State of Tennessee v. Gerald Davis Thomas

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 18, 2015 Session

STATE OF TENNESSEE v. GERALD DAVIS THOMAS

Appeal from the Criminal Court for Loudon County

No. 10794 E. Eugene Eblen, Judge

No. E2014-01157-CCA-R3-CD – Filed March 28, 2016

The Defendant, Gerald Davis Thomas, was convicted by a Loudon County jury of one

count of first degree premeditated murder. The trial court sentenced the Defendant to life

imprisonment, which was to be served consecutively to a separate federal sentence. In

this appeal, the Defendant raises the following issues for our review: (1) whether the

evidence is sufficient to sustain his conviction for first degree premeditated murder; (2)

whether the State engaged in improper closing arguments; (3) whether the trial court

erred in allowing expert testimony regarding a forensic ballistic match; (4) whether the

admission of the victim’s autopsy report violated his right of confrontation; (5) whether

the State failed to produce potentially exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963); (6) whether trial counsel was ineffective; and (7) whether

the trial court erred in denying his motion for additional DNA testing. 1 Upon our review,

we dismiss without prejudice the Defendant’s claim of ineffective assistance of counsel.

We also remand this matter to the trial court for entry of an order for additional DNA

testing; specifically, the interior of the FUBU pants alleged to have been worn by the

Defendant on the night the victim was killed and the substance recovered from

underneath the victim’s nails. In all other respects, we affirm the judgments of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in

Part; Reversed in Part and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

Rosana Brown (at motion for new trial hearing) and Cashauna C. Lattimore (on appeal),

Knoxville, Tennessee, for the Defendant-Appellant, Gerald Davis Thomas.

1

We have re-ordered the issues presented for clarity.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;

J. Scott McCluen, District Attorney General; and Frank Harvey, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

On February 17, 2004, Jerry Monger, an employee with the Loudon County

Highway Department, was cleaning ditches along Eblen Road and discovered the

unclothed body of Adwinna Pamela (Pam) Hughes, the victim in this case. Following an

investigation, the Loudon County Grand Jury indicted the Defendant on one count of first

degree premeditated murder. During the Defendant’s three-day trial, Detective-

Lieutenant Jim Widener of the Blount County Sheriff’s Department testified that the

victim’s body had a pair of sweat pants draped over her left foot and a sweat shirt pulled

up over her head. The victim’s chest area and the torso of her body had suffered massive

injury and her left breast had been completely removed from her body. Detective

Widener collected evidence from the scene, including the victim’s clothes. He noted that

the victim was wearing one shoe and the other shoe was located about three feet away.

The victim’s sock and shoes “had soil and dirt along the heel” like “[they] had been drug

along on the dirt.” There were also two holes in the upper left quadrant of the victim’s

breast that penetrated into the body and scrapes and bruising along back of the victim’s

neck. Two small, round wounds appeared on the victim’s back upper shoulder area that

resembled gunshot entrance or exit wounds. Detective Widener returned to the crime

scene the next day and found two .45 caliber casings about halfway between the road and

where the body was found.

On cross-examination, Detective Widener testified that he did not investigate the

roadside or search for tire tracks. He also agreed that he did not find any evidence of

blood loss in the area between the road and where the victim’s body was found.

Officer Clifford Aaron Helton of the Roanoke City Police Department in Roanoke,

Virginia, testified that, on February 18, 2004, at around 10:30 p.m., he received

information about a Honda with Tennessee Tag number JPN-611, a description of the

victim’s car, which was wanted in connection with a homicide investigation in

Tennessee. He was told that the car was parked at a Ramada Inn on Franklin Road and

was given the name “Gerald Thomas.” Using this information, officers set up a perimeter

around the Ramada Inn and stayed inside a hotel room until the next morning. At

approximately 10:20 a.m., Officer Helton saw the lights on the Honda flash and heard

from perimeter units that a black male was coming down a stairwell toward the car. He

then saw the Defendant walk into the parking lot. Officers announced their presence and

ordered the Defendant to show his hands and get on the ground, and the Defendant

complied. They secured the Defendant as well as a female, later identified as Michelle

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Tolley, who had followed him out of the hotel, and took them both into custody. When

Officer Helton looked inside the Honda, he saw the butt of a pistol in the pocket of a

jacket on the driver’s seat. On cross-examination, he agreed that the car doors were shut

when he secured the Defendant.

William Henderson, a Special Agent with the Federal Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF), testified that he was asked to assist local law

enforcement in securing the Defendant. On February 19, 2004, he travelled to the

Ramada Inn on Franklin Road in Roanoke, Virginia, and saw the victim’s green, 2001

Honda Civic in the parking lot. He noted that the area around the car as well as Room

207 of the hotel had been secured and that he had obtained a federal search warrant for

the room and car. 2 During a cursory search of the car, officers found a Springfield

Armory, model 1911-A1, .45 caliber semi-automatic pistol bearing serial number

N461144, which was loaded with seven cartridges of ammunition. Agent Henderson

testified that the pistol was inside a black paddle holster in the right pocket of a black

leather jacket on the front driver’s seat of the car. Also inside the car on the back

passenger’s seat were two Winchester nine-millimeter caliber cartridges and one

Winchester .45 caliber cartridge. The pistol and additional cartridges were secured, and

the car was marked with crime scene tape and towed away. On cross-examination, Agent

Henderson testified that he obtained a search warrant “based on the totality of the facts

and circumstances,” which included an interview another ATF agent conducted with

Michelle Tolley. He acknowledged that he had no personal contact with Tolley and was

not present during her statement.

Joni Crisp Seratt, an investigator with the Loudon County Sheriff’s Department,

testified that on February 20, 2004, she and two other crime scene investigators

conducted a search of the victim’s green Honda Civic. During the search, they removed

a paper bag from the driver’s seat that contained a full-length men’s leather coat and

three caps. They found a Winchester .45 caliber live round in the right front pocket of

the coat. They also located another Winchester .45 caliber live round in the front console

of the car and a Winchester nine-millimeter round in the center rear floorboard. From the

trunk, they recovered various rounds of ammunition inside a blue converse bag, along

with various articles of clothing, including a Harlem Globetrotters sweat suit and pair of

pants.

Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox County,

Tennessee, testified as an expert in forensic pathology. Before becoming Chief Medical

Examiner, she was the Assistant Chief to Dr. Sandra Elkins for five and a half years and

2

Although the Defendant’s race as African American is not in dispute, due to the racial epithets

left on the victim’s voicemail messages, we are compelled to note that the federal search warrants

describe him as a white male.

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they shared the responsibility of conducting autopsies for over twenty surrounding

counties. Upon the State’s request, she reviewed the autopsy report Dr. Elkins prepared

for the victim. She also reviewed the diagrams, notations, photographs, x-rays, and slides

Dr. Elkins prepared during the autopsy along with the information from the crime scene

investigation. Upon her review, Dr. Mileusnic-Polchan was able to render an expert

opinion regarding the victim’s injuries and cause of death. She testified that there were

four main types of injuries:

The first group [was] strangulation related injuries and multiple

gunshot wound[] injuries. I grouped them in one category because I

consider them as the kind of main and contributing cause of death.

The second group of injuries was sharp force injuries and the blunt

force injuries. Blunt force injuries were not necessarily deadly when they

occurred but they did occur when the victim was alive.

...

The sharp force injury, most of them and they are pretty extensive,

appear to be postmortem, meaning that they were sustained when the victim

was already dead.

She noted that the marks on the neck and the hemorrhages on the eyes and tongue

indicated that the victim was alive when the strangulation occurred.

Dr. Mileusnic-Polchan further testified that three gunshot wounds were found

during the autopsy even though a large portion of the skin from the left side of the

victim’s body was removed through post-mortem mutilation. Two gunshot wounds were

located on the mutilated part of the victim’s body in the area of the left chest and right

abdomen. The third gunshot wound was located on the victim’s left arm. An x-ray of

these wounds showed that one bullet was located in the right upper chest area. Dr.

Mileusnic-Polchan noted that examiners found an exit wound that matched the entrance

wound to the victim’s abdomen, but that no exit wound was identified on the victim’s left

arm. Examiners then tracked the entrance wound on the victim’s arm using a “bullet

probe,” but no bullet was found.

Dr. Mileunsic-Polchan then described the mutilation of the victim’s body as

follows:

As I already mentioned that the left side of the body involving the

shoulder area, kind of diagonally all across the abdomen involving the

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clavicle all the way down and basically the entire left breast area region was

missing.

The margins of the wound were sharp. Meaning it was definitely a

sharp object. One might argue that, you know, could it be animal predation

because her body was discovered in a remote location in the woods with

clothes in disarray, with no clothing items, but . . . there was no evidence of

any animal predation. This was actually an action of a sharp object cutting

the skin and introducing sharp well defined even margins. And the margins

didn’t show any evidence of bruising or abrasions. No evidence of vital

reaction or bleeding, meaning that that particular injury, a large missing

portion of the skin including the left breast region was done postmortem.

Associated with this particular injury there were multiple cuts in the

ribs. The left ribs. There was a complete cut in the front portion of the

sixth rib. We count them from top to bottom. The sixth rib was completely

severed and then ribs seven, eight, and nine had nicks in them . . . produced

by a sharp object. So they were like nicks in the cartilage. So why the ribs

were cut - easily cut, well the explanation is understandable if you know

that the boney part of the rib is going to be in the back and the side. And

toward the front the ribs become cartilage. And cartilage is very soft and

can easily be cut with almost any sharp object.

So in cartilaginous part of the rib in the front we had the complete

cut of the sixth rib and nicks on the seventh, eighth, and ninth rib. And also

there was a cut on the neck area right there where I described the ligature .

. . pattern on the right neck. There was a superficial cut in the left neck

region.

Dr. Mileusnic-Polchan agreed with Dr. Elkin’s conclusion that the main cause of

death was a combination of multiple gunshot wounds and strangulation. She further

opined that the strangulation occurred prior to the shooting. She determined that

remaining shock and blunt force injuries “were not contributory to the main cause of

death,” but that the bullet wounds were fatal, particularly the wound to the victim’s chest.

