David G. Skipper v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2016
DAVID G. SKIPPER v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Putnam County
No. 00-0302 Gary McKenzie, Judge
No. M2015-01518-CCA-R3-PC – Filed August 26, 2016
The Petitioner, David G. Skipper, appeals the Putnam County Criminal Court’s dismissal
of his second petition for post-conviction relief from his guilty pleas to two counts of
rape of a child and one count of attempted aggravated sexual battery and resulting
effective sentence of thirty-one years. On appeal, the Petitioner contends that the post-
conviction court erred by not treating his petition for post-conviction relief as a petition
for writ of error coram nobis. Based upon the record and the parties’ briefs, we affirm
the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.
David G. Skipper, Pro se.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Bryant C. Dunaway, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The record reflects that in June 2000, the Putnam County Grand Jury indicted the
Petitioner and the victim’s mother for ten counts of rape of a child, a Class A felony. On
May 22, 2001, they each pled guilty to one count of the indictment, and the trial court
scheduled a sentencing hearing for July 26. On July 26, 2001, they each pled guilty to a
second count of rape of a child and one count of attempted aggravated sexual battery, a
Class C felony.1 Pursuant to the plea agreement, the Petitioner and the victim’s mother
received concurrent, twenty-five-year sentences for the convictions of rape of a child and
a consecutive six-year sentence for the conviction of attempted aggravated sexual battery
for a total effective sentence of thirty-one years. The remaining counts were dismissed.
At the May 2001 plea hearing, Investigator David Andrews of the Putnam County
Sheriff’s Department testified that in January 2000, he began investigating the Petitioner
for allegations of raping the then ten-year-old victim. The officer interviewed the
Petitioner, and the Petitioner admitted to having sexual intercourse with the victim in
their home. The State asked the officer if he collected any evidence in the case, and he
stated that he collected a footrest from a recliner, a piece of carpet, and a pair of panties.
The following exchange then occurred:
Q. And did you submit those to the TBI Crime
Lab?
A. I did.
Q. At some later date did you have cause to have a
sample of David Skipper’s blood to be drawn for the purpose
of comparison with whatever was found on that carpet and
footrest?
A. I did.
Q. And are you aware that the TBI did test his
blood with the semen that was found on the items you’ve
mentioned, and that a match, a DNA match was found by the
TBI?
A. That is correct.
Q. And I believe they said that the possibility that
it could be somebody else’s is greater than the human
population at this time. Did you see that?
1
During the plea colloquy, the trial court questioned whether aggravated sexual battery was a
lesser-included offense of rape of a child. Regardless, the defendants stated that they were agreeing to an
amendment of the indictment and to enter a plea to the amended offense.
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A. I did not see -- I don’t remember it, but I do
know that there was a match.
(Emphasis added.)
The Petitioner filed a timely petition for post-conviction relief, alleging that he
received the ineffective assistance of counsel because counsel failed to file a motion to
suppress his statement and communicate with him adequately; that he did not knowingly
and voluntarily enter his guilty pleas; and that there was an insufficient factual basis to
support the pleas. The post-conviction court denied relief, and this court affirmed the
denial. See David Gene Skipper v. State, No. M2004-01137-CCA-R3-PC, 2005 WL
639131 (Tenn. Crim. App. at Nashville, Mar. 15, 2005).
At some point, the Petitioner requested DNA testing on the footrest, carpet, and
panties pursuant to the Post-Conviction DNA Analysis Act. In February 2014, the State
filed a response to the request, stating that DNA analysis already had been performed on
the footrest and carpet and that the State could not locate any documentation of testing on
the panties. In May 2014, the Petitioner filed a second petition for post-conviction relief,
arguing that the State failed to disclose exculpatory evidence as required by Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, the Petitioner claimed that the State
deliberately misrepresented . . . that DNA testing of the
victim’s panties was accomplished and DNA found in the
panties matched Mr. Skipper’s DNA. The State did fail to
disclose the truth to Mr. Skipper or his attorney that DNA
testing of the panties was never accomplished [because] the
victim stated that she thought she washed the panties after the
alleged rape.
