                                                                                       11/26/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs July 16, 2019

                CARL J. WAGNER v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Davidson County
                    No. 2009-A-305    Steve R. Dozier, Judge
                    ___________________________________

                          No. M2018-02000-CCA-R3-PC
                      ___________________________________


The pro se Petitioner, Carl J. Wagner, appeals the denial of his petition for post-
conviction DNA analysis and the dismissal of his Tennessee Rule of Civil Procedure
60.02 motion to correct/relieve him of his judgments of conviction. Following our
review, we affirm the judgments of the post-conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL
and NORMA MCGEE OGLE, JJ., joined.

Carl J. Wagner, Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Sophia S. Lee, Senior
Assistant Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                        FACTS

       On November 5, 2009, a Davidson County Criminal Court jury convicted the
Petitioner of first degree felony murder, second degree murder, and especially aggravated
robbery. The trial court merged the second degree murder conviction into the first degree
felony murder conviction and sentenced the Petitioner to an effective sentence of life
imprisonment. On direct appeal, this court found the evidence insufficient to sustain the
first degree murder and especially aggravated robbery convictions but affirmed the
second degree murder conviction. State v. Carl J. Wagner, No. M2010-00992-CCA-R3-
CD, 2011 WL 2803098, at *1 (Tenn. Crim. App. July 20, 2011), perm. app. granted
(Tenn. Jan. 11, 2012). Our supreme court reversed our decision and reinstated the
convictions. State v. Wagner, 382 S.W.3d 289, 291 (Tenn. 2012).

      Our supreme court’s opinion provides the following overview of the case:

             On August 27, 2008, [the Petitioner] shot nineteen-year-old Adriel
      Charles Powell in the laundry room of a Nashville apartment complex
      located at 1601 Herman Street. The State charged the [Petitioner] with
      premeditated first degree murder, first degree murder committed in the
      perpetration of, or attempt to perpetrate, robbery, and especially aggravated
      robbery. The prosecution’s theory at trial was that the shooting occurred
      during a drug deal as the [Petitioner] robbed the victim of a backpack
      containing narcotics.

Id.

       The State’s proof at trial included evidence that the victim would have been
rendered immediately unconscious by the gunshot wound he sustained to the head, that
the victim’s shirt was ripped at the shoulder, that the victim’s blood had been transferred
from fabric to a walkway railing outside the laundry room, that the Petitioner’s Nike flip
flops were found outside the laundry room, and the Petitioner’s statement to police. Id. at
292-95.

       In the statement, the Petitioner said he met the victim and a second man outside
the laundry room in order to purchase marijuana. Id. at 294. The victim was carrying a
backpack that the Petitioner believed contained marijuana. Id. According to the
Petitioner’s account, he went with the victim and the second man to the laundry room,
where the victim disappeared into an inner room before the second man suddenly began
shooting at the Petitioner. Id. The Petitioner said the victim came out of the inner room
and began running toward the laundry room door and that the Petitioner shot him twice
because he feared the victim would shoot him. Id. The Petitioner told the detectives that
he lost his Nike flip flops as he fled the scene along the walkway after shooting the
victim. Id. The Petitioner sustained gunshot wounds during the encounter and was
interviewed by detectives at the hospital. Id.

       In reversing this court’s direct appeal opinion, our supreme court concluded that
there was sufficient circumstantial evidence independent of the Petitioner’s statement to
establish that the Petitioner had stolen the victim’s marijuana-filled backpack after he
shot the victim:



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                Furthermore, to prove that the [Petitioner] removed the victim’s
        backpack containing drugs and fled the scene with it, the prosecution
        introduced evidence showing that the victim’s blood had been transferred
        from fabric to the walkway railing outside the laundry room. The medical
        examiner testified that the nature of the victim’s injuries eliminated the
        possibility that the victim left the laundry room after the shooting and
        transferred his own blood to the railing. The prosecution also showed that
        the victim’s blood on the railing was near the drop-pattern statins of the
        [Petitioner’s] blood and along the path the [Petitioner] fled after the
        shooting. No proof was offered to show that the victim’s blood was on the
        [Petitioner’s] clothing. The first officer at the scene of the shooting
        testified that the laundry room door had been locked when he arrived. This
        testimony supported the prosecution’s theory that the victim’s blood had
        been transferred to the railing by the perpetrator of the crime.

                As further proof that the [Petitioner] stole the victim’s backpack
        containing drugs, the prosecution relied upon the [Petitioner’s] admission
        that he frequently smoked marijuana, the [Petitioner’s] statement that he
        went to the laundry room to buy drugs from the victim, the [Petitioner’s]
        statement that the victim’s backpack contained drugs, the absence of drugs
        from the victim’s person and the laundry room after the shooting, and the
        marijuana found among the [Petitioner’s] belongings at the hospital shortly
        after the shooting. This proof supported the prosecution’s theory that the
        [Petitioner] removed the victim’s backpack containing the drugs after the
        shooting.

