        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 8, 2016

            WILLIE ANDREW COLE v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2005-C-2386 Steve R. Dozier, Judge
                     ___________________________________

             No. M2015-02087-CCA-R3-PC – Filed September 18, 2016
                    ___________________________________

Petitioner, Willie Andrew Cole, appeals pro se from the post-conviction court‟s summary
dismissal of his post-conviction petition for DNA analysis. Petitioner contends that the
trial court erred by denying his request for DNA testing pursuant to the Post-Conviction
DNA Analysis Act. We affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR. and CAMILLE R. MCMULLEN, JJ., joined.

Willie Andrew Cole, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel,
Glenn R. Funk, District Attorney General; and Rachel Sobrero, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

Facts and procedural history

       Petitioner was convicted in 2007 for premeditated first degree murder and
tampering with evidence. Defendant received concurrent sentences of life imprisonment
without the possibility of parole for his murder conviction and six years for his tampering
with the evidence conviction. His sentences were ordered to be served consecutively to a
life sentence he was already serving. This court affirmed Petitioner‟s convictions on
direct appeal. State v. Willie A. Cole, No. M2007-02896-CCA-R3-CD, 2009 WL
1676054 (Tenn. Crim. App., June 16, 2009), perm. app. denied (Tenn., Oct. 26, 2009).
This court summarized the facts underlying Petitioner‟s convictions as follows:
              On June 19, 2005, Martha Banks discovered her father, seventy-
        one-year-old Joseph Banks, dead of multiple stab wounds in his
        Nashville apartment. The sixty-five-year-old [Petitioner] lived in the
        next-door apartment of the high-rise retirement building, Edgefield
        Manor, and was interviewed by police investigators as part of their
        canvass of the building. During the interview, which took place in the
        defendant‟s apartment, a police investigator noticed that the defendant‟s
        boot tread appeared to match a bloody shoe print found in the victim‟s
        apartment. The defendant consented to a search of his apartment and
        turned over to the investigator his recently polished boots, which tested
        positive for the presence of the victim‟s blood. A subsequent search of
        his apartment uncovered, among other things, three bottles of shoe polish
        and four bottles of bleach as well as signs of the kitchen floor[ ] having
        been recently bleached. Through conversations with other residents of
        the building, investigators learned that the defendant had been extremely
        jealous and possessive of his girlfriend, had accused the victim of having
        an affair with her, had threatened and assaulted the victim in the past,
        and had stated his intention of killing the victim in the week preceding
        the murder. The defendant was subsequently arrested and charged with
        the first degree premeditated murder of the victim and with tampering
        with evidence.

2009 WL 1676054, at *1.

        Petitioner subsequently filed a petition seeking post-conviction relief alleging that
his trial counsel provided ineffective assistance. Following a hearing, the post-conviction
court denied Petitioner‟s petition. This court affirmed the post-conviction court‟s denial
of relief. Willie A. Cole v. State, No. M2011-01676-CCA-R3-PC, 2013 WL 310208
(Tenn. Crim. App., Jan. 25, 2013), perm. app. denied (Tenn., June 19, 2013).

       The record shows that on July 23, 2012, Petitioner filed pro se a post-conviction
petition for DNA analysis. On September 20, 2012, the post-conviction court entered an
order granting the State 30 days within which to respond. No response by the State or
order disposing of that petition is included in the record. Petitioner filed another pro se
petition seeking DNA analysis on June 15, 2015. The State filed a response to the
petition. The post-conviction court entered an order summarily denying relief on October
7, 2015. Petitioner timely filed a notice of appeal.

       In its order denying Petitioner‟s request for DNA analysis, the post-conviction
court noted the evidence of Petitioner‟s guilt, including:

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        that [Petitioner] had a motive for killing [the victim] in the form of his
        extreme jealousy of [his girlfriend]; that [Petitioner] believed that the
        victim was interfering with his relationship with [his girlfriend] and had
        assaulted the victim in the past over the issue; that [Petitioner] stated his
        intention [to] kill[ ] the victim approximately one week prior to the
        murder; that the unarmed victim received multiple stab wounds; that the
        victim‟s wallet was still in his pocket after the murder; that the victim‟s
        blood was found on the sole of [Petitioner‟s] boot and on a discarded
        steak knife that appeared very similar to steak knives in [Petitioner‟s]
        apartment; that [Petitioner] had recently cleaned the floors of his
        apartment; and that [Petitioner] appeared calm after the murder and
        expressed no curiosity as to what had happened to the victim. Further,
        TBI Agent Charles Hardy, an expert in DNA analysis, testified that he
        found human blood on one of the two knives found in the apartment
        building‟s trash and on the sole of [Petitioner]‟s left boot, both of which
        matched the DNA profile of the victim.

