                                                                                       04/16/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs January 8, 2020

                 MICHAEL HART v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Madison County
                   No. C-18-236       Roy B. Morgan, Jr., Judge
                     ___________________________________

                          No. W2019-00019-CCA-R3-PC
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The Petitioner, Michael Hart, appeals the Madison County Circuit Court’s denial 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 THOMAS T.
WOODALL and ALAN E. GLENN, JJ., joined.

Michael Hart, Pro Se, Whiteville, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Alfred Lynn Earls,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

        In February 2005, the Petitioner pled guilty to first degree premeditated murder;
first degree felony murder; aggravated robbery, a Class B felony; and evading arrest, a
Class E felony. At the Petitioner’s guilty plea hearing, the State gave the following
factual account of the crimes:

      “[O]n June 17th of the year 2004 around 9:30 a.m., Ms. Frances Riddick
      was at the mall here in Jackson-Madison County. She parked her vehicle
      on the north side of Goldsmith’s Department Store and went into the shoe
      department entrance. As she walked into the door, she observed a black
male, later identified to be the [Petitioner], sitting on a stool at the door on
the outside sidewalk. When she exited the same door that she went in, this
same black male, again the [Petitioner], was still outside the door. She
went to her vehicle that was parked in the parking lot, and as she was fixing
to put her key in the door, the black male approached her from the front of
her vehicle, this being the [Petitioner] . . . . He had a gun in his hand and he
told her to give him her purse. He grabbed hold of her purse, and as they
struggled over it, he eventually demanded that she give it to him at
gunpoint which she did. He then fled to the mall area towards Goldsmith’s.
She ran after him, screaming for someone to help.

       Three witnesses, Terry Reeves, Terry Reeves, Jr. and Brandon Stout
saw the [Petitioner] running, fleeing the scene with the purse, and they gave
him chase through Goldsmith’s into the courtyard of the mall, at which
time in the courtyard, he did turn and fire a shot at these men chasing him,
at which point they followed him at a more discreet distance.

        During this time, police were advised of the situation and a call went
out. While in the parking lot, Officer Haney did observe the [Petitioner]
and did give chase to the [Petitioner] after demanding that he stop. The
[Petitioner] fled in a vehicle across over to Tinker Hill, from Tinker Hill
went to Wiley Parker, running stop signs at Wiley Parker and Tinker Hill,
went west on Wiley Parker down Wallace Road, down Old Hickory from
Wallace, during this time reaching speeds up to 60, 65 miles an hour. The
officer did have his emergency lights and equipment going trying to get the
vehicle to stop. Other vehicles also joined in the chase which ranged over
many streets here in Jackson including Hollywood Drive.

During this chase, the police videos were operating, and this is recorded on
video, and this has been provided to the Petitioner and counsel. . . . Police
Officer Belke’s vehicle was struck head-on by the [Petitioner]. The
[Petitioner] was able to keep going. The chase continued to Deaderick, and
finally the [Petitioner] was stopped at the dry cleaners at Orleans and
Highland.

        The police video shows the [Petitioner] exiting his vehicle with the
pistol. Officer Andy Bailey was one of the vehicles that helped corner the
[Petitioner] at the dry cleaners. Officer Bailey did have a crack in the
passenger’s side window where the window had been lowered. The video
showed the [Petitioner] aiming the pistol through the window shooting

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       Officer Bailey twice, one of those striking him in the abdomen area and one
       in the leg. As a result of those gunshots, Officer Bailey was killed.”

Michael J. Hart v. State, No. W2006-00783-CCA-R3-PC, 2007 WL 778827, at *1-2
(Tenn. Crim. App. at Jackson, Mar. 15, 2007), perm. app. denied, (Tenn. Aug. 13, 2007).

       The trial court merged the conviction of first degree premeditated murder into the
conviction of first degree felony murder and, pursuant to the plea agreement, sentenced
the Petitioner to concurrent sentences of life without parole for felony murder, eight years
for aggravated robbery, and two years for evading arrest. The Petitioner filed a timely
pro se petition for post-conviction relief, claiming that his guilty pleas were not voluntary
and knowing due to trial counsel’s deficient performance during the pre-plea
proceedings. Id. at *2. The post-conviction court appointed counsel, counsel filed an
amended petition, and the post-conviction court denied the petition after an evidentiary
hearing. Id. at *2, 3.

        On October 6, 2018, the Petitioner filed a petition for DNA testing of “all human
biological evidence in the State’s possession or control and related to his convictions”
pursuant to Tennessee Code Annotated section 40-30-303. The State responded, arguing
that the Petitioner was not entitled to testing because any DNA evidence was irrelevant to
the case.

