The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on briefs November 9, 2011
DAVID KYLE GILLEY v. STATE OF TENNESSEE
Appeal from the Rutherford County Circuit Court
No. 64250 Don R. Ash, Judge
No. M2010-02447-CCA-R3-PC - Filed October 31, 2012
After a trial by jury, the petitioner was found guilty of first degree (premeditated)
murder, and he was sentenced to life in prison. His conviction was affirmed by this court on
direct appeal. The petitioner filed a petition for post-conviction relief, which was denied by
the post-conviction court following an evidentiary hearing. On appeal, the petitioner claims
that the post-conviction court erred by: (1) ruling that the State did not violate the petitioner’s
due process right to favorable evidence by failing to provide information related to the
testimony of a State witness; (2) ruling that the petitioner did not receive ineffective
assistance of counsel at this trial, and (3) denying his request for post-conviction DNA
analysis. After carefully reviewing the record and the arguments of the parties, we conclude
that the evidence does not preponderate against the post-conviction court’s finding that the
State in fact provided the petitioner with access to the favorable evidence in question and that
the trial court did not err in its conclusion that the petitioner received effective assistance of
counsel at trial. We further conclude that the post-conviction court was within its discretion
in denying the petitioner’s request for additional DNA analysis. Consequently, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, J.J., joined.
Ann C. Short, Robert R. Kurtz, Gianna Maio, Heather G. Parker. Rebecca S. Parsons, and
Lindsay N. Graham, of the University of Tennessee College of Law Innocence Clinic,
Knoxville, Tennesse (on appeal); John Drake, Murfreesboro, Tennessee (at the post-
conviction hearing), for the appellant, David Kyle Gilley.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; William C. Whitesell, District Attorney General, for the appellee, State of
Tennessee.
OPINION
FACTS AND PROCEDURAL HISTORY
The facts of this case were detailed by this court in State v. Gilley, 297 S.W.3d 739,
745 (Tenn. Crim. App. 2009), the petitioner’s direct appeal. To briefly summarize, in 2006,
after a lengthy investigation by a police cold-case unit, the petitioner was charged with and
convicted of the murder of his former girlfriend. The juvenile victim’s body, clad only in a
bra, was found on May 31, 1984, near an old rock quarry. A pair of “Rustler” jeans was
found near the victim’s head and a pair of women’s “Sergio Valente” jeans was found on the
victim’s body. Investigation by police and medical officers determined that the victim died
as a result of having her head smashed by some nearby rocks and that her body had been
dragged a short distance from the location of the homicide.
Blood splatter analysis of bloodstains found on the “Rustler” jeans indicated that they
had been worn by someone standing in close proximity to victim during the attack. Portions
of these jeans tested positive for the presence of spermatozoa, but none was found in the
crotch area. The spermatozoa found on the jeans were consistent with the petitioner’s blood
type, and DNA from both the petitioner and the victim was found on one area of the jeans.
At trial, witnesses testified that the victim worked her scheduled shift at her place of
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employment, Kroger, on the day she went missing. One of the victim’s co-workers saw the
victim’s car in the Kroger’s parking lot when the victim’s shift began, and that same witness
saw that the victim’s car was no longer in the parking lot when she showed up for her own
shift later in the day, after the victim’s shift had ended. When the witness finished her own
shift and left to return home, she saw that the victim’s car was back in the parking lot – but
this time parked in a different location. Analysis conducted on the victim’s vehicle by the
FBI crime laboratory mineralogy unit during the police investigation in 1984 matched mud
found on the side of the victim’s car to mud from the road leading to the quarry where the
victim’s body had been found.
An eyewitness saw a car matching the victim’s at an intersection close to the murder
site, and on the same side of the road as the quarry, on the afternoon of the murder. This
eyewitness testified that she remembered the incident because she waited for an extended
period of time for this car to move, but she finally had to proceed around it. The eyewitness
told police investigators in 1984 that the driver of this vehicle was a tall, slender-built male
with shoulder-length hair. Upon being shown a photographic array, she identified the
petitioner as the driver (and sole occupant) of this vehicle.
Another witness testified at the petitioner’s trial that she met the petitioner at a keg
party later the same year as the murder. She testified that she left the keg party with the
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petitioner, who took her to the rock quarry where the victim had been murdered. While they
were there, the petitioner asked her if she wanted to end up like the victim. When the witness
asked who the victim was, the petitioner told her that she was his ex-girlfriend and that he
had killed her. The witness testified that she told no one about the incident for many years
afterward because, after she told her family members the story, her father had instructed her
to “keep [her] mouth shut.” A police officer also testified that after this witness finally
relayed this story to him during the cold case investigation, she led him to a spot in the stone
quarry that was less than twenty yards from where the victim’s body had been found.
In addition to the eyewitness testimony, DNA, and forensic evidence directly tying the
petitioner to the murder scene and the evidence concerning the petitioner’s third-party
confession, the State also presented considerable circumstantial evidence that the petitioner
was the perpetrator. Family members and friends of the victim testified that the petitioner
was cold and emotionless in the days and weeks following the victim’s death. They testified
that on the day immediately following the murder, the petitioner went over to the victim’s
home in the company of someone seeking to comfort the family. Instead of consoling the
victim’s mother, however, the petitioner went to the victim’s bedroom, removed some letters
he had written to the victim,1 and left. After leaving, he went to a party, where he
propositioned one of the victim’s friends. This friend testified that after she refused the
1
A different witness testified that the petitioner had previously written letters to the victim in which
he had threatened her and warned her that if he could not have her, then no one would.
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petitioner’s advances, the petitioner told her that the victim had been cheating on him and
deserved what she got.
