         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 17, 2003

                    DANNY R. KING v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Williamson County
                         No. 102-013    Timothy L. Easter, Judge



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


The Petitioner and his co-defendant were convicted of aggravated rape and aggravated kidnapping.
The Petitioner appealed, and our Court affirmed the convictions. The Petitioner filed a petition for
post-conviction relief, which the trial court denied. Our Court affirmed the denial, concluding that
the Petitioner had received effective assistance of counsel. The Petitioner then filed a post-
conviction petition requesting DNA (deoxyribonucleic) testing pursuant to the Post-Conviction DNA
Analysis Act of 2001. After the State responded that no biological evidence was in existence to be
tested, the Petitioner requested that the court appoint him new counsel. The trial court denied both
the Petitioner’s post-conviction petition for DNA testing and his request for new counsel. The
Petitioner now appeals, arguing that the trial court erred by denying his post-conviction petition for
DNA testing and by denying his request for new counsel. Finding no error, we affirm the judgment
of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.

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

Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Ronald L.
Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                             OPINION

       The following facts of the Petitioner’s case were summarized by our Court on direct appeal:
               At trial, the state presented overwhelming proof of the defendants’ guilt. In
       the early evening of November 2, 1981, two men abducted the victim from the
       parking lot of a Franklin shopping center. They drove her to a nearby road, raped
       her, and then tossed her out of their car. Within a brief time, the victim sought help
        at a nearby service station, the police were alerted, and she was taken to a hospital for
        treatment and examination. The defendants were arrested within a few hours.
                 Two witnesses, present in the parking lot, testified that they heard the victim’s
        screams, followed the defendants’ car, and reported the license number and
        description of the car to the police. Two other witnesses described the victim’s
        appearance and distress at the business where she sought help after the assault. A
        number of officers testified about details of the investigation and the custody of the
        defendants’ car, the victim’s purse, her jewelry found in the car, and in the
        defendants’ pockets, and other evidence. Testimony from a serologist and the
        treating physician confirmed that the victim had suffered abrasions about her body,
        that live spermatozoa were found in the medical examination, and the defendants’
        clothing bore blood stains. The victim testified and identified the two defendants as
        her assailants.
                 Defendant Danny King offered no defense. Defendant William Buford
        testified essentially that the victim had consented.
State v. William D. Buford, 1984 Tenn. Crim. App. LEXIS 2759, at ** 3-4 (Tenn. Crim. App.,
Nashville, Feb. 29, 1984). The Petitioner and his co-defendant were convicted of aggravated rape
and of aggravated kidnapping. See id. at * 1. The Petitioner appealed, and our Court affirmed the
convictions. See id. at * 7. The Petitioner filed a petition for post-conviction relief, which the trial
court denied. Our Court affirmed the denial of post-conviction relief, concluding that the Petitioner
had received effective assistance of counsel. See Danny King v. State, No. 86-23-III, 1986 Tenn.
Crim. App. LEXIS 2791, at * 4 (Tenn. Crim. App., Sept. 30, 1986).

        Pursuant to the Post-Conviction DNA Analysis Act of 2001, the Petitioner filed a petition
requesting “all human biological evidence in the possession or control of the prosecution, law
enforcement, laboratory or court which relates to the investigation and prosecution” of the Petitioner
in Case Number J82106. He claimed in the petition that “[t]he probability do[es] exist that the
[P]etitioner would not have been prosecuted or convicted if exculpatory results had [been] obtained
through DNA Analysis.” He further claimed that the DNA analysis would have provided him with
a more favorable result in his case. According to the Petitioner, Dr. Pat Williams “cast doubt as to
the offense of [a]ggravated rape” in this case by stating that “he found no lacerations, abrasions or
anything of that nature on the outside of the victims’ pelvis, outside the vagina,” and that there “were
no vaginal tears or vaginal lacerations.”

        The State responded that there was no human biological evidence in existence for DNA
analysis. The State also “incorporate[d] by reference . . . the affidavit and attachments filed in
William D. Buford v. State of Tennessee, 1101-333, wherein the State denied the existence of
potential DNA evidence regarding the Co-Defendant.” Following the State’s response, the Petitioner
alleged that the Assistant Public Defender who represented him provided ineffective assistance of
counsel, and he requested that the trial court appoint a new attorney. He further requested that the
trial court grant his petition for DNA analysis. The Petitioner alleged that the affidavit to which the
State referred stated that the prosecution requested from Vicki Lane, Deputy Court Clerk of the
Court of Criminal Appeals, any records that she may have. The Petitioner claims that at trial, Dr.


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Pat Williams testified that he found semen in the victim and that he had two slides regarding the
same. Regarding his ineffective assistance of counsel claim, the Defendant maintained that his
attorney failed to adequately discuss the case with him or investigate the items that could possibly
be analyzed for DNA.

