         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   October 3, 2007 Session

                    PERVIS PAYNE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 87-04408 John P. Colton, Judge



                   No. W2007-01096-CCA-R3-PD - Filed December 5, 2007



In 1988, the Petitioner, Pervis Payne, was convicted of two counts of first degree murder and one
count of assault with intent to commit first degree murder. For the capital offenses, the jury imposed
sentences of death. The trial court imposed a sentence of thirty years confinement for the non-capital
conviction. The convictions and sentences were affirmed on direct appeal by the Tennessee Supreme
Court. State v. Payne, 791 S.W.2d 10 (Tenn. 1990), aff’d by, 501 U.S. 808, 111 S. Ct. 2597 (1991).
The Petitioner later sought post-conviction relief which pursuit was unsuccessful. See Pervis Tyrone
Payne v. State, No. 02C01-9703-CR-00131 (Tenn. Crim. App., at Jackson, Jan. 15, 1998), perm. to
appeal denied, (Tenn. Jun. 8, 1998). On September 7, 2006, the Petitioner filed a motion to compel
testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court
denied the motion on March 29, 2007. Upon review of the record and the parties’ briefs, we affirm
the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
JOHN EVERETT WILLIAMS, JJ., joined.

J. Brook Lathram, Todd Rose, and Daniel Kiel, Memphis, Tennessee, for the appellant, Pervis
Payne.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer
L. Smith, Assistant Attorney General; William L. Gibbons, District Attorney General; and John
Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.


                                             OPINION



                                                  1
                                           Procedural Background


        In the last days of June 1987, the lives of twenty-eight-year-old Charisse Christopher and
two-and-one-half-year-old Lacie Christopher ended after they were stabbed multiple times with a
butcher knife. See Payne, 791 S.W.2d at 11-13. During his trial for these murders and for the
assault with intent to commit murder of three-and-one-half-year-old Nicholas Christopher, the
Petitioner took the stand in his own defense and asserted his innocence. Id. at 13-14. A Shelby
County jury found the Petitioner guilty of the first degree murders of Charisse and Lacie Christopher
and of the assault to commit murder of Nicholas Christopher. As to the murder of Charisse
Christopher, the jury found two aggravating circumstances, i.e., the Petitioner knowingly created a
great risk of death to two or more persons other than the victim murdered and that the murder was
especially heinous, atrocious or cruel. Therefore, the jury sentenced the Petitioner to death for that
offense. As to the murder of two and one-half year old Lacie Christopher, the jury found one
aggravating circumstance, i.e., the murder was committed against a person less than twelve years of
age and the Petitioner was eighteen years of age or older. Thus, the jury sentenced the Petitioner to
death for that offense. The trial court imposed a sentence of thirty years for the assault with intent
to commit murder conviction. The Petitioner’s convictions and sentences were affirmed on direct
appeal. Id. The United States Supreme Court granted certiorari on the limited issue of the
admissibility of victim impact evidence. See Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597,
reh’g denied, 501 U.S. 1277, 112 S. Ct. 28 (1991).


         This case has been the subject of extensive appellate review. The Petitioner sought post-
conviction relief. The petition for post-conviction was ultimately consolidated with a petition for
the issuance of a writ of error coram nobis. The Petitioner was unsuccessful in both collateral
attacks. See Pervis Tyrone Payne v. State, No. 02C01-9703-CR-00131. The Petitioner sought
habeas corpus relief in the United States District Court for the Western District of Tennessee. The
district court denied relief. See Payne v. Bell, 194 F. Supp. 2d 739 (W.D. Tenn. 2002). On appeal
from the district court’s ruling, however, the Sixth Circuit Court of Appeals temporarily granted
relief by concluding that the use of the heinous, atrocious, or cruel aggravating circumstance
instruction violated the Petitioner’s Eighth Amendment rights, and the Tennessee state court’s
rejection of the Petitioner’s challenge was contrary to clearly established United States Supreme
Court precedent. Payne v. Bell, 399 F.3d 768 (6th Cir. 2005). The Respondent, Warden Bell, filed
a petition for rehearing for reconsideration in light of the United States Supreme Court’s decision
in Bell v. Cone, 543 U.S. 447, 125 S. Ct. 847 (2005). The Sixth Circuit Court of Appeals granted
the petition, see Payne v. Bell, 122 Fed. Appx. 844 (6th Cir. 2005), and, upon reconsideration,
affirmed the district court’s denial of habeas corpus relief.1 See Payne v. Bell, 418 F.3d 644 (6th Cir.


         1
           The Petitioner later moved for relief under Rule 60, Federal Rules of Civil Procedure. The district court
denied the motions on July 16, 2007. An appeal from the district court’s order is currently pending in the United
States Court of Appeals for the Sixth Circuit. See Payne v. Bell, No. 07-5991 (6 th Cir.).

                                                                                                        (continued...)

