Petition for Writ of Certiorari — Gregory Livingston, Petitioner v. Tennessee

No._________________________

_____________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

GREGORY LIVINGSTON,

Petitioner

V.

STATE OF TENNESSEE,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF TENNESSEE AND THE

TENNESSEE COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

Counsel for Petitioner:

Barry W. Kuhn, BPR #007638

Counsel of Record

Assistant Public Defender

201 Poplar Avenue, Suite 2-01

Memphis, TN 38103

(901) 222-2815

barry.kuhn@shelbycountytn.gov

QUESTION PRESENTED FOR REVIEW

Whether the defendant was deprived of his Sixth

Amendment Right to Confrontation at the trial of his case when

the trial court allowed the state to present evidence of the manner

and cause of death in this murder case by a doctor who did not

perform the autopsy, when the evidence presented through the

autopsy was developed by an out-of-court doctor who did not

testify?

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TABLE OF CONTENTS

QUESTION PRESENTED ……………………………………….1

TABLE OF CONTENTS…………………………………………..2

TABLE OF AUTHORITIES……………………………………….3

OPINIONS BELOW………………………………………………..4

STATEMENT OF JURISDICTION………………………………4

CONSTITUTIONAL PROVISION INVOLVED………………..5

STATEMENT OF THE CASE……………………………………..6

A. Procedural History………………………………………..6

B. Summary of the Facts…………………………………….7

REASONS FOR ALLOWING THE WRIT……………………….8

SUMMARY OF ARGUMENT………………………………………9

ARGUMENT …………………………………………………………10

CONCLUSION………………………………………………………..22

APPENDIX……………………………………………………………23

APPENDIX A: Opinion of the Tennessee Court of Criminal

Appeals…………………………………………………………………25

APPENDIX B: Order of the Tennessee Supreme Court….26

PROOF OF SERVICE…………………………………………………23

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TABLE OF AUTHORITITES

Cases:

Bush v. State, 428 S.W. 3d 1 (Tenn2014)…………………………..22

Crawford v. Washington, 541 U.S. 36 (2004)………………………11

Gourley v. State, 710 S.W. 3d 368 (2025)……………………………16

Griffith v. Kentucky, 479 U.S. 314 (1987)…………………………...18

Johnson v. United States, 520 U.S. 461 (1997)……..………….19, 20

Roalson v. Noble, 116 F. 4th 661 (2024)……………………………..15

Smith v. Arizona, 602 U.S. 779 (2024)………….9, 11, 13, 14, 17, 20

State v. Cooper, 321 S.W. 3d 501 (Tenn.2010)……………………,,22

State v. Franklin, 308 S.W. 3d 799 (Tenn.2010)……………………21

State v. Hutchison, 482 S.W. 3d 893 (Tenn.2016)…………12, 13, 20

State v. Knowles, 470 S.W. 3d 416 (Tenn.2015)…………………….21

State v. Minor, 546 S.W. 59 (Tenn.2018)…………………..19, 21, 22

Watson v. Edmark, 118 F. 4th (2024)…………………………………16

Williams v. Illinois, 567 U.S. 50 (2012)…………………………12, 13

Other authorities:

U.S. Constitution, Amendment VI……………………………………11

TN Constitution, Art 1, § 9…………………………………………….11

3

Tenn. Rule App. Pro 36(b) …………………………………………….18

PETITION FOR WRIT OF CERTIORARI

Gregory Livingston respectfully petitions for a writ of

certiorari to review the judgements of the Supreme Court of

Tennessee and the Tennessee Court of Criminal Appeals in this

case.

OPINIONS BELOW:

On July 29, 2025, the Tennessee Court of Criminal Appeals

entered its unpublished opinion in this case affirming the

petitioner’s conviction and sentence. State of Tennessee v. Gregory

Livingston, (Tenn.Crim.App.2025) 2025 WL 2144726. A copy of

the opinion is attached to the Appendix. A petition to appeal to the

Tennessee Supreme Court was timely filed. On December 11,

2025, the Tennessee Supreme Court denied the application to

appeal. A copy of the order denying the application to appeal is

attached to the Appendix. No Petition for Rehearing was filed.

