Steven Griffin v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 14, 2004

STEVEN GRIFFIN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 93-C-1154 Steve Dozier, Judge

No. M2003-00557-CCA-R3-PC - Filed July 13, 2004

The petitioner, Steven Griffin, appeals the trial court’s denial of his request for forensic DNA

analysis, pursuant to the Post-Conviction DNA Analysis Act of 2001. Our review discloses that the

trial court ruled correctly, and we affirm the denial of the petitioner’s request.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, J., joined. JOSEPH M. TIPTON , J., filed a dissenting opinion.

Steven Griffin, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Doug Thurman, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

While serving his eighty-five-year sentence for aggravated kidnapping and six counts

of aggravated rape, the petitioner filed a written request with the Davidson County Criminal Court

in late December of 2002, asking that all human biological evidence in the state’s possession or

control and related to his convictions be submitted for DNA analysis. As grounds, the petitioner

claimed that no comparison of the victim’s and his DNA had ever been performed and that a

“probability does exist that the petitioner would not have been prosecuted and/or convicted if

exculpatory results had been obtained through DNA analysis.” Previously, the petitioner had

unsuccessfully attacked his convictions on direct appeal, through the post-conviction process, and

through federal habeas corpus avenues. See Steven Craig Griffin v. State, No. 01C01-9801-CR-

00004 (Tenn. Crim. App., Nashville, May 6, 1999), perm. app. denied (Tenn. 1999) (post-

conviction); State v. Steven Craig Griffin, No. 01C01-9404-CR-00144 (Tenn. Crim. App., Nashville,

Jun. 28, 1995), perm. app. denied (Tenn. 1995) (direct appeal).

The state filed a motion to dismiss and raised two issues. First, it asserted that no

DNA evidence existed that would be capable of being tested. Second, it maintained that, in

connection with the petitioner’s appeal from the denial of his post-conviction petition, the trial

court’s determination that DNA evidence was irrelevant to the consensual sex defense was affirmed,

thereby undermining any claim that the petitioner would not have been prosecuted or convicted.

The Davidson County trial court to which the petitioner’s current motion was

assigned treated the application as a petition to reopen the earlier post-conviction proceedings and

denied same on February 13, 2003, with the following explanation:

As to the petitioner’s first claim raised in his initial post-

conviction proceeding, the trial court found that questions regarding

DNA were irrelevant because the petitioner’s theory was consensual

intercourse with the victim. Secondly, the petitioner demanded a

speedy trial within 180 days under the Interstate Compact on

Detainers Act . . . thereby not providing sufficient time for DNA

testing. The Court is of the opinion that the defendant opted out of

DNA testing. . . .

The petitioner’s current petition to re-open post-conviction

proceedings requests that any physical evidence in existence be

subjected to a DNA analysis. The petitioner was afforded a serology

analysis and those results were made known prior to the trial in this

matter. The Court reviewed the audio tapes of the petitioner’s

original trial in this matter. Indeed, the petitioner’s defense

maintained that the victim consented to intercourse. Based on this

defense, the petitioner’s prior post-conviction petition raising this

issue and the Court of Criminal Appeals ruling, the Court is of the

opinion that [t]he petitioner’s petition to re-open post-conviction

should be respectfully denied.

The court made no findings relative to the existence of any evidence containing DNA that could be

analyzed.

On appeal, the petitioner appears pro se. He maintains that the trial court should not

have summarily dismissed his petition for DNA analysis without appointing counsel to represent

him, without affording an opportunity for the petition to be amended, and without an evidentiary

hearing. The petitioner also airs other complaints in the nature of counsel’s ineffective assistance

and restrictions on cross-examination of the state’s expert serologist at trial; we decline to address

these latter complaints, as they clearly fall outside the ambit of the Post-Conviction DNA Analysis

Act of 2001. See Ricky Flamingo Brown, Sr. v. State, No. M2002-02427-CCA-R3-PC (Tenn. Crim.

App., Nashville, June 13, 2003) (Act does not permit petitioner to appeal unrelated claims or reargue

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the issues raised in his previous, unsuccessful petition for post-conviction relief), perm. app. denied

(Tenn. 2003).

The Post-Conviction DNA Analysis Act of 2001 provides in relevant part that a

person convicted of aggravated rape

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,

law enforcement, laboratory, or court, and that is related to the

investigation or prosecution that resulted in the judgment of

conviction and that may contain biological evidence.