Police officers who interviewed the petitioner, both immediately following the crime
and during the cold case investigation, testified to the petitioner’s inconsistent statements and
unusual behavior during the interviews. The petitioner initially told police detectives that
he had seen the victim the night before the murder at the victim’s grandmother’s house and
that they briefly left the residence to have sex. He also told them that afterward, he worked
a night shift before falling asleep at his house and waking at a point in the afternoon that was
too late for him to have committed the crime. At an interview with a TBI agent later that
same year, the petitioner added that after he had sex with the victim the night before the
murder, he and the victim had cleaned themselves up using a pair of jeans. Later in that same
interview, when the TBI agent asked the petitioner a question implying that the victim might
have seen another man later that night, the petitioner “jumped out of his chair visibly
agitated.” A police officer who interviewed the petitioner in May of 2000 testified that the
petitioner claimed to him that he had not had sex with the victim within two or three days of
her death.
The State also presented circumstantial evidence intended to establish the petitioner’s
motive, identity, and intent. Numerous witnesses testified that the victim was seeing other
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men while she was seeing the petitioner, that the petitioner periodically became aware of this
fact, and that the petitioner acted violently toward the victim during his resulting fits of
jealously. Moreover, six separate witnesses testified concerning five separate major (and
numerous minor) episodes of violence that they had witnessed involving the petitioner and
the victim. The witness’ testimony concerning all five episodes was remarkably similar.
According to these six witnesses, each episode followed a similar arc – it would begin with
the petitioner and the victim arguing, and as it continued the petitioner would begin yelling,
screaming, and sometimes cursing at the victim. Then the petitioner would generally escalate
the situation by resorting to physical violence. More specifically, he would usually grab the
victim’s head and drag or pull her around by her hair. These episodes almost always
culminated with the petitioner committing a far more serious physical assault, one which
either injured the victim or endangered her life.
For example, one witness testified concerning an episode that occurred in the parking
lot of a movie theater. This witness testified that he saw the petitioner arguing with the
victim while the victim was standing outside of the petitioner’s car. According to this
witness, at one point the victim reached inside of the petitioner’s car. The petitioner
responded by rolling up his car window on the victim’s arm. He then drove off, dragging the
victim by her arm alongside of his vehicle into the street. Eventually the victim’s arm
“popped” out, sending her sprawling onto the road.
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Another two witnesses testified that the petitioner grabbed the victim by her hair while
they were arguing at a local hangout known as the “party tree,” and then smashed her head
against a car window. One of these two witnesses also testified that, on a different occasion,
she saw the petitioner smash the victim’s head into a locker at their school. Yet another
witness testified that the petitioner jerked the victim around by her hair following an
argument at a school dance, and did not stop until a “big wad” of her hair had separated from
her head and remained in his hands. A fifth witness, who was unavailable at the petitioner’s
trial, gave prior sworn testimony that she had once seen the petitioner grab the victim by both
arms and twist them inwards while pulling her towards him after the two had a loud
argument.
The sixth witness, Ms. Mary Hunter Brown, testified that in 1984 she was a college
residential advisor in the victim’s dormitory. She testified that approximately two months
prior to the murder, the petitioner visited the victim and the two had a loud argument. She
went to the door of the victim’s room to investigate, and found the victim with a bloody nose
and a whelp on her right check. She testified that shortly afterward she heard the petitioner
call the victim a “two-timing bitch” before grabbing her by the hair and pulling her down the
hallway to the third floor stairwell. There, he dangled the victim over the edge and
threatened to kill her.
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In addition to these witnesses, several other witnesses also testified that, in the year
before the murder, they saw the petitioner and the victim argue, saw the petitioner accuse the
victim of cheating, saw injuries on the victim’s body, and heard the victim express that she
was afraid of the petitioner. After the State closed its case, the petitioner’s brother testified
on his behalf as an alibi witness, another of the petitioner’s ex-girlfriends testified that the
victim had threatened her on a prior occasion and that she had never seen the petitioner start
an argument with the victim, and a forensic scientist testified that the “Rustler” jeans found
by police at the crime scene could fit on a woman.
Ultimately, the jury found the petitioner guilty, and he was sentenced to life in prison.
The petitioner appealed, claiming unreasonable delay in his prosecution, challenging the
sufficiency of the evidence used to convict him, asserting the trial court had improperly
admitted character evidence that was prohibited by Tennessee Rule of Evidence 404(b), and
raising numerous additional claims. On August 13, 2008, this court affirmed the petitioner’s
conviction, and the Tennessee Supreme Court denied the petitioner’s application for
permission to appeal soon thereafter. See id. The petitioner filed a timely pro se petition for
post-conviction relief on February 5, 2010, and the post-conviction court, finding a colorable
claim, appointed counsel. At a hearing concerning the petitioner’s post-conviction petition
on September 27, 2010, the following evidence was presented:
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The first witness for the petitioner was the petitioner’s lead trial counsel. The
petitioner’s lead trial counsel testified that defending the petitioner was challenging because
of the eighteen year span of time between the victim’s murder and the petitioner’s
prosecution. He testified that his entire law firm assisted in the petitioner’s defense and that
he also employed an investigative agency on the petitioner’s behalf, an organization that was
run by a retired FBI agent. The witness testified that agency investigators attempted to
perform background checks on all of the witnesses on the prosecution’s witness list.
The petitioner’s lead trial counsel testified that prior to trial the prosecution gave him
access to documents concerning the petitioner’s case, and he was given “open file discovery”
at various stages. He testified that he was given access to all of the physical evidence, most
of the photographs, and a “good number” of witness statements – but not all of them – during
discovery. The witness testified that he filed a pre-trial motion to compel discovery and that
this motion specifically requested Brady material.
The petitioner’s lead trial counsel testified that in his opinion character witnesses were
a major component of State’s proof at the petitioner’s trial, and in his opinion this evidence
was convincing to the jury. He testified that the prosecution gave him the names of some,
but not all, of these character witnesses prior to trial, and his investigators attempted to
interview them but were unsuccessful because the addresses they had been given were old.
