            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1998


                                                             FILED
RICKEY LEE NELSON,          )                          February 12, 1998
                            )    No. 02C01-9607-CR-00223
      Appellant             )                          Cecil Crowson, Jr.
                            )    SHELBY COUNTY         Appellate C ourt Clerk
vs.                         )
                            )    Hon. John P. Colton, Jr., Judge
STATE OF TENNESSEE,         )
                            )    (Post-Conviction)
      Appellee              )



For the Appellant:               For the Appellee:

Paula Skahan                     Charles W. Burson
Attorney at Law                  Attorney General and Reporter
140 North Third Street
Memphis, TN 38103                Kenneth W. Rucker
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 William L. Gibbons
                                 District Attorney General

                                 Ms. Lorraine Craig
                                 Asst. District Attorney General
                                 Criminal Justice Complex
                                 Suite 301, 201 Poplar Street
                                 Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                   OPINION



        The appellant, Rickey Lee Nelson,1 appeals the denial of his petition for post-

conviction relief and denial of his motion requesting state-funded DNA testing. He is

currently serving an effective twenty-five year sentence in the Department of

Correction, resulting from his 1991 Shelby County convictions for robbery with a

deadly weapon, second degree burglary, and aggravated rape.2 His convictions

were affirmed on direct appeal to this court. See State v. Nelson, No. 02C01-9103-

CR-00050 (Tenn. Crim. App. at Jackson, Oct. 2, 1991), perm. to appeal denied,

(Tenn. Feb. 24, 1992). On June 15, 1993, the appellant, proceeding pro se, filed

the instant petition for post-conviction relief. On October 11, 1993, he filed a motion

for state-funded DNA testing. After hearings on the merits of the motion and the

post-conviction petition, the trial court denied the relief sought. The issues

presented in these proceedings are consolidated for purposes of appeal.



        In this appeal, the appellant raises the following issues:

        I. Whether due process requires the State of Tennessee to provide
        indigent non-capital defendants funding for scientific testing in post-
        conviction proceedings;

        II. Whether trial counsel was ineffective for waiving the appellant’s
        right to a sequestered jury;




        1
         The record reflects that although the appellant was indicted in this case under the name
Rickey Lee Nelson and all the pleadings reflect the name Rickey Lee Nelson, he is incarcerated
for these crime s unde r the alias “R ussell W ellington, #12 2766.”

        2
       The relevant portion of the trial court’s findings of fact in its ORDER DENYING DNA
TESTING provides the following background information:

        The appellant’s convictions for aggravated rape, aggrava ted robbery and burglary
        [were] based primarily on the victim’s identification of the petitioner as her
        ass ailant , while the vic tim’s daug hter in dep end ently c orro bora ted h er m othe r’s
        identification of the petitioner. Before any unlawful events occurred, both mother
        and daughter had a protracted period of non-traumatic exposure to the petitioner
        in a ligh ted a rea. T heir p ositive ident ificatio n of th e pet itione r as th e m othe r’s
        assailant subsequently resulted. Prior to the first encounter that the victim and
        her daughter had with the petitioner one day before the mother was assaulted,
        the victim and her daugh ter claim ed to hav e never seen the petitioner be fore.
        Therefore, the victim and her daughter apparently had no motive to allege false
        accus ations ag ainst the p etitioner.

                                                      2
       III. Whether trial counsel was ineffective for failing to request DNA
       testing which the appellant contends would have established his
       innocence; and

       IV. Whether trial counsel was ineffective for failing to conduct an
       adequate pre-trial investigation in preparation of the appellant’s
       defense.


       After a review of the issues before us, we affirm the trial court’s judgment.




   I. Scientific Services for Non-capital Indigent Post-Conviction Petitioner



       The appellant contends that the trial court’s denial of his motion requesting

state funds for DNA testing at the post-conviction level violates both his state and

federal rights to due process, because it denies him the ability to establish prejudice

arising from trial counsel’s ineffectiveness. Accordingly, the appellant argues that

because his constitutional right to effective assistance of counsel has been

impaired, as an indigent, he is entitled to state funding so that he may be provided

the opportunity to advance this claim of constitutional impairment. Our supreme

court has addressed this precise issue and held that “the state is not required to

provide expert assistance to indigent non-capital post-conviction petitioners.” Davis

v. State, 912 S.W.2d 689, 696-697 (Tenn. 1995); see also Vandygriff v. State, No.

01C01-9603-CC-00089 (Tenn. Crim. App. at Nashville, Feb. 28, 1997). In Davis,

the court noted that in this state, there is no rule or statute that entitles a non-capital

post-conviction petitioner state funded expert assistance. Id. at 695. In denying the

funding of experts, the court observed the distinction between providing indigent

defendants the basic tools of an adequate defense at trial and on direct appeal as

opposed to those at the post-conviction level. Consistent with previous analyses of

this distinction, our supreme court reiterated:

       [a] direct appeal is the primary avenue for review of a conviction and
       sentence. Once the process goes beyond the trial and direct appeal
       as of right stage, the state has no duty to ‘duplicate the legal arsenal
       that may be privately retained by a criminal defendant in a continuing
       effort to reverse his conviction.’

