Clark Beauregard Waterford III v. State of Tennessee

10/16/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 17, 2018 Session

CLARK BEAUREGARD WATERFORD III v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2010-C-2637 J. Randall Wyatt, Jr., Judge

___________________________________

No. M2017-01968-CCA-R3-PC

___________________________________

A jury convicted the Petitioner, Clark Beauregard Waterford III, of second degree murder

for the stabbing of Ms. Faye Burns, and the Petitioner was sentenced to serve forty years

in prison. After the Petitioner’s conviction and sentencing, DNA evidence favorable to

the Petitioner came to light, and the Petitioner sought post-conviction relief. The post-

conviction court determined that the Petitioner had not received the ineffective assistance

of trial counsel, that the Petitioner had not established entitlement to relief based on the

State’s failure to provide exculpatory evidence, and that the Petitioner was not entitled to

relief under the Post-Conviction DNA Analysis Act of 2001. After a thorough review of

the record, we conclude that the Petitioner is not entitled to post-conviction relief, and we

affirm the judgment.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Joshua Brand, Nashville, Tennessee, for the appellant, Clark Beauregard Waterford III.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant

Attorney General; Glenn Funk, District Attorney General; and Katrin Miller, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Petitioner’s claims in this appeal center around DNA evidence from a

laboratory report issued during the pendency of the motion for a new trial. The State had

submitted the victim’s fingernail scrapings for DNA testing prior to the Petitioner’s trial,

but the testing was not completed until after the Petitioner’s conviction and sentencing.

The test results showed DNA from a biological male other than the Petitioner under the

victim’s fingernails, and the trial court granted the Petitioner’s post-conviction request to

perform DNA testing on the knife which was the purported murder weapon. DNA on the

knife’s handle was so limited that tests comparing it with the Petitioner’s DNA were

inconclusive, and two limited DNA profiles present on the blade excluded both the

Petitioner and the victim as contributors. The Petitioner sought a new trial through a

timely post-conviction petition, asserting claims of ineffective assistance of counsel,

suppression of exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 87 (1963),

and a violation of due process.

Trial

The Petitioner was convicted of second degree murder after the victim’s

boyfriend, Mr. Clayton “Red” Harris, found the victim stabbed in the neck in her home in

the early morning hours of May 11, 2010. While suspicion initially focused on Mr.

Harris, investigators established the Petitioner’s presence at the scene through a receipt

for orange juice found in the victim’s home and through surveillance video showing the

Petitioner purchasing the orange juice on the night of the murder. The victim did not

have a telephone, but Mr. Harris told police that the victim contacted him by telephone

several times on the night of the murder. Investigators established that telephones

belonging to the Petitioner placed several calls to Mr. Harris’s telephone that night. The

Petitioner fled to Kansas City and, having been apprehended the following month, made

inculpatory statements to police. The Petitioner acknowledged being present at the

victim’s home on the night of the murder and becoming involved in an altercation with

the victim. The Petitioner told police that the victim attacked the Petitioner with a knife

and that the Petitioner engaged in self-defense. This court summarized the evidence at

trial on direct appeal as follows:

At approximately 6:00 a.m. on May 11, 2010, Clayton Harris found

the body of the victim, Faye Burns, lying in a puddle of blood on her

bedroom floor next to her bed. There were significant amounts of blood on

the bed, the floor, and the victim. By the time the police arrived, the blood

appeared to be “somewhat coagulated.” The victim’s shirt and bra had

-2-

been partially removed, exposing part of her breasts. The victim’s pants

were still on, but they had been “unbuttoned and unzipped.” The room

appeared to be in disarray, as if there had been some kind of struggle.

Various objects had been knocked over, items were scattered across the

floor, and there was some broken glass on the floor. A knife and a glass

ashtray were found in the bedroom. The knife was clean and had no blood

or fingerprints on it. A change purse was also found in the bedroom, but it

contained no money.

In addition to the blood found in the victim’s bedroom, the police

found blood stains on the sink and toilet in the victim’s bathroom. A towel

that appeared to be stained with blood was found on the floor outside the

bathroom. There were five red stains that appeared to be blood on the wall

of a staircase leading to the downstairs area of the victim’s apartment.

There were also two small stains that appeared to be blood on the front door

of the apartment. There was no evidence that anything had occurred in the

downstairs portion of the apartment. The police were unable to obtain any

useful fingerprints inside the victim’s apartment. The police did locate a

receipt from a local Dollar General Store in an unused bedroom in the

apartment. The receipt was dated May 10, 2010, and time-stamped at 8:46

p.m.

Mr. Harris testified that he was the victim’s boyfriend and that he

spent most nights at the victim’s apartment. According to Mr. Harris, the

victim would drink until she was intoxicated five or six days a week. Mr.

Harris testified that when the victim got “full of them drinks” she would

“get to raising hell, playing loud ass music, and cursing, and picking up

things and throwing them.” Mr. Harris stated that when the victim became

belligerent, he would leave the apartment and return the next morning. Mr.

Harris claimed that the victim had previously scratched his neck and

slammed his thumb in a door but that those were the only times she had

ever physically hurt him.

Mr. Harris testified that on May 10, 2010, he received some money

and gave the victim fifty dollars. He and the victim ran some errands and

did some shopping that morning before returning to the victim’s apartment.

Mr. Harris admitted that he “started getting high” while at the apartment

and that he had smoked crack cocaine that day. Mr. Harris believed that the

victim had also smoked cocaine that afternoon. The victim’s friend,

Michael Eubanks, came to the apartment and spent the afternoon with the

victim and Mr. Harris. At some point, the victim left to purchase a fifth of

-3-

whisky. Mr. Harris testified that when the victim returned, she drank “that

whole fifth of [whisky] like it was water.”

According to Mr. Harris, sometime around 4:30 p.m. “all hell broke

loose” and the victim “started acting a fool and cussing” him and Mr.

Eubanks, calling them “all kinds of b–––hes and hoes.” Mr. Harris testified

that the victim took his cell phone and slung it at Mr. Eubanks, “hit[ting]

him upside the face.” Mr. Eubanks left shortly after that, around 5:00 p.m.

A short time later, the victim kicked Mr. Harris out of the apartment. Mr.

Harris told the victim that he would be back the next morning to get his

clothes. Mr. Harris testified that there was no physical altercation between

him and the victim and that he left when she told him to. Mr. Harris then

went to a friend’s house where he spent the night. The police later

confirmed that Mr. Harris had stayed with a friend that night.

Mr. Eubanks testified at trial that he was a close friend of the victim

and that he had been at her apartment all day on May 10, 2010. Mr.

Eubanks admitted that he sold crack cocaine to Mr. Harris and that he and

the victim would “just [get] high together.” Mr. Eubanks claimed that he

did not have any cocaine that day but had “smoked weed” instead. Mr.

Eubanks testified that the victim would get “a little belligerent” and “might

get loud” when she was drunk but that she had never assaulted him. Mr.

Eubanks testified that he left the victim’s apartment sometime after 5:00

p.m. Mr. Eubanks claimed that he did not leave because the victim threw a

cell phone at him. According to Mr. Eubanks, the victim “tossed” the

phone and “accidently hit [him] in the side of the head.” Mr. Eubanks

testified that he left because the victim was getting drunk but stated that she

“was acting fine” when he left.

Mr. Harris testified that the victim did not have a phone but that she

called him around 9:00 p.m. that night from a number he did not recognize.

The victim asked Mr. Harris to come back to her apartment, but Mr. Harris

said to her, “F—k you, b–––h, I ain’t coming back down there no more til

in the morning [to] get my clothes.” Mr. Harris testified that the victim

continued to call him until 3:00 a.m. that morning, but he did not answer

any more of her phone calls. The next morning, Mr. Harris went to the

victim’s apartment and found the screen door and front door both unlocked.