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The witness testified that prior to trial he became aware of a college police report concerning
an incident involving the petitioner that had been filed at the victim’s college campus back
in 1984. The witness testified that he learned of this report when one of the prosecution’s
prospective character witnesses, Ms. Kim Roberts, testified concerning the incident at a
pretrial hearing. The witness testified that he had reviewed this police report prior to trial
and that he recognized the name “Mary Hunter” from that report.
Nonetheless, the witness testified that he was unaware that Ms. Mary Hunter Brown
(the individual who reported the incident) was a potential witness at trial. The witness
explained that he did not realize that Ms. Mary Brown and Ms. Mary Hunter were the same
individual (who had been married in the intervening years) until Ms. Mary Hunter Brown
took the stand at the petitioner’s trial. He testified that he had made some efforts to locate
“Ms. Mary Hunter” prior to trial, but he was unsuccessful. He testified that during the
petitioner’s trial, he also attempted to locate and interview the former college security guard
who made the report, but he could not find him.
The petitioner’s lead trial counsel testified that Ms. Mary Hunter Brown’s testimony
concerning the incident that occurred at the victim’s college dormitory differed significantly
from the testimony concerning that same incident that had been given by Ms. Kim Roberts.
The witness testified that Ms. Mary Hunter Brown testified that the petitioner had hung the
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victim over a stairwell railing during the assault, but prior to trial no one had testified that he
had done so. This detail was also not included in the campus police report concerning the
incident.
After giving this testimony, the witness was shown a document containing a police
officer’s handwritten notes from a pre-trial interview with Ms. Mary Hunter Brown. The
witness testified that to his knowledge this document was not provided to him during
discovery, and he could not recall ever seeing it before.
The petitioner’s lead trial counsel also testified that he was aware that the petitioner
had informed police investigators back in 1984 that he had consensual sex with the victim
the evening before her murder, and he used a pair of jeans that he found in the backseat of
the victim’s car to wipe himself off afterward. The witness testified that DNA results on a
stain found on a portion of the “Rustler” jeans that were recovered from the crime scene
revealed a mixture of the victim’s and the petitioner’s DNA. He further testified that these
results were consistent with the statement that the petitioner had given authorities back in
1984.
The petitioner’s lead trial counsel testified that prior to trial, he specifically considered
requesting that the crotch of the “Rustler” jeans be tested for DNA, but he decided against
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making such a request. The witness explained that he was not sure what the results of any
such test would have been, and “if it had shown that it was [the petitioner’s] DNA it would
have killed our case.” The witness testified that if another person’s DNA had been found on
the inside of the jeans, it might have significantly undercut the prosecution’s case.
On cross-examination, the petitioner’s lead trial counsel testified that he had asked the
petitioner if the “Rustler” jeans belonged to him, and the petitioner had denied ownership.
The witness testified that the petitioner had told him that he had simply found the “Rustler”
jeans in the back of the victim’s car. The witness testified that the petitioner claimed that he
had never asked the victim to whom the “Rustler” jeans belonged. He also testified that he
had DNA experts assisting him with the petitioner’s defense, that these experts examined
the “Rustler” jeans at issue, and that they could have performed DNA testing on the crotch
of those jeans if he had requested it.
The petitioner’s lead trial counsel also testified on cross-examination that he had
received a copy of the college police report concerning the 1984 incident involving the
petitioner and the victim during the discovery process. He testified that he was aware that
“Ms. Mary Hunter” would be called as a witness at trial. He testified that the day before
“Ms. Mary Hunter” was scheduled to testify, one of the prosecutors mentioned the name
“Ms. Mary Brown” to him. The witness testified that he objected to the testimony of Ms.
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Mary Hunter Brown at trial on the basis that he was unaware of who she was and was
unaware that she would be called as a witness, as well as on numerous other grounds.
The next witness for the petitioner was Mr. Brett Bonham, the former college security
guard who had filed the incident report of the domestic incident involving the petitioner and
victim back in 1984. Mr. Bonham testified that prior to the incident he was fully trained in
the proper process for filling out incident reports. When asked about his memory of the
incident involving the petitioner, the witness testified that “I do not remember the incident
at all” because it “was 26 years ago.” He testified that he also did not remember filling out
the incident report. After being shown a copy of that report, he testified that he recognized
his name on it.
Mr. Bohnam testified that, generally speaking, prior to making a report he would
interview witnesses and take notes. He testified that he no longer possessed any such
material concerning this incident. He testified that it was his general practice to include
relevant details in his reports. He testified that if anyone had given him information during
his investigation that the petitioner had threatened to kill the victim and had held her out over
a railing, he would have included it in his report, and “probably would have relayed it to
other officials.”
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Mr. Bonham testified that he was never contacted by either the defense or the
prosecution concerning this case until a few weeks prior to his testimony. He testified that
he ceased his employment at the college near the time of the murder. He testified that he
presently lived in Beech Grove, Coffee County, and had lived there for the last two years.
He testified that prior to that time he had lived virtually his entire life in Murfreesboro,
Rutherford County. He testified that his telephone number was available in the phone book.
On cross-examination, the Mr. Bonham reiterated that he had no independent recollection
of investigating the incident detailed in the police report.
The next witness for the petitioner was Mr. James Gage, who testified that he was
employed with the Rutherford County Sheriff’s Office in 1984. He testified that he was the
lead investigator assigned to the victim’s cold case as of July 1990. He testified that at that
time there were two main suspects in the case, the petitioner and another individual. He
testified that the second individual was considered a suspect because a hair discovered in the
victim’s vehicle was a “one in five thousand” match to him.
Mr. Gage testified that during his investigation he had wanted to send a blood sample
from this second suspect to a laboratory for DNA testing, but he was told by the District
Attorney’s Office not to do so because “the defendant [wa]s the one who did the rape.” Mr.
