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Braswell v. State

Court of Criminal Appeals of Tennessee, Jackson

April 9, 2018


          Session October 3, 2017

          Appeal from the Criminal Court for Shelby County No. 05-03038 Paula L. Skahan, Judge.

         The Petitioner, Vern Braswell, appeals the post-conviction court's denial of his petition for post-conviction relief in which he challenged his conviction for second degree murder and his twenty-four-year sentence. On appeal, the Petitioner contends that he received ineffective assistance of counsel at trial and that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide the defense with statements of witnesses, items recovered from the Petitioner's home, and the contents of a sealed envelope that was discovered during the pendency of post-conviction proceedings. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

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

          Lauren M. Fuchs, Memphis, Tennessee, for the appellant, Vern Braswell.

          Herbert H. Slatery III, Attorney General and Reporter; Rachel W. Willis, Deputy Attorney General; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Marques Young and Pam Stark, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.




         The Petitioner was charged with first degree premeditated murder for killing his wife, Sheila Braswell, by manual strangulation. The Petitioner argued at trial that the victim's death was accidental and occurred after he and the victim engaged in erotic asphyxiation. The jury convicted the Petitioner of second degree murder, and the trial court sentenced him to twenty-four years as a Range I, standard offender. This court affirmed the Petitioner's conviction and sentence on direct appeal. See State v. Vern Braswell, No. W2006-01081-CCA-R3-CD, 2008 WL 238014, at *1 (Tenn. Crim. App. Jan. 28, 2008), perm. app. denied (Tenn. Aug. 25, 2008).

         Trial Proceedings

         The evidence presented at trial was summarized by this court in its opinion on direct appeal as follows:

