IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

OSCAR SMITH v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 98-F-1773

___________________________________

No. M2022-00455-CCA-R3-PD

___________________________________

Petitioner, Oscar Smith, a death row inmate, appeals the trial court’s order denying his 

“Motion to Reopen Post-Conviction Proceedings and/or for Review under Post-Conviction 

DNA Analysis Act of 2001.” The trial court denied Petitioner’s motion to reopen and his 

DNA petition in the same order. Petitioner has filed a notice of appeal (Docket No. M2022-

00455-CCA-R3-PD) and an application for permission to appeal (Docket No. M2022-

00460-CCA-R28-PD). The Court hereby consolidates these two appeals under Docket No. 

M2022-00455-CCA-R3-PD. The record has been filed and Petitioner, in addition to 

having filed an application for permission to appeal, has already filed his appellate brief. 

Upon our review, we affirm the rulings of the trial court pursuant to Court of Criminal 

Appeals Rule 20.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court 

Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals

TIMOTHY L. EASTER, J. delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ. joined.

Amy D. Harwell, Assistant Chief, Capital Habeas Unit and Katherine M. Dix, Assistant

Federal Public Defender, Nashville, Tennessee, for Petitioner, Oscar Franklin Smith.

Herbert H. Slatery III, Attorney General & Reporter, for Respondent, State of Tennessee.

MEMORANDUM OPINION

Over 32 years ago, Petitioner murdered his estranged wife, Judith (Judy) Lynn

Smith, and her two minor children, Chad and Jason Burnett, at their home in Nashville.

State v. Smith, 868 S.W.2d 561 (Tenn. 1993). He received death sentences for each of the

three murders. Id. Petitioner’s convictions and sentences were upheld on direct appeal. 

04/14/2022
2

Smith, 868 S.W.2d at 582. He was unsuccessful in his subsequent pursuit of state postconviction and federal habeas corpus relief. Oscar Franklin Smith v. State, No. 01C01-

9702-CR-00048, 1998 WL 345353 (Tenn. Crim. App. June 30, 1998), perm. app. denied

(Tenn. Jan. 25, 1999); Oscar Smith v. Ricky Bell, Warden, No. 3:99-0731, 2005 WL 

2416504 (M.D. Tenn. Sep. 30, 2005), vacated sub nom. Smith v. Colson, 566 U.S. 901 

(2012) (Order); Oscar Smith v. Tony May, Warden, No. 18-5133, 2018 WL 7247244 (6th 

Cir. Aug. 22, 2018). This Court recently affirmed the trial court’s summary dismissal of 

Petitioner’s request for testing of evidence pursuant to the Post-Conviction Fingerprint 

Analysis Act of 2021. Oscar Smith v. State, No. M2021-01339-CCA-R3-PD, 2022 WL 

854438 (Tenn. Crim. App. Mar. 23, 2022), perm. app. denied (Tenn. Apr. 6, 2022).

On April 4, 2022, Petitioner filed in the trial court a “Motion to Reopen PostConviction Proceedings and/or for Review under Post-Conviction DNA Analysis Act of 

2001.” Petitioner previously obtained agreed orders from the trial court for DNA testing 

of an alleged murder weapon and clothing collected from Ms. Smith and Chad Burnett in 

relation to a sample of Chad Burnett’s hair and blood samples from Petitioner, Ms. Smith 

and Jason Burnett. Petitioner filed his motion after having obtained the results of the DNA 

testing. The trial court entered its order denying relief on April 11, 2022. Because the trial 

court’s order disposed of both the request to reopen the previously-filed post-conviction 

petition, Tennessee Code Annotated section 40-30-117, and to obtain testing under the 

DNA Analysis Act, Tennessee Code Annotated sections 40-30-301 et seq., Petitioner, as 

required, has filed both an application for permission to appeal pursuant to Section 40-30-

117(c) and a notice of appeal pursuant to Tennessee Rule of Appellate Procedure 3(b).

The Court hereby consolidates the two appeals under Docket No. M2022-00455-

CCA-R3-PD. A record has been prepared and transmitted on appeal and Petitioner has 

already filed his appellate brief in addition to an application for permission to appeal. 

