         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      May 7, 2002 Session

           DARRELL WAYNE TAYLOR v. STATE OF TENNESSEE

             Post-Conviction Appeal from the Criminal Court for Shelby County
                       No. P-07864    Carolyn Wade Blackett, Judge



                       No. W2001-01806-CCA-R9-PD - Filed May 2, 2003


This appeal arises pursuant to Tenn. R. App. P. 9. The appellant, Darrell Wayne Taylor, seeks
interlocutory review of the question of whether a trial court in a post-conviction proceeding
involving a capital case is authorized following an ex parte grant of fees for expert services pursuant
to Tennessee Code Annotated Section 40-14-207(b), to issue ex parte orders directing the
transportation of evidence in state custody to a defense expert for independent forensic tests. After
careful consideration of the applicable law, we hold that there is no right on the part of an accused
in a criminal case, capital or otherwise, to obtain permission ex parte for independent forensic testing
of physical evidence in the custody of the State. However, following an adversarial hearing where
both the prosecution and the defense may be heard, the trial judge may grant a defense request for
independent testing of such physical evidence under such conditions as the trial court may in its
discretion deem appropriate to protect the interests of both parties. Accordingly the judgment of the
trial court staying the ex parte order to transport physical evidence for independent testing is
affirmed and the case is remanded for further proceedings in accordance with this opinion.

                 Tenn. R. App. P. 9; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.
GLENN, JJ., joined.

Paul J. Morrow, Jr., Deputy Post-Conviction Defender and Jefferson T. Dorsey, Post-Conviction
Defender, Nashville, Tennessee, for appellant, Darrell Wayne Taylor.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; John Campbell and Glenn R. Pruden, Assistant
District Attorneys General, for appellee, State of Tennessee.
                                                       OPINION

                                                      Background

        As a result of his conviction for first degree murder, the appellant, Darrell Wayne Taylor,
received a sentence of death. On direct appeal his conviction and sentence were affirmed by the
Tennessee Supreme Court. State v. Taylor, 774 S.W.2d 163 (Tenn. 1989). An amended petition for
post-conviction relief was filed with the Shelby County Criminal Court in September 1997.1 The
State filed a response. During the pendency of the proceedings and pursuant to Tennessee Code
Annotated Section 40-14-207(b), the appellant filed an ex parte request for funds to retain a ballistics
expert. This request was granted by the trial court and approved by the then Chief Justice of the
Tennessee Supreme Court. See Rule 13, § 5(d), Rules of the Supreme Court of the State of
Tennessee.

         A few months following the ex parte hearing wherein the appellant secured funding to hire
a ballistics expert, the appellant filed an ex parte sealed motion asking the trial court for a sealed
order directing the transportation of a lead bullet recovered by the Shelby County Medical Examiner
from the body of the victim in this case, Darrell Lee Richmond. On July 19, 2000, the trial court
granted this motion and ordered the bullet secretly transferred to the defense ballistics expert for
testing.

        The State subsequently became aware of this ex parte order to remove and transport the
bullet from the custody of the Memphis Police Department and on November 17, 2000, filed a
motion asking the trial court to stay its previous ex parte order directing the transportation of the
bullet. On the same day the trial court granted the State’s motion and ordered that the bullet be
returned to the custody of the Memphis Police Department. The appellant then filed a motion to
continue the trial and asked the trial court to reinstate its previous order allowing the “secret”
removal of the bullet presumably for independent testing. On November 20, 2000, the trial court
held a hearing on this defense motion filed by the appellant. The interlocutory appeal that is
currently present before this Court followed.2




         1
           In this amended p ost-conviction petition the appellant refers to “several” prior post-conviction proceedings
of which the amended petition is a consolidation. The record in this appeal does not contain those prior petitions nor
does the record reference the d ates of those petitions. However, the State has not raised any issue concerning the
applicab le statute of limitations for post-conviction pro ceedings.

         2
          The lower court never ruled on the appellant’s motion to dissolve the stay of the ex pa rte order to transport
the evidence in q uestion thus raising the question o f exactly what ord er is the sub ject of this appeal. The trial court’s
order granting the interlo cutory appeal simp ly asks this Court for guida nce in cases of this nature. Nevertheless, the
appeal in this case was granted by another pa nel of this Court and we will therefore add ress the merits of the questions
raised.

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                       Ex Parte Request for Funds to Pay for Expert Services

        In Tennessee ex parte hearings are generally disfavored and disallowed. State v. Barnett, 909
S.W.2d 423, 428 (Tenn. 1995). Nevertheless, Tennessee Code Annotated Section 40-14-207(b), and
Rule 13, § 5(b), Supreme Court Rules, permit indigent defendants in capital cases to file an ex parte
request with the trial court to secure funding for expert services needed in the preparation of the
defense. In order that these defendants might better litigate post-conviction claims involving the
need for certain expertise, the Tennessee Supreme Court in 1995 extended this ex parte procedure
to requests for expert services involving indigent post-conviction petitioners under a sentence of
death. Owens v. State, 908 S.W.2d 923 (Tenn. 1995).
        In Barnett, 909 S.W.2d at 429, our state supreme court held that, at least with respect to
requests for funding for psychiatric services, the due process clause of the Fourteenth Amendment
to the United States Constitution required ex parte hearings for indigent petitioners in both capital
and non-capital cases.

