# FILED
February 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY SESSION, 1998

RICKEY LEE NELSON, ) ) No. 02C01-9607-CR-00223 Appellant ) ) SHELBY COUNTY vs. ) ) Hon. John P. Colton, Jr., Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )

For the Appellant : For the Appellee : Paula Skahan Charles W. Burson Attorney at Law Attorney General and Repor ter 140 North Third Street Memphis, TN 38103 Kenneth W. Rucker Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
William L. Gibbons District Attorney General Ms. Lorraine Craig Asst. District Attor

ney General Criminal Justice Comple x Suite 301, 201 Poplar Street Memphis, TN 38103

OPINION FILED: AFFIRMED

David G. Hay

es Judge1 The record refl ects that although t he appellant was indict

ed in thi s case under the name Rickey Lee Nelson an d all t he pleadings reflect the name Rickey Lee Nelson,he is incar cerated for these crime s unde r the alias “R ussell W ellington, #12 2766.”

2 The rel evant

port ion of t he trialcourt ’s f indi ngs of

fact in its ORDER DENY ING DNA TESTING provides the fol lowing backgrou nd informati on:

The appellant’s convictions for aggravated rape, aggrava ted robbery and burglary [were] based primarily on the vi ctim’s ide ntifi cation of the peti tioner as her ass ailant , while the vic tim’s daug hter in dep end ently c orro bora ted h er m othe r’s identi ficati on of the pet iti oner. Before any unlawf ul events occu rred, bot h mother and daughter had a pr otracted period of non-t raumatic exposure t o the peti tioner in a ligh ted a rea. T heir p ositive ident ificatio n of th e pet itione r as th e m othe r’s assailant

subsequently

resulted.Prior t

o the fir st encounter that the vi ctim and her daughter had with the petit ioner one day

before the mother was assaulted, the victim and her daugh ter claim ed to hav e never seen the petitioner be fore. Therefore, t he victi m and her daughter apparent ly had no motive to all ege false accus ations ag ainst the p etitioner. 2 OPINION

The appellant, Rickey Lee N elson, 1 appeals the denial of his petiti on for postconviction relief and denial of his motion requesting state-fun ded DNA testing. He is currently servi ng an effective twenty- five year sentence in the Department of Correction, resulting

from his 1991 Shelby County convictions for robbery with a deadly weapon, second deg ree burglary, and ag gravated rape. 2 His convictions were affirmed on direct appeal t o this court. See State v. Nelson , No. 02C01-9103- CR-00050 (Tenn. Crim. App. at Jackson, Oct. 2, 1991), perm. to appeal denied , (Tenn. Feb. 24 , 1992). On June 15, 1993, the appellant, pro ceeding pro se , filed the instant petition for post-c onviction relief. On Oc tober 11, 1993, he filed a motion for state-funded DNA testing. After hearings on the merits of the motion and the post-conviction petiti on, the trial court denied the relief sought. The issues presented in these proceedings are consolidated for purp oses of appeal.

In this appeal, the appellant raises the following issues: I. Whether due process requires the Stat e of Tennessee to provide indigent non-capital defendants funding for scientific testingin postconviction proceedings; II. Whether trial counsel was ineff ective for waiving the appellant’s right to a s equester ed jury;3 III. Whether trial counsel was ineff ective for failing to request DNA testing which the appellant contends would have established his innocence; and IV. Whether trial counsel was ineffectiv e for failing to conduct an adequate pre-trial investigation in preparation of the appellant’s defense.
After a review of the iss ues before us, we affirm the trial court’s judgment.

I. Scientific Services for Non-capital Indigent Post-Convictio n Petitioner

The appellant contends that the tri al court’s denial of his moti on requesting state funds for DNA testing at the post-conviction lev el violates both his s

tate and federal rights to due process, because it denies him the ability to establish prejud ice arising from trial couns el’s ineffectiveness. Acco rdingly, the appellant argues that because his constitutional r ight to effective assistanc e of counsel has been impaired, as an indigent, he is entitled to state funding so that he may be provided the opportuni

ty to adva nce this cl aim of constitutional impa irment. Our supreme court has addressed this pr ecise issue and held that “the state is not required to provide expert assistance to indigent non-capital post-conviction petitioners.” Davis v. State , 912 S.W.2d 689, 696-697 (Tenn. 1995); see also Vandygriff v. State , No. 01C01-9603-CC-00089 (Tenn. Cr im. App. at Nashville, Feb. 28, 1997). In Davis , the court noted that in this s tate, there is no rule or s tatute that entitles a non-capital post-conviction petiti oner state funded expert assis tance. Id. at 695. In denying the funding of experts, the court observed the distinctio n between providing indigent defendants the basic tools of an adequate defense at trial and on direct appeal as opposed to those at the post-conv iction level. Consi stent with previous analyses of this distinction, our s upreme court reiterated: [a] direct appeal is the pr imary avenue for rev

iew of a conviction and sentence. Once the process goes beyond the trial and di rect appeal as of right stage, the stat e has no duty to ‘duplicate the legal arsenal that may be privately

retained by a criminal

defendant in a continuing effort to reverse his conv iction.’4

Id. at 696 (citing Barefoot v. Estelle , 463 U.S. 880, 887, 103 S.Ct. 3383, 3391 (1983); Ross v. Moffit , 417 U.S. 600, 616, 94 S.Ct. 2437, 2447 (1974)). In accordance with our supr eme court’s decision in Davis , this issue is without merit.

