# FILED

March 6, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE DECEMBER 1999 SESSION

JOHNNY RUTHERFORD, ) ) Appellant, ) No. E1999-00932-CCA-R3-PC

) ) Anderson County v. ) ) Honorable James B. Scott, Jr., Judge ) STATE OF TENNESSEE, ) (Post-Conviction: Ar med Robbery, Aggrav

ated ) Kidnapping, and Aggrav ated Rape) Appellee. )

For the Appellant : For the Appellee : Johnny Rutherford, Pro Se Paul G. Summers NECXU09-00114033 Attorney General of Tennessee Northeast Correctional Complex and Post Office Box 5000 Ellen H. Pollack Mountain City, Tennessee 38583 Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243 James N. Ramsey District Attorney General and Janice G. Hicks Assistant District A

ttorney General 127 Anderson County Courthouse 100 North Main Street Clinton, Tennessee 37716

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge

O P I N I O N

The petitioner, Johnny Ruther ford, appeals as of right the Ander son County Criminal Cour

t’s denial of his petition for post-conviction reli ef. He seeks relief2

from his 1986 convictions for armed robbery, aggr avated kidnapping, and ag gravated rape. He was sentenced as a habitual offender to concurrent l ife sentences for the armed robbery and aggr avated rape convictio ns. He received a forty -year sentence for the aggravated kidnapping conviction, which is consecutive to the life sentences. This court affirmed the convictions for armed robbery, agg ravated kidnapping, and aggravated rape on dir ect appeal but vacated an escape conviction. State v. Johnny Rutherford , No. 176, Anderson County ( Tenn. Crim. App. Mar. 15, 1988) , app. denied (Tenn. May 31, 1988).

In this ap peal, th e petitio ner conte nds that he receive d the ine ffecti ve assistan ce of cou nsel beca use his at torney:

(1) failed to chall enge the warrantless sei zure of blood-stained carpet from his car; (2) failed to challenge false statements in t he affidavit supporting the search w arrant for his blood sample; (3) failed to challenge the c hain of custody of the body specimens before trial or to preserve this issue for appeal; (4) failed to object to improper judicial conduct; (5) f ailed to object to a constructiv e amendment of the indictment during the jur y charge; (6) failed to r eque st the trial court to in struct the jury on the lesser included offenses of

aggra vated rape and aggrav ated kidnapping and the definitions of “intentional ly” and “knowingly”;and, (7 ) failed to object to the trial court’s instruction that n o tw o sets of fingerprints are al ike. The petitioner requests a r emand based upon the trial court’ s failure to make factual findings and legal concl usions on two additional claims of ineffective assistanc e of counsel: (1) that his attorney failed to arg ue the s earch and seizure

issue effectively and (2) tha t his at torney failed to challeng e an officer’s testimony regarding tire prints. The petitioner also contends that the trial court erred i n denying his reques t for funds for a DNA test. We affirm the deni al of pos

t-conv iction relief.

The petitioner filed a pro se petition on March 3, 1991, w hich was amended by appointed counsel. Fol lowing an evidenti ary hearing on Nov ember 19,3

1992, the trial court denied the petition, finding that m ost of the petitioner’s issues were previously determin ed on direct appeal, that proof of the pet itioner’s identity was overwhelming, and th at the petitioner’s attorney exercised reasonable s kill and diligence. This court r

eversed and remanded the case for another evidentiary he aring to allow the petitioner

to present additional wi tnesses and to permit the tri al court to make additional factual findings. Johnny Rutherford v. Stat e , No. 03C01-9306-CR00186, Anderson County (Tenn. Crim. App. Dec. 6, 1994). Af ter the second evidentiary hearing on November 4, 1996 , the trial court denied the petition.

The following account of the facts appears in this court’s opinion in the direct appeal: [A]t 2 a.m. on the day in question, the victim was w orking the late shift at the G i t ‘n Go convenience market in Clinton, Anderson County. A male entered. He presented a revolver. He had a brown and ora nge ski mask over his head. He shook his gun at her and said, “Y ou kno w what I want. ” She gave him the available money and eight $1 food stamp coupo ns. Not satisfied with the money , he forced her at gunpoint to accompa ny him to h is car park ed a short distance away. After practically stuffing her into his car, he drove for about one-half hour, stop p ing at a deserted area. He forcibly penetra ted h er vaginally w hile threatening her w ith anal penetration as well as fellatio. He dis played two handguns during the encounter. On the return tr ip he released her; she fled to the nearest hou se, fr

om which the police w ere called. She described the vehicle of her abductor as “dark in color”, “old and large”, with a “

spider-web” like crack in its winds hield. She told authorities

that two “clutch pin k

eepers” fell into

the seat of the car after her assailant had yanked the name tagfrom her smock. A short time later, officers observed a car fittin g the description and followed it. They noticed that its license plate was not plainly visi ble. Additional ly , the car was weav ing across the road. They stopped the car. The defendant, the sole occupant, was removed from th e car, searched, and p laced in the police vehicle . The officers recover ed fro m defendant an am ou nt of currency which nearly matched the denominational descripti on of the money taken from the

victim. A quick “once over”

of the vehicle yielded

eight $1 food stamp c oupons, a quantity of .38 caliber and .22 caliber cartridges. Two “clutch pin keepers” such as wo uld be used to attach a name tag were found in the fold of the front seat. The investigation conti nued, aided somewhat by a light dusting of snow whic

h made the tire tracks left by the vehicle easyto follow. Along the route taken by the abductor’ s vehicle, Officer Humphrey recovered a flashlantern, a br own and orange ski mask, a brown pa per bag, a .22 caliber pistol, a .38 caliber pistol, an d a da rk jacket, each of which was identified4 bythe victim as being s imilar to those which she had observed the assailant wear or use on the night in questi on. The victim was trans porte d to an emergency medical facility for examin ation and treatment. Personnel there observed bruises a nd scratches on the inner por tion of the victim’s thighs as well as on her forehead. Also visible to them was a cut on her toe. They descr ibed he r as “tearful and upset.” A fingerprint exper

t compared a latent print lifted from the flashlantern battery to the known pri nts of the defendant. He found 12 pointsof comparison, concluding ther efrom that the prints on the flash l antern battery were those of the defendant. A forensic serologist testified that a comparison of body fluids obtained from the defendant and the victim indicated

that the victim has ABO type A blood, and her body produces the A and H antigens only. On the other hand, the defendant has ABO type AB blood, and his body produces the Bantigen o nly. His investigati on fo und the presence of the B antigen i n the victim’s flui ds, concluding therefrom that the B antigen in her fluids was deposited by a per son with ABO type AB

or B blood. In his statement to the police on February 13, defendant said that after drinking at home, he left Knoxville at about 11:00, drove to Clint on via Oak Ridge, and went to a Moore Street address to meet someone. Failing to find that person, he drove to ward Lake C ity. The defendant’s wife testified that she w as with him from 10 p.m. on the night in ques tion until 2:00 or

