                                                                                                      10/11/2018
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                              Assigned on Briefs May 16, 2018

                   MARVIN READUS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                       No. 87-F-1521     Steve R. Dozier, Judge
                       ___________________________________

                              No. M2017-02298-CCA-R3-PC
                          ___________________________________


The Petitioner, Marvin Readus, was convicted in the Davidson County Criminal Court of
aggravated kidnapping while employing a firearm, aggravated rape, and aggravated
assault, and he received an effective sentence of life plus fifteen years in the Tennessee
Department of Correction. Thereafter, the Petitioner filed a petition requesting DNA
analysis of evidence pursuant to the Post-Conviction DNA Analysis Act of 2001. The
post-conviction court summarily dismissed the petition, and the Petitioner appeals. Upon
review, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT H. MONTGOMERY, JR., JJ., joined.

Marvin Readus, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Glenn R. Funk, District Attorney General; and J. Wesley King, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                                     I. Factual Background

       In September 1987, the Davidson County Grand Jury returned an indictment
charging the Petitioner with aggravated kidnapping while employing a firearm,
aggravated rape, and aggravated assault.1 Prior to trial, the State was granted an
       1
          In the same indictment, the Petitioner was also charged with assault with the intent to commit
first degree murder. The offense involved a different victim, and that count was severed from the
interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure to
determine whether the trial court erred by suppressing an electronically recorded
confession the Petitioner gave to police officers approximately three to three and a half
hours after his arrest but before he was taken before a magistrate. State v. Readus, 764
S.W.2d 770, 771 (Tenn. Crim. App. 1988). This court’s opinion reflects that the armed
Petitioner “waylaid” the victim while she was on her way to school, forced her into a
building, and raped her. Id. at 772. The victim was taken to the hospital. Id. Officers
located and arrested the Petitioner and brought him to the same hospital for a rape kit to
be performed on him. Id. While speaking with a detective at the hospital, the Petitioner
“sua sponte” revealed that he had “‘shot a man’” and “‘rape[d] this little girl.’” Id. The
Petitioner agreed to have the rape kit performed, and, after samples were collected, he
was taken to police headquarters where he gave the recorded statement the trial court
suppressed. Id. On appeal, this court concluded that the trial court erred by suppressing
the recorded statement and remanded the case for trial. Id. at 774.

       At trial, the Petitioner was convicted of the charged offenses. He received a total
effective sentence of life plus fifteen years. After trial, the Petitioner filed a timely notice
of appeal. On direct appeal, this court summarized the proof adduced at trial as follows:

                     The [Petitioner] had watched the victim as she walked
               from her residence to the site where she caught the school
               bus. He decided he would rape her.

                       On the morning in question, the [Petitioner] went to
               the apartment complex where the victim lived, entered a
               vacant apartment through a window, and opened the door so
               that he would have easy access to the apartment. The
               [Petitioner], armed with a pistol and wearing a stocking mask
               and gloves, waited for the victim to reach the point where he
               had stationed himself.

                      When the victim saw the [Petitioner], she began
               screaming and attempted to run away. The [Petitioner]
               chased her, grabbed her from behind, and struck her with the
               barrel of the gun. The blow inflicted a one inch gash on the
               victim’s forehead. The [Petitioner] placed the barrel of the
               gun to her head and stated he would kill her if she didn’t stop
               screaming.


remaining counts. On February 22, 1990, the Petitioner pled guilty to that offense and was sentenced to
twelve years in the Tennessee Department of Correction. The sentence was ordered to be served
consecutively to the sentences imposed for the convictions on the remaining counts of the indictment.
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                     The [Petitioner] forced the victim to accompany him to
             the vacant apartment. There he removed her clothing as she
             laid on the floor. He tied her bra around her head to prevent
             her from seeing him.          He tied her hands with her
             undergarments. He forced the victim to perform fellatio upon
             him. After he had reached a climax, he attempted to penetrate
             her vagina and anus. However, he was distracted when a
             family friend and the victim’s schoolmates, who were
             searching for her, entered the apartment. The [Petitioner]
             became frightened, left the apartment, and ran to his mother’s
             apartment. The police recovered the pistol and the gloves.
             The [Petitioner] apparently dropped the stocking mask during
             his flight.

                    The police arrived at the [Petitioner’s] place of
             residence within minutes. They found the [Petitioner]
             standing next to the washing machine nude. He had just
             started the machine. Also, he had placed water in the
             bathroom tub.

                    The [Petitioner] gave a detailed statement to the police
             admitting the kidnapping, the assault, and forcing the victim
             to perform fellatio upon him.

State v. Marvin Readus, No. 01C01-9006-CR-00141, 1991 WL 16275, at *1-2 (Tenn.
Crim. App. at Nashville, Feb. 13, 1991). This court affirmed the Petitioner’s convictions,
and permission to appeal was denied by our supreme court on July 1, 1991. Id.

       Twenty-five years later, on August 8, 2017, the Petitioner filed a petition
requesting DNA analysis of evidence pursuant to the Post-Conviction DNA Analysis Act
of 2001. The Petitioner claimed that he was actually innocent of the crimes and that the
police falsified evidence. The Petitioner requested testing of “forensic evidence” taken
by police, but he did not specify which evidence he wanted to test.

       The State responded that the Petitioner’s failure to specifically identify the
evidence to be tested made the determination of whether the evidence existed or was in a
condition to be tested difficult. The State said that it “presume[d] the evidence
introduced at trial remain[ed] in the custody of the Davidson County Criminal Court
Clerk and the appellate courts” but that it was “unclear, however, as to whether the
evidence remain[ed] in such a condition that DNA analysis may be conducted.”
Additionally, the State attached an e-mail sent in response to an inquiry from the district
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attorney general’s office from the Police Operations Supervisor of the Evidence Storage
Section of the Metro Nashville Police Department (MNPD), which reflected that the
police department no longer had any evidence pertaining to the Petitioner’s case.