She noted that items, such as bullets, that are recovered during an autopsy are turned over

to investigating officers and that it was a routine practice to provide officers a blood

sample from the victim of a suspected homicide. She felt confident in rendering an

expert opinion regarding the direction from which the victim was shot, noting that this

determination depends on “the relationship between the entrance [and] exit [wounds] or

[the] entrance [wound] and the recovered bullet.” She said that the location of the

victim’s wounds and the injuries to the victim’s organs “shows the directionality

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basically from left to right, front to back and upward . . . [a]nd it’s [a] relatively steep

upward course.” She said that given the upward angle and the condition of the victim’s

body when it was discovered, “[w]e would conclude in this case that . . . she was on the

ground . . . laying down” when she was shot.

On cross-examination, Dr. Mileusnic-Polchan testified that, as reflected in the

autopsy report, the victim’s blood had tested positive for Ecgonine Methyl Ester, which is

the “the breakdown product of cocaine.” She confirmed her belief that the victim was

most likely strangled and then shot while lying on the ground, but she agreed that this

was not the only possibility. She explained that the strangulation could have occurred

face-to-face or from behind because it was a “ligature strangulation[,] meaning that there

was an object around the neck.” She opined that “some sort of cloth” was used to

strangle the victim given the nature of the victim’s injuries. She stated death by

strangulation generally happens within three to five minutes. She agreed that the

mutilation to the victim’s body could have been done with a sharp object such as a knife,

razor, or scissors, but noted that the object must have been large “because the cuts are

deliberate, wide with not much hesitation along the margin.” She also said that victim’s

wounds were consistent with a medium caliber projectile bullet.

Michelle Tolley testified that she and the Defendant were taken into custody after

exiting the hotel room in Roanoke, Virginia, on February 19, 2004. She first told law

enforcement that her name was Nicole Price because she had a warrant for her arrest in

Tennessee and admitted that she had previously used other aliases to avoid arrest. She

initially denied knowing anything about the victim’s death and explained, “I was scared

because I just saw [the Defendant] kill a girl and I was scared because he still had a gun

on him. I was scared because I had warrants out on me in Tennessee.” She also

confirmed that she had an extensive criminal record, including prior felony convictions

for failure to appear, forgery, criminal impersonation, escape from jail, burglary, theft,

and various drug-related offenses. She said that she had been addicted to crack cocaine

during the period of her criminal conduct, but that her drug use stopped after she and the

Defendant were arrested.

After Tolley was released from custody, she was interviewed by Lieutenant Jeff

Vittatoe. She admitted that she did not tell him the truth at first but that “[h]e stayed on

me until I finally broke.” Investigator Vittatoe reduced her statement to writing, and she

was given the opportunity to review it. Prior to the victim’s death, Tolley had known the

Defendant for about a year and had purchased crack cocaine from him multiple times. In

early February 2004, the Defendant picked her up from a house that belonged to a man

named Keylon, who the Defendant claimed was his son. The Defendant told her that

they had to go pick up four or five hundred dollars in Kingsport from the victim’s house.

Tolley stated that she did not know and had never met the victim before. She noted that

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the Defendant was driving a green Honda Civic and that she had seen him drive it before

but did not know to whom the car belonged. She said they drove to Kingsport and went

to “some house in the projects,” where she saw “a blonde[-]headed female,” who the

Defendant referred to as “Applebutter.” She identified that woman as the victim.

Tolley testified that the Defendant and the victim went inside the house for ten to

fifteen minutes. She saw the victim follow the Defendant out “telling him that she didn’t

want him taking the car.” The Defendant told the victim he was going to take it anyway

and that “she didn’t need to get in the car,” but the victim got into the backseat. The

victim said that it was her car and did not want the Defendant to drive it from the house.

According to Tolley, the victim said she would drive them where they wanted to go.

Tolley then told the Defendant to take her back to Johnson City “until all this drama got

resolved.” Tolley agreed that a dispute arose between the victim and the Defendant,

during which the Defendant questioned the victim numerous times about having relations

with another man. The Defendant drove away while he and the victim continued to

argue. Tolley said that they stopped at Wendy’s and then took the interstate to Knoxville

where they went “to pick up dope” at a place “[o]ff Haskell Exit[.]” The Defendant went

inside for about five minutes while the two women waited in the car. When he returned,

they began smoking crack and drove around Loudon County. Tolley said that the

Defendant became high and that he “just told [the victim] that he didn’t know why she

got in the car and now she had to die.” Tolley said that she and the victim had “never

[seen] that side of [the Defendant],” so they “just brushed it off.”

Tolley further testified that the Defendant eventually exited the interstate onto a

road that was wooded on both sides. She said that the road came to a dead end at a T-

intersection, and that the Defendant turned the car around, drove back down the road, and

parked. She said that the Defendant got out of the car to smoke a cigarette and

spontaneously told the victim “it[’s] time.” The Defendant pulled the victim out of the

car and took her on the side of the road. The Defendant and the victim were about ten

feet from the car, and Tolley stayed inside the car until she heard multiple shots fired.

She turned her head and heard the Defendant call her name, but she locked the door and

did not respond.

Tolley further testified that about five minutes after she heard the shots, the

Defendant returned to the car without the victim. She said that he got into the driver’s

seat and told her not to open her mouth. Tolley said that the Defendant told her that the

victim was “still breathing[.]” It did not occur to Tolley to drive off or run away because

she was scared and because the Defendant had just shot the victim. Tolley observed

fingernail marks on the Defendant’s right hand when he returned and that before leaving

the scene, he held his hands outside the car and washed them with a soda that was in the

center console. At that point, it was dark outside, and the Defendant drove them to a

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hotel in Knoxville. When they arrived at the hotel room, the Defendant checked the

voicemail messages on the victim’s cell phone. Tolley also stated that the Defendant did

not tell her why he shot the victim, and simply stated, “he had to do it, he did what he had

to do.” Tolley stayed at the hotel with the Defendant because she was scared and did not

want the same thing to happen to her or her family.

Tolley testified that they stayed at the first hotel for one night, stayed at a different

hotel the next night, and then they drove to a Motel 6 in Roanoke, Virginia. She said that

they broke into cars and used stolen checkbooks to get extra cash. She said that they

stayed at four different places until the final stop where she and the Defendant were

arrested. She claimed that they were moving around because “I was wanted by the law

and he just killed [the victim] so he just wanted to [be] on the move.” Tolley further

stated that she and the Defendant stayed at the Ramada Inn in Roanoke for two nights.

During that time, the Defendant checked the messages on the victim’s cell phone again,

and there was a message from the victim’s mother saying that “the police had found a

body and it sounded like it was the victim.” Tolley said that there was another message

“from [the victim’s] boyfriend or something cussing her and calling her a crack head and

threatening to harm her.” She stated that the person that left the message was angry and

threatened to kill the victim and noted that there were no threatening messages on the

victim’s phone when the Defendant initially checked the victim’s voicemail. After

hearing these messages, the Defendant destroyed the cell phone and told Tolley “that they

found the [victim’s] body [and] that we need to go.” When they exited the hotel room,

they were met by law enforcement.

On the night the victim was killed, the Defendant was dressed as follows:

He had on a pair of dark color Fubu pants, carpenter style. He had

on [a] pair of black and white Nike’s. He had on a black button up shirt

with two pockets with a little buckle on each pocket. He had on a Raider’s

hat, a black one and a brown . . . Carhart jacket.

Tolley said that the victim was wearing a pair of blue Harlem Globetrotter sweatpants

with white and red stripes down the leg. Tolley also identified at trial a photograph of a

black leather jacket that the Defendant had purchased at a mall in Virginia. She

confirmed that the Defendant had a gun in the car and that she saw the gun after the

victim was shot. She also noted that it was common for the Defendant to carry a gun and

that she had previously seen the Defendant with that particular gun. She said that the

Defendant had stolen the gun the month before, when he broke into the home of a man

named Eugene Cummings. Tolley admitted that she knew Cummings because she had

previously done sexual favors for him in exchange for crack cocaine. She claimed that

she took the Defendant to Cummings’s house to buy drugs, but he was not home so the

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Defendant “kicked his door in and took his gun and some change and . . . some checks.”

Tolley admitted that she did not tell Investigator Vittatoe or anyone else about the

burglary prior to trial because she was concerned that she would be charged for it.

On cross-examination, Tolley admitted that her criminal history demonstrated that

she had been untruthful, and she acknowledged that she had lied to the court in prior

criminal proceedings as well as to law enforcement in the present case. She also admitted

that she fled from law enforcement in Roanoke, Virginia, after being released from

custody. Tolley said that she “wanted away from the whole situation” and fled to her

mother’s house because she did not feel safe with law enforcement and was afraid of

being arrested. She emphasized that her criminal conduct occurred while she was a drug

addict. She also confirmed that following the victim’s murder, she was frightened but

that she nonetheless continued using the alias “Nicole Price.” She also agreed that the

Defendant had never actually threatened to shoot her. She further conceded that, during

the time between the victim’s murder and her arrest, she had made several calls to her

family but never attempted to call 9-1-1. She admitted that she made no attempt to seek

help for the victim.

On cross-examination, Tolley agreed that she was not under a threat of

prosecution for the instant homicide when she made her initial statement to police on

February 19, 2004. However, in her February 26, 2004 interview with Investigator

Vittatoe, she was aware she could be charged with murder. She also admitted that even

in the February 26 interview, she did not truthfully disclose where the Defendant’s gun

came from despite being specifically asked.

On re-direct examination, Tolley testified that the Defendant had met her family

and knew where they lived. She noted that the Defendant was with her during the car

break-ins and check forgeries in Virginia, had assisted her in carrying out these crimes,

and had kept and handled the stolen money. She agreed that the Defendant never

threatened to kill her, but she did not feel comfortable with attempting to leave. She

further stated that she was unfamiliar with firearms and that, although the gun the

Defendant took from Eugene Cummings looked like the one he had on the night of the

offense, she was not absolutely sure it was the same gun.

Investigator-Lieutenant Jeff Vittatoe of the Loudon County Sheriff’s Office

testified that he was the lead investigator in the instant case. On February 17, 2004, he

was called to a location about two miles off Interstate Highway 75 on Eblen Road. He

noted that there was a T-intersection at the end of Eblen Road and that the crime scene

was to the right of the road. Upon arrival at the scene, he checked the roadside for

footprints and tire impressions, but did not find any. He explained that the general

protocol for crime scene investigation involves photographing, cataloging, and packaging

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items, which are sealed and initialed by the officer that collects them. He agreed that he

took physical custody of all evidence collected from the scene. He also assisted in

examining and moving the victim’s body, which had been found in a mostly wooded

area. He described the condition of the victim’s body as follows:

As you exit the roadway and start down the hill the body was . . .

facing downhill face up with the feet pointing back towards the road. The

shirt, like a sweat shirt, blue, had some red around the collar, was pulled up

over the head and arm area. And was just - it was covering the head, it was

still on the neck but pulled up off of the body itself, off of the arms. Legs

of the pants pulled all the way off. One was off the foot. One, I think the

left foot was still hanging on the edge of that foot and that one shoe was

missing. I’m sorry the left shoe was off; the right was I believe the one that

the pants were still on.

....

You could see the obvious signs of what appeared to be a ligature

abrasions around the neck area. And the shirt collar was just up above that

around the chin area.

After the initial crime scene investigation, the Loudon County medical examiner

approved the removal of the victim’s body and issued an autopsy order. Investigator

Vittatoe attended the autopsy the next morning on February 18, 2004, and he received the

victim’s blood sample from Dr. Elkins. He also observed the bullet being removed from

the victim’s body and closely examined the victim’s wounds, particularly the cut marks

on her ribs. He testified that he felt that these marks were very much “out of the

ordinary,” and he asked questions about the marks during the autopsy.

Investigator Vittatoe then testified that he travelled to Roanoke, Virginia, after the

victim’s car was found and the Defendant was taken into custody. He was present when

Agent Henderson searched the victim’s car and took possession of several items found

inside the car, including the pistol that was found inside a jacket pocket. He noted that

Captain Bill Shirk of the Loudon County Sheriff’s Department transferred the evidence

recovered from the victim’s car to the TBI Crime Laboratory in Nashville. The car was

then sealed and secured for transport and delivered to the Loudon County Justice Center.

Investigator Vittatoe met with Investigator Seratt to discuss the results of her search of

the victim’s car, and all of the additional evidence removed from the car, including a pair

of FUBU pants, was turned over to him.

Investigator Vittatoe interviewed Michelle Tolley about the victim’s death. He

could not recall whether he asked her about the Defendant’s gun, but he agreed that he

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did not ask her specifically about Eugene Cummings. He stated that he did not think

Tolley had perpetrated the victim’s murder. He also testified that he did not promise

anything to her in exchange for her statement, put any words in her mouth, or tell her

what to say. He acknowledged that he was “verbally hard” on Tolley but said that she

was adamant that her final statement, which was reduced to writing, was the truth. He

denied that he ever provided Tolley with information about the victim’s clothing or the

location where the body was discovered.

Investigator Vittatoe testified that the victim’s phone records led him to the

Defendant in Roanoke, Virginia. He confirmed that he had reviewed and recorded the

threatening voicemail messages on the victim’s phone. The caller in the voicemail stated

that he lived at “310 Summer Street,” and Investigator Vittatoe testified that there was no

such address in Johnson City or Kingsport. On cross-examination, he testified that he

retrieved the messages from the victim’s phone during the week of February 20, 2004.

He said that he would categorize the first two messages as “threatening” but stated that

there was no information as to when the messages were left and who left them. He

confirmed that he had access to the call log from the victim’s cell phone, which consisted

of four pages and 120 calls. He conceded that it was possible to match the threatening

voicemail messages with the numbers listed on the victim’s call log but that “it would be

a process.”

Investigator Vittatoe further testified that the call log indicated that somebody

checked the messages from the victim’s cell phone at 10:58 a.m. on February 19, 2004,

shortly before the Defendant and Tolley were arrested. Investigator Vittatoe was unsure

whether the messages were checked from the hotel phone but agreed that the “originating

number” belonged to the victim’s cell and that there were not Virginia numbers listed in

the call log. He also said that the call log numbers were investigated “to a certain extent”

but admitted that “I didn’t take this [investigation] as far as I should have.” He agreed

that the voice on the threatening messages referred to the victim as “Wina”. He also

confirmed that a man who the victim knew named Will Pressley died of an overdose a

few days after victim’s death. Investigator Vittatoe was unsure whether Pressley’s death

was intentional or accidental. He further stated that “[a] lot of [Pressley’s] previous

activity was covered in the subsequent statements . . . taken from all the [victim’s]

friends,” but he did not investigate Pressley further than that. He also confirmed that the

gun and cartridges recovered from the victim’s car were not tested for fingerprints. He

noted that he had tried several times before to retrieve fingerprints from bullets but had

never been successful. He agreed that Tolley did not state that she saw the Defendant

with a knife, although knives were recovered from a gas station and from the victim’s car

and sent for DNA testing in relation to the victim’s murder.

On cross-examination, Investigator Vittatoe also testified that he “press[ed]

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[Tolley with] possibly be[ing] charged in this case.” He agreed that he told Tolley she

could be charged with murder in the present case even though he did not think she killed

the victim. He also acknowledged that Tolley probably could have been, but ultimately

was not, charged as an accessory to the victim’s murder. He stated that he did not

physically threaten her into saying things she did not want to say.

Special Agent Don Carmen, a Forensic Scientist at the TBI Crime Laboratory,

testified as an expert in firearm identification, or “ballistics.” He stated that in March

2004, he was asked to evaluate firearm items related to the victim’s murder. He

compiled an examination report that identified the items that were submitted for

evaluation, which included: (1) a Springfield Armory semi-automatic pistol; (2)

cartridges from the magazine that was inside the pistol; (3) a projectile bullet recovered

from the victim’s body; (4) two fired .45 caliber cartridge casings found at the crime

scene; and (5) cartridges from inside the Defendant’s coat pocket. Agent Carmen

testified in detail about the process for firearm identification. Part of this process requires

test firing bullets into a water tank, or “test tank,” so that no markings are left on the

projectile bullet other than “the barrel’s signature.” The cartridge case of each bullet

fired from a particular firearm also contains unique markings known as a “mechanical

fingerprint.” A comparison microscope is used to examine the similarities between the

markings that appear on two bullets to determine if they were fired from the barrel of the

same firearm. Agent Carmen test fired bullets from the Defendant’s pistol and compared

them to the projectile bullet recovered from the victim along with the two cartridge

casings found at the crime scene. He concluded that all of the bullets were fired from the

Defendant’s pistol.

Hunter Green, a Special Agent Forensic Scientist for the TBI, testified as an expert

in serology DNA analysis. On March 4, 2004, Agent Green received a request to test

various items of evidence for the presence of blood. These items included: (1) the

victim’s blue sweatshirt, blue jean jacket, blood sample, vaginal swabs and slides, and

fingernail clippings; (2) the Defendant’s buccal swabs, FUBU pants, shirts, jeans and

jacket; (3) a switch blade found at Mr. Gas; (4) a brown Carhartt jacket recovered from

the Ramada Inn; (5) various clothing, a wooden club, and a knife found inside the

victim’s car; and (6) samples taken from the pedals and upholstery of the victim’s car.

She said that she observed reddish brown stains on the right hand side of the FUBU pants

just below the pockets. She performed testing on the stains and confirmed that it was the

victim’s blood on the pants.

On cross-examination, Agent Green agreed that not all of the evidence submitted

to her was tested and that she did not test anything from the victim. She also agreed that

no part of the Defendant’s FUBU pants was tested other than the small cutting from the

area containing the blood stains. She conceded that she did not know if the Defendant

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had actually worn the FUBU pants. She acknowledged that there was “a good possibility

there would have been enough [DNA]” to test whether the Defendant or someone else

wore the pants.

On re-direct examination, Agent Green testified that she followed protocol by

testing the “most productive” areas of evidence. She explained that given the heavy

workload, forensic scientists follow a protocol for testing that allows them to reasonably

process the items they receive. She stated that had defense counsel requested additional

testing in the present case, she would have complied. On re-cross examination, she

conceded that there are not enough resources to test every item of evidence received.

However, she reiterated multiple times, “I did what our protocols allow us to do and

again had I have been requested I would have done more.”

Phyllis Eddington, the victim’s mother, testified that the victim was forty-three

years old and lived in Kingsport, Tennessee, when she died. Eddington lived in

Knoxville but said that she and the victim stayed in close contact and spoke regularly on

the phone. She was familiar with Will Pressley, a friend of the victim’s for over fifteen

years. She said that Pressley was kind to the victim, that she had never seen him be

abusive, verbally or otherwise, and that the victim had never indicated that problems

existed between them. She was unaware of whether the victim and Pressley were just

friends or romantically involved and conceded that “[it] [c]ould have been both.”

Eddington stated that she spoke with Pressley on a fairly regular basis, both in person and

on the phone. She agreed that she had listened carefully to recordings of two threatening

voicemails from the victim’s phone. She did not recognize the voice in these calls but

testified that she was sure that it was not Pressley. On cross-examination, Eddington

testified that although she had never heard Pressley’s voice raised, she was confident that

the voice heard on the victim’s voicemail messages was not his.

Based on the foregoing evidence, the jury found the Defendant guilty as charged

of first degree premeditated murder. The trial court imposed a life sentence to be served

consecutively to a separate federal sentence. The Defendant filed a timely motion for

new trial on June 9, 2008, and amended motions for new trial on January 7, 2014, and

May 8, 2014. 3 During the pendency of his motions for new trial, he also filed a Motion

for DNA Testing on August 22, 2013, followed by an amended motion on May 8, 2014.

After a non-evidentiary hearing on May 12, 2014, the trial court issued an order denying

3

The record does not provide this court with a reason for the nearly six-year delay between the

filing of the motion for new trial and the resolution of the same. To this court’s surprise, the amended

motion for new trial was not heard until after the Defendant appealed the trial court’s denial of his

Amended Motion to Order Forensic DNA Testing. In response to his notice of appeal, this court ordered

the full technical record, including the transcript of the motion for new trial, and discovered that the

motion for new trial had languished in the trial court for six years.