2:30 the next morning. She said that the “clutch pi n k eepers” recovered in the car could belong to her children. Kathy Copock, a neighbor

whose trailer home is within view of the defendant’s trailer home testi fied that she saw the defendant at 2 a.m. on the morning in q uestion. Defendant’s step daughter, Angie Wilson, testified that she saw the defendant at 2: 15 a.m. on the morning in question. As a witness in his own behalf, the defendant swore that he left his trailer

“around 2:30, sat on the side of the river for a whil e . . . and then went from there t o Lake City and t hat’ s where I got sto pped.” He explained that the “clutch pin keepers” probably belonged to his daughter, and tha

t the flashlantern was in his car w hen it was

impounde d by the police. He admitted to having seen the vict im in the convenience store on prior occasions, but denie d that he robbed, abducted, or raped her. State v. Johnny Rutherford , slip op. at 2-5.

At the November 19, 1992, post-conviction evidenti ary hearing, the petitioner’s attorney testified that he represented the pe titioner at trial and on direct appeal. He said that he met w ith the petitioner twenty to thirty times. He said that on5

four or five occasions, he di scussed plea options with the petitioner. He said it was possible that only tw

o of the meetings lasted for forty -five minutes or more, but he doubted it. He said he believ ed the state’s case was w eaker at trial than he had anticipated it would be because the victim’s testimony was tentative, but the state’s case remained circumstantial ly strong. He stat ed that the state had ten to fifteen pieces of circumstantial physical evidence that indicated either the petitione r or his car were present at the robbery. He said he presented an alibi defense that the petitioner had a domestic dispute with hi s wife at the trailer pa rk, took a drive to co ol off, and barely had time to arrive at the place where the police stopped him. He agreed that the petitione r’s conviction rested on legal and constitutional issues decided in the motion to suppress evidence from the petitioner’ s car.

The attorney testified that at the pretrial suppression hea ring, he argued that the police did not have probable cause to stop the petiti oner’s car. He said that on the night of the incident, tw o officers stopped the petitioner, p laced him in the back of the patrol car, and searched his car. He said the officers testified that they did not consider the petitioner to be under arrest at this point but that he was not free to go. He said that he tried to stres s the problems with the ti ming of the search at the suppres sion hearing. He said the tr ial court ruled that probab le cause to stop and search ex isted because the officers could have charged the petitione r with driving under the influence of an intoxicant (DUI).

The attorney agreed that the affidav it supporting the search warrant for the petitioner’s blood sample stated that the victim had iden tified the petitioner by his voice. He said that this voice identification was not substantiated by the victim’s testimony at trial.

The attorney testified that fing erprints were taken from a battery inside a flashlight found by inves tigating officers on the morn ing of the crime. He stated that he did not see an enlarged photog raph of the fingerprints or a comparison of the fingerprints from the battery with those of the petitioner. He said he only had the opinion of the state’s fingerpr int expert. He said th at the expert did not brin g the photographs to trial. H e said he did not have funds to hi re his own fingerpri nt expert.6 The attorney testified that he di d not know if a break in the chain of custody for the rape kit existed. He said he did not remember the petitione r asking him to subpoena an in mate wh o work ed in the jail ki tchen an d who pu rported ly coul d testif y that the rape kit was kep t in the jail’s refrig erator.

At the first hearing, the petitioner testified that he w as incarcerated for eleven months after his arre st in this case. He sai d he saw his initial attorney three times before and during his pr eliminary hearing. The petitioner said that after hi s trial attorney was appointed, he spoke to his trial attor ney a number of times when the attorney was at the jail visiting other inmates, but his attorney only came to see him twice. He said the st

ate’s evidence should hav e been used against someone else.

At the second evidentiary hearing on November 4, 1996, the petitioner’s attorney testified that he di d not remember if he objected specific ally to the removal of the blood-stained carpet from the pe titioner’s car. He s

aid he filed an objection to everything taken from the petitioner’s car based up on the warrantless sear ch of his car. He said he remembered challeng ing the affidavit to the sear ch warrant for the petitioner’s blood sample. He said he objected to an amendment of the es cape indictment at trial, but he di d not recall having a ny problems with the j udge’s instructions to the jury. He said he informed the petitioner of his habitual of fender status. He said they knew the petitioner was risking a life sentence with any felony conviction. He stated that he did not ask the jud ge to charge any les ser included offenses because he did not want to create the po ssibility of a compromis e verdict.

Mark Wills testified that he was a patrol off icer with the Lake City Police Department in 1986. He said he did not recall having a manual on policies and procedures for stops and searc hes. He said he normally would notify the dispatc her when he was stopping someone, but he did not remember if he did so in the petitioner’s case. He said that on the nig ht of the incident, he stopped the petitioner’s car close to the time that he received a di spatch to be on the lookout for a dar k, older-model car. He agreed that the stop of the petitioner went from being a tr affic stop to an investigatory s

top because his focus for stopping the petitioner turned from the petitioner’s license plate to the dispatch information. He said he assisted in the search7

of the petitioner’s car after the petitioner was placed in the patro l car. He said he did not get authorization from a supervisor before search ing the car. He said he thought that one of the officers searched the petitioner’s trunk. He ag reed that the petitioner could not have reached a w eapon, destroyed any ev idence, or driven aw

ay in the car during the search. He s aid that officers arrested the peti tioner at the scene and took him to jail.