Mr. Harris went into the apartment and saw that the bedroom light was on.

He called for the victim and went upstairs to the bedroom when he got no

response. Mr. Harris saw the victim’s body and touched her chest to see if

she was still alive. Mr. Harris testified that he believed the victim was dead

-4-

so he ran outside and called 911. Mr. Harris waited outside for the police

and then cooperated with their investigation.

Detective Johnny Crumby of the Metropolitan Nashville Police

Department (“MNPD”) testified that he was the lead investigator in this

case. Det. Crumby interviewed Mr. Harris and examined Mr. Harris’s cell

phone. Det. Crumby testified that on May 10, 2010, Mr. Harris received

several phone calls between 9:22 and 9:55 p.m. from two phone numbers

belonging to [the Petitioner]. Det. Crumby also testified that based upon

the Dollar General Store receipt found in the victim’s second bedroom, he

retrieved the store’s video surveillance footage in hopes of seeing who the

victim was with that night. Instead, the footage showed [the Petitioner],

wearing an orange reflective vest and with … hair styled in a unique

manner, making a purchase alone. Mr. Harris testified that he had never

met [the Petitioner], but the victim had talked about [the Petitioner]. Mr.

Eubanks testified that he had met [the Petitioner] at the victim’s apartment

and that the victim “fed [the Petitioner], housed [the Petitioner], [and]

clothed [the Petitioner].” Mr. Eubanks further testified that the victim let

[the Petitioner] stay at her apartment “when [the Petitioner] didn’t have

[anywhere else] to go.”

After the victim’s murder, [the Petitioner] fled to Missouri. [The

Petitioner] was eventually apprehended and returned to Tennessee. [The

Petitioner] … agreed to speak with Det. Crumby. During their

conversation, [the Petitioner] asked Det. Crumby if “there [was] any such

thing as self-defense in this state,” and Det. Crumby responded that there

was. [The Petitioner] then told Det. Crumby that [the Petitioner] had “been

a victim of some things before” and that several years earlier [the

Petitioner] had been kidnapped and severely beaten by a woman. [The

Petitioner] told Det. Crumby that [the Petitioner] did not “want that to

happen a second time.” [The Petitioner] claimed that the victim was “very

abusive to a number of people” and that she had “victimized” [the

Petitioner] in the past. [The Petitioner] told Det. Crumby that [the

Petitioner] was taking a bath at the victim’s apartment when she became

very upset [over the inadvertent use of] one of her towels and “then that’s

when the altercation began.” [The Petitioner] claimed that the victim

“confronted [the Petitioner] as soon as [the Petitioner] got out of the

bathtub” and that she “started throwing things and pulling that little knife.”

Det. Crumby [said, “Then you just defended yourself,”] and [the Petitioner]

responded, “right.” [The Petitioner] told Det. Crumby that the evidence …

appeared “to be irrefutable.”

-5-

Det. Crumby testified that he did not know who owned the knife

found in the victim’s bedroom[, and that during the interview, he suggested

it was the victim’s in order to encourage the Petitioner to confess]. Mr.

Harris testified that he had never seen the knife before and that he did not

believe it belonged to the victim because she “wasn’t the type to carry [a]

weapon around with her.” Additionally, the victim’s daughter testified that

her mother did not carry a knife or any other weapon. The victim’s

daughter also testified that her mother would carry her money either in her

bra or in a change purse that she would sometimes place in her bra. Det.

Crumby testified that he decided not to have any forensic tests performed

on the blood and DNA evidence found in the victim’s apartment after he

interviewed [the Petitioner].

Dr. John B. Davis, an expert in forensic pathology, testified that he

performed an autopsy on the victim. Dr. Davis determined that the victim

was killed by a stab wound to the left side of her neck. The wound “cut

through the carotid artery … and also damaged her esophagus.” Dr. Davis

testified that severing the carotid artery “would be very bloody” and that,

due to the damage to the esophagus, the victim likely bled into the

esophagus and swallowed “quite a bit of blood.” Dr. Davis estimated that it

took from a few minutes to thirty minutes for the victim to die from the stab

wound. Dr. Davis testified it was possible the victim could have survived

had medical help been sought, but he noted that if no pressure was applied

to the wound, the victim would have suffered “a relatively short death.” A

close examination of the wound showed that the knife had been twisted

before it was removed.

The victim also suffered a small stab wound on her left arm and

several incised wounds on her left arm, neck, and breasts. Dr. Davis

testified that he found two incised wounds, approximately two inches long,

on the underside of each of the victim’s breasts. Dr. Davis testified that the

victim’s breasts were large and that the area where the wounds were located

would not normally be exposed. Dr. Davis explained that the victim’s shirt

and bra would have to be removed and her breasts would have to be “lifted”

in order for the incised wounds to be made at that location. Dr. Davis

testified that he found no holes in the victim’s clothing [corresponding with

the cuts]. The victim also suffered blunt force trauma injuries to the left

side of her head and abrasions on her nose. Dr. Davis testified that these

injuries were consistent with the victim having struck her head on a hard

-6-

object or being struck in the head with a hard object. Dr. Davis further

testified that it was possible the victim had been knocked unconscious.

Dr. Davis testified that the knife found in the victim’s bedroom

could have cause[d] her stab and incised wounds, including the fatal wound

to her neck. Dr. Davis opined that all of the victim’s wounds were inflicted

around the same time. Dr. Davis further opined that the fact that the blood

was centered on the left side of the victim’s bed and the floor was

consistent with the victim having been lying down on the bed when she was

stabbed in the neck. Dr. Davis noted that there were no defensive wounds

on the victim’s hands. The victim had both alcohol and cocaine in her

blood at the time of her death. Dr. Davis testified that the victim’s blood

alcohol content was .28 percent, over three times the legal limit for driving

in Tennessee.

State v. Clark Beauregard Waterford, III, No. M2011-02379-CCA-R3-CD, 2013 WL

2368830, at *1-4 (Tenn. Crim. App. May 30, 2013), perm. app. denied (Tenn. Oct 23,

2013).

The Petitioner’s interview with Detective Crumby was played during trial.

Detective Crumby told the Petitioner from the beginning of the interview that he was

conducting the interview to investigate the victim’s death. At the beginning of the

interview, the Petitioner declined to answer a question about whether the Petitioner was

in Nashville the night of the murder. Detective Crumby informed the Petitioner that law

enforcement knew the Petitioner had been there and that they would conduct DNA

testing to confirm the Petitioner’s presence. Detective Crumby posited to the Petitioner

that the victim was volatile and that the victim and Petitioner had been in a fight. After

Detective Crumby detailed the manner of the victim’s death, the Petitioner asked, “Is

there any such thing as self-defense in this state?” During the interview, the Petitioner

told police that the victim would share women’s clothing with the Petitioner, assist the

Petitioner in purchasing women’s clothing, and introduce the Petitioner to others as a

woman. The Petitioner eventually told Detective Crumby that the victim permitted the

Petitioner to bathe at her home but not to use her towels and that after the Petitioner

accidentally used the victim’s towel, a confrontation ensued.

At trial, Detective Crumby testified that after the interview, he did not believe any

DNA testing was necessary because the Petitioner had acknowledged being present at the

scene of the crime, and the Petitioner’s DNA would presumably be present. Detective

Crumby elaborated that he would expect to find his own DNA under his wife’s

fingernails if she were to scratch his back or rub his head. On cross-examination, he

acknowledged that he had obtained a DNA standard from the Petitioner in February, and

-7-

he testified, “[W]e did at [the prosecutor’s] request send the evidence off.” A report from

the Tennessee Bureau of Investigation (“TBI”) indicates that the agency received the

DNA standard from the Petitioner on May 4, 2011. The trial commenced on May 23,

2011, prior to any testing being performed. Trial counsel argued in closing argument that

the State’s case was weakened by its failure to test the physical evidence.

