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State v. Garrett12/1/2005
he defendant's first degree murder conviction after his first trial because the state had withheld Detective Miller's report indicating that the utility room door was not locked. See Claude Francis Garrett v. State, No. M1999-00786-CCA-R3-PC, slip op. at 15-20 (Tenn. Crim. App., Nashville, Mar. 22, 2001). This court reasoned that the information was exculpatory and material because it negated the state's theory that the defendant had purposefully locked the victim in the utility room and then set the house on fire. See id. Conversely, the information relayed to Mr. Cooper does not negate a theory that the defendant deliberately confined the victim in the utility room; rather, it clarifies how the victim was confined. Accordingly, we do not find that the state's failure to share this information with the defendant is a violation of the defendant's due process rights pursuant to Brady.
VIII. State Misconduct
The defendant argues that the state engaged in prosecutorial misconduct when it elicited false testimony from Bobby Alcorn and James Cooper, that this false testimony prejudiced him, and that accordingly he is entitled to a new trial. However, earlier in this opinion we addressed the defendant's claim that these witnesses testified falsely during his second trial, and we determined that the defendant had not demonstrated that any claimed contradictions in these testimonies are attributable to perjury. Accordingly, we similarly conclude that the defendant has not demonstrated that the presentation of these testimonies was prosecutorial misconduct.
In related issues alleging state misconduct, the defendant advances two issues for the first time on appeal, specifically that he was denied his presumption of innocense by references to his first trial during his second trial, including one reference by the prosecutor during closing arguments, and that the state advanced inconsistent facts and theories during the two trials of this case, thereby violating his due process rights. However, an appellate issue may not be predicated upon an alleged error at trial unless that issue was also presented by the defendant in his or her motion for new trial. See Tenn. R. App. P. 3(e). Accordingly, the defendant has waived these issues for consideration on appeal, and we are unpersuaded - and the defendant does not argue - that either issue constitutes plain error necessitating our review.
IX. Conclusion
We have discerned no reversible error in the trial court's proceedings and, accordingly, we affirm the court's judgment.
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