Officer Danny Humphrey of the An derson County Sheriff’s Depar tment testified that he arrived on the scene only minutes after of ficers stopped the petitioner’s car. He said he searched the car based upon the traffic sto p and found clutch pin keepers in the crease of the front s eat. He said he did not inv entory the car nor did he have a search warrant. He said that he would normally search for a weapon, but he did not remember if he had been searching for one in this case. He ag reed that he testified at the preliminary heari ng that he was searchi ng for evidence. He sai d he did not remember if the food stamps were found in the petitioner’s car or shirt. He said he later found some clothing, including a ski mask, at an area called the “turkey shoot.” He said he did not remember talking t o the victim or giv

ing information to Officer Scarbo ro to be used to obtain a search war rant for the petitioner’s bl ood sample.

Officer Humphrey testified that he brought the tires f rom the petitioner’s car to trial. He said that the tires were evidence and that he did not have a search warrant to remove them fro m the car. He said he broug ht the tires to court in or der to compare them to photographs of tire prints. He said that hi s only training i n identifying tire prints occurred a

t the police academy in 1983.

Officer Dorman Scarboro testified that he vaguely remember ed investigating the kidnapping and rape of the vi ctim on February 13, 1986. He stated that he did not recall getting the search warrant for the petitioner’s blood sample. He said he did not know if the petitioner had been in the vi ctim’s presence before he sig ned the affidavit. He said that if he had stated in the affidavit that the victim identified the petitioner as the perpetrator of the crimes, then it was true. He said he was not aware that the victim did not identify her assailant in her statements and test imony. He said he was sure that the judge who signed the search warrant had questioned him8

regarding the affidavit.He said he told the truth w hen he signed the affidavit in fr ont of the judge.

Richard Foschino testified that in February 1986, he was a detective w ith the Anderson County Sheriff’s Department. He said that although Lake City officers stopped the petitioner, he w as in charge of the inves tigation. He said the C linton Chief of Police sent him evidence i n the case, which he sent t o the Tennessee Bureau of Investigation (TBI), but he did not recall wha t type of evidence this w as. He said he normally prepared the ev idence for the TBI lab. He stated that he stored blood evidence and rape kits in a locked refrigerator in the kitchen at the courthouse. He said that only he, the Sheriff, and may be another investigator had keys to the refriger ator. He said that if an inmate trustee said he saw evidence i n the refrigerator, then the trustee was wrong . He said he would hav e been able to tell if someone had tamper ed with the lock.

Detective Foschino tes tified that he remembered the carpet be ing removed from the petitioner’s car but that he did not remember i f he removed it or watched som eone else rem ove it. He agreed that

the petitio ner was in

jail at the

time the carpet was removed and therefore could not harm the officers or destroy the evidence. Detective

Foschino said he assumed that he would have been looking for evidence in the car. He stated that he might have been taking photographs of th e car. Following the ev

identiary hearing, the trial court found that the petitioner failed to show either deficie ncy or prejudi ce and de nied the petiti on for pos

t-conv iction relief.

I. INEFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner contends that he rec eived the ineffective assi stance of counsel. When a claim of ineffective assistance of counsel is made under the Six th Amendment, the burden is upon the pet itioner to show (1) that counsel’s performance was deficient an d (2) that the de ficiency was prejud icial in terms of rendering a reasonable pro bability that the result of the tri al was unreliable o r the proceedin gs fundamentally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct.838, 842-44 (1993). The Strickland standard has been applied to the r ight to counsel under Art icle I,1 For post-convi ction pet iti ons fil ed after May 1 0, 1995, pet iti oners have the bur den of provi ng factual allegations by clear and convincing evidence. Tenn. Code A nn. § 40-30-210(f). 9 Section 9 of the Tennessee Constituti on. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court held that attorneys should be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel’s conduct, a “fair as sessment of attorney performance r equires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to ev aluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).

We also note that the ap proach to the issue of the ineffective assistance of counsel does not have to start with an analysis of an attorney’s conduct. If preju dice is not shown, we need no t seek to determine the vali dity of the allegations ab out deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.

The pet itioner m ust show bo th defic iency and prejudic e by a preponderance of the evidence. 1 See Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). Since the creation of post-convicti on procedures, the findings of the trial court in a post-c

onviction case have been given the weig ht of a jury verdict. See Janow v. State , 4 Tenn. Crim. A pp. 195, 200, 470 S.W .2d 19, 21 (197 1). Our longstanding standard of review on appeal bound us to the trial court’s findings of fact unless we concluded that the evidence preponderated ag ainst those findings. Black v. State , 794 S.W.2d 752, 75 5 (Tenn. Crim. App. 1990). Our traditional standard prevente d us from reweighing o r reevalua ting the e vidence, or substit uting our own inferences for those drawn by the trial court. Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997) (reviewing the issue of the ineffective assistance of counsel). Ques tions10

concerning the credibility of witnesses and the weight and value to be given to their testimony were resol

ved by the trial cour

t, not this court. Id. This court has held that it would give du e defere nce to th e trial cou rt’s find ings regard ing the ine ffecti ve assistance of counsel under the w ell-settled standard set for th in Henley

. Richard C. Taylor v. State , No. 01C01-9707-CC-00384, Williamson County, slip op. at 26 (Tenn. Crim. App. July 21, 1999)

.

While reaffirming the Henley standard for purely factual i ssues, our supreme court recently s tated that “the issues of deficient performance by counsel and possible prejudice to the defense are mixed questions of la w and fact” requiring

a de

novo review by thi s court. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). We do not believe that the supreme cour t intended in one sentence, wi thout further discussion, to overrule sub silentio over thirty y ears of jurisprudence reg arding the standard of rev iew in post-conviction ca

ses. Thus, we believe that the standard of review remains whether the evidence preponderates against the trial court’s finding that the petitioner r eceived the effective assistance of counsel . In any event, we believe that either standar d yields the same result in this cas e.

1. Blood-Stained Ca rpet The petitioner contends that his attorney was ineffectiv e for failing to challenge and appeal the w arrantless removal of bloo d-stained carpet from the petitioner’s car after the Anderson County Sheriff’s Depa rtment impounded the car. He states that the Sheriff’s Department impo unded his car and inventoried its contents, searched the car and dusted for fingerprints on anoth er occasion, and removed a piece of carpet on a third occasion, a ll without a search w arrant. He argues that h is attorney failed to object to the state’s use of the blood-stained carpet at trial. Alternative ly, the petitioner argues that ev en if his attorney objected t o the warrantless sear

ch and seizure of evidence from hi s car, his attorney di d not cross-examine the officer who conducted the warrantless search of the car. He clai ms that this relieved th e state of its burden of proving that the s eizure of the carpet fell w ithin the inventory exception to the warrant requirement. He also argues that his attorney failed to address this issue in his direct appeal. The state contends that the issue of the warrantless seizure of evidence from the petitioner’s car has been previously deter mined on direct appeal.11 The trial court found that the tri al attorney raised the i ssue of the bloodstained carpet and that it w as fully addressed in the pr etrial suppression heari ng. The court also found that this court reviewed the issue

on direct appeal and affirmed the admissibility of the ev

idence. The court found that the petit ioner had produced no additional evidence to suppo rt his contentions.

