Opinion
No. W2006-01179-CCA-R3-PD.
June 26, 2006.
ON APPLICATION FOR PERMISSION TO APPEAL FROM THE JUDGMENT OF THE COURT OF CRIMINAL APPEALS
ANSWER IN OPPOSITION TO THE APPLICATION FOR PERMISSION TO APPEAL
PAUL G. SUMMERS Attorney General Reporter
MICHAEL E. MOORE Solicitor General
JENNIFER L. SMITH Associate Deputy Attorney General Nashville, Tennessee.
REASONS FOR DENYING THE APPLICATION
The State of Tennessee submits this response in opposition to the application for permission to appeal filed by appellant, Sedley Alley. On June 22, 2006, the Court of Criminal Appeals filed an opinion affirming the judgment of the Shelby County Criminal Court dismissing Alley's petition for post-conviction DNA testing under Tenn. Code Ann. § 40-30-301 et seq. (Copy attached). No petition for rehearing was filed.
Alley urges this Court to review the decision of the Court of Criminal Appeals contending that the intermediate appellate court misinterpreted the legislative intent behind the post-conviction DNA statute and, in affirming the trial court's dismissal of the petition, unduly restricted the scope of evidence that a trial judge should consider in determining whether testing is appropriate. In fact, it is Alley who seeks to expand the post-conviction DNA statute far beyond its current reach. Because the opinion of the Court of Criminal Appeals was consistent in all respects with both the terms of the Post-Conviction DNA statute and all appellate decisions addressing the scope of the statute, this case meets none of the criteria for granting review by this Court pursuant to T.R.A.P. 11(a).
The Post-Conviction DNA Analysis Act states a procedure by which a person convicted of certain enumerated offenses, including first degree murder, may petition the post-conviction court for DNA analysis of any evidence that is in the possession or control of the prosecution, law enforcement, laboratory or court, that is related to the investigation and prosecution that resulted in the judgment of conviction and that may contain biological evidence. Tenn. Code Ann. § 40-30-303. The Act provides for both mandatory and discretionary testing depending upon the relative materiality of the evidence in relation to the prosecution and conviction of the petitioner. To qualify for mandatory testing under either standard, the petitioner must satisfy the four criteria set forth in Tenn. Code Ann. § 40-30-304 and/or — 305 (2003).
DNA analysis is discretionary and may be ordered if the trial court finds that the petitioner has met parts (2), (3), and (4) above and shows: "A reasonable probability exists that analysis of the evidence will produce DNA results which 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." Tenn. Code Ann. § 40-30-205(1) (emphasis added).
The Post-Conviction DNA Analysis Act allows for "forensic DNA analysis" of evidence related to a judgment of conviction. Tenn. Code Ann. § 40-30-303. Decisions interpreting the reach of the DNA Act have, without exception, limited the materiality analysis under Tenn. Code Ann. § 40-30-304(1) and -305(1) to the performance of a DNA analysis which compares the petitioner's DNA to samples taken from biological specimens gathered at the time of the offense. Crawford v. State, No. E2002-02334-CCA-R3-PC, 2003 WL 21782328, *3 (Tenn.Crim.App. Aug. 4, 2003) (app. denied Dec. 22, 2003). Indeed, as the Court of Criminal Appeals correctly observed, the Act "does not authorize the trial court to order the victim to submit new DNA samples years after the offense, nor does the statute open the door to any other comparisons the petitioner may envision." Id. In short, if exclusion of the petitioner as the source of DNA does not, in and of itself, exculpate him, the inquiry ceases. The Act does not permit a petitioner to speculate about the potential of a database comparison, third party comparison, or even a comparison among individual test results in order to meet his burden under sub-part (1). Sedley Alley v. State, No. W2006-1179-CCA-R3-PD, slip op. at 11 (Tenn.Crim.App. June 22, 2006). "The results of the DNA testing must stand alone and do not encompass a speculative nationwide search for the possibility of a third party perpetrator." Id.
Moreover, Tennessee courts have consistently interpreted the Act to allow for summary dismissal if a petitioner fails to meet any of the qualifying criteria. See, e.g., Buford v. State, No. M2002-02180-CCA-R3-PC, 2003 WL 1937110, *6 (Tenn.Crim.App. Apr. 24, 2003). Here, the post-conviction court ruled that Alley failed as to two. The Court of Criminal Appeals affirmed, finding "substantial evidence as it exists in the procedural history of this case" supports that conclusion. Alley, supra, slip op. at 28-29.
CONCLUSION
For these reasons and for the reasons set forth in the attached Brief of the State of Tennessee and opinion of the Tennessee Court of Criminal Appeals, the application for permission to appeal should be denied.
Appendix 1 Alley v. State, No. W 2006-01179-CCA-R3-PD Court of Criminal Appeals Opinion June 22, 2006
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Special Session June 19, 2006SEDLEY ALLEY v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County No. 85-05085-87 W. Otis Higgs, Jr., Judge
No. W2006-01179-CCA-R3-PD — Filed June 22, 2006
In 1985, the Petitioner, Sedley Alley, was convicted of aggravated rape, kidnapping, and first degree murder. For the capital crime of first degree murder, the jury imposed the sentence of death. Petitioner Alley's execution was scheduled for May 17, 2006; however, on May 16, 2006, the Governor, upon recommendation of the Tennessee Board of Probation and Parole, granted a fifteen-day reprieve to allow the Petitioner the opportunity to petition the trial court for DNA testing of "those additional items that were not included in his 2004 petition." On May 19, 2006, Petitioner Alley filed a petition to compel testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition on May 31, 2006. Our supreme court, on June 2, 2006, rescheduled Petitioner Alley's execution for June 28, 2006. See State v. Sedley Alley, No. M1991-00019-SC-DPE-DD (Tenn., at Nashville, June 2, 2006) ( order). The Petitioner sought and was granted expedited review by this Court. Upon review of the record and the responses by both parties, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN E. GLENN, JJ., joined.
Barry C. Scheck, Vanessa Potkin, and Colin Starger, New York, New York, and Paul R. Bottei and Kelley J. Henry, Nashville, Tennessee, for the appellant, Sedley Alley.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Associate Deputy Attorney General, for the appellee, State of Tennessee.
OPINION PROCEDURAL BACKGROUND
On July 11, 1985, nineteen-year-old Marine Lance Corporal Suzanne Collins' life was terminated after being beaten, raped, and impaled with a thirty-one-inch long tree branch. See State v. Alley, 776 S.W.2d 506, 508 (Tenn. 1989), cert. denied, 483 U.S. 1036, 110 S. Ct. 758 (1990). The Petitioner, Sedley Alley, who was almost thirty years old at the time, was arrested after providing a "lengthy statement of his activities that resulted in the death of Suzanne Collins to officers of the Naval Investigating Service on the morning of 12 July 1985." Id. A Shelby County jury found Petitioner Alley guilty of the kidnapping, aggravated rape, and premeditated first degree murder of the victim. The jury found two aggravating circumstances, i.e., the murder was especially heinous, atrocious, or cruel and the murder was committed during a kidnapping and rape, and sentenced Petitioner Alley to death. See Alley, 776 S.W.2d at 508. "He was sentenced to 40 years on each of the other offenses, all sentences consecutive." Id. at 508. For the two remaining convictions, the trial court imposed consecutive forty-year sentences. Id. Petitioner Alley's convictions and sentences were affirmed on direct appeal. Id.
This case has been the subject of extensive appellate review. The Petitioner sought post-conviction relief, which was denied. See Alley v. State, 958 S.W.2d 138, 140 (Tenn.Crim.App.), perm. to appeal denied, (Tenn. 1997). On appeal, this Court reversed the lower court's denial, ordered the recusal of the trial judge, and remanded the case for a new hearing. See Alley v. State, 882 S.W.2d 810 (Tenn.Crim.App. 1994). Upon remand, Petitioner Alley was again denied relief. Alley, 958 S.W.2d at 140. On appeal, this Court affirmed the lower court's denial of post-conviction relief. Id. In 1998, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Western District of Tennessee. The district court summarily dismissed the petition. See Alley v. Bell, 101 F. Supp. 2d 588 (W.D. Tenn. 2000). The Sixth Circuit Court of Appeals affirmed the lower court's dismissal. See Alley v. Bell, 307 F.3d 380 (6th Cir. 2002), cert. denied, 540 U.S. 839, 124 S.Ct. 99 (2003), reh'g denied, 540 U.S. 1086, 124 S. Ct. 952 (2003). Thereafter, the State of Tennessee filed a motion in the Tennessee Supreme Court requesting the setting of an execution date. On January 16, 2004, the Tennessee Supreme Court granted the State's motion, setting the execution date for June 3, 2004. See State v. Sedley Alley, No. M1991-00019-SC-DPE-DD (Tenn. Jan. 16, 2004) ( order).
On May 4, 2004, Petitioner Alley unsuccessfully sought post-conviction DNA analysis in the Shelby County Criminal Court. See Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *1 (Tenn.Crim.App., at Jackson, May 26, 2004), perm. to appeal denied, (Tenn. Oct. 4, 2004), cert. denied, 544 U.S. 950, 125 S.Ct. 1695 (2005). This Court affirmed the lower court's denial. Id. Petitioner's June 3, 2004, execution date was stayed by order of the federal district court as a result of the Petitioner's filing a motion under Rule 60(b) of the Federal Rules of Civil Procedure. The motion was rejected and, on March 29, 2006, the Tennessee Supreme Court rescheduled Petitioner Alley's execution for May 17, 2006. See generally Sedley Alley v. Ricky Bell, Nos. 05-6876, 06-5552, 2006 WL 1279050 (6th Cir. May 9, 2006), reh'g banc denied, (May 15, 2006) (denying habeas claim as successive habeas petition). One week later, the Petitioner filed a complaint in the United States District Court for the Western District of Tennessee requesting injunctive relief in the form of access to certain evidence introduced in his criminal trial for purposes of DNA testing at his own expense. The district court dismissed Alley's 42 U.S.C. § 1983 action for failing to state a claim upon which relief could be granted. See Alley v. Key, ___ F. Supp.2d ___, 2006 WL 1302213 (W.D. Tenn. 2006). The Sixth Circuit affirmed the district court's dismissal, adding that there is no general constitutional right to post-conviction DNA testing. See Sedley Alley v. William R. Key, No. 06-5552, 2006 WL 1313364 (6th Cir. May 14, 2006), reh'g en banc denied, (May 16, 2006).
On April 11, 2006, thirty-six days prior to his scheduled execution, the Petitioner brought a claim under 42 U.S.C. § 1983 challenging Tennessee's lethal injection protocol. On May 11, 2006, the federal district court issued an order staying the Petitioner's execution. This order was vacated by the Sixth Circuit on May 12, 2006. Sedley Alley v. George Little, No. 06-5650, 2006 WL 1313365, (6th Cir. May 12, 2006), reh'g en banc denied, (May 16, 2006). The Petitioner then sought a stay of execution from the United States Supreme Court and petitioned for a writ of certiorari, seeking review of the Sixth Circuit Court of Appeals' decisions in the three federal cases of Sedley Alley v. George Little, Sedley Alley v. William R. Key, and Sedley Alley v. Ricky Bell. Certiorari is currently pending before this nation's highest court.
On May 16, 2006, the Governor of Tennessee granted a fifteen-day reprieve of the execution of the Petitioner's sentence to permit Petitioner Alley to return to state court and seek permission to perform a DNA analysis of certain items allegedly not included in a previous petition for DNA analysis filed by Petitioner Alley in 2004.
I. Petitioner Alley's Request
On May 19, 2006, Petitioner Alley filed, pursuant to Tennessee Code Annotated sections 40-30-304 and 40-30-305, a petition for post-conviction DNA analysis in the Shelby County Criminal Court. In the petition, Petitioner Alley requested testing of numerous items omitted from his first petition under the Act, including:
(1) skin cells/sweat from the [men's red] underwear that were found next to the victim's body and believed to have been worn by the assailant;
(2) blood or skin cells on a stick used to violate the victim, including the paper in which the stick was wrapped; and
(3) material from underneath the fingernails of the victim.
The Petitioner asserted that "these items," "in addition to the swabs from the victim possibly containing semen, could be subjected to STR DNA testing to conclusively prove (or disprove) Mr. Alley's innocence." He also requested DNA testing on "blood and a hair found on and in his car that were directly linked to the victim at trial using primitive ABO testing and microscopic hair analysis."
Petitioner Alley claims that DNA testing of these items has the potential of identifying the real perpetrator of the crime. Specifically, Petitioner Alley asserted that "redundant results" (DNA tests results that establish the same genetic profile on a number of probative items of evidence) can establish the true perpetrator of the crime and exclude him as the perpetrator. While he asserted that testing of the aforementioned items would most clearly exonerate him, he further argued that testing of additional items should be subjected to examination as these items could contain additional evidence and create additional redundant results. These items include:
(1) Sleeveless jersey type shirt; (2) One white tube sock belonging to the victim; (3) One pair of jogging shorts belonging to the victim; (4) The victim's bra; (5) The victim's white cotton panties; (6) Blue exercise belt belonging to the victim; (7) Left jogging shoe belonging to the victim; (8) Right jogging shoe belonging to the victim; (9) Styrofoam drinking cups; (10) Bloodstained grass collected from beneath the victim's vaginal area; and (11) Beer bottles.
Petitioner Alley maintains that testing of these items could very well establish a DNA match to the victim's boyfriend, John Borup. Petitioner asserts that Mr. Borup admitted to being with the victim on the night of her murder, Mr. Borup more closely matches the description of the abductor, and Mr. Borup drove a dark, wood-paneled Dodge Aspen station wagon. Furthermore, Petitioner Alley asserts that DNA testing results could be entered into CODIS or a state DNA database and "score a `hit' to a convicted offender, thus not only exonerating Mr. Alley, but also identifying the actual assailant." In this regard, Petitioner Alley maintains that he has "the right to do DNA testing of the crime scene evidence to prove third party guilt, whether that comes about by linking DNA from the crime scene evidence to a convicted offender in the CODIS database or directly to Mr. Borup."
Petitioner Alley further contends that, in making the determination of whether he would have been prosecuted in light of exculpatory DNA results, the reviewing court is not limited to the evidence introduced at trial, but is required to considerall of the evidence, including factual allegations developed by the Petitioner post-judgment. In this regard, the Petitioner contends that the court must consider the following:
(1) Evidence that the medical examiner had determined that the victim had died between 1:30 a.m. and 3:30 p.m., contrary to the State's theory at trial that the victim had died at 11:30 p.m.;
(2) Petitioner Alley had no motive to kill the victim, while her boyfriend, John Borup, did;
(3) An expert, Dr. Richard Leo, has determined that the Petitioner's confession is unreliable and not true;
(4) The victim's boyfriend, John Borup, fit the description of the abductor as 5'8"; medium build; short, dark brown hair; dark complexion; and no facial hair;
(5) John Borup drove a dark-colored Dodge Aspen station wagon;
(6) The tire tracks and shoe prints from the abduction scene are not from the Petitioner's station wagon or from his shoes; and
(7) Hairs and fingerprints found on items near the victim's body do not belong to Petitioner Alley.
The State of Tennessee filed a response in opposition to Petitioner Alley's request for DNA testing, asserting that "the petitioner has raised no additional arguments that would justify a different judicial ruling than the one previously rendered by the trial court and affirmed by the Tennessee Court of Criminal Appeals in 2004."
II. Post-Conviction Court's Ruling
On May 31, 2006, the post-conviction court entered its order denying post-conviction DNA testing. The court determined that "the petitioner has failed to meet the statutory requirements which would mandate DNA Analysis as outlined in Tenn. Code Ann. § 40-3[0]-304 and has not convinced this court that discretionary analysis should be granted under the Tenn. Code Ann. § 40-3[0]-305." The post-conviction court continued:
With regard to requirements of Tenn. Code Ann. § 40-3[0]-304, the court finds that petitioner has failed to demonstrate that a reasonable probability exists that . . . he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis of the requested samples; has failed to demonstrate that some of the samples sought are still in existence and/or are in a condition that is suitable for testing; and petitioner has failed to demonstrate that the purpose of the petition is to determine actual innocence and not merely to delay the execution of his sentence. See Tenn. Code Ann. § 40-30-304(1), (2) and (4). Thus, testing is not mandated in this case.
Additionally, this court finds that the petitioner has failed to demonstrate that a reasonable probability exists that analysis of said evidence will produce DNA results which 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. See Tenn. Code Ann. § 40-30-305. Thus, this court is not inclined to order testing under the discretionary portion of the Act. . . .
After entry of the post-conviction court's ruling but before a notice of appeal document was filed by the Petitioner, the Tennessee Supreme Court granted the State of Tennessee's motion to rescheduled the execution date. In this regard, the Tennessee Supreme Court ordered that the Petitioner's execution date be reset for June 28, 2006. In light of the imminent execution date, Petitioner Alley expeditiously filed a notice of appeal on June 7, 2006. On June 8, 2006, the Petitioner filed with this Court a motion to expedite the appeal and to also seek oral argument in this matter. The Petitioner's motions were granted by order entered June 9, 2006.
III. The Act
The Post-Conviction DNA Analysis Act of 2001 provides that a person convicted of certain enumerated crimes, including first degree murder, may, at any time, file a petition requesting forensic DNA analysis of any evidence, which may contain a biological specimen, (1) in the possession or control of the prosecution, law enforcement, laboratory, or court, and (2) that is related to the investigation or prosecution that resulted in the judgment of conviction. T.C.A. § 40-30-303. The Act provides no statutory time limit and gives petitioners the opportunity to request analysis at "any time," whether or not such a request was made at trial. Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006). 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 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. T.C.A. § 40-30-304; see also Griffin, 182 S.W.3d at 798. 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 same conditions. T.C.A. § 40-30-305; see also Griffin, 182 S.W.3d at 798. In either instance, some physical evidence must be available and in a proper condition to enable a DNA analysis. T.C.A. § 40-30-304(2).
"`If the state contests the presence of any qualifying criteria and it is apparent that each prerequisite cannot be established, the [post-conviction] court has the authority to dismiss the petition.'" Marcus Nixon v. State, No. W2005-02158-CCA-R3-WM, 2006 WL 851764, at *3 (Tenn.Crim.App., at Jackson, Apr. 3, 2006) (quoting William D. Buford v. State, No. M2002-02180-CCA-R3-PC, 2003 WL 1937110, at *6 (Tenn.Crim.App., at Nashville, Apr. 24, 2003), perm. to appeal denied, (Tenn. 2003)). That is, a petitioner's failure to meet any of the qualifying criteria is fatal to the action. William D. Buford, 2003 WL 1937110, at *6. Moreover, the Act does not specifically provide for a hearing as to the qualifying criteria and, in fact, authorizes a hearing only after DNA analysis produces a favorable result. See T.C.A. § 40-30-312.
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. See Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *3 (Tenn.Crim.App., at Jackson, May 26, 2004), perm. to appeal denied, (Tenn. Oct. 4, 2004), cert. denied, 544 U.S. 950, 125 S. Ct. 1695 (2005) (citing Jack Jay Shuttle v. State, No. E2003-00131-CCA-R3-PC, 2004 WL 199826, at *4 (Tenn.Crim.App., at Knoxville, Feb. 3, 2004), perm. to appeal denied, (Tenn. Oct. 4, 2004) (citation omitted)). In making its decision, the post-conviction court must consider all the available evidence, including the evidence presented at trial and any stipulations of fact made by either party. Id. The lower court may also consider the opinions of this Court and the Tennessee Supreme Court on direct appeal of the petitioner's convictions or the appeals of the petitioner's prior post-conviction or habeas corpus actions. Id. On appellate review, this Court will not reverse unless the judgment of the lower court is not supported by substantial evidence. Id. (citing Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-PC, 2003 WL 1868647, at *4 (Tenn.Crim.App., at Nashville, Apr. 11, 2003)).
IV. Post-Conviction Court's Partiality and Bias
Petitioner Alley asserts, in his pursuit of post-conviction DNA analysis, that he was denied a fair hearing before an impartial and unbiased tribunal. Thus, he contends that this matter should be remanded for a hearing before an impartial judge. In support of his claim, the Petitioner asserts (1) the post-conviction court irrationally refused to recognize the power of DNA testing to prove third-party guilt and the exculpatory impact of DNA Database Identification; (2) the post-conviction court denied the Petitioner an evidentiary hearing, thereby categorically prohibiting the presentation and consideration of evidence; (3) the post-conviction court refused to permit the Petitioner to make an offer of proof; (4) the post-conviction court prejudged the case as evidenced by the court's ruling from the bench after a brief recess; and (5) the post-conviction court engaged in inappropriate ex parte communications with the Assistant District Attorney General.
A fair trial in a fair tribunal is a basic requirement of due process. The principles of impartiality, disinterestedness, and fairness are fundamental concepts in our jurisprudence. See State v. Bondurant, 4 S.W.3d 662, 668 (Tenn. 1999) (quoting State v. Lynn, 924 S.W.2d 892, 898 (Tenn. 1996)). Article I, Section 17 of the Tennessee Constitution and the Fourteenth Amendment to the United States Constitution guarantee all litigants a hearing before an impartial decision-maker. In re Cameron, 126 Tenn. 614, 658, 151 S.W. 64, 76 (1912); see also Tumey v. Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 444 (1927) ("Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law."). Article VI, Section 11 of the Tennessee Constitution states that judges cannot participate in cases in which they might have even the slightest interest. Neely v. State, 63 Tenn. 174, 182 (1874). A similar restriction appears in section 17-2-101(1), Tennessee Code Annotated. The purpose of these provisions is to guard against the prejudgment of a litigant's rights and to avoid situations in which the litigants might believe that the court reached a prejudiced conclusion because of interest, partiality, or favor. Chumbley v. People's Bank Trust Co., 165 Tenn. 655, 659, 57 S.W.2d 787, 788 (1933). A trial before a biased or prejudiced judge is a denial of due process. Wilson v. Wilson, 987 S.W.2d 555, 562 (Tenn.Ct.App. 1998).
With respect to the Petitioner's allegations that the post-conviction court "prejudged" the matter and engaged in improper ex parte communications with the Assistant District Attorney General, we conclude that the Petitioner's allegations are just that — allegations. The record fails to support these allegations, and this Court is not permitted to engage in speculation. Moreover, while the record does reflect that the post-conviction court refused to permit him to present the testimony of an expert, we are unable to conclude that this action indicated bias by the post-conviction court as the Post-Conviction DNA Analysis Act does not contemplate an evidentiary hearing until after DNA testing produces results favorable to the petitioner. T.C.A. § 40-30-312. Neither does the Act mandate that the trial court grant a petitioner permission to take depositions. Rather, any such action is within the trial court's discretion. See T.C.A. § 40-30-311 (court may enter orders as may be appropriate). Accordingly, this Court cannot agree with the Petitioner's assertion that the post-conviction court was partial and biased. This claim is without merit.
V. Evidence Rejected by this Court in the 2004 Petition
In support of his claim that the presumed exculpatory results of DNA testing would have resulted in the Petitioner not being prosecuted or convicted, the Petitioner urged consideration of "additional exculpatory evidence such as the time-of-death revelations when considering the reasonable probability prong." As previously asserted in his 2004 petition, Petitioner Alley again asks the courts of this state to disregard certain trial evidence as unreliable. The lower court specifically determined that "nothing in the case law either suggests or requires the court to accept or entertain extraneous information or newly propounded theories by either side." We agree.
In the Petitioner's 2004 petition, he urged the court to disregard certain evidence as unreliable and to consider newly discovered evidence that discredited evidence used to convict the Petitioner, including: (1) his confession, (2) documents from Dr. Bell revealing the victim's time of death was later than originally thought, (3) the description of the perpetrator does not match the Petitioner's description, (4) the description of the vehicle provided by the witnesses does not match that of the Petitioner's vehicle, (5) tire tracks at the abduction scene do not match the Petitioner's vehicle, (6) fingerprints on a beer bottle recovered near the victim's body are not identical to the Petitioner's, and (7) shoe prints at the abduction scene do not match the shoes he was wearing on the night in question. This request was unsuccessful. See Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at * 3. Additionally, the Petitioner challenges the post-conviction court's June 8, 2006, order, barring the Petitioner from including as part of the appellate record the affidavits of investigator April Higuera. The post-conviction court determined that the material contained in the affidavits were not relevant to the issues involved in the court's determination.
On June 12, 2006, Petitioner Alley filed with the Shelby County Criminal Court Clerk an amended notice of appeal document challenging the post-conviction court's June 8, 2006, order.
In the present petition, the Petitioner, again, asks this Court to discredit or ignore certain evidence introduced at trial and to consider newly discovered evidence tending to exculpate the Petitioner, that is, the same evidence argued in the 2004 petition. The Post-Conviction DNA Analysis Act does not require nor permit the lower court to re-evaluate the credibility or validity of the evidence submitted at trial. Nor does the Act permit the court to consider new evidence, aside for DNA test results, supporting a different theory than the one relied upon by the petitioner. The Post-Conviction DNA Analysis Act is not the proper vehicle to seek review of evidence other than results available from DNA testing of biological specimens recovered during the course of the investigation or prosecution of the petitioner. See generally T.C.A. § 40-30-302. Other avenues exist for consideration of newly discovered evidence in both the state and federal courts.
