Oscar Smith v. State of Tennessee

03/23/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 11, 2022 Session
OSCAR SMITH V. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 89-F-1773 Angelita Blackshear Dalton, Judge
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No. M2021-01339-CCA-R3-PD
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Petitioner, Oscar Smith, a death row inmate, appeals from the Davidson County
Criminal Court’s summary dismissal of his petition requesting analysis of evidence
pursuant to the Post-Conviction Fingerprint Analysis Act of 2021. Based upon our review
of the record, oral arguments, 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 Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.
Amy D. Harwell, Assistant Chief, Capital Habeas Unit and Katherine M. Dix, Assistant
Federal Public Defender (on appeal), Nashville, Tennessee, for the appellant, Oscar
Franklin Smith.
Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor
General; Samantha Simpson, Assistant Attorney General; Glenn R. Funk, District Attorney
General, for the appellee, State of Tennessee.
OPINION
Over 32 years ago, Petitioner murdered his estranged wife, Judith (Judy) Lynn
Smith, and her two minor children, Chad and Jason Burnett, at their home in Nashville.
State v. Smith, 868 S.W.2d 561 (Tenn. 1993). He received death sentences for each of the
three murders. Id. As to the murder of Ms. Smith, the jury found the murder was especially
heinous, atrocious, or cruel and that Petitioner committed mass murder. T.C.A. §§ 39-2-
203(i)(5) and (12) (1982). In addition to these two aggravating circumstances, the jury
also found two more aggravators for the murders of the two children: the murder was
committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or
prosecution and the murder was committed during the perpetration of the murder of Ms.
Smith. T.C.A. §§ 39-2-203(6) and (7) (1982). Petitioner’s convictions and sentences were
upheld on direct appeal. Smith, 868 S.W.2d at 582. He was unsuccessful in his subsequent
pursuit of state post-conviction and federal habeas corpus relief. Oscar Franklin Smith v.
State, No. 01C01-9702-CR-00048, 1998 WL 345353 (Tenn. Crim. App. June 30, 1998),
perm. app. denied (Tenn. Jan. 25, 1999); Oscar Smith v. Ricky Bell, Warden, No. 3:99-
0731, 2005 WL 2416504 (M.D. Tenn. Sep. 30, 2005), vacated sub nom. Smith v. Colson,
566 U.S. 901 (2012) (Order); Oscar Smith v. Tony May, Warden, No. 18-5133, 2018 WL
7247244 (6th Cir. Aug. 22, 2018).
On July 1, 2021, the Post-Conviction Fingerprint Analysis Act of 2021 (hereinafter
“Fingerprint Act” or “Act”) was enacted into law. T.C.A. §§ 40-30-401 to -413 (Supp.
2021). The Act provides that, upon the return of unfavorable results, the court shall dismiss
the petition. T.C.A. § 40-30-412. However, if the results are favorable, the court shall
order a hearing. Id. Petitioner filed a petition pursuant to the Act on that very date. Having
already secured what he deems to be favorable testing results challenging the trial
testimony of Sgt. Johnny Hunter, a certified latent print examiner, that a bloody palm print
found at the crime scene was a match for Petitioner, Petitioner requested a hearing pursuant
to Section 412 of the Act. In the alternative, Petitioner asserted he has satisfied the
requirements of Section 405 and thus requested the trial court to order further testing of the
palm print evidence pursuant to Section 410. Without conducting a hearing, the trial court
issued a written order denying the petition. Petitioner now appeals.
Facts
As will be discussed below, “‘the opinions of [the appellate courts] on either the
direct appeal of the conviction or the appeals in any previous post-conviction or habeas
corpus actions may provide some assistance. These sources provide the essential facts of
the crime at issue and may be helpful to trial courts in their assessment of the merits of any
claim [asserted under the Fingerprint Act].’” Powers v. State, 343 S.W.3d 36, 56 (Tenn.
2011). Thus, as the trial court did, we have chosen to quote the federal district court’s
summary of the trial evidence for perspective as relative to resolution of the issues raised
in the instant appeal:
1) Oscar Frank Smith (“Petitioner”) and Judith married in 1985. It was
Judith’s third marriage and Petitioner’s second. Judith had two sons - Chad
and Jason - by a previous marriage who, at the time of the murders, were 16
and 13 respectively. Petitioner also had two children by a previous marriage,
who basically had been raised by Petitioner’s mother and, at the time of the
murders, were 14 and 17. In the second year of her marriage to Petitioner,
Judith gave birth to twin boys.