The issue of whether the carpet should have been suppressed w as previously determin ed on direct appeal. Tenn. Code Ann.§ 40-30-112(a) (repealed 1995). With regard to the initial stop of the petitioner, this court held on direct appeal:

Two Lake City officers observed that defendant’s automobile matched the description of the perpetrator’s. It was weavingas though the driver was i ntoxicated, and the license plate was not readable. These observations wer e sufficient to justify the initial stop. After the stop, the officers observed other things in and about the automobile (the windshiel d was cracked, as described by the v ictim, pis tol cartridges were observed in the back of the automobile) which furnished them wi th p robable cause to arrest the defendant and to search incident to the arrest. State v. Johnny Rutherford , slip op. at 10 (citatio ns omitted). The court noted that the petitioner’s detention in the back of the patrol car consti tuted an arrest. Id. at 11. The court also held: In his motion to suppress defendant al so challenges the warran tless search and seizure of items from the automobi l e aft er it had been impounded. The initial search incide nt t o defendant’s a rrest was proper and therefore the subsequent sea rch at the impound lot was also pr oper, because the justification to conduct such a warra ntles s search did not vanish once the car had been immobilized. Floridav. Meyers , 466 U.S. 380, [ 382, 104 S. Ct. 1852, 1853] (1984); Capps v. State , 505 S.W.2d 727 (Te nn. 1974). Id. Thus, this court’s opini on on direct appeal confirms the t rial court’s finding that the attorney raised the iss ue of the blood-stained carpet at th e suppression hearing and on appeal.

The petitioner has also failed to show how he was prejudiced by his attorney’s decision not

to cross-examine Detec tive Foschino. Detective Foschino either removed the carpet from the petit ioner’s car or was present when another officer removed it at the impound lot. Once the state established that the initial search w

as proper, then the subsequent sear ches of the impounded car were al so proper. Officer Foschino was not present when the petitioner was stopped or at the initial search. His12

testimony could reveal

nothing about the propriety of the initial search. Thus, the petitioner suffered no prejudice as a result of h is attorney’s decision not to crossexamine Officer Foschino.

The petitioner argues that hi s attorney was ineffectiv e for not requiring the state to show that it had r easonable cause to impound the petiti oner’s car. The “routine inventory search of an aut omobile lawfully impounded” is an exception to the w arrant requirement. South Dakota v. Opperman , 428 U.S. 364, 365, 96 S. Ct. 3092, 3095 (1976). The inventory search pursuant to a law ful impoundment is justified by the need to protect the owner’s property while in police custody, the need to protect police against claims of lost pro perty, and the need to protect police from potential danger. Opperman , 428 U.S. at 369, 96 S. Ct. at 3097. Our supreme court has delineat ed guidelines for determining whether an impoundment is law ful, and thus, a subsequent inventory search v

alid. Drinkard v. State , 584 S.W.2d 650, 653 (Tenn. 1979). In Drinkard , the court stated that:

[I]f the circumstances that bring the automobile to the attention of the police in the first plac e are such that the driver, even though arrested, is able to make his or her own arra ngements forthe custody of the vehicl e, or if the v ehicle can be parked and loc ked without obstructing traffic or endangering the public, the police shou l d permit the action to be taken r ather than impound th e car

against the will of the driver and then search it. Just cause to arres t the driver

is not, alone, enough; there must be reasonable cause to take his vehicle into custody. Id. The burden of proving the propriety of the impoundmen t and subsequent search rests with the party

seeking to introduce the fr uits of the search. Id. (citation omitted). The petitioner contends that no ev idence exists that he w as given the opportunity to make other arrangements for the custody of his car. He also claims that n o evidence exists regarding

whether he could have pa rked and locked his car w ithout obstructing traffic or endangering the public.

We believe that the issue of whether the c arpet seized from the car should have been suppressed does not turn on the reasonableness of the impoundment. The validity of the warrantless search es of the car at the impound lot stems from the lawful sear ch of the car i ncident to th e petitioner ’s arrest, not from a prior inventory s

earch. Furthermore, despit e the officers’ failure to consult the petitioner13

about an alternative to impoundment , the impoundment appears reasonable and necessary. No one was present at the scene to take control of the car. The pet itioner, the car’s sole occupant, had been arrested and taken to jail. Additionally, the presence of snow on the roads and the earl iness of the hour do not sugges t that it was safe to leave the car parked along the side of the road. The petitioner has not shown that he was prejudiced by hi s attorney’s failure to explore the propriety of the impoundment.

2. False Statements in A ffidavit The petitioner contends that his attorney was ineffectiv e for not seeking the suppression of his blood sample, which he claims was obtained with a search warrant based upon an affidavit containing false statements. He asserts that the affidavit falsely states that the victim identified him b y his voice in the affiant’s presence, that food stamps taken in the robbery were found on his pe rson, and that the victim could identify the food stamps as those taken in the robbery. He also argues that the use of his name in the affidavit falsel y indicates that the v

ictim identified him as the perpetrator of the crimes. H e contends that the remaining s tatements in the affidavit do not provide probable cause to issue the warrant. The state contends that the petitioner has failed to show prejudic e because a search warr ant would have been forthcomin g based upon the circumstantial ev idence of the petitioner’s gu ilt that the police had at the time the warrant was

issued.