                                           3
Id. at 696 (citing Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391

(1983); Ross v. Moffit, 417 U.S. 600, 616, 94 S.Ct. 2437, 2447 (1974)). In

accordance with our supreme court’s decision in Davis, this issue is without merit.




                       II. Ineffective Assistance of Counsel



       Next, the appellant contends that he was denied effective representation of

counsel due to counsel’s: (1) waiver of the appellant’s right to a sequestered jury;

(2) failure to conduct an adequate pre-trial investigation in preparation of the

appellant’s defense; and (3) failure to request DNA testing. Initially, we note that the

appellant’s challenge regarding the waiver of a sequestered jury has been

previously determined by this court on direct appeal. See Nelson, No. 02C01-9103-

CR-00050. The fact that this issue is now couched in terms of ineffective assistance

of counsel is of no consequence. See Overton v. State, 874 S.W.2d 6, 12 (Tenn.

1994) (“to allow every error committed by the trial court to be recast in a post-

conviction petition as an ineffective assistance of counsel allegation would be to

subvert the limited purposes of the post-conviction procedure”). An issue that has

been previously determined on direct appeal cannot support a petition for post-

conviction relief and is, therefore, excluded. See Tenn. Code Ann. § 40-30-111, -

112 (a)(1990)(repealed 1995); State v. Denton, 938 S.W.2d 373, 377 (Tenn. 1996);

House v. State, 911 S.W.2d 705, 710 (Tenn. 1995), cert. denied, --U.S.--, 116 S.Ct.

1685 (1996).



         A. Standard for Determining Ineffective Assistance of Counsel

       Before an appellant may succeed in a challenge regarding counsel’s

performance, he must show, by a preponderance of the evidence, Taylor v. State,




                                         4
875 S.W.2d 684, 686 (Tenn. Crim. App. 1993), 3 perm. to appeal denied, (Tenn.

1994), first, that counsel’s representation fell below the range of competence

demanded of attorneys in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975), and, second, that, but for these errors, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct.

2052, 2068 (1984); State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied,

493 U.S. 874, 110 S.Ct. 211 (1989). On post-conviction review, there is a strong

presumption of satisfactory representation, Barr v. State, 910 S.W.2d 462, 464

(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). Moreover, when this

court undertakes review of a lower court’s decision on a petition for post-conviction

relief, the lower court’s findings of fact are given the weight of a jury verdict and are

conclusive on appeal absent a finding that the evidence preponderates against the

judgment. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert.

denied, 441 U.S. 947, 99 S.Ct. 2170 (1979); Taylor, 875 S.W.2d at 686.



                            1. Failure to Adequately Investigate

        At the post-conviction hearing, the appellant provided numerous instances of

counsel’s alleged deficient performance to support his claim that counsel was

ineffective for failing to adequately investigate his case. He maintains that trial

counsel had insufficient contact with him prior to trial and that trial counsel failed to

pursue witnesses that would have provided the appellant with an alibi. The

appellant testified that he provided counsel with the name of his fiancee at the time,

Stephanie Johnson, and the names of three co-workers, Donald McCorkle, John

Warner, and “Joe.” The appellant asserted that these witnesses could attest to his

presence in Jackson, Tennessee, on the day of the instant offenses. None of these

potential alibi witnesses testified at the post-conviction hearing.




        3
          For post-conviction claims filed after May 10, 1995, the burden of proof is by clear and
convinc ing eviden ce. See Tenn. Code A nn. § 40-30-210(f) (1996 Sup p.).

                                                 5
         Trial counsel testified that he met with the appellant eight times between

arraignment and trial. With regard to the potential alibi witnesses, counsel stated

that, prior to the instant proceeding, he had never heard of Donald McCorkle, John

Warner, and “Joe.” He conceded, however, that the appellant did provide him with

the names of two witnesses, Stephanie Johnson and Harry Shaw. Through an

investigator, counsel did contact Stephanie Johnson. Johnson indicated that she

could not recall the specific day in question and that she would not lie for the

appellant. The investigator, despite diligent efforts, was not able to locate Harry

Shaw.



         The trial court concluded that trial counsel’s investigation of potential alibi

witnesses was not deficient. We agree. When an appellant contends that trial

counsel failed to locate potential witnesses in support of his defense, he bears the

burden of presenting these witnesses at the post-conviction evidentiary hearing.

Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Before he can be

entitled to relief on this ground, the appellant must produce a material witness(es)

who (1) could have been found by a reasonable investigation and (2) would have

testified favorably in support of his defense if called. Id. If the appellant fails to

present such witnesses, he fails to establish the prejudice prong mandated by

Strickland v. Washington, supra. Black, 794 S.W.2d at 758. This issue is without

merit.



                           2. Failure to Request DNA Testing

         The appellant argues that counsel was ineffective for failing to request DNA

testing prior to trial. He conceded that counsel, before trial, did request and receive

funding for serology tests that would permit ABO blood type comparisons. However,

the appellant stated that he requested that counsel look into the possibility of

obtaining DNA testing. Counsel explained to the appellant that DNA testing “was

very expensive,” that “it took quite some time to get the results back,” and could


                                            6
either “exclusively exclude him” or could “point the finger right between his eyes.”

After this explanation, trial counsel was unable to obtain a definitive response from

the appellant as to whether he wanted to pursue DNA testing. Counsel maintained

that he “never would have requested [DNA testing] without [the appellant] wanting

it.” Additionally, counsel testified that, at the time of the appellant’s trial, “[DNA

evidence] had [not] been ruled as admissible by a Tennessee court.” On the first

day of trial, the appellant learned that the results of the ABO blood type grouping4

were inconclusive. At that point, the appellant stated that he wanted DNA testing.

Counsel then moved for a continuance of the appellant’s scheduled trial in order that

DNA testing could be performed. This motion was denied.



        The appellant now claims that counsel’s failure to insist upon DNA testing

amounted to ineffectiveness because the only issue at trial was the perpetrator’s

identity and because the DNA evidence would have exonerated the appellant.

Thus, he argues he was prejudiced by counsel’s failure to zealously represent his

client’s interest in obtaining DNA analysis.



        The State cites, as dispositive of this issue, an unpublished opinion of this

court, Mitchell v. State, No. 01C01-9507-CR-00227 (Tenn. Crim. App at Nashville,

May 9, 1996). We agree that Mitchell is applicable to the present case. In Mitchell,

as in the present case, a secretor test was performed prior to the defendant’s trial.

Id. The results of the testing were inconclusive. Id. Trial counsel testified that he

did not request a DNA test because he did not wish to risk creating evidence that

would implicate the defendant. Id. Judge Welles, writing on behalf of this court,

determined that “the issue concerning the DNA test. . . fall[s] under the category of

trial tactics. Counsel’s decision not to pursue a DNA test was based on a realistic

apprehension of creating detrimental evidence that did not exist. . . . [W]e do not


        4
        These tests are possible only if the accused is a secretor, i.e., if the accused is a person
whose ABO blood type can be detected in his body fluid secretions. Because the appellant was a
nonsecretor, the tests were inconclusive.

                                                 7
second guess the trial tactics of counsel.” Id.



        In the case sub judice, considering that the appellant refused to supply

counsel with a definitive answer regarding the testing, that the testing could be

detrimental as well as exculpatory, and that, at the time of the trial, DNA testing was

considered a novel issue whose admissibility and reliability were questioned by

Tennessee courts, 5 see State v. Overbay, 806 S.W.2d 212, 214 (Tenn. Crim. App.

1990), we cannot conclude that counsel’s decision not to pursue DNA testing

amounted to deficient performance. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn.

1982). Our disposition of the deficient performance prong of Strickland makes an

analysis of the prejudice prong unnecessary. However, our review of this issue

indicates that it is also impossible to establish that the appellant was prejudiced by

the error alleged. To establish prejudice, the appellant was required to show that

there is a reasonable probability that, but for counsel’s deficient performance, the

result of the proceedings would have been different. Strickland, 466 U.S. at 694,

104 S.Ct. at 2068. For this court to conclude that there exists a “reasonable

probability” that DNA test results would have exonerated the appellant of guilt would

require us to engage in sheer speculation. For these reasons, we find this issue

without merit.




                                              Conclusion



        After a review of the issues before this court, we affirm the judgment entered

by the trial court.



        5
          At the time of the appellant’s trial, a separate pretrial hearing with an expert to establish
the DN A eviden ce’s reliability was neces sary prior to its a dmis sion. See State v. Ha rris, 866
S.W.2d 583, 586-87 (Tenn. Crim. App. 1992). However, as to crimes comm itted after July 1,
1991, ou r legislature m ade D NA evid ence a dmis sible withou t a prior hea ring. See Tenn. Code
Ann. § 2 4-7-117 (1991 S upp.). See also State v. Edwards, 868 S.W .2d 6 82, 6 97 (T enn . Crim .
App. 1993). Thus, our review requires a contemporaneous assessment of counsel’s alleged
deficient performance.

                                                   8
                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




_______________________________
JOE B. JONES, Presiding Judge



_______________________________
JOE G. RILEY, Judge




                                  9
