         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 13, 2005

                   TOMMY NUNLEY v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                          No. P-23717    Bernie Weinman, Judge



                    No. W2003-02940-CCA-R3-PC - Filed January 6, 2006


The State appeals the Shelby County Criminal Court’s grant of post-conviction relief to the
Petitioner, Tommy Nunley. In February 1998, Nunley was convicted by a Shelby County jury of
aggravated rape and was sentenced to twenty-five years imprisonment. A petition for post-
conviction relief was filed alleging grounds of ineffective assistance of counsel. Nunley’s principal
claim asserts that trial counsel was ineffective for failing to seek state-funded expert assistance for
“DNA testing of specimens collected” by the police. At the conclusion of one of the several hearings
conducted by the post-conviction court, the court, on its own motion, directed DNA testing of
biological specimens shown to be in the custody of the State. The court was subsequently informed
that the specimens had been “misplaced and/or destroyed.” Upon learning of this fact, the post-
conviction court granted Nunley’s petition for post-conviction relief concluding “that said evidence
could and should have been tested at the time of [Nunley’s] trial, and that because said evidence has
been lost and/or destroyed, petitioner’s constitutional right to a fair trial was violated.” Because we
conclude that the proof fails to establish prejudice under the standards of Strickland v. Washington,
the grant of post-conviction relief is reversed, and the judgment of conviction is reinstated.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed;
                            Judgment of Conviction Reinstated

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., joined.
THOMAS T. WOODALL, J., filed a separate concurring opinion.

Scott Hall, Memphis, Tennessee, for the Appellee, Tommy Nunley.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
William L. Gibbons, District Attorney General; Camille McMullen and Emily Campbell, Assistant
District Attorneys General, for the Appellant, State of Tennessee.

                                             OPINION

                                     Procedural Background
        The Petitioner was convicted of aggravated rape by a Shelby County jury and sentenced to
a term of twenty-five years in the Department of Correction. On direct appeal, this court found no
error and affirmed the petitioner’s conviction and resulting sentence. State v. Tommy Nunley, No.
02C01-9804-CR-00114 (Tenn. Crim. App. at Jackson, Mar. 12, 1999).

       The proof at trial, as recited on direct appeal, established:

               On January 17, 1996, thirteen-year-old L.L. was brought home sick from
       school by her uncle. When she arrived at the residence which was shared by several
       family members, including the defendant who is her cousin, L.L. went to her
       grandmother's bedroom to rest. About fifteen minutes later, her grandmother and
       several family members went to lunch. Only defendant and L.L. remained at the
       residence.

               Some minutes later, defendant entered the room where L.L. was resting. He
       rubbed her breast and vagina with his hand, and pulled down her pants and
       underwear. She tried to get away, but defendant pulled her back by the leg. He then
       tore his own shorts to reveal his penis and penetrated her.

               Once finished, defendant remained on top of L.L. for a few moments before
       “easing out” and L.L. saw “white slimy stuff and blood” on the sheets. Defendant
       ordered her to go wash. He tried to clean the sheets with a paper towel, then took the
       sheets off the bed and put them in the washing machine.

              When defendant took his shower a short time later, L.L. contacted her mother,
       Rita Jones, and told her what happened. Jones told her to get out of the house. L.L.
       gathered her things to leave and told defendant she was going to a friend's house to
       study. L.L.'s aunt arrived and took L.L. to see her mother.

              Jones called the police, and officers took L.L. to the City of Memphis Sexual
       Assault Center where nurse clinician, Elizabeth Thomas, examined her. Thomas'
       examination revealed bleeding from the vagina, bruise-like coloration of the skin
       around the urethra and hymen, a hematoma on the hymen, two lacerations through
       the hymenal tissue, and a third laceration in the posterior fourchette.

Id.

        On July 25, 2000, the Petitioner filed a pro se petition for post-conviction relief alleging
ineffective assistance of counsel. Following the appointment of counsel, an amended petition was
filed specifically claiming that trial counsel was ineffective for failing to move for state-funded
expert assistance for DNA testing of various items collected during the investigation of the case.