Gage testified that throughout the time he was working on the case, he did not believe that
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he had probable cause to arrest the petitioner. On cross-examination, Mr. Gage clarified that
he was not involved in the initial investigation into the victim’s murder that occurred back
in 1984. He testified that he spent roughly six weeks in all working on the cold case and that
during this time he also worked on other matters.
The fourth witness was Detective Daniel Goodwin of the Rutherford County Sheriff’s
Office. Mr. Goodwin testified that he had been employed there for eighteen years, and he
first became involved in the victim’s murder investigation on February 1, 2000. He testified
that his involvement began when he was informed that the office had received a call from
someone with new information about the case. This information pointed at a third suspect
who was not the petitioner. Detective Goodwin testified that this third suspect was deceased,
so he collected DNA samples from the suspect’s relatives. Mr. Goodwin testified that the
third suspect was eliminated as the perpetrator after the DNA testing.
Detective Goodwin also testified that he knew the victim when she was still alive, and
he had gone on a date with her four days before her murder. He testified that he submitted
a DNA sample during the ensuing investigation.
Detective Goodwin testified that he was familiar with the DNA results of the stain
found on the right leg of the “Rustler” jeans. Detective Goodwin testified that experts had
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told him that this stain was not consistent with someone having used the jeans to wipe
themselves off after sex, but rather that “[i]t was consistent with someone directly ejaculating
onto the pants.”
Detective Goodwin testified that he remembered that Ms. Mary Hunter Brown was
a witness at the petitioner’s trial. He testified that she had subsequently died. He testified
that in the summer of 2006, in preparation for the petitioner’s trial, he had interviewed Ms.
Mary Hunter Brown. He testified that this interview was not recorded or videotaped. He
testified that it was his belief that police had given everything concerning the case, including
his notes from this interview, to the defense through the prosecutor’s office.
On cross-examination, Detective Goodwin testified that he also investigated the
second suspect in the murder, who was the only other individual besides the petitioner who
was considered a suspect during the time that Detective Gage had worked on the case. He
testified that despite investigating this second suspect, he was never able to find any
connection to the victim, and there was no proof that this second suspect had ever been in
physical contact with the victim.
Detective Goodwin also testified that he was involved in the discovery process in
advance of the petitioner’s trial. He testified that he gave copies of all the evidence and
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materials available to him to the prosecutor’s office for purposes of disclosing them to the
defense. He also testified that he was present on several occasions and witnessed the
petitioner’s legal team reviewing evidence and materials from the case in the District
Attorney’s Office. He testified that they were shown all of the evidence and given free reign
over the file at those times.
Detective Goodwin testified that he thought that he might have taken a formal written
statement from Ms. Mary Hunter Brown, but he was never been able to locate any such
statement. Detective Goodwin testified that prior to the petitioner’s trial there was a pretrial
hearing at which eighteen witnesses testified concerning the petitioner’s extensive past
history of violence. Detective Goodwin testified that the petitioner’s trial judge made
individual decisions following that hearing concerning who would and who would not be
permitted to testify. He testified that the petitioner appealed the trial court’s pretrial ruling
all the way to the Tennessee Supreme Court.
The next witness was Detective William Sharp of the Rutherford County Sheriff’s
Office. Detective Sharp testified that he was assigned the victim’s cold case in February of
2000. He testified that at some point during his investigation he located Ms. Mary Hunter
Brown, after getting her name from an incident report that was filed at the victim’s college
on March 1, 1984. He testified that he spoke with Ms. Mary Hunter Brown on June 19,
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2006. Detective Sharp testified that the college incident report did not include any allegation
that the petitioner had threatened to kill the victim or had hung her over the railing of the
stairwell. He testified that he first learned of these details when he interviewed the witness
at her place of business on June 21, 2006. He testified that he could not recall whether the
witness had claimed to him that she had given these particular details concerning the incident
to any other law enforcement officer prior to that time. He testified that he believed he had
typed up a formal statement of his interview with the witness, but he had been unable to
locate any such written statement despite searching for it.
Detective Sharp testified that all information concerning the victim’s murder was
turned over to the District Attorney’s Office for the purpose of disclosure to the defense.
Detective Sharp testified that he sent the “Rustler” jeans to a laboratory for DNA testing prior
to the petitioner’s trial. He testified that he believed that the inside crotch of the “Rustler”
jeans was tested for DNA evidence at that time, but he could not say for certain.
On cross-examination, Detective Sharp testified that he did not take a formal
statement from every witness in the case, and he was not sure whether he had ever taken a
formal statement from Ms. Mary Hunter Brown. He testified that it was possible that no
written report of her interview had ever existed. He testified that his handwritten notes of
his interview with her included references to the petitioner assaulting the victim, giving her
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a bloody nose, pulling her hair, and holding her over a third floor railing. He testified that
his handwritten notes were given to the prosecutor’s office, and he believed that they had
been turned over to the defense. He also testified that he was aware that the college incident
report concerning this incident had been given to the defense and that it referenced the
petitioner’s having physically assaulted the victim and made some reference to stairs.
Detective Sharp testified that the defense requested for him to locate the officer who
had filled out the college incident report. He testified that he investigated and gave the
defense the name and address that he found for that officer. He testified that to his
knowledge there was nothing in the case that was not turned over to the defense.
The final witness at the post-conviction hearing was Ms. Patti Choatie. Ms. Choatie
testified that she was employed by the Tennessee Bureau of Investigation (“TBI”) Crime
Laboratory in Nashville, Tennessee. She testified that she first became involved with the
victim’s homicide investigation in 1984 as a serologist. She testified that she made herself
available to the defense prior to trial and was interviewed on several occasions.
