        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 12, 2011

             DEVON M. CRAWFORD v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                      No. 97-02728    John P. Colton, Jr., Judge




                 No. W2010-01676-CCA-R3-PC - Filed June 20, 2011


The Petitioner, Devon M. Crawford, pled guilty to first degree felony murder, and the trial
court sentenced him to a life sentence in the Tennessee Department of Correction. The
Petitioner filed a petition for post-conviction relief requesting DNA analysis of unspecified
evidence collected by police in his case, which the post-conviction court denied. On appeal,
the Petitioner contends that he is entitled to DNA testing under the Post-Conviction DNA
Analysis Act of 2001 and that the post-conviction court erred when it dismissed his petition.
After a thorough review of the record and applicable law, we affirm the post-conviction
court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J., joined. JOSEPH M. T IPTON, P.J., concurred in the results only.

Paul K. Guibao, Memphis, Tennessee, for the Appellant, Devon M. Crawford.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William L. Gibbons, District Attorney General; Stephanie Zander Johnson,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

        This case arises from the Petitioner’s attempted aggravated robbery of the victim in
a mall parking garage in Memphis, Tennessee. During the attempted aggravated robbery, the
Petitioner shot and killed the victim. A Shelby County grand jury indicted the Petitioner for
first degree felony murder. The Petitioner pled guilty to the charged offense and received
a life sentence. We summarize the factual basis for his conviction based upon police reports
included in the record in this appeal.

       On December 26, 1996, at approximately 6:30 p.m., the victim was exiting her car,
which was parked on the second level of the Goldsmith’s parking garage at Oak Court Mall
in Memphis, Tennessee, when the Petitioner and Carcecil Riley approached her. The
Petitioner, armed with a handgun, pointed the handgun at the victim and demanded her purse.
The victim screamed and the Petitioner fired one shot into the left side of the victim’s face,
below her left eye. The victim died immediately from the gunshot wound to her face. The
Petitioner and Riley fled the scene of the shooting in a Cadillac. Two people returning to
their vehicle from the mall found the victim’s bloody body slumped over in her car and
notified security officers.

        Police developed the Petitioner and Riley as suspects and both gave written statements
admitting to the attempted armed robbery and the killing of the victim. Both Riley and the
Petitioner stated that the Petitioner shot the victim. The Petitioner provided police with
specific details of the crime, including that he shot the victim with a .357 caliber revolver
while she sat in her car in the parking garage of the Oak Court Mall. The Petitioner also
identified the victim’s vehicle in a photograph.

      The trial court accepted the Petitioner’s guilty plea and sentenced him as a violent
offender to life imprisonment in the Tennessee Department of Correction.

        On January 19, 2006, the Petitioner filed a pro se petition for post-conviction relief,
claiming that he is entitled to testing under the Post-Conviction DNA Analysis Act of 2001.
After the post-conviction court appointed counsel to represent the Petitioner, appointed
counsel filed an amended petition for DNA analysis. On July 26, 2010, the post-conviction
court denied the petition requesting DNA analysis, finding that the Petitioner failed to satisfy
all four elements required under the Post-Conviction DNA Analysis Act of 2001. It is from
this judgment that the Defendant now appeals.

                                         II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred when it
dismissed his petition for post-conviction relief because he is entitled to DNA testing
according to the Post-Conviction DNA Analysis Act. The Post-Conviction DNA Analysis
Act provides:

       [A] person convicted of and sentenced for the commission of first degree
       murder, second degree murder, aggravated rape, rape, aggravated sexual

                                              -2-
       battery or rape of a child, the attempted commission of any of these offenses,
       any lesser included offense of these offenses, or, at the direction of the trial
       judge, any other offense, 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.

T.C.A. § 40-30-303 (2009). Under the Post-Conviction DNA Analysis Act, the post-
conviction court, after affording the prosecution the opportunity to respond, must order a
DNA analysis if it finds the following:

              (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.

T.C.A. § 40-30-304 (2009).