STATEMENT OF JURISDICTION:

The Supreme Court of Tennessee issued the order denying the

application for an appeal on December 11, 2025. No petition for

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rehearing was filed. This Court has jurisdiction under 28 U.S.C.

§1257(a), which states: “Final judgments or decrees rendered by

the highest court of a state in which a decision could be had, may

be reviewed by the Supreme Court by writ of certiorari where the

validity of a treaty, or statute of the United States is drawn in

question or where the validity of a statute of any state is drawn in

question on the ground of its being repugnant to the Constitution,

treaties, or laws of the United States, or where any title, right,

privilege, or immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any commission held

or authority exercised under, the United States.”

CONSTITUTIONAL PROVISION INVOLVED:

This petition involves the following constitutional provision:

The Sixth Amendment to the Constitution of the United

States guarantees a criminal defendant the right “to be confronted

with the witnesses against him.” U.S. Const. Amendment VI.

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STATEMENT OF THE CASE:

A. Procedural History:

On December 16, 2021, the Shelby County Grand Jury

returned indictment number 21-03582 charging Appellant,

Gregory Livingston, with murder first degree. (I, 1-2).

A trial of the case proceeded on April 24, 2024, before the

Honorable Chris Craft, Judge of Division Eight of the Shelby

County Criminal Court, and a verdict of guilty was returned by

the jury on May 3, 2024, finding the defendant guilty of murder

first degree. (I, 9-12, 33). The defendant was sentenced by Judge

Craft on May 3, 2024, to life in prison. (I, 34-35)

The defendant’s motion for a new trial was filed on May 14,

2024. (I, 36-37). A supplemental motion for a new trial was filed

on July 8, 2024. (I, 41-42) The supplemental motion alleged that

the trial court had denied the defendant his right to confrontation

by letting a doctor, who had not engaged in the autopsy

examination of the deceased victim, testify as to the manner and

cause of death. The motion was heard and overruled on July 8,

2024. (I, 65).

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The Shelby County Public Defender was appointed to

represent the defendant on appeal. (I, 66) The Notice of Appeal

was filed with the Tennessee Court of Criminal Appeals on July

24, 2024. (I, 67). The transcripts of the trial proceedings were filed

with the Criminal Court Clerk on September 19, 2024. (I, 69). The

record and transcripts were filed with the Court of Criminal

Appeals on November 5, 2024. (I-X).

The Tennessee Court of Criminal Appeals decided the case

and affirmed the jury verdict and the judgment of the trial court

on July 29, 2025. A copy of the opinion of the Tennessee Court of

Criminal Appeals is attached to the appendix to this petition.

An application for permission to appeal to the Tennessee

Supreme Court was timely filed. The Tennessee Supreme Court

denied the application on December 11, 2025. A copy of the order

denying the application is attached to the appendix to this

petition.

B. Summary of the Facts:

The defendant in this case had been hired as a security

guard at a local convenience store. While on duty he was

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confronted by the victim who threatened the defendant with

bodily harm. The victim approached the defendant three times in

an aggressive manner. On the first two occasions the victim was

interrupted by his female companion and the store manager, and

he was returned to the automobile in which he had arrived at the

store. On the third occasion, the victim approached the defendant

in an aggressive manner, and there was no one there to stop him.

The defendant told the victim to stop and pointed a gun at him.

The victim kept coming. The defendant fired the gun. The bullet

penetrated the chest of the victim and resulted in his death.

The autopsy of the victim was performed by Doctor Scott

Collier. The testimony in court at the trial of the case was

presented by Doctor Marco Ross. Dr. Ross did not participate in

the autopsy examination of the deceased. He testified at trial as to

the manner and cause of death. His testimony was entirely based

upon the autopsy examination of Dr. Collier.