The petitioner’s attorney read the affidavit into evidence at the first evidentiary hearin g:

[The victim] who wa

s a clerk at the

[G it]-N-Go market in Anderson County told affiant that Jo hnny Ruther ford came

into the store at 2: 00 a.m. on Friday, [February ] 13 th , 1986, and forced he r to give him the store’s cash and food stamps by thr eatening her with a gun. And he then kidnapped her an d raped her atgunpoint. [Thevictim] stated that Rutherford wore a ski mask, and she can identify John ny Rutherford by his voice and has done so in the p resence of affiant. . . . . Officer Humphreys of the And erson County Sheriff’s Departmenttold affiant he recovered a ski mask about one a nd a hal f miles from the scene of the rape. [The v ictim] has identified this as themask worn by the robber/kidnapper/r apist. [The victim] has furnished blo o d a nd saliva, hair and vaginal specimens to the police. T h e TBI crime laboratory in Nashville has told affiant and other officers that the laborato ry, u pon receiving such sampl es from rape victims, can mak e a determination withi n a reaso nable degree of probab ility [on] the14 identity of the rapist if they rece ive hai r, saliva and blood samples from a suspect. Joh nny Rutherford has voluntarily supplied pubic hair samplings [sic] to officers but refused to supply other specimens. Food stamps identified by the v icti m as taken in the robbery, found by

Officer Humphreys on Johnny Rutherford’s possession or

person–[(the attorney interjectsthat he cannot read this word)–a]t approximately 3:40 a.m., according to w hat Officer Humphreys told me, Affiant, D JS. Officer Dorman Scarboro testified that he was the affiant.

The trial court found that the attor ney objected to the affidavit t o the search warrant for the pet itioner’s blood sample on the morning of the trial, but it ruled that his objection came too late. The court fou nd the record to be devoid of evidence that the voice identification statement is false. It not ed that on the morning of the trial, the petitioner’s attorney argued that at the prelimi nary hearing, the v ictim testified that she could not recogniz e the petitioner’s voic

e. Noting that the attorney did not represent the petitioner at the time of the prelimina ry hearing, the trial court found his statement to be hearsay. The cour t found that the record contained no ev idence from the victim about identify ing the petitioner in per son. It found that Officer Scarboro had no independent recollection of the fact s in the affidavit. The court c oncluded that the
warrant was va lid on its face regarding the voice identification.With regard to the food stamps, the court found:

There is a statement in the search warrant that the food stamps were found on the person of the [petitioner] when the proof is that the food stamps were found over the sun visor

in the vehicle. The petitioner was arrested in the vehicle and the petitioner

claims that the food stamps belonged to his w ife. The fa ct that the food stamps were found in the vehicle occupied by the petit ioner i nstead of being on his person a ppears to this Court to be a minor misstatement and woul d not diminish . . . the determin ation of probable cause. The court found that the petitioner w as not prejudiced by the at torney’s failure to file a motion to suppress the blood sampl e.

Our supreme court has defined tw o situations in which false information within the supporting

affidavit requires the appl ication of the exclusionar y rule despite the aff idavit’s f acial suf ficienc y:

(1) a false statement made with intent to deceive the Court, whether material or immaterial to the issue of probable cause, and15 (2) a false statement, esse nt ial to the establishment of probable cause, recklessly made . Re cklessness may be established by showing that a statement was false w hen made and that affiant did not have reasonable groun ds for believing it, at that time. State v. Little , 560 S.W.2d 403, 407 (Tenn. 1978) . Thus, even an immaterial st atement in the affidavit will result in exclusion of the evidence if the statement is intention ally false. However, neg ligence or innocent mist ake is insufficient to justify exclusion. Id. at 406-07.

The record reveals that th e petitioner’s attorney filed a motion to reconsider suppression tw o days before the trial. Thi s motion included the contention that the affidavit used to obtain the search warrant fo r the petitioner’s blood sample falsely stated that the vi ctim identified the petitioner by voice. The trial court denied the motion on the morning of trial, finding that the motion came too lat e for a hearing on the matter and that no sufficient reason to suppress the evidence ex isted at that time.

Our review of the v

ictim’s testimony at tr

ial reveals that she di d not mention whether she could at that time or had previously identified the pe titioner by his voice. The victim w

as not asked at trial to id entify the petitioner as the perpetrator. The preliminary hearing

testimony was not official ly recorded. The attorney testified at the evidentiary hearing

that the petitioner’s initial attorney taped the pr eliminary hearing and had his staff create a transcript. Even if the victim could not recognize the petitione r’s voice at the preliminary hearing, this does not preclude the possibility that she was able to recognize his v

oice as that of her assailant at some earlier time. The petiti oner has failed to show that the voi ce identification statement in th e affidavit is false; therefore, he is not prejudiced by h is attorney’s failure to challenge the warr ant at the suppression hearing. Furthermore, the petitioner is not prejudi ced by the use of his name in the affidavit based upon the facial va lidity of the voice i dentification.

The record supports the trial court’s finding that the officer s found the food stamps in the petitioner’s c ar rather than on his person . Although the victi m could not identify the food stamps from the pet itioner’s car as the ones from the robbery, she did testify that she gave the perpetrator eight one-dol lar food stamps from the register

. This matched the amount and deno mination of the food stamps f ound in the petitioner’s16

car. The fact that the food stamps wer e in the car rather than on the petitioner is not material to the issue of probable cause when the petitioner had just stepped out of the car before his arrest. The fact that the food stamps matched in number and denomination but had no other distinguishing feat ures for the victim to identify is also immaterial. Finally, the petitioner has made no showing that Officer Scarbo ro intentionally misstated these facts in the affidavit. Thus, the petitioner is not prejudi ced by the presence of these immateri al misstatements in the affidavit

.

3. Chain of Custody The petitioner contends that his attorney was ineffectiv e for failing to challeng e the cha in of cus tody of th e rape kit and the p etitione r’s blood and saliva samples before trial or to preserve this issue for appeal. He argues that the record does not reveal who had p ossession of this evidence between February 13, 1986 , and February 19, 1986. He cl aims that his attorney fail ed to subpoena an inmate trustee who could testify that he saw vials of blood, a r ape kit, and other evidence stored openly in the refriger

ator at the jail during

this six-day per

iod. He states that the trus tee died before the post-conviction evidentiary hear ing. He claims that if hi s attorney had raised this issue before tr ial, then the trial court

would have suppressed the rape kit as well as his blood and s aliva samples. The state co ntends that the record rev eals that the evidentiary speci mens were properly d elivered to the TBI laborat ory for testing. It also argues that even if the attorney should have challenged the chain of custo dy, his failure to do so is harmless in light of the overw helming evidence of the petit ioner’s guilt.

