        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs January 14, 2004

                  STEVEN GRIFFIN v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                            No. 93-C-1154   Steve Dozier, Judge



                     No. M2003-00557-CCA-R3-PC - Filed July 13, 2004


The petitioner, Steven Griffin, appeals the trial court’s denial of his request for forensic DNA
analysis, pursuant to the Post-Conviction DNA Analysis Act of 2001. Our review discloses that the
trial court ruled correctly, and we affirm the denial of the petitioner’s request.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, J., joined. JOSEPH M. TIPTON , J., filed a dissenting opinion.

Steven Griffin, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Doug Thurman, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                           OPINION

               While serving his eighty-five-year sentence for aggravated kidnapping and six counts
of aggravated rape, the petitioner filed a written request with the Davidson County Criminal Court
in late December of 2002, asking that all human biological evidence in the state’s possession or
control and related to his convictions be submitted for DNA analysis. As grounds, the petitioner
claimed that no comparison of the victim’s and his DNA had ever been performed and that a
“probability does exist that the petitioner would not have been prosecuted and/or convicted if
exculpatory results had been obtained through DNA analysis.” Previously, the petitioner had
unsuccessfully attacked his convictions on direct appeal, through the post-conviction process, and
through federal habeas corpus avenues. See Steven Craig Griffin v. State, No. 01C01-9801-CR-
00004 (Tenn. Crim. App., Nashville, May 6, 1999), perm. app. denied (Tenn. 1999) (post-
conviction); State v. Steven Craig Griffin, No. 01C01-9404-CR-00144 (Tenn. Crim. App., Nashville,
Jun. 28, 1995), perm. app. denied (Tenn. 1995) (direct appeal).
               The state filed a motion to dismiss and raised two issues. First, it asserted that no
DNA evidence existed that would be capable of being tested. Second, it maintained that, in
connection with the petitioner’s appeal from the denial of his post-conviction petition, the trial
court’s determination that DNA evidence was irrelevant to the consensual sex defense was affirmed,
thereby undermining any claim that the petitioner would not have been prosecuted or convicted.

               The Davidson County trial court to which the petitioner’s current motion was
assigned treated the application as a petition to reopen the earlier post-conviction proceedings and
denied same on February 13, 2003, with the following explanation:

                       As to the petitioner’s first claim raised in his initial post-
               conviction proceeding, the trial court found that questions regarding
               DNA were irrelevant because the petitioner’s theory was consensual
               intercourse with the victim. Secondly, the petitioner demanded a
               speedy trial within 180 days under the Interstate Compact on
               Detainers Act . . . thereby not providing sufficient time for DNA
               testing. The Court is of the opinion that the defendant opted out of
               DNA testing. . . .

                       The petitioner’s current petition to re-open post-conviction
               proceedings requests that any physical evidence in existence be
               subjected to a DNA analysis. The petitioner was afforded a serology
               analysis and those results were made known prior to the trial in this
               matter. The Court reviewed the audio tapes of the petitioner’s
               original trial in this matter. Indeed, the petitioner’s defense
               maintained that the victim consented to intercourse. Based on this
               defense, the petitioner’s prior post-conviction petition raising this
               issue and the Court of Criminal Appeals ruling, the Court is of the
               opinion that [t]he petitioner’s petition to re-open post-conviction
               should be respectfully denied.

The court made no findings relative to the existence of any evidence containing DNA that could be
analyzed.

                On appeal, the petitioner appears pro se. He maintains that the trial court should not
have summarily dismissed his petition for DNA analysis without appointing counsel to represent
him, without affording an opportunity for the petition to be amended, and without an evidentiary
hearing. The petitioner also airs other complaints in the nature of counsel’s ineffective assistance
and restrictions on cross-examination of the state’s expert serologist at trial; we decline to address
these latter complaints, as they clearly fall outside the ambit of the Post-Conviction DNA Analysis
Act of 2001. See Ricky Flamingo Brown, Sr. v. State, No. M2002-02427-CCA-R3-PC (Tenn. Crim.
App., Nashville, June 13, 2003) (Act does not permit petitioner to appeal unrelated claims or reargue



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the issues raised in his previous, unsuccessful petition for post-conviction relief), perm. app. denied
(Tenn. 2003).

