W.2d at 609 (citing Bagley, 473 U.S. 667; Agurs, 427 U.S. 97);
Marshall, 845 S.W.2d at 232. “Because we are dealing with an inevitably imprecise
standard, and because the significance of an item of evidence can seldom be predicted
accurately until the entire record is complete, the prudent prosecutor will resolve doubtful
questions in favor of disclosure.” Agurs, 427 U.S. at 108. Petitioner has consistently
maintained that the value of the evidence at issue is its potential impeaching impact upon
the testimony of the victim. Therefore, it is not until the victim testified inconsistently
with Ms. Cleggett‟s account that the exculpatory nature of the evidence would have
become apparent and triggered the State‟s duty to disclose.

5
It is well-established that when a police officer testifies on direct examination regarding his
investigation, a police report may constitute a “statement” of the officer under Jencks and Tennessee Rule
of Criminal Procedure 26.2. See State v. Robinson, 618 S.W.2d 754, 760 (Tenn. Crim. App. 1981).
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 2. Suppression of the evidence

Next, we must determine whether the State suppressed the evidence. As discussed
above, the post-conviction court found that trial counsel failed to make a request for
Jencks material after Officer Abbott testified. The post-conviction court opined that,
based on the prosecutor‟s open-file discovery policy, “it is reasonable to infer the State
would have provided [the police report] if requested.” However, the post-conviction
court also noted that, because of the open-file policy, such requests are rarely made in
Davidson County where defense attorneys assume “that all reports are already included in
the file.” This Court has held that an open-file discovery policy “does not discharge [the
prosecution‟s] affirmative duty under Brady to disclose favorable, material evidence.”
Jordan, 343 S.W.3d at 98 (relying on Strickler, 527 U.S. at 238 n.23). In fact, “an
incomplete response to a Brady request may mislead the defense into thinking that certain
evidence does not exist,” Freshwater v. State, 354 S.W.3d 746, 760 (Tenn. Crim. App.
2011) (citing Bagley, 473 U.S. at 682-83), rendering a specific request for it during trial
even more unlikely. While the State is not required to disclose its entire file in order to
satisfy the requirements of Brady, see Bagley, 473 U.S. at 675, a defendant is “entitled to
rely on the [S]tate‟s assertion that it provided him with its entire file.” Jordan, 343
S.W.3d at 98. Because the police report containing Ms. Clegget‟s statement was not
included in the pre-trial discovery provided to trial counsel, despite the State‟s open-file
discovery policy, and was not disclosed after the victim‟s testimony rendered the
impeaching nature of the evidence apparent, we conclude that the State did suppress
evidence. However, a new trial is only required if the suppressed evidence is both
favorable and material. See Bagley, 473 U.S. at 677 (quoting Giglio v. United States, 405
U.S. 150, 154 (1972)) (holding that a new trial is not required “„whenever a combing of
the prosecutors‟ files after the trial has disclosed evidence possibly useful to the defense
but not likely to have changed the verdict‟”).

3. Favorability of the evidence

“Evidence „favorable to an accused‟ includes evidence deemed to be exculpatory
in nature and evidence that could be used to impeach the state‟s witnesses.” Johnson, 38
S.W.3d at 55-56. Favorable evidence includes evidence that “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 indispensible, element of the prosecution‟s
version of events, or challenges the credibility of a key prosecution witness.” Id. at 56-
57. Favorable evidence also includes “information that would have enabled defense
counsel to conduct further and possibly fruitful investigation.” Id. at 56 (quoting
Marshall, 845 S.W.2d at 233).

The post-conviction court first stated that Ms. Clegget‟s statement would have
been favorable because she did not see Petitioner at the scene of the robbery. Later in its
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order, however, the post-conviction court stated that “it is unclear how her testimony was
necessarily favorable or material” because she did not witness the entire robbery, did not
realize that what she witnessed was a robbery, and did not “directly refute” the victim‟s
account. However, favorable evidence need not directly refute the State‟s theory of the
offense so long as it “provides some significant aid to the defendant‟s case.” Johnson, 38
S.W.3d at 56. Whether Ms. Clegget witnessed the entire robbery or whether she
subjectively understood that what she saw was a robbery in progress are both irrelevant in
determining whether the undisclosed evidence is favorable.

Ms. Clegget described the perpetrator as a male black between eighteen and
twenty wearing a black shirt, dark hat, and shorts. Given that other evidence in the
record indicated that Petitioner was in his thirties and was wearing a white shirt and a
green hat, the record supports the post-conviction court‟s finding that Ms. Clegget did not
see Petitioner at the scene. Additionally, Ms. Clegget saw the suspect pull up his shirt
and display a pistol in his waistband, contradicting the victim‟s testimony that the robber
pointed the gun at his head and chest. While the manner in which the robber used or
displayed a deadly weapon is irrelevant under the aggravated robbery statute, see T.C.A.
§ 39-13-402, her statement does “call[] into question a material, although not
indispensible, element of the prosecution‟s version of events.” See Johnson, 38 S.W.3d
at 57. Finally, she saw two subjects fleeing the scene, whereas the State‟s theory was that
three individuals were involved. As Ms. Clegget was the only independent eyewitness to
the robbery, production of the police report would have enabled trial counsel to interview
her at a time when the events were fresher in her memory. See id. at 56 (quoting
Marshall, 845 S.W.2d at 233). Upon our de novo review of the record, we conclude that
the police report was favorable to Petitioner‟s defense.