        The court stated:

                The logic of requiring an ex parte hearing under such circumstances
                is apparent. Indigent defendants who must seek state funding to hire
                a psychiatric expert should not be required to reveal their theory of
                defense when their more affluent counterparts, with funds to hire
                experts, are not required to reveal their theory of defense, or the
                identity of experts who are consulted, but who may not, or do not,
                testify at trial.

Barnett, Id. at 428.

         However, the court in Barnett specifically declined to address the question of whether such
ex parte hearings are required when seeking funding for non-psychiatric experts. Id. at 4. The court
noted that the North Carolina Supreme Court has held such ex parte hearings are not constitutionally
required in seeking funding for non-psychiatric experts. Id. (citations omitted).
         Nevertheless, the Tennessee General Assembly has determined that in capital cases indigent
requests for funding for expert services of any type may be filed ex parte. Tenn. Code Ann. § 40-14-
207(d). Our supreme court has echoed this statute in Rule 13, § 5(b), Rules of the Supreme Court.
Thus, the petitioner herein was well within his rights to file an ex parte request for expert funds and
the trial court was well within its jurisdiction in granting those funds. The petitioner however is
asking this Court to extend section 40-14-209(d) to cover ex parte requests to remove evidence in
state custody for independent testing.




                                                 -3-
                 Ex Parte Order to Secretly Transport Bullet From Police Custody for
                                    Testing by Petitioner’s Expert

        Tennessee Code Annotated Section 40-14-207(b) is simply a funding mechanism to place
indigent and non-indigent capital defendants in an equal position vis-a-vis funding. Nothing in that
statute nor in Rule 13, § 5 authorizes a trial court to conduct an ex parte hearing on requests to
independently test evidence in the State’s possession. Testing of evidence in the custody of the State
in either a criminal trial or in a post-conviction hearing, regardless of whether a capital or non-capital
offense is involved, is a discovery matter and is governed by the rules of discovery applicable to the
criminal proceeding. State v. Gaddis, 530 S.W.2d 64, 69 (Tenn. 1975); State v. Gilbert, 751 S.W.2d
454, 460 (Tenn. Crim. App. 1988) (Both holding the right of an accused to test certain items of
physical evidence in the State’s possession is governed by applicable rules of discovery that permit
a defendant in a criminal case to inspect and/or examine “tangible objects” in the State’s possession.)


         In a post-conviction case, discovery is governed by Tennessee Code Annotated section 40-
30-209(b) and Supreme Court Rule 28, § 6 (B)(3)(c) and § 6 (C)(7).3 The statute provides that in
a post-conviction proceeding discovery is only available pursuant to Tennessee Rule of Criminal
Procedure 16. The first of the court rules, just mentioned, directs the trial court upon a finding that
the post-conviction petition contains a colorable claim to order, inter alia, disclosure by the state “of
all that is required to be disclosed under Rule 16 of the Tennessee Rules of Criminal Procedure, to
the extent relevant to the grounds alleged in the petition, and any other disclosure required by the
state or federal constitution.” Rule 28, § 6 (C)(7) directs the state to comply with the court’s order
to permit discovery under Rule 16 of the Tennessee Rules of Criminal Procedure.

        The procedure outlined in the preceding paragraph is the exclusive method of obtaining
discovery and therefore inspection and testing of physical evidence in the state’s possession. There
is no provision in any of the applicable statutes or court rules for an ex parte hearing resulting in an
order that would allow the petitioner in the instant case to secretly remove and independently test
a bullet in the possession of the state. To extend the provisions of Tennessee Code Annotated
Section 40-14-207(b) in the manner suggested by the petitioner would be to grant to indigent
defendants and post-conviction petitioners a right which non-indigent defendants and petitioners do
not enjoy. Such was never the intent of section 40-14-207(b).


        The trial court may of course upon proper notice to the state conduct an adversarial hearing
and in the exercise of discretion allow petitioner’s expert to test the bullet in question. The trial
court may also, following an adversarial hearing where both parties are heard, order such terms and


         3
           The petitioner argues that his petition is not governed by either Tennessee Code Annotated section 40-30-
209(b) or R ule 28 because his case arose prior to 1995. However, the Tennessee Suprem e Court in State v. W est, 19
S.W.3d 753, 756 (Tenn. 2000 ) held that after the adoption of Rule 28 all prior laws in conflict with Rule 28 were of no
further force or effect. See also Tenn. Cod e Ann. § 16-3-406 (19 94).

                                                          -4-
conditions of custody and testing as may be necessary to protect the interests of both parties. Tenn.
R. Crim. P. 16(d)(2); Ray v. State, 984 S.W.2d 236, 239 (Tenn. Crim. App. 1997). There is however
no provision in the law of Tennessee which would allow the trial court to conduct an ex parte
hearing that results in an order for the secret removal and transportation of an item of physical
evidence in the state’s custody for the purpose of independent testing.

        In view of the foregoing we affirm the trial court’s decision to rescind the ex parte order
allowing the petitioner to remove the bullet in question for independent testing, and ordering the
return of the bullet to the Memphis Police Department property room. We remand this case to the
trial court for further proceedings in accordance with the provisions of this opinion.




                                                      ___________________________________
                                                      JERRY L. SMITH, JUDGE




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