VI. Third-Party Evidence and DNA Database
The Petitioner argues that he is entitled to have the results of the DNA testing compared to a third-party person and the results checked against known violators in a public DNA database. In support of his argument, the Petitioner relies primarily upon the United States Supreme Court decision in Holmes v. South Carolina, 547 U.S. ___, 126 S. Ct. 1727 (2006). In Holmes, the United States Supreme Court affirmed a long line of cases holding that neither statutes nor state evidentiary rules can irrationally restrict a defendant from exculpating himself through proof that a third party is guilty. Holmes, 547 U.S. at ___, 126 S. Ct. at 1729. In this regard, the Petitioner asserts that the "no third party guilt" rule imposed by the post-conviction court is irrational and unconstitutional. He argues that:
it is inconceivable that the same male DNA profile could be on the murder weapon, the red underwear, and the victim's clothing. No single person who was not involved in the crime could have his DNA on all of these items. Mr. Alley has simply requested that the court consider the possibility that redundant results could point to the same third party, and also the possibility that this third party could be identified through use of DNA databases.
He contends that to deny him third-party comparison defeats the purpose of the DNA Act in that "the Act was passed specifically not only to exonerate the innocent, but also to identify actual perpetrators of offenses who, without DNA testing, are roaming free" (citing Legislative Tape #3 on SB 796: Senate Judiciary (May 15, 2001) (Senator Cohen)). Petitioner Alley further asserts that he is not asking that DNA testing be performed on any third party. Rather, he seeks only to test crime-scene evidence that may contain the DNA of the perpetrator. Finally, Petitioner Alley contends that the State of Tennessee, by enacting the Post-Conviction DNA Analysis Act, has "created a liberty interest for convicted defendants to secure release from prison by means of DNA testing." Thus, he argues that "the courts cannot restrict an inmate's statutory right to vacate his conviction, much less prove his actual innocence, by irrationally and unfairly preventing him from using DNA testing to prove third party guilt."
First, Petitioner's reliance on Holmes is misplaced. The holding in Holmes was limited to the right of a criminal defendant to present a complete defense at trial. Thus, we would be constrained to extend the Holmes rule to post-conviction DNA proceedings and decline to do so. As further support for his entitlement to have DNA test results processed through a DNA data bank in order to search for serial perpetrator matches, Petitioner Alley relies upon this Court's opinion in State v. Johnny Moffitt, No. W2001-00781-CCA-R3-CD, 2002 WL 818247, *1 (Tenn.Crim.App., at Jackson, Apr. 19, 2002), perm. to appeal denied, (Tenn. Oct. 21, 2002). The appeal in Moffitt presented a certified question of law resulting from the defendant's guilty plea to second degree murder. Id. "The precise question [before the Court] is whether the defendant is entitled to a dismissal due to the loss of [evidence by the State]." State v. Johnny Moffitt, No. W2001-00781-CCA-R3-CD, 2002 WL 818247, at *2. This Court held that the fact that evidence was lost did not warrant dismissal per se. Id. at *5. Rather this Court held than an instruction to the jury would "have been more than sufficient to resolve the issue." Id. The Petitioner argues that the holding in Moffitt is applicable here "in the context of the reasonable probability analysis . . . [and] if the State were to refuse to put the male DNA profile . . . in the CODIS database, under Moffitt, the trier of fact must assume that the results . . . would `hit' on a serial offender." Again, the issue in Moffitt focused upon the remedy for "lost" evidence within the context of a jury trial. Accordingly, we reject the Petitioner's argument that Moffitt's holding should be extended to determinations of "reasonable probability" under the Post-Conviction DNA Analysis Act.
In Alley I, this Court held that the "purpose of the Post-Conviction DNA Analysis Act is to establish the innocence of the petitioner and not to create conjecture or speculation that the act may have possibly been perpetrated by a phantom defendant." Alley, 2004 WL 1196095, at *9. The Act's reach is limited to the performance of DNA analysis which compares the petitioner's DNA to samples taken from biological specimens gathered at the time of the offense. The statute does not authorize the trial court to order the victim to submit new DNA samples years after the offense, nor does the statute open the door to any other comparisons the petitioner may envision. Earl David Crawford v. State, No. E2002-02334-CCA-R3-PC, 2003 WL 21782328, at *3 (Tenn.Crim.App., at Knoxville, Aug. 4, 2003), perm. to appeal denied, (Tenn. Dec. 22, 2003). This Court rejects any implied testing of third party individuals or the need to "run" DNA testing results through a DNA database for "hits." Indeed, other states have rejected requests to compare DNA profiles with state and national DNA databases as "add[ing] yet another layer of speculation." See Commonwealth v. Smith, 889 A.2d 582, 586, n. 6 (Pa.Super.Ct. 2005). Nor can this Court endorse the Petitioner's argument that Tennessee created a "liberty interest" in using DNA testing to prove third party guilt. Since states have no obligation to provide for post-conviction relief of any form, including DNA testing, see Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S. Ct. 1990, 1994 (1987), there is no inherent right to a certain type or method of testing when seeking such relief. Any liberty interest that exists, therefore, must be one created by state law. And, while there may be a liberty interest in testing biological samples for DNA created by enactment of statutory provisions, such right to access potentially exculpatory evidence does not remain unconditional. See generally Kenneth Lynn Moore v. Bill Lockyer, No. C04-1952 MHP, 2005 WL 2334350 (N.D. Cal. Sept. 23, 2005). Any interest created by enactment of the Act created a limited interest of a defendant in establishing his/her innocence and did not create an interest in establishing the guilt of a speculative and unknown third party.
The Petitioner concedes that "should the samples yield results which cannot be linked to either the defendant or the victim then the evidence would demonstrate that he did not rape and kill the victim, but that someone else did." This concession negates the need or requirement under the Act, at this juncture, for database comparison or third-party comparison. The results of DNA testing must stand alone and do not encompass a speculative nationwide search for the possibility of a third party perpetrator. Thus, the DNA analysis is limited to showing that the biological specimen did not belong to either the Petitioner or the victim.
VII. House v. Bell
As additional authority, Petitioner Alley relies upon the United States Supreme Court's recent decision in House v. Bell, 547 U.S. ___, ___ S. Ct. ___ (June 12, 2006), in support of his entitlement to DNA testing. Specifically, the Petitioner asserts that House is significant for two propositions: (1) House confirms Tennessee law that the determination whether a petitioner meets the standards of the DNA Act requires a consideration of all available evidence, including that evidence uncovered after the entry of the judgment of conviction; and (2) comparing the facts that led to the granting of relief in House with the facts before this Court confirms that the Petitioner is entitled to release of the evidence applying the "reasonable probability" standard. Petitioner Alley asserts that "[e]valuating all the evidence, Alley's case for innocence based on the presumed exculpatory DNA evidence is markedly stronger than House's." (emphasis in original).
Petitioner Alley confuses the limited scope of the proceedings presently before this Court with a Herrara claim of actual innocence. There is no authority permitting a reviewing court to consider evidence which was not admitted at trial. See Raymond Roger Jones v. State, No. E2003-00580-CCA-R3-PC, 2004 WL 2821300, at *6 (Tenn.Crim.App., at Knoxville, Dec. 3, 2004), perm. to appeal denied, (Tenn. Mar. 21, 2005) ("There are no Tennessee appellate court decisions holding that a post-conviction court may consider evidence that was excluded at trial in making this determination[.]"). Moreover, without engaging in a lengthy discussion comparing the factual evidence in the two cases, this Court finds the details of the two cases factually distinguishable. The purpose of the Post-Conviction DNA Analysis Act is limited. It is not a vehicle for raising claims of "actual innocence," but rather may, in certain instances, enable an "actual innocence" claim to be raised in future proceedings.
VIII. Evidence of Petitioner's Guilt
In this Court's 2004 review of the Petitioner's first petition for DNA analysis, the following summarization of facts was included as adopted from the Tennessee Supreme Court's decision on direct appeal:
The victim was Suzanne Marie Collins, age 19, a lance corporal in the U.S. Marine Corps stationed at the Millington Naval Base, while she was pursuing courses in avionics. She was described by her roommate as a friendly, happy, outgoing person, always ready to help others with their problems. In the Marines, she was, "on the honor desk", which required the achievement of high standards, academically and otherwise and that, "you be a real motivated, squared-away Marine."
At approximately 10:00 p.m. on 11 July 1985 she left her barracks dressed in physical training gear, a red Marine T-shirt, red Marine shorts, white socks and tennis shoes and went jogging on the Base, north of Navy Road. Her roommate indicated that the victim had been too busy that day to work out at the gym, which was closed at that time of night. Her body was found the next morning in Orgill Park, which adjoins the Naval Base, north of Navy Road.
Defendant was not in the military service but was married to a military person and they lived on the Naval Base. He was employed by a Millington heating and air conditioning company. He was almost 30 years old, had two children, born of an earlier marriage, living in Kentucky, and had a history of alcohol and substance abuse. After appropriate Miranda warnings defendant waived the presence of an attorney and gave a lengthy statement of his activities that resulted in the death of Suzanne Collins to officers of the Naval Investigating Service on the morning of 12 July 1985. The statement was tape recorded with defendant's permission. A narrative account of the relevant events of that evening as he related them to the Naval officers follows.
About 7:00 p.m. on 11 July 1985, his wife left with two women to go to a Tupperware party. Defendant had been drinking beer before they left and by approximately 9:00 p.m. he had consumed an additional six-pack and a fifth of wine. At that time he drove his 1972 Mercury station wagon, with a Kentucky license tag to the Mini Mart and purchased another six-pack. He was depressed, lonely and unhappy. He had no friends "of his own" here. He missed his two children, his mother and father, all Kentucky residents. He was torn between going to Kentucky, staying where he was, or driving the car into a wall to kill himself. He drove to the north side of the Base, parked on a lot near the golf course and started running toward Navy Lake. He ran past a girl jogging and before he got to the lake he stopped, she caught up with him and they had a brief conversation. He did not know her name and had never seen her before. They turned around and jogged back to his car. He stopped there out of breath, and she continued on toward the gate at Navy Road. He started driving down the road toward that gate in spite of his apparent recognition that he was drunk and weaving from side to side on the roadway. Parenthetically, the asphalt road in that vicinity has narrow lanes, no curb, the grass covered shoulders and nearby terrain are approximately level with the roadway. He heard a thump and realized he had struck the girl jogger. Quoting from his statement, "she rolled around and screamed a couple of times and I ran over and grabbed her and told her I was going to take her to the hospital. I helped her into the car and we started towards. .
On the way to the hospital defendant said that she called him names such as a drunken bastard and threatened to get him in trouble and he tried to calm her down, without success. When he reached the traffic light on Navy Road near the 7/11 store he turned left and again went to the north part of the Base in the vicinity of the lake. He described in considerable detail the subsequent events, that included hitting her a few times, holding her down on the ground, and sticking a screwdriver in the side of her head, under circumstances apparently calculated by defendant to appear to be accidental. All of these actions were because she would not listen to his pleas not to turn him in.
He insisted that he did not have sex with her at any time, nor did he even try at any time. He insisted that he was scared of the trouble she was threatening him with and was drunk and could not think clearly. After sticking the screwdriver in her head and her collapse, he decided to make it appear that she had been raped. He took off her clothes, and dragged her by the feet over near a tree. There he broke off a tree limb, inserted it in her vagina and "pushed it in." He then ran to the car and drove away.
The State called numerous witnesses who observed some of the movements of defendant and victim that night.
A Naval officer driving north toward the lake on the Base passed two male Marines jogging north, and later saw a female Marine in red T-shirt and red shorts also jogging north. After passing the lone Marine he saw a white male near an old station wagon with wood paneling that was parked on an empty lot near the buffalo pens. The two Marines testified that as they jogged north a female Marine was jogging south and shortly thereafter they encountered a station wagon with wood grain paneling also going south that swerved over into the north lane towards them. The car continued on southward and when they were several hundred yards further north they heard a female voice screaming in distress, "Don't touch me", "Leave me alone." They immediately turned around and ran south in the direction of the scream. It was too dark to see any activity very far ahead and before they reached the scene they saw the station wagon drive off toward the main gate. At that time they were about 100 yards away and were able to observe that the station wagon was off the road in the grass, near the fence, on the left or wrong side for a vehicle going south. Suspecting a kidnapping they continued on to the gate and gave a full report of what they had witnessed. They accompanied military security personnel on a tour of the residential areas of the Base looking for the station wagon, without success. However, after they returned to their barracks, they were summoned to the security offices where they identified the station wagon. Defendant had been stopped and brought in for questioning as had his wife. Their responses had allayed any suspicion that defendant had been connected with a kidnapping and they were allowed to go home. All of these events occurred before approximately 1:00 a.m., 12 July 1985. The victim's body was found shortly before 6:00 a.m. on that date and defendant was promptly arrested by the military police.
After completing the statement, defendant voluntarily accompanied officers over the route he had taken the night before and to the location of the murder and accurately identified various things, including the tree where he had left the body and where it was found by others and from which the limb he used had been broken.
The pathologist, Dr. James Bell, testified that the cause of death was multiple injuries. He also identified several specific injuries, each of which could have been fatal. The victim had bruises and abrasions over her entire body, front and back. He testified that the injuries to the skull could have been inflicted by the rounded end of defendant's screwdriver that was found near the scene, but not by the pointed end. He identified the tree branch that was inserted into the victim's body. It measured 31 inches in length and had been inserted into the body more than once, to a depth of twenty inches, causing severe internal injuries and hemorrhaging. The pathologist was of the opinion that the victim was alive when the tree limb was inserted into her body. There were also bruises on the victim's neck consistent with strangulation.
Alley, 776 S.W.2d at 508-10 (footnote omitted).
Additionally, this Court noted the following facts in its 2004 review of the Petitioner's request for DNA analysis:
At trial, Petitioner Alley relied upon an insanity defense. Alley, 776 S.W.2d at 510. Alley presented the testimony of two psychologists who diagnosed the Petitioner as suffering from a multiple personality disorder. Id. However, neither doctor could verify whether an alternate personality was in control at the time of the offense. Id. The State's psychologist also examined the Petitioner and determined that psychological tests administered to the Petitioner in May 1986 suggested that he was exaggerating or malingering. Id. at 510-511. The State's psychologist further noted that Petitioner had no history of mental health treatment prior to the murder and that it was "improbable that a condition of insanity had taken control of his actions on the evening of the murder." Id. at 511. In sum, the State's psychologist, while diagnosing a borderline personality disorder with a chronic history of drug and alcohol abuse, found no evidence of multiple personality disorder or psychosis. Id.
Dr. Craig Lahren, an expert in hair analysis, and Paulette S[utton], an expert in forensic serology, also testified at the Petitioner's trial. Dr. Lahren examined a hair collected from inside the victim's shoe. Dr. Lahren determined this hair to be a "Caucasian public hair." He stated that "[t]here was nothing unusual or unique about the item, and the sample was too limited to actually do a fair comparison with the-with the known public hair." A hair found on the victim's waistband was examined and determined to be a "medium-brown Caucasian body hair, probably from the arm or the leg." Again, there was not "enough consistent microscopic characteristics" to "do a successful comparison on those." Two strands of hair collected from the victim's socks were identified as being from an African-American. Dr. Lahren testified that the presence of these hairs on the victim's socks would be consistent with the victim walking around in her "sock feet." Four hairs found on the victim's shirt were "light-brown Caucasian head hair. They range from two to seven inches in length. . . ." These hairs were determined to belong to the victim. Finally, hair found on the driver's side of the Petitioner's 1972 Mercury station wagon "appeared to be the same as [the victim's] head hair."
Paulette S[utton] examined blood specimens found at the crime scene. Blood was found on the driver's side door and near the headlight of the Petitioner's vehicle. The blood found on the driver's side door revealed ABO type blood, the same type as the victim. The stain was found to be consistent with bloody hair having been swiped across the surface just above the door handle going downward toward the road. Paulette S[utton] also examined a bloody napkin found on the floorboard of Petitioner's car. She was not able to determine the species origin for the sample. Similarly, there was blood on a screwdriver found at the scene, but S[utton] could not identify the source. There was no blood or seminal stains found on the victim's clothing. Blood was found on the Petitioner's shorts, but a blood type could not be determined.
Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at **6-7.
IX. The Statutory Criteria A. Existence of Evidence
In response to Petitioner Alley's request for DNA analysis, the State asserted that certain evidence requested by the Petitioner is either no longer in existence or has been severely contaminated to the point that the reliability of any testing would be highly suspect. The Assistant District Attorney General stated that, in 1990, an evidence storage freezer at the University of Tennessee malfunctioned, resulting in the destruction of certain evidence. He reported that the University of Tennessee was the custodian of the biological samples obtained from the autopsy, clothing, and the Petitioner's vehicle. Based upon the statements by the Assistant District Attorney General, the lower court found that "certain items are not still in existence or are not suitable for testing; thus, petitioner fails to meet the statutory requirements with regard to those items." Specifically, the lower court found the following items are not still in existence or are not suitable for testing; thus, petitioner fails to meet the statutory requirements with regard to those items." Specifically, the lower court found the following items no longer in existence for DNA testing or in a condition suitable for DNA testing: (1) blood and hair found in the Petitioner's vehicle; (2) broken fingernail obtained from the victim; (3) samples taken from the victim and the Petitioner; and (4) swabs taken from the victim's body. The lower court found that the remaining items upon which testing was sought were in possession of the Shelby County Criminal Court Clerk.
The Assistant District Attorney General maintained that a "broken fingernail of the victim" never was recovered and, thus, does not exist for testing. He further maintained that, if a fingernail was recovered, that evidence would have been in the custody of the University of Tennessee. Accordingly, if a fingernail existed, it would have been destroyed with the other biological evidence. A review of the records reveal that a "mid fingernail" was received by the University of Tennessee Laboratory from the "morgue." While it is unknown whether this is the fingernail that the Petitioner seeks to have analyzed, it is clear that this evidence along with vaginal swabs, blood samples, and other specimens were in the possession of the University of Tennessee Laboratory.
Collateral to his request for DNA analysis, the Petitioner sought permission to take depositions to identify the current location of evidence which may be subject to DNA testing. The State responded, in part, that Petitioner's counsel admitted, in 2004, before a federal district court that "their investigation revealed that the UT evidence did not exist anymore and that the only evidence left for testing was in the custody of the Criminal Court Clerk, William Key." The lower court denied the motion, finding that nothing in the Post-Conviction DNA Analysis Act mandated a court to permit depositions. We agree. No provision in the DNA Act mandates that the trial court permit depositions. While Tennessee Code Annotated section 40-30-311 permits a trial court to "make such other orders as may be appropriate," this provision is discretionary, not mandatory. Thus, we find no error in the post-conviction court's denial of the Petitioner's motion to take depositions. The record supports the lower court's findings as to the non-existence of certain items for testing. We find no viable reason to disagree with this finding. The petition proceeds on the following items:
1. Men's red underwear;
2. Stick and paper in which stick was wrapped;
3. Sleeveless jersey type shirt;
4. One white tube sock belonging to the victim;
5. One pair of jogging shorts belonging to the victim;
6. The victim's bra;
7. The victim's white cotton panties;
8. Blue exercise belt belonging to the victim;
9. Left jogging shoe belonging to the victim;
10. Right jogging shoe belonging to the victim;
11. Styrofoam drinking cups;
12. Bloodstained grass collected from beneath the victim's vaginal area; and
13. Beer bottles.
These items are alleged to be in the custody of the Criminal Court Clerk for Shelby County.
B. Evidence Previously Subjected to DNA testing
The post-conviction court found that "under prong three of the statute, the evidence sought by the petitioner for testing has never been subjected to DNA analysis. Thus, this court finds prong three of the statute is met." No reason exists to dispute the lower court's ruling as to this prong.
C. Reasonable Probability of Different Result
The Post-Conviction DNA Analysis Act was created because of the possibility that a person has been wrongfully convicted or sentenced. Jack Jay Shuttle v. State, 2004 WL 199826, at *5 (citation omitted). In this regard, the post-conviction court is to assume that the "`DNA analysis will reveal exculpatory results in the court's determination as to whether to order DNA testing.'" Id. (quoting Ricky Flamingo Brown, Sr. v. State, No. M2002-02427-CCA-R3-PC, 2003 Tenn. Crim. App. LEXIS 528, at *7 (Tenn.Crim.App., at Nashville, June 13, 2003), perm. to appeal denied, (Tenn. 2003)). The Petitioner asserts, relying upon prior decisions of this Court, see generally Jack Jay Shuttle, 2004 WL 199826, at *1, that the determination of whether a particular case meets the reasonable probability standard is not based on the type of evidence that was used to obtain the conviction, nor on the strength of the State's case. That is, neither a victim's identification of a perpetrator nor a defendant's pretrial confession may form the sole basis for denying DNA testing. Rather, he contends, what is decisive under the reasonable probability standard is the probative value of the evidence sought to be tested or, in other words, the significance that exculpatory DNA test results would have in the case. The Petitioner strenuously asserts that the results of testing need not only be considered individually, but also collectively, in order to obtain what the Petitioner refers to as "redundant results."
In Alley I, this Court stated that "[a] `reasonable probability' of a different result exists when the evidence at issue, in this case potentially favorable DNA results, undermines confidence in the outcome of the prosecution." Sedley Alley, 2004 WL 1196095, at *9; see also State v. Workman, 111 S.W.3d 10, 18 (Tenn.Crim.App. 2002). This Court recognized that "[t]he purpose of the Post-Conviction DNA Analysis Act is to establish the innocence of the petitioner and not to create conjecture or speculation that the act may have possibly been perpetrated by a phantom defendant." Sedley Alley, 2004 WL 1196095, at *9. If the allegation of the petitioner's innocence is recent and the evidence supports the petitioner as the offender, a prior confession may be enough to deny DNA testing. Id.; see also Jesse Haddox v. State, No. M2003-00514-CCA-R3-PC, 2004 WL 2544668, at *4 (Tenn.Crim.App., at Nashville, Nov. 10, 2004). The convicted defendant requesting post-conviction DNA analysis is not provided a presumption of innocence, and the reviewing court need not ignore the proof supporting the conviction.
The post-conviction court concluded that the Petitioner has failed to demonstrate a reasonable probability that he would not have been prosecuted or convicted if exculpatory DNA evidence had been obtained from any of the requested items or any combination of the requested items. In reviewing the post-conviction court's conclusion, we as did the post-conviction court, review the existing evidence along with "potentially favorable" DNA results. As stated in this Court's 2004 opinion, a summary of the existing evidence identifying Petitioner Alley as the perpetrator is as follows:
1. Petitioner Alley gave a lengthy and detailed confession, including accompanying law enforcement officials to the scene, where he identified the location where the body was found and the tree from which he obtained the limb used to penetrate the victim. Interestingly, Petitioner Alley never contested the validity of his factually detailed confession until May 2004, nearly twenty years after the date of his confession and thirty days before his scheduled execution date.
2. Three witnesses described the vehicle located in the area of the abduction as a late model green or brown Ford or Mercury station wagon with wood-paneling and Kentucky tags. The vehicle was described as having a loud muffler. Two Marines later identified the Petitioner's vehicle as being the vehicle at the scene of the abduction. The Petitioner's vehicle was a dark green 1972 Mercury station wagon with wood paneling and a Kentucky license plate.
3. The Petitioner informed law enforcement officers that he struck the victim on the side of the head with a screwdriver. A screwdriver was found near the crime scene. The medical examiner described a contusion to the victim's head as being consistent with the injury inflicted by the blunt end of a screwdriver.
4. The Petitioner informed law enforcement officers that he struck the victim with the front driver's side of his vehicle. Blood was found on the headlights on the front driver's side of his vehicle.
5. The Petitioner told his wife, Lynne Alley, "Yes, I killed the gal at . . . Orgill Park."
6. Thirty-one areas of staining on the Petitioner's blue-jean shorts worn the night of the crime tested positive for blood. The shorts appeared to have been freshly laundered.
7. A bloody head hair found on the front driver's side door of Petitioner Alley's car belonged to the victim.
8. Blood on the driver's side door of Petitioner Alley's car was of the same ABO blood type as the victim.
9. Petitioner Alley defended on the ground of insanity, specifically, that he suffered from multiple personality disorder. This theory remained consistent at trial, on direct appeal, and in his post-conviction proceedings.
10. The victim was quartered with other military personnel in a marine barracks, and her body was found in a public park.
11. The jury was informed that numerous hairs were found on the victim's clothing and at the crime scene. The jury was further informed that some of the hairs belonged to the victim, some to neither the victim nor the Petitioner, and some were insufficient to permit microscopic comparison analysis.
12. The State's theory at trial did not involve sexual intercourse, but rather, an act of sexual mutilation with a thirty-one-inch tree limb being inserted into the victim's vagina. This theory was consistent with the Petitioner's statement to law enforcement.
Redundant DNA Test Results
While the Petitioner places great emphasis upon "redundant DNA results," this Court is unpersuaded that his "redundant results" analysis differs from an individual determination as to the "favorable" nature of each item's DNA testing results. In essence, the crux of the Petitioner's request for consideration of "redundant" test results is that the absence of the Petitioner's DNA from these samples, or any combination thereof, establishes his innocence of the murder. We are not persuaded by this argument. As stated previously, the Post-Conviction DNA Analysis Act does not envision DNA testing of third-party individuals nor does it contemplate a new investigation for a speculative phantom defendant. This Court is not inclined to disregard the overwhelming evidence against the Petitioner and, at this late date, embrace an entirely new theory of the crime. Even assuming that DNA testing of the numerous items requested by the Petitioner would generate results indicating an absence of the Petitioner's DNA from these items, this would not, with consideration of the plethora of credible evidence against the Petitioner, establish his innocence of the murder or convince this Court that he would have been neither prosecuted nor convicted if this DNA evidence had been revealed to the jury.