On May 25, 2011, the jury returned a guilty verdict for the lesser-included offense

of second degree murder. The Petitioner was sentenced to serve forty years in prison on

July 15, 2011. At sentencing, the prosecutor introduced evidence that, during a prior rape

the Petitioner had committed, the Petitioner had made a cut on the rape victim’s breast

similar to those inflicted on the victim of the homicide. The Petitioner moved for a new

trial on July 26, 2011, asserting that the evidence was insufficient and that the trial court

erred in ruling certain evidence admissible and in failing to grant a judgment of acquittal

on the first degree murder charge. The motion for a new trial was heard on September 9,

2011, and denied on September 20, 2011, and the Petitioner filed a notice of appeal on

October 19, 2011.

On August 4, 2011, prior to the hearing on the Petitioner’s motion for a new trial,

the TBI issued its report analyzing the physical evidence. The report indicated that a

DNA profile was obtained from the victim’s fingernail scrapings and that the profile

belonged to an unknown male who was not the Petitioner. The victim’s fingernail

clippings indicated no DNA other than her own. The record does not reveal when the

prosecutor became aware of this report.

On August 20, 2012, during the pendency of the direct appeal, the Petitioner filed

a pro se motion requesting DNA testing of the physical evidence collected from the scene

pursuant to Tennessee Code Annotated section 40-30-304. The State, in its response on

September 26, 2012, attached the August 4, 2011, report indicating the results of the

testing of the victim’s fingernail scrapings. On January 23, 2013, the Petitioner, through

counsel, moved to withdraw the petition for post-conviction DNA analysis, noting that

the Petitioner believed that the issues raised would overlap with post-conviction issues

which could not be addressed until the conclusion of appellate proceedings and that

withdrawing the petition would not waive any claims raised in the motion requesting

DNA analysis. On appeal, this court rejected challenges to the sufficiency of the

evidence, to a ruling on the admissibility of impeachment evidence, and to the sentence

imposed, and the Tennessee Supreme Court denied permission to appeal on October 23,

2013. Clark Beauregard Waterford, III, 2013 WL 2368830, at *1.

-8-

Post-Conviction Petition and DNA Analysis

On August 7, 2014, the Petitioner filed for post-conviction relief, asserting that

trial counsel was deficient in failing to request DNA testing, failing to offer an

explanation for the wounds under the victim’s breasts, and failing to highlight the wounds

documented on the victim’s boyfriend, Mr. Harris; that the State had withheld

exculpatory evidence in the form of the DNA testing of the victim’s fingernail scrapings;

and that trial in the absence of the DNA evidence was a violation of due process.

The Petitioner also requested, pursuant to the Post-Conviction DNA Analysis Act

of 2001, DNA testing of the knife that the State theorized was the murder weapon, and

the State did not oppose the motion. The knife was found neatly placed on a pillow next

to an ashtray, on the side of the bed that did not show extensive blood stains. Chemical

testing showed that the knife bore no traces of blood, but two incomplete DNA profiles

were present on the blade. Both the victim and the Petitioner were excluded as possible

contributors to the two profiles obtained from the blade. The handle revealed traces of

DNA, but the profile obtained was so limited that the results of comparison to the DNA

of the Petitioner and victim were inconclusive.

At the post-conviction hearing, the Petitioner’s trial counsel testified that he had

worked for the public defender’s office for over twenty years, handling exclusively

criminal matters, particularly serious, violent felonies. He had tried numerous murder

cases, including cases involving DNA evidence and death penalty cases. Trial counsel

filed a discovery request which asked the State to disclose any exculpatory material,

including “the results of any scientific tests” which “did not implicate or w[ere] neutral

to” the Petitioner. Trial counsel testified that he was aware that physical evidence,

including fingernail scrapings and a knife, was collected, but he was not aware that the

State submitted any items to the TBI for DNA testing. He first became aware that the

victim’s fingernail scrapings were submitted for analysis during trial, when Detective

Crumby testified that the assistant district attorney general had requested him to obtain

analysis of the scrapings and that the scrapings were submitted for analysis. Trial

counsel stated that he would have asked for a continuance if he had known that the DNA

had been submitted for testing and that he would have asked for testing of other items and

independent testing.

Trial counsel testified that because the Petitioner had admitted being involved in

an “altercation” with the victim, trial counsel expected that the Petitioner’s DNA might

be present under the victim’s fingernails even if a third party assailant were the actual

subsequent murderer. He agreed that because the Petitioner had admitted to an

altercation, DNA evidence showing the Petitioner’s DNA under the victim’s fingernails

would not have been particularly damaging to the Petitioner’s case, while evidence of a

-9-

third party’s DNA under the victim’s nails would have been helpful. Trial counsel

testified that law enforcement described the knife as “wiped clean” and that the parties

did not expect any DNA evidence to remain. He agreed that DNA evidence would not

necessarily be apparent to the naked eye and that evidence that the knife contained DNA

from a source other than the Petitioner would have been helpful at trial.

Trial counsel agreed that evidence that the knife contained DNA which excluded

the Petitioner and victim could have been helpful, noting that he could have argued that

the victim survived any altercation and that another male then attacked her and left DNA

on the knife. On cross-examination, however, he agreed that the value of the DNA

evidence recovered from the knife blade was limited because the victim was also

excluded as a possible contributor. The DNA profile obtained from the handle was so

limited that the results of comparison to standards from the Petitioner and victim were

inconclusive.

Trial counsel believed the primary evidence against the Petitioner was the

statement to police. The Petitioner was “anxious to be cooperative” and responded to

questioning “by agreeing.” When Detective Crumby stated, “Then you just defended

yourself,” the Petitioner agreed. In the statement, the Petitioner did not provide many

details regarding the crime. Trial counsel acknowledged, however, that the Petitioner

declined to answer certain questions at the beginning of the interview, demonstrating that

the Petitioner was not simply agreeing with prosecutors but was aware of his

constitutional right to remain silent. Trial counsel also agreed that Detective Crumby

explicitly informed the Petitioner that the interview concerned the victim’s death and that

Detective Crumby provided numerous details regarding the death, making it unlikely that

the Petitioner could believe that the questions related to some nonfatal altercation. Trial

counsel confirmed that the Petitioner’s response to a detailed description of the cause of

death was to ask, “Is there such a thing as self-defense in this state?” The Petitioner also

asserted in the interview that the proof appeared “irrefutable” and referenced the victim’s

pulling out a small knife. On redirect examination, trial counsel testified that confessions

can be unreliable and that he was familiar with cases in which DNA evidence had

exonerated defendants. He agreed that raising reasonable doubt in the mind of the jury

might have changed the result of the trial.

Trial counsel recalled that even shortly before trial, the Petitioner was vacillating

between alternate theories, including self-defense, mistaken identity, and a third-party

assailant. He observed that the victim’s boyfriend, Mr. Harris, was “conveniently

available” and had been in an argument with the victim the night before her death. Mr.

Harris testified that the victim called him numerous times at 2:00 or 3:00 a.m. but that he

refused to come to her house until the next morning, when he discovered the body. Mr.

Harris had minor scratches on his hand and the back of his head. Trial counsel testified

- 10 -

that scrapings were collected from under Mr. Harris’s fingernails but that the scrapings

were not tested and a DNA standard was not collected from Mr. Harris.

Trial counsel agreed with the prosecutor that there were hurdles to presenting Mr.