Tenn. Code Ann. § 40-30-303 (2003). There is no statute of limitations barring the filing of a

petition seeking forensic DNA analysis, see Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-

PC (Tenn. Crim. App., Nashville, Apr. 11, 2003), but the Act incorporates specific qualifying criteria

that must be satisfied before a court orders DNA analysis. Relevant to this case,1 those conditions

are:

(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.

Id. § 40-30-304 (2003).

1

The Act incorporates two separate sets of qualifying criteria. Code section 40-30-304 addresses a situation

involving a “reasonable probability . . . that the petitioner would not have been prosecuted or convicted.” Tenn. Code

Ann. § 40-30-304 (2003) (emphasis added). Code section 40-30-305 is written to include the existence of a “reasonable

probability . . . that analysis of the evidence will produce DNA results which would have rendered the petitioner’s verdict

or sentence more favorable.” Id. § 40-30-305 (2003) (emphasis added). In the instant petition, the petitioner alleged

a Code section 40-30-304 basis for relief that he would not have been prosecuted and/or convicted had DNA analysis

been performed.

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The propriety of summarily dismissing a petition requesting analysis and the

construction of the Act was examined at length in William D. Buford v. State, No. M2002-02180-

CCA-R3-PC (Tenn. Crim. App., Nashville, Apr. 24, 2003). From Buford, we distill that the Post-

Conviction DNA Analysis Act of 2001 contemplates the summary dismissal of a petition requesting

analysis “under appropriate circumstances.” William D. Buford, slip op. at 6. The Buford court

explained,

[I]f the contents of a petition establish a prima facie case and, after

any response by the state, the trial court determines all statutory

prerequisites are present, a petitioner convicted of one of the

statutorily enumerated crimes is entitled to DNA analysis. See Tenn.

Code Ann. § 40-30-[3]04. If the state contests the presence of any

qualifying criteria and it is apparent that each prerequisite cannot be

established, the trial court has the authority to dismiss the petition.

Considerable latitude must be given to trial courts in gathering the

necessary information for the decision. See Tenn. Code Ann. §

40-30-[3]11 (“The court may in its discretion make such other orders

as may be appropriate.”).

William D. Buford, slip op. at 7.

As we view the matter in the case before us, there are four issues to be addressed.

The first issue relates to the trial court’s treatment of the request for DNA analysis as a petition to

reopen the earlier post-conviction proceeding. The second issue involves the adequacy of the state’s

response that “[n]o DNA evidence exists which could be subject to testing or analysis at this time.”

The third issue is whether, as a matter of law, the “consensual sex defense” that the petitioner

pursued at trial defeats the need for testing. The last issue is whether, to secure relief pursuant to the

Act, the petitioner must demonstrate that he did not waive DNA testing in earlier proceedings.

As for the first issue, we conclude that the court should not have treated the

petitioner’s request as a petition to reopen his earlier post-conviction proceedings. The procedure

for applying to reopen an earlier post-conviction petition is set forth in considerable detail in Code

section 40-30-117. A court order for DNA analysis, granted pursuant to the Post-Conviction DNA

Analysis Act of 2001, however, does not automatically supply adequate grounds to support the

reopening of an earlier petition. Before an earlier petition can be reopened, a petitioner must show,

inter alia, that “new scientific evidence establish[es] that such petitioner is actually innocent of the

offense or offenses for which the petitioner was convicted” or that “the facts underlying the claim,

if true, would establish by clear and convincing evidence that the petitioner is entitled to have the

conviction set aside or the sentenced reduced.” Tenn. Code Ann. § 40-30-117(a)(2), (4) (2003). To

be sure, if DNA analysis, ordered pursuant to the Act, ultimately yielded scientific results

exculpatory to the petitioner, then adequate grounds may well exist to reopen the earlier petition.

Nonetheless, the two procedures are distinct and should not be confused. See Ray v. State, 984

S.W.2d 236, 238 (Tenn. Crim. App. 1997) (section 40-30-117(a)(2) does not provide petitioner a

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vehicle for obtaining discovery; rather, petitioner must delineate in the motion to reopen the new

scientific evidence that has already been secured). As Buford explains, the task of the court

reviewing a request for DNA analysis is to (1) examine the contents of the petition, (2) determine

if the petition alleges a prima facie case for relief, (3) consider any response that the state may offer,

and (4) determine if the statutory criteria are present. See William D. Buford, slip op. at 7.

