State of Tennessee v. Ricky Lee Nelson-Concurring

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
August 6, 2013
STATE OF TENNESSEE v. RICKY LEE NELSON
Appeal from the Criminal Court for Shelby County
No. 89-04384, 89-04385 & 89 J. Robert Carter, Jr., Judge
No. W2012-00741-CCA-R3-CD - Filed January 27, 2014
T HOMAS T. W OODALL, J., concurring opinion.
I write separately to express my opinion that the result of this case is mandated by the
following language in Powers v. State, 343 S.W.3d 36, 55 (Tenn. 2011):
Inevitably, determining whether a petitioner should be afforded DNA
testing involves some conjecture, as “it is difficult to anticipate what results
DNA testing may produce in advance of actual testing.” State v. Peterson,
364 N.J. Super. 387, 836 A.2d 821, 827 (N.J. Super. Ct. App. Div. 2003).
Under section 40-30-304(1) of the Act, however, we begin with the
proposition that DNA analysis will prove to be exculpatory. Payne v. State,
W2007-01096-CCA-R3-PD, 2007 WL 4258178, at *10 (Tenn. Crim. App.
Dec. 5, 2007); Shuttle v. State, No. E2003-00131-CCA-R3-PC, 2004 WL
199826, at *5 (Tenn. Crim. App. Feb. 3, 2004). As one jurisdiction has
ruled, “the trial court should postulate whatever realistically possible test
results would be most favorable to [the] defendant in determining whether
he has established” the reasonable probability requirement under that
jurisdiction’s DNA testing statute. Peterson, 836 A.2d at 827. We hold the
same to be true under Tennessee’s Act.
Id.
While we review the trial court’s decision under an abuse of discretion standard,
Thomas Edward Kotewa v. State, No. E2011-02527-CCA-R3-PC, 2012 Tenn. Crim. App.
LEXIS 872, at *15 (Tenn. Crim. App. Oct. 26, 2012), in my opinion the trial court’s width
of discretion has been extremely narrowed.
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THOMAS T. WOODALL, JUDGE