Harris as the killer. He recalled that law enforcement performed tests which indicated an

absence of blood on Mr. Harris’s clothing and body, despite the fact that the murder

scene was particularly bloody. Trial counsel agreed that law enforcement confirmed that

Mr. Harris stayed the night with a friend on the night of the murder and that police later

established that the telephone numbers the victim was using to contact Mr. Harris that

night belonged to the Petitioner. Mr. Harris discovered the victim’s body early in the

morning when he went by to retrieve some belongings, and he immediately contacted

police and cooperated with the investigation, while the Petitioner fled. Trial counsel

agreed that the injuries to Mr. Harris’s head were so minor that they were difficult to

discern in the photographs of Mr. Harris taken by police, that his hands had very minor

scratches and a contusion on his thumb, and that the injuries did not appear consistent

with a fatal battle.

Trial counsel testified that he did not introduce an alternative explanation for how

the victim sustained injuries under her breasts. He stated that he was unable to provide a

viable alternative explanation and that he wanted to avoid drawing attention to the

injuries because he thought the jury might associate the Petitioner’s dressing in women’s

clothing with the injuries and the murder.

The post-conviction court denied relief. The post-conviction court found that trial

counsel was not deficient in failing to request DNA testing because he reasonably

expected that the results would be inculpatory and that in any case, the evidence at trial

was so strong that the testing would not have produced a reasonable probability of a

different result. The post-conviction court likewise found neither deficiency nor

prejudice in trial counsel’s failure to pin the murder on Mr. Harris or to provide an

explanation of the wounds to the victim’s breasts. Although the court found that trial

counsel was never informed that the victim’s fingernail scrapings had been submitted for

testing, it concluded that the mere fact that evidence was submitted for testing was not

material, exculpatory, nor requested during discovery pursuant to Brady. Regarding the

result of the testing of the victim’s fingernail scrapings, the court found that the Petitioner

failed to establish either that the State suppressed the evidence or materiality. The post-

conviction court likewise found that the results of the DNA testing of the knife were not

so significant as to undermine confidence in the verdict, pointing to the strength of the

Petitioner’s statement to police, to other evidence corroborating the Petitioner’s presence

at the crime scene, and to problems with the theory that Mr. Harris was the true killer.

- 11 -

ANALYSIS

The Petitioner argues that post-conviction relief is warranted based on ineffective

assistance of counsel, the State’s suppression of evidence, and the contention that a trial

without the DNA evidence was a violation of due process.

A petitioner is entitled to post-conviction relief when “the conviction or sentence

is void or voidable because of the abridgement of any right guaranteed by the

Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103.

The burden of proving allegations of fact in the petition by clear and convincing evidence

falls to the petitioner seeking relief. T.C.A. § 40-30-110(f). The post-conviction court’s

findings of fact are binding on the appellate court unless the evidence preponderates

against them. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). Accordingly, the

reviewing court defers to the post-conviction court’s findings regarding the credibility of

witnesses, the weight and value of witness testimony, and the resolution of factual issues.

Id. “The appellate court’s review of a legal issue, or of a mixed question of law or fact

such as a claim of ineffective assistance of counsel, is de novo with no presumption of

correctness.” Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006).

I. Ineffective Assistance of Counsel

The Petitioner asserts that trial counsel was ineffective in failing to secure

independent testing of the physical evidence which counsel knew had been collected.

The State responds that the Petitioner has established neither deficiency nor prejudice.

The right to counsel is guaranteed by both the Sixth Amendment to the United

States Constitution and article I, section 9 of the Tennessee Constitution. Pylant v. State,

263 S.W.3d 854, 868 (Tenn. 2008). The right to counsel encompasses “the right to

‘reasonably effective’ assistance, that is, assistance ‘within the range of competence

demanded of attorneys in criminal cases.’” Id. (quoting Strickland v. Washington, 466

U.S. 668, 687 (1984)). In evaluating a claim of ineffective assistance of counsel, the

court must determine “‘whether counsel’s conduct so undermined the proper functioning

of the adversarial process that the trial cannot be relied on as having produced a just

result.’” Vaughn, 202 S.W.3d at 116 (quoting Strickland, 466 U.S. at 686).

To show that relief is warranted on a claim of ineffective assistance of counsel, the

petitioner must establish both that counsel’s performance was deficient and that the

deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007).

Deficiency requires showing that counsel’s errors were so serious “that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687. To demonstrate deficiency, the petitioner must show that

- 12 -

counsel’s performance fell below an objective standard of reasonableness under

prevailing professional norms. Pylant, 263 S.W.3d at 868. Courts must make every

effort “‘to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at

the time.’” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011) (quoting Strickland, 466

U.S. at 689). “‘[A] reviewing court must be highly deferential and should indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” Id. (quoting State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999).

In evaluating counsel’s performance, “‘[s]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable;

and strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.’” Kendrick, 454 S.W.3d at 458 (quoting Strickland, 466 U.S. at 690-91).

The reviewing court must begin with “the strong presumption that counsel provided

adequate assistance and used reasonable professional judgment to make all strategic and

tactical significant decisions.” Davidson v. State, 453 S.W.3d 386, 393 (Tenn. 2014).

In determining prejudice, the post-conviction court must decide whether there is a

reasonable probability that, absent the errors, the result of the proceeding would have

been different. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). “‘A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’” Id.

(quoting Strickland, 466 U.S. at 694). “That is, the Petitioner must establish that his

counsel’s deficient performance was of such a degree that it deprived him of a fair trial

and called into question the reliability of the outcome.” Finch, 226 S.W.3d at 316. “A

reasonable probability of being found guilty of a lesser charge, or receiving a shorter

sentence, satisfies the second prong of Strickland.” Pylant, 263 S.W.3d at 869. Because

both prongs must be established for relief, a court need not address both if the defendant

has failed to prove either deficiency or prejudice. Goad v. State, 938 S.W.2d 363, 370

(Tenn. 1996).

The post-conviction court found that trial counsel’s failure to test the physical

evidence for DNA was not deficient, and we agree. The Petitioner’s presence in the

victim’s home was established by the circumstantial evidence of the dollar store receipt

for two bottles of orange juice and the dollar store videotape showing the Petitioner

retrieving and purchasing the orange juice at the time reflected on the receipt. It could

also be inferred from the telephone calls to Mr. Harris placed from the Petitioner’s

telephones. The Petitioner’s statement acknowledged not only that the Petitioner was in

the home bathing but also that the Petitioner and the victim engaged in an “altercation.”

The Petitioner’s established presence in the home and statement about an altercation led

trial counsel to infer that the Petitioner’s DNA might be present at the crime scene. Trial

counsel made a reasonable, strategic choice to avoid testing evidence which he rationally

- 13 -

expected would produce results that were inculpatory to the Petitioner. While the results

of the testing of the victim’s fingernail scrapings ultimately proved favorable to the

Petitioner, trial counsel’s actions are not judged by 20-20 hindsight, Henley v. State, 960

S.W.2d 572, 579 (Tenn. 1997), but instead evaluated from counsel’s perspective at the

time, Goad, 938 S.W.2d at 369. We conclude that trial counsel made a reasonable

strategic decision and did not perform deficiently in choosing not to test the physical

evidence. See Tremaine Roberson v. State, No. W2014-00400-CCA-R3-PC, 2015 WL

5173067, at *4-5 (Tenn. Crim. App. Sept. 2, 2015) (concluding that decision to avoid

DNA testing was a reasonable strategic decision); Wayne E. Mitchell v. State, No.

