IN THE CRIMINAL COURT

OF HAMILTON COUNTY TENNESSEE

DIVISION III

STATE OF TENNESSEE )
)
)
)
v. ) No: 295881
)
BENJAMIN BREWER )
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STATE OF TENNESSEES RESPONSE TO DEFENDANTS

NOTICE OF BRADY VIOLATION AND REQUEST FOR APPROPRIATE REMEDY

Comes now the State of Tennessee, by and through the District Attorney

Generals Office, and would file a Response to Defendants Notice of Brady

Violation and Request for Appropriate Remedy. The State of Tennessee would

more specifically show as follows:

1. That a jury trial in the above-captioned indictment is set to commence

Monday June 19th , 2017 with a jury from Davidson County, Tennessee.

2. That on or about Wednesday June 14th 2017, the Public Defenders Office

claims they were made aware of a second toxicology test on the defendants

blood sample.

3. That on Thursday June 15th 2017, the Public Defenders Office notified

the State of Tennessee of the second toxicology test and later both parties had

a phone conference with the Honorable Judge Don W. Poole about this same issue.

4. That on Friday June 16th 2017, Mike Little, Deputy Public Defender, filed

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a pleading styled Notice of Brady Violation and Request for Appropriate Remedy.

5. That this case involves a crash that occurred on Interstate I-75 North

wherein six people were killed. That the Chattanooga Police Department and the

Tennessee Highway Patrol conducted an investigation into this crash. That the

Chattanooga Police presented their investigative findings to the Hamilton County

Grand Jury wherein the defendant was indicted for thirteen (13) different criminal

charges.

6. The National Transportation Safety Board (NTSB) conducted its own

investigation into this crash. The NTSB is an independent US government

investigative agency responsible for civil transportation accident investigation.

NTSB investigations are not of a criminal nature.

7. That in the discovery materials provided to defense counsel, there are

mentions of the NTSB investigation as well as some documents from the NTSB.

These materials are not required to be provided under the Tennessee Rules of

Criminal Procedure but were provided to the Public Defenders Office.

That the NTSB produces a preliminary report as well as an accident report of all of

its investigations. These reports are made public and accessible via the internet

as well as other public sources of information such as newspapers and other

periodicals (See Exhibit A)

8. That in September 2015, the Tennessee Bureau of Investigation (TBI)

forwarded a portion of defendants blood sample to the NTSB for testing.

9. That the NTSB released their accident report regarding the I-75 North

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crash on October 17, 2016. (See Exhibit B)

10. That the TBI and NTSB both found that the defendant had methamphetamine

and amphetamine present in his blood at the time of the traffic crash. The reports

differ in the quantitative amount of methamphetamine and amphetamine present.

11. That the public NTSB accident report mentions both the TBI toxicology

test and the NTSB toxicology test and a footnote offers reasons for the difference

in the TBI test and the NTSB toxicology test. (See Exhibit C)

12. That neither the NTSB accident report nor the NTSB toxicology report were

ever given to the State of Tennessee but instead the accident report was made

available on the NTSB website located at www.ntsb.gov/. Such report is available

to review for any citizen who wishes to access it.

13. That defense counsel claims that the NTSB toxicology report is exculpatory

in nature and thus they should have been given a copy.

14. That the NTSB test is actually inculpatory in nature and not exculpatory.

In order to convict the defendant of vehicular homicide by intoxication, the State

of Tennessee must show that the defendant killed the six victims by operation of a

motor vehicle; and that the defendant acted recklessly; and that the killing was the

proximate result of the drivers intoxication. Intoxication is defined as acting under

the influence of an intoxicant, marijuana, a controlled substance, a controlled

substance analogue, a drug, a substance affecting the central nervous system or

any combination thereof. (See Exhibit D)

15. That to convict the defendant of driving under the influence (DUI) the State

of Tennessee must prove that the defendant was in physical control of a motor

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vehicle on a roadway while under the influence of an intoxicant, marijuana, a

narcotic drug, or a drug producing stimulating effects on the central nervous

system. Any amount of methamphetamine in the defendants blood is a violation

of Tennessee law. The NTSB toxicology report like the TBI toxicology report shows

the defendant positive of methamphetamine and amphetamine. Such evidence is

inculpatory and no credible argument can be made by defense counsel to make this

evidence appear exculpatory. (See Exhibit E)

16. That under the Tennessee Rules of Criminal Procedure, the NTSB accident

report and the NTSB toxicology report are not discoverable and thus not subject

to disclosure by the State of Tennessee. Reports of examinations and tests are

discoverable only if they are within the states possession, custody, or control.

The NTSB is a federal agency created by the United States Congress in 1967 as

an agency responsible for civil transportation accident investigation. Thus,

the NTSB is not a state actor and clearly not within the State of Tennessees

possession, custody, or control.

17. That defense counsel fails in their Notice of Brady Violation and Request
for

Appropriate Remedy to cite to this Honorable Court case law that is contrary to the

position they argue before this Honorable Court. Defense counsel also fails to

provide this Honorable Court with any law to support the allegations contained

in their pleading.

18. That the State of Tennessee contends the NTSB toxicology report is

inculpatory in nature. However for arguments sake, let us all assume the NTSB

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toxicology report is exculpatory in nature and an item that the defendant opines

the State of Tennessee must provide concurrent with the case of Brady v. Maryland

and its progeny. The prosecution is not required to disclose information that the

accused already possesses or is able to obtain, State v. Caldwell, 656 S.W.2d 894,

896-7 (Tenn.Crim.App. 1983); Banks v. State, 556 S.W.2d 88,90 (Tenn.Crim.

App. 1977) or information which is not possessed by or under the control of the

prosecution or governmental agency. Nor is the prosecution required to seek out

exculpatory evidence not already in its possession or in the possession of a

governmental agency. See United States v. Xheka, 704 F.2d 974, 982 (7th Cir.),

cert. denied, 464 U.S. 993, 104 S. Ct. 486, 78 L.Ed.2d 682 (1983). When

exculpatory evidence is equally available to the prosecution and the accused, the

accused must bear the responsibility of his failure to seek its discovery. United

States v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985).

19. The Public Defenders Office stated to the prosecution and this Honorable

Court that they have within their possession approximately 2,500 pages of

documents from the NTSB regarding the Interstate I-75 crash. The Public

Defenders Office obviously had access and still has access to the NTSB documents

before the filing of their Notice of Brady Violation and Request for Appropriate

Remedy. In addition to this fact, the NTSB accident report was made available to the

public in October 2016. Deputy Public Defender Mike Little also indicates he

listened to the NTSB public docket regarding the Interstate I-75 crash.

20. The Public Defenders Office has access to the very documents they allege

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were withheld from them. As applicable case law states, the accused must bear

the responsibility of his failure to seek its discovery.

21. Instead of admitting that their office has access to NTSB documents and that

the State has no duty to disclose evidence equally accessible to all parties, Deputy

Public Defender Mike Little accuses the prosecution of violating applicable Rules

of Professional Conduct. Little made these allegations without reviewing applicable

law and also without admitting in his Brady notice that the Public Defenders Office

has access to NTSB documents.

22. That Brady violations can only occur after the prosecution presented

evidence in its case in chief and no such violations can occur prior to a jury

trial being commenced and jeopardy being attached.

____________________________________________________
Neal Pinkston
District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
423-209-7400

CERTIFICATE OF SERVICE

I certify to that a true and exact copy of the foregoing pleading has been served
via email or hand delivery this the __________day of June 2017:

District Public Defenders Office

___________________________________________

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