The Petitioner stated in the second petition that he did not become aware of the State’s
failure to perform DNA testing on the panties until he read the State’s response to his
request for scientific testing. The Petitioner attached numerous exhibits to his second
petition, including his pretrial discovery request, the State’s response to the request, and
relevant documents from the State’s “open” file.
The State filed a motion to dismiss the petition without an evidentiary hearing on
the basis that the Petitioner was entitled to file only one petition for post-conviction
relief. In a written order, the post-conviction court agreed with the State and noted that
the Petitioner had not alleged, nor had the court found, any grounds to justify reopening
his initial petition.
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II. Analysis
On appeal, the Petitioner contends that the post-conviction court erred by not
treating his second petition for post-conviction relief as a petition for writ of error coram
nobis filed pursuant to Tennessee Code Annotated section 40-26-105. The State claims
that the post-conviction court properly dismissed the second petition for post-conviction
relief and did not err by failing to treat it as a writ of error coram nobis. We agree with
the State.
The Post-Conviction Procedure Act contemplates the filing of only one petition
for post-conviction relief and provides for the summary dismissal of a subsequent petition
if a previous petition has been filed and resolved on the merits. Tenn. Code Ann. § 40-
30-102(c). The Petitioner filed a previous petition for post-conviction relief, the denial of
which this court affirmed in 2005. Accordingly, the Petitioner is barred from filing a
second petition. However, under limited circumstances, a petitioner may file a motion to
reopen a prior petition for post-conviction relief. Tennessee Code Annotated section 40-
30-117(a) provides that a petitioner may file a motion to reopen the first post-conviction
petition if:
(1) The claim in the motion is based upon a final ruling
of an appellate court establishing a constitutional right that
was not recognized as existing at the time of trial, if
retrospective application of that right is required . . . ; or
(2) The claim in the motion is based upon new
scientific evidence establishing that such petitioner is actually
innocent of the offense or offenses for which the petitioner
was convicted; or
(3) The claim asserted in the motion seeks relief from
a sentence that was enhanced because of a previous
conviction and such conviction in the case in which the claim
is asserted was not a guilty plea with an agreed sentence, and
the previous conviction has subsequently been held to be
invalid . . . ; and
(4) It appears that the facts underlying the claim, if
true, would establish by clear and convincing evidence that
the petitioner is entitled to have the conviction set aside or the
sentence reduced.
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Initially, we note that we are puzzled by the Petitioner’s claim that the State failed
to reveal that the panties were never tested. According to the Request for Examination
form submitted by Investigator Andrews to the Tennessee Bureau of Investigation and
the Official Serology/DNA Report, both of which were part of the State’s “open” file and
are attached to the Petitioner’s second petition for post-conviction relief, the only
evidence tested for the presence of semen and sperm were three tubes of vaginal swabs
collected from the victim, one vaginal slide collected from the victim, one piece of
carpet, and one footrest from a recliner. Moreover, at the Petitioner’s May 2001 guilty
plea hearing, the State indicated through its questioning of Investigator Andrews that
only the footrest and carpet were tested.
In any event, our supreme court has held that “[a] claim that the State suppressed
or failed to disclose exculpatory evidence in violation of Brady simply is not one of the
statutory grounds for reopening a post-conviction proceeding.” Harris v. State, 102
S.W.3d 587, 591 (Tenn. 2003). Accordingly, the post-conviction court post-conviction
court properly dismissed the Petitioner’s second petition.
As to the Petitioner’s claim that the post-conviction court should have treated his
second petition as a petition for writ of error coram nobis, our supreme court recently
held that “the coram nobis statute is not available as a procedural mechanism for
collaterally attacking a guilty plea.” Clark D. Frazier v. State, ___ S.W.3d ___, M2014-
02374-SC-R11-ECN, 2016 WL 3668035, at *6 (Tenn. July 7, 2016) (overturning its
recent decision in Wlodarz v. State, 361 S.W.3d 490 (Tenn. 2012)). Thus, the post-
conviction court did not err by failing to treat the second petition as a petition for writ of
error coram nobis.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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