II. Ineffective A

ssistance of Counsel

Next, the appellant contends that he was denied effective r epresentation of counsel due to cou nsel’s: (1 ) waiver of t he appel lant’s righ t to a sequ estered jury; (2) failure to conduct an adeq uate pre-trial inves tigation in preparation of the appellant’s defense; and (3) failur e to request DNA testing . Initially, we note that the appellant’s challenge r

egarding the waiv

er of a sequestered jury has been previously determin ed by this court on dir ect appeal. See Nelson , No. 02C01-9103- CR-00050. The fact that this issue is now couched in terms of inef fective assistance of counsel is of no consequence. See Overton v. State , 874 S.W.2d 6, 12 (Tenn. 1994) (“to allow ev

ery error committed by

the trial court to be recast in a postconviction petition as an ineffective assistance of counsel allegation would be t

o subvert the limited purpo ses of the post-conviction procedure”). An issue th at has been previously deter

mined on direct appeal cannot support a petition for postconviction relief and is , therefore, excluded. See Tenn. Code Ann. § 40-30-111, - 112 (a)(1990)( repealed 1995); State v. Denton , 938 S.W.2d 373, 37 7 (Tenn. 1996); House v. State , 911 S.W.2d 705, 710 (Tenn. 1995), cert. denied , --U.S.--, 116 S.Ct. 1685 (1996).

A. Standard f

or Determining Ineff

ective Assist

ance of Counsel Before an appellant may succeed in a challenge regarding counsel’s performance, he must show, by a preponderance of the evidence, Taylor v. State ,3 For post-convi ction cl aims filed af ter May 10, 1995, the bur den of proof i s by clear and convinc ing eviden ce. See Tenn. Code A nn. § 40-30-210(f) (1996 Sup p.). 5 875 S.W.2d 684, 68 6 (Tenn. Crim. App. 1993), 3 perm. to appeal denied , (Tenn. 1994), first, that counsel’s representation fell below the range of competence demanded of attorneys in crimina l cases, Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), and, second, that, but for these errors, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied , 493 U.S. 874, 110 S.Ct. 211 (1989) . On post-conviction r eview, there is a s

trong presumption of satisfactory r epresentation, Barr v. State , 910 S.W.2d 462, 464 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995). Moreover, when this court undertakes review of a lower court’s deci sion on a petition for post-conv iction relief, the lower court’s findings of fact are given the weight of a jury verdict and are conclusive on appeal absent a finding that the evidence pr eponderates against the judgment. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied , 441 U.S. 947, 99 S.Ct. 2170 (1979 ); Taylor , 875 S.W.2d at 686.

1. Failure to Adequately Investigate At the post-conviction h earing, the appellant prov ided numerous instances of counsel’s alleged deficient performance to support his cl aim that counsel was ineffective for failing to adeq uately investigat e his case. He maintains tha t trial counsel had insufficient contact w ith him prior to trial

and that trial counsel failed to pursue witnesses that w ould have provided the appe llant with an alibi.The appellant testified that he prov ided counsel with the name of hi s fiancee at the time, Stephanie Johnson, and the names of three c o-workers, Donald M cCorkle, John Warner, and “Joe.” The app ellant asserted that these witnesses could attest to his presence in Jackson, Tennessee, on the day of the instant offenses. None of these potential alib i witnesses testif ied at the post- conviction hearin g.6 Trial counsel testified that he met with the appellant eig ht times between arraignment and trial. With regard to the potential alibi w itnesses, counsel stated that, prior to the instant pr oceeding, he had never hear d of Donald McCorkle, John Warner, and “Joe.” He conceded, howev er, that the appellant did prov ide him with the names of two witnesses,Stephanie Johnson and Harry Shaw. Through an investigator, counsel

did contact Stephanie Johnson. J ohnson indicated that she could not recall the specific day in question and that she would not lie for the appellant. The investigator, despite diligent efforts, was not able to locat e Harry Shaw.

The trial court concluded that trial counsel’s inv

estigation of potential alib i witnesses was not de

ficient. We agree. When an appellant contends that trial counsel failed to locate potential witnesses in support of his defense, he bears the burden of presenting these w itnesses at the post-conv iction evidentiary

hearing. Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Before he c an be entitled to relief on this ground, the appellant must produ ce a material witness(es) who (1) cou ld have be en foun d by a reaso nable inve stigation and (2) wou ld have testified favorably in s upport of his defense if called. Id . If the appellant fails to present such witnesses,he fails to establish the prej udice prong mandated by Strickland v. Washington , supra
. Black , 794 S.W.2d at 758. This issue is without merit.

