         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 14, 2003 Session

                   SHARON R. HURT v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                          No. 94-C-1532    Seth Norman, Judge



                    No. M2002-00900-CCA-R3-PC - Filed March 14, 2003


Petitioner, Sharon R. Hurt, was convicted by a jury of first degree murder and conspiracy to commit
first degree murder. The trial court sentenced Petitioner to serve consecutive sentences of life
imprisonment and twenty-four years. On direct appeal, this court affirmed Petitioner's convictions
and sentences. State v. James Murray, Marcie Murray and Sharon R. Hurt, No. 01C01-9702-CR-
00066, 1998 Tenn. Crim. App. LEXIS 1323, 1998 WL 934578 (Tenn. Crim. App., filed at Nashville,
Dec. 30, 1998), perm. to app. denied (Tenn., June 28, 1999). On September 4, 2001, Petitioner filed
a petition for post-conviction relief, in which she alleged the existence of new scientific evidence
establishing her actual innocence. The State sought to dismiss the petition. The trial court dismissed
the petition, finding that Petitioner failed to show the existence of new scientific evidence, and the
petition was therefore barred by the statute of limitations. After a review of the record, we affirm
the judgment of the trial court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Peter J. Strianse, Nashville, Tennessee, for the appellant, Sharon R. Hurt.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

Factual Background

        The record on appeal does not contain a transcript of the evidence presented at trial. The
facts as summarized by this court on direct appeal are sufficient to provide a factual background.
Petitioner married Don Hurt in February, 1988. Petitioner began having an affair with Leonard
Rowe in the summer of 1990. Rowe provided Petitioner with a condominium and paid her to be his
“personal secretary.” Rowe also gave Petitioner money to buy a pink Cadillac. In December of
1990, Rowe decided to reconcile with his wife. Petitioner became angry and returned to live with
her husband, Don Hurt. The affair between Petitioner and Rowe continued, however, and Petitioner
continued to work for Rowe. In the direct appeal, our court set forth the remaining pertinent facts
as follows:
                  Wanda Hudgins testified that in January 1991, she had a conversation with
         Sharon Hurt about Don Hurt. Sharon stated that she was “sick” of her husband
         and “couldn’t stand him” because he was “smothering her.” On another occasion,
         Hudgins went with Sharon to meet with Rowe at his place of business. Sharon
         began to tell Rowe “how much trouble” Don was causing her. Rowe then took
         some letters out of a safe and Sharon told Hudgins that she was keeping these
         letters for “ammunition” for when she could divorce Don because she was “not
         leaving with nothing. I’m going to take him for everything.” Rowe then reached
         into his desk, pulled out a gun, and said “I have something that will take care of
         Don Hurt.” Rowe later attributed this behavior to “acting macho” and “running
         off at the mouth.”

         Rowe testified that as a result of his affair with Sharon Hurt, he met some of her
         family, including her sister and brother-in-law, Appellants Marcie and James
         Murray [who were convicted along with Petitioner]. In February 1991, the
         Murrays told Rowe that Don Hurt had borrowed $15,000 from them, had not paid
         any of it back, and as a result, they were going to “kill the son-of-a-bitch.” Rowe
         also testified that around this time, Sharon Hurt told him that she had offered
         James and Marcie Murray money to shoot her husband.

         Hudgins testified that Sharon Hurt called her in May 1991 and requested some
         information. Sharon knew that Hudgins’ first husband had been killed in an
         accident and she asked Hudgins how to determine the amount of life insurance she
         should have on Don. She also asked questions about how long it took to receive
         insurance proceeds after a person died and how to make a claim.
                ....
         During the early morning hours of June 11, 1991, Don Hurt was driving his truck
         near the Tennessee River when what he later described as a red or orange 1979-81
         Firebird or Camaro type vehicle pulled alongside of his cab and someone in the
         car fired a shotgun at him. The slug penetrated the side of the truck just behind
         the driver’s door, passed through the driver’s seat, went through Don Hurt,
         ricocheted against the windshield, and landed on the floorboards near the
         passenger side of the vehicle. Don Hurt, who suffered gunshot wounds to his left
         shoulder and neck, was transported to the Camden Emergency Room and from
         there was taken to Columbia HCA Regional Hospital in Jackson. [He was
         discharged seven days later.]