01C01-9507-CR-00227, 1996 WL 234053, at *2 (Tenn. Crim. App. May 9, 1996)

(concluding that decision not to test DNA was a strategic choice and that “[c]ounsel’s

decision not to pursue a DNA test was based on a realistic apprehension of creating

detrimental evidence that did not exist”); cf. Tommy Nunley v. State, No. W2003-02940-

CCA-R3-PC, 2006 WL 44380, at *6 (Tenn. Crim. App. Jan. 6, 2006) (concluding that

trial counsel’s failure to request DNA analysis was not strategic but noting that “the

decision to forego testing may rest firmly upon an informed decision or upon a strategic

decision that a positive result could be fatal to the defendant’s case”). The Petitioner has

not shown that trial counsel performed deficiently and is not entitled to relief.

II. Suppression of Evidence

The Petitioner next asserts that the prosecution suppressed the evidence of the

DNA testing, which ultimately proved favorable to the defense, and that the evidence

should have been disclosed pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). The

State responds that the Petitioner’s claim can only extend to the prosecution’s act of

submitting the fingernail scrapings for testing and not to the results of the testing, and the

State argues that the Petitioner has failed to establish the requisites for a Brady claim.

In Brady, the United States Supreme Court held that the suppression of evidence

favorable to the defendant is a due process violation where the evidence is material to

guilt or punishment. Id. In order to establish a violation based on the withholding of

favorable evidence, the defendant must demonstrate that: (1) the defendant requested the

information or that it was obviously exculpatory; (2) the State suppressed evidence in its

possession; (3) the information was favorable to the accused; and (4) the information was

material. State v. Jackson, 444 S.W.3d 554, 594 (Tenn. 2014). Evidence is material if

there is a reasonable probability that the result of the proceeding would have been

different had the evidence been disclosed. State v. Cureton, 38 S.W.3d 64, 77 (Tenn.

Crim. App. 2000) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). “The

question is not whether the defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514

- 14 -

U.S. 419, 434 (1995). A violation is established by showing that “the favorable evidence

could reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Id. at 435. The defendant has the burden of proving a

violation by a preponderance of the evidence. State v. Edgin, 902 S.W.2d 387, 389

(Tenn. 1995), as amended on rehearing (Tenn. July 10, 1995).

The rule in Brady applies “not only to evidence in the prosecution’s possession,

but also to ‘any favorable evidence known to the others acting on the government’s

behalf in the case, including the police.’” Jackson, 444 S.W.3d at 594 (quoting Strickler

v. Greene, 527 U.S. 263, 275 n.12 (1999)). This includes “evidence in police possession

which is not turned over to the prosecution.” Id.; see Wearry v. Cain, 136 S. Ct. 1002,

1006-07 n.8 (2016) (noting that an inmate’s statement made during trial to police

required disclosure even if it was not known to the prosecutor). The prosecution is not,

however, under a duty to disclose information that the accused either possesses or is able

to obtain. Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001). Nor is there a constitutional

requirement “‘that the prosecution make a complete and detailed accounting to the

defense of all police investigatory work on a case.”’ Id. (quoting State v. Walker, 910

S.W.3d 381,390 (Tenn. 1995)). Brady requires an evaluation of any suppressed evidence

cumulatively rather than in isolation. Wearry, 136 S. Ct. at 1007; Kyles, 514 U.S. at 436.

The post-conviction court found that the State submitted the fingernail scrapings

for testing prior to trial but that the results were not available until after the Petitioner had

been convicted. The post-conviction court concluded that the fact that the scrapings were

submitted for testing was not requested in discovery, was not in itself favorable to the

Petitioner, and was not material. The post-conviction court further found that while the

results of the testing were favorable and had been requested in discovery, the State did

not have the results at the time of trial and the results were not material given the strong

evidence against the Petitioner. The Petitioner does not argue that the DNA testing of the

knife, which was not performed until after the post-conviction petition was filed, was

improperly withheld by the prosecution.

The prosecution’s obligation to disclose exculpatory material is satisfied when the

material is disclosed in time for the defendant to use it effectively at trial. See United

States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (finding no Brady violation where the

material was disclosed at trial and the defendant refused an opportunity to postpone the

trial); Wayne R. LaFave et al., 6 Crim. Proc. § 24.3(b) n.88 (4th ed. 2017). “Although

the complete non-disclosure of significant exculpatory evidence often makes an easy case

for a due process violation, delayed disclosure requires an inquiry into whether the delay

prevented the defense from using the disclosed material effectively in preparing and

presenting the defendant’s case.” State v. Caughron, 855 S.W.2d 526, 548 (Tenn. 1993)

(Daughtrey, J., dissenting). Because a violation occurs only when the suppression of

- 15 -

material exculpatory evidence prevents its effective use at trial, “‘Brady generally does

not apply to delayed disclosure of exculpatory information, but only to a complete failure

to disclose.’” State v. Justin Terrell Knox, No. W2014-01577-CCA-R3-CD, 2015 WL

6122257, at *4 (Tenn. Crim. App. Oct. 16, 2015) (quoting Davis, 306 F.3d at 421).

Regarding the failure to disclose the fact that the clippings had been submitted for

testing, we agree with the post-conviction court that the Petitioner has failed to establish a

Brady violation. Initially, the Petitioner did not request information regarding the

submission of items for testing, but only the results of such testing. We also agree with

the post-conviction court that the mere fact that the samples had been submitted for

testing was not in itself favorable to the Petitioner; on the contrary, all parties expected

the testing to prove inculpatory. Trial counsel was aware that a DNA sample was taken

from the Petitioner in February. Furthermore, trial counsel became aware that the items

were submitted for testing during trial in May. While the Petitioner points to trial

counsel’s testimony that he would have requested a continuance had he known that the

evidence had been submitted for testing, Detective Crumby in fact testified at trial that

the evidence had been submitted for testing pursuant to the prosecutor’s request. Trial

counsel did not, in fact, request a continuance in light of this revelation. Neither was the

mere fact that the items were submitted for testing material, as there is no reasonable

probability that the result of the proceeding would have been different had the prosecutor

informed the defense earlier that testing was being performed. See Cureton, 38 S.W.3d at

77.

Whether the prosecution was obligated to turn over the results of the testing once

the tests were performed presents a more difficult question. We note that the results of

the testing, i.e., the discovery of the DNA of a biological male who was not the Petitioner

under the victim’s fingernails, is favorable to the Petitioner. Likewise, the Petitioner

requested the evidence in discovery. Accordingly, we are left to consider suppression

and materiality. See Jackson, 444 S.W.3d at 594.

It is clear that the prosecution has a continuing obligation to disclose exculpatory

evidence which was in existence at the time of trial and sentencing. Pennsylvania v.

Ritchie, 480 U.S. 39, 60 (1987) (“[T]he duty to disclose is ongoing…, and the court [after

in camera review of sensitive evidence] would be obligated to release information

material to the fairness of the trial.”). However, in District Attorney’s Office for Third

Judicial District v. Osborne, the United States Supreme Court suggested that the

prosecution’s obligations under Brady were limited to trial evidence. 557 U.S. 52, 68

(2009). In Osborne, where the petitioner sought to compel the prosecution to produce

physical evidence which the petitioner desired to test for DNA at his own expense in

order to obtain post-conviction relief, the Supreme Court concluded that the Court of

Appeals had committed error “in concluding that the Due Process Clause requires that

- 16 -

certain familiar preconviction trial rights be extended to protect Osborne’s postconviction

liberty interest.” Id. at 59, 68. The Court noted that no precedent would require the

disclosure obligation to continue “after the defendant was convicted and the case was

closed.” Id. at 68. Noting that a valid conviction would rob a defendant of the

presumption of innocence, the Court determined that the petitioner’s right to due process

“must be analyzed in light of the fact that he has already been found guilty at a fair trial,

and has only a limited interest in postconviction relief.” Id. at 69. The Court concluded

that Brady was simply the “wrong framework” to address the prosecution’s obligations to

turn over evidence in post-conviction proceedings and instead considered whether the

State of Alaska’s post-conviction remedies were so deficient that they offended principles

of justice and fundamental fairness. Id.