       The scope of our review is limited, as the post-conviction court is given considerable
discretion in deciding whether the Petitioner is entitled to relief under the Post-Conviction
DNA Analysis Act. See Jack Jay Shuttle v. State, No. E2003-00131-CCA-R3-PC, 2004 WL
199826, at *4 (Tenn. Crim. App., at Knoxville, Feb. 3, 2004), perm. app. denied (Tenn. Oct.
4, 2004). Therefore, this Court will not reverse the post-conviction court unless its judgment
is not supported by substantial evidence. State v. Hollingsworth, 647 S.W.2d 937, 938
(Tenn. 1983); see also Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-PC, 2003 WL
1868647, at *4 (Tenn. Crim. App., at Nashville, Apr. 11, 2003), no perm. app. filed.

       First degree murder is among the crimes for which a petitioner may request, at any
time, DNA analysis of any evidence in possession of the prosecution or laboratory. T.C.A.

                                              -3-
§ 40-30-303. The trial court, however, must order DNA analysis of such evidence only if a
petitioner satisfies all of the statutory requirements. T.C.A. § 40-30-304. “The absence of
any one of the four statutory conditions results in the dismissal of the petition.” Sedley Alley
v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *2 (Tenn. Crim. App., at
Jackson, May 26, 2004), perm. app. denied (Tenn. Oct. 4, 2004); see also William D. Buford
v. State, No. M2002-02180-CCA-R3-PC, 2003 WL 1937110, at *6 (Tenn. Crim. App., at
Nashville, Apr. 24, 2003), no perm. app. filed.

        In his request, the Petitioner requested “items” be submitted for testing pursuant to
Tennessee Code Annotated section 40-30-303. The post-conviction court applied the factors
set forth in Tennessee Code Annotated section 40-30-304 and found that the Petitioner failed
to meet the qualifying criteria under the statute. Specifically, the post-conviction court
stated:

               Petitioner asserts his rights to have all evidence collected in this case
       analyzed. Petitioner alleges that he would not have been prosecuted or
       convicted if exculpatory results had been obtained. This Court [will] not grant
       the Petition because the non-forensic evidence in this case, . . . precludes a
       finding that a successful DNA analysis would have in any way affected the
       initial decision to prosecute or the trial. Petitioner plead guilty to felony
       murder. It is enough to prove that Petitioner participated in a robbery during
       which victim was killed. There is evidence on the record, including
       Petitioner’s own admissions, which establish his involvement in the fatal
       robbery. Petitioner gave a detailed account of the events leading up to the
       attempted robbery and killing of Kyle. There is no evidence on the record of
       police coercion. Petitioner was 16 years old at the time the crime was
       committed and was accompanied by his parents and an attorney when he
       confessed to the crime.

              ....

                Petitioner makes no assertion that the evidence sought to be tested is
       still in existence nor does he make mention of what samples he would like
       tested. Petitioner requests, “DNA analysis of evidence.” Because the petition
       is facially deficient on this part, this Court is inclined to hold that Petitioner
       has failed to adequately establish that the evidence is still in existence and in
       such condition that DNA analysis may be conducted.

              ....



                                              -4-
              Petitioner states, “his application for analysis is made for the purpose
       of demonstrating innocence and because he is serving a sentence for the term
       of Life delaying the sentence is an impossibility.” Petitioner does not deny
       commission of the crime nor does Petitioner aver that analysis would result in
       a favorable result. For the above reason, this Court is inclined to hold that
       Petitioner has failed to satisfy part four of the act.

(Footnotes omitted).

        Upon our review of the record, we conclude that the post-conviction court’s denial
of this petition is supported by substantial evidence. As we have earlier stated, the Petitioner
must satisfy all four criteria in the statute and the absence of any one criteria warrants denial
of the request. In this case, the post-conviction court made specific findings for three of the
four criteria, criteria (1), (2), and (4). We will now address each of these three criteria upon
which the post-conviction court relied in denying of the Petitioner’s request for DNA
analysis.