       The Post-Conviction DNA Analysis Act provides, in pertinent part, that
       a person convicted of and sentenced for the commission of first degree murder,
       second degree murder, aggravated rape, rape, aggravated sexual battery or rape of a
       child, the attempted commission of any of these offenses, any lesser included offense
       of these offenses, or, at the direction of the trial judge, any other offense, may at any
       time, file a petition requesting the forensic DNA analysis of any evidence that is in
       the possession or control of the prosecution, law enforcement, laboratory, or court,
       and that is related to the investigation or prosecution that resulted in the judgment of
       conviction and that may contain biological evidence.
Tenn. Code Ann. § 40-30-403. “After notice to the prosecution and an opportunity to respond,” id.
§ 40-30-404, the Act requires a court to order DNA analysis if the court finds that
                (1) [a] reasonable probability exists that the petitioner would not have been
       prosecuted or convicted if exculpatory results had been obtained through DNA
       analysis;
                (2) [t]he evidence is still in existence and in such a condition that DNA
       analysis may be conducted;
                (3) [t]he evidence was never previously subjected to DNA analysis or was not
       subjected to the analysis that is now requested which could resolve an issue not
       resolved by previous analysis; and
                (4) [t]he application for analysis is made for the purpose of demonstrating
       innocence and not to unreasonably delay the execution of sentence or administration
       of justice.
Id.

       However, a court may order DNA analysis if it makes the following findings:
               (1) A reasonable probability exists that analysis of the evidence will produce
       DNA results which would have rendered the petitioner’s verdict or sentence more
       favorable if the results had been available at the proceeding leading to the judgment
       of conviction;
               (2) [t]he evidence is still in existence and in such a condition that DNA
       analysis may be conducted;
               (3) [t]he evidence was never previously subjected to DNA analysis, or was
       not subjected to the analysis that is now requested which could resolve an issue not
       resolved by previous analysis; and
               (4) [t]he application for analysis is made for the purpose of demonstrating
       innocence and not to unreasonably delay the execution of sentence or administration
       of justice.



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Id. § 40-30-405. The Act also states that “[t]he court may, at any time during proceedings instituted
under this part, appoint counsel for an indigent petitioner.” Id. § 40-30-407.

        We conclude that the trial court did not err by denying the Petitioner’s request for DNA
analysis. In this case, aggravated rape is among the crimes for which the trial court must order DNA
analysis if the Petitioner satisfies the statutory requirements. However, the Petitioner’s conviction
for aggravated kidnapping is a crime for which testing is discretionary. See id. § 40-30-403. The
State maintained that no human biological evidence was in existence for DNA analysis. Although
the Petitioner points out that the State had requested any records held by the Deputy Court Clerk of
the Court of Criminal Appeals, he failed to present proof that there was any evidence in existence.
Furthermore, we note that the Petitioner has also failed to establish how the DNA analysis would
have resulted in a more favorable outcome. At trial, the Petitioner offered no defense. See State v.
William D. Buford, 1984 Tenn. Crim. App. LEXIS 2759, at * 3. This issue is without merit.

        We also conclude that the trial court did not err by failing to appoint the Petitioner new
counsel. The Petitioner has failed to prove that the trial court abused its discretion by denying his
motion for substitution of counsel. The Petitioner has no constitutional entitlement to the effective
assistance of counsel in a post-conviction proceeding. State v. Phillips, 904 S.W.2d 123, 124 (Tenn.
Crim. App. 1995). In addition, the Post-Conviction DNA Analysis Act of 2001 states that “[t]he
court may, at any time during proceedings instituted under this part, appoint counsel for an indigent
petitioner.” Tenn. Code Ann. § 40-30-407 (emphasis added). “[B]ecause the appointment of
counsel is discretionary under the statute, whether to substitute counsel was also discretionary.”
William D. Buford v. State, No. M2002-02180-CCA-R3-PC, 2003 Tenn. Crim. App. LEXIS 370,
at * 18 (Tenn. Crim. App., Nashville, Feb. 12, 2003).

        Furthermore, the Petitioner’s primary complaints were that his attorney failed to adequately
discuss the case with him or investigate the items that may be analyzed for DNA. As we have
indicated, the Petitioner’s argument that certain items should be analyzed for DNA failed because
the prosecution did not have any of the items in its possession. Moreover, the Petitioner failed to
establish that a DNA analysis of the items would have resulted in a more favorable outcome. Thus,
we see no evidence in this record supporting the Petitioner’s complaints about counsel or indicating
that any conduct by counsel caused any prejudice to the Petitioner. We conclude that the Petitioner’s
complaints about counsel are without merit.

       Accordingly, the judgment of the trial court is AFFIRMED.




                                                      ___________________________________

                                                      ROBERT W. WEDEMEYER, JUDGE



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