Here, the Petitioner was convicted in May and sentenced in July 2011. On August

4, 2011, the TBI issued its report to the “Metro Nashville P.D.” confirming that the

victim’s fingernail scrapings contained male DNA which excluded the Petitioner as a

potential contributor. Knowledge of exculpatory evidence is imputed to the prosecution

when it is possessed by a State actor. Jackson, 444 S.W.3d at 594. It appears that the

prosecution possessed the exculpatory material after the Petitioner’s trial and sentencing

but prior to the trial court’s ruling on the motion for a new trial in September.

There is authority supporting both the contention that the prosecution’s obligations

under Brady extend through direct appeal and the contention that the obligations

terminate with trial and sentencing. Some courts have interpreted Osborne to stand for

the proposition that the prosecution is obligated to disclose only exculpatory material that

was available at the time of trial or sentencing. See Estrada v. Healey, 647 Fed. App’x

335, 338 (5th Cir. 2016), cert. denied, 137 S. Ct. 226 (2016) (noting that the petitioner

did not cite authority “establishing a due process right to the timely disclosure of

exculpatory evidence discovered after his conviction” and that Osborne “explicitly

declined to extend Brady’s pre-trial protections to the post-conviction context”);

Browning v. Trammell, 717 F.3d 1092, 1104 (10th Cir. 2013) (noting that “it is

inappropriate to consider evidence developed post-verdict” because the essence of a

Brady claim requires evaluating how withheld evidence would have affected the jury);

Whitlock v. Brueggemann, 682 F.3d 567, 587-88, 589 (7th Cir. 2012) (“As we have

stressed, the continuing Brady obligation that applies … covers only evidence that

existed at the time of the original trials.”); see also Leonard D. Hutchison & James

Harper v. State, No. 03C01-9606-CR-00232, 1997 WL 789923, at *8-9 (Tenn. Crim.

App. Dec. 23, 1997) (rejecting a Brady claim for the nondisclosure of FBI forms that

were not created until after the trial).

On the other hand, some courts have concluded that the government’s obligation

to disclose exculpatory material extends through the conclusion of a direct appeal. See

- 17 -

Fields v. Wharrie, 672 F.3d 505, 514-15 (7th Cir. 2012) (concluding in a 42 U.S.C.A. §

1983 suit that “a prosecutor’s Brady and Giglio obligations remain in full effect on direct

appeal and in the event of retrial because the defendant’s conviction has not yet become

final, and his right to due process continues to demand judicial fairness”); Tennison v.

City & Cty. of San Francisco, 570 F.3d 1078, 1094 (9th Cir. 2009) (concluding in a §

1983 suit that evidence discovered while prosecutors were involved in new trial and post-

conviction proceedings was subject to disclosure); see also Smith v. Roberts, 115 F.3d

818, 820 (10th Cir. 1997) (accepting the government’s concession that the prosecution’s

duty to disclose extended to evidence discovered prior to the ruling on the motion for a

new trial).

We have determined that we need not address the issue of whether the prosecution

was obligated to disclose the evidence which surfaced after trial and sentencing but prior

to the ruling on the motion for a new trial. Even assuming that the prosecutor was

obligated to disclose the information, the Petitioner has failed to demonstrate materiality

under Brady. In Smith v. Roberts, the prosecution conceded that it was obligated to

disclose exculpatory information which came to light after sentencing but prior to the

motion for a new trial. 115 F.3d at 820. The appellate court noted that prompt disclosure

would have allowed the petitioner to use the evidence in a motion for a new trial, and it

concluded that “the proceeding upon which the [materiality] element must focus is the

new trial motion, not the trial itself.” Id. The Tenth Circuit concluded that the petitioner

did not establish materiality because the post-conviction court evaluated his claim under

the same standard that the trial court would have used to evaluate the motion for a new

trial, and accordingly the delay did not affect the outcome of the motion for a new trial

proceeding. Id.

We agree that under Brady, the materiality analysis must focus on prejudice

accruing after the prosecution is imputed with an awareness of the evidence. Here, the

Petitioner cannot establish a Brady claim based on the effect that the evidence would

have had at trial because the Petitioner cannot establish, as an element of relief, that the

prosecution suppressed evidence in its possession at trial. Indeed, not only was the

evidence of the favorable DNA testing not in the prosecution’s possession during trial, it

did not exist at all. Accordingly, the materiality analysis must focus on the point at which

the evidence came into existence and into the prosecution’s possession.

Here, had the prosecution disclosed the test results on August 4, 2011, the

Petitioner could have amended the motion for a new trial to request relief. The Petitioner

could likewise have filed a petition for error coram nobis based on the newly discovered

evidence. However, the Petitioner has not articulated what claims were foreclosed by the

delayed disclosure, nor has the Petitioner shown that the same claims could not have been

asserted at the time that the defense actually became aware of the results of the testing.

- 18 -

The Petitioner does not specify what errors could have been raised at the motion for a

new trial that were precluded on post-conviction review. Accordingly, the Petitioner’s

claims regarding the results of the testing of the fingernail scrapings do not establish that

the Petitioner is entitled to relief based on the prosecution’s failure to timely disclose

exculpatory material under Brady.

III. Due Process

The Petitioner next generally asserts that a trial in the absence of the late-

discovered DNA evidence was a violation of due process and requires a new trial. The

Post-Conviction DNA Analysis Act of 2001 provides for the opportunity to obtain DNA

testing for offenders convicted of enumerated offenses. Griffin v. State, 182 S.W.3d 795,

798 (Tenn. 2006). Testing is mandatory when:

(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.

Additionally, the court may, in its discretion, order testing when:

(1) A reasonable probability exists that analysis of the evidence will

produce DNA results that would have rendered the petitioner’s verdict or

sentence more favorable if the results had been available at the proceeding

leading to the judgment of conviction;

(2) The evidence is still in existence and in such a condition that

DNA analysis may be conducted;

- 19 -

(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. § 40-30-305.

A reasonable probability under the statute is a probability sufficient to undermine

confidence in the outcome. Powers v. State, 343 S.W.3d 36, 55 (Tenn. 2011). “Under

either the mandatory or discretionary provision, all four elements must be met before

DNA analysis will be ordered by the court.” Id. at 48-49, 54 (citing Brandon L. Garrett,

Claiming Innocence, 92 Minn. L. Rev. 1629, 1676 (2008) for the proposition that the

threshold showing of materiality mirrors the standard in Brady).

In determining whether this standard has been satisfied, the court indulges in a

presumption that the results will be exculpatory. Id. at 55; 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). The court examines the remaining evidence in view of the

possible effect that exculpatory evidence would have had on the fact-finder or

prosecution. Powers, 343 S.W.3d at 55. “[T]he analysis must focus on the strength of

the DNA evidence as compared to the evidence presented at trial—that is, the way in

which ‘the particular evidence of innocence interacts with the evidence of guilt.’” Id.

(quoting Garrett, 92 Minn. L.Rev. at 1646). This analysis does not constitute a mere

reevaluation of the sufficiency of the convicting evidence viewed in the light most

favorable to the State. Id. at 57 (concluding that the petitioner was entitled to DNA

testing of biological evidence of rape because the court would presume that the results

would be exculpatory in that any DNA other than the petitioner’s would match that of an

offender in a DNA database rather than that of the victim’s boyfriend, with whom she

had had consensual sex prior to the rape). Ultimately, the court in Powers v. State

examined whether presumptively favorable evidence would have resulted in reasonable

doubt held by at least one juror. Id. at 58.