We turn next to the state’s response to the trial court that “[n]o DNA evidence exists

which could be subject to testing or analysis at this time.” On appeal, the state qualifies that

assertion and candidly points out in its appellate brief,

The ‘State’s Motion to Dismiss Petitioner’s Request for

Forensic DNA Analysis’ asserted that ‘[n]o DNA evidence exists

which could be subject to testing or analysis at this time.’ (TR, 7) If

in fact no evidence were in existence, a second condition of the

statute would fail, further negating any duty by the court to take

action. However, the record indicates that “[b]lood, saliva, and oral

and vaginal swabbings were obtained from the victim. A serologist

testified that the presence of sperm was detected in both the vaginal

and oral swabs. Blood, saliva and hair belonging to both defendant

and the victim’s husband were analyzed.” State v. [Steven Craig]

Griffin[, No. 01C01-9404-CR-00144 on direct appeal] at *7. The

State’s motion offered no explanation regarding evidence which

might have existed previously or regarding efforts to locate evidence

still existing. The lower court made no findings regarding the

existence or condition of evidence which might be subjected to DNA

analysis.

Buford spoke of the “[c]onsiderable latitude” that must be given to trial courts “in

gathering the necessary information” to determine if the petitioner is entitled to DNA analysis. The

court in Buford then emphasized, “Because the trial court here made a conscientious effort to

determine the existence of the statutory conditions and had substantial facts upon which to

determine that the biological specimens were no longer available, a summary dismissal was

appropriate.” William D. Buford, slip op. at 7 (emphasis added). Among the substantial facts was

the prosecution’s affidavit stating, based upon “the records of the law enforcement agencies, the

prosecution, and the trial court clerk” that no specimen existed. Id., slip op. at 6.

In this case, the court had no facts, substantial or otherwise, upon which a

determination could rest that biological specimens were no longer available. All the court had before

it was a conflict in the pleadings about the existence of DNA evidence. Because the state was

seeking a summary dismissal of the petition, we regard the state’s obligation in responding to the

petition as requiring more than a blanket, unsworn assertion that no such evidence exists. If the state

is remiss in providing an explanation or if its explanation is not sufficiently detailed, the trial court

has an obligation to make reasonable factual inquiries before dismissing the petition. We do not

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suggest that trial courts must or should conduct lengthy or protracted evidentiary hearings on the

matter; we anticipate that trial courts will exercise sound discretion to streamline the inquiry, for

instance, by placing the onus on the state to supply sufficient, reliable information.

In this case, the state’s general, unsworn assertion that no testable evidence exists is

inadequate to sustain a summary dismissal of the petition for DNA analysis. The trial court,

however, did not in any way address this issue. The court summarily dismissed the petition on other

grounds, to which we now turn.

As we previously framed it, the third issue is whether, as a matter of law, the

“consensual sex defense” that the petitioner pursued at trial defeats the need for testing. The trial

court opined that this theory of defense was fatal to the petition inasmuch as it defeated the statutory

requirement that a “reasonable probability exists that the petitioner would not have been prosecuted

or convicted if exculpatory results had been obtained through DNA analysis.” See Tenn. Code Ann.

§ 40-30-304(1) (2003). We disagree.2

Unlike statutory schemes in other jurisdictions, Tennessee’s Post-Conviction DNA

Analysis Act of 2001 does not explicitly require that the petitioner show that identity was an issue

at trial. See William D. Buford, slip op. at 4; Willie Tom Ensley, slip op. at 2-3. Also, trial courts

in Tennessee “may” order testing even if DNA analysis would have produced only a more favorable

verdict or a more favorable sentence. Tenn. Code Ann. § 40-30-305(1) (2003); see William D.

Buford, slip op. at 4; Willie Tom Ensley, slip op. at 2-3.

The recent decision in Jack Jay Shuttle v. State, No. E2003-00131-CCA-R3-PC

(Tenn. Crim. App., Knoxville, Feb. 3, 2004), applic. perm. app. filed (Tenn. Apr. 2, 2004), supports

the view that the theory of defense pursued at trial does not necessarily control the outcome of a

petition for DNA testing. The petitioner in Shuttle had been convicted of first-degree murder, and

after pursing post-conviction relief based on ineffective assistance of counsel, he filed a petition

requesting that blood underneath the victim’s fingernails and blood on his jeans be subjected to DNA

analysis. Jack Jay Shuttle, slip op. at 1-2. The lower court denied the petition, but that ruling was

reversed on appeal.