(1) Victim's Jogging Shoes
Petitioner Alley seeks DNA testing on the jogging shoes belonging to the victim regarding what appears to be bloodstains and also on a hair. The record reveals that the shoes were previously tested for the presence of blood. Paulette Sutton testified at the Petitioner's trial that the test for blood on the shoes showed a presumptive negative. Petitioner Alley now contends that his expert has identified what he believes "may" be blood on the shoe. The post-conviction court concluded that the Petitioner had failed to demonstrate that such evidence exists for testing. Moreover, the post-conviction court found:
Even if the petitioner could demonstrate through testing that there is blood on the shoe and the blood does not belong to him, there is no reasonable probability that such a result would have precluded prosecution or conviction. The blood is likely from the victim. Even if the petitioner, were to find the blood was from an unknown male source, this information is of little use. . . . Furthermore, . . . the victim lived and worked in a public place. The blood on her shoe could have come from anyone that she routinely came in contact with or from the roadside where she frequently ran.
As to the hair sample, any DNA testing of the hair sample with results not matching the Petitioner or the victim would merely establish that the victim came in contact with a third party at some point in time. The victim lived in communal military quarters. It is conceivable that a third party's hair attached to her shoes in her everyday routine. Moreover, the hair, even if proven to belong to a third party, does not negate the remaining evidence, including the Petitioner's factually specific confession, which strongly identifies the Petitioner as the perpetrator. Moreover, Paulette Sutton previously examined both the victim's left and right shoes. She determined that the spots on the shoes did not test positive for blood. The Petitioner has failed to establish the presence of a biological specimen for DNA testing.
(2) Men's Red Underwear
The Petitioner contends that DNA testing should be conducted on a pair of red underwear found at the crime scene. Trial testimony established that there was no blood or semen found on the underwear. Nonetheless, the Petitioner maintains that the underwear can be tested for skin cells or other habitual wearer DNA to identify the person who wore the underwear. The Petitioner further asserts that the State's theory at trial was that the red underwear, found near the victim's body, belonged to the perpetrator.
While the evidence at trial suggested that the red underwear did not belong to the victim due to the size difference, no proof was introduced establishing that the red underwear belonged to the perpetrator. Thus, while the State argued in closing argument that the red underwear belonged to the perpetrator, argument is not proof. In determining the significance of exculpatory results of DNA testing on the red underwear, the post-conviction court noted:
[T]his court must consider the proof from the whole trial and how this piece of evidence fits before determining whether testing should be allowed. This court gives considerable weight to the potential effect on the jury that exculpatory results might have with regard to this particular piece of evidence. However, given the overwhelming evidence against the defendant and the fact that the State never specifically tied the underwear to the defendant at trial, this court finds petitioner has failed to show there is a reasonable probability that exculpatory results would have led the State to forego prosecution and/or resulted in petitioner not being convicted.
We agree. No evidence identifies the red underwear as belonging to the Petitioner. The Petitioner's confession fails to make any reference to the Petitioner's clothing. In fact, the only mention of any clothing belonging to the Petitioner on the night of the murder are the Petitioner's blue-jean shorts, which tested positive for human blood. Moreover, it appears from the record that this evidence has been in the custody of the Shelby County Criminal Court Clerk for the past twenty-plus years. Again, the issue of contamination must be considered in view of the numerous individuals who have come into contact with the underwear. Accordingly, even should DNA testing reveal the presence of DNA belonging to a third party, as alleged by the Petitioner, there is a strong possibility that this DNA will not belong to the perpetrator. Finally, even should the Petitioner be able to establish that DNA testing would only reveal the DNA of the actual "wearer" of the red underwear, this evidence falls short of exculpating the Petitioner as the perpetrator in light of his confession and the eyewitness identification of the Petitioner's car.
(3) Victim's Red Marine Corps T-Shirt and Bra
Petitioner Alley contends that the victim's t-shirt and bra reveal a stain on the left breast area consistent with saliva, semen, or mucous that could be tested for DNA. The Petitioner further contends that the t-shirt possibly contains a bloodstain on the back as well as perspiration. Regarding the stains on the front of the shirt and on the bra cup, the Petitioner asserts that stains are saliva from the perpetrator biting the victim's breast as the autopsy report revealed contusions to the breast area. As noted by the post-conviction court, this evidence was examined by Paulette Sutton who determined that no blood, semen, or other bodily fluids were present on the bra or t-shirt. The post-conviction court further found:
[T]his court finds petitioner's assertion that stains are present on [the] victim's shirt with biological worth highly suspect, especially in light of the fact that the shirt has been in the evidence room with other items for nearly twenty years. . . .
Initially, this court notes that there is no way to demonstrate that the purported stain is associated with the crime. It could have just as easily predated the crime; and could also be of some nature other than biological material. However, . . . this court will assume that there are biological materials on the victim's shirt that do not belong to the defendant. It appears from petitioner's argument that he claims the stains are saliva from the perpetrator biting the victim's breast. However, assuming even that the stains are of the must exculpatory nature — i.e. saliva not belonging to the petitioner, given the proof in this case, this court finds there is not a reasonable probability that the defendant would not have been prosecuted or convicted. The petitioner has continued to try to implicate the victim's boyfriend; however, any such stain could have been left during a consensual sexual encounter. Moreover, given the fact that the defendant gave a lengthy confession, a detailed walk through of the crime scene, and continued to admit his guilt to his wife even after he was in jail, it is not likely that this information would have prevented petitioner's prosecution or conviction.
Regarding exculpatory results on testing of the victim's bra, the court stated:
[T]he court again notes that such evidence could have been left through a consensual sexual act. Given this fact and, given the evidence against the defendant[,] the court again finds that even if the specimen were sufficient for testing and still in good enough condition to test and such tests excluded petitioner as the source of the specimen, a reasonable probability would not exist that such a result would have precluded prosecution and/or conviction.
A review of the record from the Petitioner's direct appeal reveals that the Petitioner denied any physical contact with the victim's breast. Additionally, the Petitioner denied any sexual intercourse or contact with the victim, other than the act of sexual mutilation. As stated by the post-conviction court, it is more likely than not that the contusions on the victim's breast were the result of a consensual sexual encounter. Additionally, as noted by the State, there is no evidence indicating whether the t-shirt and bra were freshly laundered before the victim's murder. As such, it is possible that any stain on the t-shirt and bra predates the crime. Merely detecting DNA from another individual on the victim's clothing, in the absence of any evidence as to how and when that DNA was deposited, would not exculpate the Petitioner by pointing to a different assailant. As the Petitioner denied any contact with the victim's breast, this Court would be constrained to conclude that DNA testing on the bra and t-shirt excluding the Petitioner and the victim would have resulted in the Petitioner not being prosecuted or convicted of the crime.
(4) Victim's Underwear
Petitioner Alley contends that the crotch area of the victim's panties is stained with biological material that can be tested for DNA. The post-conviction court properly noted that the underwear had previously been tested by Paulette Sutton who determined that the underwear did not contain semen or blood. The post-conviction court determined that "if [Sutton's] conclusions were incorrect and even if subsequent testing revealed the petitioner was not the source of any biological material, there is not a reasonable probability that such results would have precluded his prosecution or conviction." In this regard, the post-conviction court noted that "the stains could be bodily fluids from the victim or they could be fluids from a previous consensual sexual act." Moreover, since the State's theory was one of sexual mutilation and not penile penetration and because the Petitioner denies penile penetration of the victim, we agree with the post-conviction court's finding that "it is unlikely that the fact that testing [of the victim's underwear] excluding the petitioner as the source of any biological material on the victim's underwear, would have a significant impact on the jury."
(5) One White Tube Sock Belonging to the Victim
Petitioner Alley next seeks DNA testing on hairs found on the victim's sock as well as testing on what appears to be a bloodstain on the sock. First, we note that the Petitioner requested DNA testing of a hair found on the sock in his 2004 petition. This request was denied. Moreover, Paulette Sutton examined the sock prior to the Petitioner's trial and concluded that no blood or semen was found on the sock. The post-conviction court declined DNA testing on the sock, finding that, in addition to these fact, DNA testing was not warranted "due to the public nature of the victim's living arrangement even assuming results excluding the defendant were found." The post-conviction court further found that "if there are new hairs on the socks that were not found by Sutton or Lah[re]n, it is just as likely they were deposited there by court personnel sometime over the last twenty years."
The record supports the post-conviction court's finding. The victim was quartered in public accommodations and it is conceivable that stains and hairs collected on the victim's socks due to the nature of her living arrangements. The Petitioner has failed to demonstrate that a reasonable probability exists that he would not have been prosecuted or convicted if the socks revealed the DNA of a third party.
(6) Victim's Jogging Shorts
Petitioner Alley also contends that the victim's jogging shorts found at the crime scene contain a possible bloodstain. Again, Paulette Sutton testified at the Petitioner's trial that the shorts did not contain any blood or semen stain. The post-conviction court found that, if a stain did exist, "the stain could belong to the victim; but even excluding the victim, this court finds the defendant does not meet the statutory requirements. Like the alleged stain on the shirt, this court finds the stain on the shorts could have predated the crimes and could be the result of consensual sexual activity. Thus, even if there is such a specimen and testing reveals it is consistent with a source other than the defendant, this court finds there is not a reasonable probability that prosecution and/or conviction would have occurred in this case."
There is no indication in the record, other than the bare allegation of the Petitioner, that the stain would reveal the presence of semen or blood. In fact, Paulette Sutton testified to the contrary. Moreover, since there is no evidence regarding the pre-crime condition and history of the victim's shorts, DNA testing results excluding the Petitioner's DNA from the shorts, in light of the overwhelming proof to the contrary, do not create a reasonable probability that the Petitioner would not have been prosecuted or convicted.
(7) Blue Exercise Belt
Petitioner Alley also seeks DNA testing on the victim's blue exercise belt found at the crime scene. The Petitioner contends that the exercise belt contains biological specimens and hairs that are suitable for DNA testing. While it is unclear whether the exercise belt contains any biological evidence other than hairs, the post-conviction court noted that it is likely that the biological material on the exercise belt is "sweat, or nasal secretions or some other biological specimen belonging to the victim." The post-conviction court assumed, however, that the biological material is "not from either the defendant or the victim." The post-conviction court continued:
[S]ince this court is unclear what exact "biological" material the petitioner portends is on the belt, the court finds a reasonable probability does not exist that the exclusion of both defendant and victim as depositors of the substances would preclude the petitioner's prosecution or conviction. If the material is sweat or even nasal secretions, it is possible the victim loaned the belt to others to use for exercise and any number of people could have deposited biological material on the belt. Additionally, as previously mentioned[,] the victim was the resident of a public barracks and could have contacted the materials there.
The post-conviction court further noted that the Petitioner previously sought DNA testing on hairs found on the exercise belt which was denied. See Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *10. In affirming the lower court's prior denial of DNA testing on hairs found on the exercise belt, this Court noted that, "even if proven to belong to a third-party, does not negate the remaining evidence which strongly identifies the Petitioner as the perpetrator." Id. The fact that genetic material belonging to a third party could be found on the victim's exercise belt does not lead this Court to the conclusion that the Petitioner would not have been prosecuted or would not have been convicted of the crime.
(8) Three Styrofoam Cups
Petitioner Alley maintains that he should be permitted to conduct DNA testing on three Styrofoam cups found near the victim's body. The post-conviction court made the following findings:
[T]his court notes that testimony from the trial court indicated that the cups were sent to a lab to be tested for the presence of bodily fluids and none were found. . . . Petitioner has given the court no reason to doubt that the cups either contain biological material or any such samples are insufficient for testing. Nevertheless, even if tests could be performed and such tests excluded the defendant as the source of the specimen, given the overwhelming proof in this case, the court finds there is not a reasonable probability that the petitioner would not have been prosecuted or convicted. In addition to the incriminating evidence already mentioned by this court, of additional significance is the fact that the victim's blood and hair were found on the defendant's car, blood was found on his clothing, and a napkin found at the scene resembled one found in the defendant's car.
This Court concludes that the post-conviction court has not abused its discretion in finding that the Petitioner did not establish a "reasonable probability" that the State would not have sought prosecution or that he would not have been convicted if DNA testing on the three Styrofoam cups failed to reveal the presence of his DNA. The victim's body was found in a public place. It is highly likely that other persons had visited the area and deposited the Styrofoam cups. The Petitioner's confession fails to include any reference to Styrofoam cups.
(9) Beer Bottles
At the Petitioner's trial, unopened, full bottles of beer were identified. Fingerprints collected from the beer bottles did not match those of the Petitioner or the victim. The Petitioner contends that testing should be permitted to test the bottles for traces of DNA. The post-conviction court made the following findings:
This request completely fails to meet the first prong of the statute. In reality the beer bottles were not found close to the body. This court realizes that "near" is a relative term; but the trial transcript reveals that the beer bottles were actually "not in the particular area of the scene." . . . The bottles were found in an area resembling a picnic area and were located both in and out of the trashcan. . . . Further testimony revealed that the bottles were found approximately ½ to 3/4 of a mile away from the body.
The bottles and the body were found in a public area. Clearly, even if the bottles showed the presence of DNA from someone other than the defendant or victim, given the overwhelming proof of the defendant's guilt, as outlined in this order, this fact would not lead to a reasonable probability that the defendant would not have been prosecuted or convicted.
The record supports the post-conviction court's conclusion on these requested items. It is highly probable that the beer bottles found in a public area "four-tenths of a mile from the entrance of the roadway where the road forks" compared to the location of the victim's body "one-half mile from the entrance of the roadway on the south road" contained the DNA of neither the Petitioner nor the victim. The fact that genetic material belonging to a third party could be found on these beer bottles would not have resulted in the Petitioner not being prosecuted or convicted of the crime.
(10) Bloodstained Grass Collected from Beneath the Victim's Body
Petitioner Alley contends that he should be permitted to test grass recovered from beneath the victim's vaginal area which may contain bodily fluids. At the Petitioner's trial, Paulette Sutton testified that "five individual bags of dirt and grass" were submitted for analysis. She examined the contents of all of the bags, except one, explaining that one bag "actually had mold on the outside of the bag, and I didn't even open it for further analysis. It just wouldn't have been any good." Sutton continued that "[t]hree of the bags, I could not see any bloodstains on the grass, and on one, there was blood present." Based upon Sutton's testimony, one bag of evidence is unavailable for testing. Since these samples were in the custody of Ms. Sutton, it is possible that these samples are no longer in existence. Notwithstanding, as the lower court presumed that some of these samples were still available for testing, we, too, will so presume.
Again, the Petitioner has never alleged that he sexually penetrated the victim to the degree which would have resulted in his depositing semen at the scene of the crime. It is most likely that the blood identified on the grass samples belongs to the victim as it was found beneath her vaginal area. However, even should the samples contain DNA evidence belonging to neither the Petitioner nor the victim, we would be constrained to conclude that such evidence would have precluded the Petitioner's prosecution or conviction.
(11) Tree Limb and Paper in which Limb was Wrapped
Petitioner Alley seeks testing on the tree limb used to rape, brutalize, and kill the victim and the paper in which the limb was wrapped. Although the Petitioner previously sought post-conviction DNA testing on a hair found on the tree limb, he has altered his request in the present petition to test for blood and fluids found on the tree limb as well as for skin cells/sweat of the assailant. At the Petitioner's trial, the medical examiner testified that "blood evidence or red material evidence" was present on the external aspect of the tree limb that was protruding between the victim's legs. From the medical examiner's testimony, it was more likely than not that, due to the fact that the tree limb had been inserted, withdrawn, and reinserted at least twice, the blood on the limb was that of the victim. The post-conviction court made the following findings:
[The Assistant District Attorney General] explains that the tree limb . . . was stored in an evidence "bin" in custody of the Criminal Court Clerk. [The Assistant District Attorney General] stated that the tree limb has been in this [bin], unsealed, open to the public and the elements for twenty years. The branch apparently is stored along with other evidence in this case. Despite defense counsel's arguments that such contamination has no effect on the potential DNA that may be recovered from the limb, this court finds that any such results would be highly suspect given the conditions that evidence has been in for twenty years. . . .
. . . .
. . . This court finds petitioner's argument that the blood can now be tested after twenty years of exposure to the elements and the proposition that even if it were suitable for testing, the blood might belong to someone other than the victim preposterous. With regard to the stain the petitioner contends "might" be semen, as the State explained the limb has been loose and exposed for nearly twenty years; thus, it is just as likely the purported semen stain is actually some other substance. Finally, certainly, the contamination of the evidence would affect an examiner's ability to get an accurate profile from skin cells taken from the limb, if any such material even still exists on the limb.
As to the proposition that a reasonable probability exists that such evidence, if it excluded the defendant, would have resulted in either the State not seeking prosecution or petitioner not being convicted, this court finds that, with regard to the skin cells and hair, given the fact that the limb was taken from a public park, this argument is without merit. Moreover, given the medical examiner's testimony regarding the blood evidence on the limb, this court finds it unlikely the State would have forgone prosecution or the jury not convicted had DNA testing excluded defendant as the blood source. Finally, arguably had semen not belonging to the defendant been found on the limb, the question becomes a more difficult one. However, since the State's theory was not one of penile penetration and since the defendant claims he did not penetrate the victim with his penis such a result would not necessarily have precluded prosecution nor resulted in acquittal. It is likely that had the victim had consensual sex that some semen from the consensual act might have been transferred to the limb upon insertion. Thus, this court finds that given the breadth of incriminating proof at trial, even this result would not meet the first prong of the statute.
This Court cannot disagree with the post-conviction court's conclusion. It is more likely than not than any blood on the tree limb belongs to the victim. Moreover, as to DNA testing on the blood, skin cells, or any other biological specimen on the limb, we would be constrained to conclude that the presence of DNA belonging to neither the Petitioner nor the victim would have resulted in the State not pursuing prosecution or the jury not convicting the Petitioner. Our conclusion is based upon testimony evincing contamination of the limb. In addition to the uncontested assertion of the State that the limb has been "unsealed" in an "evidence bin" in the custody of the Criminal Court Clerk, the trial record indicates that numerous third persons have handled the limb. Indeed, the record of the direct appeal reflects that, at the Petitioner's trial, the limb was passed from the prosecutor to Dr. Bell for identification. Undoubtedly, third party DNA exists on the limb. The DNA Act does not require further investigation into the identity of third party DNA. Accordingly, even if testing would establish the presence of DNA of a third party and not the DNA of the Petitioner, with the consideration of the overwhelming proof and with the consideration of the contamination of the limb since the crime, we cannot conclude that the State would have foregone prosecution of the Petitioner or that the Petitioner would not have been convicted.
D. Motivation of Bringing Petition
The post-conviction court determined that Petitioner Alley failed to meet the criteria under subsection (4) of Tennessee Code Annotated sections 40-30-304 and 40-30-305. These provisions provide that the petition for DNA analysis must be brought for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice. T.C.A. §§ 40-30-304(4), -305(4). As to this criterion, the post-conviction court remarked:
This court has serious questions regarding the motivations of the petitioner for raising this issue at this time. The petitioner sought to present much of these claims hours before his execution and has previously had the opportunity to litigate a portion of his request before this court, in a 2004 Petitioner for Post-Conviction DNA Analysis. A Petition which was also filed close to the time of his pending execution. While it is clear from the Statutes constituting the Act and the case law analyzing the Act that a petition for post-conviction DNA analysis may be brought at any time, the samples sought for testing by this petitioner have been available since before the trial. Much of the documentation supporting their request was available at trial. Throughout the direct appeal and the post-conviction of this case, petitioner has asserted that the committed the alleged acts, but was not sane at the time of their commission. Thus, the timing of petitioner's allegations is highly suspect.
. . . This court does not believe petitioner seeks relief under the Act for the purpose of demonstrating actual innocence. Rather this court i[s] firmly convinced that the motivations of petitioner are quite different. It is clear to this court that petitioner seeks to delay his execution with this last minute successive petition for Post Conviction DNA Analysis.
The lower court's finding on this issue is supported by substantial evidence as it exists in the procedural history of this case. While it is true that the Petitioner is now represented by different counsel than in 2004, we cannot find present counsel blameless for not filing a more timely petition for post-conviction DNA analysis. Indeed, under direction of current counsel, Petitioner Alley sought in March 2006 access to this same evidence from the federal courts for DNA testing. The Petitioner fails to offer an explanation as to why no attempt was made in state court to test these additional items. Notwithstanding, even the request made in federal court was made shortly before the Petitioner's scheduled May 2006 execution. Finally, we note that the Post-Conviction DNA Analysis Act was enacted in 2001. The Petitioner's convictions and sentences were affirmed by our supreme court in 1989. This Court must ponder why DNA testing was not requested until 2004, shortly before the Petitioner's scheduled execution, when the evidence sought to be tested existed prior to the Petitioner's trial and such relief had been available to him since 2001. When a request to the federal court and a last-minute attempt to delay execution was made to the Governor of this State, this Court can only conclude that such efforts leading to the filing of the petition that is presently before this Court were made for the purpose of delaying the execution of the sentence.
While the Post-Conviction DNA Analysis Act does not statutorily prohibit a defendant from filing unlimited successive petitions requesting DNA testing, neither can this Court condone such piecemeal litigation aimed at delaying the execution of a sentence. See generally Hill v. McDonough, ___ U.S., ___ S. Ct. ___, 2006 WL 1584710, at *6 (June 12, 2006). Indeed, the United States District Court recently dismissed the Petitioner's § 1983 action challenging the State's lethal injection protocol on the basis that the Petitioner had unduly delayed the filing of that action. See Sedley Alley v. George Little, No. 3:06-0340 (M.D. Tenn., Jun. 14, 2006).
CONCLUSION
Upon our review of the record before us, including the Petitioner's motion for DNA testing, the State's response and previous opinions of this Court and our supreme court in the direct appeal and post-conviction proceedings, we conclude that the record supports the post-conviction court's conclusions that the Petitioner failed to establish 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; and (2) a reasonable probability exists that analysis of the evidence will produce DNA results which would have rendered the Petitioner's verdict or sentence more favorable if the results had been available at the proceedings leading to the judgment of conviction. See T.C.A. §§ 40-30-304(1), -305(1). Accordingly, the post-conviction court did not err by denying the Petitioner's request for DNA analysis.
The judgment of the post-conviction court is affirmed.