              The Post-Conviction DNA Analysis Act of 2001 provides in relevant part that a
person convicted of aggravated rape

                  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. § 40-30-303 (2003). There is no statute of limitations barring the filing of a
petition seeking forensic DNA analysis, see Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-
PC (Tenn. Crim. App., Nashville, Apr. 11, 2003), but the Act incorporates specific qualifying criteria
that must be satisfied before a court orders DNA analysis. Relevant to this case,1 those conditions
are:

                  (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) The evidence is still in existence and in such a condition that
                  DNA analysis may be conducted;

                  (3) The 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) The 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. § 40-30-304 (2003).




         1
            The Act incorporates two separate sets of qualifying criteria. Code section 40-30-304 addresses a situation
involving a “reasonable probability . . . that the petitioner would not have been prosecuted or convicted.” Tenn. Code
Ann. § 40-30-304 (2003) (emphasis added). Code section 40-30-305 is written to include the existence of a “reasonable
probability . . . that analysis of the evidence will produce DNA results which would have rendered the petitioner’s verdict
or sentence more favorable.” Id. § 40-30-305 (2003) (emphasis added). In the instant petition, the petitioner alleged
a Code section 40-30-304 basis for relief that he would not have been prosecuted and/or convicted had DNA analysis
been performed.

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               The propriety of summarily dismissing a petition requesting analysis and the
construction of the Act was examined at length in William D. Buford v. State, No. M2002-02180-
CCA-R3-PC (Tenn. Crim. App., Nashville, Apr. 24, 2003). From Buford, we distill that the Post-
Conviction DNA Analysis Act of 2001 contemplates the summary dismissal of a petition requesting
analysis “under appropriate circumstances.” William D. Buford, slip op. at 6. The Buford court
explained,

                [I]f the contents of a petition establish a prima facie case and, after
                any response by the state, the trial court determines all statutory
                prerequisites are present, a petitioner convicted of one of the
                statutorily enumerated crimes is entitled to DNA analysis. See Tenn.
                Code Ann. § 40-30-[3]04. If the state contests the presence of any
                qualifying criteria and it is apparent that each prerequisite cannot be
                established, the trial court has the authority to dismiss the petition.
                Considerable latitude must be given to trial courts in gathering the
                necessary information for the decision. See Tenn. Code Ann. §
                40-30-[3]11 (“The court may in its discretion make such other orders
                as may be appropriate.”).

William D. Buford, slip op. at 7.

                 As we view the matter in the case before us, there are four issues to be addressed.
The first issue relates to the trial court’s treatment of the request for DNA analysis as a petition to
reopen the earlier post-conviction proceeding. The second issue involves the adequacy of the state’s
response that “[n]o DNA evidence exists which could be subject to testing or analysis at this time.”
The third issue is whether, as a matter of law, the “consensual sex defense” that the petitioner
pursued at trial defeats the need for testing. The last issue is whether, to secure relief pursuant to the
Act, the petitioner must demonstrate that he did not waive DNA testing in earlier proceedings.

                 As for the first issue, we conclude that the court should not have treated the
petitioner’s request as a petition to reopen his earlier post-conviction proceedings. The procedure
for applying to reopen an earlier post-conviction petition is set forth in considerable detail in Code
section 40-30-117. A court order for DNA analysis, granted pursuant to the Post-Conviction DNA
Analysis Act of 2001, however, does not automatically supply adequate grounds to support the
reopening of an earlier petition. Before an earlier petition can be reopened, a petitioner must show,
inter alia, that “new scientific evidence establish[es] that such petitioner is actually innocent of the
offense or offenses for which the petitioner was convicted” or that “the facts underlying the claim,
if true, would establish by clear and convincing evidence that the petitioner is entitled to have the
conviction set aside or the sentenced reduced.” Tenn. Code Ann. § 40-30-117(a)(2), (4) (2003). To
be sure, if DNA analysis, ordered pursuant to the Act, ultimately yielded scientific results
exculpatory to the petitioner, then adequate grounds may well exist to reopen the earlier petition.
Nonetheless, the two procedures are distinct and should not be confused. See Ray v. State, 984
S.W.2d 236, 238 (Tenn. Crim. App. 1997) (section 40-30-117(a)(2) does not provide petitioner a


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vehicle for obtaining discovery; rather, petitioner must delineate in the motion to reopen the new
scientific evidence that has already been secured). As Buford explains, the task of the court
reviewing a request for DNA analysis is to (1) examine the contents of the petition, (2) determine
if the petition alleges a prima facie case for relief, (3) consider any response that the state may offer,
and (4) determine if the statutory criteria are present. See William D. Buford, slip op. at 7.