Pauline Washburn testified that her daughter Sheila Braswell, the victim, had been married to Defendant for ten years, and the couple had two young sons. Defendant and the victim resided together with their children in Cordova, Tennessee. Ms. Washburn said that she received a telephone call from Defendant on November 5, 2004, at 4:34 a.m. Defendant told Ms. Washburn that the victim was not breathing. Defendant said that he had fallen asleep around 1:30 a.m., and when he woke up at approximately 3:30 a.m., the victim was floating in the bathtub.
Ms. Washburn drove to her daughter's residence where several people had already gathered. Ms. Washburn and Defendant sat together on the living room couch for a few minutes. Defendant was wearing a white terry cloth robe which was wet. Defendant, who was crying, said that the victim had taken a bath after the couple had sexual intercourse and Defendant had fallen asleep. Defendant said that sometimes after sexual intercourse, the victim's hip would hurt, and she got into the Jacuzzi bathtub to relieve the cramps. Ms. Washburn said that Defendant kept saying, "I should have never let her get in the tub." Ms. Washburn did not understand why Defendant made this statement if a bath after sexual intercourse was not unusual in the victim's routine.
Ms. Washburn said that the victim was approximately four feet, eleven inches tall and weighed between one hundred and twenty-five and one hundred and thirty pounds. Ms. Washburn returned to her daughter's residence the following day to retrieve some of the victim's personal property and clothes for the victim's two sons. Ms. Washburn found some mail in a bag in the kitchen. The mail included a copy of a divorce decree, a request for an order of protection dated April 1996, a one hundred-dollar bill and a twenty-dollar bill, and a check in the amount of $288.50, made payable to the victim's divorce attorney.
Angela Tall Snyder testified that she and the victim worked part-time providing in-home spa treatments. Ms. Snyder stopped by the victim's house on November 4, 2004, at approximately 10:00 p.m. The victim was talking on the telephone. Ms. Snyder said that she stayed approximately thirty minutes and did not see Defendant or his car during this time.
Roosevelt Coleman, a communications supervisor with the Memphis Police Department, maintains the documentation of 911 calls placed to the department's dispatchers. Mr. Coleman said that an event chronology is generated by the computer as soon as a 911 call is received, and a time factor is assigned for the call as soon as possible. The time assigned to Defendant's 911 call was 3:57 a.m. The event was closed at 7:43 a.m. when responding officers were placed back into service. On cross-examination, Mr. Coleman acknowledged that the dispatcher had noted on the event chronology that Defendant was hysterical and screaming during the telephone call.
Lieutenant Fred Jackson, with the Memphis Fire Department, was the first responder to arrive at the crime scene. Defendant was standing outside the residence wearing a white bathrobe. Lieutenant Jackson followed Defendant into the couple's bedroom. The victim was in the adjacent bathroom's bathtub, with the lower part of her body inside the bathtub, and the upper half of her body hanging over the edge. Lieutenant Jackson said that the victim had no visual signs of life. Lieutenant Jackson and an emergency medical technician lifted the victim out of the tub and placed her on the bedroom floor.
Lieutenant Jackson said that he attempted to console Defendant who kept asking what the emergency medical technicians could do for the victim. Lieutenant Jackson stated that Defendant commented that he "shouldn't have let her have that drink or [he] should have awakened [her] or something to that effect." Defendant made and received several cell phone calls while he was with Lieutenant Jackson. Lieutenant Jackson did not remember seeing any children in the home.
Lieutenant Jackson testified that he noticed that the air in the bathroom was humid and moist when he arrived and that the water in the bathtub was warm. Lieutenant Jackson said that the victim was a small woman, and it was not difficult to lift her out of the bathtub. Lieutenant Jackson added that the victim's legs appeared to be stiff.
Baba Tanzy, an emergency medical technician with the Memphis Fire Department, testified that he and a paramedic, Matthew Wayne Hamm, accompanied Lieutenant Jackson to the Defendant's residence. They arrived at approximately 4:00 a.m. Mr. Tanzy said that Defendant told him that the victim had taken a bath around 2:00 a.m. after the couple had sexual intercourse. Defendant woke shortly before 4:00 a.m. And discovered the victim in the bathtub. Mr. Tanzy said that the water in the bathtub was warm when he arrived. Mr. Tanzy noticed small red marks on each side of the victim's neck and broken blood vessels in her eyes, which indicated to Mr. Tanzy that the victim had died by suffocation or asphyxiation. Mr. Tanzy said that the victim's arms were stiff.
Mr. Hamm testified that the victim showed no signs of life when the medical personnel arrived, and she was in rigor mortis. Mr. Hamm stated that the victim had a condition in her eyes known as petechiae which consisted of broken blood vessels in the cornea. Mr. Hamm said that this condition indicated that the victim had suffered a strangulation trauma. Mr. Hamm noted three red marks on the victim's neck and stated that the froth in the victim's mouth indicated the presence of water in the victim's lungs. Mr. Hamm said that the water in the bathtub was hot. He checked the water's temperature at 5:07 a.m. and it measured 94.6 degrees Fahrenheit. Officer David Galloway with the Memphis Police Department testified that the bathtub was five feet, one inch long, and two feet, ten inches deep.
Sergeant Andrew Kjellin, with the Memphis Police Department's felony response unit, arrived at Defendant's home at approximately 5:30 a.m. Defendant told Sergeant Kjellin that his wife had taken a bath after he fell asleep around 1:30 a.m., that he woke up between 3:40 a.m. and 3:50 a.m., and that he discovered the victim in the bathtub. Defendant said that he called a friend named Brian, and then called 911. Defendant told Sergeant Kjellin that he could not lift the victim out of the bathtub. Sergeant Kjellin said that Defendant, in a separate vehicle, followed him back to the police station to make a statement. On cross-examination, Sergeant Kjellin acknowledged that he did not notice any wounds on Defendant, and that there were no signs of a struggle at the crime scene.
Sergeant William D. Merritt, with the Memphis Police Department's homicide squad, testified that Defendant arrived at the police station with a friend on November 5, 2004, between 8:30 and 8:45 a.m. Defendant was advised of his Miranda rights and he executed a written waiver of those rights. In his written statement, Defendant said that he and the victim
were in the Jacuzzi together around midnight. Relaxing and bathing. We began getting intimate and engaging in sex. As a result of an inadequate amount of lubrication, we continued sex in the bedroom and in the bed. At approximately 1:30 a.m. we stopped and joked about who was going to let the water out of the Jacuzzi. She commented about an aching cramping pain in her abdomen. Then she got up and walked with a limping motion to the bathroom. And shortly thereafter, I heard in the bathroom [the] Jacuzzi faucet, as well as the Jacuzzi jets turn on. At which time or shortly thereafter, I fell asleep. It was approximately 1:30 a.m. to 1:40 a.m. At approximately 3:50ish to 4:00 a.m., I noticed that she wasn't in the bed. I went to check on her and she was somewhat submerged in the water. I called 911 and Brian James as well as a host of other family and friends trying to get help.
Defendant said that the air jets in the bathtub were still operating when he found the victim, and he added that the victim's head and face were under water. Defendant stated that he noticed that "the pink bath pillow with suctions" had detached from the bathtub and was floating in the water. Defendant said that the victim had drunk one twelve-ounce bottle of Skyy Blue malt beverage before midnight and another bottle while they were in the bathtub. Defendant said that it was not unusual for the victim to fall asleep in the bathtub while the air jets were operating. Defendant stated that he attempted to get the victim out of the bathtub but was unsuccessful.