The Act contemplates that the post-conviction court will evaluate the results of

completed DNA testing before further proceedings to grant relief:

If the results of the post-conviction DNA analysis are not favorable to the

petitioner, the court shall dismiss the petition, and make further orders as

- 20 -

may be appropriate. If the results of the post-conviction DNA analysis are

favorable, the court shall order a hearing, notwithstanding any provisions of

law or rule of court that would bar the hearing as untimely, and thereafter

make orders as are required or permitted by the rules of criminal procedure

or part 1 of this chapter [the Post-Conviction Procedure Act].

T.C.A. § 40-30-312.

The State asserts that the scope of appellate review of the post-conviction court’s

denial of relief is limited. See Jack Jay Shuttle, 2004 WL 199826, at *4; Donnie E.

Johnson v. State, No. W2006-02208-CCA-R3-PD, 2007 WL 852147, at *4 (Tenn. Crim.

App. Mar. 22, 2007). We note that we are not reviewing the court’s decision to grant or

deny DNA analysis; the request for DNA analysis was unopposed, the analysis was

conducted, and neither party challenges the order for analysis. Instead, the Petitioner is

challenging the denial of his petition for post-conviction relief, which asserts claims in

light of the results of the new DNA evidence. Accordingly, we apply the standard of

review applicable to judgments rendered under the Post-Conviction Procedure Act. The

post-conviction court’s factual findings are binding on appeal unless the evidence

preponderates otherwise, but its legal conclusions and determinations of mixed questions

of law and fact are reviewed de novo. Kendrick, 454 S.W.3d at 457.

As post-conviction counsel noted, there is some absence of clarity regarding the

procedure for providing relief after the discovery of favorable evidence pursuant to the

Act. The Petitioner suggests that this court should treat the claim as analogous to a claim

for error coram nobis. However, the Petitioner has not asserted an error coram nobis

claim either in the appellate brief or in front of the post-conviction court. The Tennessee

Supreme Court, in Tommy Nunley v. State, recently cautioned against conflating a claim

under Brady asserting a due process violation with one alleging that the petitioner is

entitled to the writ of error coram nobis based on newly discovered evidence. No.

W2016-01487-SC-R11-ECN, 2018 WL 3468745, at *12, __ SW3d __ (Tenn. July 19,

2018). The Tommy Nunley Court refused to consider the petitioner’s Brady claim

because the petitioner submitted the claim “under the rubric of a petition for a writ of

error coram nobis.” Id. at *13. Accordingly, while the Petitioner’s claims here may

sound in coram nobis, we do not address the DNA evidence as newly discovered

evidence under the statutory provisions related to coram nobis because the Petitioner did

not present such an argument to the post-conviction court or on appeal. See id. at *12.

(“In cases in which a petitioner seeks relief via a petition for writ of error coram nobis as

well as post-conviction proceedings, both based on newly discovered evidence

improperly suppressed by prosecutors at trial, each claim for relief should be presented

and evaluated on a separate track, so to speak—the first in accordance with the coram

- 21 -

nobis statutes, and the second for a constitutional Brady violation under a petition for

post-conviction relief.”).

By the plain terms of the statute, the relief contemplated subsequent to DNA

testing is relief under the Rules of Criminal Procedure, such as a motion for a new trial,

or relief under the Post-Conviction Procedure Act. This relief is available

“notwithstanding any provisions of law or rule of court that would bar the hearing as

untimely.” T.C.A. § 40-30-312. The Petitioner’s claims regarding the DNA on the knife

and under the victim’s fingernails were raised in a timely post-conviction petition. The

Petitioner did not request a writ of error coram nobis after the discovery of the DNA

under the victim’s fingernails but instead filed a post-conviction petition approximately

two years later. The Petitioner was then granted permission to test the knife, and the

claims regarding the results of both tests were included in the timely post-conviction

petition. The Petitioner argues that trial in the absence of the DNA evidence resulted in

the denial of due process, but the appellate brief contains no citation to any caselaw that

stands for the proposition that due process mandates a new trial upon the discovery of

favorable evidence after conviction.

“[T]he Due Process Clause guarantees the fundamental elements of fairness in a

criminal trial.” Spencer v. Texas, 385 U.S. 554, 563-64 (1967). However, the Due

Process Clause has “limited operation” beyond the guarantees listed in the Bill of Rights,

and “the category of infractions that violate ‘fundamental fairness’” has been defined

“very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990); see Beuke v.

Houk, 537 F.3d 618, 639-40 (6th Cir. 2008) (noting that state court’s ruling admitting

victim impact testimony would constitute a constitutional violation only if it rendered the

trial fundamentally unfair). Accordingly, the question is whether the action complained

of violates those “‘fundamental conceptions of justice which lie at the base of our civil

and political institutions.’” Dowling, 493 U.S. at 353 (quoting United States v. Lovasco,

431 U.S. 783, 790 (1977)). The presumption of innocence no longer cloaks a defendant

who has been convicted at a fair trial. Herrera v. Collins, 506 U.S. 390, 399 (1993).

Instead, the court must determine whether the challenged conduct undermined the

fundamental fairness of the entire trial. Han Tak Lee v. Houtzdale SCI, 798 F.3d 159,

162, 166, 168 (3d Cir. 2015) (affirming habeas corpus relief for petitioner who articulated

a due process claim based on the fact that scientific evidence used to convict him had

subsequently been discredited); see also United States v. Candelaria-Silva, 166 F.3d 19,

37 (1st Cir. 1999) (concluding that combination of Brady material and newly discovered

evidence did not create a reasonable probability of a different result at trial). When a

petitioner alleges that evidence is admitted in violation of due process, the court analyzes

the materiality of the evidence. Brown v. O’Dea, 227 F.3d 642, 645 (6th Cir. 2000), as

amended on denial of reh’g (Nov. 30, 2000).

- 22 -

The Petitioner asserts that the absence of the DNA evidence hampered the

Petitioner’s ability to present a defense, resulting in a due process violation. The United

States Constitution guarantees a meaningful opportunity to present a complete defense,

which “‘includes the right to introduce evidence that someone other than the accused

committed the crime.’” State v. Bell, 512 S.W.3d 167, 190 (Tenn. 2015) (quoting State v.

Rice, 184 S.W.3d 646, 671 (Tenn. 2006)). “[T]he erroneous exclusion of evidence that

thwarts a criminal defendant’s right to present a defense is constitutional error.” Id. We

observe, however, that the cases cited by the Petitioner analyze whether the defendant

had a constitutional right to present evidence in existence at trial which was excluded

according to the rules of evidence. See Rice, 184 S.W.3d at 673-74; State v. Brown, 29

S.W.3d 427, 433-34 (Tenn. 2000). To determine whether such exclusion of evidence

rises to constitutional proportions, the court examines whether the excluded evidence is

critical to the defense, whether the evidence bears sufficient indicia of reliability, and

whether the interest supporting exclusion is substantially important. Brown, 29 S.W.3d at

434. We note that this last criterion does not fit easily into the contours of the

Petitioner’s claim and that the analysis cited by the Petitioner is not the correct

framework for determining whether the Petitioner is entitled to relief based on the fact

that new DNA evidence came into existence after trial. In any event, we conclude that

the DNA evidence was not so material as to render a trial in its absence unconstitutional.

In Wiley v. State, the trial court granted the petitioner post-conviction DNA

analysis of a towel found at the crime scene. 183 S.W.3d 317, 324 (Tenn. 2006). At

trial, the petitioner, who acknowledged having struck the victim with a bottle, claimed

that he did so in self-defense after the victim attacked him, and he told police that he was

unaware of the severity of the victim’s injuries when he left the victim. Id. at 320-21.

