concurring.
I agree with my colleagues that a new trial is warranted to remove any possible cloud of unfairness or error of prejudicial dimensions. I do believe that we can answer the questions posited by the appellant without the necessity of the accusations of criminal conduct on the part of the prosecutor. The effects of a charge of subornation of perjury are indelible. They last forever.
The trial judge in this ease had all the information we had. He denied the motion for a new trial. I believe that in so ruling, the judge inferentially did not find the prosecutor guilty of criminal activity such as the majority asserts. Had he made such findings, the least that he would have done would be to grant a new trial. Furthermore, the trial judge was in a more enviable position than we; he heard the live witnesses at trial and during the motion for a new trial.
I watched the videotape of Apple’s statement to the police. I do not find as many things quite as crystal clear as do my brothers of the bench. I saw a man who was familiar with the jailhouse and court system serving a few months for child support issues. He did not have much time left to serve. He did not have a whole lot to bargain away with the district attorney and the police. He was not in much jeopardy as a result of his child support problems. Of course, like anybody else, he wanted out of jail. But I did not see any wonderful deals presented to Mr. Apple that would have prompted him to conjure up a big lie on Spurlock. Based on what I have read and seen, he put himself in a lot more jeopardy by talking and testifying than by serving his child support sentence.
I found nothing exculpatory about Apple’s statement on the videotape to the police and district attorney. Frankly, Apple’s police statement demolished appellant’s theory of nonculpability. I do agree that the prosecutor should have given this information to the defense counsel prior to trial. Had he done so, he could have eliminated many of these present problems. I do not think that counsel’s cross-examination of Apple could have been any more thorough or piercing with the videotape; I found few stones unturned by counsel when I read the cross-examination. Spurlock was represented well in this regard.
Lawyers experienced in defending and prosecuting criminal cases may differ in their interpretation of the facts of this record. Some would find the prosecutor’s conduct *623wrong. Others would simply view the conduct as commensurate with the sporting theory of advocacy. According to legal scholars, such a, theory is an anachronism in Tennessee and is dead. As a practical matter, this type of legal combat is still alive in our courtrooms; and it is practiced by both sides — prosecution and defense. More often that not, the trial or appellate courts penalize the state’s case when they view the prosecutor as not having complied with the strict discovery rules. Less often is the defense penalized. But, unless the proof in the record actually shows that criminal activity has been committed by one of the advocates, we should refrain from such accusations. We have the benefit of deciding what the advocates should have done months, and sometimes years, after the fact. They, just as trial judges, make instantaneous decisions before, during, and after trial. They may make mistakes. We need to decide if those mistakes are of the mind or of the heart.
For these and other reasons, I concur in the results reached by the majority.