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2) On June 17, 1989, Petitioner and Judith separated, after an apparently
violent confrontation between Petitioner and Judith’s thirteen-year-old son,
Jason.
3) Judith’s sister, Theresa Zastrow (“Zastrow”), testified that Judith told her
Petitioner and Jason had gotten into a fight at Petitioner’s trailer, that
Petitioner had put a gun to Jason’s head, and that Petitioner had fired a shot
into the air as Judith and Jason were leaving. According to Zastrow, Judith
told her that Petitioner warned her not to try to take the car or the twins, and
that he would kill her if she called the police.
4) Judith swore out a warrant against Petitioner for aggravated assault in
connection with this incident. On August 1, 1989, Judith swore out a second
warrant for aggravated assault, alleging that Petitioner had assaulted her.
5) Sally Goodman (“Goodman”) - an administrator with the General
Session[s] and Domestic Relations Courts in Robertson County - testified
that there were two warrants pending against Petitioner at the time of the
murders. The first warrant, dated June 17, 1989, was for the aggravated
assault against Jason, with respect to which Goodman testified that she had
seen a swollen bite mark on Jason’s back. The second warrant, dated August
1, 1989, was for the aggravated assault against Judith.
6) A contentious issue in the ensuing divorce proceedings was custody of the
three-year-old twins. Judith had been given temporary custody; Petitioner
had visitation rights every other weekend and had been ordered to pay
support.
7) On Sunday, October 1, Petitioner, who had visitation with his twins that
weekend, took them to Judith’s home at 324 Lutie Street. Despite their
marital problems, Petitioner and Judith left the twins with Chad and Jason
for the entire day, while they spent hours drinking coffee in two different
Waffle House restaurants, looked for a replacement used car for Judith,
bought flowers at a florist, and had dinner at the Gold Rush restaurant on
Elliston Place. Numerous witnesses testified to these events, and the
testimony included the fact that the couple talked quietly and did not appear
to be arguing.
8) Petitioner drove Judith back to 324 Lutie Street between 9:30 and 10:00
p.m. that evening, then took the twins back home with him and left them with
his mother.
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9) Judith’s sister, T[h]eresa Zastrow (“Zastrow”), testified that she called
Judith at 10:30 p.m. on the night of the murders and that they had talked for
approximately fifteen minutes.
10) Cheryl Dalton (“Dalton”) - employed by the Metro-Nashville Police
Department Communications Division at the time of the murders - testified
that she received a 911 “panic call” from 324 Lutie Street at 11:20 p.m. that
night. Dalton identified the tape introduced at trial as a copy of the tape of
that call. Dalton testified further that a transcript of the call introduced as
State’s Exhibit 18 at trial was an accurate representation of what she heard
on the enhanced version of the tape.
11) Police were dispatched to the scene and arrived shortly after the call.
After knocking on the front door, receiving no answer, hearing no noise, and
looking around the side of the house, the officers departed, concluding that
the call was a “false call.”
12) The next day, Monday, at approximately 3:00 p.m., the bodies of Judith,
Chad, and Jason were found murdered at 324 Lutie Street. There were no
signs of forced entry.
13) Judith was found lying on the bed in her bedroom with gunshot wounds
in her neck and arm, ice pick-like puncture wounds to her chest, and her neck
slit. Jason was found on the floor at the foot of that bed, with numerous knife
wounds to his neck, abdomen and chest, and defensive wounds on his hands.
He was lying on his left side with his intestines protruding from his
abdominal wounds. Found under him, never explained, was a hair dryer that
was running. Chad was found in the kitchen, where a violent struggle had
taken place and where the 911 call, in all likelihood, originated. He had
gunshot wounds to his head, chest and shoulder, knife wounds to his chest,
back, abdomen and neck, ice pick-like puncture wounds to his chest, and
defensive wounds on his hands.