Sergeant Merritt said that Defendant was crying and emotional during the interview, and he received and made several calls on his cell phone while he was at the police station. Sergeant Merritt said that Defendant did not mention that he and the victim had engaged in the practice of erotic asphyxiation that evening. Defendant was arrested on November 6, 2004.
Sergeant Merritt said that after his arrest, Defendant's telephone calls were monitored while he was incarcerated in the county jail. Defendant made approximately thirty-five calls over a two-month period. During the telephone conversations, Defendant commented that "the soldier" was underground. Sergeant Merritt believed that Defendant was referring to his girlfriend, Kristie Woods, and meant that Ms. Woods could not be found. Later, Defendant called Ms. Woods at her place of employment and told her to refer to herself as Defendant's cousin when she called him. Defendant also told Ms. Woods to send him letters at his mother's address. Defendant discussed the victim's life insurance with his mother, who told him that the insurance proceeds were not being released because of the murder investigation. The tape of Defendant's telephone conversations while he was in jail was introduced as an exhibit at trial and played for the jury.
Robert D. Burton, a service manager for Watson's Pools and Spas, explained the operation of a bathtub outfitted with air jets such as the one in Defendant's residence. Mr. Burton testified that after the bathtub is filled with hot water, air is pumped into the water through the jets. The air cools the bath water quickly, and more hot water generally has to be added in approximately fifteen to twenty minutes. Mr. Burton stated that if the air jets in a bathtub ran for two hours, the water would be cold at the end of the period. If the jets were turned off, the water temperature in the bathtub would fall to approximately eighty degrees over a period of two hours.
Benjanette Sturdevant, with Nextel Communications, identified the telephone records pertaining to Defendant's cell phone number. Ms. Sturdevant testified that according to her records, the first call on November 5, 2004, from Defendant's cell phone was placed at 3:55 a.m. and twenty-five calls were made between 3:55 a.m. and 4:40 a.m. Of these, seventeen calls were made to telephone number 901-737-6100, and two calls were made to telephone number 901-484-8568.
Lieutenant John E. Mitchell, with the Memphis Police Department, testified that he knew Defendant socially and that he and Defendant were members of a professional fraternity, Omega Psi Phi. Lieutenant Mitchell said that his home telephone number was 901-737-6100, and his cell phone number was 901-484-8568. Lieutenant Mitchell said that he was in Texas on November 5, 2004. When he awoke that morning, Lieutenant Mitchell noticed that he had missed several telephone calls from a number reflected on his caller identification. Lieutenant Mitchell dialed that telephone number at approximately 6:00 a.m., and Defendant answered. Defendant was distraught and told Lieutenant Mitchell that his wife was dead. Lieutenant Mitchell was unaware that Defendant had called him numerous times that morning before Lieutenant Mitchell returned the call.
Officer Myron Fair, with the Memphis Police Department, was also a member of the Omega Psi Phi fraternity. Officer Fair discovered that he had missed a telephone call from Defendant on November 5, 2004, which had been made sometime before he woke up. Officer Fair returned the call between 9:00 and 9:30 a.m. Defendant told Officer Fair that he could not talk because he was about to give his statement to the police. Defendant said, "[T]hese people think I killed my wife." Defendant did not mention to Officer Fair or Lieutenant Mitchell that the victim died after engaging in erotic asphyxiation.
Officer Troy Walls, with the Millington Police Department, testified that he responded to a 911 call placed by the victim on April 17, 1996. He found the victim upset and crying when he arrived at the victim's residence at approximately 11:30 p.m. Officer Walls observed a scratch over the victim's right eye and on her right arm, and her face was flushed. The victim told Officer Walls that Defendant had hit her and held her in a choke hold. There were signs of an altercation in the town house. Officer Walls said that Defendant was not in the house when he arrived, and he advised the victim to obtain a warrant for his arrest.
William Mangum, the custodian of the records for the Shelby County Circuit Court, identified an order of protection against Defendant which was requested by the victim on April 19, 1996. In the protection order, which was introduced as an exhibit at trial, the victim stated that during an argument, Defendant slapped and choked her, cutting off her air supply. An order of protection was entered on May 10, 1996.
Mr. Mangum also identified a complaint for divorce filed by the victim on June 15, 2004. Mr. Mangum said that his records showed that an order for nonsuit was entered in this case on November 9, 2004.
Dr. Joye Maureen Carter performed an autopsy on the victim on November 5, 2004. Dr. Carter was informed before the autopsy began that the victim had died as a result of an accidental drowning. Dr. Carter testified, however, that the victim's neck injuries and the presence of hemorrhaging in her eyes indicated that the cause of death was not an accidental drowning. Dr. Carter said that the victim had petechiae, or pinpoint hemorrhages, all over her face, including her neck, the lining of the lips, and the gums. Dr. Carter explained that petechiae are caused by an increased pressure on the capillaries.
Dr. Carter observed oval-shaped contusions on the victim's neck. An examination of the interior of the neck revealed patchy hemorrhaging under all six layers of the neck's muscles. Hemorrhaging was also present in the soft tissue of the pharynx. Petechiae were present throughout the voice box and vocal chords. Dr. Carter stated that these injuries were consistent with manual strangulation. The absence of white blood cells at the injury sites indicated that the injuries were recently inflicted.
Dr. Carter said that some water was present in the victim's lungs, but not of a quantity to suggest that the victim's death was caused by drowning rather than strangulation. Dr. Carter acknowledged that it was possible for water to be present in the lungs if the victim was strangled in water. Dr. Carter said that the skin on the bottom of a person's hands and feet wrinkles when submerged in water because the water soaks in between the layers of skin. Dr. Carter said that such wrinkling usually occurs, whether the person is alive or dead, within fifteen to twenty minutes of being submerged in water. Dr. Carter said that an examination of the victim's hands and feet revealed only a minimal amount of wrinkling and did not support a finding that the victim had been submerged in water for a significant length of time.
Dr. Carter said that constant pressure around the neck would lead to death in three to seven minutes. Dr. Carter observed some early signs of rigor mortis when the autopsy was performed at approximately 9:00 a.m. on November 5, 2004. Dr. Carter said it was her understanding that the victim's body had been discovered approximately six hours earlier, and signs of rigor mortis generally became evident approximately six hours after death. Based on her findings, Dr. Carter estimated that the time of death was between the time of the discovery of the body to one or two hours earlier. Dr. Carter stated that no drugs or alcohol were found in the victim's body.
Dr. Carter said that she had performed autopsies on people who had died from erotic asphyxiation. Dr. Carter said that a crime scene investigation was very important to determine if the death resulted from such activity. Dr. Carter said that she usually looked for ligatures, pornography, or signs of a safe escape such as something that needs to be pulled to release the choking. Dr. Carter said that generally the victim is found in the position where they accidentally asphyxiated. Dr. Carter stated that the victim's injuries were not consistent with a death from erotic asphyxiation because there were multiple injuries to the victim's neck muscles as opposed to a pattern made by some type of ligature.
