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Parker v. State10/3/2005
in the chain of custody.
From the standpoint of the weight of the evidence as considered by the jury, we again stress that Donald Hubbard had no information that contradicted Joy Hubbard's account of why the can was found behind or under the bed. Certainly, had Donald Hubbard's claimed role in finding the can been known by the defense at the time of trial, the defense could have argued that Hubbard could have fabricated the evidence. We point out, however, that, at least at trial, the defense was aware of Donald Hubbard's presence in the house during the petitioner's visit because Blount County Sheriff's Deputy Scott Johnson, who operated the recording equipment in the basement, testified at trial that Mr. Hubbard was there with him. Moreover, as pointed out above, the aluminum can as evidence was as vulnerable to a claim that Joy Hubbard, as opposed to Donald Hubbard, contrived the evidence. In these circumstances, Donald Hubbard's information as revealed in the deposition was not material in the Brady sense.
Based upon a lack of state suppression and of materiality, we hold that no Brady due process violation occurred with respect to the admissibility or weight of the aluminum can as evidence.
(2) Impeachment Claim
Next, we examine the claim that Donald Hubbard's deposition revealed information that would have served to impeach Joy Hubbard as a trial witness. Certainly, Donald Hubbard claimed that Joy Hubbard told him details about her relationship with Wayne Chodak that contradicted both her trial and evidentiary hearing testimony. Also, assuming that the defense could have satisfied the rigors of Tennessee Rule of Evidence 613(b) in impeaching a witness via extrinsic evidence of a prior inconsistent statement, the prospective impeachment of prosecution witness Joy Hubbard would qualify as exculpatory for purposes of a Brady claim. See State v. Leach,148 S.W.3d 42, 56 (Tenn. 2004) ("Under the collateral fact rule, the statement of a witness made during cross-examination as to a collateral fact may not be impeached by extrinsic evidence of a prior inconsistent statement as to that fact"); see Bagley, 473 U.S. at 675, 105 S.Ct. at 3380. We see no basis, however, for concluding that the state suppressed this information because the petitioner has failed to establish that the state was aware of Donald Hubbard's claims about Joy Hubbard's relationship with Wayne Chodak.
For this reason, we cannot conclude that the petitioner proved by clear and convincing evidence that the state violated the principles of Brady because it did not reveal to him before trial the knowledge claimed by Donald Hubbard.
We note that had a Brady violation been established, the post- conviction court should not have undertaken a harmless error analysis. See Kyles, 514 U.S. at 435, 115 S.Ct. at 1566.
Ultimately, we affirm the post-conviction court in its denial of relief on the Brady claim, but we do so on the ground that Brady violations are not established in the post-conviction record and not because any Brady violation was harmless.
II. Ineffective Assistance of Counsel.
The petitioner espouses on appeal that his trial counsel rendered ineffective assistance of counsel because (1) counsel had a conflict of interests in representing the petitioner at trial, (2) he failed to call available witnesses to support the petitioner's claim of corruption in the Alcoa Police Department, and (3) he failed to require the state to establish a chain of custody of the aluminum can. The trial court's findings of deficient performance of counsel related to his failure to interview Donald Hubbard and his failure to challenge the chain of cu
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