                                                                                       12/18/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 2, 2018

                 STATE OF TENNESSEE v. AUDREY DOWNS

                 Appeal from the Criminal Court for Shelby County
                  Nos. P-40061, P-17849   Paula L. Skahan, Judge
                      ___________________________________

                           No. W2018-00391-CCA-R3-CD
                       ___________________________________

The Appellant, Audrey Downs, appeals the Shelby County Criminal 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,
the judgment of the trial court is reversed, and the case is remanded for further
proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed,
                                 Case Remanded

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

Jessica Gillentine, Bartlett, Tennessee, for the appellant, Audrey Downs.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Amy P. Weirich, District Attorney General; and Pam Stark, Assistant District Attorney
General, for the appellee, State of Tennessee.

Michael Pellegrin, Gallatin, Tennessee, and Jane Pucher and Adnan Sultan, New York
City, New York, for the amicus curiae, The Innocence Project.

                                       OPINION

                                I. Factual Background

       The record reflects that on February 28, 1995, the police discovered the nude body
of thirty-two-year-old Penny Maness in some woods behind the “‘Frayser Jaycee’s’”
building in Memphis. She had been strangled to death, and a wire had been twisted
around her neck. The medical examiner concluded that the wire had been placed around
her neck after her death.

       The Appellant was the last known person seen with the victim alive. The police
arrested him, and he eventually confessed to raping and strangling her when she refused
his sexual advances. He also revealed details of the crime that were consistent with the
crime scene evidence, including that he placed the wire around her neck after he
strangled her in order to disguise the crimes, and described leaving her body in the exact
location and position as the police discovered it.

       The State filed a notice to seek the death penalty. On January 16, 1996, the
Appellant entered an Alford plea to first degree felony murder and aggravated rape and
received concurrent sentences of life without parole and twenty-five years, respectively.
In December 1996, he filed a petition for post-conviction relief, claiming that his guilty
plea to first degree felony murder was the unknowing and involuntary result of his
receiving the ineffective assistance of counsel. Audrey E. Downs v. State, No. 02C01-
9710-CR-00390, 1998 WL 742379, at *1 (Tenn. Crim. App. at Jackson, Oct. 23, 1998)
(order). This court affirmed the trial court’s denial of the petition. Id.

       In 2002, the Appellant filed a petition for post-conviction DNA analysis. The trial
court granted the petition and ordered that semen in a condom found at the crime scene
be tested and compared to the Appellant’s DNA. The analysis revealed that the semen
did not come from the Appellant. In 2004, the Appellant filed a motion to reopen his
petition for post-conviction relief, claiming that he would not have pled guilty if he had
known about the condom and the “exculpatory” DNA. During a hearing on the motion, a
police officer testified that the victim’s body was found in “kind of a lover’s lane” and
acknowledged that the condom was almost two hundred feet from the victim. At the
conclusion of the hearing, the State argued that the evidence against the Appellant was
“overwhelming” and that the condom was not exculpatory. The trial court agreed with
the State that nothing indicated the condom was related to the crimes and denied the
motion to reopen the post-conviction petition. Subsequently, the Appellant filed a second
motion to reopen his petition for post-conviction relief and a petition for a writ of error
coram nobis. Both were denied by the trial court.

       In 2015, the Appellant filed a pro se motion requesting (1) that the DNA recovered
from the condom “be checked against the DNA discovered from the backlog of rape kits
being tested” because it would show that a rapist was in the location of the victim and
that the rapist was not the Appellant and (2) that the DNA from the condom be compared
to the victim’s DNA because if the DNA from the condom matched the victim, “then it is
the condom used by the person that assailed the decedent and would hence show that the
petitioner is actually innocent of the charges.” The State did not respond to the motion,
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and the trial court summarily denied the motion on February 1, 2018. The Appellant
contests the ruling of the trial court. Moreover, Amicus Curiae filed a brief, arguing that
additional testing on the condom and other items from the crime scene would
conclusively resolve the question of the Appellant’s innocence.

                                       II. Analysis

       As he did in 2002, the Appellant is requesting DNA analysis of evidence pursuant
to 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 a petitioner has met each of the following four requirements:

                      (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.

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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 that the post-conviction court 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.

        Turning to the instant case, the State acknowledges that the trial court did not
address any of the four requirements of the Act but argues that the court properly denied
the Appellant’s motion because the results of additional testing are irrelevant in light of
his confession to raping and murdering the victim, the availability of the victim’s DNA is
unknown, the Appellant could have requested the testing in his 2002 petition, and “it is
not clear that he is not seeking simply to avoid the consequences of his actions by any
unreasonable means available.” However, the trial court should have addressed the four
requirements. See Ricky Nelson v. State, No. W2010-02088-CCA-R3-PC, 2011 WL
6349720, at *4 (Tenn. Crim. App. at Jackson, Dec. 14, 2011) (concluding that because
the trial court failed to address the first requirement in its order, this court was unable to
conduct appropriate appellate review). Therefore, we reverse the judgment of the trial
court and remand this case in order for the court to make findings of fact pursuant to the
Act.

                                      III. Conclusion




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Based upon the record and the parties’ briefs, the judgment of the trial court is reversed.
The case is remanded to the trial court for further proceedings consistent with this
opinion.

                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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