4. Materiality of the evidence

Evidence 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.” Bagley, 473 U.S. at 682.6 The petitioner need not prove that disclosure of the
evidence would have resulted in an acquittal. See Kyles, 514 U.S. at 434. “Nor is the test
of materiality equivalent to that of evidentiary sufficiency, such that we may affirm a
conviction or sentence when, „after discounting the inculpatory evidence in light of the
undisclosed evidence, the remaining evidence is sufficient to support the jury‟s
conclusions.‟” Johnson, 38 S.W.3d at 58 (quoting Strickler, 527 U.S. at 275). Rather,
the question is whether in the absence of the evidence, the petitioner received a fair trial,
“understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at
434. The petitioner must show that “the favorable evidence could reasonably be taken to

6
“The „materiality‟ aspect of a Brady claim is governed by the same prejudice standard as an
ineffective assistance of counsel claim.” Cauthern, 145 S.W.3d at 598 (citing Bagley, 473 U.S. at 682).
- 18 -
put the whole case in such a different light as to undermine confidence in the verdict.”
Irick v. State, 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998) (citing Edgin, 902 S.W.2d
at 390). A reviewing court should evaluate the evidence “„in light of the totality of the
circumstances and with an awareness of the difficulty of reconstructing in a post-trial
proceeding the course that the defense and the trial would have taken had the defense‟
been made aware of the favorable information.” Spurlock, 874 S.W.2d at 619 (quoting
Bagley, 473 U.S. at 683). In other words, “the materiality of the suppressed evidence
must be evaluated within the context of the entire record.” Jordan v. State, 343 S.W.3d
84, 97 (Tenn. Crim. App. 2011).

The post-conviction court found that the police report and Ms. Clegget‟s
subsequent testimony were not material. The post-conviction court reasoned that because
the State‟s theory was that Petitioner‟s involvement took place prior to the actual robbery,
the fact that Ms. Clegget did not see Petitioner commit the robbery “does not exonerate
him from providing the gun and instructions to [Mr.] Peoples.” Whether the suppressed
evidence completely exonerates the accused is not the test for materiality under Brady.
See Kyles, 514 U.S. at 434.

Instead, Petitioner argued that the value of the suppressed evidence was its
impeaching impact upon the testimony of the victim. Ms. Clegget corroborated Mr.
Peoples‟s trial testimony that he merely lifted his shirt and showed his gun to the victim.
This contradicts the victim‟s testimony that the robber pulled out the gun and pointed it at
his head. This may have caused the jury to discredit the victim‟s testimony, including his
description of Petitioner “eyeing” him in the store prior to the robbery. However, it does
not discredit Mr. Peoples‟s trial testimony that Petitioner provided him with the gun and
instructed him to rob the victim.7 This testimony was the key to the State‟s case against
Petitioner. By corroborating Mr. Peoples‟s version of events, Ms. Clegget‟s testimony
would serve to bolster his credibility. Even if Ms. Clegget‟s statement would have
caused the jury to completely discount the victim‟s testimony, it would not have cast “the
whole case in such a different light as to undermine confidence in the verdict.” Irick, 973
S.W.2d at 657. Because Petitioner failed to show that the evidence was material, he is
not entitled to relief.

7
Petitioner argues on appeal that Mr. Peoples attempted to recant and revise his statement to
police implicating Petitioner during his testimony at trial. However, the transcript of the trial shows that
Mr. Peoples simply stated that he did not remember the facts as read by the prosecutor at his own plea
submission hearing. After having his recollection refreshed and speaking to an attorney—supposedly
about the consequences of committing perjury—Mr. Peoples testified that Petitioner provided him with
the gun and instructions. At no point during the trial did Mr. Peoples deny Petitioner‟s involvement. In
fact, Mr. Peoples only stated that he lied to Detective Stewart with regard to whether Petitioner first
instructed Mr. Beples to commit the robbery. The first time that Mr. Peoples testified that Petitioner was
not involved in the robbery was during the motion for new trial hearing. The trial court apparently
discredited that recantation, just as the post-conviction court discredited his similarly recanting testimony
at the post-conviction hearing.
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 Finally, we note that in petition and argument before the lower court, Petitioner
raised this issue with respect to the undisclosed police report under a writ of error coram
nobis. The post-conviction court analyzed the issue separately under both the standard
for a petition for writ of error coram nobis and as a constitutional violation under a
petition for post-conviction relief. See Gdongalay P. Berry v. State, No. M2015-00052-
CCA-R3-ECN, 2016 WL 1161216, at *14 (Tenn. Crim. App. Mar. 23, 2016) (analyzing a
Brady claim separately from a coram nobis claim with respect to the same evidence),
perm. app. denied (Tenn. Aug. 18, 2016). We note that the post-conviction court applied
the incorrect standard to its resolution of the coram nobis claim. See State v. Workman,
111 S.W.3d 10, 18 (Tenn. Crim. App. 2002) (holding that the lesser “may have resulted
in a different judgment” standard applies to claims under a writ of error coram nobis
rather than the “would have” standard under Brady). On appeal, Petitioner frames the
issue of the undisclosed police report as a constitutional violation under Brady without
citing the standard applicable to a writ of error coram nobis. Therefore, we deem
Petitioner‟s coram nobis claim to be abandoned. See Ronnie Jackson, Jr., 2009 WL
3430151, at *6 n.2; see also Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not
supported by argument [or] citation to authorities . . . will be treated as waived in this
court.”).

Conclusion
Based on the foregoing, we affirm the post-conviction court‟s rulings with respect
to both the claim of ineffective assistance of counsel and the violation of due process
under Brady.

____________________________________
TIMOTHY L. EASTER, JUDGE

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