On cross-examination, Dr. Carter acknowledged that there were no fractures present in the victim's thyroid cartilage or hyoid bone, and there were no defensive wounds. The victim's acrylic fingernails were not damaged. Dr. Carter disagreed that the victim's injuries were consistent with the application of a choke hold. Dr. Carter stated that placing the victim in a choke hold by using the forearm would have inflicted a wider distribution of pressure related injuries as opposed to the individual areas of injury found in the victim's body.
Kristie Woods testified that she met Defendant in the spring of 2002, and the couple dated until the victim's death. Ms. Woods said that she and Defendant were involved sexually during this period of time. Defendant told Ms. Woods that he was married around Thanksgiving 2002, but she decided to continue the relationship. After Ms. Woods graduated from college in 2003, Defendant subsidized the cost of her apartment. In October 2004, Defendant told Ms. Woods that he would "make things right." Ms. Woods believed at this time that Defendant meant that he would leave the victim.
Ms. Woods said that she and Defendant belonged to a social motorcycle club. Defendant also owned a business which rented a facility for parties and gatherings. Ms. Woods helped with the business but was not paid for her services. The funds generated by the rental business were used to support the motorcycle club's activities. Ms. Woods said that she saw the victim at a motorcycle sports track one time when Ms. Woods was with Defendant.
In June 2004, Ms. Woods and Defendant attended a party together. Ms. Woods said that Defendant became upset with her because she was dancing with other people. They argued, and Defendant put his hands around her neck and applied pressure. Defendant told Ms. Woods not to call him anymore. Ms. Woods responded, "okay, " and left the party.
Ms. Woods said that she called the victim as she drove away from the party. She told the victim who she was and gave the victim directions to her apartment. After the victim arrived at Ms. Woods' apartment, the two women drove to a local fast food restaurant to talk. Ms. Woods said that Defendant repeatedly called her on her cell phone while she and the victim were talking, but Defendant did not know that Ms. Woods was with the victim. Ms. Woods arrived back at her apartment around 6:00 a.m., and Defendant arrived shortly thereafter. Defendant confronted Ms. Woods about calling the victim and then left. Ms. Woods said Defendant kept calling her after the incident, and a few days later the two resumed their relationship.
In September 2004, Defendant confronted Ms. Woods about a man she had met at a Labor Day party. Defendant obtained a copy of Ms. Woods' telephone records and argued with her when Ms. Woods returned from a weekend trip to Mississippi where the man attended college. Ms. Woods said that Defendant grabbed her by the arms and threw her on the couch, and then banged her head against the wall. Ms. Woods managed to escape his grasp, and they wrestled in front of the couch. Defendant grabbed her by the neck and banged her head against a glass table as he applied pressure to her neck. Ms. Woods said that Defendant then left the apartment.
Ms. Woods acknowledged that she slashed the victim's car tires in September 2004, because she was angry with Defendant. Ms. Woods left the victim $120 in cash in her mailbox to cover the cost of replacing the tires. Ms. Woods said that she resumed her relationship with Defendant after the September altercation and continued to have contact with him after his arrest until June 2005.
Ms. Woods said that she did not know what the term "erotic asphyxia" meant before the trial. Ms. Woods acknowledged that Defendant sometimes placed his forearm against Ms. Woods' neck while they had sexual intercourse. Ms. Woods said that Defendant would apply pressure to her neck but not to a great extent.
Ms. Woods said that Defendant was at her apartment on the evening of November 4, 2004, and left at approximately 8:45 p.m. to meet a repairman at the motorcycle club. Ms. Woods telephoned Defendant between 10:30 and 11:00 p.m. to tell him that she was going to bed. Ms. Woods said that Defendant told her that he was driving home from the club. Ms. Woods acknowledged that she avoided the investigating officers for a period of time after Defendant's arrest.
On cross-examination, Ms. Woods said that her nickname in the motorcycle club was "the soldier." Ms. Woods said that she and Defendant were open about their relationship with the other members of the club, and the victim knew about her relationship with Defendant before Ms. Woods called her….
Ms. Woods said that it was not unusual for Defendant to make numerous cell phone calls during any given day. Ms. Woods said that she was not able to reach Defendant immediately on November 5, 2004. When she finally got through, Defendant was crying and hysterical.
Ms. Woods acknowledged that Defendant had not taken any steps to end his marriage during their relationship, and she was under the impression that Defendant and the victim would continue to live together. Ms. Woods said that she was not afraid that Defendant would hurt her. Ms. Woods stated that she was aware of Defendant's reputation in the community and said that Defendant "was always trying to lend a helping hand."
On redirect examination, Ms. Woods said that she did not know either Lieutenant Mitchell or Officer Fair. Ms. Woods admitted that she was not aware of Defendant's altercation with the victim in 1996 which led to the issuance of an order of protection. Ms. Woods said that Defendant told her in June 2004 that the victim had filed for divorce. Ms. Woods added that she was not aware that Defendant had two other prior physical altercations with the victim. Ms. Woods said that she was not aware that Defendant had been convicted of assault in 1990 and misdemeanor theft in 1992. Ms. Woods testified that knowing these facts would change her opinion about Defendant's reputation in the community.
On recross-examination, Ms. Woods said that the victim did not mention any of her prior altercations with Defendant during their conversation in June 2004.
Sheronda Smith, the victim's friend, testified that she and the victim talked to each [other] several times each day by telephone. Ms. Smith talked to the victim at approximately 9:00 p.m. and again at approximately 11:00 p.m. on November 4, 2004. Ms. Smith helped straighten up the victim's bedroom and bathroom during the afternoon of November 5, 2004. Ms. Smith said that the bathtub was still filled with water. When the water was drained, Ms. Smith found some hair which she believed to be that of the victim and the victim's earrings. Ms. Smith said that she also found what appeared to be another earring in the bottom of the tub. Ms. Smith stated that earlier that afternoon, Defendant told her he had lost his nipple ring. Defendant went into the bedroom to search for the ring but could not find it.
On cross-examination, Ms. Smith said that she accompanied Defendant and the victim to North Carolina. Ms. Smith said that there was a display at the hotel with sadomasochistic overtones, and that Defendant appeared interested in the display. Ms. Smith said that she was aware that Defendant had pierced his nipples.
Vera Cole, Defendant's sister-in-law, testified that the victim came to her house one night between 10:00 p.m. and 11:00 p.m., crying and upset. The victim told Ms. Cole that Defendant had pulled her down a flight of stairs by her hair.
Ms. Cole said that she and her husband had a fight on November 4, 2004, and Mr. Cole left the house without his cell phone. Ms. Cole said that the cell phone rang at approximately 1:36 a.m. and again at 1:38 a.m. Defendant's cell phone number was displayed on the caller identification, so Ms. Cole did not answer the calls. Ms. Cole thought her husband had gone to Defendant's house and was calling her on Defendant's cell phone. On cross-examination, Ms. Cole acknowledged that the two telephone calls did not appear on the telephone records introduced as exhibits but insisted the calls were placed with Defendant's cell phone.
Magra Harden testified that she had known the victim since 1993 when the two women were students at The University of Tennessee. The victim lived with Ms. Harden during the spring and summer of 1995 while Defendant was a patient at a rehabilitation facility in Shelby County. Ms. Harden said that the victim came home one night after visiting Defendant at the facility upset, confused, and distraught. The victim told Ms. Harden that Defendant had choked her during an argument. Ms. Harden said that both sides of the victim's neck were discolored, and the victim's voice was raspy.