Petitioner is scheduled to be executed on Thursday, April 21, 2022. Petitioner also filed a 

motion for expedited briefing and for oral argument. Pursuant to our authority under the 

Rules of Appellate Procedure, the Court hereby suspends the requirement of a response 

from the State in order to expedite our decision in this matter. Tenn. R. App. P. 2. Thus, 

Petitioner’s requests for an expedited briefing schedule and oral argument are denied as 

moot.

In its order, the trial court summarized the substance of Petitioner’s recent filing:

On December 7, 2016, during the pendency of [Petitioner’s] federal 

habeas corpus litigation, forensic fingerprint examiner Kathleen BrightBirnbaum filed a report detailing her analysis of several fingerprints left at 

the crime scene. Among the prints detailed in Ms. Bright-Birnbaum’s report, 

included as Exhibit 1 to [Petitioner’s] present motion, were two fingerprints 
3

lifted from an awl (misidentified as a “leather awe” in the report) believed to

be used during the offenses. Ms. Bright-Birnbaum identified one of the 

prints as belonging to Johnny Hunter, the Metropolitan Nashville Police 

Department fingerprint examiner who testified at Petitioner’s trial. See

Bright-Birnbaum report at 2. Regarding the second print, Ms. BrightBirnbaum explained the print was “identifiable,” but she was unable to 

identify who left the print. Id. [FN: The known comparison prints referenced 

in Ms. Bright-Birnbaum’s report - presumably, those against which the

unknown print was compared - were those of [Petitioner], the three victims, 

three members of the Metropolitan Nashville Police Department (including 

Hunter), and three persons specifically identified in Ms. Bright-Birnbaum’s

report but whose potential connection to this case is not apparent from the 

current pleadings. See id. at 1-2.].

According to the Petitioner, the presence of the unknown fingerprint 

on the awl prompted Petitioner’s attorneys to seek DNA testing of the awl. 

Based upon the agreement of the parties, this [c]ourt entered an agreed order 

on January 19, 2022, transferring the awl to the Petitioner’s selected DNA 

analyst, the Serological Research Institute (“SERI”). On February 28, 2022, 

the [c]ourt entered another agreed order transferring samples of the

Petitioner’s, Jason Burnett’s, and Judith Smith’s blood, along with a sample 

of Chad Burnett’s hair, to SERI. Counsel for the Petitioner explains the 

resubmission of these samples as follows:

As noted in the SERI report, the technology used here [to 

conduct the touch DNA analysis] is so new that [the examiner] 

had to re-examine the “known” specimens previously analyzed 

in 2016 so that a scientifically valid comparison could be

achieved. Ex 4, SERI Rep. at 2 (noting resubmission of items); 

see also Second DNA Order, February 28, 2022 (releasing the 

known samples to SERI pursuant to the parties’ agreement).

Smith motion at 6 n.3 (alterations added).

On March 30, 2022, SERI forensic DNA analyst Gary Hamor (and a 

“technical reviewer” whose electronic signature appears only as the initials 

“PH”) submitted SERI’s report on the agency’s DNA analysis to the 

Petitioner’s lead attorney, Amy Harwell. Regarding SERI’s testing of the 

awl handle, which consisted of comparing a “touch DNA” sample obtained 

from the awl handle against known DNA samples from the Petitioner and the 

three victims, the report stated:
4

a. A DNA mixture was obtained.

b. The DNA mixture was interpreted as originating from two 

contributors with a major male contributor. Chad Burnette 

[sic] could be the major contributor to this mixture. The chance 

that a randomly selected, unrelated person would have the

same profile as the major contributor is approximately 1 in 4 

octillion.

c. Oscar Smith, Jason Burnette [sic], and Judy Smith are all 

excluded as contributors to the DNA results obtained from this 

item.

d. The minor portion of the mixture is suitable for comparison.

SERI Report, at 4 (included as Exhibit 4 to Petitioner’s current motion).