The trial court found that both Deputy Edwin Kelly and Detective Richard Foschino delivered or

mailed specimens to the TBI labor atory. It found that no evidence existed that someone tampered with the specimens in question. In the direct appeal, the petitioner’s attor ney argued that the state di d not prove the chain of custody of a blood specimen, but the court cou ld not review the matt er because it could not determine which specimen w as at issue. State v. Johnny Rutherford , slip op. at 7.17 At trial, O fficer D orman Sc arboro te stified that he ga ve blood a nd saliva samples taken from the petitioner t o Detective Richard F

oschino. Detective Fos chino testified that he received the rape kit from Officer Penny Bak er on February 13 and that he prepared it for the TBI laborator y. He said he receiv

ed the petitioner’s blood and saliva specimens from Officer Scarboro and prepared them for the TBI l aboratory.

At the second evidentiary hearing, Detective Foschino testified that he sent some of the evidence from this c ase to the TBI laboratory, al though he did not recall what type of ev

idence it was. He sai d that he normally prepared the evidence for the TBI laboratory and that he s tored blood evidence and rape kits in a locked refrigerator in the kitchen at the courthouse. He said that he was one of th ree officers with a key to this refrigerator. He stated that presumably, he woul d have been able to tell if someone had tampered with the lock. He said that if an inmate trustee said that he saw evidence in the refrigerator, then the trustee was wrong. The petitioner’s attorney testified that he di d not remember the petitioner ask ing him to subpoena an inmate who worked in the jail kitchen who co uld supposedly testify that the rape kit was kept in the jail’s refrigerator.

The record does not reflect a break in the chain of cu stody of the rape kit or the petitioner’s blood an d saliva samples, nor does it reflect that someone had tampered with these items. The proof of the identity of physic al evidence does not have to exclude all pos sibility of tampering. Ritter v. State , 3 Tenn. Crim. App. 372, 378, 462 S.W.2d 247, 250 (Tenn. Crim. App. 1970). Inst ead, the “‘circumstances need only establish reasonabl e assurance of the identity’ ” of the evidence. Id. (quoting Patterson v. State , 160 S.E.2d 815, 817 (Ga. 1968)); State v. Woods , 806 S.W.2d 205, 212 (Tenn. Crim. App. 1990). The peti tioner does not allege that the trustee claimed to have seen the particular rape kit and specimens from this case in a refrigerator at the jail. The petitioner has fail ed to show prejudice.

4. Improper Judicial Cond uct The petitioner contends that he rec eived the ineffective assi stance of counsel because his attorney failed to object to what he c laims is improper judicial conduct at his trial. H e summarily argues that the trial court commented on the evidence and questioned w itnesses, bringing out points neglected by the state. The18

petitioner argues that he w as prejudiced because wi thout the trial court’s q uestions and comments, the state would not hav e presented sufficient evidence t o convict him of the crimes. He also claims that because of their high regard for the trial judge, the jurors placed more weight on tes timony when the judge r equested that a witness repeat an answer or asked additi onal questions. The state cont ends that the petitioner has not cited to the record as req uired by Rule 27(a)( 7), T.R.A.P., to indicate w hich of the trial court’s questions or c

omments were prejudicial to his case. It further arg ues that the record does

not support the petition er’s clai m.

A trial court may ask questions of witnesses in order to clarify obscure points in the testimony or to supply omissions in the interest of justice. Collins v. State , 220 Tenn. 275, 278-79, 416 S.W.2d 766, 767 (1967); State v. Jenkins , 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987). The trial court found that at the con victing trial, it questioned the victim i n order to clarify cer tain points in her testimony because, despite numerous admonitions to speak up, s he spoke too softly for the jur y to hear her at times. Our review of the victim’s testimony does not show otherwise. The trial court’s questions and comments at the petitioner’s trial wer e not improper. Therefore, the attorney’s lack of objection was neither deficient nor improperly prejudicial.

5. Constructive Amendment of the Indictment The petitioner contends that his attorney provided ineff ective assistance by failing to object to the jury instruction on aggravated rape. He argues that when the trial court instructe

d the jury that aggr

avated rape could be prov en if a deadly weapon were used or if the vi ctim suffered personal injury , it constructively amended the indictment, which charg ed the use of a deadly weapon. The state contends that the attorney had no basis to obj ect because the trial court properly instructed the jury on the relevant l aw.

The indictment states, in perti nent part, that on February 13, 1986, the petitioner did “unlawful ly and feloniously eng age in sexual penetrati on of [the victim], by use of fear and coercion and by use of a deadly weapon, to wi t: a gun[.]” At the time of the offense and of the petitioner’s tria l, Tenn. Code Ann. § 39-2-603(a) (1) and (2) defined aggravated rape as:19 the unlawful sexual penet ration of a v ictim by a d efendant or the unlawful sexual pen etratio n of a defendant by a victim accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act and the defendant is armed with a weapon . . . [or] (2) The defendant causes personal in jury to the victi m[.] The trial court gave the following charge o n aggravated rape:

For you to find the defendant guilty of [aggravated rape], th e sta te must have proven, beyond a reasonable doubt, the existence of two essential elements: (1) that the defendant had (unlawful) sexual penetration of the alleged victim; and (2) that :(a) force or coercion was used to accomplish the act, and the defendant was armed with a weapon or any article used or fashioned in a manner to lead the al leged v icti m reasonably to believe

it to be a weapon; or (b) the defendant caused personal injury to th e alleged victim; and force or coercion was used to accomplish the act. The trial court found that the indictment was not ame nded and that it had correctly instructed the jury on the law at the time.

The trial court’s “‘instruction . . . should be limited to the precise offe nse alleged in the charging instrument to the exclusion of the remaining theories.’” State v. VanArsdale , 919 S.W .2d 626, 634 (T enn. Crim. App. 1995) (quoting State v. Wayne E. Mitchell , No. 01C01-9209-CR-00295, Davidson County, sl ip op. at 6 (Tenn. Crim. App. Mar. 11, 1993)) (rev

ersing based upon other gr ounds). In Wayne E. Mitchell , the state elected that it would pr osecute on the count alleging aggravated rape commit ted with a deadly weapon. The trial court instructed the jur y on the entire aggr

avated rape statute. Although this court noted th at the instruction should be limited to the means of committing the offense as alleged in the indictment, we held that the verdict conformed to the indictment. Wayne E. Mitchell , slip op. at 6. This court also noted that “the balance of the instruction w as mere surplusage” that d id not affect the trial’s outcome. Id.