The petitioner asserted that DNA analysis of the towel would reveal the petitioner’s own

blood and not the victim’s blood, supporting the petitioner’s contention that the victim

attacked and injured him and that he was acting in self-defense. Id. at 322-23. The post-

conviction court granted testing, and the DNA test results revealed that the towel was

indeed stained with the petitioner’s own blood. Id. at 324. The Tennessee Supreme

Court concluded that, while the DNA test results were favorable to the petitioner, the

finding of favorable results would not in itself mandate the granting of a new trial. Id. at

329. Concluding that “[a]lthough the analysis established the presence of the petitioner’s

blood at the crime scene, that evidence alone did not establish the petitioner’s innocence

of the offenses,” the court determined that the testing did not show that the verdict or

sentence would have been more favorable had the evidence been available at trial, and it

denied relief. Id. at 328-29.

In Kenneth Alan Steele v. State, the petitioner was granted DNA analysis but

subsequently denied post-conviction relief. No. E2016-01375-CCA-R3-PC, 2018 WL

842936, at *1 (Tenn. Crim. App. Feb. 13, 2018), perm. app. denied (Tenn. June 6, 2018).

- 23 -

The petitioner had committed numerous burglaries and rapes and sought testing of

evidence obtained from the victims. Id. The results of the testing showed that the

samples contained genetic material from multiple sources, but the petitioner was

identified as a partial contributor in each sample. Id. at *3. This court upheld the denial

of relief, noting that, despite the unidentified contributors in the genetic material, the

petitioner’s genetic material was also present and that his convictions were otherwise

supported by strong evidence, including fingerprints. Id. Likewise, in Steven Craig

Griffin v. State, the petitioner was granted DNA testing, and the test revealed that neither

he nor his patrilineal relatives could be excluded as the perpetrator. No. M2008-00242-

CCA-R3-PC, 2009 WL 564228, at *8 (Tenn. Crim. App. Mar. 5, 2009). This court

affirmed the dismissal of the subsequent post-conviction petition, noting that the results

of the testing were not favorable, despite the fact that the results could also implicate the

petitioner’s patrilineal relatives. Id.

We conclude that the Petitioner here has not established a violation of the

principles of fundamental fairness under due process. Dowling, 493 U.S. at 352. We

note that the Petitioner could have insisted on DNA testing prior to trial but did not seize

the opportunity to do so. Neither has the Petitioner shown a reasonable probability that

the results of the proceeding would have been different if the defense had had access to

the subsequently performed DNA analysis. Wiley, 183 S.W.3d at 328-29. DNA testing

cannot, in itself, always resolve a case. Osborne, 557 U.S. at 62. “Where there is enough

other incriminating evidence and an explanation for the DNA result, science alone cannot

prove a prisoner innocent.” Id.; see Willie Andrew Cole v. State, No. M2015-02087-

CCA-R3-PC, 2016 WL 4972384, at *4 (Tenn. Crim. App. Sept. 18, 2016) (denying DNA

testing based on the conclusion that even if the victim’s fingernails yielded DNA from

some person other than the petitioner, the overwhelming proof at trial precluded a finding

of a reasonable probability of a different result); Donnie E. Johnson, 2007 WL 852147, at

*7 (denying DNA testing because even if the DNA analysis showed that a plastic bag

used in the crime contained DNA linked to someone else, the probability that the bag had

been handled by numerous people precluded a reasonable probability that the petitioner

would not have been convicted or prosecuted).

Here, the value of the DNA evidence obtained from the knife is marginal at best.

Although at trial the State suggested that the knife was the murder weapon, post-

conviction testing showed that the knife bore no traces of blood, nor was the DNA of the

victim of the bloody crime located anywhere on the knife. In light of these results, the

DNA evidence obtained from the knife has negligible value. Osborne, 557 U.S. at 82-83

(Alito, J., concurring) (“Any test that is sensitive enough to pick up such trace amounts of

DNA will be able to detect even the slightest, unintentional mishandling of evidence.”);

Sedley Alley v. State, No. W2006-01179-CCA-R3-PD, 2006 WL 1703820, at *17 (Tenn.

Crim. App. June 22, 2006) (“Accordingly, even should DNA testing reveal the presence

- 24 -

of DNA belonging to a third party, as alleged by the Petitioner, there is a strong

possibility that this DNA will not belong to the perpetrator.”), abrogated by Powers, 343

S.W.3d at 49-50 (concluding that the Act authorizes a comparison of DNA evidence with

DNA profiles from a database).

The blade of the knife contained DNA from two unknown sources, and the victim

and Petitioner were both excluded as possible contributors to the DNA on the blade. The

DNA on the handle was so limited that no conclusions could be drawn about the source,

and the Petitioner was not excluded as a possible contributor. Faced with this evidence,

the trier of fact could have concluded that the knife was not the murder weapon; that the

knife was the murder weapon, had been meticulously cleaned, and had been subsequently

contaminated with DNA during the investigation or trial; that the knife was the murder

weapon and that it bore the DNA of two phantom perpetrators; or that the knife was the

murder weapon and that the perpetrator’s DNA, which did not exclude the Petitioner, was

on the handle only. Accordingly, while the DNA results from the knife were not

inculpatory, neither are they particularly favorable to the Petitioner. Sedley Alley, 2006

WL 1703820, at *18 (“Merely detecting DNA from another individual on the victim’s

clothing, in the absence of any evidence as to how and when that DNA was deposited,

would not exculpate the Petitioner….”).

While genetic material from a male other than the Petitioner under the victim’s

fingernails is certainly favorable evidence, we cannot say that the evidence is so strong

that there is a reasonable probability that the absence of the evidence at trial affected the

results of the proceedings. See Wiley, 183 S.W.3d at 328-29. Although the evidence had

exculpatory value, it was not exonerating. At trial, Detective Crumby testified that he did

not believe the fingernail scrapings required testing, in part because genetic material

under the victim’s fingernails could have come from domestic contact. Detective

Crumby testified, for instance, that his DNA would probably be present under his wife’s

fingernails. The crime scene showed signs of a struggle, in that various items were

knocked over or broken. However, there was also testimony that the victim would throw

things when she was intoxicated. The medical examiner testified that the victim had no

defensive wounds on her hands. He also testified that the blood evidence was consistent

with the victim’s having been stabbed as she lay in bed and that the blow to her head may

have rendered her unconscious. Accordingly, the physical evidence did not necessarily

suggest that the murderer’s DNA would be present under the victim’s fingernails.

The evidence at trial established that the Petitioner was present in the victim’s

home on the night of her death. After buying two bottles of orange juice at the dollar

store, the Petitioner entered the victim’s home. The victim used the Petitioner’s

telephone to call Mr. Harris multiple times between 9:00 and 10:00 p.m. At some time

that night, the victim was stabbed and bled to death. The murderer then made two

- 25 -

incisions under her breasts, in a location that would not normally be exposed. The

Petitioner left a bag with the receipt from the dollar store in an upstairs bedroom of the

victim’s home and subsequently fled the State. When questioned about the murder by

police, the Petitioner’s response was to ask if Tennessee recognized self-defense. The

Petitioner admitted to being involved in an altercation with the victim after inadvertently

using the victim’s towel. The Petitioner told Detective Crumby that the victim began

throwing things and “pulling that little knife.” When Detective Crumby suggested,

“Then you just defended yourself,” the Petitioner responded, “Right.” The jury convicted

the Petitioner of second degree murder. We conclude that evidence of DNA under the

victim’s fingernails was not so exculpatory that it would undermine confidence in the

verdict or that it raises a reasonable probability of a different result at trial.

CONCLUSION

Based on the foregoing reasoning, we affirm the judgment of the post-conviction

court.

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

- 26 -