IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 8, 2016

WILLIE ANDREW COLE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2005-C-2386 Steve R. Dozier, Judge

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No. M2015-02087-CCA-R3-PC – Filed September 18, 2016

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Petitioner, Willie Andrew Cole, appeals pro se from the post-conviction court‟s summary 

dismissal of his post-conviction petition for DNA analysis. Petitioner contends that the 

trial court erred by denying his request for DNA testing pursuant to the Post-Conviction 

DNA Analysis Act. We affirm the judgment of the post-conviction court. 

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which D. KELLY 

THOMAS, JR. and CAMILLE R. MCMULLEN, JJ., joined.

Willie Andrew Cole, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel, 

Glenn R. Funk, District Attorney General; and Rachel Sobrero, Assistant District 

Attorney General, for the Appellee, State of Tennessee.

OPINION

Facts and procedural history

Petitioner was convicted in 2007 for premeditated first degree murder and 

tampering with evidence. Defendant received concurrent sentences of life imprisonment 

without the possibility of parole for his murder conviction and six years for his tampering 

with the evidence conviction. His sentences were ordered to be served consecutively to a 

life sentence he was already serving. This court affirmed Petitioner‟s convictions on 

direct appeal. State v. Willie A. Cole, No. M2007-02896-CCA-R3-CD, 2009 WL 

1676054 (Tenn. Crim. App., June 16, 2009), perm. app. denied (Tenn., Oct. 26, 2009). 

This court summarized the facts underlying Petitioner‟s convictions as follows:
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On June 19, 2005, Martha Banks discovered her father, seventyone-year-old Joseph Banks, dead of multiple stab wounds in his 

Nashville apartment. The sixty-five-year-old [Petitioner] lived in the 

next-door apartment of the high-rise retirement building, Edgefield 

Manor, and was interviewed by police investigators as part of their 

canvass of the building. During the interview, which took place in the 

defendant‟s apartment, a police investigator noticed that the defendant‟s 

boot tread appeared to match a bloody shoe print found in the victim‟s 

apartment. The defendant consented to a search of his apartment and 

turned over to the investigator his recently polished boots, which tested 

positive for the presence of the victim‟s blood. A subsequent search of 

his apartment uncovered, among other things, three bottles of shoe polish 

and four bottles of bleach as well as signs of the kitchen floor[ ] having 

been recently bleached. Through conversations with other residents of 

the building, investigators learned that the defendant had been extremely 

jealous and possessive of his girlfriend, had accused the victim of having 

an affair with her, had threatened and assaulted the victim in the past, 

and had stated his intention of killing the victim in the week preceding

the murder. The defendant was subsequently arrested and charged with 

the first degree premeditated murder of the victim and with tampering 

with evidence. 

2009 WL 1676054, at *1. 

Petitioner subsequently filed a petition seeking post-conviction relief alleging that 

his trial counsel provided ineffective assistance. Following a hearing, the post-conviction 

court denied Petitioner‟s petition. This court affirmed the post-conviction court‟s denial 

of relief. Willie A. Cole v. State, No. M2011-01676-CCA-R3-PC, 2013 WL 310208 

(Tenn. Crim. App., Jan. 25, 2013), perm. app. denied (Tenn., June 19, 2013). 

The record shows that on July 23, 2012, Petitioner filed pro se a post-conviction 

petition for DNA analysis. On September 20, 2012, the post-conviction court entered an 

order granting the State 30 days within which to respond. No response by the State or 

order disposing of that petition is included in the record. Petitioner filed another pro se 

petition seeking DNA analysis on June 15, 2015. The State filed a response to the

petition. The post-conviction court entered an order summarily denying relief on October 

7, 2015. Petitioner timely filed a notice of appeal. 

In its order denying Petitioner‟s request for DNA analysis, the post-conviction 

court noted the evidence of Petitioner‟s guilt, including: 
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that [Petitioner] had a motive for killing [the victim] in the form of his 

extreme jealousy of [his girlfriend]; that [Petitioner] believed that the 

victim was interfering with his relationship with [his girlfriend] and had 

assaulted the victim in the past over the issue; that [Petitioner] stated his 

intention [to] kill[ ] the victim approximately one week prior to the 

murder; that the unarmed victim received multiple stab wounds; that the 

victim‟s wallet was still in his pocket after the murder; that the victim‟s 

blood was found on the sole of [Petitioner‟s] boot and on a discarded 

steak knife that appeared very similar to steak knives in [Petitioner‟s] 

apartment; that [Petitioner] had recently cleaned the floors of his 

apartment; and that [Petitioner] appeared calm after the murder and 

expressed no curiosity as to what had happened to the victim. Further, 

TBI Agent Charles Hardy, an expert in DNA analysis, testified that he 

found human blood on one of the two knives found in the apartment 

building‟s trash and on the sole of [Petitioner]‟s left boot, both of which 

matched the DNA profile of the victim. 

The post-conviction court concluded that even if DNA testing was possible and 

was performed, Petitioner failed to demonstrate a “reasonable probability that the 

petitioner would not have been prosecuted or convicted if exculpatory results had been 

obtained through DNA analysis.” T.C.A. § 40-30-304(1). The court also concluded that 

Petitioner failed to show that 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.” T.C.A. § 40-30-305(1). 