As stated above, the DNA profile obtained from the awl handle 

consists of “touch DNA.” In explaining the timing of the Petitioner’s current 

motion, Petitioner’s attorneys write,

Though it has been theoretically possible to develop “touch 

DNA” for several years, the Applied BiosystemsTM

GlobalFilerTM PCR Amplification Kit was not developed until 

2012 and did not become available in most labs until after 

2017. Ex.4 at 8, SERI Rep. The fully continuous probabilistic 

genotyping software program used for analysis on the awl, 

Bullet Proof Sentry, was not available until 2022. Id. That is, 

touch DNA was not available until well after [Petitioner’s] trial 

and post-conviction proceedings, and the technology used to 

perform the touch DNA analysis that supports this Motion was 

not available until this year. Ex. 4, SERI Report at 8.

Petitioner’s motion, at 5-6 (footnote omitted).

The trial court determined Petitioner did not file his “Motion to Reopen PostConviction Proceedings and/or for Review under Post-Conviction DNA Analysis Act of 

2001” to delay execution of his sentence and thus proceeded to address the merits of the 

same. After discussing the established law governing motions to reopen (§ 40-30-117) and 

the DNA Analysis Act (§§ 40-30-301 et seq.), the court concluded as follows:
5

However, even in viewing the evidence in the light most favorable to 

the Petitioner - in this case the [c]ourt has no reason to doubt that SERI’s 

testing of the touch DNA obtained from the crime scene awl revealed a 

profile that was, conclusively, not that of [Petitioner] - the Petitioner is not 

entitled to relief through a motion to reopen or under the post-conviction 

DNA act. As this [c]ourt set forth in its order dismissing [Petitioner’s] postconviction fingerprint petition, extensive evidence of the Petitioner’s guilt 

was introduced at trial. The Court of Criminal Appeals summarized that 

evidence in its opinion affirming this [c]ourt’s dismissal of the fingerprint 

petition:

As the trial court observed, “the State possessed 

extensive circumstantial evidence against Petitioner other than 

the palm print, including (1) Petitioner’s prior threats against 

and/or prior violence involving the victims; (2) a neighbor 

seeing Petitioner’s car in the victims’ driveway the night of the 

murders; (3) life insurance policies taken out by Petitioner on 

the lives of the three victims, and (4) one of the child victims 

yelling out ‘Frank, no!’ on the 911 recording.” Moreover, as 

the trial court noted, “[t]he evidence introduced at trial 

suggested Petitioner (and nobody else) had motive to kill the 

victims.” Two of Petitioner’s co-workers testified Petitioner 

solicited them to kill his wife. Likewise, as summarized above, 

evidence, in addition to the neighbor’s testimony, was 

introduced to contest Petitioner’s alibi defense. The jury also 

learned Petitioner referred to his estranged wife in the past

tense during questioning by the police and he did not “ask the 

officers the logical questions of where, when, how and by 

whom” when he was informed about the murders. Oscar 

Smith, 2005 WL 2416504, at *4. [Footnote omitted]. The 

post-conviction evidence also revealed Petitioner “was not 

contesting that the print was his; he was claiming that someone 

planted the print at the scene.” Oscar Franklin Smith, 1998 

WL 345353, at *15. [Footnote omitted]. Even [Ms.] BrightBirnbaum could not conclusively state Petitioner did not leave 

the bloody palm print at the crime scene.

[Smith] fingerprint opinion, 2022 WL 854438, at *16 (footnotes added); see 

also id. at **2-7 (quoting list of facts set forth in federal district court opinion 

denying habeas corpus petition; this [c]ourt’s November 2021 order denying 
6

fingerprint motion also quoted that list). Additionally, this [c]ourt notes that 

in the DNA testing performed by Petitioner’s selected laboratory, 

[Petitioner’s] DNA “could be included as [a] contributor[] to the DNA results 

obtained” from the left sleeve of an “off-white long sleeve shirt with large

red/brown stains.” [Footnote omitted]. Presumably, this article of clothing 

was a bloodstained item worn by one of the victims at the time of that 

person’s death.

To quote further from the Court of Criminal Appeals’ opinion,

In the case at hand, if we stacked the assumed most favorable 

[touch DNA] evidence on one side of a set of scales and the 

trial evidence on the other, the [touch DNA] evidence would 

not even begin to affect the scales or tip them in Petitioner’s

favor, either as to the guilty verdict or the sentences of death.

[Smith] fingerprint opinion, 2022 WL 854438, at *17 (alterations added).