                                                          2
2005), cert. denied, __U.S.__, 126 S. Ct. 2931 (2006). Thereafter, the State of Tennessee filed a
motion in the Tennessee Supreme Court requesting the setting of an execution date. The Tennessee
Supreme Court granted the State’s motion, setting the execution date for April 11, 2007.
Notwithstanding, on February 1, 2007, the Governor of the State of Tennessee issued Executive
Order 43, directing the Tennessee Commissioner of Correction to conduct a “comprehensive review
of the manner in which death sentences are administered in Tennessee.” This executive order further
granted a reprieve to death row inmates sentenced to be executed before May 2, 2007. The Petitioner
was, therefore, granted a reprieve until May 2, 2007. On May 2, 2007, the Governor allowed the
moratorium to expire. The State moved the Tennessee Supreme Court to schedule a new execution
date for the Petitioner. The Tennessee Supreme Court granted the motion, setting the execution date
for December 12, 2007.


        On September 7, 2006, the Petitioner filed a petition requesting post-conviction DNA
analysis in the Shelby County Criminal Court. The lower court denied the petition on March 29,
2007. The Petitioner timely filed a notice of appeal document in the trial court. Subsequently, the
Petitioner filed a motion to expedite the appeal with this court. This court granted the motion on
July 20, 2007.


                                                Factual Background


        On June 27, 1987, the Petitioner visited the apartment of his girlfriend, Bobbie Thomas,
several times. However, Ms. Thomas was not at home. On one occasion, the Petitioner left his
overnight bag and three cans of Colt 45 malt liquor near the entrance of Ms. Thomas’ apartment.2


           1
          (...continued)
         On September 27, 2007, the Petitioner filed a “Motion to Vacate Execution Date” in the Tennessee
Supreme Court. As basis for this motion, the Petitioner relied upon (1) his challenge to Tennessee’s lethal injection
protocol in the United States District Court for the Middle District of Tennessee (Petitioner’s claim is identical to
that found meritorious in Harbison v. Little, No. 3:06-1206 (Sept. 19, 2007); (2) the Tennessee Supreme Court’s
order rescheduling Edward Harbison’s execution date in light of the ruling of the federal district court; and (3) the
United States Supreme Court’s grant of certiorari in Baze v. Rees, No. 07-5439 (U.S. Sept. 25, 2007) (granting
review to determine the constitutionality of Kentucky’s three drug lethal injection protocol). On October 22, 2007,
the Tennessee Supreme Court declined the Petitioner’s invitation to either vacate his execution date or stay the
execution pending disposition of federal litigation. See State v. Pervis T. Payne, No. M1988-00096-SC-DPE-DD
(Tenn., at Nashville, Oct. 22, 2007) (order).

           2
               In the direct appeal of this matter, the Tennessee Supreme Court described the apartment complex as
follows:

           The building . . . contained four units, two downstairs and two upstairs. The resident manager,
           Nancy W ilson, lived in the downstairs unit immediately below the Christophers. [The Petitioner’s]
           girlfriend, Bobbie Thomas, lived in the other upstairs unit. The inside entrance doors of the
           Christopher and Thomas apartments were separated by a narrow hallway. Each of the upstairs
                                                                                                           (continued...)

                                                            3
While waiting for Ms. Thomas to return, the Petitioner passed the morning and afternoon by
injecting cocaine and drinking beer. Later, he and a friend cruised the area while looking at sexually
explicit material.


        At about 3:00 p.m., the Petitioner returned to the apartment complex, but instead of going
to Ms. Thomas’ apartment, he entered the apartment of twenty-eight-year-old Charisse Christopher,
who lived in the apartment across the hall from Thomas. The resident manager of the complex,
Nancy Wilson, lived in the apartment directly below Charisse Christopher. Around 3:10 p.m., Ms.
Wilson heard Charisse Christopher shouting “get out, get out.” The noise from the apartment then
grew terribly loud. Ms. Wilson telephoned the police after hearing a “blood curdling scream.” Ms.
Wilson noted that, although the screaming had stopped, she heard footsteps go into the bathroom,
followed by the sound of running water.


        Within minutes of the police dispatch, an officer arrived at the apartment complex. He
observed a black male on the second floor landing pick up an object and come down the stairs. The
officer approached the man, who was later identified as the Petitioner. The Petitioner had blood all
over him. When questioned by the officer, the Petitioner struck the officer with his overnight bag,
dropped his shoes, and started running. The Petitioner was able to elude police and disappear into
another apartment complex.


        Inside the Christophers’ apartment, the police discovered blood on the walls and floor. Ms.
Christopher and her two children, three-and-one-half-year-old Nicholas and two-and-one-half-year-
old Lacie, were lying on the kitchen floor. Ms. Christopher and Lacie were dead. Nicholas, despite
abdominal stab wounds that penetrated his body, was breathing. Ms. Christopher had sustained
forty-two direct knife wounds and forty-two defensive wounds. Lacie had received nine stab wounds
to the chest, abdomen, back, and head. The murder weapon, a butcher knife, was found at Lacie’s
feet.


