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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
January 29, 2013 Session CRYSTAL MIRANDA KIRBY v. STATE OF TENNESSEE
Appeal from the Criminal Court for Campbell County No. 14865 E. Shayne Sexton, Judge

No. E2012-01995-CCA-R3-PC - Filed May 3, 2013

A Campbell County jury found petitioner, Crystal Miranda Kirby, guilty of first degree premeditated murder, second degree murder, and especially aggravated robbery. The trial court sentenced her to an effective life sentence. On direct appeal, this court ordered the merger of the two murder convictions but denied relief in all other respects. Petitioner then filed the instant petition for post-conviction relief, which was denied after an evidentiary hearing. Petitioner appeals the denial of post-conviction relief, claiming that the State violated her due process rights under Brady v. Maryland by withholding two video-taped statements that were allegedly exculpatory in nature. After thorough review, we affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and J EFFREY S. B IVINS, JJ., joined. Howard R. Ellis, Oneida, Tennessee, for the appellant, Crystal Miranda Kirby. Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Lori Phillips-Jones, District Attorney General; and Michael O. Ripley and Scarlett W. Ellis, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION I. Facts A. Facts from Trial The investigation into this case began on June 3, 2006, when a volunteer with the Stoney Fork Fire Department found the deceased victim, Jonathan Pierce, in his truck. State v. Crystal Miranda Kirby, No. E2008-01862-CCA-R3-CD, 2010 WL 1854137, at *1 (Tenn. Crim. App. May 7, 2010), perm. app. denied (Tenn. Sept. 22, 2010). The victim appeared to have driven his truck off an embankment. Id. Further inquiry revealed that several people had been cooking methamphetamine in a man-made structure near a natural gas or oil source located on Caryville Mountain and had been involved in the victim's death. Id. A full recitation of the facts can be found in our opinion on direct appeal. See id. at *1-8. However, for purposes of this post-conviction appeal, the following facts are pertinent to our analysis: At trial, Captain Don Farmer of the Campbell County Sheriff's Department testified that during the investigation of the victim's murder, petitioner gave eight different statements. Id. at *2. Petitioner's role in the murder varied with each statement. She gave her first statement on October 20, 2006, in which she claimed that she was not present when the victim was killed but that she learned about it after the fact. Id. Captain Farmer stated that petitioner gave a second statement on October 22, 2006. Id. In this statement, petitioner stated that she heard the men say they were going to "put a good beating on [the victim]" a few days before he was killed. Id. Petitioner gave a third statement to police on October 30, 2006. Id. In this statement, she admitted that she and Sammy Miracle, Tommy Wright, and Lawrence Driver were cooking methamphetamine on Caryville Mountain when the victim unexpectedly pulled into the area in his vehicle. Id. She also admitted she was present when the victim was beaten. Id. at *2-3. Petitioner gave a fourth statement on October 31, 2006. Id. at *3. In this version, she told police that on the evening of June 2 or 3, 2006, she was at a convenience store in Caryville when she encountered the victim. Id. As they were leaving the store, petitioner stated that the victim asked if she needed a ride. Id. She called Driver, and he was going to meet her and the victim at a church on Mountain Road to pick her up. Id. When Driver did not arrive, petitioner telephoned him, and he asked that the victim drive petitioner to the cook site. Id. at *4. When the victim and petitioner drove up to the cook site, Wright "flipped out" because he believed that the victim was a law enforcement officer. Id. The victim