Analysis

Petitioner asserts that the post-conviction court erred by denying his petition. The 

State responds that the evidence of Defendant‟s guilt was overwhelming, and the trial 

court properly denied Defendant‟s request for DNA analysis. 

The Post-Conviction DNA Analysis Act of 2001 (“The Act”) allows petitioners 

convicted and sentenced for certain homicide and sexual assault offenses in which 

biological evidence may have existed to request post-conviction DNA testing. T.C.A. § 

40-30-303. The Act contains no statutory time limit and extends to petitioners the 

opportunity to request analysis at “any time,” regardless of whether such a request was 

made at trial:

[A] person convicted of and sentenced for the commission of first degree 

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

Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006) (citing T.C.A. § 40-30-303). A postconviction court is obligated to order DNA analysis when the petitioner has met each of 

the following four conditions:

(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; see also Griffin, 182 S.W.3d at 798. Additionally, if DNA analysis 

would have produced a more favorable verdict or sentence if the results had been 

available at the proceedings leading up to the conviction or sentence, then the postconviction court may order DNA analysis when the petitioner meets the same conditions. 

T.C.A. § 40-30-305; see also Griffin, 182 S.W.3d at 798. In either instance, some 

physical evidence must be available and in a proper condition to enable DNA analysis. 

T.C.A. §§ 40-30-304(2), -305(2).

A petitioner‟s failure to meet any of the qualifying criteria is fatal to the action. 

See William D. Buford v. State, No. M2002-02180-CCA-R3-PC, 2003 WL 1937110, at 

*3 (Tenn. Crim. App., Nashville, Apr. 24, 2003). Moreover, the Act does not specifically 

provide for a hearing as to the qualifying criteria and, in fact, authorizes a hearing only 

after DNA analysis produces a favorable result. See T.C.A. § 40-30-312. 

The post-conviction court has considerable discretion in determining whether to 

grant relief under the Act, and the scope of appellate review is limited. See Sedley Alley 

v. State, No. W2006-01179-CCA-R3-PD, 2006 WL 1703820, at *5 (Tenn. Crim. App., 

at Jackson, June 22, 2006). In making its decision, the post-conviction court must 

consider all the available evidence, including the evidence presented at trial and any 

stipulations of fact made by either party. Id. The lower court may also consider the 
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opinions of this court and the Tennessee Supreme Court on direct appeal of the 

petitioner‟s convictions or the appeals of the petitioner‟s prior post-conviction or habeas 

corpus actions. Id. On appellate review, this court will not reverse unless the judgment 

of the lower court is not supported by substantial evidence. Id.

In the instant case, we find that the post-conviction court‟s summary dismissal of 

the petition for post-conviction relief was supported by the record. The post-conviction 

court reviewed the available evidence, including this court‟s opinion on direct appeal of 

Petitioner‟s conviction. The post-conviction court found “that even if DNA testing were 

possible and performed, the petitioner has failed to demonstrate that a „reasonable 

probability exists that the petitioner would not have been prosecuted or convicted if 

exculpatory results had been obtained through DNA analysis.‟” See T.C.A. § 40-30-

304(1).

In his petition, Petitioner requested DNA testing of the victim‟s fingernail 

clippings and blood smears and prints from the floor and furniture inside the victim‟s 

apartment. Defendant asserted that those items had never been subjected to DNA testing. 

The State does not dispute that the evidence Petitioner wanted tested still exists and has 

never been tested. The State argues that even if DNA testing of that evidence yielded 

exculpatory results, Petitioner still would have been prosecuted, and it would not have 

changed the outcome of the trial. We agree with the State.

Assuming, as we must, that DNA testing would yield favorable results – in this 

case, that someone else‟s DNA would be found on the victim‟s fingernails or in blood 

samples taken from the victim‟s apartment, it would not have changed the outcome of the 

trial. As noted by the post-conviction court, the proof at trial showed: that Petitioner had 

a motive for killing the victim; that Petitioner had previously assaulted the victim; that 

Petitioner had stated his intention of killing the victim one week before the murder; that 

the victim‟s blood was found on a discarded steak knife that was similar to steak knives 

found in Petitioner‟s apartment; that Petitioner had recently cleaned his apartment floors 

with bleach; that Petitioner was calm and showed no curiosity after the victim‟s body was 

found; and that the victim‟s blood was found on Petitioner‟s boot. 

Based on the strength of the State‟s case against Petitioner, we agree with the State 

and the post-conviction court. Because Petitioner‟s request fails to pass the first 

procedural hurdle, it is not necessary to consider the remaining factors because all four 

factors must be satisfied to warrant DNA testing under either provision. Powers v. State, 

343 S.W.3d 36, 48 (Tenn. 2011). Accordingly, Petitioner is not entitled to relief. 
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CONCLUSION

In consideration of the foregoing and the record as a whole, we affirm the 

judgment of the post-conviction court.

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THOMAS T. WOODALL, PRESIDING JUDGE