        The Petitioner’s baseball cap was found on Lacie’s forearm. Three cans of Colt 45 malt
liquor bearing the Petitioner’s fingerprints were found on a small table in the living room. A fourth
empty can of malt liquor was found on the landing outside the apartment door. The Petitioner’s
fingerprints were also found on the telephone and kitchen counter in the Christophers’ apartment.




        2
         (...continued)
        apartments had back doors in the kitchen that led to an open porch overlooking the back yard. In
        the center of the porch was a metal stairway leading to the ground. There was also an inside
        stairway leading to the ground floor hallway and front entrance to the four-unit building.

Payne, 791 S.W .2d at 11.

                                                        4
        The Petitioner was apprehended later that day hiding in the attic of a former girlfriend. The
Petitioner maintained, “Man, I ain’t killed no woman.” The Petitioner had blood on his body and
clothes and several scratches across his chest. His gold watch also had bloodstains on it. It was later
determined that the blood types found on the Petitioner’s clothing matched the victims’ blood types.
The Petitioner’s overnight bag, recovered in a nearby dumpster, contained a bloody white shirt. A
witness, who was sunbathing outside at the time of the murder, testified that she heard moaning from
the Christophers’ apartment. She also noticed that the back door seemed as if it would not shut. She
observed a dark colored hand with a gold watch keep trying to shut the door.


        The medical examiner testified that Charisse Christopher was menstruating and a specimen
from her vagina tested positive for acid phosphatase. He testified that the result was consistent with
the presence of semen but was not conclusive absent sperm, and no sperm was found.


        The Petitioner testified in his own defense. He stated that he did not harm any of the
Christophers; however, he said that he saw a black man descend the inside stairs, race by him, and
disappear out the front door of the building as he returned to pick up his bag and beer. The Petitioner
said that when he reached the landing, he heard a baby crying and a faint call for help. He saw that
the door of the Christophers’ apartment was ajar. He said curiosity motivated him to enter the
Christophers’ apartment. After saying he was “coming in,” he “eased the door on back.” He
described what he saw and his first actions as follows:


               I saw the worst thing I ever saw in my life and like my breath just
               had-had tooken[sic] - just took out of me. You know, I didn’t know
               what to do. And I put my hand over my mouth and walked up closer
               to it. And she was looking at me. She had the knife in her throat with
               her hand on the knife like she had been trying to get it out and her
               mouth was just moving but words had faded away. And I didn’t
               know what to do. I was about ready to get sick, about ready to vomit.
               And so I ran closer - I saw a phone on the wall and I lift and got the
               phone on the wall. I said don’t worry. I said don’t worry. I’m going
               to get help. Don’t worry. Don’t worry. And I got ready to grab it -
               the phone but I didn’t know no number to call. I didn’t know
               nothing. I didn’t know nothing about no number or - I just start trying
               to twist numbers. I didn’t know nothing. And she was watching my
               movement in the kitchen, like she - I had saw her. It had been almost
               a year off and on in the back yard because her kids had played with
               Bobbie’s kids. And I have seen her before. She looked at me like I
               know you, you know. And I didn’t know what to do. I couldn’t leave
               her. I couldn’t leave her because she needed - she needed help. I was
               raised up to help and I had to help her.



                                                  5
        The Petitioner described how he pulled the knife out of Ms. Christopher’s neck and almost
vomited. Then he kneeled down by the baby girl and had the feeling she was already dead. The
Petitioner said that the little boy was on his knees crying, and he told him not to cry because the
Petitioner was going to get help. The Petitioner’s explanation of the blood on his shirt, pants, tennis
shoes, body, etc., was that when he pulled the knife out of Ms. Christopher’s neck, “she reached up
and grab me and hold me, like she was wanting me to help her . . . .” Additionally, the petitioner
explained that in walking and kneeling on the bloody floor and touching the two babies, he got blood
all over his clothes. He said he went to the kitchen sink, probably twice, to get water to drink when
he thought he was going to vomit, but he denied that he went into the bathroom at any time or used
the bathroom lavatory to wash up, as Nancy Wilson testified she heard someone do after the violence
subsided.


       The petitioner claimed that he was then suddenly motivated to leave and seek help. He
described his exit from the apartment as follows:


               And I left. My motivation was going and banging on some doors, just
               to knock on some doors and tell someone need help, somebody call
               somebody, call the ambulance, call somebody. And when I - as soon
               as I left out the door I saw a police car, and some other feeling just
               went all over me and just panicked, just like, oh, look at this. I’m
               coming out of here with blood on me and everything. It going to look
               like I done this crime.


        The shoulder strap on the left shoulder of the blue shirt he was wearing while in the victim’s
apartment was torn, a fact he did not seem to realize and could not remember happening. He said
he ran because the officer did not seem to believe him. He claimed that he had the Colt 45 malt
liquor with him as he ran. The Petitioner claimed that the malt liquor in the open can spilled into
the sack, the bottom of the sack broke, and the malt liquor and tennis shoes were scattered along his
route. He said that what witnesses had described as scratches were stretch marks from lifting
weights.