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the motion for DNA testing on May 22, 2014. A hearing on the motion for new trial took

place on September 29, 2014, and the trial court issued a written order denying relief on

October 2, 2014. After the denial of his motion for new trial, the Defendant filed a timely

notice of appeal on October 29, 2014.

ANALYSIS

On appeal, the Defendant raises seven issues. He argues that: (1) the evidence is

insufficient to sustain his conviction for first degree premeditated murder; (2) the State

offered improper closing arguments; (3) the trial court should have limited the expert

testimony regarding a forensic ballistic match; (4) the admission of the victim’s autopsy

report violated his right of confrontation; (5) the State failed to produce potentially

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (6) trial

counsel was ineffective; and (7) the trial court improperly denied his motion for

additional DNA testing.

I. Sufficiency of the Evidence. The Defendant argues that the evidence was

insufficient to sustain his conviction for first degree premeditated murder. The

Defendant notes that the State “provided, for the first time during [closing] argument . . .

the theory that the post-mortem mutilation of the victim’s body was evidence of

premeditation because . . . the perpetrator was trying to cover up his crime by trying to

retrieve the slugs from the body.” Aside from this unsupported theory, the Defendant

claims the State failed to produce any evidence of premeditation. In response, the State

contends that the evidence is sufficient to support the conviction of first degree murder.

We agree with the State.

When a defendant challenges the sufficiency of the evidence, the standard of

review applied by this court is “whether, after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,

“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

the evidence is insufficient to support the finding by the trier of fact of guilt beyond a

reasonable doubt.” When considering the sufficiency of the evidence on appeal, the State

is entitled to the strongest legitimate view of the evidence and all reasonable inferences

which may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn.

2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). “Because a verdict of

guilt removes the presumption of innocence and raises a presumption of guilt, the

criminal defendant bears the burden on appeal of showing that the evidence was legally

insufficient to sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009).

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Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting

State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d

331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.

1978)). Moreover, the jury determines the weight to be given to circumstantial evidence

and the inferences to be drawn from this evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence are questions

primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d

646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court

shall not reweigh the evidence or substitute its inferences for those drawn by the trier of

fact. Id.

First degree murder is the premeditated and intentional killing of another person.

T.C.A. § 39-13-202(a)(1). Premeditation is defined as “an act done after the exercise of

reflection and judgment.” Id. § 39-13-202(d). This section further defines premeditation:

“Premeditation” means that the intent to kill must have been formed

prior to the act itself. It is not necessary that the purpose to kill pre-exist in

the mind of the accused for any definite period of time. The mental state of

the accused at the time the accused allegedly decided to kill must be

carefully considered in order to determine whether the accused was

sufficiently free from excitement and passion as to be capable of

premeditation.

Id. If the proof establishes that the defendant intended to cause the death of a person and

that he acted with premeditation and deliberation, then the killing of another, even if it

was not the intended victim, is sufficient to sustain a conviction for first degree

premeditated murder. State v. Ely, 48 S.W.3d 710, 723-24 (Tenn. 2001); Millen v. State,

988 S.W.2d 164, 168 (Tenn. 1999).

The existence of premeditation is a question of fact for the jury to determine and

may be inferred from the circumstances surrounding the offense. State v. Young, 196

S.W.3d 85, 108 (Tenn. 2006); State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Factors

that may support the existence of premeditation include, but are not limited to, the use of

a deadly weapon upon an unarmed victim, the particular cruelty of the killing, the

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infliction of multiple wounds, declarations by the defendant of an intent to kill, lack of

provocation by the victim, failure to aid or assist the victim, evidence of procurement of a

weapon, preparations before the killing for concealment of the crime, destruction and

secretion of evidence of the killing, and calmness immediately after the killing. State v.

Kiser, 284 S.W.3d 227, 268 (Tenn. 2009); State v. Leach, 148 S.W.3d 42, 53-54 (Tenn.

2004); State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003); State v. Bland, 958 S.W.2d

651, 660 (Tenn. 1997). This Court has also noted that the jury may infer premeditation

from any planning activity by the defendant before the killing, evidence concerning the

defendant’s motive, and the nature of the killing. State v. Bordis, 905 S.W.2d 214, 222

(Tenn. Crim. App. 1995) (citation omitted).

Aside from the mutilation theory posited by the State during closing argument,

which the Defendant challenges in issue two, the Defendant argues that there was no

proof offered at trial to support premeditation. We disagree. Viewed in the light most

favorable to the State, the record shows that the Defendant took the victim’s car against

her wishes on the night she was killed. As they drove around, the Defendant and the

victim were “fussing” over the car and the victim’s relations with another man. The

Defendant, the victim, and Tolley later engaged in illegal drug use. Toward the end of

the night, the Defendant told the victim she had to die and drove to a remote, wooded

area off Eblen Road in Loudon County. The victim was then “jerked” out of the car. The

medical examiner testified that she was strangled while she was alive and shot multiple

times. Tolley heard multiple shots fired and testified that the victim did not return to the

car. Before leaving the scene, the Defendant washed his hands with a soda and instructed

Tolley “not to open [her] mouth.” The Defendant drove away in the victim’s car with the

victim’s cell phone, leaving the victim’s body in the woods. He later told Tolley that “he

did what he had to do.” In the days following the victim’s murder, the Defendant

checked the voicemail messages on the victim’s cell phone multiple times before

eventually destroying it. He moved to different hotels and fled the state. Based on the

above proof, a rational juror could conclude beyond a reasonable doubt that the

Defendant acted with premeditation to commit first degree murder of the victim. He is

not entitled to relief on this issue.

II. Prosecutorial Misconduct in Closing Arguments. Related to his challenge to

the sufficiency of the evidence, the Defendant argues that the trial court erred in allowing

the State to argue in closing argument facts that were not in the evidence adduced at trial.

Following the close of the State’s case-in-chief, the Defendant moved to dismiss the first

degree murder charge based on insufficient proof to establish premeditation and

deliberation. The State responded that the post-mortem mutilation of the victim’s body

was proof of premeditation because it was an attempt to retrieve the bullets fired from the

victim’s body. The trial court denied the Defendant’s motion for judgment of acquittal,

and the Defendant moved to prohibit the State’s use of this theory in closing arguments,

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which was denied by the trial court. The State’s closing argument, in pertinent part, was

as follows:

It has to be intentional. Was this accidental? Was this inadvertent?

One shot, two shots, three shots. Strangulation while she was still alive. At

leas[t] prior to the fatal shot. And then the mutilation, this was no accident.

This was no inadvertent killing, this was an intentional act.

It wasn’t premeditated. Premeditation can happen in an instant.

Once again the circumstances tell you a whole lot about this case. Not one

shot, not two shots, but three shots. Strangulation as well. And then what I

submit to you was methodical mutilation.

There may be something to argue about premeditation based on just

what’s at the scene, but you are almost all the way there with just what you

have just from that scene.

Could it have been done by someone who was angry[?] [Y]es it

could have been[.]

Let’s talk a little bit about this mutilation. When you first heard that

she had been mutilated, I believe actually I mentioned that during jury

selection, when you first heard testimony of that, did some of you think to

yourself, just out of meanness. Maybe out of desire to take home a

gruesome trophy. It’s a logical place to go.

But I doubt if it was missed by at least some of you that there was

testimony after that that tells you something different about that. This was

not just the excising of the superficial tissue of the breast. Dr. Mileusnic

told you (indiscernible).

What else did she tell you? She told you that the ribs were cut in

two. Two totally severed. Three she called superficial. One of those

superficial was almost a third of the way. Almost half of the way through

there. Where did that go into the body cavity? (Indiscernible)

What else did she tell you? Before they even make the first cut on

the body they do x-rays. She didn’t have to tell you why they did that. One

of the ways to find foreign objects in the body. There’s other things that

doctors can see in x-rays that you and I can’t. Something as vague as is

that so in so (indiscernible). But you’ve all seen your own dental x-rays

- 17 -

and what does metal do in a dental x-ray? It stands out, bright clear spot on

the x-ray.

The Doctor told you that she was shot three times. (Indiscernible)

with one exit wound and one projectile. The purpose, I submit to you of

that mutilation was to recover the slugs, to recover evidence and it was

partially successful. But there was still one slug in her.

Really this case boils down to only one issue. And that is that man

over there that did it. That’s it, period.

This is a first degree murder.

The Defendant argues that the State improperly offered testimony in closing

arguments by introducing a theory of premeditation that was not supported by the

evidence adduced at trial. He also claims that the trial court abused its discretion in

permitting the State to do so. The State responds that its arguments were within the

bounds of what the law allows and that the trial court did not abuse its discretion. We

agree with the State.

Prosecutorial misconduct occurs when (1) the prosecutor intentionally misstates

the evidence or misleads the jury as to the inferences it may draw or (2) the prosecutor

intentionally refers to or argues facts outside the record unless the facts are matters of

common public knowledge. See State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003)

(citations omitted). “Closing argument is a valuable privilege that should not be unduly

restricted.” State v. Stephenson, 195 S.W.3d 574, 603 (Tenn. 2006) (citing State v. Bane,

57 S.W.3d 411, 425 (Tenn. 2001)). Prosecutorial misconduct does not constitute

reversible error absent a showing that it has affected the outcome of the trial to the

prejudice of the defendant. Id. (citing Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)).

The trial court has substantial discretion in controlling the course of arguments and will

not be reversed unless there is an abuse of that discretion. State v. Sexton, 368 S.W.3d

371, 419 (Tenn. 2012) (citing State v. Thomas, 158 S.W.3d 361, 412-13 (Tenn. 2005)

(appendix)). However, an attorney’s comments during closing argument “‘must be

temperate, must be predicated on evidence introduced during the trial of the case, and

must be pertinent to the issues being tried.’” State v. Gann, 251 S.W.3d 446, 459 (Tenn.

Crim. App. 2007) (quoting State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)).

In order to be entitled to relief on appeal, the defendant must “show that the

argument of the prosecutor was so inflammatory or the conduct so improper that it

affected the verdict to his detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim.