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        ....
Rowe testified that shortly after the shooting, he had a conversation with Sharon
Hurt during which she said that “Marcie and Jimmy had messed the job up and
she would have to take care of it herself.” Shortly afterwards, Rowe saw all three
Appellants in his office. At this time, Marcie and James Murray told him that
they shot Don Hurt with a 12-gauge shotgun while he was driving on the
interstate. Marcie Murray also told Rowe that they were going to go to the
hospital to inject air into the tubes that fed Don intravenously. James Murray told
Rowe that if he told anyone about the incident, “we don’t mind taking your life
and your whole damn family.”
        ....
Rick Hurt testified that while he was visiting his father in the hospital the day after
the shooting, Sharon Hurt stated that whoever shot Don “didn’t finish the job, but
they would be back to finish it.” When Rick replied that “snipers don’t come
back,” Sharon responded “well, they’ll be back.”
        ....
Rowe testified that on the morning or early afternoon of December 19, 1991,
Sharon Hurt telephoned him and asked to meet with him at a restaurant. When
Rowe arrived at the restaurant at 1:00 or 2:00 p.m., Sharon Hurt and James and
Marcie Murray were outside in Sharon’s car. Rowe walked up to the car and
James Murray asked him about a .38 pistol that Rowe had recently purchased.
Rowe retrieved the gun from his truck and James Murray asked if he could borrow
the gun for a few days. Rowe agreed and gave the gun to James Murray. Rowe
also testified that Sharon Hurt knew that he kept this gun in his truck at all times.
Rowe denied having any knowledge that the group was planning to kill Don Hurt
at this time.

Mickey Dalton testified that on December 19, 1991, at approximately 8:00 p.m.,
she was driving down Williamson Road near the intersection of Old Springfield
Highway in Goodlettsville. Because few cars ever parked on the side of the busy
roads in that area, her attention was drawn to two cars that were parked on the side
of the road. The car in the rear was an older gold colored car while the car in the
front was a newer “light pastel funny colored kind of pastel car,” that appeared to
be a make and model similar to a Cadillac Seville. She noticed that two people
were sitting in the front of the newer looking car.

The police discovered Don Hurt’s body sitting on the passenger side of his gold
colored vehicle on Williamson Road at approximately 11:00 a.m. on December
20, 1991. An autopsy revealed that Don Hurt had sustained two gunshot wounds
to the left side of his head, one at near contact and one at contact. Each shot,
although closely placed to each other, was fired from a different angle. Both of

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 the shots were fatal and Don would have been immediately unconscious. The
 autopsy revealed that Don’s time of death was between 7:30 and 8:00 p.m. on
 December 19, 1991. Firearms specialist Steve Scott testified that a bullet
 fragment retrieved from Don Hurt’s head and a fragment found lying on the floor
 of Don’s car were both .38 caliber bullets.

 Doctor Charles Harlan testified that an examination of Don Hurt’s blood revealed
 that he had consumed one to two mixed drinks within one hour of his death. In
 addition, his blood contained quantities of the antidepressant Elavil and
 diphenhydramine, commonly known as Benadryl. Doctor Harlan testified that
 Benadryl can be used as a sedative as it has the side effect of making a person feel
 sleepy. Don’s blood contained an amount of Benadryl that was approximately
 twenty times greater than the normally accepted therapeutic level. Benadryl is fast
 acting and will reach maximum effectiveness within one hour. Doctor Harlan
 testified that this high level of Benadryl mixed with alcohol would have made
 Don drowsy. Benadryl could be obtained in capsule form or in liquids either with
 flavor or without.
         ....
 Rowe testified that when he learned of Don Hurt’s death, he called James Murray
 to ask him if he had his .38 pistol. James told him that he had disassembled it and
 strewn it along the interstate on the way back to Sevierville, Tennessee. James
 also stated that he and Marcie had thrown their blood soaked clothes off a bridge
 into a river on their way home.
         ....
 Rowe testified that at some point after the funeral, Sharon Hurt told him that “She
 wouldn’t have went along with them to murder [Don] if she had known they were
 going to beat him up like that.” Sharon later told him that she was angry with the
 Murrays because they had taken Don’s gold and diamonds and that she was going
 to deduct that from the amount of money that she owed them.
         ....
 Rowe testified that in July 1992, he asked James Murray to tell him precisely what
 happened the night that Don was murdered. James told him that they had put
 “mickeys” in Don’s drinks and then the three of them walked him through
 the front door and out to the car. James and Marcie then each shot Don in the
 head. . . .