Defendant testified on his own behalf. Defendant stated that he and the victim met at a party at college and dated for two or three years before they married. Defendant said he has a master's degree from the University of Memphis in administration and supervision. At the time of the incident, Defendant was the assistant principal at Hanley Elementary School.
Defendant acknowledged that he struck the victim in 1995 during an argument but denied that he dragged her down a flight of stairs. Defendant said that the victim lived with Ms. Harden for a period of time during their marriage, and the victim had an affair during this time. Defendant found some letters from the man and confronted the victim. Defendant said the couple argued and he "snapped." Defendant acknowledged that he hit the victim and held her in a choke hold on this occasion. Defendant said that he did not have any other altercations with the victim prior to her death.
Defendant testified that he and the victim had grown apart when he met Ms. Woods. Defendant said the relationship at first was just sexual, but he and Ms. Woods grew fond of each other. Defendant told Ms. Woods that he was married when the relationship became serious. Defendant stated that Ms. Woods grew obsessive about the relationship during the spring of 2004. Ms. Woods would telephone the victim and hang up. She also sent the victim text messages and e-mail. During the party in June 2004, the victim called Defendant and told him she was still getting messages from Ms. Woods. Defendant grew angry, grabbed Ms. Woods, and told her to leave his family alone. Defendant pushed Ms. Woods away and left the party.
Defendant's tenth wedding anniversary occurred during the Labor Day weekend. Ms. Woods was upset and slashed the victim's tires. Defendant went to Ms. Woods' apartment and confronted her about the incident. Defendant said he grabbed Ms. Woods and told her to leave the victim alone. Defendant denied that he banged Ms. Woods' head against a table or the wall.
Defendant said that he and the victim learned about various sexual practices from pornography and felt their experiments were "adventuresome." Defendant stated that he and the victim frequented a "swingers club" in Shelby County. Defendant added that the victim first suggested that they engage in erotic asphyxiation. Defendant testified that he would get behind the victim and place his arm around her neck, sometimes with his hands against the side of her neck. Defendant said that the victim would signal him with her fingers. If his hold was too tight, the victim would tap her fingers; if his hold was too loose, the victim would pinch him. When her fingers grew limp, Defendant would release his hold. Defendant said that the choking sensation heightened sexual pleasure. Defendant added that after he released his choke hold, he would lay the victim down until she "came around." Defendant said that they had engaged in the practice for approximately two years on a weekly basis.
On November 4, 2004, Defendant attended football practice with his sons, then returned home. Defendant said that he went to his club after dinner to meet a repairman. Defendant left the club at approximately 10:45 p.m. He received a telephone call from Ms. Woods at 10:57 p.m. After he arrived home, Defendant and the victim took a bath together which eventually led to sexual activities. The victim took a bath and then woke Defendant up at approximately 2:45 a.m. The victim asked for a "fixie, " her term for erotic asphyxiation. The couple got into the bathtub and turned the air jets on. Defendant said the water was very hot. Defendant proceeded to choke the victim. When her fingers grew limp, he released his hold and laid her back in the water with an inflatable pillow beneath her head. Defendant said that he went to bed and dozed off. He woke up between 3:45 and 3:50 a.m. and noticed that the victim had not come to bed. He went into the bathroom and found the victim submerged in the bath water.
Defendant said that he tried to lift the victim out of the water by grabbing her around the neck area and then around the waist, but he was unsuccessful. Defendant said that every time he let go of the victim, something pulled her back into the water. Defendant believed the victim's hair may have been caught in one of the air jets.
Defendant acknowledged that he made numerous cell phone calls after he discovered the victim's body. He said he called Captain Fifer because Captain Fifer had told Defendant to call him if he ever needed help. Defendant said that he did not tell the investigating officers that he and the victim had engaged in erotic asphyxiation because the victim would not have wanted him to disclose that activity. Defendant said his counsel then advised him not to make any more statements to the police.
Defendant identified several "sex toys" which were present in the couple's bedroom at the time of the incident. Defendant acknowledged that he discussed the victim's insurance policy while he was confined in the county jail. Defendant said his mother asked about the release of the proceeds because she had the custody and care of Defendant's sons. Defendant said that he never intended to end his marriage with the victim. He acknowledged that he had previously attended a rehabilitation facility as a result of alcohol and cocaine abuse. Defendant said that he had been sober for ten years.
Defendant denied that he intentionally killed his wife, or that he choked her to death in anger. When asked if the victim's death was an accident, he responded, "Yes."
On cross-examination, Defendant said that he was five feet, four inches tall and weighed between 170 and 175 pounds at the time of the victim's death. Defendant acknowledged that the victim visited him at the rehabilitation center, but he denied that he choked her on this occasion. Defendant said that his relationship with Ms. Woods ended in June or July, 2004. Defendant conceded he continued to see Ms. Woods on a friendship basis. Defendant acknowledged that there were two bottles of Skyy Blue malt beverage in the bedroom and bathroom, and he said that the victim drank the alcohol. Defendant said that he later found his nipple ring inside his shirt, and the ring was not the one found in the bathtub after the victim's death.
Dr. Mark Schwartz testified that he is a psychologist, with a doctor of science degree, specializing in sexual and relational therapy. Dr. Schwartz is also a member of the faculty of the St. Louis University's Department of Psychiatry and teaches a course in sexual medicine. Dr. Schwartz's specialty has been in the areas of sexual trauma, sexual deviation, and sexual offenders. Dr. Schwartz defined erotic asphyxiation as the limiting of oxygen to the brain during orgasm. The activity decreases dopamine, increases the endorphin, and enhances sexual arousal. Like most addictions, participants develop a tolerance level which leads to increased risk taking and increased risk of death or an accident. Participants also engage in the activity with increased frequency.
Dr. Schwartz said that he met with Defendant for two and one-half hours the night before the trial. He stated that the use of the forearm to increase pressure on the partner's throat was an effective form of erotic asphyxiation. Dr. Schwartz said that a distinguishing feature of a crime scene involving erotic asphyxiation as opposed to suicide or homicide by strangulation was the presence of ligatures or sexual devices such as dildos and whips. Dr. Schwartz said that participants in the activity were almost always involved in other excitement inducing activities such as riding motorcycles or deviant sexual activities such as swingers clubs. Body piercing was also common among participants of erotic asphyxiation.
Dr. Schwartz said that Defendant's explanation of the use of hand signals to control the application and release of pressure around the neck supported his credibility because someone who had not engaged in erotic asphyxiation would not grasp the significance of anticipating a signal for release. Dr. Schwartz explained that the problem with the system described by Defendant was that the partner waits longer and longer before signaling release, and it was a "lethal kind of system that they used."
Dr. Schwartz stated that as a result of his interview with Defendant and review of the material which had been introduced into evidence, it was his opinion that the victim's death was an accident due to erotic asphyxiation.
On cross-examination, Dr. Schwartz verified that he was not a medical doctor.