Appendix 2 Appellant's Brief Alley v. State, No. W 2006-01179-CCA-R3-PD
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE WESTERN DIVISION AT JACKSON
SEDLEY ALLEY, ) Petitioner-Appellant. ) No. W2006-01179-CCA-R3-PD ) Capital Case v. ) ) STATE OF TENNESSEE, ) ) Respondent-Appellee, )
BRIEF OF APPELLANT SEDLEY ALLEY
Barry C. Scheck Vanessa Potkin Colin Starger The INNOCENCE PROJECT 100 5th Avenue, 3rd Floor New York, NY 10011 (212) 364-5359 FAX (212) 364-5341
Paul R. Bottei #17036 Kelley J. Henry, #21113 Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265
TABLE OF CONTENTS 40-30-304 TABLE OF AUTHORITIES FEDERAL CASES Brady v. Maryland 373 U.S. 83 Chambers v. Mississippi 410 U.S. 284 City of Los Angeles v. David 538 U.S. 715 Crane v. Kentucky 476 U.S. 683 Godschalk v. Montgomery County District Attorney's Office 177 F. Supp. 2d 366 Holmes v. South Carolina Kyles v. Whitley 514 U.S. 419 Little v. Streater 452 U.S. 1 Tennessee v. Lane 541 U.S. 509 Vitek v. Jones 445 U.S. 480 Washington v. Texas 388 U.S. 14 Wilkinson v. Austin 545 U.S. 209 125 S. Ct. 2384 Wolff v. McDonnell 418 U.S. 539 STATE CASES Alley v. State 882 S.W.2d 810 Alley v. State Block v. State 885 So. 2d 993 Borland v. State 848 So. 2d 1288 Brown, v. State Buford v. State Carter v. State 913 So. 2d 701 Collins v. State 869 So. 2d 723 Crawford v. State Earls v. Earls Ensley v. State Griffin v. State 182 S.W.3d 795 Haddox v. State Hampton v. State 924 So. 2d 34 Jones v. State Leighton v. Henderson 414 S.W.2d 419 Marsh v. State 852 So. 2d 945 Mississippi United Methodist Conference v. Brown Ortiz v. State 884 So. 2d 70 Riley v. State 851 So. 2d 811 Roberts v. State 840 So. 2d 962 Rose v. State 601 So. 2d 1181 Saine v. State Schofield v. State 861 So. 2d 1244 Shuttle v. State State v. Alley 776 S.W.2d 506 State v. Brown State v. Cash 867 S.W.2d at 749 State v. Haddox State v. Peterson 364 N.J. Super. 387 State v. Powers 101 S.W.3d 383 413 State v. Riechmann 777 So. 2d 342 Swafford v. State 871 So. 2d 874 Thompson v. State 922 So. 2d 383 DOCKETED CASES Howell v. State Haddox FEDERAL STATUTES 42 U.S.C. § 1983 STATE STATUTES 40-30-301 40-30-304 40-30-305 MISCELLANEOUS Confronting the New Challenges of Scientific Evidence Drizin Leo, The Problem Of False Confessions In The Post-DNA World
TABLE OF AUTHORITIES .......................................................... iii STATEMENT OF ISSUES PRESENTED ................................................... 1 STATEMENT OF THE CASE ........................................................... 2 INTRODUCTION .................................................................... 2 STATEMENT OF FACTS .............................................................. 4 I. HOW DNA CAN EXONERATE SEDLEY ALLEY ......................................... 4 II. SEDLEY ALLEY HAS CONSISTENTLY SOUGHT TO OBTAIN RELIEF ON THE BASIS OF INNOCENCE IN MULTIPLE FORUMS FOR TWO YEARS FOLLOWING THE DISCOVERY OF SUPPRESSED EVIDENCE ESTABLISHING THAT HE COULD NOT HAVE COMMITTED THE OFFENSE BECAUSE THE VICTIM WAS KILLED AT A TIME WHEN LAW ENFORCEMENT KNEW HIS WHEREABOUTS ............................................................... 10 III. SUMMARY PROCEEDINGS IN THE LOWER COURT .................................... 14 ARGUMENT ....................................................................... 18 I. The Lower Court's Irrational Refusal to Recognize the Power of DNA Testing to Prove Third-Party Guilt and the Exculpatory Impact of a DNA Database Identification Violates the Due Process and Confrontation Clauses of the Tennessee and United States Constitution ................... 18 A. The Higgs "No Third Party Guilt" Rule Falls Afoul of Holmes ....... 21 B. The Higgs Rule Violates Established Principles of Procedural Due Process ....................................................... 24 II. Contrary to the Trial Court's Conclusion, State Law Does Not Prohibit Mere Consideration of the Impact of a Database Match ...................... 27 III. The Trial Court Misapplied The Reasonable Probability Standard of Tennessee Law, And there is a Reasonable Probability that Sedley Alley Would Not have been Prosecuted, Convicted, or Sentenced to Death Given Male DNA from the Same Third Party on the Numerous Items of Evidence Sought to be Tested........................................... 30 A. The Lower Court's Analysis Under § (1) Is Wrong As A Matter Of Law Since It Improperly Failed To Consider The Probative Value Of Redundant Results Which Identify DNA From The Same Man (Someone Other Than Sedley Alley) On Numerous Crime Scene Items, Such As Skin Cells/Semen From The Men's Red Underwear Left By The Assailant At The Scene; Semen/Blood/Skin From The Stick Used As A Murder Weapon; And Saliva From The Victim's Shirt And Bra ............................. 30 B. The Lower Court's Reasonable Probability Analysis Is Flawed — Not Only Because The Court Analyzed The Items Of Evidence Primarily In Isolation And Failed To Consider Redundant Results — But Also Because It Improperly Bases The Reasonable Probability Requirement On The Strength Of The State's Case And Turns A Blind Eye To The Probative Value Of The Evidence Sought To Be Tested ............................................................. 38 IV. Sedley Alley was Improperly Denied an Evidentiary Hearing Before an Impartial Adjudicator: The DNA Petition Should be Remanded For an Evidentiary Hearing Before an Impartial Judge .......................... 46 A. The Trial Court Improperly Denied Sedley Alley An Evidentiary Hearing to Enable Him to Establish His Entitlement to DNA Testing Under Tennessee Law ........................................ 47 B. Sedley Alley Was Improperly Denied An Adjudication of His DNA Petition By A Completely Impartial Adjudicator ................. 51 C. Sedley Alley Is Entitled To A Remand On The Question Of The Existence Of Additional Samples Which Can Be Subjected To DNA Analysis ....................................................... 54 D. The Case Must Be Remanded To The Trial Court For An Evidentiary Hearing Before A Neutral And Unbiased Judge ............ 55 CONCLUSION ..................................................................... 55 CERTIFICATE OF SERVICE ......................................................... 56 , (1963) .......................................... 29 , (1973) ............................. 20,21,22 , (2003) .............................. 24 , (1986) ......................................... 20 , (E.D. Pa. 2001) ............................................................... 40 , 547 U.S. (2006) ...................................... 20 , (1995) .......................................... 31 , (1981) ....................................... 20,25 , (2004) ...................................... 20,23 , (1980) ............................................ 25 , (1967) ........................................ 20 , , (2005) ................... 25,26 , (1974) ........................................ 25 , (Tenn.Cr.App. 1994) .............................. 51 , 2004 WL 1196095 ........................................ 18,19,26,27 , (Fla.App. 2004) ................................. 43 , (Fla.App. 2003) ........................... 45,54 , No. M2002-02427-CCA-R3-PC, 2003 Tenn.Crim.App. LEXIS 528, at 7 .................................................................. 22 , 2003 Tenn. Crim. App. LEXIS 370 ............................ 46,53 , (Fla.App. 2005) ............................ 43,45 , (Fla.App. 2004) .............................. 50 , 2003 WL 21782328 ......................................... 18,26 , 2001 WL 504905 (Tenn.App. 2001) ................................ 51 , 2003 Tenn. Crim. App. LEXIS 335 ............................ 46,47 , (Tenn. 2006) ......................... 44,45,46,47 , 2004 WL 2544668 5-6 (Tenn.Crim. App Nov. 10, 2004)...... 29,30,38 , (Fla.App. 2006) ............................... 43 , 2004 Tenn. Crim. App. LEXIS 1069 (emphasis supplied) ........ 46,48 , (Tenn. 1967) ............................. 51 , (Fla.App. 2003) ................................ 54 , 2006 Miss. LEXIS 108 (2006) ........................................................................... 51 , (Fla.App. 2004) ................................. 42 , (Fla.App. 2003) ................................ 43 , (Fla. 2002) ................................... 52 , (Fla. 1992) ..................................... 52 , No. W2002-03006-CCA-R3-PC, 2003 Tenn. Crim. App. LEXIS 1135 (Tenn.Crim.App. Dec. 15, 2003) ............................................. 38,41 , (Fla.App. 2003) ........................ 42,50 , 2004 Tenn. Crim. App. LEXIS 80 ........................... passim , (Tenn. 1989) .................................... 12 , 2003 Tenn. Crim. App. LEXIS 528 ................................ 38 , ............................................... 52 , 2004 WL 2544668, 4-5 ....................................... 19,28 , (App.Div. 2003 ................... 31,35,36 , , (Tenn. 2003) .............................. 53 , (Fla. 2000) ................................. 52 , (Fla. 2004) .................................. 42 , (Fla.App. 2006) ............................. 54 , No. W2005-02214-CCA-R9-PD ..................................... 52 , 2004 WL 2544668 4 citing Alley I at 9 .................................. 29 ............................................................. 13,15,16 Okla. Stat. title 22 § 1371.1(A) (2000) ...................................... 30 Tenn. Code Ann. § et seq ............................................ 2 Tenn. Code Ann. § .............................................. passim Tenn. Code Ann. § ................................................ 3,48 Tenn. Code Ann. § 40-30-404(1) (Supp. 2001) ................................. 41 , 108 Harv. L. Rev. 1481, 1573 (1995) ............................................................. 29 , 82 N.C.L. Rev. 891 (2004) ..................................................... 12STATEMENT OF THE ISSUES PRESENTED
1. Did the Trial Court's Arbitrary Refusal to Recognize the Power of DNA Testing to Prove Third-Party Guilt As Well As The Exculpatory Impact of a DNA Database Identification Violate Sedley Alley's Due Process and Confrontation Rights Under the Sixth And Fourteenth Amendments And The Tennessee Constitution?2. Does The Post-Conviction DNA Analysis Act of 2001 Prohibit Comparison Of DNA Test Results With Databases Of Convicted Offenders To Identify The Actual Perpetrator Of An Offense?
3. Is There A Reasonable Probability That Exculpatory, Redundant DNA Test Results From Numerous Items Of Evidence (Including Saliva And Blood From The Victim's Shirt; Blood Semen, And Hair On The Stick; Semen And/Or Blood Found On Grass Beneath The Vaginal Area) Would Result In Sedley Alley Not Having Been Prosecuted, Convicted, Or Sentenced To Death?
4. a. Should The Matter Be Reversed And/Or Reversed And Remanded Where The Trial Court Failed To Consider All Available Evidence In Support Of The Petition As Mandated By Tennessee Law, And Failed To Conduct An Evidentiary Hearing On Disputed Issues, While Ignoring Clear Proof That The Innocence Project Has Presented In The Petition To Establish Sedley Alley's Innocence?
b. In Violation Of Due Process Under The Fourteenth Amendment, As Well As The Tennessee Constitution And Tennessee Law, Was Sedley Alley Denied An Impartial Adjudicator, And One Who Appeared Completely Impartial?
c. Is Sedley Alley Entitled To A Remand And Evidentiary Hearing On The Disputed Question Of The Existence Of Additional Samples Which Can Be Subjected To DNA Analysis?
STATEMENT OF THE CASE
On May 15, 2006, the Tennessee Board of Probation And Parole recommended (4-3) that Sedley Alley be granted an executive reprieve to allow DNA testing of numerous forensic samples in this case. On May 16, the Governor granted a 15-day reprieve to allow Sedley Alley to seek DNA testing in the Tennessee courts. On May 19, pursuant to Tenn. Code Ann. § 40-30-301 et seq., Sedley Alley filed a petition for DNA analysis in the Criminal Court for the Thirtieth Judicial District at Memphis. After the state responded, Sedley Alley filed a reply. The Court set the case for an evidentiary hearing on May 30, 2006. After categorically prohibiting the presentation of any evidence at the evidentiary hearing, the trial court ruled from the bench on May 30 denying testing, and issued a written order on May 31, 2006. Sedley Alley filed a supplemental notice containing evidence which had been excluded at the hearing, and he filed a timely notice of appeal.
INTRODUCTION
DNA is the single most powerful law enforcement tool of the 21st Century. DNA testing has the ability to identify with absolute certainty persons who are guilty of crimes and those who have been wrongfully convicted. Because of the incredible scientific advances in DNA testing, law enforcement agencies across this country have been able to solve "cold cases" thus ensuring that dangerous offenders are held accountable for their actions. Similarly, DNA testing has proven a powerful tool in identifying 180 wrongfully convicted men, fourteen from death row. These individuals were convicted after a jury of twelve found that the evidence supported their guilt beyond a reasonable doubt. These cases involve situations were the wrongfully convicted men were identified by eyewitnesses, gave false confessions, pled insanity, or even pled guilty. And yet, they were all innocent. In sixty six of these cases, the same DNA which led to exoneration, also identified the true perpetrator, simply by typing some numbers into a computer database called CODIS.
"The FBI Laboratory's Combined DNA Index System (CODIS) blends forensic science and computer technology into an effective tool for solving violent crimes. CODIS enables federal, state, and local crime labs to exchange DNA profiles electronically, thereby linking crimes to each other and to convicted offenders." CODIS Mission Statement, available atwww.fbi.gov/hq/lab/codis/program.htm (last visited June 10, 2006).
After a five hour hearing, on May 15, 2006, the Tennessee Board of Probation and Parole voted to recommend to the Governor that crime scene evidence in this case be subjected to DNA testing. In its ruling, the Board recognized the power of DNA evidence to prove Mr. Alley's innocence in this case. In response to the Board's action, on May 16, 2006, Governor Bredesen issued a fifteen day reprieve of Mr. Alley's scheduled execution. The Governor recognized the power of DNA testing in a case such as this, but, expressed his belief that he lacked the authority to order testing. The Governor expressed his intent that Mr. Alley petition the State Court for access to the evidence, making the arguments that Mr. Alley's previous, inexperienced counsel failed to make in Mr. Alley's first request for DNA testing.
Mr. Alley promptly filed a thirty-five page Petition for Post-Conviction DNA Analysis Pursuant to Tenn. Code Ann. §§ 40-30-304 and 40-30-305. In his Petition, Mr. Alley requested access to fourteen separate items of crime scene evidence. Petition pp. 19-20.
At the May 30, 2006, "hearing" and in his written order, in recounting the history of the case, the Judge indicates that Mr. Alley requested access to only four items of evidence in his Petition. May 30, 2006, Hearing Transcript, pp. 79-80, Apx ; May 31, 2006 Order, p. 2, Apx 388. This inaccuracy likely comes from the misstatements of the prosecutor in his reply.
In this case, the trial court not only summarily rejected Mr. Alley's Petition, it also summarily rejected the power of DNA testing to establish the truth. The trial court's decision not only risks the execution of an innocent man, but, also strikes a blow to law enforcement and victim's rights. The trial court reached this conclusion by ignoring evidence of third party guilt, just weeks after the United States Supreme Court unanimously held that due process requires the consideration of such evidence. Moreover, the trial court simply refused to accept the science and instead credited the assertions of the Assistant District Attorney General, who is not a scientist, and who presented no scientific data, research, or evidence. In crediting the District Attorney General over the evidence and argument presented by Petitioner's counsel, who has worked with DNA evidence and law enforcement for more than fifteen years, the trial court also refused to even consider the real world examples which illustrate how, time and again, DNA evidence can lead to the exoneration of individuals convicted by "overwhelming" evidence. See, Exhibit PP to May 30, 2006 hearing (Apx. 233-270).
The trial court observed, "Well there's another great truth. And that great truth is that the Governor of this state has no authority over this Court. The second great truth is that the probation and parole board has no authority over this Court." May 30, 2006, Hearing Transcript, p. 64, Apx. 365.
"This Court knows Assistant District Attorney General Campbell and trusts the assertions he made to this Court[.]" May 30, 2006 Order denying Motion for Depositions. Apx. 476.
Exhibit PP is a powerpoint presentation utilized by Petitioner in his offer of proof and argument to the trial court on May 30, 2006. The presentation is provided to this Court both electronically on a CD, and, a color printout has also been included in the Appendix at p. 233-270.
The trial court's arbitrary and summary ruling here poses a threat to the fair application of the Post-Conviction DNA Analysis Act and threatens law enforcement efforts to solve old cases, which in turn, is an affront to the victims of those crimes. It must be reversed.
STATEMENT OF FACTS
This section is divided into three parts. In the first part, we will outline the record facts which establish how DNA in this case can identify the perpetrator of this crime and thus, exonerate Mr. Alley. Second, we will outline the procedural history relating to Mr. Alley's attempts to obtain DNA testing. Finally, we will address the proceedings in the lower court.
I. HOW DNA CAN EXONERATE SEDLEY ALLEY
Any statement of facts about this case must begin by acknowledging the tragic death of Suzanne Collins. There is no dispute that Mr. Collins death was a violent one. Ms. Collins suffered over 100 injuries to her body. The horror and tragedy of Ms. Collins murder understandably creates strong emotions in all of those who have been called upon to review the facts of this case. It is likewise understandable that those who have looked at this case want someone to be held accountable. But when emotions get involved, the truth can become obscured. Science knows no emotion. The injuries which bring out such a strong visceral response, also tell us that we can identify the true perpetrator of this crime through DNA testing.
The injuries to Ms. Collins body show that 1) she fought with the perpetrator, 2) the perpetrator's body came into contact with her body, and 3) the perpetrator must have deposited some of his biology on items at the crime scene. Regardless of whether the state recovered the victim's fingernail, and lab reports indicated they did, the autopsy report and pictures of victim's finger document that the victim suffered injury to the finger and nail. This injury is consistent with the trial testimony that the victim, who was physically fit, would have fought her attacker. Thus, it is reasonable to believe that the victim likely caused injury to her attacker, including scratching his skin and likely causing bleeding from the perpetrator.
That the victim would have fought her attacker was confirmed through witness interviews conducted by defense investigator, April Higuera. See Affidavit of April Higuera, p., Apx . Ms. Higuera was present and ready to testify at the May 30, 2006, evidentiary hearing. However, the trial court refused to allow her to testify. Ms. Higuera prepared an affidavit as an offer of proof of her testimony and was filed with the Court. Apx. 441-451. Her offer of proof was later stricken after an apparent ex parte discussion with the Assistant District Attorney General. See Affidavit of Kelley Henry Apx. 460. Mr. Alley filed an Amended Notice of Appeal, challenging the trial court's order striking the offer of proof as "irrelevant." Apx. 461.
In addition to the injury to the finger and nail, the victim also suffered bruising to her things as well as bruising and contusions to the areola and nipple. The latter injuries are consistent with a bite and it has been suggested that the perpetrator bit the victim. Certainly then, the perpetrator would have left behind his saliva and possibly mucous. The former injuries are consistent with a sexual assault
Beyond these injuries, the victim was also impaled with a thirty-inch stick. When the victim's body was found, the stick was inserted into the victim's vagina. It was recovered by the medical examiner, wrapped in evidence paper, and stored at the criminal court clerk's office. The stick itself is very rough. The prosecution argued that the perpetrator of the crime broke the stick off and handled in by making into a murder weapon. Multiple items of biology can be found on the stick. First, given the nature of the stick itself and perpetrator's handling of it, it is very likely that he cut himself on the stick, thus, his blood would be found on the stick and other items of evidence. In addition, the perpetrator would have left his skin cells or sweat on the stick. It is thus possible that the perpetrator left semen at the scene which can be detected on the stick. Indeed a recent evidence view of the wrapper which held the stick revealed a biological stain on the wrapper that is consistent with a blood/semen mixture. There is also hair on the stick. It is possible that some of this hair was left by the perpetrator.
There is absolutely no proof in the record that the victim ever engage in sexual relations. Indeed, defense investigation establishes the victim's decision not to engage in sexual relations. See Affidavit of April Higuera, Apx. 447-448.
Perhaps the most important item of evidence which can be subjected to DNA testing, is the pair of men's underwear found at the scene amongst the victim's clothing. Nearby the victim's body were the victim's clothes which were apparently removed from the victim by the perpetrator and a pair of men's bikini underwear which authorities always believed came from the perpetrator. This underwear will likely contain what forensic experts call usual wearer cells. These are the cells that the usual wearer of the underwear will deposit simply by virtue of the underwear coming in contact with the body. The underwear can contain urine, skin cells, or even semen. The underwear can be examined by a forensic scientist and a male DNA profile can be developed that can be compared with other items left at the scene.
Because of the clear sexual overtones of the injuries to the victim, the medical examiner took swabs from the victim's vagina, nose, mouth, and breast area. At trial, the state argued that although they could not prove penile penetration, they could not rule out that possibility. These injuries and items of evidence all establish the strong likelihood that the perpetrator this crime must have left behind his biology, be it his own blood, skin cells, saliva, sweat, hair, or semen.
The record is therefore clear that the perpetrator must have left his biology on items at the crime scene. The state has never addressed this basic fact. What then can be done with this biology?
The facts in the record establish that DNA forensic expert Gary Harmor examined the crime scene evidence and documented various items of evidence which can be subjected to DNA testing. Those items of evidence include:
(1) Red Underwear: A pair of red underwear was found at the scene near the body. Reply, Exhibit K (crime scene photo), Apx 92-93. The prosecution maintained that such underwear was left by Sedley Alley. See Closing Arg. p. 39, 54-55 (linking red underwear to the killer, noting that it was "important" that such underwear was left at the scene). In particular, this underwear can be tested for skin cells to identify the person who wore the underwear. See Reply Exhibit L (red underwear), Apx 94-95.
(2) The Victim's Red T-Shirt: This shirt contains a large spot of biological material just below the Marine Corps insignia. This spot may contain saliva, semen, mucous, and/or other biological material which can be subjected to STR (Short Tandem Repeat) DNA testing. See Reply Exhibit B, Apx 67-69. The shirt also contains a possible bloodstain on the back, as well as perspiration. Reply Exhibit C, Apx 70-71 All of these stains can likewise be subjected to DNA analysis.
(3) The Stick: The stick contains much biological material. Visual inspection reveals the existence of blood and numerous hairs, which are attached to the stick in numerous places. See Reply Exhibit D (collective exhibit: hairs identified), Apx 72-76. There may be semen on the stick, but the existence of semen can only be specifically determined under laboratory conditions.
The record establishes the state's contentions about contamination of the stick are of no concern. One can hardly assert that blood and/or semen found on the stick was deposited on the stick by court or clerk's office personnel, members of the District Attorney's Office, or others. That was deposited when the victim was killed.
(4) Paper Wrapped Around Stick: The stick was wrapped in paper. Reply Exhibit E, Apx 77-78. There are various stains on the paper used to wrap the stick. In particular, there are two spots which are indicative of a mixture of blood and semen. See Reply Exhibit F (fluid mixture stains from inside paper), Apx 79-80. These are critical pieces of biological evidence which can be subjected to STR DNA analysis to identify the actual perpetrator.
(5) Fluid-Stained Grass From Beneath The Vaginal Area: Grass was recovered from beneath the victim's vaginal area, from which fluid dripped. The discoloration of the grass itself clearly establishes the existence of biological material, including blood and/or semen, and/or other material. See Reply Exhibit G (collective exhibit), Apx 81-84. DNA testing of the grass samples can identify the donor of any of the biological samples contained on the grass.
(6) Victim's Bra: On a portion of one cup of the bra, there is a biological stain. See Reply Exhibit I, Apx 87-89. This is highly significant in identifying the perpetrator, as the victim sustained an injury to the top of the breast, which the prosecution asserted came from the perpetrator biting the victim. The stain on the bra may contain saliva or other bodily fluids associated with the injury to the breast. DNA testing can be conducted on the bra.
Eight additional items from the crime scene also contain apparent items of biology, including possible perpetrator blood, hair and saliva that can subjected to DNA testing which could exonerate Mr. Alley. These items were discussed in detail in the petition, the reply, at the evidentiary hearing, and are reflected in the exhibits to the reply and Exhibit PP. Because of page limitations, the evidence will not be recounted in detail here. See Apx 49-51, Reply Exs. H, J, M, N, O, P, Q, R, S, T, U: Apx. 85-86, 90-91, 96-123.
The facts in the record establish that items of evidence in this case can be subjected to STR (short tandem repeat) DNA analysis. STR DNA testing can extract a male DNA profile. The profile taken from a single item of evidence can be used to exonerate Mr. Alley in numerous ways. First, if the DNA doesn't match Mr. Alley, that is proof that he is not the contributor of the DNA. Second, the profile can be placed in the CODIS Databank and "hit" on a serial offender, as has happened in forty-nine of the 180 DNA exoneration cases. Third, because there are multiple items of evidence to be tested, there is the potential for redundant DNA test results. Redundant test results means that a forensic scientist can generate an STR male DNA profile from, for example, the men's red underwear and saliva from the breast area of the victim's t-shirt. If the male DNA profiles match each other and don't match Mr. Alley, that would prove that Mr. Alley is not the perpetrator of the crime. Moreover, the DNA profile from the men's underwear and the saliva on the shirt could be compared to a male DNA profile developed from biology left on the stick/murder weapon. Again, if all three match each other and don't match Mr. Alley, that is proof that Mr. Alley is not the attacker.
The case of Frank Lee Smith is one such case. Mr. Smith was the first death row DNA exoneration. Mr. Smith presented an insanity defense at trial. He was exonerated eleven months after his death.
More importantly, the male DNA profile can be used to identify the true perpetrator. This can be done by plugging the DNA profile into the CODIS databank (this usually requires eight or more markers) or by comparing the DNA profiles from a highly probative item, such as the men's underwear found near the body, more than one matching item to the victim's boyfriend.
Even if a DNA profile from any one item of evidence contains only three markers, those markers can generate a random match probability on the order of between one in one thousand to one in three thousand. If four markers are generated the random match probability could be in the hundreds of thousands. If it's five markers it could be in the millions. And on it goes. And if more than one item of evidence has the same DNA profile, and it doesn't come from Alley or the victim, these redundant results create a persuasive DNA crime scene reconstruction pointing towards the guilt of a third party. May 30, 2006 Hearing Transcript, p. 28 Apx. 329.
A chart graphically depicting the power of redundant DNA testing to exonerate Mr. Alley was provided to the lower court in exhibit PP. See Apx. 252-256. The State has never offered an alternate explanation for how redundant DNA results which match each other, but, do not match Mr. Alley, could come from anyone other than the true perpetrator.
II. SEDLEY ALLEY HAS CONSISTENTLY SOUGHT TO OBTAIN RELIEF ON THE BASIS OF INNOCENCE IN MULTIPLE FORUMS FOR TWO YEARS FOLLOWING THE DISCOVERY OF SUPPRESSED EVIDENCE ESTABLISHING THAT HE COULD NOT HAVE COMMITTED THE OFFENSE BECAUSE THE VICTIM WAS KILLED AT A TIME WHEN LAW ENFORCEMENT KNEW HIS WHEREABOUTSMr. Alley has sought access to the crime scene evidence for purposes of DNA testing since his counsel discovered suppressed evidence which establishes that he could not have committed this murder. What was learned for the first time in 2004, and confirmed in 2005, was that, at the time of trial, authorities knew that the victim was killed not at 11:00 p.m on July 11, 1985, but, during the early morning hours the next day: She died at 3:30 a.m. on July 12, 1985. See Reply Exhibit X, Apx. 140-141: Report of Sgt. Jim Houston (According to Dr. James S. Bell, M.D., the victim had been dead "approximately six (6) hours when he saw the body and made the crime scene at 9:30 AM, 7-12-85"); Reply Exhibit Y, Apx. 142-144: Dr. James S. Bell (from view of body at scene: victim died no earlier than 1:30 a.m.). This evidence was unconstitutionally withheld by the State for nearly 20 years.
The significance of that revelation cannot be overstated. That revelation puts the case in a whole new light, because this previously-withheld time of death provides powerful proof that Sedley Alley is actually innocent. Indeed, authorities have records documenting Sedley Alley's exact whereabouts on July 12, 1985 from 12:10 a.m. onward, and Sedley Alley was at home when the victim was killed. See Reply Exhibit Z, Apx. 145-146: Naval Investigation Radio Log (Alley picked up for questioning at 12:10 a.m., released at 1:00 a.m., and under surveillance at home at 1:27 a.m.). Sedley Alley did not, in fact, kill the victim. As demonstrated by a timeline of the events showing Sedley Alley's whereabouts in relation to the time of death (Reply Exhibit AA, Apx. 147-148: Timeline), Sedley Alley simply could not have committed the offenses for which he has been convicted. See also Reply Exhibit BB, Apx. 149-151 (Report of Dr. Walter Hofman, M.D.) (victim died quickly after sustaining injuries) and Exhibit TT, Apx. 296-297 (Affidavit of Dr. Hofman).