Ms. Choatie testified that in 1984 she tested the “Rustler” jeans in connection with the
homicide. She testified that during her initial investigation she tested “every square inch”
of the “Rustler” jeans for the presence of semen and vaginal fluid using an “AP overspray”
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test. She testified that no semen or vaginal fluid was found on the inside crotch of the
“Rustler” jeans, but the jeans did test positive for semen in eight other areas. She testified
that in 1984 serology testing required large samples in order to produce good results and that
testing destroyed the sample. Consequently, none of the areas of the jeans where semen had
been found still existed. She testified that none of the samples she tested was inconsistent
with the petitioner’s blood type.
On cross-examination, Ms. Choatie testified that she had never seen an instance in her
career where the “AP overspray” test that she had performed on the “Rustler” jeans had
failed to detect any semen that was present. She also testified that “AP overspray” testing
would not indicate the presence of hair, blood, saliva, or skin cells. She testified that because
the crotch of the jeans did not test positive for the presence of semen, she never performed
any serology testing on the crotch of the “Rustler” jeans, and consequently the crotch of those
jeans was still intact.
On re-direct examination, Ms. Choatie testified that the TBI team working on the case
had physically examined the “Rustler” jeans and had tested anything that resembled potential
blood. The witness also testified that trace DNA could be transferred to the jeans by any
person who had any contact with them. She stated that, for example, she was relatively
certain that her DNA could be found on the jeans because she had handled them. She
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testified that because so many people had handled the jeans, the discovery of skin cells on
the inside crotch of those jeans would be of little or no exculpatory value.
After taking this testimony, the post-conviction court heard arguments from the parties
and took the issue under consideration. On October 15, 2010, the post-conviction court
issued an order denying the petition for post-conviction relief. The petitioner filed a timely
notice of appeal of three separate issues, which we now proceed to address.
ANALYSIS
Tennessee’s Post-Conviction Procedure Act provides an avenue of judicial relief
“when [a] conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103 (Supp. 2011). When seeking post-conviction relief, a petitioner must
prove any factual allegations made by clear and convincing evidence. See, e.g., Calvert v.
State, 342 S.W.3d 477, 485 (Tenn. 2011). The factual findings made by a post-conviction
court are binding on appeal, unless the record evidence preponderates against them. See
Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Dellinger v. State, 279 S.W.3d 282,
294 (Tenn. 2009). Legal conclusions made by the post-conviction court are reviewed de
novo with no presumption of correctness. See Calvert, 342 S.W.3d at 485.
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The petitioner raises three challenges to the post-conviction court’s order denying his
petition. The petitioner’s first claim is that the post-conviction court erred in finding as a
factual matter that the State did not withhold valuable impeachment evidence concerning the
testimony of Ms. Mary Hunter Brown. However, we conclude that the evidence does not
preponderate against the post-conviction court’s finding. Next, the petitioner claims that the
trial court erred by ruling that his trial counsel was not rendered constitutionally ineffective
by virtue of being inadequately prepared for cross-examination of that same witness.
However, the petitioner cannot establish any prejudice stemming from any constitutional
deficiency in this regard. Finally, the petitioner claims that the post-conviction court erred
by denying his request to have DNA testing performed on the inside of the crotch of the
“Rustler” jeans, which he claims might help prove that the jeans had been worn by, or
actually belonged to, someone else. However, the crotch of the jeans at issue was previously
tested for the presence of semen, and none was found. The discovery of the presence of any
other form of third-party DNA (i.e. hair, saliva, or skin cells) in the crotch of the jeans at
issue at the present time would not help exonerate the petitioner by rendering it appreciably
more likely that the jeans at issue might have belonged to or been worn by someone else back
in 1984. Consequently, we affirm the judgment of the post-conviction court.
I.
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The petitioner claims that the post-conviction court erred by denying his claim that
the State failed to provide favorable information in violation of the Brady v. Maryland, 373
U.S. 83 (1963), and the Fourteenth Amendment to the United States Constitution, because
the State failed to provide information relating to the testimony of Ms. Mary Hunter Brown.
Specifically, the petitioner complains that the State failed to turn over notes taken by a
detective during an interview with Ms. Mary Hunter Brown. However, the post-conviction
court found as a factual matter that the State did in fact provide the petitioner with access to
the evidence at issue, and the record evidence does not preponderate against the post-
conviction court’s finding.
“The Due Process Clause of the Fourteenth Amendment requires that criminal
prosecutions ‘comport with prevailing notions of fundamental fairness.’” State v. Ostein,
293 S.W.3d 519, 535 (Tenn. 2009) (quoting California v. Trombetta, 467 U.S. 479, 485
(1984)). “[T]his standard of fairness requires that criminal defendants ‘be afforded a
meaningful opportunity to present a complete defense.’” Id. One component of a
defendant’s right to present a complete defense is “‘what might loosely be called the area of
constitutionally guaranteed access to evidence.’” Id. (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). This body of law requires the prosecution
to voluntarily disclose exculpatory evidence that would raise a reasonable doubt about a
defendant’s guilt. E.g., United States v. Agurs, 427 U.S. 97, 110-12 (1976). In addition, by
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longstanding rule of law, “the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. Well-known colloquially as the Brady rule, the due process requirement that the
State surrender evidence favorable to the defense upon request extends not only to
exculpatory evidence, but also to evidence that is relevant to the impeachment of State
witnesses when the “reliability of [the] witness may well be determinative of guilt or
innocence.” Giglio v. United States, 405 U.S. 150, 154 (1972); see also Johnson v. State, 38
S.W.3d 52, 57 (Tenn. 2001). In order to obtain relief on Brady violation grounds, a
defendant must show that: (1) the defendant requested the evidence at issue, (2) the evidence
was in the State’s possession and was suppressed, (3) the evidence at issue was favorable,
and (4) the evidence was material. State v. Evans, 838 S.W.2d 185, 196 (Tenn. 1992).
Evidence is considered material when “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995) (quoting Kyles v. Whitley, 519
U.S. 419, 434 (1995)).
