        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2016

           CHRISTOPHER D. HODGE v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Lauderdale County
                       No. 7359     Joe H. Walker, III, Judge
                     ___________________________________

              No. W2016-00892-CCA-R3-PC - Filed February 23, 2017
                     ___________________________________


The Petitioner, Christopher D. Hodge, appeals the Lauderdale County Circuit Court‟s
summary dismissal of his petition requesting DNA analysis of evidence pursuant to the
Post-Conviction DNA Analysis Act of 2001. Based upon 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 Circuit Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Christopher D. Hodge, Pro se, Clifton, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       In May 2002, the Petitioner and Ricky Ardd were prisoners at West Tennessee
State Penitentiary. See State v. Christopher David Hodge, No. W2003-01513-CCA-R3-
CD, 2004 WL 2290495, at *1 (Tenn. Crim. App. at Jackson, Oct. 11, 2004), perm. to
appeal denied, (Tenn. Feb. 28, 2005). On May 27, Ardd was transferred to cell 24 in
Unit 2 with the Petitioner as his cellmate, and they were the only two men in the cell. Id.
at *2. A correctional officer checked on their cell about 5:45 p.m. and did not see a
problem. Id. However, when she returned about 6:00 p.m., the Petitioner called out to
her that Ardd was unconscious. Id. A prison nurse went to the cell and found that Ardd
did not have a pulse. Id. at *2. The Petitioner was indicted for second degree murder.
Id. at *1.

       At trial, Dr. O.C. Smith, the Shelby County Medical Examiner, testified as follows
regarding the victim‟s autopsy:

               [T]he victim was five feet, six inches tall and weighed 145
               pounds. Dr. Smith concluded that the victim died of
               strangulation. He stated that the victim‟s neck was scraped
               and bruised by a ligature. The victim had bled into the
               muscles of his neck, as well as into the eyeball covering of
               both eyes. Dr. Smith also noted contusions and abrasions on
               the back of the neck, contusions of the tongue, and four
               superficial, non-fatal puncture wounds on the victim‟s back.
               He stated that the injuries suffered by the victim, specifically
               the bleeding into tissues, indicated that the victim did not die
               an instantaneous death. He stated that the victim did not die
               of manual strangulation but by the application of a ligature
               which left marks on the victim‟s neck. Dr. Smith was shown
               a long strip of torn bed sheeting attached to a plastic fork that
               was later introduced as an item seized from cell 24. Dr.
               Smith opined that the victim‟s injuries were consistent with
               strangulation by means of such an instrument. He said that he
               could not determine the time of death from the autopsy
               results. He explained that it takes approximately ninety
               seconds of oxygen deprivation to cause unconsciousness and
               four minutes of oxygen deprivation to cause death to the
               brain.

                      On cross-examination, Dr. Smith admitted that he
               could not say for certain that the ligature presented caused the
               victim‟s death. He also agreed that a sleeper hold can induce
               unconsciousness in approximately fifteen seconds.            On
               redirect examination, Dr. Smith stated that the victim would
               be expected to again start breathing if only made unconscious
               by means of a sleeper hold of fifteen seconds duration.

Id. at *1-2.

      The Petitioner testified at trial that he was six feet, six inches tall, that the strip of
bedding was in the cell when he moved there, and that it was used to suspend a sheet for
                                             -2-
restroom privacy. Id. at 3. He stated that after the victim was moved into his cell, the
victim was “standing, ranting, and using obscenities.” Id. The Petitioner asked the
victim to be quiet, and the victim spat on his face and tackled him. Id. The Petitioner
stated that he put the victim in a sleeper hold and onto the floor four times and that he
released the victim each time. Id. However, the victim kept getting up and attacking
him. Id. The Petitioner said that he repeatedly tried to call out to prison guards but that
the noise level was too high for guards to hear him, that he did not know the sleeper hold
would kill the victim, and that he was just trying to render the victim unconscious. Id.
He was not injured from the victim‟s attacks. Id. The Control Room Officer for Unit 2
testified that the noise level was “„pretty quiet‟” about 6:00 p.m. and that an emergency
call button in cell 24 was never activated. Id. The jury convicted the Petitioner as
charged, and the trial court sentenced him as a multiple offender to thirty-five years to be
served at 100%. Id. at *1.

       On direct appeal of his convictions to this court, the Petitioner argued that the
evidence was insufficient to support the conviction. Id. In finding the evidence
sufficient, this court stated as follows:

                      The undisputed medical evidence in this case
              attributed the death of the victim to strangulation by means of
              a ligature. An instrument suitable for a ligature was found in
              the cell where the victim died. Dr. Smith stated that the
              victim‟s injuries were consistent with the use of such an
              instrument, though he could not say to a medical certainty
              that this was the ligature used in the victim‟s homicide. Only
              the defendant could have been responsible for the victim‟s
              death. The jury could, and did, reject the defendant‟s version
              of self-defense and embraced the prosecution‟s theory that the
              defendant knowingly killed the victim. We hold that the
              evidence is sufficient to justify a rational jury to find beyond
              a reasonable doubt that the defendant knowingly killed the
              victim.

Id. at *4.