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exclaimed that Wright had him confused with someone else, but Wright nonetheless beat the victim then threw him into the bed of the truck. Id. at *3-4. Captain Farmer testified that in petitioner's fifth statement on November 28, 2006, she stated that on June 4, 2006, she was with B.J. Williams and Donnie Jacks when Williams indicated that something had "got[ten] out of hand" after someone walked up on him and Jacks as they were making methamphetamine. Id. at *4. In this statement, petitioner denied being on Caryville Mountain when the victim was killed. Id. Captain Farmer stated that the following day, petitioner gave a sixth statement in which she implicated Williams, Miracle, Jacks, and Tim Richardson. Id. In this version, petitioner again claimed that she met the victim at a convenience store. Id. at *5. She needed to find a ride to Caryville Mountain, and she allegedly had a pre-arranged meeting with Williams at a church on Caryville Mountain. Id. When Williams did not arrive as planned, petitioner telephoned him. Id. Because he did not want to pack up his equipment, he asked if the victim could drive her to the cook site. Id. The victim agreed. Id. When they arrived at the cook site, Miracle accused petitioner of bringing "the law." Id. She told Captain Farmer that Miracle walked over to the truck, grabbed an object that looked like a club, and struck the victim in the face one time. Id. Petitioner recalled that the victim fell to the ground and slouched against the truck. Id. She said the victim was gasping for air. Id. Captain Farmer testified that on January 16, 2006, petitioner gave a seventh statement. Id. at *6. Petitioner stated that on the night in question, she was with Travis Gaylor and Miracle in Gaylor's car and that she and Miracle were dating at the time. Id. She said they stopped to smoke a "joint" and were later joined by Scott Johnson and "Stretch." Id. Stretch was waiting for a man he knew from work. Id. Shortly thereafter, the victim pulled in beside Stretch's car and talked with Stretch for a while. Id. When Stretch left, Miracle accused the victim of being a "narc," and the victim and Miracle began to fight. Id. Miracle struck the victim on the head, causing him to collapse. Id. In her eighth and final statement on January 17, 2006, petitioner told Captain Farmer that on the night the victim was killed, she took money from the victim's wallet and gave it to Gaylor. Id. at *7. She stated that the victim arrived at the crime scene to pay Stretch some money he owed for the purchase of pills. Id. According to petitioner, Miracle asked the victim if he worked for "the law" and further stated that he had observed the victim's truck at a location where someone had been arrested. Id. An argument ensued between Miracle and the victim, after which the victim entered his truck. Id. Miracle then opened the truck's door and struck the victim until he collapsed. Id. Petitioner admitted that "they" disposed of the truck and the victim's body and then returned to the motel to shower and change clothes. Id. -3-

B. Procedural History Petitioner filed a pro se petition for post-conviction relief raising the issue of ineffective assistance of counsel due to a conflict of interest and failure to file a motion for a change of venue. Appointed counsel filed an amended petition adding a new claim of conflict of interest and a claim that the State withheld exculpatory evidence in violation of Brady v. Maryland.1 C. Facts from Post-Conviction Evidentiary Hearing Petitioner testified that officers video-taped three statements and audio-taped several other statements she made during the investigation of her case. She gave the video-taped statements in September, October, and November of 2006. She stated that the October statement was recorded as she and officers were leaving the county jail and driving over Caryville Mountain. She recalled that law enforcement officers Brandon Elkins, Don Farmer, Richard Foschino, and Steve Vinsant were present on two occasions, and Farmer and Foschino were present the third time. On cross-examination, petitioner clarified that she, in fact, gave four video-taped statements. She gave the October 2006 statement at the detectives' office. That statement was also audio-taped. She stated that there were two statements recorded in October; the first one was taped at the office, and the second one was recorded on a different date as they left the jail and began to drive over the mountain. When asked, petitioner could not supply any additional information regarding the September or November statements. Petitioner testified that she informed trial counsel about the multiple video-taped statements. In preparing for trial, counsel reviewed the transcripts of the audio statements with her. She confirmed that she was able to discuss everything about the transcripts that concerned her with trial counsel. Post-conviction counsel offered into evidence two video-taped statements dated October 20 and October 31, 2006, that were not provided to trial counsel prior to trial. An audiotape of the October 20, 2006 statement2 was introduced at trial, but the video-taped statement was not made available to trial counsel. Post-conviction counsel claimed that it was exculpatory. The October 31, 2006 video began at a wooded site on Caryville Mountain and recorded petitioner's pointing to various places and explaining her version of the crime.

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373 U.S. 83 (1963). This statement was simultaneously audio-taped and video-taped.

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Post-conviction counsel claimed that the statement was exculpatory because law enforcement officers later determined that the crime occurred at a different location. The State admitted that the two video-taped statements in question were not provided to trial counsel but contended that they were not exculpatory in nature. Petitioner called one of her trial attorneys, hereinafter referred to as pre-trial counsel, as her next witness. At the time of the post-conviction hearing, pre-trial counsel was employed as an assistant district attorney general. Prior to accepting that position, he represented petitioner for eight to ten months. Pre-trial counsel did not recall filing a motion for discovery "but [was] sure that [he] would have."3 Post-conviction counsel later supplemented the record with a copy of the motion for discovery. Petitioner's subsequent attorney, hereinafter referred to as trial counsel, represented petitioner at trial. He testified that pre-trial counsel filed a motion for discovery in petitioner's case. He recounted the "crux" of the State's case against petitioner, stating: The majority of the State's evidence against [petitioner] was seven recorded statements4 that [petitioner] made to Detective Farmer and on certain occasions[,] Detective . . . Vinsant. She made statements alleging that various other people were involved in this and then eventually told statements that it involved herself, Sammy Miracle[,] and her half-brother, Travis Gaylor, and these statements probably totaled over

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