The petitioner claims that the State violated his Brady rights by failing to turn over
handwritten notes taken by Detective Sharp in June 2006 during an interview with Ms. Mary
Hunter Brown. In these notes, Detective Sharp indicated that he and another detective had
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met with the witness and she had told them that in 1984 she had seen the petitioner attack the
victim by pulling her hair and holding her over the railing of a stairwell in her dormitory.
The petitioner claims that the State had these notes and failed to disclose them in response
to Brady requests, and furthermore that possession of these notes would have put him on
notice that Ms. Hunter Brown’s testimony at trial would be “materially different” from her
prior interview with Detective Sharp and from the account given in a report concerning the
incident that was filed by a university security officer shortly following the incident, in which
there is no discussion of the petitioner’s having held the victim out over the stairwell. In
addition, the petitioner complains that although police detectives testified that they believed
that Ms. Mary Hunter Brown had executed a formal written statement in conjunction with
this interview, no such statement was ever located or provided to the defense. However, after
reviewing the record, it is evident that the petitioner failed to demonstrate by clear and
convincing evidence that any of this evidence was actually suppressed by the State. In
addition, the petitioner cannot make the necessary showing of materiality.
With respect to the issue of suppression by the State, the post-conviction court found
that the State had, in fact, provided the petitioner with the notes and information at issue.
This finding is conclusive on appeal unless the record evidence preponderates against it. See
Grindstaff, 297 S.W.3d at 216. The record evidence, however, supports the post-conviction
court’s finding.
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At the petitioner’s post-conviction hearing there was relatively little testimony
concerning the allegedly suppressed evidence. On the petitioner’s side, his former trial
counsel testified that he did not remember ever seeing Detective Sharpe’s handwritten notes
concerning Ms. Mary Hunter Brown’s interview. However, he did not testify that he was
certain that those notes had never been disclosed. He also testified that he was given “open
file discovery” concerning the petitioner’s case at various times. While he testified that he
was given most – but not all – of the witness’ statements, he never specifically testified that
a formal written statement concerning Ms. Mary Hunter Brown’s interview existed or that
he was certain it had not been disclosed to him.
On the State’s side, two detectives testified that they gave all of their material
concerning the interview to the prosecutor’s office for disclosure to the defense and that they
had no knowledge that any information was not disclosed. One detective testified that he
witnessed the defense team being given, and taking advantage of, “open file disclosure” in
the prosecutor’s office. Both officers testified that they were not sure whether a formal
written statement had ever been prepared with respect to Ms. Mary Hunter Brown’s
testimony.
Consequently, neither side presented evidence that established one way or another
whether any formal written statement of Ms. Mary Hunter Brown’s testimony existed or
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whether the detective’s handwritten notes concerning that same interview were disclosed by
the State. It was the petitioner’s duty to support any factual allegations made in his post-
conviction petition by clear and convincing evidence. See, e.g.,Calvert, 342 S.W.3d at 485.
The evidence in the record does not preponderate against the post-conviction court’s finding
that the petitioner failed to meet this burden, and the post-conviction court was free to find
that the State in fact disclosed this information during the “open file discovery” that multiple
witnesses’ testified was afforded to the defense on several occasions.
Moreover, the petitioner cannot show that this evidence relating to Ms. Hunter
Brown’s testimony was material; it appears that the outcome of the petitioner’s trial would
have remained the same whether or not the defense had actually used this information to
impeach Ms. Hunter Brown’s testimony. Ms. Hunter Brown was but one of six separate
witnesses who testified concerning serious prior assaults that the petitioner committed against
the victim. Even had she been thoroughly discredited by the defense during cross-
examination, virtually identical testimony from five other witnesses would remain.
Although the petitioner attempts to elevate the importance of Ms. Hunter Brown’s
testimony in relation to these other five witnesses – at one point even referring to her
testimony as a “pillar of the State’s case” – on the grounds that the particular violent incident
she described in her testimony “was the closest in time to the victim’s murder and was more
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violent than any other incident described at trial,” this reasoning does not stand up to
scrutiny. With respect to the timing of the incident, almost all of the major violent episodes
described by the six trial witnesses happened within a year of the victim’s murder. While the
specific incident described by Ms. Hunter Brown – which happened approximately two
months before the victim’s murder – might have been proximately the closest in time to the
victim’s demise, there was considerable testimony that the petitioner committed violent
assaults against the victim frequently (and without any significant temporal break) during the
preceding months. Even had Ms. Hunter Brown never testified, testimony from numerous
other witnesses to the effect that the petitioner was jealous of the victim and acted violently
upon his jealous feelings in the months leading up the victim’s murder would still remain.
Nor was the specific incident described by Ms. Hunter Brown significantly “more
violent” than any of the other episodes. As we have discussed, numerous witnesses testified
that the petitioner attacked the victim by grabbing her and dragging or whipping her around
by her hair, as Ms. Hunter Brown testified occurred in the dormitory attack. And while the
act of dangling someone off the edge of a third floor stairwell, as Ms. Hunter-Brown
testified, is certainly violent, we are unwilling to say that it is significantly more violent than
the act dragging someone by the arm alongside a moving car or smashing her head into a car
window.
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The petitioner also urges that Ms. Hunter Brown’s statement should be considered
material because, he asserts, the majority of the prosecution’s case against him was
circumstantial. However, this argument ignores the fact that the State presented considerable
direct evidence tying the petitioner to the crime scene, including DNA evidence, forensic
evidence, and eyewitness testimony. Moreover, the State presented evidence that the
petitioner confessed to committing the crime to a third party. Furthermore, even if the State’s
case against the petitioner had been entirely circumstantial, we are unwilling to conclude
from this fact that evidence that would otherwise be deemed immaterial should be accorded
additional importance. The Tennessee Supreme Court recently abolished traditional legal
distinctions that treated circumstantial evidence with more suspicion and placed it on a lesser
footing than direct evidence, and is now treating both types of evidence equally. See State
v. Dorantes, 331 S.W.3d 370, 380 (Tenn. 2011). It would be inconsistent with this treatment
to accord evidence a higher degree of materiality in cases in which the State’s remaining case
against the petitioner is entirely circumstantial.