Vern Braswell, 2008 WL 238014, at *1-11.

         Post-Conviction Proceedings

         The Petitioner filed a pro se petition for post-conviction relief in which he claimed that trial counsel was ineffective at trial and that the prosecution engaged in multiple acts of prosecutorial misconduct, including the failure to disclose favorable evidence to the defense. The post-conviction court appointed attorney Ms. Taylor Eskridge to represent the Petitioner, and Ms. Eskridge filed an amended petition in August 2009. In March 2011, Assistant Attorney General Doug Carriker filed a response to the petition, and an evidentiary hearing was scheduled for July 2011.

         During an April 20, 2011 report date, Ms. Eskridge requested that the evidentiary hearing be continued. During a bench conference, the following exchange occurred:

GENERAL CARRIKER: I need to sit down with [Assistant Attorney General Glen] Baity and review with him, regarding what he wants her to get from me. There is some of this stuff that I am not comfortable just handing over in Court, so I'll need someone else to review it, too. And that is partly because [District Attorney General Amy] Weirich had things marked as, "not exculpatory, " in bold letters in an envelope and it is sealed. And I want to make sure that before I hand something over that I am not going to-
THE COURT: Oh, my gosh.
MS. ESKRIDGE: Now of course, that wets my appetite, I'm like, what's in the envelope?
THE COURT: For all I know you can file a freedom of information act request for all of that.
GENERAL CARRIKER: And [General] Baity has called me this morning, called me in to make an open file discovery, but I want to meet with him and sit down and show him what he's requesting that we-but, we did find a couple of things that he had questioned the day we met and I want to show him what-to make sure I'm doing the right thing and not getting myself in trouble with the State, whatsoever.

         General Carriker also stated that he needed time to review the file and locate additional items requested by the Petitioner. The post-conviction court agreed to continue the evidentiary hearing.

         During a report date on July 1, 2011, General Carriker informed the post-conviction court that he still needed to meet with General Weirich, explaining, "I've got to meet with her and let her review it, she was the trial lawyer and I want to get with her before I turn over things that she says I shouldn't be turning over." On July 28, 2011, the post-conviction court entered an order allowing Ms. Eskridge to withdraw as counsel for the Petitioner and for current post-conviction counsel to be substituted as attorney of record.

         During a February 13, 2013 report date, post-conviction counsel reported to the post-conviction court that counsel and Assistant Attorney General Marques Young, the prosecutor who had since been assigned the case, met and determined that General Young needed to speak with General Carriker, the prosecutor on the case "two prosecutors ago, " to obtain "the full story on who has dealt with this and what's going on in the case." The Petitioner filed an amended petition on August 2013. The Petitioner raised additional claims of ineffective assistance of counsel and that "[t]he State failed to produce exculpatory evidence in this matter. Since such failure to produce, the evidence has not been able to be located."

         During a bench conference at a report date on October 11, 2013, post-conviction counsel discussed "an envelope that had a sticky writing on the front of it that said, something along the lines of, what [Ms. Eskridge] remembered it saying was, 'Do not turn over to defense counsel.'" Post-conviction counsel reported that she and General Young reviewed the State's file and were unable to locate the envelope. Post-conviction counsel stated that General Young and General Carriker then searched the file and found something that might be the item for which they were searching but that the item appeared different from what both General Carriker and Ms. Eskridge recalled. While the post-conviction court stated that it recalled the discussion of the item, the court could not recall whether an order was ever entered requiring the State to turn the item over to the Petitioner and suggested that the parties review the filings.

         Evidentiary hearings were held throughout 2014, 2015, and 2016. During this time period, the Petitioner filed multiple amended petitions raising additional claims of ineffective assistance of counsel and prosecutorial misconduct due to the State's failure to provide as exculpatory evidence the items from the sealed envelope, statements from witnesses, and other documents.

         The Petitioner's Proof

         General Carriker testified that he was a prosecutor in the post-conviction court's courtroom in 2011 and was assigned to the Petitioner's post-conviction case by the division leader, Assistant District Attorney General Glen Baity, in February 2011. Upon receiving the case, he spoke to Ms. Eskridge and learned that none of the prosecutors who had previously been assigned the case had filed a response to the post-conviction petition or allowed her to see the State's file. General Carriker subsequently filed a response to the Petitioner's petition.

         General Carriker met with Ms. Eskridge on two occasions as his office. He and Ms. Eskridge spent the first meeting determining the progress of the case and the tasks that needed to be completed. During the second meeting on April 4, 2011, they reviewed the State's files, which consisted of two large accordion files. General Carriker said he allowed Ms. Eskridge to engage in "open file discovery" and to make notes and copies of anything in the State's file that she wanted. During the meeting, General Carriker located a sealed manila envelope in the file. He estimated that the envelope was approximately one-half of an inch thick and appeared to have contained somewhere between one and one hundred pages. He recalled that on the outside of the manila envelope was a four-inch by four-inch "yellow sticky pad note" with language similar to "not turned over or do not turn over to defense." The note was dated "2005 or so" and had the initials of District Attorney General Amy Weirich, the prosecutor at the Petitioner's trial. Ms. Eskridge asked to look inside the envelope, and General Carriker told her that he would prefer to obtain permission from his superiors first.