Moreover, additional evidence also points to victim's boyfriend — not Sedley Alley — as the killer. The boyfriend admits that he was with her that night and he, unlike Alley, had a motive to harm her: She was leaving town to be with her fiancee in California. See Reply Exhibit CC, 152-157 (Affidavit of April Higuera). In addition to exculpatory DNA evidence and time of death evidence showing that Sedley Alley is innocent and would not have been prosecuted, convicted, or sentenced to death, proof of Sedley Alley's innocence includes the following:
At the May 30, 2006, hearing, the trial court, despite claiming to have thoroughly reviewed the record, indicated that he was unaware that Mr. Alley had previously indicated that the boyfriend was a possible suspect. "I must tell you that I handled the post-conviction matter, Mr. Campbell, you know, back in 2004 and this business about the boyfriend doing it, of a possibility that he did it, is a new matter for me. I mean, it's a new concept for me." May 30, 2006, Transcript p. 77, Apx 378.
(1) As Dr. Richard Leo, Ph.D., has made clear, the inculpatory statement introduced against Sedley Alley is unreliable and not true, lacking any real indicia that Sadley Alley's responses were based on any actual knowledge of what occurred. See Reply Exhibit DD: Affidavit of Dr. Richard Leo, Ph.D., Apx. 158-169; See State v. Alley, 776 S.W.2d 506, 509 n. 1 (Tenn. 1989) (statement introduced against Alley did not comport with the facts). A taped statement from Alley was presented to the jury, but it was tampered with: More than half of it was mysteriously missing. See Reply Exhibit EE, Apx. 170-171 (Affidavit of Janet Santana); Compare Reply Exhibit FF, Apx. 172-173 (interrogation log showing actual time of interrogation, which was significantly longer than that of "confession" introduced at trial). See also Drizin Leo, The Problem Of False Confessions In The Post-DNA World, 82 N.C.L.Rev. 891 (2004) (identifying 125 persons who gave false confessions to crimes they did not commit, including 9 who were sentenced to death based on confessions proven to be false).
In the Warney case, Professor Leo concluded that Warney's confession was false. See Reply Exhibit A, Apx. 66. Professor Leo was absolutely right: DNA tests proved that Warney was innocent and that his "confession" was false.
(2) The abductor was 5'8" with a medium build; short, dark brown hair; a dark complexion, and no noted facial hair; while Sedley Alley was 6'4" with a slender build, medium to long reddish-brown hair, medium complexion, and a mustache and beard. See Reply Exhibit GG, Apx. 174-175: Statement of Scott Lancaster (describing abductor); Compare Reply Exhibit HH, Apx. 176-177: Booking photograph of Sedley Alley; and Reply Exhibit II, Apx. 178-179: Police Description of Sedley Alley.
(3) The victim's boyfriend closely matches the description of the abductor, he admits that the victim was with him in his car that night, he drove the type of car described by witnesses to the abduction (brown-over-brown station wagon), and had a motive to harm the victim. See Reply Exhibit CC, Apx. 152-157: Affidavit of April Higuera (John Borup closely matches description of abductor, drove Dodge Aspen and was with victim the night she was abducted); Reply Exhibit JJ, Apx. 180-181 (Abductor's automobile initially described as a brown over brown station wagon); Reply Exhibit KK, Apx. 182-183 (Dodge Aspen).
See also, Affidavit of April Higuera, Apx 444-445, Borup fixed up his brown Dodge Aspen to make it loud. The abductor's car was described as being loud. Ms. Higuera's affidavit also outlines Borup's history of jealousy, unexplained injury to his arm after the incident, the fact that he had a dark tan, and his admission that he jogged with the victim and would therefore know her route and be able to get on to the base.
(4) The tire tracks and shoe prints from the abduction scene are not from Sedley Alley's automobile or Sedley Alley's shoes, but from someone else. See Reply Exhibit LL, Apx. 184-219: Report of Peter McDonald (Tire tracks at abduction scene did not come from Alley's vehicle); Reply Exhibit MM, Apx. 220-226: Report concerning shoe prints.
(5) Hairs and fingerprints found on items near the body are not Sedley Alley's but someone else's. See Reply Exhibit NN, Apx. 220-226 (fingerprints not Alley's). See also Trial Tr. 882-883 (no hairs at scene matched Alley).
Upon establishing all of these facts, in 2004, Mr. Alley filed a Petition under the Tennessee Post-Conviction DNA Analysis Act requesting access to certain items of evidence for DNA testing. Unfortunately, Mr. Alley's lawyers with the Post-Conviction Defender's Office were not trained in the science of DNA and did not understand the items of evidence that should have been requested, the importance of redundant DNA results, or the significance of DNA databank searches. Nevertheless, Mr. Alley litigated his Petition through the Court of Criminal Appeals, the Tennessee Supreme Court, and the United States Supreme Court.
At the same time, Mr. Alley's federal attorneys sought to reopen his habeas petition on the grounds that the withholding of evidence of Mr. Alley's innocence constituted a fraud on the court. Mr. Alley only recently lost that case in the Sixth Circuit Court of Appeals and continues to litigate that case in the United States Supreme Court. Had Mr. Alley been able to reopen his habeas case, he could have requested to test the evidence in discovery in federal court.
Mr. Alley also sought DNA testing in federal court through a complaint filed pursuant to 42 U.S.C. § 1983. Mr. Alley lost that case in federal court, but, has filed a Petition for Writ of Certiorari in the United States Supreme Court. Mr. Alley lost not on the grounds that the DNA would not exonerate him, but, on the grounds that the Sixth Circuit has not yet recognized a federal constitutional right of access to evidence to do DNA testing financed by the petitioner himself.
Mr. Alley then sought access to the evidence through executive clemency. After a five hour hearing, the Board of Probation and Parole agreed that Mr. Alley should be granted a thirty day reprieve to conduct the DNA testing. The Governor, however, believes that he does not have the power to order the testing. He directed Mr. Alley to file the Petition at issue here.
The testing that Mr. Alley first sought in 2004 takes 30 to 60 days to complete. There is no doubt that had the State agreed to the testing, it would be complete by now.
III. SUMMARY PROCEEDINGS IN THE LOWER COURT
As previously stated, Mr. Alley's attorney immediately prepared a thirty-five page Petition for DNA testing. The Petition identified items of evidence that Mr. Alley knew to exist and requested additional items of evidence for which he requested discovery in order to determine whether the evidence had been destroyed. The trial court scheduled a May 30, 2006 evidentiary hearing on the Petition. On May 24, 2006, the State filed a response to the Petition. The State's response was not supported by any evidence. The state offered three basic arguments against testing. First, it argued that Sedley Alley cannot meet the "reasonable probability" standard because exculpatory results could not, in its view and based on prior rulings, overcome Mr. Alley's confession, the eyewitness testimony, and Mr. Alley's use of an insanity defense at trial Response at 14-15. In making this argument, the State never addressed the real world examples provided of cases where DNA testing did, in fact, overcome cases of "overwhelming" guilt from detailed confessions and other proof, including cases where the defendant's did not contest guilt or innocence at the sentencing phase. Second, the state claimed that Mr. Alley cannot prove that "the evidence is still in existence." Id. at 15-17. Finally, the state argued that Mr. Alley made his application for the purpose of delay rather than proving innocence. Id. at 17. In making this argument, the State refused to respond to Mr. Alley's allegations that the State withheld exculpatory evidence for almost two decades and Mr. Alley's contention that upon the discovery of this suppressed evidence he immediately sought access to the crime scene evidence for DNA testing, and sought such in multiple forums for two years.
On May 25, 2006, Mr. Alley followed up on his request for discovery already contained in the Petition, with a formal "Motion for Depositions" so that he could establish whether certain items of evidence (including the broken fingernail, swabs of seminal fluid found on the victim's thighs, blood and hair found in Alley's car) have in fact been destroyed. In his reply to the State's Response to the Petition, Mr. Alley provided the Affidavit of Ms. Vanessa Potkin, Reply Exhibit OO, in further support of his request for discovery. Ms. Potkin recounted her experience with numerous cases where evidence initially declared by prosecutors and lab personnel to be destroyed were eventually discovered, and exculpatory DNA results produced, after hearings or extended searches instigated by representatives of inmates seeking the tests. At the hearing on May 30, 2006, the trial judge refused Petitioner to conduct discovery, crediting the state's hearsay assertions that certain items of evidence were destroyed. Apx. 306-307.
As previously stated, the Court scheduled an evidentiary hearing for May 30, 2006. In anticipation of the Hearing, and in reply to the States's Response, Petitioner filed a comprehensive reply to the State's response and provided an extensive appendix of documents establishing the various items of evidence that existed which were capable of producing exculpatory DNA results. Petitioner also provided the Court with numerous real world examples of how just such evidence had produced exonerations in other similar cases. Petitioner's reply made clear that Petitioner anticipated that the Court would hear testimony at the May 30, 2006 evidentiary hearing; indeed, a DNA expert had flown in from California a week earlier to examine each item of evidence kept in the courthouse, and flew back again to testify at the hearing.
Yet when the hearing began, the Court expressed surprise that Mr. Alley sought to present witnesses. The Court stated, "Excuse me? You wish to call a witness?" May 30, 2006 Transcript, p. 9, Apx. 310. An extensive discussion then ensued after which the Court ruled, "All right, I am going to deny that request to call witnesses. You can argue your motion for DNA testing, but I don't want to hear from any witnesses." Id, pp. 17-18, Apx. 318-319. Petitioner then requested to make an offer of proof with the witness. That motion was also denied. Id. p. 19, Apx. 320. Counsel, Mr. Scheck, then requested that the witness be allowed to enter the courtroom so that Mr. Scheck could make sure that in his oral offer of proof he did not misstate any facts. The following colloquy took place:
MR. SCHECK: [C]ould I bring Mr. Harmor in so that I could just ask him. He's actually outside, because we figured he was a sequestered witness. I just wanted to — THE COURT: You want him to sit in the courtroom? MR. SCHECK: Yes, if he could just sit and I would ask him questions to make sure I've go this observations correct. Could we bring him in? THE COURT: I've already ruled and I don't want to hear from the gentleman. MR. SCHECK: I understand. Would you permit him to come into the courtroom so I can ask him a question, as I make my offer to you. THE COURT: What is the methodology of asking questions of a person that I don't want to hear from as a witness? MR. SCHECK: No, he's the one that examined the — those photographs are pictures and observations that he made and I am giving — I am telling you — THE COURT: Well, you just give it your best shot. P. 30. Mr. Scheck then presented a 42 page oral offer of proof supported by reply exhibits A-00, exhibits PP, RR 1-6, SS, and TT. Apx. 331 et seq.The Court also refused to allow Mr. Alley to call as a witness defense investigator Ms. April Higuera who was present to offer testimony regarding evidence she had uncovered which established the guilt of a third party, Mr. Borup.
In addition to refusing to consider this testimony at the hearing, the trial judge also struck from the appellate record Mr. Alley's offer of proof as to Ms. Higuera's affidavit after an apparent ex parte communication with counsel for the state. As the attached affidavit of counsel Kelley Henry makes clear, Mr. Alley only learned of the Court's order striking Ms. Higuera's affidavit in a phone call to the clerk's office on another matter. Apx. 460.
At the end of the May 30, 2006 hearing the trial judge announced his decision denying Mr. Alley's petition. A comparison of the transcript with the Court's written order, indicates that the Court was reading from a prepared order in announcing his ruling. Compare Apx. 378 with Apx. 387-389. In rejecting Mr. Alley's Petition, the Court refused to credit any of Mr. Alley's evidence or representations made by his counsel, who are also officers of the Court. All of this was in a summary proceeding. The trial court denied DNA testing in a written order and concluded that certain items of evidence didn't exist, because the Assistant District Attorney had been told they didn't exist. Apx. 411-412.
The Judge's May 31, 2006, indicates that it would have been unfair to the state to take evidence at the May 30, 2006, hearing because the State wouldn't have had notice to have its own expert present. That is untrue. First, the State was on notice having been present when Mr. Harmor reviewed the crime scene evidence. Second, the TBI CODIS supervisor was also present when Mr. Harmor viewed the evidence and was present at the hearing. Significantly, the State has not presented any testimony or affidavit from the TBI forensic scientists refuting any of the scientific matters before the Court.
ARGUMENT
I. The Lower Court's Irrational Refusal to Recognize the Power Of DNA Testing to Prove Third-Party Guilt and the Exculpatory Impact of a DNA Database Identification Violates the Due Process and Confrontation Clauses of the Tennessee and United States Constitutions.
In his DNA motion, Sedley Alley identified various items of crime-scene evidence that could be subjected to testing and produce exculpatory results. Citing to routine practice in post-conviction testing around the nation, Alley further pointed out that if obtained, exculpatory test results could be run through DNA databases to specifically identify the profile extracted from the crime-scene evidence. Alley demonstrated that such DNA database comparisons had led to exonerations in convictions similar to his, where apparently "overwhelming evidence of guilt" consisted of detailed confessions.
Rather than deal with the reality of how DNA testing actually works to prove innocence or confirm guilt, Judge Higgs engaged in a strained reading of this Court's decisions in Earl David Crawford v. State, 2003 WL 21782328 (Tenn.Crim.App. August 4, 2003) and Sedley Alley v. State (" Alley I"), 2004 WL 1196095 (Tenn.Crim.App. May 26, 2004). Although neither Crawford nor Alley I even mention DNA databases, Judge Higgs cited the cases in support of his proposition that "[DNA] testing can not be used to identify some third party that petitioner now contends was involved in the crime or some `phantom' defendant found in the database." (Higgs Order at 24; see also id. at 30, 34, 36, 47).
As explained in detail below, Judge Higgs' adamant refusal to consider the possibility of third-party guilt or database comparisons creates a serious and unwarranted constitutional problem. It deprives Mr. Alley of a meaningful opportunity to be heard on the substance of his claim, is wholly arbitrary restriction on the presentation of third-party guilt, and contradicts the real-world experience of exonerations and law enforcement practice. As such, Judge Higgs has construed the statute in a way that violates Alley's Due Process and confrontation clause rights under the United States and Tennessee constitutions.
There is no dispute that in reviewing an application under Tennessee's post-conviction DNA statute, the courts must assume that the proposed DNA testing results will be favorable to the applicant. See Tenn. Code. Ann. § 40-30-304(1) ("reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis"); See also State v. Haddox, 2004 WL 2544668, *4-5 (Tenn.Crim.App. November 10, 2004); Jack Jay Shuttle v. State, 2004 WL 199826, *5 (Tenn.Crim.App. February 2, 2004) ("for purposes of the Act, we must assume that DNA testing will reveal exculpatory evidence"). Favorable results in this case, and in any other post-conviction DNA application, necessarily include the possibility that DNA profiles derived from probative crime-scene evidence will not only exclude the applicant but inculpate a third party, either a known suspect or an unknown convicted offender whose DNA profile is contained in a national DNA databank
One other way Alley can be vindicated by a databank hit is to have the DNA profile found on probative crime scene evidence in this case match a DNA profile from another unsolved crime that was committed while Alley was incarcerated or known to be somewhere else. Profiles from unsolved crimes are kept in the database. This is really just another way of proving third party guilt.
This term in Holmes v. South Carolina, 547 U.S. — (2006), the United States Supreme Court affirmed a long line of cases holding that neither state statutes or state evidentiary rules can irrationally restrict a defendant from exculpating himself through proof that a third party is guilty. Holmes, Slip Op. at 4-6 ( citing, inter alia, Washington v. Texas, 388 U.S. 14 (1967) (Texas statute barring person who had been charged as a participant in crime from testifying in defense of another participant unconstitutional); Chambers v. Mississippi, 410 U.S. 284 (1973) (Missippi's "voucher rule" which prevented defendant from cross-examining third-party who had confessed to murder unconstitutional); and Crane v. Kentucky, 476 U.S. 683 (1986) (Kentucky evidentiary rule arbitrarily prevented defendant from showing circumstances under which he gave confession were unreliable)).
The "no third party guilt" rule proposed by Judge Higgs is similarly irrational and cannot withstand constitutional scrutiny. Once the legislature creates a post-conviction remedy whereby inmates are entitled to get DNA testing to raise a reasonable probability they wouldn't have been convicted or even prosecuted, it is utterly irrational to then prevent applicants from using the technology to exculpate by proving third-party guilt, much less access a state run database that is designed to solve crimes by identifying suspects who have left their DNA at crime scenes in very incriminating places.
It is a well-established due-process principle that once the state has created a statutory scheme affecting a litigant's rights and interests, it must provide "`a meaningful opportunity to be heard' by removing obstacles to their full participation in judicial proceedings." Tennessee v. Lane, 541 U.S. 509, 523 (2004) ( citing Boddie v. Connecticut, 401 U.S. 371, 379 (1971); M.L.B. v. S.L.J., 519 U.S. 102 (1996)). Here, the lower court has in fact created obstacles to full participation by artificially limiting the scope of its enquiry to not include the real-world possibility of an outcome-changing third-party match. This arbitrary rule "in effect forecloses what is potentially a conclusive means for an indigent defendant to . . . exonerate himself. Such a practice is irreconcilable with the command of the Due Process Clause." Little v. Streater, 452 U.S. 1, 12 (1981).
A. The Higgs "No Third Party Guilt" Rule Falls Afoul Of Holmes
In Holmes, the Court found that a defendant's constitutional rights are violated by an evidence rule "under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict." Slip op. at 1. In reaching this conclusion, the Court explained that the Constitution "prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote." Id. at 6 (citations omitted). In the specific case of third-party guilt evidence, the operative principle is the connection between the defense evidence and the crime — evidence that is "remote" or "lack[s] connection with the crime" is properly excluded. Id. at 7 ( citing 40 A. Am. Jur. 2d. Homicide § 286, pp. 136-138 (1999)). However, the South Carolina rule did not serve this operative principle because:
the trial judge does not focus on the probative value or potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution's case: If the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value . . . Furthermore, as applied in this case, the South Carolina Supreme Court's rule seems to call for little, if any, examination of the credibility of the prosecution's witnesses or the reliability of its evidence.
Id. at 9. Given this lack of logic, the Court found the South Carolina rule "`arbitrary' in the sense that it does not rationally serve the ends that . . . third-party guilt rules were designed to further." Id. at 11.
It is clear that Judge Higgs' third-party-guilt rule is also arbitrary and does not serve the ends that the Act were designed to further. Initially, it is revealing that Judge Higgs does not attempt to explain the rationale behind his blanket prohibition on using DNA evidence to identify third parties. See e.g.,Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (state failed to explain underlying rationale of voucher rule, rule rejected as not "in accord with traditional and fundamental standards of due process."). Judge Higgs does imply, however, that any third-party comparisons are automatically "conjecture" or "speculation" and not permitted. Obviously, Judge Higgs has repeated the South Carolina mistake of not focusing on the probative value or potential adverse effects of Mr. Alley's proposed third-party comparisons.
Here, Mr. Alley seeks DNA testing only on items that are directly connected to the crime-scene such as the murder weapon, underwear linked to the perpetrator at trial, and the clothing worn by the victim during the assault. None of this evidence is remote or lacking connection to the crime. While it is possible that DNA unrelated to the true perpetrator is on any one of these items, it is inconceivable that the same male DNA profile could be on the murder weapon, the red underwear, and the victim's clothing. No single person who was not involved in the crime could have his DNA on all of these items. Mr. Alley has simply requested that the court consider the possibility that redundant results could point to the same third party, and also the possibility that this third party could be identified through use of DNA databases.
Instead of weighing the possibility that a single third party could be connected to the crime-scene through redundant results or a database match, Judge Higgs refused to consider this real-world scenario. Like the South Carolina courts, Judge Higgs seems to take this tack based on his total acceptance of the state's version of the case against Mr. Alley. While Judge Higgs took all assertions of state's counsel at face value, he simply refused to believe that Mr. Alley and his counsel seek to prove innocence. ( Compare Higgs Order at 25 ("as an officer of this court, Assistant District Attorney General Campbell's credibility on this issue is accepted by the court") with id. at 49 ("this court does not believe petitioner seeks relief under the Act for purpose of demonstrating actual innocence.")). Moreover, Judge Higgs also refused to consider additional exculpatory evidence such as the time-of-death revelations when considering the reasonable probability prong. ( See id. at 47). The end result of this highly one-sided process is to deprive Mr. Alley of any opportunity to conduct highly probative testing essentially on the say-so of the state.
Such an approach does not accord with the fundamental purposes of the DNA Act. See, e.g., Shuttle v. State, 2004 WL 199826 at *5 ("[t]he Act was created because of the possibility that a person has been wrongfully convicted or sentenced." (quotingRicky Flamingo Brown, Sr. v. State, No. M2002-02427-CCA-R3-PC, 2003 Tenn.Crim.App. LEXIS 528, at *7 (Tenn.Crim.App. June 13, 2003).
In fact, as the legislative history of the Post-Conviction DNA Act makes clear, the Act was passed specifically not only to exonerate the innocent, but also to identify actual perpetrators of offenses who, without DNA testing, are roaming free. As Senator Cohen explained, the Post-Conviction DNA Analysis Act was one of the "most important bills . . . in the Legislature, because we're talking about freedom and we're talking about apprehending the right person and not incarcerating somebody wrongly." Legislative Tape #3 on SB 796: Senate Judiciary (May 15, 2001) (Senator Cohen). As he later stated:
We need to free the innocent and then find the guilty, and if we don't find the guilty the victim doesn't know who did it and if we don't free the innocent, we've got some serious victims whose liberty has been taken in the name of the state. Legislative Tape S-75 on SB 796: Joint Session (June 7, 2001). By not allowing DNA testing the state is "doing what's the worst thing the state could ever do, and that's to take somebody and deprive them of their liberty wrongly, but they're also letting the criminal out there prey on others." Legislative Tape #3 on SB 796: Senate Judiciary (May 15, 2001) (Senator Cohen).
The ruling below also defies real-world experience and is an insult to victims. Mr. Alley cited to numerous cases where DNA database comparisons not only exonerated a wrongly convicted person, but also resulted in the apprehension of the true perpetrator. ( See, e.g, Petition for Post-Conviction DNA Analysis at 22-24 note 13 (citing individual cases involving database matches and Chicago Tribune study on database matches). Of course, it is invariably true that when a wrongful conviction occurs, the real culprit escapes punishment. If nothing else, the risk that a third party may have escaped punishment deserves consideration when looking at an application for DNA testing. It is good for law enforcement and good for victims.
B. The Higgs Rule Violates Established Principles of Procedural Due Process
While Holmes concerned a trial right to present third-party evidence and the DNA Act concerns a post-conviction right, there is no reason to believe that the judiciary's duty to rationally apply rules of evidence to effectuate the purpose of a statute ends after trial. Indeed, it is well established principle of due process that once a state creates a scheme that affects a litigant's rights, it must provide a meaningful opportunity to be heard in that forum. Tennessee v. Lane, 541 U.S. at 523. An arbitrary rule preventing the court from considering the possibility of third-party guilt or a database match renders the opportunity to be heard on the critical "reasonable probability" question far less than meaningful.
When the state has created a procedure such as the one at issue here, three factors normally determine whether an individual has received the "process" that the Constitution finds "due": First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.City of Los Angeles v. David, 538 U.S. 715, 716 (2003) ( citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). "By weighing these concerns, courts can determine whether a State has met the `fundamental requirement of due process' — `the opportunity to be heard at a meaningful time and in a meaningful manner.'" City of Los Angeles, 538 U.S. at 717 ( quoting Mathews, 424 U.S. at 333).
Here, the private interest affected by the official action could not be greater. Sedley Alley has been sentenced to die, and DNA testing that could potentially prove his innocence and save his life has not been ordered because of the official action. If Judge Higgs had considered the possibility of third-party guilt or a database match, he may well have ordered testing. The first factor is thus easily met.
Second, the risk of an erroneous deprivation of Mr. Alley's right to DNA testing is great under Judge Higgs' "no third party guilt" rule. Real-world experience has shown that time and time again, cases that appeared to be overwhelming evaporated in an instant through the power of a DNA match to the database. ( See, e.g., Petition for Post-Conviction DNA Analysis at 22-24 n. 13 (citing individual cases involving database matches and Chicago Tribune study on database matches)). By refusing to consider the possibility of a database hit, Judge Higgs also ignored the reality of how exonerations work. He artificially limited the inquiry into how Sedley Alley's testing plan could or could not prove innocence, and on the basis of this less-than-meaningful record, denied testing. The risk of erroneous deprivation for Mr. Alley, and future DNA petitioners, is therefore great.
Finally, the government's interest is Judge Higgs' rule is non-existent. Law enforcement routinely uses DNA databases to solve crimes, and it is in their interest to have the true power of this tool understood and considered in judicial hearings. Moreover, there is absolutely no financial or administrative burden to having the trial court consider the possibility of a database match when it weighs whether testing should be granted. This factor also weighs entirely in Mr. Alley's favor.
In sum, it is clear that Judge Higgs' rule serves no rational purpose, and in fact creates a barrier to meaningful review under state procedures. This arbitrary rule therefore violates the constitution as it "forecloses what is potentially a conclusive means for an indigent defendant to . . . exonerate himself."Little v. Streater, 452 U.S. 1, 12 (1981).
The lower court's actions can also be understood as depriving Mr. Alley of a statutorily created liberty interest. The principle that the state may create a liberty interest by statute that is entitled to due process protection is well-established.See Wilkinson v. Austin, 545 US 209, 125 S.Ct. 2384, 2393(2005) (liberty interest protected by the Fourteenth Amendment's Due Process Clause may arise from the Constitution itself, by reason of guarantees implicit in the word "liberty," or it may arise from an expectation or interest created by state laws or policies.); Vitek v. Jones, 445 US 480, 488 (1980) (State statutes may create liberty interests that are entitled to the procedural protections of the due process clause of the Fourteenth Amendment); Wolff v. McDonnell, 418 US 539, 558 (1974) (Some kind of hearing is required at some time before a person is finally deprived of his liberty, even when the liberty itself is a statutory creation of the state).