                                      I. The Petitioner’s Request


        On September 7, 2006, the Petitioner filed, pursuant to Tennessee Code Annotated
section 40-30-301, et seq., a petition for DNA analysis in the Shelby County Criminal Court. In
his petition, the Petitioner requested testing of:


               1. The bloody clothing the Petitioner was wearing at the time of
               his arrest;


                                                  6
               2. The bloody shirt found in the Petitioner’s discarded overnight
               bag;


               3. The bloody clothing worn by the victims; and


               4. The vaginal swabs taken from Charisse Christopher.


        The Petitioner has consistently maintained his innocence. Specifically, he argued that
another individual preceded him in the Christophers’ apartment. The Petitioner stated that DNA
testing on these items has the potential to corroborate his claim of innocence. He further
maintained that a reasonable probability exists that he would not have been prosecuted or
convicted if exculpatory results had been obtained through DNA analysis. Specifically, the
Petitioner argued that exculpatory results could include (1) the presence of third party DNA on
the various items of bloody clothing; (2) the absence of the Petitioner’s DNA on the vaginal
swabs of Charisse Christopher; (3) the presence of third party DNA on the vaginal swabs taken
from Charisse Christopher; and (4) the presence of the same third party’s DNA on both the
various items of bloody clothing and the vaginal swabs from Charisse Christopher. The
Petitioner also contends that the evidence sought to be tested was still in existence and was in
such condition that DNA analysis may be conducted. Finally, the Petitioner asserted that the
evidence had never been subjected to DNA analysis.


        On December 15, 2006, the State of Tennessee filed a response to the Petitioner’s request
for DNA testing. The State claimed that the Petitioner could not establish that a reasonable
probability exists that the Petitioner would not have been prosecuted or convicted if exculpatory
results had been obtained through DNA analysis. Specifically, the State asserted that the
Petitioner was never charged with raping the victim, nor did the jury find that the Petitioner raped
the victim. The State claimed that any DNA results would not have resulted in the Petitioner not
being charged nor would it have changed the result of the trial. The State further asserted that the
Petitioner’s motive in filing the petition was merely an attempt to delay his execution.


                              II. Post-Conviction Court’s Ruling


       On February 1, 2007, the lower court permitted argument by both parties on the petition
for post-conviction DNA testing. At the hearing, the State indicated that the vaginal swab
evidence was no longer in existence. Specifically, the State asserted that:


               [t]he swabs that were tested and got a reaction for acid
               phosphastase would have been consumed by the test. If anything
               else, a rape kit or any similar type of evidence that was obtained by

                                                 7
              the Medical Examiner, would have been held at UT, and I found
              out through the last case I handled with Sedley Alley that that
              evidence was destroyed when the freezer that they were in broke in
              1990, and it was a couple of days before people realized that it
              wasn’t working, and by that time, the samples had spoiled and they
              were discarded, so anything before 1990 was lost when the freezer
              broke, and those items would not have been kept at the Clerk’s
              Office, and had they been, they probably would have not been able
              to have survived all those numbers of years just thrown in an
              unrefrigerated property room.


        On March 29, 2007, the post-conviction court entered its order denying post-conviction
DNA testing. The court determined that the Petitioner failed to demonstrate that a reasonable
probability exists that, had evidence of a third party’s DNA been found on the victim’s clothing
or on the vaginal swabs taken from Charisse Christopher, he would not have been prosecuted or
convicted of the murders. Specifically, the post-conviction court made the following
observations, summarized as follows:


              1. The Petitioner claims that evidence of a third party’s DNA or
              the absence of the Petitioner’s DNA from the clothing of the
              victims would corroborate his claim of innocence. The post-
              conviction court concluded that “the presence of skin, hair or some
              other substance containing DNA, other than blood, even if it were
              found to belong to an unknown third party would not prove
              exculpatory as such sample could have been left at the apartment at
              a time prior to the murders.” While the presence of third party
              blood DNA revealed on the clothing would present a stronger
              claim, there is no reasonable probability that the presence of third
              party blood DNA would have led to a different result. In so
              concluding, the post-conviction court relied heavily upon the
              conclusions of this court and the Tennessee Supreme Court that the
              evidence presented at trial precluded any other person from
              committing these crimes other than the Petitioner.


              2. The post-conviction court noted that the proof at trial revealed
              that the Petitioner had scratches on his chest. Notwithstanding,
              there was no proof that these injuries were so severe that they
              would have necessarily left blood evidence on the victims’
              clothing. The fact that the Petitioner did not leave his own blood at
              the scene does not exonerate him nor does this fact corroborate his
              testimony that he was not the perpetrator.


                                               8
       3. The post-conviction court agreed with the State that the vaginal
       swabs were no longer in existence or available for testing.
       Notwithstanding, the post-conviction court also determined that,
       even if DNA testing revealed the presence of third-party DNA on
       the vaginal swabs, this would not provide a reasonable probability
       that the Petitioner would not have been prosecuted or that he would
       not have been convicted. The post-conviction court cited to the
       fact that the jury specifically rejected the aggravating factor that the
       murder was committed during the perpetration of the rape.
       Moreover, the medical proof presented at trial was inconclusive as
       to whether sexual intercourse had occurred; if it did, when it
       occurred; or whether the sexual encounter was consensual. The
       post-conviction court noted that the presence of third-party DNA
       on the vaginal swabs would also fail to exonerate the Petitioner.


