### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J une 17, 2003

DANNY R. KING v. STATE OF TE NNESSEE

Direct Appeal from the Circuit Court for Williamson County

No. 102-013 Timothy L. Easter, Judge

No. M2002-02704-CCA-R3-PC - Filed July 24, 2003

The Peti tion er and h is co- defend ant we re conv icted of aggrav ated ra pe and aggravat ed kid nappi ng. The Petitioner appealed, and our Court affirmed the convictions. The Petitioner filed a petition for post-conviction relief, which the trial court denied. Our Court affirmed the denial, concluding that the Petitioner had received effective a ssistance of counsel. The Petitioner then filed a postconviction petition requesting DNA (de oxyribonucleic) testing pursuant to the Post-Con viction DNA Analy sis Act of 2001. After the State responded that no biological evidence was in existence to be tested, the Petitioner requested that the court

appoint hi m new cou

nsel. The trial cou rt denie d both the Petitioner’s post-conviction petition for DNA testing and his request for new c o unsel. Th e Petitioner now appeals, arguing that the trial c ourt erred by denying his post-conviction petition for DNA testing

and by deny ing his r equest for new counsel. Finding no error
, we affirm the judgment of the trial court.

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OHN E VERE TT W IL LI AMS , JJ., joined.

Danny R. King , Nashville, Tennessee, Pro Se.

Michael E. Moore, Solicitor General; Elizabeth B. Marney , AssistantAtt orn ey Gen era l; Ro nal d L. Davis, District Attorney Gene ral; and Derek K. Smith, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The following

facts of the Petitioner’s case we re summar

ized by our Court o n direct

appeal: At tri al, th e st ate pre sen ted ove rwh elm in g pr oof of t he d efe nda nt s’ g ui lt . In the early even ing o f Nove mber 2, 1981, two men abducted the victim from the parking lot of a Frank lin shopping center. They drove her to a nearby

road, raped her, and then tossed her out of their car. Within a brief time, the victim soug

ht help-2-

at a nearby service station, the police were alerted, a nd she was taken to a

hospital for treatment and examination. The defendants were ar rested within a few hours. Two witnesses, present in the parking lot, testified that they heard the victim ’s

scream s, followed the de fe ndants’ car, and reported the license numbe r and description of the car to the police. Tw o o ther witnesses described the victim’s
appearance

and distress at

the busine ss where she sought help after the assa ult. A number of officers testified about details of the investigation and the custody of the defenda nts’ car, the victim’s pur se , her jewelry found in the car, and in the defenda nts’ pockets, and other evidence. Testimony from a serologist and th e treating physician confirme d that the victim had suffered

ab ra si on s a bo ut he r b od y, that live sper matozoa we

re found in the med

ical exami n ation , and the d efenda nts’ clothing bore bloo d stains. T he victim testified and identified the two defendants as her assailants. Defendant

Danny King of fered n o defens e. Defe

ndant Will iam Buford testified essentially that the victim had conse nted. Stat e v. William D. Buford , 1984 Tenn. Crim. App. LEXI S 2759, at ** 3-4 (Tenn. Crim. App., Nashville, Feb. 29, 1984). The Petitioner and his co-defendant were c onvicted of aggrava ted rape and of aggravated kidna

pping. See id. at * 1. The Petitioner appealed, and our Court affirmed the convicti ons. See id. at * 7. The Petitioner filed a petition for post-conviction relief, which the trial
court denied. Our Court affirmed the denial of post-conviction relief, concluding that the Petitioner had received effective assistance of counsel. See Danny King v. St ate , No. 86-23-II

I, 1986 Tenn. Crim. App. LEXI S 2791, at * 4 (Tenn. Crim. App., Sept. 30, 1986).

Pur su ant to the Post-Conviction DNA Analysis Act of 2001, the Petitioner filed a petition requesting “all human biological evidence in the possession or control of the pr osec u tion, law enforc ement, laborat

ory or court which re lates to the investigation and prosecution” of the Petitioner in Case Number J82106. He claimed in the pet ition that “[t]he probability do[es] exist that the [P]etitioner would not have beenprosecu ted or co nvicted i f

exculpatory results had [been] obtained throu gh DNA Analysis.” He further claimed that the DNA ana lys is would ha

ve provid ed him with

a more fa vorable result in h

is case. Accord

ing to the Petitioner , Dr. Pat Wil liams “ca st doubt as to the offense of

[a]ggravated rape” in this case by stating that “he

found no lacerations, abrasions or anything of that nature on the outside of the victims’ pelvis, outside the vagina,” and tha t there “were no vaginal tears or vaginal lac erations.”

The State re sp onded th at there was no human biological evidence in existence for DNA analy sis. The State also “incorporate[d] by r eference . . . the affidavit and attachments filed in William D. Buford v. S tate of Te nnessee, 1101-333 , wherein the State denied the existence of potential DNA evi dence regarding the Co-Defen dant.” Following the State’s response, the Petitioner alleged that the Assistant Public Defender who repres ented him

provided ineffective assistance of counsel, and he requested that the trial court appoint a new attorney. He

further requested that the trial court grant

his petitio n for DNA

analy sis. The Pe

titioner a lleged that the a ffidavit to which the Statereferred stated that the prosecution requested from Vicki Lane, Deputy Court Clerk of the Courtof Criminal Appeals, any r ecords that she may

have. The Petitioner claims that at trial, Dr.-3-

PatWilliams testified that he fo und se men in the victim and that he had two slides regarding the

same. Regar

ding his i neffective assis tance of counsel c laim, the D efenda nt mainta in ed that hi s attorney failed to adequa tely discuss the case

with him or

investig ate the it

ems that c ould possib ly be analyzed for

DNA.