Here, Tennessee has created a liberty interest for convicted defendants to secure release from prison by means of DNA testing. For those on death row like Alley, that liberty interest is also a life interest. Once the legislature creates such a liberty and life interest in its post-conviction DNA statute, the courts cannot restrict an inmate's statutory right to vacate his conviction, much less prove his actual innocence, by irrationally and unfairly preventing him from using DNA testing to prove third party guilt. See e.g., Wilkinson v. Austin, 545 U.S. 209 (2005) (process must be appropriate when judged against liberty interest involved).
II. Contrary To The Trial Court's Conclusion, State Law Does Not Prohibit Mere Consideration Of The Impact Of A Database Match
Of course, it is not necessary to find that Tennessee's statute, as interpreted by Judge Higgs, falls afoul of the Constitution. Indeed, it is apparent that Judge Higgs erred as a matter of state law, and that his readings of Crawford and Alley I miss the mark. On these grounds alone, he should be reversed.
Crawford and Alley I do stand for the proposition that the DNA statute does not create a mechanism for the trial court to order the victim or any third party to submit new DNA samples. See Crawford, 2003 WL 21782328 at *3 ("[t]he statute does not authorize the trial court to order the victim to submit new DNA samples . . ."); Alley I, 2004 WL 1196095 at *10 ("the Act does not permit DNA analysis to be performed upon a third party."). However, Alley is not requesting that DNA testing be performed on any third party. Indeed, he seeks only to test crime-scene evidence that may contain the DNA of the perpetrator of the horrible crime at issue.
Judge Higgs incorrectly extends a simple prohibition on the performance of third-party testing under the Act into a ban on the mere consideration of the impact of identifying a third-party on exculpatory results when analyzing the "reasonable probability" prong. This radical and artificial limitation on the analytic process of weighing a petitioner's request is entirely unjustified.
Neither Crawford nor Alley I even mentions database comparisons. In Crawford, the petitioner sought to have the victim and victim's husband provide new DNA samples, and the court's pronouncements of improper comparisons are entirely limited to the impropriety of that request. In Alley I, this Court found that Mr. Alley's confession was distinguishable from the inculpatory statements made by the petitioner in Jack Jay Shuttle, and that Mr. Alley's suggestion that one of the victim's romantic partners may have been involved in the crime was not enough to overcome his confession. It was in this context that this Court held that the "purpose of the Post Conviction DNA Analysis Act is to establish the innocence of the petitioner and not to create conjecture or speculation that the act may have possibly been perpetrated by a phantom defendant." Alley I, 2004 WL 1196095 at *9. Of course, with the help of new counsel greatly experienced in the nuances of DNA testing, Mr. Alley has now requested examination on the particular crime-scene items that could indeed definitively identify the perpetrator and overcome Mr. Alley's confession.
This Court's previous reference to "conjecture" concerning a "phantom defendant" was clearly not a limit on the process of analyzing assumed exculpatory results. Rather, it was judgment on the limited potential of the testing requested by Mr. Alley in his flawed first petition. Now that those flaws have been corrected, there is no reason to artificially ignore the possibility of a database match changing the picture of guilt.
The first reason why consideration of a match is appropriate is purely logical. In considering an application of DNA testing, it is uncontested that the reviewing court must assume "exculpatory results." See Tenn. Code. Ann. § 40-30-304(1) ("reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis"); See also State v. Haddox, 2004WL 2544668, *4-5 (Tenn.Crim.App. November 10, 2004); Jack Jay Shuttle v. State, 2004 WL 199826, *5 (Tenn.Crim.App. February 2, 2004) ("for purposes of the Act, we must assume that DNA testing will reveal exculpatory evidence"). By definition, "exculpatory results" means that the DNA from someone other than the victim or defendant is found on the evidence tested. In other words, under well-settled law, this Court must assume that the DNA of a third party is found on the evidence upon which DNA testing is requested. Although Judge Higgs recoils at the mention of a third party, there can be no "exculpatory results" without implicating one.
Analytically, the question then becomes whether a court can consider that a DNA database could link a specific person to the assumed exculpatory result. The answer must surely be "yes." There is absolutely no language in the statute prohibiting such an analysis. Although Judge Higgs never acknowledged it, the uncontested record establishes that database comparisons are routinely performed by law enforcement, and that such comparisons have led to dramatic exonerations. ( See, e.g, Petition for Post-Conviction DNA Analysis at 22-24 note 13 (citing individual cases involving database matches and Chicago Tribune study on database matches). Critically, running an exculpatory profile through a DNA database does not require a trial court to order any new samples to be submitted by anyone. Rather, it is simply a matter of typing numbers into a computer.
It is axiomatic that laws should not be read in a manner that defines logic or creates constitutional problems. No case law directly suggests that a reviewing court need ignore the reality of DNA databases when considering an application for DNA testing. Given the very nature of DNA, unknown third parties are necessarily implicated when assuming exculpatory results. It would be folly to pretend that DNA databases did not exist, and that databases could not be used to identify the unknown third parties implicated in these assumed exculpatory results. Judge Higgs' attempt to avoid this analysis by reference to inapplicable precedent is reversible error.
III. The Trial Court Misapplied The Reasonable Probability Standard Of Tennessee Law, And There Is A Reasonable Probability That Sedley Alley Would Not Have Been Prosecuted, Convicted, Or Sentenced To Death Given Male DNA From The Same Third Party On The Numerous Items Of Evidence Sought To Be Tested
A. The Lower Court's Analysis Under § 40-30-304(1) Is Wrong As A Matter Of Law Since It Improperly Failed To Consider The Probative Value Of Redundant Results Which Identify DNA From The Same Man (Someone Other Than Sedley Alley) On Numerous Crime Scene Items, Such As Skin Cells/Semen From The Men's Red Underwear Left By The Assailant At The Scene; Semen/Blood/Skin From The Stick Used As A Murder Weapon; And Saliva From The Victim's Shirt And Bra
The "reasonable probability" standard does not require an applicant for testing to show that favorable test results will wholly exonerate him or prove his "actual innocence," or even that the tests are likely to come back in his favor. Haddox v. State, 2004 WL. 2544668 5-6 (Tenn.Crim. App Nov. 10, 2004) ("the term `exculpatory results' does not imply that the results of the contemplated DNA analysis must indicate with certainty that the petitioner is innocent of the crime in question."); See, e.g., Confronting the New Challenges of Scientific Evidence, 108 Harv. L. Rev. 1481, 1573 (1995) ("Notably, the [reasonable probability] test does not require a court to determine that it is likely that tests would exonerate the defendant"). The Court of Criminal Appeals has used the standard set out in Brady v. Maryland, 373 U.S. 83 (1963) to evaluate a convicted defendant's right to access biological evidence for DNA testing under the Act, defining "reasonable probability" for purposes of its analysis as follows: "[A] `reasonable probability' of a different result exists when the evidence at issue, in this case potentially favorable DNA results, undermines confidence in the outcome of the prosecution." Haddox, 2004 WL 2544668 * 4 citing Alley I at *9. The Court of Criminal Appeals has also framed the "reasonable probability" inquiry as whether favorable results "would have created a reasonable doubt in the mind of one or more jurors" since "[b]y law, a reasonable doubt in the mind of one or more jurors would have precluded a conviction." Haddox v. State, 2004 WL 2544668 *5. This is in stark contrast to the more demanding standards set forth in other states' DNA statutes. See, e.g., Okla. Stat. title 22 § 1371.1(A) (2000) (to obtain DNA testing, defendant must show that exculpatory results will prove "factual innocence," meaning that "by clear and convincing evidence . . . no reasonable jury would have found the defendant guilty beyond a reasonable doubt in light of the new [DNA] evidence"). While reciting the reasonable probability language of TENN. CODE ANN. § 40-30-304(1), the court below, in fact, erroneously imposed a higher, actual innocence burden on Alley's request for testing.
The lower court also failed to consider the full range of potential favorable results in Alley's case, despite the fact that it is well established that in determining whether DNA test results would create a reasonable probability under § 40-30-304(1), the court must presume exculpatory or favorable DNA results. Shuttle v. State, No. E2003-00131-CCA-R3-PC, 2004 Tenn. Crim. App. LEXIS 80, at *14. In cases such as Alley's, where there are numerous relevant items of physical/biological evidence from the victim's body and scene, favorable results necessarily include redundant results, test results that reveal that a number of probative items of the crime scene evidence all contain DNA from the same person, a man other than Sedley Alley. For the most part, the lower court ignored the probative value of redundant results. It's ruling — that Alley's case does not meet the requirement of TENN. CODE ANN. § 40-30-304(1) — is simply contrary to the scientific capacity of DNA testing in this case and prevailing legal authority.
In evaluating Alley's request for DNA testing, the lower court was required to consider the probative value of redundant DNA test results. It did not. There can be no question that DNA test results which exclude Mr. Alley and show that male DNA from the underwear that the perpetrator left at the scene matches skin cells/blood or semen from the stick that the perpetrator broke off a tree, sharpened into a weapon, inserted in the victim's vagina and used to kill here, and saliva on the victim's shirt/bra, would, in the words of the Court of Criminal Appeals, "undermine confidence in the outcome of the prosecution" or "have created a reasonable doubt in the mind of one or more jurors."
As stated previously, in evaluating whether an applicant for testing has met the "reasonable probability" requirement, the post-conviction court is required to "assume that DNA testing will reveal exculpatory evidence." Shuttle v. State, No. E2003-00131-CCA-R3-PC, 2004 Tenn. Crim. App. LEXIS 80, at *14. In cases, such as Mr. Alley's, where there are a number of items of relevant evidence, as a matter of law and scientific fact, favorable results necessarily include redundant results, meaning results which show the same genetic profile on a number of items of crime scene evidence. Kyles v. Whitley, 514 U.S. 419 (1995) (holding for purposes of Brady materiality, the "cumulative effect" of all evidence must be considered rather than considering each item of evidence individually); See also State v. Peterson, 364 N.J. Super. 387 (App.Div. 2003) (reasoning under New Jersey's post-conviction DNA testing statute, which is similar to § 40-30-304, that "because it is difficult to anticipate what results DNA testing may produce in advance of actual testing, the trial court should postulate whatever realistically possible test results would be most favorable to defendant in determining whether he has established that `favorable' DNA testing `would raise a reasonable probability a motion for new trial based upon newly discovered evidence would be granted'" and finding that "DNA testing could show that all of this evidence, including the hairs on the sticks found at the crime scene [semen on the victim's pants, and DNA from under her nails], had a common identifiable source other than defendant who could have had access to the victim around the time of the murder"). It is both contrary to real life experience and legal error for the lower court to have ignored the probative value of redundant DNA results.
As detailed in his Petition, Alley seeks testing on a number of probative items of crime scene evidence, including most pertinent:
Men's Underwear Found at Scene Nearby Victim's Body
Police recovered a pair of men's red bikini underwear from the crime scene, on the ground near the victim's body. It was the State's theory at trial that the red underwear belonged to the man who sexually assaulted and murdered Ms. Collins. DNA can be obtained from skin cells, sweat and/or semen on the underwear. DNA analysts routinely sample and perform testing on various areas of an item of evidence for habitual wearer DNA. As the name implies, habitual wear DNA refers to a profile obtained from various portions of an item of clothing to which establishes the DNA profile of the wearer of the item. For example, on the underwear, habitual wearer DNA would be obtained through testing the crotch and waist areas.
The tree branch/murder weapon
The assailant broke a branch off of its tree at the crime scene, cleaned it, sharpened it into a weapon, and used as a tool to kill the victim, repeatedly inserting into her vagina. (This item was found protruding from the body near the right and left thighs, which yielded a positive finding for seminal substance.) There is blood on the stick, and semen may be found on it as well. In addition, due to the significant physical contact that the assailant had with the stick there is every reason to believe it contains DNA (sweat/skin cells) from the assailant. Weapons, such as this murder weapon stick, are, similar to clothing, now considered common items of evidence for DNA testing precisely because they can contain sweat or skin cells from perpetrators. Also, recent examination of the paper which the stick was originally wrapped in has revealed an apparent blood-fluid mixture on the stick wrapping.
Victim's Shirt/Bra
Recent examination of the victim's shirt and bra has revealed biological stains on the front of the victim's shirt and bra, which could be saliva. The victim was bruised on the upper breast and it was believed that the assailant may have bitten her breast.
In its decision and order denying testing, the lower court purported to address Mr. Alley's argument that redundant results would easily satisfy the "reasonable probability" requirement. The court stated it would first "examine each item separately to determine" whether the reasonable probability requirement was met. (Order at 32). The court continued that next, it would "consider Petitioner' argument that redundant DNA would result in overwhelming exculpatory evidence to the point that petitioner would not have been prosecuted or convicted." (Order at 32). While the court did go on to entitle a section of its opinion "REDUNDANT DNA" (Order at 46-48), absent from this section is any meaningful discussion of redundant results. In fact, the court conflated Mr. Alley's arguments about establishing third party guilt (through CODIS or a match to the victim's boyfriend) with his argument regarding redundant results; the court's "REDUNDANT DNA" section deals almost exclusively with third party guilt arguments. The court addresses redundant results in a few lines, simply characterizing the argument as "unpersuasive" and stating: ". . . this court once again notes that the victim lived in a marine barracks and had a very regimented schedule. She likely came into contact with the same people on a daily basis; thus, multiple deposits of biological material like hairs would not be uncommon [sic]". (Order at 48). This is just nonsensical; certainly, a jury hearing the evidence in this case would reject such an argument and Mr. Alley would not have been convicted. No one but the true killer could have reasonably deposited skin cells on the underwear that the perpetrator left at the scene and skin cells/blood on the branch which was pulled off a tree at the scene, made into a weapon, and used to murder the victim, and saliva on her shirt/bra.
As recognized by modern crime scene investigators, in the context of DNA investigations, redundant results (DNA test results that establish the same genetic profile on a number of probative items of evidence, such as from a victim's body, evidence used in the attack, and/or left at a crime scene) are often key to establishing the identity of the perpetrator of a crime. Redundant results have served as the basis for several post-conviction DNA exonerations. Michael A. Fuoco, DNA Test Said to Clear Death Row Inmate Jailed 21 Years in Rape, Murder Case, POST-GAZETTE, July 29, 2003 (Nicholas Yarris was exonerated after twenty-one years on death row in Pennsylvania prisons for a 1981 abduction, rape and murder that redundant DNA test results later proved he did not commit; the DNA results established that Yarris was not the donor of semen found on the victim's underwear, the DNA profile of which was consistent with DNA from skin cells found under her fingernails and in gloves believed to have been worn by the killer, thus, demonstrating that the semen did not simply come from a consensual sex partner and did in fact belong to the killer); profile of Calvin Willis at http//www.innocenceproject.org (after twenty-two years in prison for rape in Louisiana, Calvin Willis was exonerated by DNA testing that showed that there was male DNA underneath the victim's fingernails which matched DNA on a pair of men's underwear that the assailant left at the crime scene); Jonathan Saltzman and Mac Daniel, Man Freed in 1997 Shooting of Officer Judge Gives Ruling After Fingerprint Revelation, BOSTON GLOBE, January 24, 2004 (Cowans, who was convicted of shooting a police officer in 1997, based on officers' identification and partial print match, was exonerated after DNA testing excluded him as the source of DNA on evidence the assailant left at or near the crime scene, including "sweat from the brim of a baseball cap," a sweatshirt, and "saliva from the rim of a glass mug . . . used by the assailant"; a new trial was granted based on the DNA test results, but the charges were dismissed after State reviewed prints and found a non-match).
In a similar fashion, Larry Peterson was recently exonerated based on redundant post-conviction DNA test results. Similar to Alley's case, the victim in Peterson's case had been sexually assaulted and murdered; her partially clothed body was found in a wooded area and a stick had been inserted into her vagina. See State v. Peterson, 364 N.J. Super. 387, 397 (App.Div. 2003). Peterson was convicted of the crime based primarily on the testimony of four individuals who claimed that he confessed (and these alleged confessions contained non public details of the crime) as well as testimony from a state's forensic expert that seven hairs from the victim's body and a stick, which was used as a weapon and found at the scene, were microscopic "matches" to Peterson. Id. While the results of testing on each piece of evidence alone may not have been sufficient to undermine his conviction and show innocence, the Appellate Division of New Jersey granted testing, holding that "DNA testing could show that defendant was not the source of the semen found on the outside of the victim's pants, the blood under her fingernails or of the hairs discovered on and near the body that [the State's expert] testified had the same characteristics as defendant's hair. In addition, DNA testing could show that all of this evidence, including the hairs on the sticks found at the crime scene, had a common identifiable source other than defendant who could have had access to the victim around the time of the murder" and that "DNA test results that not only tended to exculpate defendant but to implicate someone else would be evidence' of the sort that would probably change the jury's verdict if a new trial were granted.'" State v. Peterson, 364 N.J. Super. at 398. DNA testing was ordered and, in the post-conviction re-examination, additional, critical semen evidence was identified which had been completely overlooked in the original examination — there was sperm on every body orifice swab from the victim. The post-conviction DNA results showed that the hairs that had been microscopically matched to Peterson actually belonged to the victim. The DNA also showed that sperm from the victim's mouth and vagina came from an unknown man and this same man's DNA was found underneath the victim's fingernails. Based on these redundant results, Peterson's conviction was vacated and the charges against him dismissed. See Maurice Possley, Convict Seeks New Trial on Basis of Flawed Hair Analysis, CHI. TRIB., Jul. 29, 2005; Laura Mansnerus, Case Dropped Against New Jersey Man After 18 Years, N.Y. Times, May 27, 2006.
In the instant case, the lower court erroneously evaluated the probative value of the evidence only by considering each item in isolation. The court dismissed DNA results showing skin cells, blood and/or hair originate from a man other than Alley on the stick that the perpetrator broke off a tree, sharpened as a weapon and used to kill the victim, reasoning, "given that the limb was taken from a public park" arguments about its probative value lack merit. (Order 28-29). The court acknowledged that "arguably had semen not belonging to the defendant been found on the limb, the question becomes a more difficult one . . ." but ultimately ruled such a result would also be lacking in probative value based on the fact that Alley's confession (which contradicted by several aspects of physical evidence) does not include mention penile penetration. (Of course, this is no way means that the assailant did not penetrate the victim with his penis as well. In fact, the State at trial left open this possibility, suggesting to the jury while penile penetration could not be proven, it was certainly possible.) The lower court also hypothesized that any such semen could just have come to be on the stick from transfer from a previous act of consensual sex. (Order at 29).
The lower court also used consensual sex as a rationale for why it believed that saliva, from a man other than Alley, on the victim's bra and shirt would not be probative. (Order at 38). The court stated that it gave "considerable weight to the potential effect on the jury that exculpatory results might have with regard to [the underwear]" left by the assailant at the scene." (Order at 33). The court ruled, "However, given the overwhelming evidence against the defendant and the fact that the state never specifically tied the underwear to the defendant at trial" the court ruled petitioner failed to establish reasonable probability. (Order at 33-34). Again, the court's ruling is confused. While the state did not directly link the underwear to Alley at trial, the state unequivocally argued that the underwear belonged to the assailant and were left by him at the scene.
In sum, in evaluating the evidence item by item the court reasoned that particular evidence would not be probative because the victim was murdered in a public place and theoretically she could have had consensual sex prior to her murder. However, these facts/possibilities do nothing to undermine the significance of redundant results — no one but the true killer could have reasonably deposited skin cells on the underwear that the perpetrator left at the scene and skin cells/blood on the branch, and saliva on her shirt/bra.
B. The Lower Court's Reasonable Probability Analysis Is Flawed — Not Only Because The Court Analyzed The Items Of Evidence Primarily In Isolation And Failed To Consider Redundant Results — But Also Because It Improperly Bases The Reasonable Probability Requirement On The Strength Of The State's Case And Turns A Blind Eye To The Probative Value Of The Evidence Sought To Be Tested
This Court has made clear that the determination of whether a particular case meets the reasonable probability standard is not based on the type of evidence that was used to obtain the conviction, nor on the strength of the state's case. What is decisive under the reasonable probability test is the probative value of the evidence sought to be tested or, in other words, the significance that exculpatory DNA test results would have in the case. Shuttle v. State, 2004 Tenn. Crim. App. LEXIS 80; State v. Brown, 2003 Tenn. Crim. App. LEXIS 528; Saine v. State, No. W2002-03006-CCA-R3-PC, 2003 Tenn. Crim. App. LEXIS 1135 (Tenn.Crim.App. Dec. 15, 2003); Haddox v. State, 2004 WL 2544668.
In Haddox, this Court reversed a lower court's denial of a defendant's request for DNA testing of a baseball cap that the perpetrator of the murder for which he was convicted left at the crime scene and which, like the underwear in Alley's case, was found near the murder victim's body. In granting testing of the baseball cap, the Court of Criminal Appeals rejected the State's arguments that Haddox should be denied testing because the absence of his DNA on the baseball cap would not exclude him as the perpetrator since "he could have worn the cap without leaving traces of his DNA" and the presence of someone else's DNA on the baseball cap would merely indicate that some other person, "at some time, had come in contact with the cap." This Court ruled:
While the lack of the Petitioner's DNA on the cap would not conclusively exclude him from being present and committing the crime, and the presence of another person's DNA would not necessarily mean that another person wore the cap during the commission of the crime, the statute specifically requires that DNA analysis be conducted if a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis. See Tenn. Code Ann. § 40-30-304(1). While exculpatory results from DNA analysis of the red cap may not have resulted in a reasonable probability that the Petitioner would not have been prosecuted, we conclude that such results would have resulted in a reasonable probability that the Petitioner would not have been convicted. The proper analysis for the trial court under the DNA Analysis Act necessarily includes a consideration of the effect on the jury of evidence showing that Petitioner's DNA was not present on the baseball cap that was worn by the perpetrator and recovered at the crime scene. In this regard, there is at least a reasonable probability that the Petitioner would not have been convicted if the jury was presented evidence that a DNA analysis if the red baseball cap worn by the perpetrator indicated that no DNA from Petitioner is present in or on the red baseball cap.
Id. at 5. The underwear in Alley's case are of equal probative value as the baseball cap in Haddox, both are items of clothing alleged to have been used by the perpetrator and left at the crime scene, recovered nearby the murder victim's body. The lower court erred in finding Haddox distinguishable an uninformative because Alley gave police a confession and "multiple courts have described the evidence against Alley as `overwhelming'." (Order at 21). The probative value of the evidence — underwear that the state argued at trial the perpetrator wore to the scene and left by the murder victim's body — and the ability of DNA to identify the person who used the clothing — is no less because the evidence of guilt consists of a confession or is overwhelming.
In fact, Shuttle makes clear that DNA testing is warranted even where the proof of guilt is strong, such as where the defendant testified under oath as to his involvement in the crime. Shuttle, who was convicted of murder, filed a petition under the Act, requesting DNA testing of blood from underneath the murder victim's fingernails and blood that was found on his jeans. The post-conviction court denied Shuttle's petition for testing because he had testified at trial that he killed the victim. The court reasoned that, because of his trial testimony, the results of DNA testing would not be dispositive and thus the defendant failed to establish that a reasonable probability existed that he would not have been prosecuted or convicted had exculpatory DNA evidence been obtained. Id. at *9. However, the Court of Criminal Appeals reversed, "conclud[ing] Judge Tipton's analysis applies to the case at bar, which involves a petitioner who essentially contends he was wrongly convicted at trial where he gave false incriminating testimony." Id. at *14. Noting that for purposes of the Act, the court "must assume that DNA testing will reveal exculpatory evidence," Id. at *14, the Court of Criminal Appeals ruled that TENN. CODE ANN. § 40-30-304(1) (2003) was met. The court explained that if DNA testing showed that the source of the blood samples was neither the victim nor the Petitioner, then:
the test results would be inconsistent with the state's theory at trial, inconsistent with the petitioner's trial testimony [where he admitted to killing the victim], consistent with the petitioner's first statement to his trial counsel [where he asserted his innocence], and consistent with the petitioner's latest testimony [at the evidentiary hearing for the post-conviction motion under the Act]. Thus, we conclude the petitioner has established a reasonable probability that he would not have been prosecuted or convicted if exculpatory DNA evidence had been obtained.
Shuttle, 2004 Tenn. Crim. App. LEXIS 80, at *15; A. 270 (Citations Omitted).
Under the court's ruling in Shuttle, there can be no question that testing is required in Alley's case. Where there is probative items of evidence to test, the reasonable probability requirement test can be met regardless of whether the evidence at guilt at trial included an under oath admission of guilt by the defendant. For good reason, many of the DNA exonerations have involved evidence of guilt against the innocent that prior to DNA testing was correctly described as "overwhelming." See e.g.,Godschalk v. Montgomery County District Attorney's Office, 177 F. Supp. 2d 366, 368-70 (E.D. Pa. 2001) (in case where defendant gave detailed confessions to two rapes, which included over a dozen non-public details of the crime, court employed the standards set out by the Supreme Court in Brady and Bagley to evaluate whether a prosecutor's refusal to release biological evidence for post-conviction DNA testing violated federal due process, finding "if by some chance no matter how remote, DNA testing on the biological evidence excludes plaintiff . . . a jury would have to weigh this result against plaintiff's uncoerced detailed confessions to the rapes. While plaintiff's detailed confessions to the rapes are powerful inculpatory evidence, so too any DNA testing that would exclude plaintiff as the source of the genetic material taken from the victims would be powerful exculpatory evidence. Such contradictive results could well raise reasonable doubts in the minds of jurors as to plaintiff's guilt. Given the well-known powerful exculpatory effect of DNA testing, confidence in the jury's finding of guilt at his trial, where such evidence was not considered, would be undermined.").