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         The proof at the evidentiary hearing was poorly developed and at times conflicting. First,
with regard to the items which were collected for forensic testing, the proof establishes two different
sets of items which were collected for comparison testing with the Petitioner’s blood and saliva
samples: (A) specimens recovered from the gray slacks of the victim and (B) a vaginal swab, vaginal
smear, rectal swab, saliva standard, and pubic hair collected from the victim and contained in the
“rape kit.” Second, the proof discussed the following types of tests, or components of tests, without
any type of explanation, distinction, or purpose for the various tests: “blood group substance(s)
testing,” DNA testing, PCR, RLFP, sperm component testing, and test for the presence of seminal
fluid. It is obvious from a reading of the record that at various times certain witnesses were confused
as to which of the specific tests were being discussed, as well as the purpose of and distinctions
among the tests. Moreover, at critical times during the hearing, the proof fails to identify the specific
biological specimens being discussed.

        In March 1996, the Petitioner was indicted for one count of aggravated rape. At the post-
conviction hearing, Kathy Kent, Assistant Public Defender, testified that she represented the
Appellant until March 27, 1997, when she was permitted to withdraw as counsel due to a conflict
of interest. Kent testified that she had requested DNA testing of what appeared to be semen on the
victim’s gray knit slacks but that she had been informed that the testing could not be done because
the biological specimen submitted was too small. However, Kent testified that she did receive
confirmation from the Memphis Sexual Assault Resource Center (“MSARC”) that sperm was found
on the victim’s clothing. She specifically recalled a telephone conversation with Sergeant Bruce of
the MSARC, during which she noted that “[c]an’t do comparison because sample is too small. Can’t
do any tests because it’s too small for PCR, it[is] too small for RFLP.” She identified PCR as a
“blood typing” test. Kent also testified that she never requested DNA testing on the individual items
from the rape kit which contained a vaginal swab, vaginal smear, rectal swab, saliva standard, and
pubic hairs.

        Trial counsel testified at the post-conviction hearing that, after being substituted as counsel,
he discussed testing issues with Kent. He then discussed the test results from various items which
had already been tested with Paulette Sutton, Assistant Director of Forensic Services at the
University of Tennessee, Regional Forensic Center. At the hearing, Sutton testified that she
reviewed reports conducted by the Cellular and Molecular Forensic Laboratory in Memphis. She
further introduced a letter identifying the various test results, which in relevant part recites:

        The only item of physical evidence from [the victim] which gave a positive test for
        acid phosphatase was the gray knit slacks (FSL #5805). Further testing of these
        slacks did not show the presence of spermatozoa and was negative with the p30
        antigen. In light of these cumulative laboratory results, I do not believe that testing
        for soluble blood group substance(s) would be likely to be of any benefit with this
        particular item of evidence, and would not recommend that blood group substance(s)
        testing be pursued.




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       The items collected in the sexual assault kit from [the victim] appear to have been
       tested only for the presence of spermatozoa. No tests which would indicate the
       presence of seminal fluid, as opposed to spermatozoa, appear to have been
       conducted. Without test results for both seminal fluid and spermatozoa, I am unable
       to make a recommendation regarding testing for blood group substance(s) from the
       components of the sexual assault kit.

At the hearing, Sutton testified that her participation involved only an independent review of the test
results which had been performed up to that point. She stated that she would not have recommended
testing for blood group substances, which was an outdated test even in 1997. She testified, however,
that if asked, she would have recommended DNA analysis and confirmed that DNA testing could
still be performed if the specimen to be tested was currently available.

        At the post-conviction hearing, trial counsel testified that he had initially filed a motion for
DNA testing. However, no motion for DNA testing is included in the record. He also testified that
he filed a motion requesting funds to hire an expert for such testing but that he later withdrew such
motion. This motion is also not contained in the record. At the hearing, a copy, purporting to be a
motion to obtain funding for DNA testing filed on November 24, 1997, was furnished to trial counsel
while testifying; however, the document was never introduced into evidence as an exhibit.