App. 1996). This court must consider the following factors when determining whether

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the argument of the prosecutor was so inflammatory or improper to negatively affect the

verdict:

(1) the conduct complained of viewed in the light of the facts and

circumstances of the case; (2) the curative measures undertaken by the

court and the prosecution; (3) the intent of the prosecutor in making the

improper arguments; (4) the cumulative effect of the improper conduct and

any other errors in the record; and (5) the relative strength and weakness of

the case.

State v. Chalmers, 28 S.W.3d 913, 917 (Tenn. 2000) (citations omitted).

The Defendant claims that the State engaged in prosecutorial misconduct by

introducing a theory of premeditation based on the post-mortem mutilation to the victim’s

body. According to the Defendant, “[t]he [State’s] introduction of that theory, without

having proof in evidence of that fact, constituted reversible error designed to bolster the

State’s weak case for premeditation[.]” In allowing the State’s closing argument at trial,

the trial court determined that there were sufficient facts in evidence to support the

State’s theory. We agree. Here, Dr. Mileusnic-Polchan testified with regard to the

mutilation to the victim’s body, noting that it occurred post-mortem. She also determined

that a sharp object was used, that the cuts on the victim’s ribs were mostly superficial

rather than intended to inflict injury, and that there were no signs of animal predation.

Two of the victim’s gunshot wounds did not have exits wounds, but only one bullet was

retrieved from the victim’s body. Given these facts, it was reasonable for the State to

argue that the purpose of the post-mortem mutilation was to recover the bullets from the

victim’s body. Moreover, as we discussed in issue one, there was more than sufficient

proof of premeditation in this case, including the Defendant’s statements on the night the

victim was killed that she was going to die, the fact that the victim was strangled while

alive, and the fact that she was shot multiple times. Thus, to the extent that there was any

error in the State’s argument, we conclude that it was harmless. The Defendant is not

entitled to relief on this issue.

III. Ballistics Testing. The Defendant argues that the trial court should have

limited Agent Carmen’s expert ballistics testimony at trial “to account for scientific and

statistical impossibilities in the field.” Specifically, he asserts that “Agent Carmen

crossed the threshold of appropriate expert opinion” when he positively stated that the

bullets recovered from the crime scene were fired from the Defendant’s pistol. He notes

that Agent Carmen “repeatedly stated that his testing revealed a certain ballistic match,

ultimately inferring a match to the exclusion of all other weapons, and one of scientific

certainty.” The Defendant maintains that affirmative expert opinions regarding ballistics

testing are not scientifically reliable and that the use of this type of testimony at trial was

- 19 -

therefore misleading and prejudicial. The State argues that the trial court properly

admitted Agent Carmen’s expert testimony. We agree with the State.

The admissibility of expert testimony is governed by Rules 702 and 703 of the

Tennessee Rules of Evidence. Rule 702, which addresses the need for expert testimony

and the qualifications of the expert, provides: “If scientific, technical, or other

specialized knowledge will substantially assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion or otherwise.”

Tenn. R. Evid. 702. The Tennessee Supreme Court defined the role of trial courts in

determining the admissibility of expert testimony:

Trial courts act as gatekeepers when it comes to the admissibility of expert

testimony. Their role is to ensure that an expert, whether basing testimony

upon professional studies or personal experience, employs in the courtroom

the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field. A court must assure itself that the expert’s

opinions are based on relevant scientific methods, processes, and data, and

not upon an expert’s mere speculation. The court’s reliability analysis has

four general inter-related components: (1) qualifications assessment, (2)

analytical cohesion, (3) methodological reliability, and (4) foundational

reliability.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotation

marks omitted). The witness’s necessary expertise may be acquired through formal

education or life experiences. Neil P. Cohen et al., Tennessee Law of Evidence § 7.02[4]

at 7-21. However, the witness must possess such superior skill, experience, training,

education, or knowledge within the particular area that his or her degree of expertise

exceeds the scope of common knowledge and experience possessed by the average

person. Id. (citations omitted).

Tennessee Rule of Evidence 703 provides guidance regarding the proper bases for

expert testimony:

The facts or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made known to the

expert at or before the hearing. If of a type reasonably relied upon by

experts in the particular field in forming opinions or inferences upon the

subject, the facts or data need not be admissible in evidence. Facts or data

that are otherwise inadmissible shall not be disclosed to the jury by the

proponent of the opinion or inference unless the court determines that their

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probative value in assisting the jury to evaluate the expert’s opinion

substantially outweighs their prejudicial effect. The court shall disallow

testimony in the form of an opinion or inference if the underlying facts or

data indicate lack of trustworthiness.

Tenn. R. Evid. 703 (emphasis added).

“Generally speaking, the trial court is afforded broad discretion in resolving

questions concerning the admissibility of expert testimony; in consequence, we will not

overturn its ruling on appeal absent a finding that it abused its discretion.” State v.

Ferrell, 277 S.W.3d 372, 378 (Tenn. 2009) (citing State v. Copeland, 226 S.W.3d 287,

301 (Tenn. 2007); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)). “A trial court

abuses its discretion when it applies incorrect legal standards, reaches an illogical

conclusion, bases its decision on a clearly erroneous assessment of the evidence, or

employs reasoning that causes an injustice to the complaining party.” Scott, 275 S.W. 3d

at 404-05 (citing Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d

346, 358 (Tenn. 2008)).

The Defendant challenges the admission of Agent Carmen’s testimony at trial to

the extent that it presents an affirmative conclusion of a ballistic match “to a degree of

scientific certainty.” Relying on publications issued by the National Research Council,

the Defendant asserts that the legal and scientific landscape has changed since his May

2008 trial and that “significant technological advancements have discredited the

reliability of ballistic prints as a form of affirmative proof in criminal trials.” 4

At the motion for new trial hearing, the Defendant called Shelly Betts, a Special

Agent Forensic Scientist Supervisor of the Firearms Units at the Nashville Crime

Laboratory, to testify in place of Agent Carmen. Agent Betts reviewed the case file and

the procedure Agent Carmen used to conduct the firearm examination, which was the

same procedure used by all TBI agents. She explained that positive and negative controls

were used in testing and that “[f]or the firearms part of the analysis, the control would be

the knowns that were test fired from that pistol.” She noted that they did not test fire

4

The Defendant cites two publications from the National Research Council in his Memorandum

in Support of Defendant’s Amended Motion for New Trial and in the Defense Brief on appeal. See

National Academy of Sciences, National Research Council, Committee to Assess the Feasibility,

Accuracy, and Technological Capability of a National Ballistics Database, Ballistics Imaging 7-8 (2008),

available at http://www.nap.edu/catalog/12162/ballistic-imaging; Committee on Identifying the Needs of

the Forensic Science Community, National Research Council, Strengthening Forensic Science in the

United States: A Path Forward 107-09 (2009), available at https://www.ncjrs.gov/pdffiles1/nij

/grants/228091.pdf. For purposes of clarity, we will refer to these collectively as the “NAS Reports.”

- 21 -

other pistols and that it was not necessary to test every firearm of that model because

examiners instead look for the unique markings reproduced from a particular firearm.

She further testified that it was possible to exclude all other firearms in the present case

because the markings found on the test-fired cartridge casings and bullets were the same

as the individual markings found on the cartridge casings and bullets recovered from the

crime scene. She felt confident that another firearm would not have left the same

markings, noting that examiners can affirmatively conclude that a ballistic match exists

when there are a significant number of matching marks. She also noted that there is a

weapon’s database that allows firearm examiners to determine if a weapon has been used

in a prior crime.

Agent Betts said that DNA and ballistic testing are not comparable in terms of

measurability, as statistics are not the form adopted by the TBI for forensic evaluation of

firearms. Defense counsel questioned how TBI determines “based on the large pool of

weapons that are out there, that that is affirmatively the gun to the exclusion of all others

that fired that bullet,” and Agent Betts replied:

I believe (indiscernible) the degree of scientific certainty implies that

there is no way that you can look at every gun even of that same make and

model to see if they have the same type of markings. So what we do, is we

look at the best known non-matches which would be consecutively made

with the same tool, same period of time. And you can see differences in all

of those.

There may be some similarities but to make that identification you

have to have a sufficient agreement of matching stria which exceeds the

best known non-matched and you are not talking about a one or two percent

difference. There’s a large difference in the best known non-match versus a

match.

When you found the significant number of matching stria to

conclude a test from experience and from looking at thousands of non-

matches, then you can conclude that that bullet or that cartridge was fired

from that pistol or firearm.

Asked specifically “her opinion” about the Ballistics Imaging Report of 2008

discouraging efforts to establish a national ballistic print database due to statistical

shortcomings in the field, Agent Betts replied, “that’s trying to assign statistics to a

pattern. That doesn’t necessarily lend itself to specifics.” Asked “her opinion” about

whether “a 100% certain match can be established to a scientific certainty with regard to

forensic ballistics matching,” Agent Betts replied:

- 22 -

Again, it is not possible, like in fingerprints, to look at every person

to see if they have the same fingerprint. What you can do is look at the

guns that are going to be the most similar, that are going to leave the most

similar markings, and that’s been done repeatedly. I’ve done that myself.

Everybody at the T.B.I.’s done that. That’s why, to a scientific certainty,

we are able to say that those bullets, or those cartridge cases, were fired in

that gun if we make a positive identification.

On cross-examination, Agent Betts testified that TBI had a mandatory technical

review process for every ballistics examination. She said that every examination is

verified by a second examiner and then the entire case undergoes a technical review to

ensure the methods and conclusions are valid. She also explained that the examiners are

required to explain their conclusions using at least two of three methods, which include a

narrative, a drawing, or a photographic representation. Agent Betts confirmed that all of

the required TBI procedures were followed in the present case and that she was confident

that the results yielded a ballistics match between the slug recovered from the victim’s

body and the Defendant’s gun.

