                                                                                       04/02/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                        Assigned on Briefs February 27, 2018

             TRACY LEBRON VICK v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Hamilton County
                        No. 215412 Don W. Poole, Judge


                            No. E2017-01333-CCA-R3-PC


The Petitioner, Tracy Lebron Vick, pleaded guilty to second degree murder and received
a forty-year sentence. Nineteen years after his sentencing, he filed a petition for post-
conviction DNA analysis. The post-conviction court denied relief. On appeal, the
Petitioner contends that the post-conviction court erred. We affirm the post-conviction
court’s judgment.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., J., joined. JAMES CURWOOD WITT, JR., J., not participating.

Tracy Lebron Vick, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; for the appellee, State of
Tennessee.

                                       OPINION

       The Petitioner’s conviction relates to the September 20, 1996 death of Melva
Moore, whom the Petitioner shot as he attempted to enter Ms. Moore’s home to rob her
boyfriend. The Petitioner was charged with first degree murder and agreed to plead
guilty to second degree murder as a Range II offender. The trial court imposed a
maximum, forty-year sentence to be served consecutively to the sentence for a prior
conviction. The Petitioner appealed the length of his sentence and the imposition of
consecutive sentencing, and this court affirmed the trial court’s judgment. See State v.
Tracy Lebron Vick, No. 03C01-9803-CR-00100, 1999 WL 652452 (Tenn. Crim. App.
Aug. 27, 1999), perm. app. denied (Tenn. Feb. 28, 2000). The Petitioner later pursued
post-conviction relief, which was denied. See Tracy Lebron Vick v. State, No. E2002-
01761-CCA-R3-PC, 2003 WL 21172319 (Tenn. Crim. App. May 20, 2003), perm. app.
denied (Tenn. Oct. 6, 2003).

       In May 2017, the Petitioner filed the present petition for post-conviction DNA
analysis pursuant to Tennessee Code Annotated sections 40-30-301 to -313. The petition
alleged that the Petitioner had been notified by the district attorney in July 2016 of the
existence of unanalyzed physical evidence collected during the victim’s autopsy. The
evidence consisted of a bullet fragment, head hair, and pubic hair. The Petitioner stated
his belief that DNA and ballistic testing would show that he was not the shooter and
would demonstrate that any minimal level of involvement which might be attributed to
him would be insufficient to support a conviction of first or second degree murder. He
requested DNA analysis of the evidence.

       The post-conviction court denied the petition on the basis that no reasonable
probability existed that a DNA analysis would have rendered the verdict or sentence
more favorable for the Petitioner if the results had been available in the conviction
proceedings. See T.C.A. § 40-30-305(1) (2012). The court relied upon this court’s
opinion in the appeal of the Petitioner’s conviction, in which the following facts were
recited:

              The defendant and two armed accomplices went to the home of the
      victim, Ms. Melva Moore, on September 20, 1996, to rob Moore’s
      boyfriend. The defendant went to the back door of Moore’s home carrying
      a loaded .357 revolver with the hammer cocked. When the defendant
      opened the door, he met Moore on her way outside. The defendant pushed
      the door open with the gun and shot Moore in the chest. Moore staggered
      to the living room of the house where she was found dead. The defendant
      claimed he did not intend to shoot Moore, but Moore slammed the door on
      his arm and the gun went off. When he heard the shot, the defendant ran.
      He was arrested six days later and charged with first degree murder.

See Tracy Lebron Vick, 1999 WL 652452, at *1. The post-conviction court stated,
“Thus, by the petitioner’s own admission, he was the shooter. The only issue was the
petitioner’s mens rea, his intent to rob the victim’s boyfriend, an issue on which DNA
evidence is not probative.” The court denied the Petitioner’s request for post-conviction
DNA analysis.

      On appeal, the Petitioner contends that the post-conviction court erred in
dismissing the petition without a response from the State, appointing counsel, conducting


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a hearing, and ordering DNA testing. The State contends that the court did not err. We
agree with the State.

       The Post-Conviction DNA Analysis Act of 2001 provides that persons convicted
of second degree murder, among other offenses,

      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.

T.C.A. § 40-30-303 (2012). The Act further provides that if certain factors exist, testing
shall be mandatory:

      After notice to the prosecution and an opportunity to respond, the court
      shall order DNA analysis if it finds that:

            (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.

Id. § 40-30-304 (2012).

      In other instances, testing is discretionary, provided the following factors exist:

            (1) A reasonable probability exists that analysis of the evidence will
      produce DNA results that would have rendered the petitioner’s verdict or


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      sentence more favorable if the results had been available at the proceeding
      leading to the judgment of conviction;

           (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.

Id. § 40-30-305 (2012).

        A post-conviction court is not required to hold a hearing in order to determine
whether to grant a petition for DNA testing. Powers v. State, 343 S.W.3d 36, 56 (Tenn.
2011). The court must dismiss the petition if the petitioner fails to establish each of the
four criteria required pursuant to Code section 40-30-304 or 40-30-305. Id. at 48. The
court’s determination is not subject to reversal unless it is unsupported by substantial
evidence. See Charles E. Jones v. State, No. W2014-02306-CCA-R3-PC, 2015 WL
3882813, at *3 (Tenn. Crim. App. June 24, 2015), perm. app. denied (Tenn. Sept. 21,
2015); Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-PC, 2003 WL 1868647,
at *4, n.2 (Tenn. Crim. App. Apr. 11, 2003).