               We turn next to the state’s response to the trial court that “[n]o DNA evidence exists
which could be subject to testing or analysis at this time.” On appeal, the state qualifies that
assertion and candidly points out in its appellate brief,

                         The ‘State’s Motion to Dismiss Petitioner’s Request for
                Forensic DNA Analysis’ asserted that ‘[n]o DNA evidence exists
                which could be subject to testing or analysis at this time.’ (TR, 7) If
                in fact no evidence were in existence, a second condition of the
                statute would fail, further negating any duty by the court to take
                action. However, the record indicates that “[b]lood, saliva, and oral
                and vaginal swabbings were obtained from the victim. A serologist
                testified that the presence of sperm was detected in both the vaginal
                and oral swabs. Blood, saliva and hair belonging to both defendant
                and the victim’s husband were analyzed.” State v. [Steven Craig]
                Griffin[, No. 01C01-9404-CR-00144 on direct appeal] at *7. The
                State’s motion offered no explanation regarding evidence which
                might have existed previously or regarding efforts to locate evidence
                still existing. The lower court made no findings regarding the
                existence or condition of evidence which might be subjected to DNA
                analysis.

               Buford spoke of the “[c]onsiderable latitude” that must be given to trial courts “in
gathering the necessary information” to determine if the petitioner is entitled to DNA analysis. The
court in Buford then emphasized, “Because the trial court here made a conscientious effort to
determine the existence of the statutory conditions and had substantial facts upon which to
determine that the biological specimens were no longer available, a summary dismissal was
appropriate.” William D. Buford, slip op. at 7 (emphasis added). Among the substantial facts was
the prosecution’s affidavit stating, based upon “the records of the law enforcement agencies, the
prosecution, and the trial court clerk” that no specimen existed. Id., slip op. at 6.

                In this case, the court had no facts, substantial or otherwise, upon which a
determination could rest that biological specimens were no longer available. All the court had before
it was a conflict in the pleadings about the existence of DNA evidence. Because the state was
seeking a summary dismissal of the petition, we regard the state’s obligation in responding to the
petition as requiring more than a blanket, unsworn assertion that no such evidence exists. If the state
is remiss in providing an explanation or if its explanation is not sufficiently detailed, the trial court
has an obligation to make reasonable factual inquiries before dismissing the petition. We do not


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suggest that trial courts must or should conduct lengthy or protracted evidentiary hearings on the
matter; we anticipate that trial courts will exercise sound discretion to streamline the inquiry, for
instance, by placing the onus on the state to supply sufficient, reliable information.

              In this case, the state’s general, unsworn assertion that no testable evidence exists is
inadequate to sustain a summary dismissal of the petition for DNA analysis. The trial court,
however, did not in any way address this issue. The court summarily dismissed the petition on other
grounds, to which we now turn.

                As we previously framed it, the third issue is whether, as a matter of law, the
“consensual sex defense” that the petitioner pursued at trial defeats the need for testing. The trial
court opined that this theory of defense was fatal to the petition inasmuch as it defeated the statutory
requirement that a “reasonable probability exists that the petitioner would not have been prosecuted
or convicted if exculpatory results had been obtained through DNA analysis.” See Tenn. Code Ann.
§ 40-30-304(1) (2003). We disagree.2

                Unlike statutory schemes in other jurisdictions, Tennessee’s Post-Conviction DNA
Analysis Act of 2001 does not explicitly require that the petitioner show that identity was an issue
at trial. See William D. Buford, slip op. at 4; Willie Tom Ensley, slip op. at 2-3. Also, trial courts
in Tennessee “may” order testing even if DNA analysis would have produced only a more favorable
verdict or a more favorable sentence. Tenn. Code Ann. § 40-30-305(1) (2003); see William D.
Buford, slip op. at 4; Willie Tom Ensley, slip op. at 2-3.