        At the hearing, trial counsel testified that he was under the impression that the victim’s pants
had been submitted for DNA testing. Trial counsel stated that he relied upon Ms. Sutton in
concluding that no further tests could be performed upon the specimens collected. He added,
“somewhere in the back of my mind I had some other information that it could not have been
performed.” It is obvious, however, from the record that Sutton was referring to the fact that only
blood group testing could not be performed as indicated in her letter. Furthermore, at the post-
conviction hearing, she testified that DNA testing could be performed on the items contained in the
rape kit.

        The Petitioner testified that he insisted that testing be performed in order to prove his
innocence. He voluntarily gave blood and saliva samples to permit comparison testing with the
items collected. At the hearing, the Petitioner testified that he was originally told by Kent that
nothing was found on the victim’s clothing during the initial testing. Petitioner related, however,
that several days later, Kent showed him a letter which indicated that semen had been found on the
clothes. The Petitioner acknowledged that Kent informed him that the TBI could not do a
comparison because the sample was too small.

        After closing statements, on September 13, 2001, the post-conviction court sua sponte
entered an order directing that the TBI conduct DNA testing on biological samples obtained from
the Petitioner and biological samples contained in the rape kit for the reason that these tests “would




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assist the Court in ruling upon the Petitioner’s Petition for Post-Conviction Relief.”1 At a bench
conference held on June 27, 2003, the State reported that the rape kit at issue in this case had been
in the possession of the MSARC where it was either lost or destroyed. The prosecutor explained that
“there was a flood at U.T. Bowld and we have not been able to find it since then. There are three
hundred kits missing that they cannot account for.” The post-conviction court granted post-
conviction relief on July 11, 2003.

       The State now appeals the ruling of the post-conviction court, which recites:

       [T]he instant Petition was filed on July 25, 2000 alleging that trial and appellate
       counsel for the Petitioner, Mr. Brett Stein, rendered ineffective assistance of counsel
       in that certain forensic evidence should have been tested for the presence of the
       Petitioner’s DNA, and that if said evidence had been tested, Petitioner would not
       have been found guilty.

                  ....

              . . . forensic evidence the petitioner requested be tested for blood serology,
       namely the victim’s rape kit, has been misplaced and/or destroyed and is no longer
       available for testing.

               . . . said evidence could and should have been tested at the time of the
       Petitioner’s trial, and that because said evidence has been lost and/or destroyed,
       petitioner’s constitutional right to a fair trial was violated, and as such, the Petitioner
       should be granted relief on the instant petition.

                                                    Analysis

         First, we are constrained to note that the post-conviction court was without authority to enter
its order for DNA testing when neither the post-conviction petition nor the petitioner at the post-
conviction hearing sought DNA testing. “Proof upon the petitioner’s claim or claims for relief shall
be limited to evidence of the allegations of fact in the petition.” T.C.A. § 40-30-110(c) (2003). It
is the Petitioner’s burden when seeking post-conviction relief to establish deficient performance and
prejudice, not the post-conviction court’s. The Petitioner in this case did not file a petition for DNA
analysis but rather a petition for general post-conviction relief. The court, in effect, converted an
ineffectiveness claim into a DNA Analysis Act claim. See T.C.A. § 40-30-303 (2003). Although
the post-conviction court’s order provides that testing “would assist the court in ruling upon the
Petitioner’s petition,” a judge may not independently investigate or seek facts in a case as the judge
is the arbiter of factual disputes and as such is bound to consider only the evidence presented. The
Post-Conviction DNA Analysis Act of 2001, which is found in Part 3 of the Post-Conviction Act,
encompasses, as the name implies, only DNA analysis and the procedural requirements for obtaining

       1
           The written order was entered on March 14, 2002.

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analysis results. The remedy in a meritorious post-conviction claim, which is a collateral attack on
the judgment of conviction, is the vacating of the conviction and the granting of a new trial. Clearly,
Part 1 and Part 3 of the Post-Conviction Act are separate in purpose and remedy.