In the present case, the jury returned a general ver dict of guilty for the aggravated rape. Gener ally, we wil l affirm a general verdic t of guilt if the indictment contains at least one proper c ount supported by the proof. Tenn. Co de Ann. § 40-18- 111. The petitioner has failed to s how that the trial cour t’s instruction on the alternate20

theory of personal injury prejudiced him by affecting the outcome of the case. The trial court properly denied the petition on this ground.

6. Lesser Included Offenses and Definitions The petitioner contends that his attorney was ineffectiv e because he failed to request an instructi on on the lesser included offenses of ag gravated rape and aggravated kidnapping and on the definitions of “intentiona lly” and “knowingly.” He argues that because the tri al court charged the jur y on robbery as w

ell as armed robbery, it should hav

e also charged rape and ki dnapping in addition to agg ravated rape and aggravated ki dnapping. The state contends that no evidence existed that the petitioner was guil

ty of any lesser incl uded offenses. It argues that the petitioner professed his innocence at tri al; therefore, he was either guilty of the crimes as

charged or not guil ty.

The trial court has a duty to charge the jury on

all lesser included offenses included in the indictment ev en if the defendant does not request it . Tenn. Code Ann. § 40-18-110. Although § 40-18- 110 seems to require jury instructions on all le

sser included offenses regardless of the proof in the record, our supr eme court “has consistently requi red some factual basis for submitti ng an instruction on an inc luded offense to the jury.” Burns v. State , 6 S.W.3d 453, 467 (Tenn. 1999). In this respect, the evidence presented at the c onvicting trial d id not warrant instr uctions on the lesser included offenses of rape and kidnapping.

At his trial, the petiti oner denied robbing, abducti ng, or raping the v ictim. The victim testified that her assailant forced her from the convenience store and into his car at gunpoint. She stated that although he kept the gun i n his pocket while he r aped her, he reached for the gun to thr eaten her immediately precedi ng the rape when she refused to cooperate. Officer Danny Humphrey testified that he found tw o guns at the turkey shoot in a paper bag in a pile of clothing, w

hich included a ski mask. He stated that he found a flashlight three or four fe et away. The petitioner argues that because the guns were not found on his person, the jury could have disregarded the victim’s uncorroborated testimony that her assailant used a gun.The fact that Officer Humphrey found the guns abandoned w ith other physical ev

idence from the crime does21

not reasonably support the i nference that a weapon was not used in the offenses. The petitioner has failed to point t o any evidence that coul d support an instruction on the lesser included offenses.

The petitioner’s trial attorney noted that the petitioner consisten tly maintained h is innocence. T he attorney test ified that he did not ask the ju dge to charge any les ser included offe nses bec ause he d id not w

ant to cr eate the possibi lity o

f a compromise verdict. The peti tioner presents no argument as to how he was prej udiced by his attorney’s fai lure to request the tri al court to instruct the j ury on the definitions of “knowingly” and “intentionally.” The petitioner has failed to show both deficiency and prejudice.

7. Fingerprint Instruction

The petitioner contends that his attorney was ineffectiv e for failing to object to the trial court’ s instruction that no tw o sets of fingerprints are al ike. He argues that this statement intrudes upon the jury’s deliberations, focuses the jury upon o ne isolated fact, creates an ir rebuttable presumption that the pet itioner is the perpetrator upon proof that the fingerprint w as his, and relieves the state of its burden of proof on this issue. The state contends that the trial court’s i nstruction followed Tennessee Pattern Instruction § 37.15 on fingerprints in effect at the time of the pet itioner’s trial. It further argues that the petiti oner was not harmed by th e instruction because the pr oof contains a significant amount o f other evidence pointing t o the petitioner’s guilt.

The trial court instructed the jury on fingerprint evidence as follows: Fingerprint

evidence has been presented in this case. You may consider this evidenc

e in determining the

defendant’s identity as the person w ho committed this crime. Fingerprint

evidence is circumstantial evidence; that is, it is proof of collateral facts

and circumstances from whi ch the existence of a primary fact may be deduced by you accordi ng to reason and common experience. There are no two sets of fingerprints

exactly alike. For f ingerprint evidence alone to sustain a conviction, you must fi nd that the defendant’s fingerprints

could only

have been im pressed at t he crime scene during the commission of the crime.22 The weight to be accorded fingerprint evi dence is a question for the jury to decide in light of all the sur r ounding facts and circumstances of the case. This instruction is identical to Tennessee Pattern Instr uction § 37.15 (2d ed. 1988) and current Tennessee Pattern Instr uction § 42.17 (4th ed. 1995).

We note that our suprem e court has recognized that fingerprint evidence “is infallible because of its conclusiveness.” Jamison v. State , 209 Tenn. 425, 434, 354 S.W.2d 252, 255 (196 2) (holding that fingerprint evidence alone is sufficient to support a burglary convi ction). The court based this conclusion upon expert tes timony and its review of case law

from which it determined that “all fingerprints that

have ever been taken . . . run into an infinite number and no two have ever been foun d alike.” Id. Thus, if the record contains no ev idence that the fingerprint w as innocently placed, fing erprint evidence alone may sustai n the conviction. State v. Evans , 669 S.W.2d 708, 710 (Tenn. Crim. App. 1984); see State v. Cupp , 215 Tenn. 165, 171-72, 384 S.W.2d 34, 37 (1964).

We believe that the trial court’s i nstruction to the jury that no two sets of fingerprints are alike is a statement of fact that improperly intrudes upon the provinc e of the jury. See Tenn. Const., art. VI, § 9. This is so even if we v

iew the statement as setting forth facts that could be judicially noticed. See Tenn. R. Evid. 201(g) (“In a criminal case, the court shall instruct the jur y that it may, but is not required to, accept as conclusive any fact judicially noticed.” ). However, w

e do not believe that the petitioner is entitled to relief on this issue.

At the petitioner’s trial , Donald R. Hampton, a latent fing erprint examiner from the Tennessee Bureau of Investig ation, testified that he identified a fingerprint found on the flashlight battery as that of the petitioner. He s tated that his identification contained no margin of error.He testified without contradiction that no two peop le, including identical tw

ins, have the same fingerpr ints. In considering this testimony and the remaining evidence that connected the petitioner to the crime, we conclude that the petitioner has failed to show that he was prejudiced by the trial court’s ins

truction.