At the conclusion of the motion for new trial hearing, the trial court denied relief

without elaboration. Upon our review, we reject this issue on several grounds. First, the

Defendant concedes that he did not object to the admission of Agent Carmen’s ballistic

testimony at trial and explains that the science of ballistic testing had not yet evolved in

2008 to justify such an objection. We note, however, one of the reports upon which he

now relies was published in 2008. In any event, our rules require that a timely objection

be made to preserve an error and that a party take any action reasonably available so as to

prevent an error. See Tenn. R. Evid. 103(a)(1); Tenn. R. App. P. 36(a). When a party

does not object to the admissibility of evidence, this Court is limited to reviewing the

issue for plain error. Tenn. R. App. P. 36(b).

In order for this court to find plain error, “(a) the record must clearly establish

what occurred in the trial court; (b) a clear and unequivocal rule of law must have been

breached; (c) a substantial right of the accused must have been adversely affected; (d) the

accused did not waive the issue for tactical reasons; and (e) consideration of the error is

‘necessary to do substantial justice.’” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000)

(quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). “[P]lain

error must be of such a great magnitude that it probably changed the outcome of the

trial.” Adkisson, 899 S.W.2d at 642 (internal quotations marks and citations omitted).

“It is the accused’s burden to persuade an appellate court that the trial court committed

plain error.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (citing United States v.

Olano, 507 U.S. 725, 734 (1993)). “[T]he presence of all five factors must be established

by the record before this Court will recognize the existence of plain error, and complete

- 23 -

consideration of all the factors is not necessary when it is clear from the record that at

least one of the factors cannot be established.” Smith, 24 S.W.3d at 283.

At trial, Agent Carmen explained how he conducts firearms examinations and

generally stated, “[I]f I find sufficient agreement I can conclude 100 percent that that

particular bullet has been fired down that barrel.” Significantly, Agent Carmen was later

asked if he was able “to a reasonable degree of scientific certainty determine whether that

slug was fired through the [subject] pistol,” and he replied, “Yes.” Agent Carmen was

also asked whether he “was able to determine to a reasonable degree of scientific

certainty whether or not those cases had been fired in that weapon?” Agent Carmen

replied, “Yes.”

In support of this issue, the Defendant’s brief relies heavily upon several federal

district court opinions which have either limited the admissibility of a ballistic expert’s

opinion based on the 2008 and 2009 NAS Reports or limited the admissibility of ballistic

testimony based on deficiencies in a ballistic expert’s qualifications and background. See

United States v. Willock, 696 F. Supp. 2d 536, 581-82 (D. Md. 2010); United States v.

Taylor, 663 F. Supp. 2d 1170 (D. N.M. 2009); United States v. Monteiro, 407 F. Supp. 2d

351 (D. Mass. 2006) (allowing testimony of ballistics expert but limiting it to “a

reasonable degree of ballistic certainty”); but see United States v. Casey, 928 F. Supp. 2d

397 (2013) (holding that concerns regarding reliability of AFTE theory of identification

for ballistics evidence did not warrant limiting testimony of firearms experts because “the

purpose of the 2008 NAS report was not to pass judgment on the admissibility of

ballistics evidence in legal proceedings, but, rather, to assess the feasibility of creating a

ballistics data base [and] . . . . the question of legal admissibility ‘was explicitly ruled

out[.]’”).

The cases relied upon by the Defendant have no binding effect on this court. They

are also distinguishable from the case sub judice. The most striking difference is that, in

this appeal, Agent Carmen did in fact testify to a reasonable degree of scientific certainty

as to his conclusions concerning the firearm and cartridges. In addition, the Defendant

did not admit the NAS Reports into evidence, made only fleeting references to the reports

at the hearing, and failed to provide any testimony regarding the importance of these

reports to this case at the hearing on the motion for new trial. Although the Defendant

attempted to challenge Agent Carmen’s ballistic determinations at the motion for new

trial, Agent Betts confirmed all of Agent Carmen’s conclusions. Agent Betts also

testified that the methods that Agent Carmen used in his examination of the bullets and

pistol were widely accepted within the scientific community and remain the primary

method of testing used by the TBI. While the Defendant makes somewhat sweeping

conclusions in his brief condemning ballistic science, he has failed to meaningfully

challenge the qualifications or methodology used by Agent Carmen to test the firearm,

- 24 -

bullets, and cartridges in this case. Because no clear and unequivocal rule of law has

been breached, this issue does not warrant plain error review. See also State v.

Lemaricus Devall Davidson, No. E2013-00394-CCA-R3-DD, 2015 WL 1087126, at *32-

33 (Tenn. Crim. App. Mar. 15, 2015) (holding that expert testimony regarding ballistics

matches is permissible and noting that “challenge[s] utilizing the conclusions in the

National Research Council report ‘more appropriately will go to the weight of the

evidence rather than its admissibility.’”).

IV. Autopsy Report. The Defendant next contends that the trial court erred by

admitting the victim’s autopsy report into evidence. Specifically, he argues that “the

autopsy report prepared by Dr. Elkins, but testified to by Dr. Mileusnic-Polchan, is

testimonial and its introduction without Dr. Elkins being available for confrontation

violates [the Defendant’s] Sixth Amendment right to confront the witnesses against him.”

The State argues that the autopsy report is generally non-testimonial in nature and may be

admitted into evidence without violating the Defendant’s right to confrontation.

As in issue three, the Defendant failed to preserve this issue by making a

contemporaneous objection to the admission of the autopsy report or an objection to Dr.

Mileusnic-Polchan’s testimony at trial. Therefore, our review of this issue in limited to

plain error analysis, subject to the same legal analysis as described in issue three.

We need not tarry long in resolving this issue because the sole case relied upon for

relief by the Defendant has been abrogated by the United States Supreme Court. See

State v. James Drew Freeman, No. M2011-00184-CCA-R3-CD, 2012 WL 1656975

(Tenn. Crim. App. May 9, 2012), abrogated in part by Williams v. Illinois, -- U.S. -- , 132

S. Ct. 2221, 183 L. Ed. 2d 89 (2012), as stated in State v. Thomas Lee Carey, Jr., No.

M2013-02483-CCA-R3-CD, 2015 WL 1119454 (Tenn. Crim. App. Jan. 14, 2015)

(quoting State v. Jessie Dotson, No. W2011-00815-CCA-R3-DD, 2013 WL 4728679, at

*66 (Tenn. Crim. App. June 25, 2013) (“[T]he Williams decision ‘effectively abrogated

this court’s holding in James Drew Freeman, Jr. that the admission of an autopsy report

prepared by a pathologist who does not testify at trial violates the Confrontation

Clause.’”)). In addition, while this case was pending review in this court, the Tennessee

Supreme Court squarely resolved this issue against the Defendant. See State v. Thomas

Lee Hutchison, -- S.W.3d -- , No. E2012-02671-SC-R11-CD, 2016 WL 164310 (Tenn.

2016).

In Williams, the United States Supreme Court held that the Confrontation Clause

did not preclude an expert witness that was not involved in the preparation of a DNA

laboratory report from providing an opinion based on information contained therein.

Williams, 132 S. Ct. at 2243. The Court in Williams concluded that the report was non-

testimonial because it was not prepared for “the primary purpose of accusing a targeted

- 25 -

individual.” Id. The Court noted further that, at the time the report was prepared, no

suspects had been identified and the purpose of the report was to catch a suspect who was

still at large rather than “to accuse [the Defendant] or to create evidence for use at trial.

Id.

Following Williams, the Tennessee Supreme Court reexamined the admissibility

of autopsy reports prepared by a medical examiner who did not testify and the admission

of testimony from a physician who did not perform the autopsy in State v. Dotson, 450

S.W.3d 1, 71 (Tenn. 2014). The Court noted that “[c]ourts continue to be divided on the

question of whether autopsy reports are testimonial statements or not.” Id. The

defendant in Dotson argued that the admission of autopsy reports prepared by a medical

examiner who did not testify at the trial and the admission of testimony from a forensic

pathologist that did not prepare the reports violated his confrontation rights. Id. at 70. As

in this case, the defendant in Dotson failed to object to the admission of the expert

testimony or the information contained in the autopsy reports. Id. Further, neither the

autopsy reports nor the testifying pathologist’s testimony implicated the defendant in the

homicides. Id. at 72. The Court concluded:

We need not decide in this case whether autopsy reports are

testimonial or whether a medical examiner may testify about an autopsy

report produced by another pathologist who does not testify at trial. Instead

we hold only that no clear rule of law was breached in this case by the

admission of the autopsy reports or [the doctor’s] testimony about them.

Given the uncertainty that has existed in Confrontation Clause

jurisprudence since Crawford, and in particular the lack of clarity regarding

expert reports and testimony, which was actually exacerbated by the

splintered decision in Williams, we conclude that the defendant has failed

to establish that a clear and unequivocal rule of law was breached.

Id. (footnote omitted). Based upon the foregoing, the Court held that plain error relief

was not necessary to do substantial justice. Id. We view this case no differently than

Dotson. Accordingly, based on the reasoning and analysis applied in Dotson, we

conclude that plain error relief is not necessary to do substantial justice.

V. Brady Violations. Next, the Defendant argues that the State committed Brady

violations by presenting false testimony, withholding exculpatory evidence related to a

third party suspect until one week prior to trial, and suppressing exculpatory DNA

evidence. The State responds that the Defendant has failed to prove a Brady violation

and is therefore not entitled to relief. We agree with the State.

- 26 -

A. The State Presented False Testimony. The Defendant first argues that “the

State’s key witness provided patently false testimony that was spawned by her fear of

criminal prosecution, due to threats made by Detective Vittatoe.” He maintains that

“serious questions arose during and after trial regarding the veracity of the State’s key

witness, which, when considered together with the withheld third-party suspect

information, resulted in a trial that was ‘fundamentally unfair.’” According to the

Defendant, the presentation of false testimony amounted to a

Brady violation, and “the likelihood that perjured testimony was presented by the State

supports the need for a new trial.” Unfortunately, at the hearing on the motion for new

trial and in his brief to this court, the Defendant failed to identify what testimony was

false, failed to present any proof as to its falsity, and failed to demonstrate that the State

was aware of any such falsity. See State v. Cureton, 38 S.W.3d 64, 74-75 (Tenn. Crim.

App. 2000) (“To obtain a new trial [based on such a claim], the defendant must

demonstrate that the State presented false testimony, the State knew the testimony was

false, and the testimony was material.”). Because the Defendant failed to present any

proof regarding his claim of false testimony, it is waived. See Tenn. Ct. Crim. App. R.

