Opinion

Ricky Flamingo Brown, Sr. v. State of Tennessee - Concurring

Court
Court of Criminal Appeals of Tennessee
Filed
Jun 13, 2003
Status
Published
On the bench
Judge Joseph M. Tipton
Cited by
0 cases

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 14, 2003

RICKY FLAMINGO BROWN, SR. v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 84-F-1484 Cheryl Blackburn, Judge

No. M2002-02427-CCA-R3-PC - Filed June 13, 2003

JOSEPH M. TIPTON, J., concurring.

I concur in the majority opinion. I question, though, the trial court’s reliance upon the

victim’s identifying the petitioner, her father, as the perpetrator to deny testing. The DNA Analysis

Act requires the court to determine if “[a] reasonable probability exists that the petitioner would not

have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis.”

Tenn. Code Ann. § 40-30-404(1). In other words, the Act requires the trial court to assume that the

DNA analysis will reveal exculpatory results in the court’s determination as to whether to order

DNA testing. To the extent that the trial court’s order implies that the fact that the victim identified

the petitioner as a perpetrator defeats the need for testing, I disagree. The Act was created because

of the possibility that a person has been wrongfully convicted or sentenced. A person may be

wrongly convicted based upon mistaken identity or false testimony. Thus, the fact that the victim

identified the petitioner as the perpetrator should not provide a basis for denying testing.

____________________________________

JOSEPH M. TIPTON, JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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