In its reading of Saine v. State No. W2002-03006-CCA-R3-PC, 2003 Tenn. Crim. App. LEXIS 1135 (Tenn.Crim.App. Dec. 15, 2003), the lower court overlooked the critical fact that the rape defendant in Saine was, in part, denied testing of the victim's underwear because of the questionable probative value of the evidence; there was never any claim that the victim had worn the panties in connection with the rape. The court, therefore, ruled "the petitioner failed to establish that `a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis.'" Id. at *11-12; (quoting Tenn. Code Ann. § 40-30-404(1) (Supp. 2001). In Shuttle, in reversing the post-conviction court's denial of Shuttle's petition for DNA analysis, the court distinguished that case from Saine, stating:
[W]hile the evidence to be tested in Carl E. Saine could not be directly linked to the rape, the record in [Shuttle] indicates the evidence [which consisted of blood underneath the victim's fingernails and blood on the petitioner's jeans] to be tested will likely be linked to the commission of the offense. Therefore, if we assume DNA testing would reveal the blood underneath the victim's fingernails and on the petitioner's jeans was not the blood of the victim nor the petitioner, the petitioner has shown a reasonable probability that he would not have been prosecuted or convicted with this favorable DNA evidence.
2004 Tenn. Crim. App. LEXIS 80, at *17.
Unlike the evidence in Saine and similar to the evidence in Shuttle and Haddox, the evidence in Alley — the underwear and stick — are clearly "linked to the commission of the crime." DNA testing is capable of showing that DNA (sweat, skin cells, semen, and/or blood) on the men's underwear from the scene, on the stick that the assailant used as a weapon, and other crime scene evidence comes from the same man, someone other than Sedley Alley. The lower court was required to presume these results, that DNA from all of this evidence does comes not from Sedley Alley, but from someone else. One easily sees that Sedley Alley would never have been prosecuted or convicted if skin cells, hair, blood on the stick comes from the same person whose DNA is on the underwear and who saliva is on the victim's shirt. Certainly, such results would create a reasonable probability that Mr. Alley would not have been prosecuted or convicted. In the words of the appellate courts such results would undermine confidence in the verdict or "would have created a reasonable doubt in the mind of one or more jurors."
Opinions from our sister state of Florida confirm the clear error in the trial court's application of the "reasonable probability" standard here. For example, in Swafford v. State, 871 So.2d 874 (Fla. 2004), the Florida Supreme Court remanded for post-conviction DNA testing of available evidence in capital case. In Ortiz v. State, 884 So.2d 70 (Fla.App. 2004), the court of appeals specifically ordered DNA testing in a sexual assault case because Ortiz maintained that DNA found on swabs and the victim's clothing came from someone other than him. As the court recognized, if someone else's DNA was found on such swabs "we cannot say there is no reasonable probability that the jury would have reached a different verdict if presented with DNA evidence that excluded Ortiz." Id. at 71. Exactly as in Ortiz, "DNA evidence that exclude[s]" Alley, if found on the numerous items of evidence at issue, establishes a reasonable probability that he would not have been prosecuted, convicted, or sentenced to death.
The Florida Court of Appeals reached a similar conclusion inSchofield v. State, 861 So.2d 1244 (Fla.App. 2003), which involved a homicide. In that case, as here, where the victim struggled with her assailant, the court of appeals recognized that if DNA from fingernail scrapings and hairs from murder scene did not match Schofield, there was a reasonable probability that petitioner would not have been convicted.
Similarly, in Riley v. State, 851 So.2d 811 (Fla.App. 2003), the trial court (much like the trial court here) denied DNA testing of bloodstained clothing from the crime scene and Riley's apartment, contending that "the testing would not exonerate Riley" because "there was an abundance of other evidence against Riley." Id. at 812. The Court of Appeals reversed and ordered further proceedings, recognizing — exactly as Alley has argued here — that proof of DNA from a third party would establish innocence. Further, the Court of Appeals also properly acknowledged the unreliability of evidence used against Riley, which, in conjunction with exculpatory DNA tests, could mean that Riley was, in fact, innocent. As in Riley, the trial court here erroneously failed to appreciate the potential for exoneration arising from third-party DNA on relevant evidence, while ignoring the unreliability of evidence used against Alley, including the "confession," which even the Tennessee Supreme Court acknowledges lacks reliability.
Again, in Hampton v. State, 924 So.2d 34 (Fla.App. 2006), the trial court denied DNA testing in a sexual assault case, relying on its belief that "an exclusionary DNA test result would not exonerate the defendant," notwithstanding Hampton's assertion that he would be exonerated if DNA profiles from semen recovered from the crime excluded him. On appeal, the Court of Appeals reversed, concluding that if DNA tests revealed DNA profiles "none of which matched the defendant, then such evidence could exonerate the defendant." The court thus remanded for further proceedings. See also Carter v. State, 913 So.2d 701 (Fla.App. 2005) (rejecting trial court's assertion that exculpatory DNA tests would not exonerate petitioner, and remanding for further proceedings); Block v. State, 885 So.2d 993 (Fla.App. 2004) (adopting defendant's theory that if DNA proved that particular knife did not cause victim's injury, defendant might be able to reduce conviction to lesser offense, and remanding for further proceedings).
All of these Florida cases make manifest that the trial court erred by failing to find a reasonable probability of a different outcome if DNA from a third party — not from Alley — is identified on the numerous items of evidence recovered at the crime scene. Just as the Florida Court Of Appeals reversed all of these cases, this Court is compelled to reverse here, because DNA evidence from a third party on the evidence does, in fact, exonerate Sedley Alley: It creates a reasonable probability that he would not have been prosecuted, convicted, or sentenced to death were it known that someone else's male DNA — not Alley's — was strewn all over the crime scene.
While reversal is required because the trial court misapplied the "reasonable probability" standard, reversal is also required, because when rejecting Alley's motion for DNA testing, the trial court speculated — with absolutely no proof in the record — that DNA from the victim's boyfriend came from a consensual encounter. The clear problem with this conclusion is that there is no proof to support such a factual assertion. No one can contend otherwise, and in fact, evidence which would have been presented at a hearing would have shown the exact opposite: The victim was not sexually active, as the trial court now claims. See Notice Of Filing, Affidavit of April Higuera (victim was not unchaste, as the trial court now claims), Apx. 447-448. Moreover, the trial court never explains how the boyfriend's or someone else's DNA on the red underwear at the scene — argued by the state as being the assailant's underwear — wouldn't exonerate Alley. Of course it would: The DNA in the underwear comes from the killer.
Ultimately, the trial court's reliance on unsupported speculation to deny DNA testing was manifestly in error: It runs afoul of the Tennessee Supreme Court's ruling in Griffin v. State, 182 S.W.3d 795 (Tenn. 2006), which holds that DNA testing may not be denied under Tennessee's Post-Conviction DNA Analysis Act based on alleged "facts" when there is "no . . . evidence in the record to support" such "facts." Id. at 800 (reversing denial of DNA testing where trial court findings had no support in the record).
To reiterate: There is no evidence that the victim had a consensual sexual encounter with her boyfriend before she was killed, and evidence presented at a hearing would have shown the exact opposite. The trial court therefore made a manifest error in denying DNA testing based upon nothing more than pure speculation. There is also no explanation in the record how a third party's DNA all over the crime scene fails to exonerate Alley. Under Griffin, the trial court's denial of testing based on nothing more than speculation cannot stand. See also Carter v. State, 913 So.2d 701 (Fla.App. 2005) (trial court erroneously denied DNA petition by adopting state's theory, unsupported by any proof in the record, that blood which petitioner claimed was testable and from assailant, supposedly came from the victim herself); Borland v. State, 848 So.2d 1288, 1289 (Fla.App. 2003) (error for court reviewing DNA petition to deny testing based on anything less than sworn evidence).
IV. Sedley Alley Was Improperly Denied An Evidentiary Hearing Before An Impartial Adjudicator: The DNA Petition Should Be Remanded For An Evidentiary Hearing Before An Impartial Judge
Finally, Sedley Alley was denied fundamental procedural rights through the trial court's dismissal of his petition without an evidentiary hearing. He was: (1) denied his right to an evidentiary hearing on his petition; (2) denied that right by a judge who was not completely impartial; and (3) denied fair process on his request to determine the existence of additional items of evidence suitable for DNA testing. This Court should reverse the judgment below and remand for a full evidentiary hearing before an impartial adjudicator.
A. The Trial Court Improperly Denied Sedley Alley An Evidentiary Hearing To Enable Him To Establish His Entitlement To DNA Testing Under Tennessee Law
As this Court has repeatedly stated: "In determining whether to grant or deny a post-conviction petition for DNA analysis, the trial court must consider all the available evidence. . . ."Jones v. State, 2004 Tenn.Crim.App.Lexis 1069, p. *15 (emphasis supplied); Ensley v. State, 2003 Tenn.Crim.App.Lexis 335. Because the trial court not only failed to conduct an evidentiary hearing but even refused to allow a complete offer of proof, Sedley Alley's case must be remanded for further proceedings.
1. In A DNA Case, An Evidentiary Hearing Is Required Where The Petitioner Has Made A Prima Facie Showing Of Entitlement To Testing In His Petition
As the Tennessee Supreme Court explained when reversing a lower courts' failure to conduct an evidentiary hearing on a DNA petition: "[F]indings of fact upon which rights are granted or denied are best made following an evidentiary hearing." Griffin v. State, 182 S.W.3d 795, 800 (Tenn. 2006). Where, as here, the DNA petition establishes a prima facie case for DNA testing "to instigate a factual assessment" whether the statutory criteria are met (Ensley v. State, 2003 Tenn.Crim.App.Lexis 335, p. *11), the trial court must make a "factual finding about the existence of the statutory criteria." Id., p. *12. In other words, where the petition presents a prima facie case for DNA testing, Griffin and Ensley establish two related propositions: A factual inquiry must be undertaken, and that inquiry requires an evidentiary hearing.
In fact, this Court has itself repeatedly acknowledged that a petition may be dismissed summarily (i.e., without any factual inquiry) only if "it is apparent that each prerequisite [under the statute] cannot be established." See Buford v. State, 2003 Tenn.Crim.App.Lexis 370. It is "[o]nly when the trial judge may conclusively find from the contents of the petition that the petitioner is not entitled to relief' that a summary dismissal without a hearing is appropriate. Ensley v. State, supra, p. *12 (emphasis supplied).
2. Sedley Alley Is Entitled To A Remand For An Evidentiary Hearing On His Entitlement To DNA Testing Under Tennessee Law
Sedley Alley is entitled to an evidentiary hearing under Griffin. In Griffin, the trial court dismissed the petitioner's request for DNA analysis without conducting an evidentiary hearing to allow Griffin to establish that he was entitled to DNA testing under the four-prong test of Tenn. Code Ann. § 40-30-304(1)-(4) or § 40-30-305(1)-(4). Griffin, 182 S.W.3d at 797. As noted supra, the Tennessee Supreme Court held that "findings of fact upon which rights are granted or denied are best made following an evidentiary hearing." Id. at 800. Thus, where it was not apparent from the face of the record that Griffin could not obtain DNA analysis under the Act (including whether the petition was presented for the purpose of unreasonably delaying the execution of sentence), the Tennessee Supreme Court "remanded to the trial court for the purpose of conducting an evidentiary hearing to make findings of fact and conclusions of law in accordance with the Post-Conviction DNA Analysis Act of 2001." Griffin, 182 S.W.3d at 800.
Here, the trial court made the exact same error condemned by the Tennessee Supreme Court in Griffin: It denied DNA analysis but did so without conducting an evidentiary hearing to illuminate the operative facts upon which application of the Act depends. The trial court's actions in this regard were particularly egregious here where: (1) the trial court set the case for an evidentiary hearing; (2) petitioner had witnesses in the courtroom available to testify as to matters relevant to the application of the DNA Act; (3) the trial court prohibited Sedley Alley from presenting such witnesses at the hearing; and then (4) prohibited an offer of proof. This is wholly unacceptable under Griffin or under any meaningful understanding of fair process.
Indeed, as this Court explained in Jones and Ensley, a trial court considering a petition for DNA analysis "must consider all the available evidence. . . ." Jones v. State, 2004 Tenn.Crim.App.Lexis 1069, p. *15. That command was manifestly ignored by the trial court. Gary Harmor was available to testify about the existence of evidence (Tenn. Code Ann. § 40-30-304(2), 305(2)) and was available to explain how, through testing of the evidence, Sedley Alley could be exonerated under Tenn. Code Ann. § 40-30-304(1), -305(2). He was prohibited from doing so. April Higuera also had highly significant evidence — which is embraced by the Jones "all the evidence" standard — informing the court's decision about whether DNA testing would reasonably produce the lack of indictment, conviction, or death sentence.See Tenn. Code Ann. § 40-30-304(1), -305(1). To add insult to injury, after precluding the presentation of evidence which was necessary for any determination of the statutory factors of Tennessee law, the trial court even prohibited an offer of proof from available witnesses.
Then, without taking any proof (exactly as in Griffin), the trial court made a factual determination under Tenn. Code Ann. § 40-30-304(4) 305(4) that Sedley Alley's petition was not presented for the purpose of establishing innocence. This was a clear abuse of discretion. First, the trial court's conclusion simply ignores Sedley Alley's petition and supporting contentions: As Alley has made clear, after he first learned of withheld exculpatory evidence in 2004 and 2005 concerning the time of death (the victim was killed at 3:30 a.m. when Alley was known by authorities to be at home), he has been trying (and continues to try) to receive a new trial on the basis of his innocence of the offense. See e.g., Petitioner's Reply, p. 19.
The trial court, however, never took evidence on the matter and thus ignored these dispositive facts, but then crafted its own factual theory about the purpose of Sedley Alley's DNA petition and devised its own conclusion that the "sole purpose" for the petition was for unreasonable delay. As Griffin made manifest under similar circumstances, the trial court's complete lack of evidentiary process for determining the statutory question of "unreasonable delay" and its crafting its own theory without taking evidence on the question is unacceptable. Griffin is directly on point, it controls, and requires a remand on the question of unreasonable delay.
Moreover, it is already clear beyond peradventure that the petition was filed for the purpose of establishing innocence under § 40-30-304(4) 305(4). Sedley Alley is represented in this matter by the Innocence Project and Mr. Barry Scheck. In this very matter, the judge publicly praised Mr. Scheck for his "commitment toward . . . establishing innocence of people across this country (Id., p. 65, Apx. 366), for having presented "fantastic" pleadings (Id.) and provided a "great" presentation explaining how he can establish Sedley Alley's innocence through DNA testing. Id. It simply flies in the face of reality for the trial court to have then claimed that counsel — whom the judge would have given the "key to the city" for his dedication to innocence (Id., Apx. 366) — did not file the petition to establish innocence.
Moreover, the record at an evidentiary hearing (as was established before the Board of Probation and Parole) would show that the DNA testing can be accomplished in a matter of 30-60 days. This cannot be seen as involving any "unreasonable" delay of execution of sentence. Indeed, the term "unreasonable delay" in § 40-30-304(4) 305(4) clearly indicates that requests for DNA testing will require some time, which can cause some delay. It is only when a petition would result in "unreasonable" delay that it is not permitted. Where the Board of Probation and Parole acknowledged that testing should occur and that a reprieve of 30-60 days would be appropriate, one cannot say that this case involves any potential delay which is not reasonable.
It is impossible for a court to come to any fair resolution of the petition where it categorically prohibited the presentation and consideration of evidence on which application of the DNA Act depends. Griffin prohibits such a result. The case must be remanded for further proceedings. See also Collins v. State, 869 So.2d 723 (Fla.App. 2004) (remanding for evidentiary hearing on postconviction DNA petition); Schofiled v. State, 861 So.2d 1244 (Fla.App. 2003) (requiring evidentiary hearing to determine whether DNA testing could exonerate petitioner)
B. Sedley Alley Was Improperly Denied An Adjudication Of His DNA Petition By A Completely Impartial Adjudicator
One of the clear explanations for the trial judge's arbitrary actions in prohibiting the presentation of highly relevant evidence and denying even an offer of proof is apparent from the record: The judge was not completely impartial. This is not a bald accusation: It is supported by clear evidence not only that the judge prejudged the issues, but also by clear proof from a court employee showing that the judge was unfairly biased in favor of the District Attorney. See Apx. 460. Sedley Alley has been denied due process of law under the Fourteenth Amendment, as his DNA petition was decided by a judge who was not unbiased.
Perhaps most telling is the fact that after the judge denied an evidentiary hearing but heard arguments from the parties, he briefly recessed to chambers, after which he announced a ruling from the bench. Without question, that ruling was not written in the matter of minutes the judge stepped off the bench: It was clearly written before the judge ever convened the proceedings. The judge's recitation is virtually verbatim the order which the judge then issued the next day — an order which the judge stated in open court he was going to issue the day after the proceedings in open court. The judge's statement that he was to issue a written order, after which he read verbatim the order which later issued, when that order was not written during a brief recess but before the proceedings itself, makes clear that the judge had, as a matter of fact, prejudged the case. He had already made his decision before he denied a hearing and heard arguments: The judge read what he had written before the proceedings. Compare Order, pp. 1-3 (Apx. 387-389) with Transcript, pp. 79-82, Apx. 378-381.
This constitutes a fundamental violation of Sedley Alley's rights. Where a judge has decided a case against a party before ever hearing his evidence or his arguments, there is a clear appearance of impropriety, lack of impartiality, and the requirement of recusal. Alley v. State, 882 S.W.2d 810 (Tenn.Cr.App. 1994). The Tennessee Supreme Court has put it this way:
In the trial of any lawsuit the judge must be careful not to give an expression to any thought, or to infer what his opinion would be in favor or against either of the parties in the trial . . . Neither the Tennessee Constitution nor the statutory provision covers in terms the case of a judge who has already decided the controversy before he has heard it. However, such a case falls within the meaning of both, that is, of the provision in each that no judge shall preside in any case in which he may have been of counsel, or in which he may have presided in any inferior court. The purpose of these two provisions is to guard against prejudgment of the controversy.
Leighton v. Henderson, 414 S.W.2d 419, 420-421 (Tenn. 1967). Judge Higgs "already decided the controversy before he . . . heard it." His prejudgment voids his ruling, and the matter must be remanded under Leighton. In similar circumstances, the Tennessee Court of Appeals has reached a similar conclusion.See Earls v. Earls, 2001 WL 504905 (Tenn.App. 2001). As the Mississippi Supreme Court held just months ago, when a judge has "decided [an] issue prematurely" exactly as occurred here, recusal is warranted, and the matter must be remanded for consideration before a new, impartial arbiter. Mississippi United Methodist Conference v. Brown, 2006 Miss.Lexis 108 (2006).
And Judge Higgs' lack of impartiality is not simply limited to his recitation of his preordained judgment at the end of the hearing. On the very day this Court ordered briefing, counsel learned that Assistant District Attorney Campbell went to Judge Higgs (without notice to Alley's counsel) to get him to enter an order striking Alley's notice concerning the testimony of April Higuera. The impropriety in this situation is confirmed by the fact that the order striking Alley's notice uses the exact caption typeface and lettering used by the District Attorney in his pleadings and not the typeface and caption used by the trial court when issuing previous orders. The judge's order was prepared by the District Attorney and presented to the judge ex parte.
The same judge and district attorney engaged in identical conduct in the case of Howell v. State, No. W2005-02214-CCA-R9-PD, in which the Assistant District Attorney prepared (after an ex parte discussion with the judge) an order denying post-conviction relief which the judge then signed. The improper ex parte communication between the judge and the Assistant District Attorney was revealed in that case as it has here, where it was apparent from the face of the judge's order that the order had been prepared by the District Attorney's Office: Indeed, the judge's order contained the identical typographical errors contained in the state's response to the petition.
When a judge engages in such ex parte contact with a party, there is an appearance of impropriety which warrants recusal.State v. Cash, 867 S.W.2d at 749 (ordering recusal based on appearance of impropriety, based in part on ex parte contact between the judge and prosecutor). In fact, the Supreme Court of Florida has ordered recusal in similar circumstances, in which a trial court ex parte asked the prosecutor to draft his proposed order in a capital case. See Roberts v. State, 840 So.2d 962, 968-969 (Fla. 2002). See also State v. Riechmann, 777 So.2d 342 (Fla. 2000). As the Supreme Court explained in Roberts:
The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal. The impartiality of the trial judge must be beyond question.
Roberts, 840 So.2d at 969, quoting Rose v. State, 601 So.2d 1181, 1183 (Fla. 1992). See also Disciplinary Action Against Judge For Engaging In Ex Parte Communication With Attorney, Party, Or Witness, 82 A.L.R.4th 567.
Because the trial judge prejudged the case and engaged in conduct establishing an appearance of impropriety, Sedley Alley is, under the due process clause of the Fourteenth Amendment, the Tennessee Constitution, and Tennessee law, entitled to a remand for consideration of his petition before a new, neutral arbiter.
C. Sedley Alley Is Entitled To A Remand On The Question Of The Existence Of Additional Samples Which Can Be Subject To DNA Analysis
The trial court also erroneously concluded that additional evidence from the UT Toxicology Lab and/or the Shelby County Morgue did not exist.
Even if a post-conviction court need not conduct a live evidentiary hearing concerning the existence of evidence under Tenn. Code Ann. § 40-30-304(2) or -305(2), a court must at least have before it sworn testimony based on personal knowledge.Compare Buford v. State, 2003 Tenn.Crim.App.Lexis 370 (state presented sworn affidavits concerning non-existence of evidence). That has not occurred here. Without allowing Petitioner discovery to establish the existence vel non of evidence once in the possession of the UT Toxicology Lab and/or the morgue, the trial court concluded that the evidence in question did not exist, given hearsay statements made by the prosecutor on issues for the which the prosecutor has absolutely no personal knowledge.
As the Supreme Court explained in Griffin, such "factfinding" is not factfinding at all. Moreover, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Tenn.R.Evid. 602; State v. Powers, 101 S.W.3d 383, 413 (Tenn. 2003). The Assistant District Attorney has no personal knowledge whether various items of evidence exist: He only presented hearsay to the trial court.
Under these circumstances, a remand for a full hearing on this question is likewise mandated — especially where Sedley Alley presented an affidavit indicating the possible existence of evidence in issue. See Apx. 227-232. As the Florida Court of Appeals has emphasized, "A finding by the trial court that DNA does or does not exist is a factual determination. In making factual determinations, a trial court can consider only sworn evidence." Borland v. State, 848 So.2d 1288, 1289 (Fla.App. 2003). Here, however, the trial court did just the opposite: It made a factual determination based on unsworn hearsay. Such factfinding was fatally defective and cannot stand. The matter must be remanded. See also Thompson v. State, 922 So.2d 383 (Fla.App. 2006) (question of existence of evidence for DNA testing must be resolved by evidentiary hearing); Marsh v. State, 852 So.2d 945 (Fla.App. 2003) (same).
D. The Case Must Be Remanded To The Trial Court For An Evidentiary Hearing Before A Neutral And Unbiased Judge
All told, the trial court failed to hold an evidentiary hearing to consider all the evidence as required by Griffin, It ignored the Innocence Project's presentation of this case to establish innocence. The trial court prejudged the case, as is evident from the judge's reading of an order which was prepared before the hearing; the judge was also biased and not impartial, and acted in concert with the District Attorney's office ex parte and behind Sedley Alley's back. The judge decided a disputed factual matter by crediting the nonsworn statement of someone who lacked personal knowledge concerning the actual existence of evidence. The matter must, at a minimum, be remanded for further proceedings.
CONCLUSION
There is already abundant proof that Sedley Alley did not commit the offenses for which he was convicted and for which he stands condemned. Sedley Alley is entitled to DNA testing to establish his innocence. The trial court's denial of DNA testing is fraught with substantive and procedural errors. DNA testing should be ordered, and/or the matter remanded.