        We address, first, the Petitioner’s complaints regarding the procedure followed in
the post-conviction court. He claims that the court erred in denying the petition before a
response was filed by the State. The Act provides that the court shall determine whether
to order DNA analysis “[a]fter notice to the prosecution and an opportunity to respond[.]”
T.C.A. §§ 40-30-304(1), 40-30-305(1). The record reflects that the petition contained a
certificate of service indicating the district attorney general was served by mail with a
copy of the petition. Thus, the State received notice of the filing. The Act, however,
does not compel that the State file a response or that the post-conviction court await a
response before ruling. See T.C.A. §§ 40-35-304(1), 40-30-305(1); Antonio Leonard
Sweatt v. State, No. M2006-00289-CCA-R3-PC, 2007 WL 1364651, at *4 (Tenn. Crim.
App. May 9, 2007) (stating that a claim that the State failed to file a response is not a
cognizable issue), perm. app. denied (Tenn. Sept. 24, 2007).



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        The Petitioner also complains that the post-conviction court did not appoint
counsel to assist him. The Act provides that the court “may” appoint counsel for an
indigent petitioner. T.C.A. § 40-30-307 (2012); see Antonio Leonard Sweatt, at *4
(stating that no cognizable issue exists regarding a post-conviction court’s failure to
appoint counsel in a petition for post-conviction DNA analysis). Thus, the court was not
required to appoint counsel. We note, as did the post-conviction court, that the Petitioner
did not file an affidavit of indigency with his petition, a necessary prerequisite for the
discretionary appointment of counsel.

       The Petitioner also complains that the post-conviction court failed to conduct a
hearing. Our supreme court has said that the Act does not require a court to hold a
hearing on the issue of whether to grant a request for DNA testing. See Powers, 343
S.W.3d at 56.

       We turn to the merits of the post-conviction court’s denial of the Petitioner’s
request for DNA testing. The court’s order denying relief states, in pertinent part:

             The Court finds that the first requirement for mandatory or
      conditional DNA analysis, the existence of a reasonable probability of
      either non-prosecution or non-conviction or at least a more favorable
      verdict or sentence as a result of exculpatory DNA evidence, is not met.
      The summary of the factual basis for the plea in the opinion of the Court of
      Criminal Appeals affirming the sentence reflects that the identity of the
      shooter was not an issue.

      ...

      . . . [B]y the petitioner’s own admission, he was the shooter. The only issue
      was the petitioner’s mens rea, his intent to rob the victim’s boyfriend, an
      issue on which the DNA evidence is not probative.

       In the petition, the Petitioner stated the following regarding his request for DNA
testing:

             Mr. Vick’s initial defense was that he was not the person who shot
      the victim and it was the statements of his co-defendants, both of whom
      received favorable pleas for statements and testimony against him, that
      turned the case against him and hence – with no evidence to the contrary
      and the promise and hope of a lenient sentence – motivated his plea and
      having to accept responsibility for the shooting.

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             No firearm was taken from Mr. Vick and the firearms that were
       recovered were those of the co-defendants.

       ...

              Mr. Vick submits that he is of the belief that DNA and ballistic
       testing of the above noted evidence [bullet fragment, head hair, pubic hair]
       will substantiate his position and prove his innocence that he was not the
       shooter in this case and hence follows his substantial position that any
       minimal level of involvement that might attempt to be attributed to him is
       not substantial enough for a conviction of felony first or second degree
       murder and that is even under a theory of criminal responsibility.

        The petition does not explain the Petitioner’s theory of how DNA analysis could
exculpate him. We note that although the Petitioner stated that ballistic testing was
needed, the Post-Conviction DNA Analysis Act does not authorize such testing. See
T.C.A. §§ 40-30-301 to -313. To the extent that the Petitioner seeks a court order for
DNA analysis, he has failed to allege how the results, if favorable to him, would
demonstrate a reasonable probability (1) that he would not have been prosecuted or
convicted or (2) that the verdict or sentence would have been more favorable to him if the
results had been available in the conviction proceedings. See id. §§ 40-30-304(1), -
305(1). We question how DNA evidence showing the presence of a third party’s DNA
on the victim’s head hair or pubic hair or on the bullet fragment could demonstrate that
the Petitioner was not the shooter. See Devon M. Crawford v. State, No. W2010-01676-
CCA-R3-PC, 2011 WL 2448925, at *4 (Tenn. Crim. App. June 20, 2011) (denying relief,
in part, because the potential presence of a third party’s DNA inside the victim’s vehicle
or the crime scene would not exonerate the petitioner; such evidence would merely
establish that a third party had been in the victim’s car, at the scene, or in contact with the
victim at some point), perm. app. denied (Tenn. Oct. 18, 2011). The Petitioner alleges
that “any minimal level of involvement that might attempt to be attributed to him is not
substantial enough for a conviction of felony first or second degree murder and that is
even under a theory of criminal responsibility.” However, the Petitioner does not
contend that he was not a participant in the plan to rob the victim’s boyfriend or that he
did not go to the victim’s home with his codefendants in furtherance of the planned
robbery.

       As we have stated, the post-conviction court determined that the Petitioner failed
to establish a reasonable probability (1) that he would not have been prosecuted or
convicted or (2) that the verdict or sentence would have been more favorable to him if the

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DNA analysis results had been available in the conviction proceedings, and the court
denied relief on this basis. Upon review, we conclude that the court’s determination is
supported by substantial evidence. Because a petitioner must show the existence of all
four factors listed in Code section 40-30-304 or 40-30-305 before a post-conviction court
may order DNA analysis of untested evidence, the court did not err in denying relief upon
the Petitioner’s failure to establish the first prerequisite under either statutory provision.

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


                                             _____________________________________
                                              ROBERT H. MONTGOMERY, JR., JUDGE




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