                The recent decision in Jack Jay Shuttle v. State, No. E2003-00131-CCA-R3-PC
(Tenn. Crim. App., Knoxville, Feb. 3, 2004), applic. perm. app. filed (Tenn. Apr. 2, 2004), supports
the view that the theory of defense pursued at trial does not necessarily control the outcome of a
petition for DNA testing. The petitioner in Shuttle had been convicted of first-degree murder, and
after pursing post-conviction relief based on ineffective assistance of counsel, he filed a petition
requesting that blood underneath the victim’s fingernails and blood on his jeans be subjected to DNA
analysis. Jack Jay Shuttle, slip op. at 1-2. The lower court denied the petition, but that ruling was
reversed on appeal.




         2
             This court’s earlier opinion addressed the petitioner’s bid for post-conviction relief based on a claim of
ineffective assistance of counsel. The lower court had dismissed the post-conviction petition, and the dismissal was
affirmed on appeal. One of the petitioner’s complaints against trial counsel related to the absence of DNA testing. The
petitioner claimed that counsel was ineffective for not obtaining DNA testing and that counsel failed to cross-examine
the state’s expert about the inconclusive results of forensic tests that were performed and how DNA testing would have
included or excluded the petitioner as the source of the semen. Steven Craig Griffin, No. 01C01-9801-CC-00004, slip
op. at 4. In rejecting the complaint, this court stated that DNA evidence was irrelevant to the consensual sex defense
offered by the petitioner and that the proposed course of cross-examination would not advance the consent defense. Id.,
slip op. at 4-5. W e note that the petitioner’s complaint about counsel’s ineffectiveness did not impugn the theory of
defense pursued at trial.



                                                         -6-
                One of the issues in Shuttle was whether the petitioner’s testimony at trial that he
killed the victim defeated his bid for DNA testing in view of the requirement that he show a
reasonable probability that he would not have been prosecuted or convicted had exculpatory DNA
evidence been obtained. The Shuttle court did not find the trial testimony to be dispositive because
the Act was created with wrongfully convicted or sentenced defendants in mind. See id., slip op. at
6.

                 In the course of its ruling, the Shuttle court factually distinguished an earlier decision
in Carl E. Saine v. State, No. W2002-03006-CCA-R3-PC (Tenn. Crim. App., Jackson, Dec. 15,
2003), perm. app. denied (Tenn. 2004). Saine involved a petitioner convicted of assault and rape
who later petitioned to secure DNA testing of spermatozoa discovered on the victim’s torn panties.
The petitioner had confessed to assaulting the victim but claimed that the victim was unconscious
when he left and that someone else could have entered the room and raped the victim without her
knowledge. Carl E. Saine, slip op. at 3, 5. The court affirmed the denial of the petition for DNA
analysis because, inter alia, the evidence that Saine wanted tested could not be directly linked to the
rape. See id., slip op. at 5-6.

                Consequently, for the foregoing reasons, we do not view the theory of defense
pursued at trial as automatically controlling the outcome of a petition for DNA testing, nor do we
regard this court’s earlier opinion addressing counsel’s effectiveness as dispositive of the different
issue now before us. The trial court, as a result, erred in summarily denying the request for DNA
analysis as barred by the sexual consent defense at trial.

                 The last issue requires us to determine if the petitioner knowingly waived DNA
testing in earlier proceedings. To address the issue, we have consulted the court record in the earlier
post-conviction proceeding. See Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987) (“[C]ourts
may take judicial notice of . . . court records in an earlier proceeding of the same case and the actions
of the courts thereon.”).

                From the evidentiary hearing on the post-conviction petition, we glean that the
petitioner was extradited from Florida to Tennessee in June 1993. The petitioner demanded trial
within 180 days pursuant to the Interstate Compact on Detainers, see Tenn. Code Ann. § 40-31-101
et seq. (2003), and his trial commenced in September. While the case was underway, information
came to light that certain jurors had acquired independent knowledge of the petitioner’s prior
convictions, prompting the trial court to declare a mistrial. The case was rescheduled and tried in
October 1993, also within the 180-day window, at which time the petitioner was convicted. Because
the petitioner had demanded trial within 180 days of extradition, DNA testing could not have been
completed before either trial.

               The theory of defense at the first trial was reasonable doubt. Trial counsel explained
at the post-conviction hearing that a pivotal witness for the state was unavailable for the first trial.
Without this witness, the state’s ability to prove identity was thrown into doubt, thereby favoring a
mistaken identity/reasonable doubt line of defense. After the mistrial, however, the state located the


                                                   -7-
witness, which prompted counsel at the second trial to shift to a defense theory that the victim had
consented to the sexual encounter. The petitioner did not testify at the second trial.