2

This court’s earlier opinion addressed the petitioner’s bid for post-conviction relief based on a claim of

ineffective assistance of counsel. The lower court had dismissed the post-conviction petition, and the dismissal was

affirmed on appeal. One of the petitioner’s complaints against trial counsel related to the absence of DNA testing. The

petitioner claimed that counsel was ineffective for not obtaining DNA testing and that counsel failed to cross-examine

the state’s expert about the inconclusive results of forensic tests that were performed and how DNA testing would have

included or excluded the petitioner as the source of the semen. Steven Craig Griffin, No. 01C01-9801-CC-00004, slip

op. at 4. In rejecting the complaint, this court stated that DNA evidence was irrelevant to the consensual sex defense

offered by the petitioner and that the proposed course of cross-examination would not advance the consent defense. Id.,

slip op. at 4-5. W e note that the petitioner’s complaint about counsel’s ineffectiveness did not impugn the theory of

defense pursued at trial.

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One of the issues in Shuttle was whether the petitioner’s testimony at trial that he

killed the victim defeated his bid for DNA testing in view of the requirement that he show a

reasonable probability that he would not have been prosecuted or convicted had exculpatory DNA

evidence been obtained. The Shuttle court did not find the trial testimony to be dispositive because

the Act was created with wrongfully convicted or sentenced defendants in mind. See id., slip op. at

6.

In the course of its ruling, the Shuttle court factually distinguished an earlier decision

in Carl E. Saine v. State, No. W2002-03006-CCA-R3-PC (Tenn. Crim. App., Jackson, Dec. 15,

2003), perm. app. denied (Tenn. 2004). Saine involved a petitioner convicted of assault and rape

who later petitioned to secure DNA testing of spermatozoa discovered on the victim’s torn panties.

The petitioner had confessed to assaulting the victim but claimed that the victim was unconscious

when he left and that someone else could have entered the room and raped the victim without her

knowledge. Carl E. Saine, slip op. at 3, 5. The court affirmed the denial of the petition for DNA

analysis because, inter alia, the evidence that Saine wanted tested could not be directly linked to the

rape. See id., slip op. at 5-6.

Consequently, for the foregoing reasons, we do not view the theory of defense

pursued at trial as automatically controlling the outcome of a petition for DNA testing, nor do we

regard this court’s earlier opinion addressing counsel’s effectiveness as dispositive of the different

issue now before us. The trial court, as a result, erred in summarily denying the request for DNA

analysis as barred by the sexual consent defense at trial.

The last issue requires us to determine if the petitioner knowingly waived DNA

testing in earlier proceedings. To address the issue, we have consulted the court record in the earlier

post-conviction proceeding. See Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987) (“[C]ourts

may take judicial notice of . . . court records in an earlier proceeding of the same case and the actions

of the courts thereon.”).

From the evidentiary hearing on the post-conviction petition, we glean that the

petitioner was extradited from Florida to Tennessee in June 1993. The petitioner demanded trial

within 180 days pursuant to the Interstate Compact on Detainers, see Tenn. Code Ann. § 40-31-101

et seq. (2003), and his trial commenced in September. While the case was underway, information

came to light that certain jurors had acquired independent knowledge of the petitioner’s prior

convictions, prompting the trial court to declare a mistrial. The case was rescheduled and tried in

October 1993, also within the 180-day window, at which time the petitioner was convicted. Because

the petitioner had demanded trial within 180 days of extradition, DNA testing could not have been

completed before either trial.

The theory of defense at the first trial was reasonable doubt. Trial counsel explained

at the post-conviction hearing that a pivotal witness for the state was unavailable for the first trial.

Without this witness, the state’s ability to prove identity was thrown into doubt, thereby favoring a

mistaken identity/reasonable doubt line of defense. After the mistrial, however, the state located the

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witness, which prompted counsel at the second trial to shift to a defense theory that the victim had

consented to the sexual encounter. The petitioner did not testify at the second trial.