REASONS FOR ALLOWING THE WRIT:

The court should grant this petition to determine whether

the trial court denied the defendant his Sixth Amendment Right

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to Confrontation by allowing a doctor to testify as to the manner

and cause of death who did not perform the autopsy, and the

testimony of the in-court doctor was based upon the examination

and findings of the out-of-court doctor.

SUMMARY OF ARGUMENT:

As stated in the facts summarized above, the defendant was

convicted of murder first degree. The manner and cause of death

was testified to by a doctor who did not perform the autopsy upon

the victim. After the jury verdict, but before the motion for a new

trial, the United States Supreme Court decided the case of Smith

v. Arizona, 602 U.S. 779, 144 S. Ct. 1785 (2024) and published the

opinion. The ruling in the Smith case is that the right to

confrontation of the Sixth Amendment to the United States

Constitution is violated if an expert witness testifies regarding

facts essential to the case that were found or developed by another

expert who does not testify. If evidence is introduced for the truth

of the matter contained therein and the evidence is testimonial, it

must be presented in court by the expert who discovers or

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develops the evidence. The evidence is considered testimonial if it

is developed for the purpose of presentation in trial.

The testimony of Dr. Ross violated this rule. Dr. Collier did

the autopsy. The purpose of the autopsy was for testimony in the

murder trial. Dr. Ross testified about the evidence developed by

Dr. Collier’s autopsy. This deprived the defendant of his right to

confrontation.

ARGUMENT:

The defendant, Gregory Livingston, was convicted of murder

first degree and sentenced to life in prison. At the trial of his case

the state presented evidence of the cause of death and the manner

of death. The autopsy of the victim was performed by Dr. Scott

Collier, a forensic scientist. The testimony in court regarding the

autopsy, and the opinion of the cause of death and the manner of

death, was presented by the testimony of Dr. Marco Ross, a

forensic scientist. Because the defendant could not confront the

scientist who performed the autopsy and made the determination

of the cause and manner of death, the defendant’s right to

confrontation was violated. The cause and manner of death were

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essential facts in the case. Without this proof, the defendant could

not be convicted of murder.

The Sixth Amendment to the Constitution of the United

States guarantees a criminal defendant the right “to be confronted

with the witnesses against him.” U.S. Const. Amendment VI.

Smith v. Arizona, 602 U.S. 779, 144 S. Ct. 1785 (2024) The

Constitution of Tennessee guarantees this also. The defendant has

the right “to meet the witnesses face to face.” TN Const. Art1, § 9.

The Confrontation Clause bars the admission at trial of

testimonial statements of an absent witness unless he is

unavailable to testify, and the defendant has had a prior

opportunity to cross-examine the witness. That prohibition applies

in full to forensic evidence. Smith, supra, 783 citing Crawford v.

Washington, 541 U.S. 36, 53-54 (2004). “The Clause, as Crawford

explained, commands not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the

crucible of cross-examination.” Smith, 784.

The defendant did not object to the presentation of this

evidence at trial because the prevailing case at the time of the

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trial was State v. Hutchison, 482 S.W. 3d 893 (Tenn.2016). The

Hutchison rule allowed the in-court expert to testify to the facts

determined by the out-of-court expert based upon the rule

presented in the Supreme Court case of Williams v. Illinois, 567

U.S. 50 (2012). The Hutchison court stated that the Williams

decision was difficult to apply because there was a four-justice

plurality opinion that said that the out-of-court statements

violated the confrontation clause if the statements had the

primary purpose of accusing a targeted individual of engaging in

criminal conduct. Hutchison, supra, 908. There was a concurring

opinion by one justice that said that the statements must be

formalized testimonial material such as depositions, affidavits,

etc.in order to violate confrontation. Hutchison, supra, 909. There

was a dissenting opinion by four justices that said that the

statements violated confrontation if the statements established a

fact in a criminal proceeding. Hutchison, supra, 909. The

Hutchison court found that the statements complained of did not

violate confrontation because, while they met the broad standard

advocated by the dissent in Williams, they did not meet the

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standard under the concurring opinion nor the plurality opinion,

and, thus, there was not a majority opinion upon which to rely.