       The post-conviction court concluded that even if DNA testing was possible and
was performed, Petitioner failed to demonstrate a “reasonable probability that the
petitioner would not have been prosecuted or convicted if exculpatory results had been
obtained through DNA analysis.” T.C.A. § 40-30-304(1). The court also concluded that
Petitioner failed to show that a “reasonable probability exists that analysis of the evidence
will produce DNA results that would have rendered the petitioner‟s verdict or sentence
more favorable if the results had been available at the proceeding leading to the judgment
of conviction.” T.C.A. § 40-30-305(1).

Analysis

       Petitioner asserts that the post-conviction court erred by denying his petition. The
State responds that the evidence of Defendant‟s guilt was overwhelming, and the trial
court properly denied Defendant‟s request for DNA analysis.

       The Post-Conviction DNA Analysis Act of 2001 (“The Act”) allows petitioners
convicted and sentenced for certain homicide and sexual assault offenses in which
biological evidence may have existed to request post-conviction DNA testing. T.C.A. §
40-30-303. The Act contains no statutory time limit and extends to petitioners the
opportunity to request analysis at “any time,” regardless of whether such a request was
made at trial:

        [A] person convicted of and sentenced for the commission of first degree
        murder . . . may at any time, file a petition requesting the forensic DNA
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        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.

Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006) (citing T.C.A. § 40-30-303). 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 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; 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 same conditions.
T.C.A. § 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 DNA analysis.
T.C.A. §§ 40-30-304(2), -305(2).

       A petitioner‟s failure to meet any of the qualifying criteria is fatal to the action.
See William D. Buford v. State, No. M2002-02180-CCA-R3-PC, 2003 WL 1937110, at
*3 (Tenn. Crim. App., Nashville, Apr. 24, 2003). Moreover, the Act does not specifically
provide for a hearing as to the qualifying criteria and, in fact, authorizes a hearing only
after DNA analysis produces a favorable result. See T.C.A. § 40-30-312.

       The post-conviction court has considerable discretion in determining whether to
grant relief under the Act, and the scope of appellate review is limited. See Sedley Alley
v. State, No. W2006-01179-CCA-R3-PD, 2006 WL 1703820, at *5 (Tenn. Crim. App.,
at Jackson, June 22, 2006). 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 lower court may also consider the
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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 lower court is not supported by substantial evidence. Id.

       In the instant case, we find that the post-conviction court‟s summary dismissal of
the petition for post-conviction relief was supported by the record. The post-conviction
court reviewed the available evidence, including this court‟s opinion on direct appeal of
Petitioner‟s conviction. The post-conviction court found “that even if DNA testing were
possible and performed, the petitioner has failed to demonstrate that a „reasonable
probability exists that the petitioner would not have been prosecuted or convicted if
exculpatory results had been obtained through DNA analysis.‟” See T.C.A. § 40-30-
304(1).

       In his petition, Petitioner requested DNA testing of the victim‟s fingernail
clippings and blood smears and prints from the floor and furniture inside the victim‟s
apartment. Defendant asserted that those items had never been subjected to DNA testing.
The State does not dispute that the evidence Petitioner wanted tested still exists and has
never been tested. The State argues that even if DNA testing of that evidence yielded
exculpatory results, Petitioner still would have been prosecuted, and it would not have
changed the outcome of the trial. We agree with the State.

        Assuming, as we must, that DNA testing would yield favorable results – in this
case, that someone else‟s DNA would be found on the victim‟s fingernails or in blood
samples taken from the victim‟s apartment, it would not have changed the outcome of the
trial. As noted by the post-conviction court, the proof at trial showed: that Petitioner had
a motive for killing the victim; that Petitioner had previously assaulted the victim; that
Petitioner had stated his intention of killing the victim one week before the murder; that
the victim‟s blood was found on a discarded steak knife that was similar to steak knives
found in Petitioner‟s apartment; that Petitioner had recently cleaned his apartment floors
with bleach; that Petitioner was calm and showed no curiosity after the victim‟s body was
found; and that the victim‟s blood was found on Petitioner‟s boot.

       Based on the strength of the State‟s case against Petitioner, we agree with the State
and the post-conviction court. Because Petitioner‟s request fails to pass the first
procedural hurdle, it is not necessary to consider the remaining factors because all four
factors must be satisfied to warrant DNA testing under either provision. Powers v. State,
343 S.W.3d 36, 48 (Tenn. 2011). Accordingly, Petitioner is not entitled to relief.




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                                CONCLUSION

      In consideration of the foregoing and the record as a whole, we affirm the
judgment of the post-conviction court.


                              ____________________________________________
                              THOMAS T. WOODALL, PRESIDING JUDGE




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