      The Petitioner filed a timely petition for post-conviction relief, alleging in part that
he received the ineffective assistance of counsel because trial counsel failed to obtain
independent forensic testing of the alleged murder weapon. Christopher Hodge v. State,
No. W2005-01588-CCA-R3-PC, 2006 WL 1381647, at *2 (Tenn. Crim. App. at Jackson,
May 19, 2006), perm. to appeal denied, (Tenn. Oct. 2, 2006). At the post-conviction
evidentiary hearing, trial counsel testified that she did not seek independent forensic
                                            -3-
testing of the strip of bedding because she did not know before trial that Dr. Smith was
going to identify it as the possible murder weapon. Id. at *3. This court stated that
counsel provided a “reasonable explanation[]” for not obtaining independent forensic
testing of the evidence and ruled that the post-conviction court properly denied the
petition for post-conviction relief. Id. at *6.

        On December 22, 2015, the Petitioner filed a petition for DNA testing of the strip
of bedding with the attached plastic fork pursuant to Tennessee Code Annotated section
40-30-304 or section 40-30-305. The State responded, arguing that the Petitioner was not
entitled to testing because Dr. Smith did not say with certainty that the strip of bedding
was the murder weapon and because testing would not prove the Petitioner‟s innocence
in that it would either incriminate him or simply exclude the bedding strip as the murder
weapon.

       On April 7, 2016, the post-conviction court filed a written order denying the
request for DNA analysis. In the order, the post-conviction court recounted the evidence
presented by this court in its direct appeal opinion affirming the Petitioner‟s conviction.
The court then wrote as follows:

                    Before a convicted defendant is entitled to request
              DNA testing, Tenn. Code Ann. § 40-30-304(1) requires that a
              reasonable probability exists that the petitioner would not
              have been prosecuted or convicted if exculpatory results had
              been obtained through DNA analysis.

                     A DNA testing of the sheet would not be conclusive of
              any issue.

                     The request for DNA testing is denied.

                                      II. Analysis

       On appeal, the Petitioner claims that the post-conviction court erred by denying
his request for DNA analysis because “if no DNA of the petitioner or the victim is on the
ligature, then it could not provide a basis for petitioner‟s second degree murder
[conviction].” The State contends that the post-conviction court properly denied the
Petitioner‟s request. We agree with the State.

      The Post-Conviction DNA Analysis Act of 2001 provides, in pertinent part, that



                                           -4-
              a person convicted of and sentenced for the commission of . .
              . second degree murder . . . 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.

Tenn. Code Ann. § 40-30-303. A post-conviction court must order DNA analysis when
the petitioner has satisfied each of the following 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.

Tenn. Code Ann. § 40-30-304. In addition, the post-conviction court may order DNA
analysis if “[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,”
and the Petitioner satisfies conditions two through four above. Tenn. Code Ann. § 40-35-
305.

       In conducting its analysis of a petitioner‟s claim, a post-conviction court must
presume that the DNA analysis would produce “„favorable‟” results to the petitioner.
Powers v. State, 343 S.W.3d 36, 55 & n.28 (Tenn. 2011); see Tenn. Code Ann. § 40-30-
305(1). Moreover, the court may consider this court‟s opinions on the petitioner‟s direct
appeal of his convictions and his appeals of prior post-conviction actions. Id. (citation
omitted). A hearing is only required if the results of DNA analysis are favorable to the
petitioner. Tenn. Code Ann. § 40-35-312. We afford the post-conviction court
                                           -5-
considerable discretion in determining whether to grant a petitioner relief under the Act,
and the scope of our review is limited. See Sedley Alley v. State, No. W2004-01204-
CCA-R3-PD, 2004 WL 1196095, at *3 (Tenn. Crim. App. at Jackson, May 26, 2004).

       Turning to the instant case, the post-conviction court held that DNA analysis was
not required under the mandatory provision of the Act. Although the court did not
address DNA analysis under the discretionary provision, we conclude that the Petitioner
would not be entitled to relief under either provision.

       The issue at trial was not whether the Petitioner killed the victim but whether he
did so knowingly or in self-defense. The Petitioner failed to explain in his petition and
has failed to explain on appeal how a lack of DNA on the ligature at issue would be
favorable. Presumably, a lack of DNA on the ligature would support his claim that he
strangled the victim manually with a sleeper hold in an attempt merely to render the
victim unconscious. However, because he is not claiming actual innocence or the
existence of another perpetrator, DNA analysis is not required under Tennessee Code
Annotated section 40-30-304. See Thomas Edward Kotewa v. State, No. E2011-02527-
CCA-R3-PC, 2012 WL 5309563, at *5 (Tenn. Crim. App. at Knoxville, Oct. 26, 2012).

        The less-stringent standard of Tennessee Code Annotated section 40-30-305
requires only that the DNA analysis would have rendered the Petitioner‟s verdict or
sentence more favorable. Tenn. Code Ann. § 40-30-305(1). As this court stated in its
direct appeal opinion of the Petitioner‟s conviction, “The undisputed medical evidence in
this case attributed the death of the victim to strangulation by means of a ligature.”
Moreover, Dr. Smith testified that although the victim‟s injuries were consistent with the
strip of bedding at issue, he could not say definitively that it was the ligature that caused
the victim‟s death. Finally, even if a lack of DNA on the strip of bedding supports the
Petitioner‟s claim that he manually strangled the victim, Dr. Smith acknowledged that it
could have taken the Petitioner just fifteen seconds to render the victim unconscious with
a sleeper hold but testified that he would have had to have restricted the victim‟s oxygen
supply for at least four minutes to cause death. Therefore, we conclude that DNA
analysis would not establish a reasonable probability that the Petitioner‟s verdict or
sentence would have been more favorable if the results had been available at trial.

                                     III. Conclusion

      Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.

                                              ____________________________________
                                              NORMA MCGEE OGLE, JUDGE
                                            -6-