        As to the first criteria requiring the Petitioner to show that “[a] reasonable probability
exists that the petitioner would not have been prosecuted or convicted if exculpatory results
had been obtained through DNA analysis,” the trial court found that the overwhelming
evidence of the Petitioner’s guilt precluded a finding that exculpatory DNA results would
have “in any way affected” the decision to prosecute or the outcome of the trial.

        In Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *9
(Tenn. Crim. App., at Jackson, May 26, 2004), no perm. app. filed, this Court stated that
“[t]he purpose of the Post Conviction DNA Analysis Act is to establish the innocence of the
petitioner and not to create conjecture or speculation that the act may have possibly been
perpetrated by a phantom defendant.” Id. The Court went on to conclude that if the
allegation is recent and the evidence supports the petitioner as the offender, a prior
confession may be enough to deny DNA testing. Id. In this case, the Petitioner gave a
detailed confession with his mother present. His co-defendant also provided a statement to
police implicating the Petitioner. In essence, the Petitioner's argument on appeal is that he
is not the perpetrator of this offense and that testing of the items requested in his petition will
prove his innocence. He is apparently seeking DNA testing in order to establish the identity
of a third party. However, identifying the donor of the DNA left inside the victim’s vehicle
and/or around the crime scene would not exonerate the Petitioner as the perpetrator of this
murder. Such evidence would at best simply establish that a third party had, at some point
not necessarily at the time of the crime, been inside the victim’s vehicle, been present in that
public area, or been in contact with the victim. See Dennis R. Gilliland v. State, No.
M2007-00455-CCA-R3-PC, 2008 WL 624931, at *4 (Tenn.Crim.App., Nashville, Mar. 3,


                                                -5-
2008) no perm. app. filed. The Petitioner has failed to establish his eligibility for DNA
testing under criterion (1).

       The evidence in the record supports the post-conviction court’s finding that the
Petitioner has not shown that “[t]he evidence is still in existence and in such a condition that
DNA analysis may be conducted.” T.C.A. § 40-35-304(2). Importantly, the Petitioner fails
to name what items should be tested,1 and, as to the existence of the evidence, he states that
he is “unclear as to whether the evidence remains in existence or not.” Some physical
evidence must be available and in proper condition in order for DNA analysis to be
performed. Although the State is in a better position to confirm or deny the existence of
physical evidence under its control, because the Petitioner did not name items he wished to
have submitted for the testing, the State could not respond as to whether these items were in
existence. We conclude that substantial evidence supports the post-conviction court’s
finding that the Petitioner failed to demonstrate criterion (2), that the evidence was still in
existence and in such a condition that DNA analysis could be conducted.

        Criterion (4) requires that “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.” In his petition, the Petitioner states, “his application for analysis
is made for the purpose of demonstrating innocence and because he is serving a sentence for
the term of Life delaying the sentence is an impossibility.” We believe, however, that this
criterion requires more than a bare assertion that a petitioner is seeking to demonstrate his
innocence. As earlier discussed, the Petitioner does not specify which evidence he seeks to
have tested and how testing this evidence would, in fact, demonstrate his innocence. He
merely states that testing would demonstrate his innocence. A bare assertion that testing
would demonstrate innocence without more is not sufficient to satisfy criterion (4) of this
statute. Thus, we conclude that the Petitioner failed to satisfy this requirement.

        Given the Petitioner’s failure to establish his eligibility for DNA testing under criteria
(1), (2), and (4), we conclude that the post-conviction court properly denied the Petitioner’s
request for DNA analysis. The Defendant is not entitled to relief as to this issue.

                                              III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that the

        1
          In his brief, he notes that the police report indicates “bloody clothing, a purse, and a wallet” were
recovered from the scene in support of existence of evidence for criterion 3, but the Petitioner does not state
anywhere in his brief which items he requests for testing. In the Petitioner’s petition requesting DNA
analysis, he only refers to “several items” for testing. In the Petitioner’s amended petition, he refers only to
“items” and “the evidence,” again never stating what items are to be tested.

                                                      -6-
post-conviction court properly denied the Petitioner’s petition requesting DNA analysis.
Accordingly, we affirm the judgment of the post-conviction court.

                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




                                           -7-