The Post-C onviction

DNA Ana

lys is Act pro vides, in p ertinen t part, tha t

a person c onvicted

of and se

ntenced for the c ommissi on of f irst degree murder, seconddegree murder, ag gravated rape, rape , aggravated sexual battery or rape of

a child, the attempted commission of any of these offenses, any

lesser in cluded of fense of these offenses, or, at the direction of the trial judg e, any other offense, may

at any time, file a

petition requesting the fore nsic DNA

analy sis of any

evidenc e that is in the possession or control of the prosecution, law enforcement, labor atory, or court, and that is relatedto the investigation or prosecution that resulted in the judgment of conviction and that may c ontain biological evidence. Tenn. Code Ann. § 40-30-403. “After notice to the prosecution and an opportunity to respond,” id. § 40-30-4 04, the Act requires a court to order DNA analy sis if the court finds that

(1) [a] re asonable

probabil ity exists that the petitioner would not have been prosecuted

or convicted if e xcul patory re sults had been obtained through DNA analy sis; (2) [t]he evidence is still in e xistence an d in such a condition that DNA analysis may

be conducted; (3) [t]he evidence was never previous ly s ubjecte d to DNA analy sis or was not subjectedto the analysis that i s now requested which could resolve an issue not resolved by pre

vious analysis; and ( 4) [t ]he application for analy sis is made for the purpose of demonstrating innocence and not to unre asonably delay the e

xecution of sentence or administration of justice. Id.

Howeve

r, a cour t may order D NA analy sis if it mak es the fo llowing f

indings: (1) A reasonable probability exists that analysis of the evidence will produc e DNA results which would have rendered the petitioner’s ve rdict or sentence more favora ble if the results had beenavailable at the proceeding lea ding to the judgment of conviction; (2) [t]he evide

nce is still in existenc e and in su ch a con dit ion that DNA analy sis may

be condu cted; ( 3) [t]he evidence was never previously subjected to DNA analy sis, or wa s notsubjected to the analy sis that is n ow reque sted which could resolve an issue not resolved by pre

vious analysis; and (4) [t]he application for analysis is made for the purpose of demonstrating innocence and not to

unreasonably

delay the e

xecution of sentence or administration of justice.-4-

Id. § 40-30-405. The Act also states that “[t]he court may, at a ny time during pr

oceedings instituted under this part, appoint counsel for an indigent petitioner.” Id. § 40-30-407.

We conclude

that the tr

ial cour t did not er

r by deny ing the Pe

ti tioner’s reque st for DNA analy sis. In this case, aggravate d rape is among the crimes for which the trial court must order DNA analy sis if the Petitioner satisfies the statutory requirements. However, the Petitioner’s conviction for aggr avated k idnapping is a crime for which testing is discretionary

. See id. § 40-30-403. The Statemaintained that no human biological evidence was in exis tence f or DNA a nalysis . Alt hough the Petitioner

points out th at the Sta

te had requested a

ny r ecords h eld by the Deputy

Court Clerk

of the Court of Cr

iminal App eals, he failed

to present proof that there was any evidence in existence. Furthermore, we note that the Petitioner has also failed to establish how the DNA an aly sis would have resulted in a more favorable outcome. At trial, the Petitioner offered no de fense. See State v. William D. Buford , 1984 Ten n. Crim. Ap

p. LE XIS 27 59, at * 3. This issue is without me

rit.

We also conclude that the trial court did not err by failing to ap point the Petitioner new counsel. The Petiti oner hasfailed to prove tha

t the tria l court a bused its d

iscretio n by

deny ing his motion for subst

itution of c ounsel. The Petitioner has no constitutional entitlement to the effective assistance of counsel in a post-conviction proceeding. State v. Phillips , 904 S.W.2d 123, 124 (Tenn. Crim. App. 1995 ). In

addition, the Post-Co nviction D NA Analy sis Act of 2001 state s that “[t] h e court may , at any

time durin g proc eeding s institute d under th is part, appoint

counsel for an indigent petitioner.” Tenn. Code Ann. § 40-30-407 (emphasis ad d ed). “[B]ecause the appointment of counsel is discretionary unde r the statute, whether to substitute counsel was also discretionary .” William D. Buford v. State , No . M2 002 -02 180 -CC A-R 3-P C, 200 3 Te nn. Cri m. App . LEX IS 370, at * 18 (Tenn. Crim. App., Nashville, Feb. 12, 2003).

Furthermore, the Petitioner’s primary c omplaints were that his attorney failed to adequa

tely discuss the cas e with him o r inve stiga te the items that may be ana lyzed for DNA. As we

have indicate d, the Petitioner’sargume nt that ce rtain ite ms should be

analy zed for DN

A failed because th e prosecution did not have any of the items in its possession. Moreover, the Petitioner failed t o establish that a DN

A analy sis of the i

tems would have resulted in a more favorable outcome. Thus,

we see no evidenc e in this record supporting the Petitioner’s complaints about counsel or indicating that any conduc tby c ounsel ca used any prejudic e to the Petitioner. We conclude that the Petitioner’s complain ts about c ounsel ar

e without m

erit.

Accordingly , the judgment of the trial court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE