IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 7, 2011

RICKY NELSON V. STATE OF TENNESSEE

Direct Appeal from the Criminal Court of Shelby County

No. P-11480 J. Robert Carter, Jr., Judge

No. W2010-02088-CCA-R3-PC - Filed December 14, 2011

Ricky Nelson (“the Petitioner”) filed a motion for post-conviction deoxyribonucleic acid

(“DNA”) testing pursuant to the Post-Conviction DNA Analysis Act of 2001, requesting

DNA analysis of a knife used in the perpetration of a rape. After a non-evidentiary hearing,

the post-conviction court denied relief, and the Petitioner has appealed. After reviewing the

record, we have determined, in light of the recent decision of the Tennessee Supreme Court

in Powers v. State, 343 S.W.3d 36, 56 (Tenn. 2011), that a remand of the case to the postconviction court is necessary for the post-conviction court to consider and rule upon whether

the Petitioner has satisfied the first of four factors necessary for the Petitioner to demonstrate

his right to DNA analysis and to address whether the Powers decision would affect the postconviction court’s analysis and finding on the second of the four factors.

Tenn. R. App. P. 3 Appeal as of Right; Case Remanded

to the Post-Conviction Court

JEFFREY S.BIVINS,J., delivered the opinion of the Court, in which THOMAS T. WOODALL and

ALAN E. GLENN, JJ., joined.

William D. Massey and Lorna S. McClusky, Memphis, TN, and Craig Cooley, New York,

NY, for the appellant, Ricky Nelson.

Robert E. Cooper, Jr., Attorney General & Reporter; John H. Bledsoe, Senior Counsel;

William L. Gibbons, District Attorney General; John Campbell, Assistant District Attorney

General, for the appellee, State of Tennessee.
OPINION

Factual and Procedural Background

The Petitioner was convicted by a jury of aggravated rape, aggravated robbery, and

second degree burglary. He was sentenced to twenty-five years. The Petitioner appealed the

convictions, which were affirmed by this Court. See State v. Ricky Nelson, No. 02-C019103CR00050, 1991 WL 193776 (Tenn. Crim. App. Oct. 2, 1991), perm. app. denied,

(Tenn. Feb. 24, 1992). In our decision on the direct appeal, we recited the following limited

facts:

[The Petitioner] raped and robbed a woman in her own

home in Memphis while she was dressing for church on Sunday,

February 19, 1989. He entered the home for the ostensible

purpose of talking with the woman’s daughter about a job. He

had talked with the younger woman the preceding day. Before

the rape and robbery, the daughter called her mother, and [the

daughter] realized that the [Petitioner] was in the home because

she recognized his voice. The [Petitioner] brandished a butcher

knife during his crimes. After the brutal rape and robbery, the

ensuing investigation corroborated the testimony of both women

at the two-day trial. Both women identified the [Petitioner] at

trial as the man who had come to the home on Saturday and later

raped and robbed the mother on Sunday.

After the state rested, the [Petitioner] was questioned by

his attorney and the court as to whether or not he wanted to take

the witness stand. He stated that he did not. He presented no

proof. Deliberating for less than an hour, the jury convicted [the

Petitioner].

Nelson, 1991 WL 193776, at *1.

The Petitioner filed for post-conviction relief and post-conviction DNA testing,

arguing that he was entitled to state-funded DNA testing and that his counsel was ineffective

at trial. One of the Petitioner’s bases for ineffective counsel was the fact that trial counsel

did not seek DNA testing at the request of the Petitioner. The trial court denied the Petitioner

post-conviction relief, and this Court subsequently affirmed the denial. See Ricky Nelson

v. State, No. 02C01-9607-CR-00223, 1998 WL 54975 (Tenn. Crim. App. Feb. 12, 1998).

In 2010, the Petitioner filed a Motion for Post-Conviction DNA Testing of the knife used in

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the commission of the rape, and the trial court denied the motion after a non-evidentiary

hearing. The trial court stated in its order denying relief:

1

The evidence in question is a knife that was found at the crime

scene and was allegedly used during the commission of the

crime. The knife has been in evidence for two decades and has

been moved to new storage facilities numerous times. Further,

the knife has not been maintained in a sterile or protected

container. The condition of the knife is such that it fails prong

two of the test laid out in Tenn. Code Ann. § 40-30-304(1)-(4).

The knife has not been kept in a condition that a conclusive

DNA analysis may be conducted.