       4. The bloody clothing is still in the State’s possession and has not
       previously been subjected to testing. The post-conviction court
       agreed with the State’s contention that the ability to test the
       clothing was questionable considering the “level of blood
       saturation.”


The post-conviction court concluded that


       . . . this court does not find that DNA testing is warranted under
       Tenn. Code Ann. § 40-30-305. It is this court’s understanding that
       a request for DNA testing under this section, unlike a request for
       testing under Tenn. Code Ann. § 40-30-304, is discretionary. . . .
       Regardless, this court also finds that, petitioner has failed to
       demonstrate that 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 his judgment of
       conviction. Given the strength of the State’s proof at trial and the
       damning nature of petitioner’s own trial testimony, this court finds
       it unlikely the jury would have returned a verdict finding the
       petitioner guilty of an offense lesser than that for which he was
       convicted, even if DNA analysis of the bloody clothing or vaginal
       swabs had produced favorable results. Finally, despite the
       petitioner’s argument to the contrary, given the brutal nature of the
       offense, it is not likely that the jury would have rendered a sentence
       less than death, even if they had heard evidence of DNA analysis
       favorable to petitioner. This is particularly true with regard to the

                                          9
               vaginal swabs, since the jury specifically rejected the aggravating
               circumstances premised upon this proof.


               ....


                       This court finds petitioner failed to demonstrate that a
               reasonable probability exists that he would not have been
               prosecuted or convicted or that he would have received a more
               favorable verdict or sentence, if exculpatory DNA evidence had
               been obtained through the requested testing. Moreover, with
               regard to the vaginal swabs and bloody clothing of the victims,
               petitioner failed to demonstrate such items are either still in
               existence; or, if still in existence, are in a condition suitable for
               testing. Thus, the Petition for Post-Conviction DNA Analysis is
               hereby, DENIED.


                                          III. The Act


        The Post-Conviction DNA Analysis Act of 2001 provides that a person convicted of
certain enumerated crimes, including first degree murder, may, at any time, file a petition
requesting forensic DNA analysis of any evidence (1) in the possession or control of the
prosecution, law enforcement, laboratory, or court, and (2) that is related to the investigation or
prosecution that resulted in the judgment of conviction and that may contain biological evidence.
T.C.A. § 40-30-303. The Act provides no statutory time limit and gives petitioners the
opportunity to request analysis at “any time,” whether or not such a request was made at trial.
Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006). A post-conviction court is obligated to order
DNA analysis when the petitioner has met each of the following four conditions:


               (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 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


                                                10
               (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.


T.C.A. § 40-30-304; see also Griffin, 182 S.W.3d at 798. Additionally, if DNA analysis would
have produced a more favorable verdict or sentence if the results had been available at the
proceedings leading up to the conviction or sentence, then the post-conviction court may order
DNA analysis when the petitioner meets the conditions of Tennessee Code Annotated section 40-
30-305; see also Griffin, 182 S.W.3d at 798. In either instance, some physical evidence must be
available and in a proper condition to enable a DNA analysis. T.C.A. § 40-30-304(2); § 40-30-
305(2).


        “If the state contests the presence of any qualifying criteria and it is apparent that each
prerequisite cannot be established, the [post-conviction] court has the authority to dismiss the
petition.” Marcus Nixon v. State, No. W2005-02158-CCA-R3-WM (Tenn. Crim. App., at
Jackson, Apr. 3, 2006) (quoting William D. Buford v. State, No. M2002-02180-CCA-R3-PC
(Tenn. Crim. App., at Nashville, Apr. 24, 2003), perm. to appeal denied, (Tenn., 2003)). That is,
a petitioner’s failure to meet any of the qualifying criteria is fatal to the action. William D.
Buford v. State, No. M2002-02180-CCA-R3-PC.


        The post-conviction court is afforded considerable discretion in determining whether to
grant a petitioner relief under the Act, and the scope of appellate review is limited. See Sedley
Alley v. State, No. W2004-01204-CCA-R3-PD (Tenn. Crim. App., at Jackson, May 26, 2004),
perm. to appeal denied, (Tenn., Oct. 4, 2004), cert. denied, 544 U.S. 950, 125 S. Ct. 1695 (2005)
(citing Jack Jay Shuttle v. State, No. E2003-00131-CCA-R3-PC (Tenn. Crim. App., at
Knoxville, Dec. 16, 2003), perm. to appeal denied, (Tenn. Apr. 2, 2004) (citation omitted)). In
making its decision, the post-conviction court must consider all the available evidence, including
the evidence presented at trial, and any stipulations of fact made by either party. Id. The post-
conviction court may also consider the opinions of this court and the Tennessee Supreme Court
on direct appeal of the petitioner’s convictions or the appeals of the petitioner’s prior post-
conviction or habeas corpus actions. Id. On appellate review, this court will not reverse unless
the judgment of the post-conviction court is not supported by substantial evidence. Id. (citing
Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-PC (Tenn. Crim. App., at Nashville,
Apr. 11, 2003)).