The petitioner has failed to demonstrate that the post-conviction court’s finding that
the State in fact disclosed the Brady material at issue is against the preponderance of the
evidence. Moreover, he cannot show that the information at issue was material.
Consequently, the petitioner’s claim that the post-conviction court erred when it denied his
Brady claim is denied.
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II.
The petitioner claims that the post-conviction court erred by denying his claim that
his trial counsel rendered ineffective assistance by: (1) failing to properly prepare for Ms.
Mary Hunter Brown’s cross-examination, and (2) failing to locate and call as a rebuttal
witness the campus security officer who filed the initial incident report concerning the
petitioner’s dormitory assault on the victim. We disagree.
Criminal defendants have the right to representation by counsel, a right guaranteed by
both our federal and state constitutions. See U.S. C ONST. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.”); T ENN . C ONST. art. I, § 9 (“[I]n all criminal prosecutions, the accused hath the
right to be heard by himself and his counsel.”). “Inherent in the constitutional right to
counsel is the right to effective assistance of counsel.” Smith v. State, 357 S.W.3d 322, 336
(Tenn. 2011). “The benchmark for judging any claim of ineffectiveness must be whether
[the petitioner’s] counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984).
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To prove ineffective assistance of counsel, a petitioner must show by clear and
convincing evidence both: (1) a deficient performance trial counsel, and (2) that the defense
was prejudiced by that deficient performance. Strickland, 466 U.S. at 686; State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). To establish deficient performance, a petitioner must show
that his counsel’s acts or omissions fell below an objective standard of reasonableness in
light of prevailing professional norms. See Strickland, 466 U.S. at 688; Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). When reviewing an ineffective assistance of counsel claim,
courts will not grant the petitioner the benefit of hindsight, second-guess his counsel’s
reasonably-based trial strategy, or provide relief on the basis of a sound, but unsuccessful,
tactical decision. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). To
demonstrate prejudice, a petitioner must show “a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “Failure to establish either deficient performance or prejudice necessarily
precludes relief.” Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011). “If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course
should be followed.” Strickland, 466 U.S. at 697.
Claims of ineffective assistance of counsel are mixed questions of law and fact.
Fields v. State, 40 S.W.3d 450 (Tenn. 2001). A trial court’s factual findings concerning
counsel’s performance are entitled to a presumption of correctness, “which is overcome only
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when the preponderance of the evidence is contrary to the trial court’s findings. . . .” Fields,
40 S.W.3d at 456. A post-conviction court’s application of law to those facts is reviewed
under a pure de novo standard. Fields, 40 S.W.3d at 456; Burns, 6 S.W.3d at 457.
After reviewing the record in this matter, we conclude that the petitioner cannot
establish any prejudice stemming from either of his counsel’s alleged shortcomings. Ms.
Hunter Brown’s testimony was essentially redundant with that of five other witnesses at the
petitioner’s trial, who also testified concerning the petitioner’s jealous behavior toward the
victim and his past history of physically assaulting her. The particular incident described by
Ms. Hunter Brown was not significantly more recent, more violent, or otherwise
distinguishable in any meaningful way from the other four major episodes that were attested
to by these other five witnesses. Consequently, even if the petitioner could establish that his
trial counsel had engaged in any deficient performance with respect to his preparation for her
cross-examination or his failure to secure the former security officer as a rebuttal witness (an
issue which we do not reach), he cannot establish a reasonable probability that but-for these
errors, the outcome of the trial would have been different. Consequently, the petitioner’s
claim that the post-conviction court erred by denying his ineffective assistance of counsel
claim is denied.
III.
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The petitioner claims that the post-conviction court erred by denying his request for
further DNA analysis of the “Rustler” jeans that were found at the crime scene and
introduced into evidence at his trial. Petitioners who are convicted of certain serious crimes
possess the statutory right to request post-conviction DNA testing under certain
circumstances. See T.C.A. § 40-30-303 (“[A] person convicted of and sentenced for the
commission of [enumerated offenses], may at any time, file a petition requesting the forensic
DNA analysis of any evidence that is in the possession or control of the prosecution . . . that
is related to the investigation or prosecution that resulted in the judgment of conviction and
that may contain biological evidence.”). Any such petition is reviewed under the standards
contained in section 40-30-304, which provides:
After notice to the prosecution and an opportunity to respond, [a] court shall
order DNA analysis if it finds that:
(1) A reasonable probability exists that the petitioner would not have been
prosecuted or convicted if exculpatory results had been obtained through DNA
analysis;
(2) The evidence is still in existence and in such a condition that DNA
analysis may be conducted;
(3) The evidence was never previously subjected to DNA analysis or was not
subjected to the analysis that is now requested which could resolve an issue not
resolved by previous analysis; and
(4) The application for analysis is made for the purpose of demonstrating
innocence and not to unreasonably delay the execution of sentence or
administration of justice.
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T.C.A. § 40-30-304.2 “While . . . all four criteria must be established before DNA testing is
required under section 40-30-304, the most important one for purposes of this case is the
first: whether ‘[a] reasonable probability exists that the petitioner would not have been
prosecuted or convicted if exculpatory results had been obtained through DNA analysis.’”
Powers v. State, 343 S.W.3d 36, 48-49 (Tenn. 2011) (quoting T.C.A. § 40-30-304(1)). “The
definition of ‘reasonable probability’ has been well-established . . . and is traditionally
articulated as ‘a probability sufficient to undermine confidence in the outcome.’” Id. at 49
(quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (internal quotations
omitted)). In conducting this inquiry, courts should “begin with the proposition that DNA
analysis will prove to be exculpatory,” id. at 55, and “postulate whatever realistically possible
test results would be most favorable to the defendant.” Id (internal quotations omitted).