       The post-conviction court summarily denied the petition. In its order, the court
accredited the State’s response that the evidence related to the Petitioner’s case was no
longer in the possession of the MNPD; therefore, no DNA analysis could be done. The
court noted that the evidence against the Petitioner at trial was overwhelming, including
the Petitioner’s admission that he raped and assaulted the victim. The post-conviction
court further noted that “[w]itnesses reported that the suspect was wearing a brown
jacket, one brown glove, white converse tennis shoes, a gray shirt and possibly a hat” and
that shortly after the offense the police found the Petitioner naked in front of a washing
machine in which he was washing a brown jacket, pants, and one brown glove.

        On appeal, the Petitioner challenges the post-conviction court’s denial of his
petition. He contends that he was actually innocent of the crimes and that he should have
been appointed counsel “to effectively investigate whether up to and including when the
preserved evidence[, namely the pistol and gloves allegedly worn by the assailant,] was
destroyed or is logically found.” We note that although the Petitioner contends in his
appellate brief that the pistol and gloves should be tested, this assertion was never made
in the post-conviction court.

                                      II. Analysis

      The Post-Conviction DNA Analysis Act of 2001 (the Act) provides that

             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 requirements:


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              (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. 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 requirements of Tennessee Code Annotated
section 40-30-305. See Griffin v. State, 182 S.W.3d 795, 798 (Tenn. 2006).

        The Act does not require the post-conviction court to hold a hearing on the matter.
Dennis R. Gilliland v. State, No. M2007-00455-CCA-R3-PC, 2008 WL 624931, at *3
(Tenn. Crim. App. at Nashville, Mar. 3, 2008). Notably, if the State contests any of the
qualifying requirements of the Act and it is apparent the Petitioner cannot establish each
requirement, the post-conviction court may summarily dismiss the petition. Charles E.
Jones v. State, No. W2014-02306-CCA-R3-PC, 2015 WL 3882813, at *3 (Tenn. Crim.
App. at Jackson, June 24, 2015). In other words, the Petitioner’s failure to establish any
single requirement may result in a dismissal of the petition. Id. “The post-conviction
court is afforded considerable discretion in determining whether to grant a petitioner
relief under the Act, and the scope of appellate review is limited.” Sedley Alley v. State,
No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *3 (Tenn. Crim. App. at Jackson,
May 26, 2004). On appeal, this court will not reverse the post-conviction court’s
judgment unless it is not supported by substantial evidence. Id.

       The post-conviction court, noting the State’s response to the petition, held that the
Petitioner failed to satisfy requirement (2) of Tennessee Code Annotated section 40-30-
304, namely that the evidence is still in existence and is in such a condition that DNA
analysis may be conducted. This court addressed a nearly identical situation in Devon M.
Crawford v. State, No. W2010-01676-CCA-R3-PC, 2011 WL 2448925 (Tenn. Crim.
App. at Jackson, June 20, 2011). In Devon M. Crawford, the defendant was convicted of
                                           -5-
the attempted aggravated robbery of a victim in a mall parking garage, during which he
shot and killed the victim. Id. The defendant and his co-defendant gave statements
providing specific details and admitting the crimes. Id. The defendant pled guilty to
felony murder and received a life sentence. Id. Thereafter, he filed a petition seeking
testing of evidence pursuant to the Act, but he failed to specifically identify the evidence
he wanted tested. Id. at *3. The post-conviction court denied his petition. Id. On
appeal, this court stated:

              Although the State is in a better position to confirm or deny
              the existence of physical evidence under its control, because
              the Petitioner did not name items he wished to have submitted
              for the testing, the State could not respond as to whether these
              items were in existence. We conclude that substantial
              evidence supports the post-conviction court’s finding that the
              Petitioner failed to demonstrate criterion (2), that the evidence
              was still in existence and in such a condition that DNA
              analysis could be conducted.

Id. at *4. As in Devon M. Crawford, the Petitioner’s failure to specify the evidence to be
tested compels us to conclude he has failed to satisfy the requirements of Tennessee Code
Annotated section 40-30-304(2).

       Additionally, the Petitioner summarily asserted in the petition that “proper
investigation of this case shall show the court that this petitioner is actually innocent.” In
Devon M. Crawford, this court cautioned that requirement (4), namely that 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, “requires more
than a bare assertion that a petitioner is seeking to demonstrate his innocence.” Id. This
court stated:

              As earlier discussed, the Petitioner does not specify which
              evidence he seeks to have tested and how testing this
              evidence would, in fact, demonstrate his innocence. He
              merely states that testing would demonstrate his innocence.
              A bare assertion that testing would demonstrate innocence
              without more is not sufficient to satisfy criterion (4) of this
              statute. Thus, we conclude that the Petitioner failed to satisfy
              this requirement.

Id. Therefore, the Petitioner also failed to satisfy the requirement listed in Tennessee
Code Annotated section 40-30-304(4).

                                            -6-
       As noted by the post-conviction court, the evidence against the Petitioner was
overwhelming, including his detailed confession which was corroborated by other
evidence. Therefore, the post-conviction court did not abuse its discretion by concluding
that the Petitioner failed to satisfy the requirements for DNA testing under Tennessee
Code Annotated section 40-30-304.

                                    III. Conclusion

      The judgment of the post-conviction court is affirmed.


                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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