         General Carriker testified that he learned shortly after Thanksgiving of 2011 that he was being transferred to the domestic violence unit effective January 2012, and he was instructed that all of his cases would be reassigned to other prosecutors. The Petitioner's post-conviction case was reassigned to Assistant District Attorney General Melanie Headley Cox, and General Carriker gave General Cox the State's file sometime during the first or second week of December 2011.

         General Carriker testified that he never unsealed the envelope and never looked inside it. He explained that he did not want to open the seal until he had a chance to speak to someone about it. He did not recall ever giving the envelope to Ms. Eskridge for her review. He said that he kept the State's file in his office while he was assigned the case and did not recall removing the envelope from the file. He did not know whether the envelope was still in the State's file upon his transfer. Ms. Eskridge later withdrew as counsel for the Petitioner.

         General Carriker recalled that Assistant District Attorney General Betsy Carnesale Wiseman, who was one of the prosecutors at trial, was his division leader prior to General Baity. General Carriker said that while he recalled speaking to General Wiseman about the case, he did not recall whether he had the envelope with him or whether they had a chance to look at the envelope. He also did not recall reviewing the State's file with her.

         Following his transfer, General Carriker did not hear anything else about the envelope until he was approached by either post-conviction counsel or Assistant District Attorney Marques Young and informed that the envelope could not be located. General Carriker went to General Young's office and searched the State's file but was unable to locate the envelope. Instead, he found an open-faced file folder, which he described as a lighter "beige" color than the manila envelope. He stated that the sealed manila envelope was standard-sized for letter-sized paper, while the folder was a legal-sized file. He also stated that the sealed manila envelope was

a fold top, and it was the type that has a metal prong that starts like this and when you close it, and wrap the thing over it, you pull the prong down and it closes and you can also, usually it has some kind of adhesive on the back that you can lick or use a wet sponge and close it and it will seal.

         Inside the file folder was about thirty or forty pages attached with a binder clip and a four-inch by four-inch yellow note. General Carriker testified that he "couldn't say it's not the same note, but it's very similar as far as what it says on it." The note stated in black ink:

         I am NOT giving these items in discovery.


         In smaller lettering in blue ink, the note stated:

Jencks STMTS of witnesses who testified were turned over at the appropriate time.

         We note that the trial occurred on December 5-9, 2005.

         The note, the file folder, and the contents were entered an Exhibit 6 to the post-conviction hearing ("Exhibit 6"). The contents of Exhibit 6 included: (1) the statement of Mr. Billy M. Massey of the City of Memphis Fire Department on December 14, 2004; (2) Ms. Renee Welch's statement on November 18, 2004; (3) documents labeled "Braswell's Burglar Alarm Information"; (4) the victim's employment and medical information from the victim's employer; (5) an authorization for release of the victim's medical, employment, and financial records signed by the Petitioner; (6) a handwritten journal entry dated November 29, 2002, on stationary from Comfort Suites in Grand Prairie, Texas; (7) a typewritten letter from the victim to the Petitioner dated March 24, 2004; and (8) a typewritten letter from the Petitioner to the victim. Handwritten in the bottom right-hand corner of items (6), (7), and (8) was "11/19/04 PW 10:47 AM, " and the evidence presented at the evidentiary hearing established that the initials were those of the victim's mother, Pauline Washburn.

         On cross-examination, General Carriker testified that the pages in Exhibit 6 were "close to the thickness" to the manila envelope but that it "[c]ould have been more, could have been a little less, I really don't know." He stated that the wording on the note in Exhibit 6 was "very similar" to the wording on the note from the manila envelope. He explained that "the main part of the wording is that I am not giving these items in discovery and then at the bottom [are] initials and the date. I remember that, it's very similar, I can't say more than that, though."

         On redirect examination, General Carriker acknowledged that he was not certain that the note on the manila envelope was the same note in Exhibit 6. He stated that as far as he knew, the manila envelope was in the file the last time that he possessed it. He did not know what happened to the manila envelope after he was transferred out of the division. He testified that he "[d]idn't see [the manila envelope] today, didn't see it last fall when I was made aware of it … not being there."

         Ms. Taylor Eskridge was appointed in 2009 to represent the Petitioner in the post-conviction proceedings. She filed a motion for discovery and inspection of the State's evidence in March 2009 and attempted to review the State's file for more than one year without success. She stated that she was told that no one knew where the file was and was provided different reasons why she could not have access to the file. At one point, Assistant Attorney General Brian Davis, who was previously assigned the post-conviction case, informed Ms. Eskridge that the State's file was in California.

         After General Carriker was assigned the case, Ms. Eskridge met with him and reviewed the State's file. Ms. Eskridge testified that while reviewing the file, they discovered a letter-sized envelope with a fold over the top that was sealed. She believed the envelope also had a prong for closing the envelope but said "it wasn't prong closed, it was closed with a seal that I recall." She recalled a note on the envelope that said "do not show defense or something like that. But it was something that caught both of our attentions." She stated that the note had "just a few words. It was written in big bold like a marker or something but it was on a post it note stuck to the front of it. But it was something that made us realize that it wasn't something that defense counsel was supposed to see." Ms. Eskridge believed the note included someone's initials or signature but could not remember. She could not recall the words on the note and said "it was something that was not usual. It wasn't like, it's not discoverable or not…, it was something that we hadn't seen before and so it made us both pause." She did not recall whether the writing was in blue or black ink or any other pen markings or other writing on the note.

         Ms. Eskridge testified that General Carriker informed her that he should obtain authorization before showing the information in the envelope to her. She never received the information that was inside the envelope and never saw the envelope again. She said she and the Petitioner discussed the envelope on several occasions. Ms. Eskridge later withdrew as counsel, and post-conviction counsel was substituted as attorney of record.