The Petitioner timely appealed and argues that the knife is in a condition such that DNA

analysis could be conducted and, if the analysis linked the DNA from the knife to the DNA

of a documented offender in the DNA database, such a match would exculpate the

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Petitioner.

ANALYSIS

Standard of Review

The Petitioner challenges the post-conviction court’s decision to deny DNA testing

under the DNA Post-Conviction Analysis Act of 2001 (“the Act”). See Tenn. Code Ann. §§

40-30-301 - 313. Under the Act, “[t]he post-conviction court is afforded considerable

discretion in determining whether to grant a petitioner relief . . . , and the scope of appellate

review is limited.” Donnie E. Johnson v. State, No. W2006-02208-CCA-R3-PD, 2007 WL

852147, at *4 (Tenn. Crim. App. Mar. 22, 2007). On appeal, “this Court will not reverse

unless the judgment of the lower court is not supported by substantial evidence.” Id. (citation

omitted).

Judge John P. Colton, Jr. conducted this hearing and issued the actual order denying relief. Judge 1

Colton subsequently retired and Judge J. Robert Carter, Jr. succeeded him in this office.

 Combined DNA Index System (“CODIS”) is an electronic database that stores the DNA profiles

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of persons convicted of certain crimes as well as DNA retrieved from evidence found at a crime scene. 

Powers v. State, 343 S.W.3d 36, 45-46 (Tenn. 2011) (citing Basics of How CODIS Works, DNA Initiative,

http://www.dna.gov/dna-databases/codis (last visited June 14, 2011)). “CODIS allows State and local

forensics laboratories to exchange and compare DNA profiles electronically in an attempt to link evidence

from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the

system.” Id. at 46 (quoting Banks v. United States, 490 F.3d 1178, 1181 (10th Cir. 2007)).

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Tennessee Code Annotated § 40-30-304

Under the Act, any individual convicted of aggravated rape, among several other

enumerated offenses,

may at any time, file a petition requesting the forensic DNA

analysis of any evidence that is in the possession or control of

the prosecution, law enforcement, laboratory, or court, and that

is related to the investigation or prosecution that resulted in the

judgment of conviction and that may contain biological

evidence.

Tenn. Code Ann. § 40-30-303 (2006). Our Supreme Court has interpreted “any time” to

indicate that there is no statutory time limit and that it does not matter whether the request

was made at the time of trial. See Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006).

A post-conviction court is required to permit DNA analysis if a petitioner meets the

following four qualifications:

(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.

Tenn. Code Ann. § 40-30-304 (2006). Additionally, a court may, at its discretion, order

DNA analysis if it finds that the last three of the above qualifications are met and “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.” Tenn. Code Ann.

§ 40-30-305 (2006).

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When the state challenges the existence of any of the requirements under the Act and

“it is apparent that each prerequisite cannot be established, the [post-conviction] court has

the authority to dismiss the petition.” William D. Buford v. State, No. M2002–2180-CCAR3-PC, 2003 WL 1937110, at *6 (Tenn. Crim. App. Apr. 24, 2003), perm. app. denied,

(Tenn. 2003). Furthermore, “a petitioner’s failure to meet any of the qualifying criteria is

fatal to the action.” Joseph W. Wilson v. State, No. W2006-00685-CCA-R3-PC, 2007 WL

1227469, at *7 (Tenn. Crim. App. Apr. 26, 2007) (citation omitted). See also Jesse Haddox

v. State, No. M2003-00514-CCA-R3-PC, 2004 WL 2544668, at *2 (Tenn. Crim. App. Nov.

10, 2004) (stating that “the trial court must order DNA analysis of such evidence only if a

petitioner satisfies all of the statutory requirements”) (citing Tenn. Code Ann. § 40-30-304).

Our Supreme Court has noted that “the post-conviction court is not required by the Act to

hold an evidentiary hearing in order to decide whether testing should be granted, and,

therefore, the record on appeal may be limited.” Powers v. State, 343 S.W.3d 36, 56 (Tenn.

2011). In order to ascertain the critical facts and evidence from trial, it may be helpful to

look to “the recitation of facts contained in prior appellate opinions.” Id.

The State has conceded that the third and fourth factors of Tennessee Code Annotated

section 40-30-304 have been established. The knife has not yet been subjected to DNA

testing, and because the Petitioner is currently serving out his prison sentence, he is not

seeking testing in order to delay that sentence. See Tenn. Code Ann. 40-30-304(3) & (4); see

also Griffin v. State, 182 S.W.3d at 800 (Tenn. 2006) (holding that the evidence did not

support a conclusion that the petitioner sought DNA testing to unreasonably delay his

sentence when “he had been serving his sentence and continue[d] to do so.”). Therefore, our

analysis must focus on the first and second factors of Tennessee Code Annotated section 40-

30-304.