14) Sergeant Johnny Hunter (“Sgt. Hunter”) - officer in charge of the Metro
Latent Fingerprint Section at the time of the murders - testified as to physical
evidence recovered at the crime scene. A leather tooling instrument called
an awl, which looks much like an ice pick, was found with blood on it in the
kitchen. A left-hand cotton work glove was found in the bedroom where
Judith’s and Jason’s bodies were. A live .22 caliber cartridge was found in
the bedroom across the hall from where Judith’s and Jason’s bodies were
found. A partially-eaten pizza and a bologna sandwich with one bite out of
it were found on the kitchen counter. A palm print made in blood was found
on the sheet near Judith’s body on the bed. Jason’s fingerprints were found
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on a kitchen table leg that had been broken off from the table and on the
telephone receiver and telephone base in the kitchen. Other latent prints were
recovered from the scene and examined, one of which did not match
Petitioner’s. A bloody footprint in the kitchen likewise was never connected
to Petitioner. Sergeant Hunter testified that Jason had some strands of hair
in his hand, which Special Agent Chester Blythe (Agent Blythe) of the FBI
testified turned out to be Judith’s and Jason’s. A partially-written letter that
Judith had been writing to Billy Fields, the man she was seeing at the time of
the murders, and a partially-written letter that Chad had been writing to his
girlfriend were recovered from the scene as well.
15) The .22 caliber weapon that was used to shoot the victims was never
recovered from the crime scene or elsewhere. The knife used to stab all three
of the victims was never recovered. The awl, which probably made the
puncture wounds, contained no identifiable fingerprints.
16) Detective Don Bennett (“Detective Bennett”) of the Robertson County
Sheriff’s Office testified that he drove to Petitioner’s home on the day that
the bodies were discovered and told Petitioner that officers of the
Metropolitan-Nashville Police Department (“Metro”) wanted to speak with
him. Detective Bennett testified that Petitioner accompanied him without
ever asking why the Metro officers wanted to talk with him.
17) Metro Detectives E.J. Bernard (“Detective Bernard”) and Mike Smith
(“Detective Smith”) testified that they interviewed Petitioner at the
Robertson County Sheriff’s Office. Both detectives testified that Petitioner
never asked them why he was being questioned. Detective Bernard testified
that Petitioner had told them he had spent much of Sunday helping Judith
look for a car and that he had left her house that evening at between 9:00 and
9:30 p.m. Detectives Bernard and Smith testified that Petitioner had told
them that he had dropped the twins off at his mother’s house, packed and left
for Kentucky between 10:00 and 10:30 p.m., where he was to perform some
work for his employer. According to Detective Bernard, Petitioner told him
that the drive had taken longer than it should have because of fog. Detectives
Bernard and Smith testified further that, when referring to Judith, Petitioner
spoke of her in the past tense repeatedly, even before he had been told of the
murders. Moreover, when he was told of the murders well into the interview,
Petitioner did not ask the officers the logical questions of where, when, how
and by whom.
18) Detective Bernard testified that Petitioner had abrasions on his right
hand, right elbow, left back and shoulder blade, which Sgt. Hunter testified
were photographed.
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19) When interviewed later that evening, Petitioner’s mother told three
different officers - Detective Bernard, Metro Detective Grady Eleam
(“Detective Eleam”), and Sgt. Hunter - that Petitioner had arrived home at
approximately 10:15 p.m. on the night of the murders, dropped off the twins,
went to his trailer and then left for Kentucky. Detective Bernard testified
further that, when he asked her what time Petitioner had left for Kentucky,
she told him that she did not know.
20) Detective Larry Flair (“Detective Flair”) collected an empty leather
holster, two belts with the name “Frank” on them, a .22 caliber cartridge, and
leather-working tools from Petitioner’s trailer during a search on October 13,
1989.
21) Tommy Heflin (Heflin) - a Tennessee Bureau of Investigation (TBI)
firearms examiner - testified that, although the bullets recovered from the
victims’ bodies were different from the cartridge recovered from Petitioner’s
trailer, the firearm used in committing the murders could have fired both
types of ammunition.
22) Don Robirds (“Robirds”) - Judith’s father, and Chad’s and Jason’s
grandfather - testified that he heard Petitioner threaten to kill his daughter in
the Spring, before they separated, and again a couple of weeks prior to the
murders. Robirds also testified that, two to three weeks before the murders,
Petitioner told him to tell Judith that “the gloves are coming off.”
23) Judith’s sister, Zastrow, testified that she saw rope burns on Judith’s
wrists and throat from the attack that led to Judith’s swearing out the second
warrant and that Judith stayed for a time in a shelter before going back to her
house at 324 Lutie Street in Nashville, where she had lived with Chad, Jason,
and the twins after the separation.