State v. Murray, et al, supra.




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Post-Conviction Petition

      On the State’s motion to dismiss the petition for post-conviction relief, the trial court heard
arguments by the parties. No evidence was presented at the post-conviction hearing.

        In this case, the Tennessee Supreme Court denied permission to appeal on June 28, 1999, and
Petitioner filed the petition for post-conviction relief on September 4, 2001. A petitioner has one
year beyond the “date of the final action of the highest state appellate court to which an appeal is
taken” in which to file a petition for post-conviction relief. Tenn. Code Ann. § 40-30-202(a) (1997).
The statute of limitations had clearly expired before Petitioner filed her petition. Petitioner argues
an exception, however, to the statute of limitations pursuant to Tenn. Code Ann. § 40-30-202(b).

        A court may entertain a post-conviction petition filed after the expiration of the statute of
limitations if: (1) the claim is based upon the final ruling of an appellate court establishing a
constitutional right that was not recognized as existing at the time of trial; (2) the claim is based upon
new scientific evidence establishing that the defendant is actually innocent of the offense; or (3) the
claim seeks relief from a sentence that was enhanced because of a previous conviction which has
subsequently been held to be invalid. Tenn. Code Ann. § 40-30-202(b) (1997).

        Petitioner contends that new scientific evidence of her actual innocence entitles her to post-
conviction relief. The evidence upon which Petitioner relies is a letter from the legal department of
the Pfizer Corporation, the manufacturer of Benadryl, which states that Benadryl was not available
in a clear liquid form until 1995, more than three years after the crimes for which she was convicted
occurred.

        First, we must determine if the letter constitutes “new scientific evidence,” as required by the
statute. Both the State and Petitioner cite Justice Barker’s concurring and dissenting opinion in Van
Tran v. State, 66 S.W.3d 790, 818-19 (Tenn. 2001), for guidance. Justice Barker wrote:

         The Post-Conviction Procedure Act of 1995 does not define “new scientific
         evidence” as used in Section 40-30-217(a)(2). It seems to me that two reasonable
         constructions of the phrase are possible. First, the language could be narrowly
         construed to mean only scientific evidence which either was not developed or was
         not in existence at the time of the petitioner’s original post-conviction proceeding.
         Alternatively, the language could be given a broader construction by including
         scientific evidence which, although in existence, was not available to the
         petitioner at the time of his original post-conviction proceeding by the exercise of
         due diligence. I would give the statutory language the broader construction
         because I believe that it more nearly effectuates the intent of the General
         Assembly.

      Petitioner argues that the “exculpatory proof” was not available to her at the time of trial, thus
making it new, because the trial court denied her motion for state funds to employ the services of an


                                                   -5-
expert. This court affirmed the trial court’s denial of Petitioner’s request. State v. Murphy, et al,
supra. Furthermore, Petitioner successfully obtained the letter prior to presenting this post-
conviction claim without the assistance of state funds or an expert. We conclude that “by the
exercise of due diligence,” a letter stating the forms in which Benadryl was available at the time of
the offenses could have been easily obtained. Petitioner’s discovery that Benadryl was not produced
in a colorless, tasteless form at the time of the offenses is not new scientific evidence.

        Even if the letter constituted new scientific evidence, it fails to establish Petitioner’s actual
innocence of the crimes for which she was convicted. Petitioner argues that this evidence
“contradicts the State’s theory of prosecution.” Specifically, Petitioner contends that she could not
have mixed purple, grape-flavored Benadryl with her husband’s drink without his detection.
Petitioner argues that this evidence debunks the State’s theory that she drugged and incapacitated
her husband before he was killed. The victim in this case died as a result of gunshot wounds to the
head. Therefore, the evidence fails to establish Petitioner’s actual innocence. At most, the evidence
could have been used at trial to impeach Dr. Harlan’s testimony that Benadryl could be obtained in
a tasteless form when the crimes were committed. Petitioner is not entitled to relief.

                                           CONCLUSION

        The judgment of the trial court is affirmed.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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