At the post-conviction hearing, the petitioner acknowledged the shift in defense

theories between the first and second trials, but he testified that the change in defenses “isn’t an issue

I presented in my post-conviction.” He also testified that, in terms of the offenses, he told counsel

he could not remember what had happened and was under the influence of alcohol. Likewise,

counsel testified that the petitioner related that he remembered being in the area and drinking

heavily, after which he had no memory of events later that night.

From the testimony presented, the post-conviction court concluded,

[T]here wasn’t time for the DNA testing to be conducted . . . if the --

uh -- trial was to take place within the time frame that the defendant

insisted upon. It was his right to insist upon that; but, it’s kind of --

uh -- you can’t have your cake and eat it, too, type situation. And, he

opted for the quick trial in this situation.

In our opinion, the petitioner’s earlier failure to pursue DNA analysis was a deliberate

and knowing bypass of that avenue of investigation, which constitutes waiver in the context of this

collateral action. In general, the client has exclusive authority to make decisions that are binding

upon the attorney within the framework of the law. See Zagorski v. State, 983 S.W.2d 654, 658

(Tenn. 1998). In this case, the petitioner’s desire for an early trial date was paramount, and he was

willing to forego a legally available objective to secure a speedy trial. If, as in this case, a competent

petitioner knowingly and voluntarily chooses a lawful course of action or defense strategy and if the

petitioner is thereby prejudiced by his own decision, he should not later be heard to complain.

To be sure, the statutory sections of the Post-Conviction DNA Analysis Act of 2001

do not explicitly mention “waiver.” Nonetheless, one of the express qualifying criteria that must be

met to obtain DNA analysis is a showing that “[t]he application for analysis is made for the purpose

of demonstrating innocence and not to unreasonably delay the execution of sentence or

administration of justice.” Tenn. Code Ann. § 40-30-304(4) (2003). The concern expressed in that

qualifying criteria mirrors one of the often cited considerations for waiver: that is, finality. See

House v. State, 911 S.W.2d 705, 714 (Tenn. 1995). “[T]here must be a finality to all litigation,

criminal as well as civil.” Arthur v. State, 483 S.W.2d 95, 97 (Tenn. 1972).

The facts surrounding the petitioner’s conviction demonstrate that the failure to

pursue DNA testing at the pretrial stage of the prosecution was a calculated decision. That decision,

moreover, was unrelated to the theory of defense. For the first trial, an identity/reasonable doubt

defense was pursued; for the second trial, consent was the theory of defense. In neither scenario did

the petitioner pursue available, scientific DNA analysis. His evident concern was a speedy trial; that

strategy might have carried the day in the first trial had a mistrial not been required, considering the

unavailability of a key witness for the state. That said, in our opinion it behooved the petitioner to

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show in his application for DNA testing why his present request would “not unreasonably delay the

execution of sentence or administration of justice.” Tenn. Code Ann. § 40-30-304(4) (2003); see

Sedley Alley v. State, No. W2004-01204-CCA-R3-PC (Tenn. Crim. App., Jackson, May 26, 2004)

(noting that the post-conviction court expressed having “serious questions regarding the motivations

of the petitioner for raising this issue at this time” in terms of statutory requirement that petition for

DNA analysis must be brought for purpose of demonstrating innocence and not to unreasonably

delay execution of sentence or administration of justice). That showing was not made, for which the

trial court was authorized to dismiss the request for DNA analysis. See William D. Buford, slip op.

at 7 (if apparent that any of the qualifying criteria cannot be established, trial court has authority to

dismiss petition); see also Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as

requiring relief be granted to a party responsible for an error or who failed to take whatever action

was reasonably available to prevent or nullify the harmful effect of an error.”).

In summary, we conclude that the trial court should not have treated the request for

DNA analysis as a petition to reopen the earlier post-conviction proceeding. We further conclude

that the state’s response was inadequate to explain why it could not produce the requested evidence

and, therefore, could not supply grounds to summarily dismiss the petitioner’s request. Moreover,

we conclude that the “consensual sex” theory of defense did not, as a matter of law, defeat the

request for DNA analysis. Finally, however, we hold that the application was properly dismissed

for failure to satisfy the statutory condition that “[t]he application for analysis is made for the

purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or

administration of justice.” Tenn. Code Ann. § 40-30-304(4) (2003), and for that reason we affirm

the judgment of the trial court.

__________________________________________

JAMES CURWOOD WITT, JR., JUDGE

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