         To succeed on a challenge of ineffective assistance of counsel, which is alleged in this case,
a defendant bears the burden of establishing the allegations set forth in his petition by clear and
convincing evidence. T.C.A. § 40-30-110(f) (2003). The defendant must demonstrate that counsel’s
representation fell below the range of competence demanded of attorneys in criminal cases. Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984), the defendant must establish (1) deficient performance and (2)
prejudice resulting from the deficiency. The petitioner is not entitled to the benefit of hindsight, may
not second-guess a reasonably based trial strategy, and cannot criticize a sound, but unsuccessful,
tactical decision made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994). This deference to the tactical decisions of trial counsel is dependant upon
a showing that the decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992).

        It is unnecessary for a court to address deficiency and prejudice in any particular order, or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a
‘“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”’ State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. at 2068) (citations omitted)).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a purely de novo
standard with no presumption that the post-conviction court’s findings are correct. Id.

        At the post-conviction hearing, trial counsel testified that he filed a motion to request DNA
testing, which he asserts that he later withdrew because “it would have been impossible to pursue
it, you know, any further.” He explained:

       [T]here’s somewhere in the back of my mind where because of there wasn’t
       sufficient information to perform, to perform any kind of DNA test. Now, where I
       got that, I’m trying to think in the back of my mind where I got it. But, that’s the
       reason why I didn’t pursue it. I was relying pretty much on what Ms. Sutton said.
       And, somewhere in the back of my mind I had some other information that it could
       not have been performed.


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        In its final order, the post-conviction court concluded that trial counsel’s performance was
deficient, finding that “said evidence could and should have been tested at the time of Petitioner’s
trial.” In view of the holding below, however, we find it unnecessary to review the trial court’s
finding of deficient performance. We would agree, however, that trial counsel’s decision not to
request DNA testing resulted from neither an informed decision nor as a result of trial strategy.
Nonetheless, we are not persuaded to adopt a per se rule that a defense attorney’s failure to request
DNA testing constitutes deficient performance as the decision to forego testing may rest firmly upon
an informed decision or upon a strategic decision that a positive result could be fatal to the
defendant’s case. Accordingly, we turn to the issue of prejudice, which as previously noted requires
that the Petitioner establish “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”’ Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068) (citations omitted)).

        In finding prejudice, the post-conviction court concluded “that said evidence could and
should have been tested at the time of Petitioner’s trial, and that because said evidence has been lost
and/or destroyed, petitioner’s constitutional right to a fair trial was violated.”2 This conclusion,
however, ignores the requirement that in order to find prejudice, the proof must show that “but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. The “prejudice” requirement is based upon the conclusion that
‘“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.”’ Hill v. Lockhart, 474
U.S. 52, 57, 106 S. Ct. 366, 369 (1985) (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2067).
Trial counsel in this case cannot be held responsible for the loss or the destruction of the evidence
which at the time of its disappearance was in the custody of a state controlled agency. Accordingly,
we conclude that the lost evidence may not be imputed to trial counsel’s conduct.3 The greater issue
is whether the proof at the post-conviction hearing established that if trial counsel had in fact
obtained DNA testing, the test would have established the Petitioner’s innocence as he alleges. We
find no proof in the record to support this allegation and to so find would require us to engage in
pure conjecture. The mere possibility that the result might have been different does not undermine
confidence in the trial proceedings and is not sufficient to meet the prejudice prong of the Strickland
standard. Because the proof preponderates against the post-conviction court’s finding that prejudice
resulted from trial counsel’s deficient performance, the grant of post-conviction relief is reversed and
the judgment of conviction is reinstated.




         2
          W e would observe that the post-conviction court’s granting of a new trial would have in effect produced a
second trial where the evidence in all likelihood would have been identical to the proof in the original trial.

         3
           This issue begs the additional question of whether the loss or destruction of evidence by the State is even
relevant in the context of a post-conviction claim, Thompson v. State, No. E2003-01089-CCA-R3-PC (Tenn. Crim. App.
at Knoxville, Apr. 29, 2004), or if the State has a duty to preserve the evidence following a defendant’s conviction. State
v. Ferguson, 2 S.W.2d 912, 917 (Tenn. 1999). In view of our holding, we find it unnecessary to address these issues.



                                                           -7-
                                       CONCLUSION

      Based upon the foregoing, we reverse the grant of post-conviction relief and reinstate the
judgment of conviction.



                                                    ___________________________________
                                                    DAVID G. HAYES, JUDGE




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