24) Sheila Gunther (“Gunther”) - one of Judith’s co-workers at the Waffle
House in Nashville - testified that, at Judith’s request, she listened in on
telephone calls that Petitioner made to Judith at work over a period of four
to six weeks in the summer of 1989, in which Gunther overheard Petitioner
threaten to kill Judith on at least a dozen occasions. Gunther testified that
Petitioner usually threatened to shoot Judith, but that once he threatened to
stab her. Gunther further testified that she heard Petitioner threaten to kill
Chad and Jason, because he felt that Judith was better to them than she was
to the twins. In August, Petitioner, who apparently knew that Gunther was
listening in on his conversations with Judith, threatened to kill [Gunther] and
her children during one of the calls.
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25) Jerry Williams (“Williams”) - one of Petitioner’s co-workers at the
Maintenance Service Corporation - testified that, while driving around
together in 1988, Petitioner offered to kill Williams’s wife if Williams would
kill Judith. Williams also testified that Petitioner came to his house two
weeks later, repeated his offer, and said that he would pay Williams to kill
Judith.
26) Raymond Merritt (“Raymond Merritt”) - another of Petitioner’s co-
workers at the Maintenance Service Corporation - testified that Petitioner
asked him twice if he knew anyone who would kill his family, specifying
that the twins were not to be harmed. The second time Petitioner offered to
pay $20,000 if Merritt could find someone who would kill Judith and her
teenage sons.
27) Petitioner was the beneficiary on one or more life insurance policies
insuring the lives of Judith, Chad and Jason. In February of 1989, Petitioner
and Judith took out a family life insurance policy with Liberty National
Insurance on the lives of Petitioner, Judith, Chad and Jason, the twins, and
Petitioner’s two children by his previous marriage. The insurance on Judith’s
life was $20,000, and Chad and Jason’s lives were insured for $5,000 each.
Petitioner was the beneficiary on the insurance covering the lives of Judith,
Chad and Jason. The beneficiary on the life insurance for Petitioner was
Petitioner’s mother. This policy lapsed in July of 1989, during the
separation, but was renewed by reinstatement when Petitioner and his father
paid the premium on August 15, which was two weeks after the aggravated
assault warrant was taken out for the assault against Judith and two months
after the earlier warrant for aggravated assault on Jason. On March 6, 1989,
another policy insuring Petitioner, Judith, and their six children was taken
out with American General Life Insurance Company, insuring Petitioner and
Judith for $20,000 each, and each of the children for $10,000. Each of the
policies taken out in 1989 was with a different company and not with United
Insurance Company of America, where Petitioner and Judith had had life
insurance in effect since August of 1985. That policy would pay Petitioner
$4,000 upon the death of Chad or Jason, and $10,000 upon the death of
Judith, unless her death was accidental, in which case the policy paid
$20,000.
28) Ron Merritt (“Ron Merritt”) - the Maintenance Service Corporation plant
manager - testified that Petitioner had been assigned the Friday prior to the
murders, i.e., September 29, 1989, to go to Seal Master Corporation (“Seal
Master”) the following Monday. Merritt testified to several unusual aspects
of that assignment. First, Petitioner came to him and asked if he could drive
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to Morehead, Kentucky Sunday night, instead of Monday morning, a request
that Merritt considered unusual because the customer was not expecting a
service representative until mid-day because of the drive. Merritt testified
that Petitioner telephoned Maintenance Service Corporation at 7:19 a.m. on
Monday morning to let them know that he was at the customer’s plant, which
was not the customary practice. Merritt also testified that he found a 12-foot
wide roll of plastic, normally kept at the loading dock, opposite Petitioner’s
work station when he closed the plant that Friday afternoon.
29) Zastrow testified that, during their telephone conversation shortly before
the murders, Judith told her Petitioner had taken the twins with him because
he had told her he was off work the following day.
30) Barbara Kohus - a signal process analyst with the FBI - introduced the
enhanced version of the 911 tape into evidence. On the tape, a voice
identified as Jason’s yells, “Help me!” as a second voice, identified as
Chad’s, screams in the background, “Frank, no, God, help me!” The tape
concludes abruptly with Jason saying “324 Lutie Street.”
31) Robards [sic] and Zastrow testified that Petitioner always went by the
name “Frank,” and not Oscar. Raymond Merritt testified that Petitioner wore
a belt with the name “Frank” on it, and, when he asked Petitioner why,
Petitioner told him that his “real name was Frank.” As previously noted . . .
Detective Flair recovered two leather belts from Petitioner’s trailer, both with
the name “Frank” on them.