Tennessee Code Annotated § 304(1)

Under Tennessee Code Annotated section 40-30-304(1), we must determine whether

“[a] reasonable probability exists that the petitioner would not have been prosecuted or

convicted if exculpatory results had been obtained through DNA analysis.” A reasonable

probability is “a probability sufficient to undermine confidence in the outcome.” Powers, 343

S.W.3d at 54 (citations omitted). Although “it is difficult to anticipate what results DNA

testing may produce in advance of actual testing,” we must assume that the DNA analysis

results will be exculpatory. Powers, 343 S.W.3d at 55 (quoting State v. Peterson, 364

N.J.Super. 287, 836 A.2d 821, 827 (N.J. Super. Ct. App. Div. 2003) (other citations

omitted)). The Tennessee Supreme Court held in Powers that “‘the trial court should

postulate whatever realistically possible test results would be most favorable to [the]

defendant in determining whether he has established’ the reasonable probability requirement

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under the jurisdiction’s DNA testing statute.” Powers, 343 S.W.3d at 55 (quoting Peterson,

836 A.2d at 827).

In Powers, the petitioner claimed that the DNA testing results would be exculpatory

if the results were compared with a DNA database and the DNA matched a profile in the

DNA database. Id. at 39. Before Powers, this Court had not allowed DNA results to be

compared with a DNA database as a method of proving exculpatory results. See Sedley

Alley v. State, No. W2006-00179-CCA-R3-PD, 2006 WL 1703820, at *7 (Tenn. Crim. App.

June 22, 2006) (holding that the scope the Post-Conviction DNA Analysis Act of 2001 “is

limited to the performance of DNA analysis which compares the petitioner’s DNA to . . .

biological specimens gathered at the time of the offense”). In Powers, the Tennessee

Supreme Court overruled Sedley Alley, holding that:

[the] Act permits access to a DNA database if a positive match

between the crime scene DNA and a profile contained within the

DNA database would create a reasonable probability that a

petitioner would not have been prosecuted or convicted if

exculpatory results had been obtained or would have rendered

a more favorable verdict or sentence if the results had been

previously available.

Powers, 343 S.W.3d at 39. Here, the Petitioner asserts that, as in Powers, if the knife were

to undergo DNA testing and obtain a match to the DNA database, such a match would

establish a reasonable probability that he would not have been prosecuted or convicted.

We note that the post-conviction court did not have the Powers decision for guidance

at the time of its hearing or ruling. The hearing took place in June 10, 2010. The court

entered its order denying relief on August 30, 2010. The Powers decision was not issued

until June 16, 2011.

In Powers, the Tennessee Supreme Court also made clear that the post-conviction

court has an independent duty to “assess the probative value of the DNA evidence and the

effect it would have on the State’s case.” Id. at 57 n.30. In this case, the post-conviction

court did not make such an assessment. The order denying testing relied solely upon the

second of the four factors. The State contested the first factor before the post-conviction

court and also has asserted this position before this Court. Because the post-conviction court

did not address the first factor in its order, we are unable to conduct appropriate appellate

review of this factor. Accordingly, we hold that this case must be remanded to the postconviction court for that court to assess and make findings as to the first factor in light of the

Tennessee Supreme Court’s Powers decision.

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Additionally, in light of the necessity for remand, we also instruct the post-conviction

court to revisit its findings as to the second factor. This Court has recognized that, in order

to find that a petitioner fulfilled the requirements under the Act, “some physical evidence

must be available and in a proper condition to enable DNA analysis.” Johnson, 2007 WL

852147, at *4. See also Tenn. Code Ann. § 40-30-304(2). Furthermore, Powers now

requires that, if the State argues that the evidence is not in existence or in a condition suitable

for DNA testing, the petitioner must then “present scientific proof demonstrating that DNA

analysis is possible.” Powers, 343 S.W.3d at 59. Thus, we instruct the post-conviction court

to reassess the second factor and make additional findings on the second factor consistent

with the teachings of Powers.

CONCLUSION

Because the post-conviction court did not have the Tennessee Supreme Court’s

opinion in Powers for guidance when it issued its decision in this case, we remand this case

to the post- conviction court for further consideration and findings on the first and second

factors consistent with this opinion.

_________________________________

JEFFREY S. BIVINS, JUDGE

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