                             IV. Satisfying the Statutory Criteria


                              A. Motivation of Bringing Petition




                                                11
        The post-conviction court questioned the Petitioner’s motivations in raising the present
petition at this late time. Specifically, the court acknowledged that the items now sought to be
tested have been available since before the Petitioner’s trial. Indeed, although the Post-
Conviction DNA Analysis Act was enacted in 2001, it was not until five years later that the
Petitioner made his first request for testing. Counsel for Petitioner maintained that he was
unaware of the right to seek DNA analysis until shortly before the present petition was filed.
Notwithstanding its stated concerns, the post-conviction court accepted counsel’s assertions and
found that the Petitioner had satisfied this requirement of the statute. We adopt the conclusions
of the lower court on this matter.


                       B. Existence of Evidence and Prior Testing of Evidence


                                                1. Vaginal Swabs


        The State asserted that “at least a portion of the evidence in question is currently not in
the possession of the State, and, although it has not previously been subjected to DNA analysis,
likely does not still exist due to a malfunction of a storage facility at the . . . lab. . . . Thus, the
vaginal swabs taken from Ms. Christopher are no longer available.” No argument has been
submitted contradicting the findings of the post-conviction court. Accordingly, we adopt its
conclusion that the vaginal swabs taken from Charisse Christopher are no longer in existence.3


                                               2. Bloody Clothing


         The post-conviction court determined that the items of bloody clothing remain in the
State’s possession and were not previously subjected to testing. The post-conviction court shared
the State’s concern regarding the viability of testing these items. Specifically, the court took into
account the circumstances of the crime scene, i.e., the excessive amounts of the victims’ blood
that saturated the clothing and surrounding areas. The court commented that “it is not clear . .
.that, after twenty years, any meaningful testing could be done to determine if blood other than
the victims’, either individually or collectively, is contained on any one article of clothing and the
petitioner has failed to present any scientific testimony or proof that such testing could be
accomplished.” Accordingly, the post-conviction court determined that the Petitioner had failed
to establish that testing was able to be accomplished on the victims’ clothing. Notwithstanding,
the court noted that “it may be more likely that blood samples could be sufficiently isolated on
the petitioner’s bloody clothing to allow for meaningful testing.”



         3
          On appeal, the Petitioner does not contest the post-conviction court’s ruling regarding the existence of the
vaginal swabs. Notwithstanding, he reserves the right to revive the petition regarding the vaginal swabs should he
discover evidence to refute the post-conviction court’s findings.

                                                          12
        This court agrees with the Petitioner that there is not substantial evidence supporting the
post-conviction court’s conclusion that the victims’ clothing could not be tested due to the high
level of blood saturation. We conclude that the Petitioner has established that the samples sought
to be tested, i.e., the victim’s clothing and the Petitioner’s clothing, are still in existence and have
never been previously been subjected to DNA analysis. Accordingly, the Petitioner satisfies
prongs two and three of the statutory criteria.


                             C. Reasonable Probability of Different Result


        The Post-Conviction DNA Analysis Act was created because of the possibility that a
person has been wrongfully convicted or sentenced. Jack Jay Shuttle v. State, No. E2003-00131-
CCA-R3-PC (citation omitted). In this regard, the post-conviction court is to assume that the
“DNA analysis will reveal exculpatory results in the court’s determination as to whether to order
DNA testing.” Id. The Petitioner asserts, relying upon prior decisions of this court, see
generally Jesse Haddox v. State, No. M2003-00415-CCA-R3-PC (Tenn. Crim. App., at
Nashville, Nov. 10, 2004); Jack Jay Shuttle v. State, No. E2003-00131-CCA-R3-PC, that he is
entitled to DNA testing of the bloody clothing because the potential exculpatory DNA results
would corroborate his claims of innocence. The Petitioner further asserts that exculpatory results
would lend support to the two affidavits filed by Petitioner during previous collateral
proceedings, referring to the affidavits of John Edward Williams and Leroy Jones.4 He contends
that the determination of whether a particular case meets the reasonable probability standard is
not based on the type of evidence that was used to obtain the conviction, nor on the strength of
the State’s case. Rather, he contends what is decisive under the reasonable probability standard
is the probative value of the evidence sought to be tested or, in other words, the significance that
exculpatory DNA test results would have in the case.


        The Petitioner asserts that the evidence against him was strictly circumstantial. He
asserts that exculpatory DNA results, in addition to the Petitioner’s claim of innocence and the
affidavits of Jones and Williams, produces a reasonable probability that one or more of the jurors
could have had a reasonable doubt of the Petitioner’s guilt. Thus, he asserts he has met his
burden.