32) Petitioner testified that he went by both “Frank,” his middle name, and
“Oscar,” his first name.
33) Danny Abston (Abston) - who was visiting his father-in-law at 318 Lutie
Street the night of the murders - testified that he observed a white LTD that
looked like “an old police car” in the driveway of the victims’ house between
11:00 and 11:15 p.m.
34) Raymond Merritt testified that Petitioner drove “a white Ford, an old
squad car.” Detective Smith testified that Petitioner’s car was “a four door
white Ford, Crown Victoria . . . an old police car.”
35) Petitioner testified that he owned a 1987 Ford LTD, “an ex-police patrol
car . . .”
36) Dr. Mona Gretel Harlan (Dr. Gretel Harlan) - the Assistant Davidson
County Medical Examiner - testified that Judith’s and Chad’s bodies
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exhibited wounds made by three different weapons: gunshot wounds from
.22 caliber bullets, multiple stab and slashing wounds made by a knife, and
wounds made by an object like an ice pick or an awl. Jason’s wounds were
inflicted by a knife only. Dr. Gretel Harlan fixed the time of death at between
11:20 and 11:30 p.m. on October 1.
37) Jerry Watts (“Watts”) - one of Petitioner’s co-workers at Maintenance
Service Corporation - testified that Petitioner owned a .22 caliber pistol and
that Petitioner was thinking about selling it. Watts testified that Petitioner’s
.22 caliber pistol, to which Petitioner referred as his “baby,” was in a hand-
tooled leather holster that Petitioner told Watts he had made himself. Watts
further testified that, on July 3, 1989, he met Petitioner at a local shooting
range, where they fired Petitioner’s firearms, including the .22 caliber pistol.
Watts identified an empty holster introduced into evidence as the one that the
.22 caliber revolver had been in, the holster that Petitioner claimed to have
made.
38) Watts’ testimony about shooting on a range with Petitioner was
corroborated by Larry Hickerson (“Hickerson”) - vice-president and general
manager of Gun City U.S.A. - whose records showed that both Petitioner and
Watts fired at the range on July 3, 1989.
39) Petitioner denied owning a .22 caliber pistol at the time in question and
claimed that he had not owned one since the late 1960s or early 1970s.
Petitioner also denied having told Watts that he had made the leather holster,
which was recovered empty from Petitioner’s trailer.
40) Robards, [sic] Zastrow, Watts, and witness for the defense, William
Sergeant (“Sergeant”), whom Petitioner had known for thirteen years, all
testified that Petitioner carried a buck or folding-type knife on his belt with
a blade 3 to 4 inches in length. Sergeant also testified that Petitioner was
ambidextrous.
41) Detective Bernard testified that, when he asked Petitioner if he ever
carried a knife on his belt, Petitioner replied, “Never.”
42) Petitioner testified at trial that he had not carried a knife on his belt since
the early 1970s.
43) Petitioner, his mother, father, daughter, and Raymond Merritt all testified
that Petitioner was a leather crafts enthusiast.
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44) Linda Davis (“Davis”) - manager of the Tandy Leather Company -
testified that the awl found at the murder scene was a very basic leather-
working tool used to punch holes and mark guidelines. An awl was not found
among Petitioner’s leather-working tools recovered from his trailer. When
shown some of the leather items that Petitioner had made, Davis testified that
an awl would have been required for the work and that none of the other tools
recovered from Petitioner’s trailer could have performed the same function.
45) Petitioner denied that the awl found at the murder scene was his and
identified another tool among his tools that he claimed could have performed
the same function as an awl.
46) Petitioner testified that he left his trailer for Kentucky at 11:30 p.m. and
that, making two stops at convenience stores for gas, he arrived in Morehead,
Kentucky a little after 7:00 a.m. the following morning, October 2.
47) Metro Detective Terry McElroy (“Detective McElroy”) testified that he
drove from Petitioner’s trailer to the Kentucky job site, and from Judith’s
house to the Kentucky job site, and back, via two different routes. Detective
McElroy testified that, under no circumstances, would the trip require much
more than five hours.
48) As previously noted . . . Petitioner told Detective Bernard that he took so
long to get to Kentucky because it was foggy. Petitioner also testified at trial
that he had been delayed by fog. However, weather reports introduced by
the prosecution, and by stipulation, did not substantiate Petitioner’s claim
that his trip was slowed by dense fog most of the way.
