PNNESSEE
IN THE CRIMINAL COURT OF HAMILTON COUNTY,
STATE OF TENNESSEE, ) No. 310584
)
) DIVISION I
vs. )
) JUDGE B. STEELMAN
)
SANEL DURAKOVIC. )
NOTICE OF FINAL RI IR EXCULPATORY EVIDENC)
D
EXTRAMARITAL AFFAIRS OF DECI
COMES NOW defendant Sanal Durakovie, pursuant to the 5", 6" and 14% Amendments
to the United States Constitution and Article I, §§ 6, 8, 9 of the Tennessee Constitution’s
Declaration of Rights; Brady v. Maryland, 373 U.S. 83 (1963); U. S. v. Agurs, 427 U.S. 97
(1976); Giglio v. United States, 405 U.S. 150, 154 (1972); Hartman v. State, 896 8.W.24 94, 101
(Tenn. 1995); State v. Marshall, 845 S.W.2d 228 (Tenn. Crim. App. 1992), and moves to be
provided any and all evidence in possession of the State or any agent that might fairly be termed.
“favorable.” that has not previously been provided. Specifically requested, at least fourteen (14)
days prior to trial or, if later revealed, as soon as known to the State is:
1) any information, statements, investigatory material revealing or exploring
Patrick Godwin’s extramarital affait(s) which may have provided a motive or
reason for people other than the defendant to cause him harm,
Such evidence should be disclosed whether it be completely exculpatory in nature or
simply tends to reduce the degree of the offense or punishment therefore, or whether that
evidence might be termed “favorable” in the sense that it might be fairly used by the defendant to
impeach the credibility of any witness the government intends to call in this matter. See
generally Williams v. Dutton, 400 F.2d 797 (Sth Cir.1968).Notwithstanding the ‘open file’ policy of the Hamilton County District Attorney's Off
and its good faith efforts to comply with Brady, it occasionally oceurs that certain items are not
tured over promptly to the prosecutor by the police, rendering the ‘open file” incomplete. As
noted in the decisions below, this situation is not uncommon but requires that prosecutors be
proactive in comprehensively reviewing the files of their agents for exculpatory information, the
nature of which might not be immediately apparent to someone without specialized legal
training. As stated in Moldowen v, City of Warren, 578 F.3d 351, 379 (6 Cir. 2009),
Although the prosecutor undoubtedly plays a “special role” in “the search for
truth in criminal tials,” Strickler, 527 U.S. at 281, 119 S.Ct. 1936. the police also
play a unique and significant role in that process, and thus also are bound by the
government's constitutional obligation to “ensure that a miscartiage of justice
does not occur,” U.S. v, Bagley, 473 U.S. at 675, 105 8.Ct. 3375.
‘As the Fourth Circuit explained persuasively in Barbee v, Warden, Maryland
Penitentiary, 331 F.2d 842 (4th Cir.1964), “{t]he police are also part of the
prosecution, and the taint on the trial is no less if they, rather than the State's
Attorney, were guilty of the nondisclosure... The duty to disclose is that of the
state, which ordinarily acts through the prosecuting attorney; but if he too is the
victim of police suppression of the material information, the state's failure is not
on that account excused.” fd. at 846. In other words, because the police are just as
much an arm of the state as the prosecutor, the police inflict the same
constitutional injury when they hide, conceal, destroy, withhold, or even fail to
disclose material exculpatory information.
Accordingly, immediate action by the prosecutor in securing and reviewing al case
material from all State agents is absolutely critical to protect the defendant’s rights to
exculpatory, as well as merely discoverable, evidence. See also United States v. Keogh,
391 F.2d 138, 148 (2nd Cir. 1968) (holding that once a request for production is made,
the “prosecution knows of the defense's interest and, if it has failed to honor this even in
good faith, it has only itself to blame.”)In addition to information required under case law and the rules, specifically, counsel
seeks, but does not limit, his request to the following:
‘a, Any and all information in the possession of the state regarding the mental
condition of the State’s witnesses which would reflect or bring into question the
witnesses’ credibility. State v. Brown, 552 S.W.2d 383 (Tenn. 1977),
». The original statement and any amendment thereto, of any individuals who
have provided the government with a statement inculpating the defendant, who
later retracted all or any portion of that statement where such retraction would
raise a conflict in the evidence which the state intends to introduce. See U.S. v
Enright, $79 F.2d 980, 3 Fed. R. Evid. Serv. 284 (6th Cit. 1978).
c. Any and all interview memoranda or reports, recordings, or the contents of
any statements not memorialized, which contain any information, whatever the
sources, which might fairly be said to contradict or be inconsistent with any
evidence which the government intends to adduce in this matter. See U.S. v.
Enright, 579 F.2d 980, 3 Fed. R. Evid. Serv. 284 (6th Cir. 1978).
. The names and addresses of any witnesses whom the State believes would
give testimony favorable to the defendant in regard to the matters alleged in the
indictment, even though the state may not be in possession of a statement of this
witness and regardless of whether the state intends to call this witness. See U.S. v
Eley, 335 F. Supp. 353 (N.D. Ga. 1972).
e. The results of any scientific tests or analysis done on any person or object in
connection with this case where the result of that test or analysis did not
implicate, or was neutral to the defendant. See Barbee v. Warden, Md.
Penitentiary, 331 F.2d 842 (4th Cir. 1964); Norris v. Slayton, 540 F.2d 1241 (4th
Cir.1976).
£ Any documentary evidence in the possession of the State which contradicts,
or is inconsistent with any testimony the State intends to introduce in this cause.
Rule 613, Tenn. Rules of Evidence (Impeachment with Prior Statements).WHEREFORE, itis the duty of the prosecutor to review by the prosecutor of all
‘materials held in the custody, control, or possession of the State or any of its agents, Kyles v.
Whitley, $14 U.S. 419 (1995), for exculpatory evidence. See State v. Foster, 942 S.W.2d 548,
550 (Tenn.Crim.App. 1996), recalled on other grounds, (Brady obligations include “a duty to
search possible sources” [where] ‘non-trivial prospeetfs]’ of material exculpatory information”
exist). Such action is necessary to, infer alia, a fair trial, compulsory process, confrontation, and
assistance of counsel, and due process under the 5", 6" and 14" Amendments and Article I, §§ 6,
8,9 of the Tennessee Declaration of Rights.
Respectfully submitted,
SUMMERS, ILO & RODGERS, P.C.,
By:
fenjaminrb-WcGowan, BPR No. 25560
The James Building
735 Broad Street, Suite 800
Chattanooga, Tennessee 37402
(423) 265-2385; (423) 266-521 1/fax.
[email protected]
CERTIFICATE OF SERVICE
1, the undersigned, hereby certify that a true and correct copy of the foregoing
document has been duly served upon:
KEVIN LOPER, Exec. Asst. District Attomey
ADDIE NESTER, Assistant District Attorney
600 Market Street, Room 310
Chattanooga, TN 37402
either by hand delivery or by placing a copy of same in the United States mail, properly
addressed with sufficient postage affixed thereto to carry same to its destination,
This Zt day of August 2023