        In both Alley I and Alley II, this court recognized that “[a] ‘reasonable probability’ of a
different result exists when the evidence at issue, in this case potentially favorable DNA results,


         4
            John Edward W illiams stated that, after seeing the Petitioner enter the apartment building, he saw a black
male, not Pervis Payne, leave the apartment building. Mr. W illiams added that he had seen this unidentified black
male with Charisse Christopher on several occasions, some of which involved Christopher and the man arguing.
Leroy Jones stated that Charles Jones and Danny Haley were cocaine dealers. They used Charisse Christopher to
sell cocaine out of her apartment. Leroy Jones related that he overheard Haley stating that Christopher had to be
killed. The next week Charisse Christopher was killed.

                                                          13
undermines confidence in the outcome of the prosecution.” Sedley Alley v. State, No. W2006-
01179-CCA-R3-PD (Tenn. Crim. App., at Jackson, Jun. 22, 2006), perm. to appeal denied,
(Tenn. Jun. 27, 2006); Sedley Alley v. State, No. W2004-01204-CCA-R3-PD; see, e.g., State v.
Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002). Notwithstanding its consideration of the
“potentially favorable” DNA testing results, the reviewing court cannot ignore the existing
evidence. See Alley, No. W2004-01204-CCA-R3-PD.


        The Petitioner requests that the items of his clothing and the bloody clothing of the
victims be tested in order to exonerate him and to determine whether a third party was the
assailant. He contends that exculpatory results can include the presence of third party DNA
and/or the absence of his DNA on the clothing. This court has previously stated that post-
conviction DNA testing is a method of establishing the innocence of the petitioner and “not to
create conjecture or speculation that the act may have possibly been perpetrated by a phantom
defendant.” Sedley Alley v. State, No. W2006-01179-CCA-R3-PD (citing Sedley Alley v. State,
No. W2004-01204-CCA-R3-PD).


        For purposes of the Act, we presume that DNA testing will reveal exculpatory evidence;
specifically, we will presume that the clothing of the victims will not reveal the presence of DNA
from the Petitioner and that it will reveal the DNA of a third party. However, this court cannot
ignore the evidence of the Petitioner’s guilt. The evidence introduced at trial indicates that:


               1. The Petitioner’s baseball cap was found on Lacie Christopher’s
               forearm - her hand and forearm sticking through the opening
               between the adjustment strap and the cap material. See Payne, 791
               S.W.2d at 13. No explanation was provided as to how the cap
               came to be located on Lacie’s person.


               2. Charisse Christopher’s body was found on the kitchen floor on
               her back, her legs fully extended. The right side of her upper body
               was against the wall, and the outside of her right leg was almost
               against the back door. Her shorts were pushed up on her legs and a
               used tampon was found beside her lifeless body. See Pervis
               Tyrone Payne v. State, No. 02C01-9703-CR-00131.


               3. The medical examiner testified that the wounds inflicted upon
               Lacie Christopher “would have been rapidly fatal.” See Payne, 791
               S.W.2d at 12. The Petitioner testified that as he approached the
               apartment, he heard the baby crying.




                                               14
4. Nancy Wilson heard footsteps leading into the bathroom and
heard water running in the sink. The Petitioner denied going to the
bathroom.


5. Our supreme court noted that “[t]he testimony of Laura Picard
and Nancy Wilson, the time of Mrs. Wilson’s call to the police and
Officer Owens’ arrival virtually forecloses the possibility that an
unidentified intruder committed these murders and disappeared out
the front door before the [Petitioner] entered the apartment.”
Payne, 791 S.W.2d at 15.


6. This court noted “The [Petitioner’s] own testimony was
damning. Incredibly, he testified at trial that he went into the
apartment and found the Christophers. In trying to explain how he
had so much blood on him, the [Petitioner] testified that it
happened when he pulled the knife out of Ms. Christopher’s neck.
As Ms. Christopher reached for him, she fell and hit the kitchen
wall, splattering him with blood. This, of course, was after Ms.
Christopher had been stabbed forty-one times. The [Petitioner]
fled the scene, assaulting a police officer as he ran, and was later
found hiding in a friend’s attic. The [Petitioner’s] baseball cap was
found intertwined in Lacie’s arm, although he did not recall his hat
falling off. Moreover, we note that the time frame of the murders
virtually precludes any person other than the [Petitioner] from
committing these crimes. Witnesses at trial testified that, after they
heard screaming from the upstairs apartment, they saw no one go
up or down the stairs. The resident manager, Wilson, testified that,
after the screaming stopped, she heard a person walk into the
bathroom and heard water running. She then heard a person walk
across the floor, slam the door shut and then run down the steps.
The police were on the scene at that point in time with the first
officer observing the [Petitioner] as he ran down the stairs covered
in blood. There is no question as to the confidence in the jury’s
verdict.” Pervis Tyrone Payne v. State, No. 02C01-9703-CR-
00131.


7. During the State’s cross-examination, the Petitioner made the
following admission:

       Q. Can you explain why there’s bloodstains on your
       left leg?


                                 15
                       A. Left leg?

                       Q. Yes, sir.

                       A. Evidently it probably came - had to come from
                       when she - when she hit the wall. When she
                       reached up and grabbed me.