Thus, the [c]ourt concludes there is not a reasonable probability that 

the recently-discovered DNA evidence would have prevented [Petitioner’s]

prosecution or conviction. Nor is there a reasonable probability the recentlydiscovered DNA evidence would have resulted in a more favorable 

conviction or sentence for [Petitioner] had the DNA evidence been presented 

at trial. Thus, [Petitioner] is not entitled to relief under either T[ennessee] 

C[ode] A[nnotated] section 40-30-304 or section 40-30-305. [FN: The 

[c]ourt observes that the touch DNA evidence at issue in this case had not 

been subjected previously to the type of testing conducted by SERI. While 

the awl still exists in a condition in which it can be tested, it is unclear 

whether the awl was preserved in such a manner that would have assured the 

DNA profiles were left at the crime scene and did not result from 

contamination. Had the other elements of sections 40-30-304 and -305 been 

met, however, this [c]ourt would have allowed the Petitioner to present 

evidence concerning this issue at an evidentiary hearing.]. Similarly, given 

the extensive evidence of [Petitioner’s] guilt produced at his trial, even when 

considering the DNA evidence resulting from SERI’s recent testing in a light 

most favorable to the Petitioner, the [c]ourt concludes [Petitioner] would be 

unable to prove by clear and convincing evidence that the DNA evidence

establishes he is actually innocent of the offenses for which he was convicted. 

Thus, he is not entitled to reopen his post-conviction proceedings under 

T.C.A. section 40-30-117(a)(2). [Footnote omitted].
7

Analysis

A post-conviction court’s denial of a motion to reopen a post-conviction petition 

does not afford a petitioner an appeal as of right, see Tennessee Rule of Appellate 

Procedure 3(b), rather, such denial may be challenged on appeal only by the filing of an 

application for permission to appeal no later than 30 days after the denial by the postconviction court. T.C.A. § 40-30-117(c); Tenn. Sup. Ct. R. 28, § 10(B). There are four 

requirements for an appeal from a motion to reopen to be considered: (1) the timeliness of 

filing, (2) the place of filing, (3) the application to be filed, and (4) the attachments to the 

application. Graham v. State, 90 S.W.3d 687, 689 (Tenn. 2002). “In general, the contents 

of an application for permission to appeal must include the date and judgment from which 

the petitioner seeks review, the issue which the petitioner seeks to raise, and the reasons 

why the appellate court should grant review.” Id. at 691. The statutory requirements are 

mandatory. Timothy Roberson v. State, No. W2007-00230-CCA-R3-PC, 2007 WL 

3286681, at *9-10 (Tenn. Crim. App. Nov. 7, 2007), perm. app. denied (Tenn. Apr. 14, 

2008). 

Here, Petitioner adequately complied with the statutory requirements for seeking 

appellate review. However, Petitioner has not presented new scientific evidence 

establishing that he is actually innocent of the murders of the victims. Consequently, the 

trial court did not abuse its discretion when it denied Petitioner’s motion to reopen the 

petition. As a result, we deny the application for permission to appeal the denial of the 

motion to reopen the post-conviction petition pursuant to Tennessee Code Annotated 

section 40-30-117(c).

With regard to Petitioner’s motion for “Review under Post-Conviction DNA 

Analysis Act of 2001,” we likewise conclude that the trial court did not abuse its discretion. 

See Oscar Smith v. State, 2022 WL 854438, at *17. The trial court analyzed the motion 

pursuant to both Tennessee Code Annotated sections 40-30-304 and -305 and determined 

that there was not a reasonable probability that the DNA evidence would have prevented 

Petitioner’s prosecution or conviction or would have resulted in a more favorable 

conviction or sentence.

This Court’s Rule 20 provides that if a judgment is rendered by the trial court 

without a jury, the judgment is not a determination of guilt, the evidence does not 

preponderate against the finding of the trial court, and no error of law requiring a reversal 

of the judgment is apparent on the record, then the judgment of the trial court may be 

affirmed by memorandum opinion when the opinion would have no precedential value. 

Tenn. Ct. Crim. App. R. 20. We determine that this case meets the criteria of Rule 20.

Conclusion
8

For the foregoing reasons, the rulings of the trial court are hereby affirmed in 

accordance with Court of Criminal Appeals Rule 20.

____________________________________

TIMOTHY L. EASTER, JUDGE