II. INSUFFICIENT FACTUAL FINDINGS A ND LEGAL CONCLUSIONS23 The petitioner contends that the tr ial court erred by fail ing to make factual findings and legal conclusions regarding two additional claims of ineffective assistance of counsel: that his attorney failed to argue the search and seizure issue and that th e attorney failed to object to an officer’s testimony on the ti re prints. The petitioner asserts that Tenn. Code Ann. § 40- 30-118(b) (repealed 1995), w hich controls this case, requires the court to make factual findings and legal conclusions with regard to each ground presented. The petitioner argues that this case must be remanded back to the trial court for findings on these two issues.

1. Search Issue Contrary to the petiti oner’s contention, the trial court made the following findings regarding the petitioner’s claim that his attorney failed to arg ue the search and seizure question: Petitioner reiteratesthe issue on the search question as to the search of the vehicle and the failure of the st ate to pro ve that the facts justified an exc eption to the search warr ant [requir eme nt]. This has been addressed fully in the original case [and] th e original appeal a nd is not n ow subj ect to post conviction attack. The validity of the war

rantless search of the petiti oner’s car was prev iously determined on direct appeal. State v. Johnny Rutherford , slip op. at 10-11. This cou rt held that the petitioner was arres

ted at the time he was detained in the back of the patrol car and that the warrantless s

earch was a search inc ident to arrest. Id. The attorney challenged the search of the peti tioner’s car in a pretr

ial suppression hearing , renewed his motion to suppress on the mor ning of trial, and raised the suppression issue on appeal. No deficiency or prejudice exists.

2. Tire Print Testimony The trial court does not addres s the petitioner’s clai m that his attorney failed to challenge an officer’s testimony regarding tire prints being from the p etitioner’s car. Noting that the peti tioner had filed several a mended petitions, the court stated that it would address the peti tions filed on February 19,1996, and October 29, 1996. The court noted that the petitioner’ s Memorandum of Points and Authoriti es accompanying the February 19 petition states that “the petitioner has amended his petition for postconviction relief, v

oluntarily dismissi ng all issues except those raised in the2 The leg islature did n ot include th is provision in the 1995 act. Blair v. State , 969 S.W.2d 423, 424 (Tenn. Crim . App. 1997). 24 accompanying petition.” The petitioner first raised the issue of th e tire print testimony in an Addendum to Memorandum on Points and Author ities filed on October 29, 1996.

The Post-Conviction Proc edure Act in effect at the time the petitioner filed his original pro se petition prohibits the trial court from dismissing the petition for f ailure to follow proper procedures “until after the judge has given the petitioner reasonab le opportunity, with the

aid of counsel, to file an amended petit ion.” Tenn. Code Ann. § 40-30-107 (repealed 1995). “The court may . . . freely allow amendments an d shall require amendments needed to achieve substantial justice an d a full hearing of all available grounds for relief.” Tenn. Code Ann. § 40-30-115(a) (repea led 1995). 2 Thus, arguably the trial court should have entered factua l findings and legal conc lusions regarding the issue of the ti re print te stimony.

Nevertheless, we do

not believe that the case mus t be remanded for findings on this issue. At trial, Officer Danny Hu mphrey testified that on the nig ht of the offenses, he observed tire pri nts in the snow on the road through Foust Cemetery and also on the road by the turkey shoot. Officer Humphrey identified pho tographs of these tire prints. The trial court overruled the attorney’s objection to Officer Humphrey’s testimony that the tire pr ints at the cemetery and thos e at the turkey shoot appeared to be the same. The attorney objected to the state’s request tha t Officer Humphrey compare the tire prints to the tires from the petitioner’s car because the state had not qualified the officer as an exper t. The trial court sustai ned this objection. The petiti oner contends that his attorney should have challenged the tire print evidence i n a pretrial motion and on appeal. The petitioner h as failed to show that he w as prejudiced because Officer Humphrey’s tes timony was limited t

o what he observed.

III. FUNDS FOR DNA EXPERT The petitioner contends that he is entitled to funds for an expert t o test the DNA from the victim’s rape kit and his blood sample. He argues that the trial court erred in determining that he failed to show a particularized need for this expert. He claims that he has continuously maintained his factual inn ocence and that no witness,25

including the victi m, has identified him as the perpetr ator of these crimes. He arg ues that the DNA testing may be the only way for him to establish his innocence in this case. The state summarily responds that the petitioner’s mot ion for expert services did not comply with Rul e 13, § 5(b), Tenn. S. Ct. R., and that the trial court pr operly found that the petitioner has not show n a substantial need for the expe rt.

The petitioner filed a motion for ex pert forensic services

on February 19, 1996. In this motion, he maintained that DNA analysis w as not available to him or the state at the time of his trial in 1986. As his threshold s howing that he would be deprived of due process if the funds were denied, the petitioner contended that he pled not guilty at trial

and that he has continuously maintained his innocence. He s tated that the victim has never identified him as the perpetrator and that the tests of the biologi cal specimens at the time of trial w ere inconclusive. Al

ternatively, he req uested that the trial court grant him a continuance until Professor Barry Scheck of the Benjam in N. Cardozo School of Law compl eted pro bono testing, which beg an on August 21, 1995. In the order denying pos t-conviction relie

f, the court denied the petitioner ’s motion, stating: There is no showing of a substantial need for an expert in this case. The proof is strong and all scientific evidence is directlypointed to the petitioner. Ther e is no t hreshold showing that there was or is a reasonable likelihood that the assistance of an expert would have materially assisted him in the presentation of his case.

Neither due process nor eq ual protection requires the state “to provide expert services to indigent non-capital post-conviction petitioners.” Davis v. State , 912 S.W.2d 689, 696-97 (Tenn. 1995); see Tenn. S. Ct. R. 13 § 5(b). Thus, the trial court properly denied the petitioner’s request for funds for expert services.

Based upon the foregoing and the r ecord as a whole, we affirm the trial court’ s denial

of the pet ition fo r post- convic tion re lief.

________________________________ Joseph M. Tipto n, Judge

CONCUR:26

_____________________________ David H. Wel les, Judge

_____________________________ Jerry L. Smith, Jud ge