10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.”); see also Tenn. R. App.

P. 27(a)(7) (A brief shall contain “[a]n argument . . . setting forth the contentions of the

appellant with respect to the issues presented, and the reasons therefor, including the

reasons why the contentions require appellate relief, with citations to the authorities and

appropriate references to the record . . . relied on.”).

B. The State Withheld Information Implicating a Third-Party Suspect. Next,

the Defendant argues that the State’s delayed disclosure of the threatening voicemail

messages constituted a violation of Brady. Although he concedes that he failed to request

a continuance based on the late disclosure of the voicemail messages at trial, he argues

that the State’s late disclosure “did not cure the [Brady] violation.”

This court analyzes the State’s delayed disclosure of evidence differently than the

State’s non-disclosure of evidence. “Generally, if there is only a delayed disclosure of

information, in contrast to a complete failure to disclose exculpatory information, Brady

normally does not apply, unless the delay itself causes prejudice.” State v. Caughron,

855 S.W.2d 526, 548 (Tenn. 1993) (Daughtrey, J., dissenting); State v. Joan Elizabeth

Hall, No. 01C01-9710-CC-00503, 1999 WL 34782, at *9 (Tenn. Crim. App., at

Nashville, Jan. 28, 1999) (citations omitted). Where there is a delayed disclosure of

evidence, this court must determine whether the delay kept defense counsel from

effectively using this evidence in presenting and preparing the defendant’s case.

Caughron, 855 S.W.2d at 548 (citing United States v. Ingraldi, 793 F.2d 408, 411-12 (1st

Cir. 1986)). “Delayed disclosure results in prejudice to the defendant and may deny the

defendant due process when it is ‘too late for the defendant to make use of any benefits of

- 27 -

the evidence.’” State v. Sidney M. Ewing, No. 01C01-9612-CR-00531, 1998 WL

321932, at *8 (Tenn. Crim. App., at Nashville, June 19, 1998), opinion vacated and

reentered by State v. Ewing, No. 01C01-9612-CR-00531, 1998 WL 485614, at *1 (Tenn.

Crim. App., at Nashville, Aug. 18, 1998) (quoting Nassar v. Sissel, 792 F.2d 119, 121

(8th Cir. 1986)). An incomplete response to a Brady request might cause the defense to

“abandon lines of independent investigation, defenses, or trial strategies that it otherwise

would have pursued.” United States v. Bagley, 473 U.S. 667, 682 (1985) (citation

omitted). If the defense fails to request a continuance after receipt of the evidence, fails to

call or recall a witness to testify regarding the evidence, or fails to extensively cross-

examine a witness regarding the evidence, the Brady violation may be cured. Sidney M.

Ewing, 1998 WL 321932, at *9.

On the day the Defendant’s trial began, immediately before the jury was sworn,

the State said that it had an “evidentiary matter” concerning the voicemail messages to

address with the court. While not entirely clear from the record, the State apparently

moved the court to exclude the content of the voicemail messages from the trial based on

hearsay. The defense argued, and the trial court agreed, that the content of the voicemail

messages was admissible in order for the defense to establish the possibility of a third

party suspect. The two voicemail messages, the content of which is transcribed below,

were recorded on a disc, played for the jury, and admitted as an exhibit at trial during

Investigator Vittatoe’s testimony.

First Message: Piece of sh--. N----- lover. F---ing ‘ho. You’re gonna f---ing

die tomorrow because I am coming like a G-- damn hurricane. You won’t

believe what happens next. You and your G-- damn, f---ing n-----s is

gonna die.

Second Message: I’m gon’ leave you one message. This is for the white

person who left me. The G-- damn f---ing n---- shit is over. I am f---ing

pissed off bad now. You have got to f---ing kill me to get rid of me . . . . I

live at G-- damn 310 W. Summer Street. Bring it on. Don’t f--- with me

ever again. Leave my shit alone and quit f---ing with those G-- damn n-----

s, Winna. You are a dead woman. You gonna die if you f--- with those

damn n-----s. G-- damn. Jesus Christ, Winna. What are you doing? You

left me for a n----? Don’t you understand what I’m gonna do? Don’t you

understand what I’m gonna do? Don’t you understand what’s gonna

happen to you? Goodbye.

As an initial matter, our review of the record does not bear out exactly when the

voicemail messages were disclosed to the defense. At the motion for new trial, defense

counsel could not recall when he received the recording and believed, based on his

- 28 -

experience with the State, that it was provided to him as soon as the State had received it.

On the day the trial was to commence, the State moved to exclude the content of the

recordings, and defense counsel properly objected. Defense counsel was not surprised by

the motion to exclude the voicemail messages, did not move the court for a continuance

based on late-disclosure grounds, and advocated for the admission of the content of the

voicemail message as a critical part of their defense. At trial, defense counsel cross-

examined Investigator Vittatoe regarding the content of the voicemail messages and

whether he had investigated the identity of the caller. Investigator Vittatoe confirmed

that he investigated Will Pressley, an acquaintance of the victim’s, as the caller.

Investigator Vittatoe said that Pressley died shortly after this offense and that he had

discussed this information with defense counsel prior to trial. At the motion for new trial,

defense counsel “did not know” whether receiving the recording of the threatening

voicemail messages one week prior to trial “caused a hardship” or “prejudiced” his

defense. Based on this record, to the extent there was late-disclosure of the recordings,

the Defendant has failed to establish prejudice. While the Defendant argues in his brief

that a voice analysis expert could have established the identity of the caller, he failed to

put forth any proof at the motion for new trial hearing in support of this issue. His

conclusory statements are not proof, and for purposes of this analysis, we are unable to

engage in such speculation. Accordingly, the Defendant is not entitled to relief.

C. The State Constructively Suppressed Exculpatory DNA Evidence. Finally,

the Defendant argues, without citing any authority, that the State violated Brady by

suppressing exculpatory DNA evidence. Here, the Defendant is aggrieved because the

State did not test certain items of evidence recovered in this case. In a novel argument,

he claims that the “State’s conscious ignorance for the truth, demonstrated in its failure to

test the firearm, and the interior of the alleged perpetrator’s pants, for any link to the

defendant, can only be characterized as a Brady violation.” We disagree. Brady

obligates the State to disclose exculpatory evidence in its possession. See State v.

Robinson, 146 S.W.3d 469, 512 (Tenn. 2004). To the extent that the Defendant claims

that there is exculpatory evidence inside the FUBU pants, a Brady claim inherently

requires that exculpatory evidence already exist. See State v. Brownell, 696 S.W.2d 362,

364 (Tenn. Crim. App. 1985) (noting that when “evidence does not exist, the State cannot

be charged with suppressing it”). Here, it is clear by his amended motion for additional

DNA testing of the FUBU pants that the exculpatory value of the evidence is yet to be

determined. Moreover, the FUBU pants were made available to the Defendant for

independent testing prior to trial, and, for reasons unknown, he declined to do so.

Accordingly, the Defendant has not articulated a viable Brady claim, and he is not

entitled to relief on this issue.

VI. Ineffective Assistance of Counsel. The Defendant argues that trial counsel

was ineffective in failing to thoroughly investigate a third-party suspect and in failing to

- 29 -

call any defense witnesses. The Defendant alleges that this failure was based, in part,

upon the limited resources and heavy caseload of the Public Defender’s Office, which

provided representation for the Defendant at trial. Ineffective assistance of counsel

claims may be raised on direct appeal; however, this court has cautioned that this is a

practice “‘fraught with peril[.]’” State v. Amy Jo Blankenship, No. M2002-01878-CCA-

R3-CD, 2004 WL 508500, at *3 (Tenn. Crim. App. Mar. 16, 2004) (quoting State v.

Ricky Brandon, No. M2002-00073-CCA-R3-CD, 2002 WL 31373470, at *2 (Tenn.

Crim. App. Oct. 15, 2002); State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App.

2001)). This is so because, “once the merits of an ineffective assistance of counsel claim

have been addressed on direct appeal, the issue may not be revisited in a post-conviction

proceeding.” Id. (citing Bobby Allen Joyner v. State, No. 03C01-9807-CR-00260, 1999

WL 3188832, at *2 (Tenn. Crim. App. May 19, 1999)). Here, we glean from the record

that this issue was included in the direct appeal due to the egregious delay in the

resolution of the Defendant’s motion for new trial and through no fault of counsel. At

first blush, this may have been an expeditious way to proceed; however, the record

reveals that this issue was prematurely raised and not adequately developed in the trial

court. Therefore, upon our careful review, we dismiss the Defendant’s ineffective

assistance of counsel claim, without prejudice.

VII. Denial of the Defendant’s Amended Motion for DNA Testing. Finally,

the Defendant argues that the trial court erred by denying his motions requesting

additional DNA testing. The Defendant filed a Motion for DNA Testing on August 22,

2013, and filed an amended motion on May 8, 2014. The motions asserted that, pursuant

to the Post-Conviction DNA Analysis Act of 2001, the Defendant was entitled to DNA

testing on several evidentiary items that could yield exculpatory DNA evidence. A non-

evidentiary hearing, for which the Defendant was not present, took place on May 12,

2014. At the hearing, the State argued that the Defendant failed to establish the first of

four factors necessary for mandatory DNA testing, which requires that “[a] reasonable

probability exists that [the Defendant] would not have been prosecuted or convicted if

exculpatory results had been obtained through DNA testing.” See T.C.A. § 40-30-

304(1). The State maintained that given the amount of convicting evidence introduced at

trial, no reasonable probability existed that additional DNA analysis, even if favorable to

the Defendant, would have changed the outcome of his conviction. After hearing

arguments from counsel, the court orally denied the Defendant’s Amended Motion for

DNA Testing and subsequently issued a written order denying the motion on May 22,

2014. In its written order, the court agreed “that the Defendant ha[d] not met his burden

under the first of the four factors required by Tenn. Code Ann. § 40-30-304.” In finding

that factor (1) was not satisfied, the court felt no need to address the remaining three

factors. See T.C.A. § 40-30-304(2)-(4).