         Ms. Eskridge testified that Exhibit 6 did not include the envelope or the note that she saw while she and General Carriker were reviewing the State's file. She explained that unlike the note in Exhibit 6, the note that she saw did not include the language, "I am not giving these items in discovery." She said that although she could not recall the exact words on the note, "it was something shocking." She also said that the note in Exhibit 6 implied that the folder included Jencks material, which would not have been discoverable prior to trial but would have been provided to the defense when the witness testified at trial and to post-conviction counsel during post-conviction proceedings.

         On cross-examination, Ms. Eskridge testified that although she could not recall the exact words on the note that she saw during her meeting with General Carriker, the note in Exhibit 6 was not the same note. She said the language on the note that she saw during the meeting was unusual and that it alarmed both her and General Carriker. Ms. Eskridge stated that the note she saw during the meeting "implied that the defense should never see it" and made General Carriker understand that he should not open the manila envelope in front of her and should obtain approval before showing her the contents of the envelope. Ms. Eskridge stated that the note in Exhibit 6, however, did not say that the defense could never see the contents of the folder but that the material was not being provided in discovery. She believed that had she and General Carriker seen the note in Exhibit 6, General Carriker would have provided her with the material in the manila envelope because the note stated that the material had already been provided to the defense at the appropriate time.

         Ms. Eskridge testified that she and General Carriker informed the post-conviction court that General Carriker planned to seek approval and then allow her to view the contents of the envelope. Ms. Eskridge stated that she would have filed a motion regarding the material had General Carriker indicated that he did not intend to comply with her request. She said she "was willing to, as a colleague, give him the amount of time that he requested to get it done."

         On redirect examination, Ms. Eskridge testified that General Carriker appeared to be "uncomfortable" and "in shock" upon seeing the note. She informed post-conviction counsel about the envelope once post-conviction counsel began representing the Petitioner. While Ms. Eskridge acknowledged that she was unsure of the exact words on the note that she saw during the meeting, she was "sure" that the note in Exhibit 6 was not the same note and that Exhibit 6 did not include the manila envelope.

         Assistant District Attorney General Melanie Cox testified that she represented the State in the Petitioner's post-conviction case while assigned to the post-conviction court's courtroom from January 2012 until August 2012. General Cox did not review the State's file to a great extent while the case was assigned to her and never came across a sealed manila envelope with a note stating, "Do not show defense."

         On cross-examination, General Cox testified that prosecutors, generally, did not take any action on a post-conviction case until the case was set for a hearing. When she was assigned the Petitioner's case, it was reset on multiple occasions, and as a result, she never really looked at the file. She said neither General Carriker nor a defense attorney told her there was any problem with the case. General Cox did not recall speaking to Ms. Eskridge about the case and stated that post-conviction counsel was representing the Petitioner when General Cox was assigned the case.

         Trial counsel served as lead counsel at the Petitioner's trial, and his father served as co-counsel. Trial counsel had previously represented the Petitioner and knew him outside of the legal system. Mr. Glen Wright represented the Petitioner during the initial appearance and the arraignment in general sessions court, and Mr. Leslie Ballin and trial counsel represented the Petitioner during the preliminary hearing. Trial counsel testified that the defense theory at trial was that the Petitioner and the victim had engaged in erotic asphyxiation on the night of the victim's death, that the victim died sometime later, and that her death was not intentional.

         Trial counsel testified that the Petitioner initially maintained that the victim must have drowned and that she was stuck in the Jacuzzi. Trial counsel initially looked at the possibility that the victim drowned. He said that he later learned that following the Petitioner's arrest, the Petitioner informed Mr. Wright that he had engaged in erotic asphyxiation with the victim, but trial counsel maintained that the Petitioner, initially, did not share this information with him.

         Dr. Joye Carter, the State's forensic pathologist, concluded that the victim died as the result of manual strangulation, and trial counsel noted that the victim had markings around her neck. Trial counsel testified that throughout the preliminary hearing and the trial, Dr. Carter was "overtly defensive" and had "very strong feelings" which he considered "abnormal" for a physician. Trial counsel contacted Dr. Carter in preparing his case, but Dr. Carter stopped talking to him once she realized that he was questioning her conclusions. Trial counsel then spoke to Dr. O.C. Smith, Dr. Karen Chancellor, Dr. George Nichols, and Dr. Todd Brooks about the case.

         Trial counsel testified that in order to obtain an objective view of the autopsy and to either support or exclude the Petitioner's claim that the victim must have drowned, trial counsel hired Dr. George Nichols, a forensic pathologist, to review the medical examiner's report. Trial counsel wanted an independent pathologist outside Memphis who had not necessarily worked with the attorney general's office. Trial counsel did not inform Dr. Nichols of the theory of defense. Trial counsel said he did not retain Dr. Nichols as a "fact witness" and did not want to turn over Dr. Nichols's report to the State if it included information that was helpful to the prosecution. Rather, trial counsel stated his hiring of Dr. Nichols "was part of work product so that [h]e could get an objective view of this autopsy."

         Trial counsel did not believe he only sent Dr. Nichols the autopsy report and the photographs but believed he sent Dr. Nichols everything in his possession that related to the crime scene and the autopsy, including trial counsel's typewritten notes from his conversations with Dr. Smith and Dr. Brooks. While trial counsel acknowledged that crime scene photographs and evidence of sexual activity would have been important to a forensic pathologist in reviewing whether a death involved erotic asphyxiation, trial counsel stated that he was not yet pursuing erotic asphyxiation as a theory of defense when he retained Dr. Nichols. Trial counsel did not believe he sent the transcript of the preliminary hearing to Dr. Nichols and explained that he wanted an objective view of what Dr. Nichols saw and without anything to influence Dr. Nichols's observations.

         Dr. Nichols informed trial counsel that he did not believe that the victim drowned but that she died due to strangulation. Trial counsel did not recall whether he discussed with Dr. Nichols the possibility that there was a delay between the strangulation and the victim's death or whether he followed up with Dr. Nichols once he began focusing upon erotic asphyxiation as a defense theory. Trial counsel testified that had he done so and had Dr. Nichols ...

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