Respectfully Submitted,
Barry C. Scheck Vanessa Potkin Colin Starger The INNOCENCE PROJECT 100 5th Avenue, 3rd Floor New York, NY 10011 (212) 364-5359 FAX (212) 364-5341
Paul R. Bottei #17036 Kelley J. Henry, #21113 Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265
Appendix 3 Appellant's Supplemental Brief Alley v. State, No. W 2006-01179-CCA-R3-PD
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE WESTERN DIVISION AT JACKSON
SEDLEY ALLEY, ) ) Petitioner-Appellant, ) No. W2006-01179-CCA-R3-PD ) v. ) Capital Case ) STATE OF TENNESSEE, ) ) Respondent-Appellee )
SUPPLEMENTAL BRIEF OF APPELLANT SEDLEY ALLEY
Barry C. Scheck Vanessa Potkin Colin Starger The INNOCENCE PROJECT 100 5th Avenue, 3rd Floor New York, NY 10011 (212) 364-5359 FAX (212) 364-5341
Paul R. Bottei #17036 Kelley J. Henry, #21113 Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265
House v. Bell House House Schlup A Fortiori House House TABLE OF AUTHORITIES FEDERAL CASES House v. Bell Schlup v. Delo 513 U.S. 298 Strickland v. Washington 466 U.S. 668 STATE CASES Haddox v. State Jones v. State STATE STATUTES 40-30-304 40-30-305
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................... ii I. , 547 U.S. ___ (2006) Confirms Sedley Alley's Entitlement To The DNA Evidence ......................................................... 1 A. This Court Must Consider All Relevant Evidence When Applying The Reasonable Probability Standard ................................ 2 B. Confirms Sedley Alley's Entitlement To The DNA Evidence Because Alley's Case For Innocence Based On Favorable DNA Results Is Exponentially Greater Than House's Case For Innocence . . . 3 1. Applied A Higher Standard For Innocence Than The Lesser "Reasonable Probability" Standard Demanded By Tennessee's Post-Conviction DNA Analysis Act ............................................... 3 2. House Satisfied The Standard With Proof Of Innocence Less Compelling Than Proof Of Sedley Alley's Innocence Arising From Exculpatory DNA Results: , Sedley Alley Is Entitled To Release Of The Evidence Under The Less Demanding "Reasonable Probability" Standard ........................................... 4 a. All Reasonable Jurors Would Acquit House ..................... 5 b. Sedley Alley Presents A Stronger Case Than House: Alley's Case Is A Case Of Conclusive Exoneration With Exculpatory DNA Tests, Especially Compared To , And It Is Unquestionable After That Sedley Alley Meets The Reasonable Probability Test .................................. 8 CONCLUSION .............................................................. 13 CERTIFICATE OF SERVICE ................................................... , 547 U.S. at ___, 2006 U.S. LEXIS 4675 (2006) .........passim , (1995)...................................... 3 , (1984) ......................... 4, 5 , 2004 Tenn. Crim. App. LEXIS 991 ...................... 2, 4 , 2004 Tenn. Crim. App. LEXIS 1069 ......................... 2 Tenn. Code Ann. § (1) ............................................... 2, 4 Tenn. Code Ann. § (1) ............................................... 2, 4 Appellant Sedley Alley respectfully files this supplemental brief discussing the impact of the United States Supreme Court's recent decision in House v. Bell, 547 U.S. ___, 2006 U.S.Lexis 4675 (2006). The reasoning and analysis in House make clear that, under the "reasonable probability" standard applicable to Sedley Alley's DNA petition, Sedley Alley is entitled to release of the requested evidence because: (1) his showing of actual innocence through DNA and other evidence is even stronger than House's; and (2) House was found to satisfy an evidentiary standard much higher than the "reasonable probability" standard which governs this appeal. A fortiori, where House wins, Sedley Alley must win as well — especially where Alley, unlike House, has uncontroverted evidence establishing alibi, and like House, has identified the person who DNA would show to be the likely killer. While House's case "is not a case of conclusive exoneration" (Id., 547 U.S. at ___, 2006 U.S.Lexis 4675, p. *62-63), Sedley Alley's would be such a case for "conclusive exoneration" given exculpatory DNA results.I. House v. Bell, 547 U.S. ___ (2006) Confirms Sedley Alley's Entitlement To The DNA Evidence
House is significant to this appeal for multiple reasons. First, House confirms Tennessee law that the determination whether a petitioner meets the standards of the DNA Act requires a consideration of all available evidence, including that uncovered post-conviction. Second, comparing the facts that led to granting of relief in House with the facts before this Court confirms that Sedley Alley is entitled to release of the evidence applying the "reasonable probability" standard. Evaluating all the evidence, Alley's case for innocence based on the presumed exculpatory DNA evidence is markedly stronger than House's.
A. This Court Must Consider All Relevant Evidence When Applying The Reasonable Probability Standard
As noted by Sedley Alley in his opening brief, when applying the "reasonable probability" standards of Tenn. Code Ann. §§ 40-30-304(1) 305(1), a reviewing court "must consider all the available evidence. . . ." Jones v. State, 2004 Tenn.Crim.App.Lexis 1069, p. *15. See Appellant's Brief, p. 49. House confirms the reasoning and wisdom behind this rule. Simply put, when the inquiry is one concerning the possibility of innocence, a reviewing court must not artificially limit its inquiry by failing to consider relevant evidence of innocence. As the Supreme Court explained in House, to make a determination whether a federal habeas corpus petitioner has made a sufficient showing of actual innocence, a reviewing court "must consider all the evidence, old and new. . . ." House, 547 U.S. at ___, 2006 U.S.Lexis 4765, p. *35. This is because any assessment of innocence requires "a holistic judgment about all the evidence . . . and its likely effect on reasonable jurors applying the reasonable-doubt standard." Id., p. *39. Clearly, this holistic concern for innocence is mirrored in Tennessee law, which requires a determination whether there is a "reasonable probability that exculpatory results from a DNA analysis . . . would have created a reasonable doubt in the mind of one or more jurors." Haddox v. State, 2004 Tenn.Crim.App.Lexis 991, p. *17.
House thus confirms the foundational principles underlying this appeal: Assessing a claim of innocence requires a holistic assessment as seen through the eyes of a reasonable juror. Such a holistic approach would mandate consideration of redundant DNA results on multiple items of evidence. That same holistic approach would further require acknowledgment of the possibility of proving third-party guilt through a database match.
Sedley Alley is therefore entitled to the requested DNA evidence because there is a reasonable probability that at least one reasonable juror would have voted to acquit had he or she learned that all of the DNA found at the crime scene (including on the assailant's red underwear, the victim's shirt, the stick, the fluid stained grass from beneath the vaginal area, the victim's bra, and other evidence) excludes Sedley Alley, but was deposited by John Borup or some other discrete individual. Clearly, one reasonable juror would have acquitted Alley had he or she known that the DNA all over the crime scene excludes Alley (as this Court must presume), but identifies someone else as the killer. See e.g., Appellant's Brief, pp. 30-46.
B. House Confirms Sedley Alley's Entitlement To The DNA Evidence Because Alley's Case For Innocence Based On Favorable DNA Results Is Exponentially Greater Than House's Case For Innocence
House is also significant here, because while House satisfied an even more stringent standard than the "reasonable probability" standard governing this proceeding, Alley's evidence of innocence is significantly stronger than House's, assuming (as this Court must) exculpatory DNA results. Indeed, the Supreme Court made clear that House's case "is not a case of conclusive exoneration." House, 2006 U.S.Lexis 4765, p. *62-63. Here, however, with favorable DNA results, Sedley Alley's case is both "a case of conclusive exoneration" (Id.) and, a fortiori, a case involving a reasonable probability of an acquittal under Tenn. Code Ann. § 40-30-304(1) 305(1).
1. House Applied A Higher Standard For Innocence Than The Lesser "Reasonable Probability" Standard Demanded By Tennessee's Post-Conviction DNA Analysis Act
In House, the Supreme Court applied an extremely stringent test for establishing innocence, the test of Schlup v. Delo, 513 U.S. 298 (1995). Under House, to show innocence, a petitioner must show that it is "more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt — or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt." House, 2006 U.S.Lexis 4675, p. *37. In other words, under this standard, proof of innocence must be so strong that every reasonable juror would have a reasonable doubt about a party's guilt.
Without question, the standard applied in House is much more demanding than the reasonable probability test of Tenn. Code Ann. § 40-30-304(1) 305(1), which requires only that "potentially favorable DNA results undermine confidence in the outcome of the prosecution." Haddox v. State, 2004 Tenn.Crim.App.Lexis 991, p. *12 (emphasis supplied). Indeed, the "reasonable probability" standard here is identical to the "reasonable probability" standard governing claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), which provides that a "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 695. This is not an "outcome-determinative" standard. Id. at 693.
2. House Satisfied The Schlup Standard With Proof Of Innocence Less Compelling Than Proof Of Sedley Alley's Innocence Arising From Exculpatory DNA Results: A Fortiori, Sedley Alley Is Entitled To Release Of The Evidence Under The Less Demanding "Reasonable Probability" Standard
The distinction between the House standard and the "reasonable probability" standard applicable here is critical in light of the outcome in House. House satisfied the stringent Schlup standard despite DNA evidence that is less compelling than that available in Sedley Alley's case, because House had demonstrated potential guilt of a third party and had provided an explanation for the victim's blood being on his clothing. The Supreme Court found House innocent under the Schlup standard notwithstanding the fact that there was evidence clearly placing House at the crime scene (unlike here), circumstantial evidence that House lured the victim from her house, and clear proof that House lied about his whereabouts the night of the murder. Comparing House's facts to Alley's, it becomes apparent that not only does Alley have more compelling DNA proof than House, Alley's proof of someone else's guilt and overall proof of Alley's innocence is markedly stronger than House's. Where House satisfied Schlup such that all reasonable jurors would have acquitted him, Sedley Alley clearly satisfies the lesser "reasonable probability" standard.
a. All Reasonable Jurors Would Acquit House
House was found to satisfy the Schlup standard given three main types of new exculpatory evidence: (1) Proof that semen found on the victim did not come from a sexual assault by House, but came from the victim's husband; (2) The victim's husband had opportunity to kill the victim; and (3) There was a reasonable explanation for alleged inculpatory proof of the victim's blood on House's clothing. The Supreme Court identified the following evidence as showing that House was innocent:
— DNA Evidence: DNA evidence from semen found on the victim (Carolyn Muncey) did not come from House, as the prosecution claimed at trial, but actually came — without question — from the victim's husband, Hubert Muncey. This exculpatory DNA proof was "of central importance." Id., p. *40. Not only did conclusive proof of the absence of a sexual assault by House eliminate any alleged motive for House to kill the victim (Id., p. *40-42), the DNA evidence eliminated "the only forensic evidence at the scene that would link House to the murder." House, 2006 U.S.Lexis 4675, p. *41.
— Another Suspect: House also established "troubling evidence that Hubert Muncey could have been the murderer." Id., p. *53-54. Proof of Hubert Muncey's guilt included evidence that he "had the opportunity to commit the crime" given his whereabouts at the time of the killing (Id., p. *58) and evidence that he had confessed to the crime to others (Id., p. *56), though he later denied it (Id., p. *60).
— Explanation For Blood Evidence Inculpating House: House was further able to explain away the undisputed existence of the victim's blood on House's jeans clothing — it had been spilled on his clothing during forensic examination and/or transport. Id., p. *43-53. This new revelation about the blood stains on House's clothing "would prevent reasonable jurors from placing significant reliance on the blood evidence." Id., p. *52.
The Supreme Court also noted that there was additional evidence showing that House was innocent, including proof that House did not suffer any injuries consistent with having killed the victim. Id, p. *61-62.
Given this evidence, this Supreme Court concluded that no reasonable juror would have convicted House beyond a reasonable doubt, because the "evidence pointing to Mr. Muncey," while "by no means conclusive," would, in "combination . . . with the challenges to the blood evidence and the lack of motive with respect to House. . . . reinforce other doubts about House's guilt." Id., p. *61. As the Court explained:
[Where the] central forensic proof connecting House to the crime — the blood and the semen — has been called into question, and House has put forward substantial evidence pointing to a different suspect, we conclude that . . . — had the jury heard all the conflicting testimony — it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.
Id., p. *63.
Critically, the Supreme Court concluded that House had established reasonable doubt to all reasonable jurors even though there was significant evidence indicating that House is actually guilty:
(1) House went for a "bizarre evening walk" (Id., p. *63) the night the victim disappeared, and returned "hot and panting, missing his shirt and his shoes" (Id., p. *17);
(2) A person with a "deep voice," like House, was at the victim's house before the killing and lured the victim from her home (Id., p. *11, describing testimony of Laura Muncey);
(3) House was seen walking up the embankment where the body was found, "wiping his hands on a black rag" before the body was found (Id., p. *13);
(4) The body was found near where "House's car had been parked, dumped in the woods a short way down the bank leading toward a creek" (Id., p. *15);
(5) House unquestionably had the victim's blood on his jeans (Id. p. *20);
(6) House lied about his whereabouts the night of the killing, falsely telling authorities that he spent the entire evening with his girlfriend Donna Turner (Id. p. *16);
(7) House lied about the clothing he wore that night, lying that the night of the murder, he had not worn the blue jeans that later were found to have Carolyn Muncey's blood on them (Id., p. *16, 20).
The Supreme Court fully acknowledged that many aspects of the prosecution's evidence showed that House was actually guilty: "Lora Muncey's memory of a deep voice, House's bizarre evening walk, his lie to law enforcement, his appearance near the body, and the blood on his pants . . . still support an inference of guilt." (Id., p. *63. Nevertheless, the Court concluded that given the new DNA evidence, clear evidence indicating that Hubert Muncey was the real killer, and an explanation for the victim's blood on House's jeans, House had met the extremely high standard of showing that every reasonable juror would have had a reasonable doubt about his guilt.
In other words, given critical DNA evidence and clear indications that someone other than House killed Carolyn Muncey, the Supreme Court concluded that all reasonable jurors would have a reasonable doubt even though inculpatory proof showed that House was at the crime scene, was car was near the crime scene, there was proof that he had been at the victim's home, he returned that night in disarray and unclothed, he made up an alibi, he had the victim's blood on his jeans, and he lied about having worn those jeans that night. Where House has won on his facts, Sedley Alley necessarily wins the right to DNA testing under the circumstances of his case, because DNA can conclusively exonerate Sedley Alley.
b. Sedley Alley Presents A Stronger Case Than House: Alley's Case Is A Case Of Conclusive Exoneration With Exculpatory DNA Tests, Especially Compared To House, And It Is Unquestionable After House That Sedley Alley Meets The Reasonable Probability Test
Compared to House's case, which is decidedly not "a case of conclusive exoneration" (Id., p. *62-63), Sedley Alley has a case of conclusive exoneration (and necessarily a reasonable probability of a different outcome) with DNA testing — especially where, like House, Alley has identified the victim's boyfriend (John Borup) who (like Hubert Muncey) had motive and opportunity to kill the victim. In contrast to House's case, Alley has a stronger case of innocence than House, given Alley's clear and undisputed alibi, and proof that Alley was not the person identified as the abductor, Borup matches that description, Alley was not seen at the crime scene, and Alley's inculpatory statement to the police is false.
Comparing House's facts to Alley's it clearly appears that, as to the three categories of evidence found dispositive in House's favor by the Supreme Court (DNA, another suspect, explanation for inculpatory blood evidence), Alley's case for innocence is stronger than House's. Further, the types of evidence which inculpated House are not present in Alley's case. In other words, compared to House, Alley has much more exculpatory evidence showing innocence, and much less inculpatory evidence showing guilt.
Succinctly stated, Alley's case for innocence based on exculpatory DNA results is far stronger than House's for the following reasons:
(1) DNA Evidence: House's DNA evidence merely eliminated House's alleged motive, while eliminating the only forensic proof connecting House to the crime scene. Under Shuttle, every potential DNA result from evidence at the crime scene is presumed exculpatory: By definition, as in House, such exculpatory results both eliminate any alleged sexual motivation for the murder, while confirming that Sedley Alley was not at the scene of the murder. Alley's DNA evidence, however, is significantly stronger, because House only involved one semen sample from the victim, which could be explained by the victim having had intercourse with her husband.
Alley's case, on the other hand, involves numerous samples, including skin cells and usual-wearer cells in the assailant's red underwear, saliva on the victim's shirt, semen and blood on the stick and its wrapper, and skin cells on the stick where the assailant would have handled it. Exculpatory proof from the assailant's red underwear alone would exonerate Alley: Identifying the wearer of the assailant's underwear identifies the killer. Moreover, redundant DNA results (DNA from the same male donor) on the red underwear, the victim's shirt, the stick, the victim's bra and the fluid-stained grass create a web of guilt for the person who deposited all such DNA. The only explanation for a certain male's semen and skin being on the red underwear and the stick and his saliva being on the shirt and bra is that such person is the killer. Indeed, the odds of someone randomly leaving DNA on all these different samples is millions to 1, increasing exponentially with the same DNA being found on each different sample. Thus, given the sheer number of exculpatory results here, Alley's DNA case is stronger that House's: Alley's is a "case of conclusive exoneration," given exculpatory DNA results.
In his opening brief, Alley has specifically identified cases involving exonerations where more than one piece of crime scene evidence contained the DNA of someone other than the individual convicted. Such circumstances have led to conclusive exonerations. See e.g., Appellant's Brief, p. 35-36 (discussing case of Nicholas Yarris from Pennsylvania, Calvin Willis from Louisiana, and Larry Peterson from New Jersey, all of whom were exonerated after identical DNA results from differing pieces of evidence pointed to someone else).
(2) Proof That Someone Else Was The Killer: In House there was "substantial evidence pointing to another suspect." Id., p. *63. The proof was that Hubert Muncey had "opportunity" to kill the victim and had allegedly confessed. Here, Alley likewise has substantial evidence not only of John Borup's "opportunity" to kill Suzanne Collins (he admits being with her in his car on the base the night she died), but even more than House, Alley has proof of Borup's motive to kill: jealousy. And even stronger than House's case against Muncey, Alley has clear proof that Borup matches the description of the abductor (while Alley does not) and drove the same type of car driven by the abductor (brown-over-brown station wagon). Where Borup had motive and opportunity to kill, matched the description of the abductor, and drove the type of car driven by the abductor, Alley's proof of Borup's guilt is equally strong, if not stronger, than House's case against Hubert Muncey.
(3) Inculpatory Blood Evidence: House has not disputed that the victim's blood was on his jeans, but presented a disputed explanation for how the blood got there. Sedley Alley has always claimed that the purported "blood" on his shorts was not even blood at all. See Trial Tr. 852-853 (screening testing performed by state expert creates false-positive results). But more so, in this proceeding, this Court must presume that the alleged blood on Alley's shorts is not blood at all and does not match the victim: Rather, it is presumed to exculpate Alley, and it can be tested to show (unlike in House) that it is not blood at all and/or does not belong to Suzanne Collins. Thus, Alley's case on this point, once again, is much stronger than House's case.
This leads us to a comparison of the additional inculpatory evidence in House which, the Supreme Court held, was insufficient to prevent a jury from acquitting House. Once again, Alley's case for innocence is significantly stronger than House's. House's case for innocence was burdened by inculpatory evidence of House's being at the crime scene, having no alibi and lying about his whereabouts, which led to a conviction based on House's creation of false exculpatory evidence. Alley, on the other hand, has a seemingly ironclad alibi, substantial proof that it was someone else (not him) who was at the murder scene, and proof that Alley was the victim of false inculpatory evidence created by authorities. Indeed, as we continue to compare House and Alley, we see the following:
(4) Alibi: As Chief Justice Roberts has stated, "when identity is in question, alibi is key." House, 2006 U.S.Lexis 4675, p. *92. Whereas House was found to establish innocence despite having fabricated a false alibi, Sedley Alley has the very type of ironclad alibi mentioned by the Chief Justice. It is undisputed and uncontroverted that the murder occurred at 3:30 a.m., when Alley was at home. In fact, authorities had documented Alley's whereabouts from 12:10 a.m. onward. Alley's case of innocence is substantially bolstered by this critical fact. On this point, there is no comparison. Unlike House, Alley has a case for exoneration given his clear proof of alibi. It is also worth repeating: The reason why Alley did not present alibi evidence sooner is that the prosecution unconstitutionally withheld the exculpatory time-of-death evidence; Alley finally got all the alibi evidence in April 2005 — nearly 20 years after the offense.
(5) Presence At The Murder Scene: House was seen leaving the murder scene. Not only was Alley never seen at the murder scene, the forensic proof establishes that someone other than Alley was the murderer: Alley clearly does not match the description of the abductor; Tire tracks at the crime scene are from a car that is not Alley's; Fingerprints on items near the body are not Alley's; Shoe prints at the scene were not matched to Alley's shoes either. Again, Alley's case for innocence is significantly stronger than House's.
(6) House's False Exculpatory Statements vs. Alley's False Inculpatory Statement: House lied about his whereabouts the night of the murder and lied about the clothing he was wearing. This inculpates House. See House, 2006 U.S. Lexis 4675, p. *92 (Roberts, C.J., concurring and dissenting). Whereas House provided false exculpatory evidence which inculpates him, it clearly appears that Alley was convicted on the basis of false inculpatory evidence, thus showing his innocence. The statement obtained from Alley by authorities occurred after hours of interrogation, and it has been acknowledged to be false in critical respects by Dr. Bell, the Tennessee Supreme Court, and Dr. Richard Leo. The statement introduced at trial was manipulated and much of the purported statement is simply missing. Yet again, Alley's case for innocence is much stronger than House's.
Alley presented an insanity defense at trial which relied on hypnosis testimony from Alley which the prosecution excluded as being unreliable, and which has been found to be unreliable by all reviewing courts.
Comparing House to Alley, it is clear that the facts support Mr. Alley's request for DNA testing because such testing could make a case for innocence far more compelling than that found to have merit by the Supreme Court. Though House's case does not involve a "case of conclusive exoneration," he has established that no reasonable juror would have convicted him, given limited exculpatory DNA evidence, proof of the guilt of another suspect, and explanation for inculpatory blood proof.
Alley's presumed exculpatory DNA proof is broader and exponentially stronger than House's; his proof of Borup's guilt is stronger as well, where it is supported by Borup having both motive and opportunity to kill, while Borup and his car fit the description of the abductor and his automobile; the alleged inculpatory blood evidence in Alley's case can be subjected to DNA testing, and at this stage, is presumed to exonerate Alley. When one adds to the mix Alley's false "confession," Alley again presents a much stronger case for actual innocence than House ever could — especially where DNA testing of the red underwear alone will identify the killer.
In House the "issue was close" (Id., p. *63) whether House was innocent under a "no reasonable juror would convict" standard — despite significant inculpatory evidence which included proof placing House at the murder scene. Alley has presented the very same types of evidence House presented, but Alley has an even stronger case of innocence than House. Alley's case presents a clear case for relief under the significantly more relaxed "reasonable probability" standard.
CONCLUSION
In light of House, therefore, Sedley Alley is entitled to release of the DNA evidence as he has requested, because there is a reasonable probability that he would not have been prosecuted, convicted, or sentenced to death had the jury — like the jury in House — heard that the numerous items of evidence from the crime scene are laden with someone else's male DNA, not Alley's. Sedley Alley has a case for "conclusive exoneration." House, p. *62-63. Sedley Alley is therefore entitled to the DNA evidence to prove his actual innocence. The judgment of the trial court must be reversed, and the DNA testing ordered.
Respectfully Submitted,
_____________________________ Barry Scheck Vanessa Potkin Colin Starger THE INNOCENCE PROJECT 100 5th Avenue, 3rd Floor New York, NY 10011 (212) 364-5359 FAX (212) 364-5341
___________________________ Paul R. Bottei #17036 Kelley J. Henry, #21113 Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 FAX (615)736-5265
Appendix 4 Appellant's Letter Re: Supplemental Authority Alley v. State, No. W 2006-01179-CCA-R3-PD
Alley v. State
OFFICE OF THE MARIAH A. WOOTEN FEDERAL PUBLIC DEFENDER RONALD C. SMALL FIRST ASSISTANT FEDERAL PUBLIC DEFENDER MIDDLE DISTRICT OF TENNESSEE R. DAVID BAKER HUGH M. MUNDY WILLIAM J. STEED GAETCHEN L. SWIFT SUMTER L. CAMP ASSISTANT FEDERAL PUBLIC DEFENDERS SUPERVISORY ASS'T FEDERAL PUBLIC DEFENDER HENRY A. MARTIN FEDERAL PUBLIC DEFENDER C. DOUGLAS THORESEN SENIOR LITIGATION COUNSEL ISIAH S. GANT, ADMITTED IN JUNIOR JUDE T. LENAHAN 810 BROADWAY, SUITE 200 CAPITAL RESOURCE COUNSEL CARYLL S. ALPERT NASHVILLE, TENNESSEE 37203-3805 PAUL R. BOTTEI TELEPHONE: 615-736-5265 JENNIFER N. COFFIN KELLEY J. HENRY FAX: 615-736-5265 DEAN ROSS CHRISTOPHER M. MINTON RESEARCH ATTORNEYS June 20, 2006 Honorable David G. Hayes Honorable John Everett Williams Honorable Alan Glenn Court of Criminal Appeals — Western Division Supreme Court Building 6 Hwy 45 Bypass Jackson, TN 38302 RE: , W2006-01179-CCA-R3-PD Supplemental Authority Pursuant to Tenn. R.App.P. 27 (d) Dear Sirs,We write to advise the Court of supplemental authority which came to our attention on the eve of oral argument in this matter. We respectfully request this Court to consider the case of State v. Moffitt, 2002 Tenn. Crim.App. LEXIS 362 (Tenn.Crim.App. at Jackson, April 19, 2002). In the Moffitt case this Court observed that a criminal defendant is entitled to an adverse inference instruction when the State fails to preserve evidence.Moffitt is applicable here in the context of the reasonable probability analysis under the Post-Conviction DNA Analysis Act. As we argued to the Court, if the State were to refuse to put the male DNA profile generated from the biological evidence left at the crime scene (from, for example, the assailant's underwear, the stick, the victim's T-Shirt and bra) in the CODIS databank, under Moffitt, the trier of fact must assume that the results of such a databank search would "hit" on a serial offender. Under any reasonable interpretation of the evidence, a databank "hit" on a serial offender would be a conclusive exoneration of Mr. Alley. As such, there is a reasonable probability, i.e. a probability sufficient to undermine confidence in the verdict, that Mr. Alley would not have been prosecuted or convicted, let alone sentenced to death, if the evidence were tested.
Respectfully submitted,
Barry Scheck Vanessa Potkin Colin Starger THE INNOCENCE PROJECT 100 5th Avenue, 3rd Floor New York, NY 10011
Paul R. Bottei #17036 Kelley J. Henry, #21113 Office of the Federal Public Defender Middle District of Tennessee 810 Broadway, Suite 200 Nashville, Tennessee 37203
BY: ________________________________
cc: Jennifer Smith Asst. Attorney General Office of the Attorney General 425 Fifth Avenue North Nashville, TN 37243