Id. at 298.

      The Petitioner subsequently filed a post-conviction petition, which was denied.
This court affirmed the judgment of the post-conviction court, and our supreme court
denied the Petitioner’s application for permission to appeal. Carl J. Wagner v. State, No.
M2014-01086-CCA-R3-PC, 2015 WL 739608, at *1 (Tenn. Crim. App. Feb. 20, 2015),
perm. app. denied (Tenn. June 12, 2015).

       In August 2018,1 the Petitioner filed a Tennessee Rule of Civil Procedure 60.02
motion for “Relief from Judgment,” in which he argued, among other things, that the trial
court’s merger of his second degree murder conviction into his first degree felony murder
conviction violated principles of double jeopardy and that the trial court issued erroneous

        1
         The file date stamp on the petition is very faint and difficult to read but appears to be either
August 13, 2018, or August 18, 2018.
                                                  -3-
jury instructions in the case. Presumably at the same time,2 the Petitioner also filed a
petition for post-conviction DNA analysis in which he argued that DNA analysis of a
stain on his Nike flip flops would be reasonably likely to lead to exculpatory evidence in
the case. According to the Petitioner, “if the flip flops were tested and the results return
back as positive for the victim’s DNA, it would account for the blood on the railing and if
the results were to return back negative for the victim’s DNA, this would prove that the
petitioner did not stand over the corpse and take anything.”

       On October 2, 2018, the post-conviction court entered an order denying the
petition for post-conviction DNA analysis. The court noted the overwhelming evidence
of the Petitioner’s guilt and concluded that there was no reasonable probability that the
Petitioner would not have been prosecuted or convicted or that he would have received a
more favorable verdict or sentence had the shoes been tested. That same day, the court
also entered an order dismissing the Petitioner’s Rule 60.02 petition on the basis that a
motion filed under Tennessee Rule of Civil Procedure 60.02 is inapplicable to a criminal
proceeding. This appeal followed.

                                                 ANALYSIS

       Under the Post-Conviction DNA Analysis Act of 2001, the court shall order DNA
analysis of “any evidence that is in the possession or control of the prosecution. . . , 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, if
the court finds:

             (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.

       2
           The file date stamp on the petition is illegible.
                                                      -4-
Id. § 40-30-304.

       The post-conviction court is granted considerable discretion in its decision about
whether to grant a Petitioner relief under the Post-Conviction DNA Analysis Act, and this
court will not reverse its judgment unless it is unsupported by substantial evidence. See
Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *3 (Tenn.
Crim. App. May 26, 2004), perm. app. denied (Tenn. Oct. 4, 2004). We agree with the
trial court that DNA analysis of the flip flops would have neither prevented the
Petitioner’s prosecution nor established his innocence of the offenses. Accordingly, we
affirm the judgment of the trial court denying the Petitioner’s request for DNA analysis.

       We also affirm the post-conviction court’s summary dismissal of the Petitioner’s
motion pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure “for an order
releasing him” from the judgments in the case. Rule 60.02 of the Tennessee Rules of
Civil Procedure provides, in pertinent part, that

       On motion and upon such terms as are just, the court may relieve a party or
       the party’s legal representative from a final judgment, order or proceeding
       for the following reasons: (1) mistake, inadvertence, surprise or excusable
       neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic),
       misrepresentation, or other misconduct of an adverse party; (3) the
       judgment is void; (4) the judgment has been satisfied, released or
       discharged, or a prior judgment upon which it is based has been reversed or
       otherwise vacated, or it is no longer equitable that a judgment should have
       prospective application; or (5) any other reason justifying relief from the
       operation of the judgment. The motion shall be made within a reasonable
       time, and for reasons (1) and (2) not more than one year after the judgment,
       order or proceeding was entered or taken.

        In its summary dismissal, the post-conviction court correctly observed that the
rules of civil procedure govern civil cases, not criminal proceedings, and found that the
trial court acted “within its criminal jurisdiction when it instructed the jury and sentenced
the Petitioner[.]” See, e.g., Tamaine Works v. State, No. W2017-02276-CCA-R3-ECN,
2018 WL 6012729, at *11 (Tenn. Crim. App. Nov. 11, 2018), perm. app. denied (Tenn.
Feb. 25, 2019) (citations omitted) (noting that judgments of conviction are not governed
by the rules of civil procedure). Even if treated liberally as a motion to vacate an illegal
judgment or to correct a clerical error, as the Petitioner requests, the Petitioner is not
entitled to any relief. The Petitioner cannot show that the trial court’s merger of the
second degree murder conviction into his first degree murder conviction violates double

                                            -5-
jeopardy or that the trial court’s allegedly erroneous jury instructions render his
convictions illegal.
                                  CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgments of the
post-conviction court.



                                            ____________________________________
                                            ALAN E. GLENN, JUDGE




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