       The post-conviction court appointed counsel for the Petitioner and held a hearing
on December 17, 2018. During the hearing, Aimee Oxley, Director of the Property and
Evidence Division at the Jackson Police Department (JPD), testified that at the State’s
request, she reviewed the evidence collected in this case. The evidence consisted of
firearms, shell casings from the scene, latent fingerprints, clothing, and a video. The
following items were sent to the Tennessee Bureau of Investigation (TBI) for DNA
testing: A thirty-two-caliber Smith and Wesson revolver, buccal swabs from the
Petitioner, leaves from the crime scene, swabs from the crime scene, and Sergeant
Bailey’s blood sample. Testing showed the presence of the Petitioner’s DNA on the
revolver. Oxley said that “two swabs of an unknown substance” were collected from the
exterior of Sergeant Bailey’s patrol car but that the swabs were not sent to the TBI for
testing. On cross-examination, Oxley acknowledged that Sergeant Bailey was shot from
the passenger side of his patrol car and that the unknown substances were collected from
the passenger side of his car.

       Special Agent Kathy Ferguson of the TBI testified that she worked for the JPD
when Sergeant Bailey was killed and that she was the case agent for the investigation.
Agent Ferguson explained that the passenger side of Sergeant Bailey’s patrol car struck
the driver’s side of the Petitioner’s car. The Petitioner’s car then struck a couple of other
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vehicles in the parking lot. The Petitioner exited the driver’s side of his car and was
“right at the passenger’s side of Sergeant Bailey’s vehicle.” The Petitioner fired rounds
into Sergeant Bailey’s patrol car, striking him twice, and the shooting was captured on
video. The Petitioner ran between the vehicles, and two officers pursued him and shot at
him as he ran from the scene. The chase also was captured on video. The police
interviewed the Petitioner, and he made incriminating statements during the interview.
Ms. Riddick and the three men who chased the Petitioner at the mall identified the
Petitioner. Agent Ferguson said there was never any other suspect in the case.

       Agent Ferguson testified that she responded to the scene after the shooting and
that she directed officers on the collection of evidence. The murder weapon was present,
spent shell casings were scattered in the area, and officers swabbed several areas of
blood. Agent Ferguson collected some leaves with blood on them in order to show the
Petitioner’s “path of travel.” The Petitioner’s clothing, Sergeant Bailey’s clothing, and
the bullets recovered from Sergeant Bailey during surgery also were collected. Swabs of
an unknown substance were collected from the passenger side of Sergeant Bailey’s patrol
car but were not submitted to the TBI for testing. Agent Ferguson said that there was
“[n]o telling what that substance could be” but that regardless, the results would not
change the evidence on the video. On cross-examination, Agent Ferguson testified that
the Petitioner’s DNA was on the murder weapon and that his blood was on the leaves.

       At the conclusion of the hearing, the post-conviction court found that two
unknown substances were collected from the exterior of Sergeant Bailey’s patrol car, that
the substances were not subjected to DNA analysis, and that the substances were still in
existence and in a condition where DNA analysis could be conducted. However, the
post-conviction court found that based on the other evidence in the case, a reasonable
probability did not exist that the Petitioner would not have been prosecuted or convicted
if exculpatory results had been obtained through DNA analysis. The post-conviction
court also found that the application for analysis was not being made for the purpose of
demonstrating innocence because the evidence against the Petitioner was
“overwhelming.” Accordingly, the post-conviction court denied the Petitioner’s request
for DNA analysis.

                                      II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred by denying
his petition because he is entitled to DNA analysis on the two unknown substances. The
State argues that the post-conviction court properly denied the petition. We agree with
the State.

      The Post-Conviction DNA Analysis Act of 2001 provides that
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      a person convicted of and sentenced for the commission of first degree
      murder, second degree murder, aggravated rape, rape, aggravated sexual
      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.

Tenn. Code Ann. § 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.

Tenn. Code Ann. § 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).

       “‘A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984). 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. at 56 (citation omitted). The post-conviction
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court is afforded considerable discretion in determining whether to grant a petitioner
relief under the Act, and the scope of appellate review is limited. See Sedley Alley, No.
W2004-01204-CCA-R3-PD, 2015 WL 5440717, at *3. On appellate review, this court
will not reverse unless the judgment of the post-conviction court is not supported by
substantial evidence. Id.

       In this case, the evidence established that the Petitioner shot Sergeant Bailey
through the passenger side window of Sergeant Bailey’s patrol car. A video recorded the
Petitioner shooting the officer, the Petitioner’s DNA was on the murder weapon, and the
Petitioner made incriminating statements after the shooting. We fail to see, and the
Petitioner has not explained, how DNA testing on the two substances on Sergeant
Bailey’s patrol car could exculpate the Petitioner from the crimes to which he pled guilty.
Thus, the post-conviction court properly denied the petition.

                                     III. Conclusion

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



                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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