                At the post-conviction hearing, the petitioner acknowledged the shift in defense
theories between the first and second trials, but he testified that the change in defenses “isn’t an issue
I presented in my post-conviction.” He also testified that, in terms of the offenses, he told counsel
he could not remember what had happened and was under the influence of alcohol. Likewise,
counsel testified that the petitioner related that he remembered being in the area and drinking
heavily, after which he had no memory of events later that night.

                From the testimony presented, the post-conviction court concluded,

                [T]here wasn’t time for the DNA testing to be conducted . . . if the --
                uh -- trial was to take place within the time frame that the defendant
                insisted upon. It was his right to insist upon that; but, it’s kind of --
                uh -- you can’t have your cake and eat it, too, type situation. And, he
                opted for the quick trial in this situation.

                 In our opinion, the petitioner’s earlier failure to pursue DNA analysis was a deliberate
and knowing bypass of that avenue of investigation, which constitutes waiver in the context of this
collateral action. In general, the client has exclusive authority to make decisions that are binding
upon the attorney within the framework of the law. See Zagorski v. State, 983 S.W.2d 654, 658
(Tenn. 1998). In this case, the petitioner’s desire for an early trial date was paramount, and he was
willing to forego a legally available objective to secure a speedy trial. If, as in this case, a competent
petitioner knowingly and voluntarily chooses a lawful course of action or defense strategy and if the
petitioner is thereby prejudiced by his own decision, he should not later be heard to complain.

                To be sure, the statutory sections of the Post-Conviction DNA Analysis Act of 2001
do not explicitly mention “waiver.” Nonetheless, one of the express qualifying criteria that must be
met to obtain DNA analysis is a showing that “[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.” Tenn. Code Ann. § 40-30-304(4) (2003). The concern expressed in that
qualifying criteria mirrors one of the often cited considerations for waiver: that is, finality. See
House v. State, 911 S.W.2d 705, 714 (Tenn. 1995). “[T]here must be a finality to all litigation,
criminal as well as civil.” Arthur v. State, 483 S.W.2d 95, 97 (Tenn. 1972).

                The facts surrounding the petitioner’s conviction demonstrate that the failure to
pursue DNA testing at the pretrial stage of the prosecution was a calculated decision. That decision,
moreover, was unrelated to the theory of defense. For the first trial, an identity/reasonable doubt
defense was pursued; for the second trial, consent was the theory of defense. In neither scenario did
the petitioner pursue available, scientific DNA analysis. His evident concern was a speedy trial; that
strategy might have carried the day in the first trial had a mistrial not been required, considering the
unavailability of a key witness for the state. That said, in our opinion it behooved the petitioner to


                                                   -8-
show in his application for DNA testing why his present request would “not unreasonably delay the
execution of sentence or administration of justice.” Tenn. Code Ann. § 40-30-304(4) (2003); see
Sedley Alley v. State, No. W2004-01204-CCA-R3-PC (Tenn. Crim. App., Jackson, May 26, 2004)
(noting that the post-conviction court expressed having “serious questions regarding the motivations
of the petitioner for raising this issue at this time” in terms of statutory requirement that petition for
DNA analysis must be brought for purpose of demonstrating innocence and not to unreasonably
delay execution of sentence or administration of justice). That showing was not made, for which the
trial court was authorized to dismiss the request for DNA analysis. See William D. Buford, slip op.
at 7 (if apparent that any of the qualifying criteria cannot be established, trial court has authority to
dismiss petition); see also Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as
requiring relief be granted to a party responsible for an error or who failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an error.”).

                 In summary, we conclude that the trial court should not have treated the request for
DNA analysis as a petition to reopen the earlier post-conviction proceeding. We further conclude
that the state’s response was inadequate to explain why it could not produce the requested evidence
and, therefore, could not supply grounds to summarily dismiss the petitioner’s request. Moreover,
we conclude that the “consensual sex” theory of defense did not, as a matter of law, defeat the
request for DNA analysis. Finally, however, we hold that the application was properly dismissed
for failure to satisfy the statutory condition that “[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.” Tenn. Code Ann. § 40-30-304(4) (2003), and for that reason we affirm
the judgment of the trial court.



                                                __________________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE




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