“While courts must also consider the evidence that was presented against the petitioner at
trial, the evidence must be viewed in light of the effect that exculpatory DNA evidence
would have had on the fact-finder or the State.” Id. at 51. “[T]he analysis must focus on the
strength of the DNA evidence as compared to the evidence presented at trial — that is, the
way in which the particular evidence of innocence interacts with the evidence of guilt.” Id.
(internal quotation omitted).
2
Section 40-30-305 affords a post-conviction court the discretion to order post-conviction DNA
testing under a slightly more permissive standard. See T.C.A. §40-35-305(1). The post-conviction court
noted that the petitioner “did not allege the Code section in which he was seeking DNA testing; however,
the petitioner did not meet the requisite standard for [either section].” In his brief on appeal, the petitioner
only discusses his entitlement to mandatory testing under Section 304. We agree with the post-conviction
court that the petitioner has not established his entitlement to relief under either standard.
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The petitioner’s claim hinges on his assertion that DNA analysis of the inside of the
crotch of the “Rustler” jeans will not reveal the presence of any of his own genetic material
and will reveal genetic material belonging to an unknown donor. Experts testifying for the
State at trial concluded that the jeans were worn by someone in close proximity to the victim
at the time of her death. The petitioner asserts that if another individual’s DNA were to be
found on the inside of the crotch of the “Rustler” jeans, these results would be inconsistent
with the State’s theory of the case and consistent with his explanation – that his DNA was
found elsewhere on those “Rustler” jeans because he used them to wipe himself off after
having sex with the victim the night before she was killed.
The post-conviction court held that the petitioner failed to establish that any favorable
results would create a reasonable probability that he would not have been charged with or
convicted of the victim’s murder, explaining that “[t]here was sufficient evidence presented
at trial to convict the [petitioner] of the crime charged even if other DNA was present.”
While the post-conviction court’s precise grounds for reaching this conclusion are not
detailed, it is nonetheless supported by the record. In order for any court-ordered DNA
analysis of the “Rustler” jeans to have any significant exculpatory value, any DNA material
found on the crotch of the “Rustler” jeans would need to be found in the form of semen,
sperm, or vaginal secretions. Discovering another individual’s personal secretions on the
inside crotch of the “Rustler” jeans would lead to a strong inference that someone else had
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worn those jeans prior to the victim’s murder, as it would be difficult to supply any other
reasonable explanation for the presence of any such material in that location. However, the
record reflects that the crotch of the “Rustler” jeans at issue has been previously tested for
the presence of both semen and vaginal fluid, and those tests came back negative.
Consequently, it has already been established that there are no personal secretions from any
other individual located on the inside of the crotch of the “Rustler” jeans.
The petitioner acknowledges this point, but asserts that the jeans should still be tested
for “other sources of DNA” including “hair, saliva, blood, or skins cells.” However, the
discovery today of someone else’s DNA in the form of hair, saliva, or skin cells on the inside
of the “Rustler” jeans would not lead to a reasonable inference that they had been worn by
someone else back in 1984. The record reflects that the “Rustler” jeans at issue have been
examined numerous times by various investigators and experts, used as an exhibit at trial, and
transported and placed into and out of storage on numerous occasions over the last twenty-six
years. Regardless of the degree of care that was taken during the collection, processing, and
transport of this particular piece of evidence, it seems fairly certain that some amount of
third-party DNA in the form of skin, saliva, or hair cells will necessarily have been
transferred to various locations on the jeans over the years, including the inside crotch.
While it would seem far less likely that blood evidence from a third party might have been
randomly transmitted to that specific location, blood evidence would only tend to exclude the
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petitioner as the owner of the jeans if it was accompanied by vaginal secretions – which the
record reflects have already been tested for and determined not to be present. Moreover, the
record reflects that the “Rustler” jeans have been thoroughly examined in the past by experts
and detectives in search of anything remotely resembling blood evidence, and none has ever
been found in that location. For these reasons, the petitioner has failed to provide any
plausible theory under which favorable DNA results would reduce the likelihood that he
would have been tried for or convicted of the victim’s murder.
Furthermore, we do not dispute the post-conviction court’s conclusion that even if
another individual’s DNA were to have been found on the inside crotch of the “Rustler”
jeans, it is not reasonably likely that the State would have dropped the case or that the jury
would have declined to convict the petitioner. The petitioner concedes that his DNA was
found on the outside of the “Rustler” jeans. While he has previously attempted to explain
away this DNA by claiming to have wiped himself off on those jeans after having sex with
the victim on the night before her murder, the record reflects that he made statements to the
contrary during at least one interview with police. Given these inconsistent statements, it
seems to us that both the prosecutor and the jury would have likely rejected his explanation
for the presence of his DNA on the “Rustler” jeans as entirely too convenient in light of the
remaining available evidence. As we have summarized, the State’s case against the
petitioner included eyewitness testimony, forensic evidence, DNA evidence, a third party
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confession, and numerous witnesses who testified concerning the petitioner’s past history of
violent intentions toward the victim. While the petitioner’s extremely capable post-
conviction representation has ably attempted to attack the credibility of – and cast doubt upon
the testimony of – each of these witnesses, at the end of the day, the jury resolved these
credibility issues against the petitioner. There is nothing about the particular testing that he
has requested that would appear reasonably likely to have altered this outcome even if
favorable DNA results were obtained.
After carefully reviewing the record, we conclude that the post-conviction court
properly considered all of the evidence and that this evidence supports the post-conviction
court’s conclusion that the petitioner failed to establish a reasonable probability that he would
not have been prosecuted or convicted if exculpatory results had been obtained through DNA
analysis. Accordingly, the post-conviction court did not err by denying the petitioner’s
request for such DNA analysis.
CONCLUSION
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
_________________________________
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JOHN EVERETT WILLIAMS, JUDGE
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