- 30 -

On appeal, the Defendant argues that the trial court improperly denied the

Amended Motion for DNA Testing in violation of the Post-Conviction DNA Analysis

Act (“Act”). Specifically, he maintains that the court failed to adhere to the ruling in

Powers v. State, 343 S.W.3d 36, 55 (Tenn. 2011), which requires the court to presume

that DNA testing would yield the most exculpatory results. He further contends that

certain evidentiary items should be tested or retested given the technological

advancements in DNA testing since the time of trial. The State responds that the

Defendant has failed to show that the trial court abused its discretion by denying post-

conviction DNA testing. Upon review, we find that the trial court abused its discretion

by denying the Defendant’s request for DNA testing.

The Act states that a petitioner convicted of specific offenses, including first

degree murder, “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.” T.C.A. § 40-30-

303. There is no statute of limitation on filing a petition for testing, and “the right to

DNA analysis under the Act may not be waived by implication.” Powers, 343 S.W.3d at

48 (quoting Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006)). Tennessee Code

Annotated section 40-30-304 is mandatory, requiring that once the State has been

provided notice and an opportunity to respond, the court shall order DNA analysis

pursuant to the Act 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.

T.C.A. § 40-30-304. The Act also has a discretionary provision, which states that the

court may order DNA analysis if it finds “[a] reasonable probability exists that analysis of

the evidence will produce DNA results that would have rendered the petitioner’s verdict

- 31 -

or sentence more favorable if the results had been available at the proceeding leading to

the judgment of conviction,” and the petitioner has satisfied the other three requirements.

Id. § 40-30-305. Under both the mandatory and discretionary provisions, the petitioner

must satisfy all four requirements before DNA analysis will be ordered by the court. See

Powers, 343 S.W.3d at 48.

Regarding the first factor in section 40-30-304, the petitioner must show “a

reasonable probability exists that the petitioner would not have been prosecuted or

convicted if exculpatory results had been obtained through DNA analysis.” T.C.A. § 40-

30-304(1). A reasonable probability is a probability sufficient to undermine confidence in

the decision to prosecute or in the conviction had the State or the jury known of

exculpatory DNA testing results.” Powers, 343 S.W.3d at 55 (internal quotation marks

omitted). Moreover, for this first factor, “we begin with the proposition that DNA

analysis will prove to be exculpatory.” Id. (citing Pervis Payne v. State, W2007-01096-

CCA-R3-PD, 2007 WL 4258178, at *10 (Tenn. Crim. App. Dec. 5, 2007); Jack Jay

Shuttle v. State, No. E2003-00131-CCA-R3-PC, 2004 WL 199826, at *5 (Tenn. Crim.

App. Feb. 3, 2004)).

Because the trial court is given considerable discretion in determining whether the

Petitioner should be granted relief under the Act, this court’s scope of review is limited on

appeal. Jesse Haddox v. State, No. M2003-00514-CCA-R3-PC, 2004 WL 2544668, at *2

(Tenn. Crim. App. Nov. 10, 2004) (citing Jack Jay Shuttle, 2004 WL 199826, at *4).

Accordingly, we will not reverse unless the trial court’s judgment is not supported by

substantial evidence. Id. (citing State v. Hollingsworth, 647 S.W.2d 937, 938 (Tenn.

1983); Willie Todd Ensley v. State, No. M2002-01609-CCA- R3-PC, 2003 WL 1868647,

at *4 (Tenn. Crim. App. Apr. 11, 2003)).

“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.” Powers, 343 S.W.3d at 55

(citing Jesse Haddox, 2004 WL 2544668, at *5 (“A proper analysis by the trial court must

include consideration of the effect of th[e] ‘exculpatory result’ on the jury.”)). In

addition, it may be proper to consider any stipulations of fact made by the petitioner or

his attorney and the state. Id. (citing Mark A. Mitchell v. State, No. M2002-01500-CCA-

R3-PC, 2003 WL 1868649, at *4 (Tenn. Crim. App. Apr. 11, 2003)). Moreover, in

considering a petition for post-conviction DNA testing,

the opinions of [the Court of Criminal Appeals] on either the direct appeal

of the conviction or the appeals in any previous post-conviction or habeas

corpus actions may provide some assistance. These sources provide the

essential facts of the crime at issue and may be helpful to trial courts in

- 32 -

their assessment of the merits of any claim.

Mark A. Mitchell, 2003 WL 1868649, at *4. However, “[t]he ‘reasonable probability’

inquiry under section 40-30-304(1) of the Act requires courts to look at the effect the

exculpatory DNA evidence would have had on the evidence at the time of trial or at the

time the decision to prosecute was made, not on the evidence as construed by an appellate

court in the light most favorable to the State.” Powers, 343 S.W.3d at 57.

The Defendant argues that Powers requires that “[t]he trial court must assume the

most exculpatory results.” He contends that “[i]n this case, the most exculpatory results

would include the presence of Michelle Tolley’s DNA . . . on the inside of the [FUBU]

pants and under the victim’s fingernails.” According to the Defendant, had additional

DNA testing yielded either of these results, it is “reasonably probable” that the jury

would have acquitted the Defendant at trial. A similar argument was presented by the

defense at the May 12, 2014 non-evidentiary hearing on this matter. In denying relief,

the trial court rejected this argument and adopted the State’s position, which the court

summarized as follows:

It is the State’s position that, even if additional DNA is found on the

above listed items and even if such evidence is viewed in the light most

favorable to the Defendant, the Defendant would still have been convicted

of first-degree murder because the totality of the evidence proves the

Defendant’s guilt. The State points to and cites the following evidence in

the record in support of this argument: an eyewitness to the murder, who

testified the Defendant killed the victim; the victim’s blood/DNA were

found on the Defendant’s Fubu pants; the Defendant was found in

possession of the victim’s cell phone and the victim’s car at the time of his

arrest; the Defendant was in possession of the murder weapon (the .45

caliber handgun was a ballistic match to the gun used to kill the victim) at

the time of his arrest; and the Defendant fled the County and the State after

the murder.

We disagree. Viewed in the light most favorable to the Defendant, Tolley was the

State’s key witness. She was present at the time the victim was killed, and testified that

the Defendant killed the victim. Scientific evidence demonstrating that Tolley was

wearing the pants with the victim’s blood on them and that Tolley’s DNA was

underneath the victim’s fingernails is sufficient to undermine confidence in the decision

to prosecute or the conviction. Therefore, in light of the totality of the evidence, we

conclude that the Defendant has established that “[a] reasonable probability exists [that

he] would not have been prosecuted or convicted if exculpatory results had been obtained

through DNA analysis.” See T.C.A. § 40-30-304(1).

- 33 -

In addition, we conclude that, based on the record, the third and fourth factors set

forth in Code, section 40-30-304 have been met. See id. § 40-30-304(3)-(4). Here, the

items the Defendant seeks testing for were “never previously subjected to DNA analysis

or [were] not subjected to the analysis that is now requested which could resolve an issue

not resolved by previous analysis.” See id. § 40-30-304(3). Specifically with regard to

the victim’s fingernails clippings, the Defendant has sufficiently established that

advancements in DNA testing could yield conclusive results that were unattainable at the

time this evidence was previously tested. See Def.’s Am. Mot. to Order for Forensic

DNA Testing, Kahn Aff. Ex. A, at 17, May 8, 2014 (stating that significant developments

in DNA extraction techniques since the mid-2000’s allow forensic analysts to obtain

DNA profiles from smaller quantities of material that would previously return no result). 5

Moreover, we conclude that the Defendant has requested additional DNA testing in

furtherance of his claim of actual innocence rather than to intend “to unreasonably delay

the execution of sentence or administration of justice.” See id. § 40-30-304(4).

However, based on the record before us, we are unable to conclude whether the

second factor, that “[t]he evidence is still in existence and in such a condition that DNA

analysis may be conducted” has been satisfied. Id. § 40-30-304(2). We note that the trial

court was required to preserve all of the evidence in the State’s possession that the

Defendant listed in its request for DNA testing. See id. § 40-30-309. However, it is

necessary to determine whether those existing evidentiary items are in such a condition

that additional DNA analysis is achievable. Accordingly, we reverse the trial court’s

order denying additional DNA testing and remand this matter for the specific purpose of

5

Attached as exhibits to the Defendant’s amended motion for DNA testing area memorandum

opinion and corresponding affidavit for the case of State v. Jeff Boppre, No. 35847 (Dist.Ct. Neb. Apr. 2,

2014) (mem. order). In the affidavit, Laura Gahn, Ph.D., a forensic analyst at Cellmark Laboratory in

Dallas, Texas, attested, in pertinent part, to the following:

We have also improved our ability to concentrate samples where there is only a

small amount of genetic material. After late 2006, Cellmark began using the Amicon

filter. This filter helps concentrate the genetic material that has been extracted, which

improves our ability to obtain useful DNA profiles even from samples that may contain

only a few skin cells. Likewise, where prior testing of small amounts of material only

yielded a partial profile, using the Amicon filter to concentrate a sample can allow us to

obtain a full DNA profile suitable for comparison. Cellmark has validated the use of the

Amicon filter internally.

....

I have been told that fingernail scrapings were taken from both victims at

autopsy. . . . DNA testing of the fingernail scrapings is routine in such cases and can

detect the DNA profile of the perpetrator from any skin cells or blood left behind.

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determining whether the recovered FUBU pants and the victim’s fingernails are in a

testable condition. Upon an affirmative finding by the post-conviction court, we mandate

entry of an order requiring DNA testing of the interior of the FUBU pants and for further

testing of the substance recovered from underneath the victim’s fingernails.

CONCLUSION

We reverse the post-conviction court’s order denying additional DNA testing and

remand this matter for determination of Tennessee Code Annotated, section 40-30-304(2)

with regard to the specific evidentiary items stated herein. Upon a finding that factor two

is met, we order the entry of an order for additional DNA testing consistent with this

opinion. We dismiss without prejudice the Defendant’s prematurely raised claim of

ineffective assistance of counsel. In all other respects, the judgments of the trial court are

affirmed.

_________________________________

CAMILLE R. McMULLEN, JUDGE

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