                       Q. When she hit the wall?

                       A. When she - when she hit - when she hit when I
                       got ready to run up - when I got ready to vomit.

                       Q. When she hit the wall she got blood on you?

                       A. When she splashed. It was blood - a lot of blood
                       on the floor.

                       Q. She got blood on you when she hit the wall. Is
                       that what you said?

                       A. She hit against the wall when she fell back.

                       Q. Is that what you said, sir, that she got blood on
                       you when she hit the wall?

                       A. I didn’t say she got blood on me when she hit the
                       wall.

                       Q. Isn’t that what you said just a moment ago, sir?

                       A. That ain’t - that’s not what I said.



                             1. Review of Lower Court’s Findings


                            a. Presence of Unknown Party’s DNA


        The post-conviction court concluded that “[g]iven the circumstances of the victims’
murder and the evidence presented at trial, this court can not agree with petitioner’s contentions.”
The court concluded that “the presence of skin, hair or some other substance containing DNA,
other than blood, even if it were found to belong to an unknown third party would not prove

                                                 16
exculpatory as such sample could have been left at the apartment at a time prior to the murders.”
The court acknowledged that a stronger case would be presented if blood evidence belonging to a
third party was found on the victims’ clothing. However, even in this event, this would not
create a reasonable probability that the Petitioner would not have been prosecuted or convicted.
The post-conviction court continued, noting that, as both the supreme court and this court have
acknowledged, the evidence against the Petitioner rendered it virtually impossible for any person
other than the Petitioner to have committed the crimes. The post-conviction court noted that it
“can not say that the presence of some unknown quantity of some unknown person’s blood
deposited at some unknown time on either the victims’ or the petitioner’s clothing would have
sufficiently corroborated petitioner’s claims to the point that the jury would have accredited his
version of events and rendered an acquittal.” The post-conviction court added that “this court
can not say that, even if exculpatory results were produced, the confidence in the outcome of the
prosecution of petitioner’s case would be undermined.”


        With consideration of the proof introduced at trial, this court, as found by the post-
conviction court, cannot conclude that the presence of an unknown person’s DNA on the
victims’ or Petitioner’s clothing would have resulted in the State foregoing prosecution and/or
resulting in the Petitioner not being convicted. Moreover, this court, as found by the post-
conviction court, cannot conclude that the presence of an unknown party’s DNA on the victims’
clothing or the Petitioner’s clothing would have rendered the Petitioner’s verdict or sentence
more favorable. Considering the severity and number of wounds inflicted upon the victims, it is
more likely than not, that the blood belonged to Ms. Christopher, Lacie, or Nicholas.
Additionally, even should the samples contain DNA evidence belonging neither to the Petitioner
nor any of the victims, we cannot conclude that such evidence, in light of the totality of all
evidence, would have precluded prosecution or conviction. Accordingly, this court concludes
that the post-conviction court has not abused its discretion in denying post-conviction DNA
analysis on the victims’ clothing and the Petitioner’s clothing.


                         b. Lack of Presence of the Petitioner’s DNA


        The Petitioner additionally argues that, if testing revealed the absence of his blood DNA
on the victims’ clothing, then such fact would lead to a reasonable probability that he would not
have been convicted. The post-conviction court disagreed, noting that although there was
evidence presented that the Petitioner had scratches on his chest, there was no proof that the
Petitioner’s injuries were so severe that they would have necessarily left blood evidence on the
victims’ clothing. The post-conviction court concluded that “even if DNA testing indicated
petitioner did not leave blood on the victims’ clothing, there is not a reasonable probability that
the State would have forgone prosecution.” The court continued, saying that “[g]iven the
strength of the proof against petitioner, it is almost certain they would have continued to
prosecute petitioner for the murders.” The post-conviction court added that the absence of the
Petitioner’s blood from the victims’ clothing does not corroborate his claim of innocence; rather,


                                                17
it just leads to the conclusion that the Petitioner did not leave any blood deposits on the victims’
clothing during the altercation.


        We agree with the conclusions reached by the post-conviction court. We cannot conclude
that the absence of the Petitioner’s blood on the victims’ clothing would have resulted in the
State foregoing prosecution and/or resulting in the Petitioner not being convicted. Moreover, this
court, as found by the post-conviction court, cannot conclude that the absence of the Petitioner’s
blood on the victims’ clothing would have rendered the Petitioner’s verdict or sentence more
favorable. Accordingly, this court concludes that the post-conviction court has not abused its
discretion in denying post-conviction DNA analysis on the victims’ clothing and the Petitioner’s
clothing.


                                            Conclusion


        Upon our review of the record before us, including the Petitioner’s brief and the State’s
response, we conclude that the post-conviction court properly considered all of the evidence
before it. Moreover, we conclude that the record supports the post-conviction court’s
conclusions that the Petitioner had failed to establish 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 and (2) 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 proceedings leading to the
judgment of conviction. See T.C.A. §§ 40-30-304(1), -305(1). Accordingly, the post-conviction
court did not err by denying the Petitioner’s request for DNA analysis.


       The judgment of the post-conviction court is affirmed.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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