2. Failure to Request DNA Testing The appellant argues that counsel was ineffective for f ailing to request DNA testing p rior to tria l. He conce ded that counsel, before t rial, did r equest an d receive funding for serology tests that would permit ABO blood type comparisons. However, the appellant stated that he req uested that counsel look into the possibility of obtaining DNA testing . Counsel explained to th e appellant that DNA testing “was very expensive,” that “it took quite some time to get the results back,” and could4 These tests are possi ble only if the a ccused is a secret or, i. e., i f the accused i s a person whose ABO blood type ca n be detected i n his body f luid secr etions. Because the appel lant was a nonsecretor, the tests were inconcl usive. 7 either “exclusively exclude him” or could “point the finger right between his eyes.” After this explanation, tr ial counsel was unable t o obtain a definitive respons e from the appellant as to whether he wanted to pursue DNA tes ting. Counsel maintained that he “never would h ave requested [DNA tes ting] without [the appel lant] wanting it.” Additionally, counsel testified that, at the time of the a ppellant’s trial, “[DNA evidence] had [not] been ruled as admissible by a Tennessee court.” On the first day of trial, the appellant l earned that the results of the ABO b lood type grouping 4 were inconclusiv

e. At that point, the appellant s tated that he wanted DNA testing. Counsel then moved for a continuan ce of the appellant’s scheduled tr ial in order that DNA testing could be per formed. This motion was denied.

The appellant now claims that counsel’s failure to insi st upon DNA testing amounted to ineffectiveness because the only issue at trial was the perpetrator’s identity and because the DNA evidence would hav e exonerated the appellant. Thus, he argues he was prejudiced by counsel’s failure to zealously represent his client’s interest in obtaining DNA analysis.

The State cites, as dispositive of this issue, an unpublished op inion of this court, Mitchell v. State , No. 01C01-9507-CR-00227 ( Tenn. Crim. App at Nashvil le, May 9, 1996). We agree that Mitchell is applicable to the prese nt case. In Mitchell , as in the present case, a secretor test was performed pr ior to the defendant’s trial. Id . The results of the testing w ere inconclusive. Id . Trial counsel testified tha t he did not request a DNA tes t because he did not wish t o risk creating ev

idence that would implicate the defendant. Id . Judge Welles, writing on behal f of this court, determined that “the issue conc erning the DNA test. . .fall[s] under the category of trial tactics. Counsel’s decision not to pursue a DNA test was based on a realistic apprehension of creating detri mental evidence that did not ex ist. . . . [W]e do not5 At the ti me of the appell ant’s t rial,a separate pret rial h earing wi th an expert to establ ish the DN A eviden ce’s reliability was neces sary prior to its a dmis sion. See State v. Ha rris , 866 S.W.2d 583, 586-87 (Tenn. Cri m. App. 1992). However,as to cri mes comm itted after Jul y 1, 1991, ou r legislature m ade D NA evid ence a dmis sible withou t a prior hea ring. See Tenn. Code Ann. § 2 4-7-117 (1991 S upp.). See also State v. Edwards , 868 S.W .2d 6 82, 6 97 (T enn . Crim

. App. 1993). Thus, our revi ew requires a con temporaneous assessment of counsel’ s alleged deficien t performance. 8 second guess the trial tactics of counsel.” Id

.

In the case sub judice , considering that the appellant refused to supply counsel with a definitiv e answer regarding

the testing, that the testi ng could be detrimental as well as

exculpatory, and that,at the time of the trial, DNA testing was considered a novel issu e whose admissibility and reliability w

ere questioned by Tennessee courts, 5 see State v. Overbay , 806 S.W.2d 212, 214 (Tenn. Crim. App. 1990), we cannot conclude tha t counsel’s decision not t o pursue DNA testing amounted to deficient performance. See Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). O ur dispositio n of the de ficient performa nce pron g of Strickland makes an analysis of the prejudice prong unnecessary. H owever, our rev iew of this issue indicates that it is als

o impossible to establish that the appellant was prej udiced by the error alleged. To est ablish prejudice, the appell ant was required to s how that there is a reasonable probabi lity that, but for counsel’ s deficient performance, the result of the proceedings w ould have been different. Strickland , 466 U.S. at 694, 104 S.Ct. at 2068. For this court to conclude that there exists a “reasonable probability” that DNA test results would have exonerated the appellant of guilt would require us to engage in sheer speculation. For these reasons, we find this issue without merit.

Conclusion

After a review of the iss ues before this court, we affir m the judgment entered by the trial court.9 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_______________________________ JOE B. JONES, Pres iding Judge

_______________________________ JOE G. RILEY, Judge