Hutchison, supra, 914

The jury returned a verdict in this case on May 3, 2024. On

June 21, 2024, The United States Supreme Court released its

opinion in Smith v. Arizona, 602 U.S. 779 (2024) This decision

abrogated the Hutchison case and established a much clearer rule

than the one stated in Williams. The rule set out in Smith v.

Arizona is that the testimony of the in-court witness violates the

Confrontation Clause if that testimony is based upon the

statements of the out-of-court witness, the statements of the outof-court witness are offered for the truth of the matters contained

in them, and the statements of the out-of- court witness are

testimonial. “If an expert for the prosecution conveys an out-ofcourt statement in support of his opinion, and the statement

supports that opinion only if true, then the statement has been

offered for the truth of what it asserts.” Smith, 795. When the

primary purpose of the findings and statements of the out-of-court

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witness is for evidence in court, the expert’s report is deemed to be

testimonial. Smith, 781.

That was the case here. Dr. Ross testified that his opinion

was based upon the report of Dr. Collier. (VII, 575-576)1 He in fact

simply recites the opinion of Dr. Collier. (VII, 576, 578) There is no

description of any analysis done by Dr. Ross. He simply repeats

everything said in the autopsy report of Dr. Collier. The five-page

report of the autopsy examination is introduced through the

testimony of Dr. Ross as exhibit #9. (VII, 576-577) When asked

about the injuries to the victim, Dr. Ross recites the findings of Dr.

Collier. He describes the gunshot wound. (VII, 578) When asked

how far away the gun was from the victim when it was fired, Dr.

Ross refers to Dr. Collier’s report. (VII, 579-580) He goes on to

comment that the autopsy report shows that, although there were

two gunshot wounds, they could have been caused by the same

bullet. (VII, 580) That is not Dr. Ross’ opinion. That is the opinion

of Dr. Collier in the report.

1

References to the record are by roman numerals for volume number and Arabic numerals for page

number.

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Dr. Ross is asked for the summary and interpretation of the

autopsy. He does not state his summary and interpretation. He

reads the summary and interpretation of the report of Dr. Collier.

(VII, 580-581) In the opinion of Dr. Collier, the cause of death was

a gunshot wound to the chest. The manner of death was homicide.

(VII, 581) This is essential evidence in a murder case, and it was

provided by the out-of-court witness.

There are cases in point from other jurisdictions. In Roalson

v. Noble, 116 F. 4tg 661(2024) The court allowed a DNA expert to

testify regarding DNA samples that had been collected from the

scene and swabbed by another expert. Id., 664. The court ruled

that the in-court expert was able to reach her own conclusions

based upon the evidence collected and tested by the out-of-court

expert because the in-court expert had done her own analysis

based upon the evidence collected. Id., 664. The court stated the

rule that “The state cannot introduce a report with testimonial

conclusions into evidence without producing the analyst who

prepared the report.” Id., 666. The court went on to say that “…it

15

is less clear whether a state may allow an analyst to testify to his

own conclusions about data another analyst collected.” Id., 666.

In Watson v. Edmark, 118 F. 4th (2024) the court allowed the

state to present laboratory evidence through the testimony of a

forensic toxicologist who had not himself conducted the relevant

tests. The material examined was blood samples that were tested

to find the presence of drugs. The testifying expert did not do the

tests on the samples but testified as to his conclusions after

reviewing the test results. He testified that he reviewed the

process through which the samples were tested. He signed the

report describing the test results and he authored the laboratory

report which was full of his own analysis and conclusions. Id., 461462.

In Gourley v. State, 710 S.W. 3d 368 (2025) the defendant

was convicted of driving while intoxicated. The expert witness who

testified as to the drug contents in the defendant’s blood, shown by

the test results, was not the analyst who had conducted the tests.

The tests had been performed by a toxicology lab that employed

over two hundred scientists. Two of them tested the defendant’s

16

blood. A forensic toxicologist who had not done the tests testified

at the trial. He stated that he had conducted his own analysis of

the analytical data from the testing and had formed his own

opinion from the data. Id., 372. The court held that the

defendant’s confrontation rights had not been violated because the

toxicology report was not admitted into evidence, and because the

testifying expert had performed an independent review of the raw

data from the testing and formed his own conclusions from that

data. Id., 378.

These cases raise the question as to exactly where the line is

drawn when a testifying expert relies upon testing done by

another expert and testifies regarding the conclusions that he, the

in-court expert, draws from the tests. In the case before the court

the autopsy report was entered into evidence, and Dr. Ross

testified as to the results obtained by Dr. Collier. That is a clear

violation of confrontation.

The rule in Smith v. Arizona applies because the United

States Supreme Court has stated that a new rule for the conduct

of criminal prosecutions is to be applied retroactively to all cases,

17

state or federal, pending on direct review or not yet final, with no

exception for cases in which the new rule constitutes a clear break

with the past. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). The

reason for this rule, the Griffith Court stated, was because they

could not hear each case pending on direct review and apply the

new rule. “We fulfill our judicial responsibility by instructing the

lower courts to apply the new rule retroactively to cases not yet

final.” Id., 323. This applied to rules that are deemed a “clear

break” with the past in order to treat similarly situated

defendants alike. Id., 327.

The Court of Criminal Appeals bases its decision on the

proposition that the defendant is not entitled to plenary review

because the issue was not preserved by being objected to at the

trial during the testimony of Dr. Ross. (CCA opinion, p. 14, and p.

19). The court further states that the issue is not reviewable under

the plain error doctrine because the issue was waived for tactical

reasons, and consideration of the alleged error is not necessary to

do substantial justice. (CCA Opinion, p. 14, and p. 21).

18

First, the issue was preserved. The Court of Criminal

Appeals cites State v. Minor, 546 S.W. 3d 59 (Tenn.2018) for the

proposition that the Griffith rule applies to cases in which the

issue is preserved in the trial court and the defendant is entitled

to plenary review only if the issue is so preserved. (CCA opinion,

p. 19) The Minor case cites Tenn. Rule App. Pro. 36(b) which

provides in relevant part: when necessary to do substantial

justice, an appellate court may consider an error that has affected

the substantial rights of a party at any time, even thought the

error was not raised in the motion for a new trial or assigned as

error on appeal. The rule does not say “even though the testimony

was not objected to at trial.” The error was preserved in the

defendant’s motion for a new trial and assigned as error on

appeal.

Secondly, the Minor case cites the case of Johnson v. United

States, 520 U.S. 461 (1997) In that case the rule at the time of the

defendant’s trial for perjury was that the judge decided the

materiality of the evidence, not the jury. The defense counsel

argued that materiality was an issue for the judge. After the

19

defendant’s conviction, and while her case was on appeal, the

Supreme court ruled in another case that the question of

materiality in a perjury case is a jury question. The Supreme

Court ruled in the Johnson case that the subsequent ruling

applied even though the defense counsel had not objected to the

judge’s ruling on the issue and had even argued it. The Supreme

Court said that it was the law that existed at the time of the

appeal that applied, not at the time of the trial court ruling.

That is the case that we have here. There was no objection to

the testimony of Dr. Ross at the time of the trial because the

Hutchison case was the law. Smith v. Arizona changed the rule.

Further the issue is reviewable under the Plain Error

Doctrine because the issue was not waived for tactical reasons and

consideration of the issue is necessary to do substantial justice.

Because the Hutchison rule was going to allow the testimony of

the in-court expert regarding the autopsy done by the out-of-court

expert, the defendant sought to have the entire autopsy report

entered so that the jury would be aware that the person, who was

shot, was intoxicated by alcohol and drugs. This was relevant to

20

the defendant’s defense. There was not a waiver of the rule stated

in the Smith case because the Smith case had not yet been

decided.

A consideration of the error is necessary to do substantial

justice. The state must prove the manner and cause of death in a

murder case beyond a reasonable doubt to carry the burden of

proof. The manner and cause of death was not stipulated by the

defense. It was not argued. Proof to the contrary was not

presented, but it was not stipulated to. This does not relief the

state of the burden.

The issue of whether the admission of out-of-court

statements of evidence violate the Confrontation CClause is a

question of law that is subject to de novo review. State v. Franklin,

308 S.W. 3d 799, 809 (Tenn.2010). Whether the plain error

doctrine has been satisfied is a question of law which the court

reviews de novo. State v. Minor, supra, 65 citing State v. Knowles,

470 S.W. 3d 416, 423 (Tenn.2015). Whether a new rule of

constitutional law is entitled to retroactive application is a

question of law subject to de novo review. State v. Minor, supra, 65

21

citing Bush v. State, 428 S.W. 3d 1, 16 (Tenn.2014). Whether a

defendant is entitled to relief via the plain error doctrine is a

question of law subject to de novo review. State v. Minor, supra 65

citing State v. Cooper, 3321 S.W. 3d 501, 506 (Tenn.2010).

CONCLUSION

The Court should accept this petition to state the situation

in which the rule in State v. Arizona applies. Does it apply in cases

in which the in-court expert relies upon facts developed by an outof-court expert? Is the evidence admissible if the in-court expert

reviews the evidence created by the out-of-court expert and gives

his, the in-court expert’s, conclusions? Is the defendant entitled to

confront and cross-examine the person who did the analysis and

created the report? The rule needs clarification.

Respectfully submitted,

/s/ Barry W. Kuhn

________________________

Barry W. Kuhn, BPR #007638

Assistant Public Defender

201 Poplar Avenue, Suite 2-01

Memphis, TN 38103

901-222-2815

Barry.kuhn@shelbycountytn.com

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/s/ Tony Brayton

__________________________

Tony Brayton, BPR #13725

Assistant Public Defender

201 Poplar Avenue, Suite 2-01

Memphis, TN 38103

901-222-2889

Tony.brayton@shelbycountytn.gov

APPENDIX

CONTENTS OF APPENDIX

OPINION OF THE TENNESSEE COURT OF CRIMINAL

APPEALS………………………………………………………..A-1

ORDER OF THE TENNESSEE SUPREME COURT…….A-2

PROOF OF SERVICE:

I, Barry W. Kuhn, counsel for Petitioner, do swear or declare

that on this date, February 24, 2026, as required by Supreme

Court Rule 29, I have served the enclosed Notice of Intent to file a

Motion For Leave To Proceed In Forma Pauperis and Petition For

A Writ Of Certiorari on each party to the above proceeding or that

party’s counsel, and on every person required to be served, by

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depositing an envelope containing the above documents in the

United States mail properly addressed to each of them with firstclass postage prepaid, or by delivery to a third-party commercial

carrier for delivery within 3 calendar days.

The names and addresses of those served are as follows:

Ronald Coleman, Senior Counsel, Criminal Justice Division,

State of Tennessee Attorney General’s Office, P.O. Box 20207,

Nashville, TN 37202.

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on February 24, 2026.

/s/ Barry W. Kuhn

__________________________

Barry W. Kuhn

Assistant Public Defender

Counsel of Record for Petitioner

OPINION OF THE TENNESSEE COURT OF CRIMINAL

APPEALS………………………………………………………..A-1

24

ORDER OF THE TENNESSEE SUPREME COURT…….A-2

25

26