49) Petitioner produced five toll receipts for his trip on the Blue Ridge
[P]arkway, all of which, except for one, were dated October 2, with no times
noted. The receipt for the middle toll booth en route was dated October 1,
which Petitioner claimed was simply a mistake by the toll booth.
50) Clinton Ray Curtis (“Curtis”) - an employee at Seal Master - testified that
Petitioner arrived on the job at approximately 8:00 a.m. on October 2. Curtis
further testified that, in a conversation about a recent mass-murder at a
McDonald’s in California, Petitioner stated, “You never know when one of
us could snap and do something like that.”
51) Sergeant Hunter testified that he observed what appeared to be a bloody,
left-hand palm print next to Judith on the sheet during his initial sweep of the
crime scene. When reevaluating the evidence on January 30, 1990, Sgt.
Hunter discovered that the bloody palm print on the sheet was missing two
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fingers. Sergeant Hunter testified that he identified the bloody palm print in
the lab using an Alternative Light Source (ALS) illumination technique, that
the palm print had fifteen points of identification, whereas the FBI only
required eight points of identification, and that there were no unexplainable
dissimilarities. Sergeant Hunter introduced photographs at trial of
Petitioner’s left hand, which showed that Petitioner was missing the same
two fingers as the bloody palm print on the sheet.
Oscar Smith, 2005 WL 2416504 at *1-9 (footnotes and internal citations to record omitted);
see also Smith, 868 S.W.2d at 565-568 (supreme court’s summary of evidence on direct
appeal).
Previous Litigation
On direct appeal, Petitioner unsuccessfully challenged the admission of the
testimony of Sgt. Hunter regarding the “alternate light source technique” used to identify
the bloody palm print found on the bed sheet next to Ms. Smith’s body. Smith, 868 S.W.2d
at 576. This is the palm print that is the subject of the instant Fingerprint Act appeal.
Petitioner is missing two fingers on his left hand, and Sgt. Hunter testified the bloody latent
palm print, which also happens to reveal two missing fingers, matched, without a doubt,
Petitioner’s hand. Our supreme court held that the trial court did not err in allowing Sgt.
Hunter to testify as an expert based upon his use of the alternative light source technique.
Id.In affirming the denial of post-conviction relief, this Court made the following
observations regarding Petitioner’s attack on trial counsel’s failure to challenge the State’s
analysis of the crime scene:
Petitioner insisted before trial and throughout trial, and he insists even
now, that he did not commit these murders and was not present at the scene.
It seems unreasonable, despite what Petitioner implies, that he would have
wanted counsel to risk any credibility in his alibi defense by contesting and
arguing with the crime scene analysis. In fact, counsel decided this would
not be wise. Given Petitioner’s insistence and the circumstances of the case,
we believe counsel made an informed and reasonable decision. Counsel
stated that certain pieces of evidence, including the palm print, simply could
not be contested. Accordingly, despite the alibi defense, it would not have
been particularly helpful to Petitioner to contest some, but not all, of the
crime scene evidence.
Oscar Franklin Smith, 1998 WL 345353 at *23. Petitioner did not specifically
challenge trial counsel’s representation regarding the bloody palm print evidence in post-
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conviction. Id. at *24. To that end, trial counsel testified during the post-conviction
evidentiary hearing as follows:
[Attorney James Paul] Newman stated that the palm print was
“absolutely devastating.” Newman researched the alternate light source
technique used to raise the palm print and asked Allen Barrett, a fingerprint
expert for the F.B.I. and T.B.I., to review the fingerprint evidence in the
presence of Petitioner. According to Newman, Petitioner was not contesting
that the print was his; he was claiming that someone planted the print at the
scene. Nonetheless, Barrett opined that the print was indeed Petitioner’s.
Newman testified, however, that Barrett informed him, because the print was
in blood, as well as other factors, that it would have been improbable for
someone to have planted it. Accordingly, they did not see the need to obtain
other experts in this area. The defense figured that the only successful way to
keep this piece of evidence out was to attack the technique used to confirm the
print comparison. [Which, as noted above, proved to be unsuccessful.]
Id. at *15.
In his initial federal habeas corpus proceeding, Petitioner challenged trial counsel’s
investigation into the bloody palm print. The district court concluded Petitioner failed to
demonstrate how he was prejudiced by counsel’s presumed deficient decision not to
investigate the bloody palm print. Oscar Smith, 2005 WL 2416504 at *87. In support of
its conclusion in that respect, the court observed:
the record also is devoid of any proof that establishes that the analysis of the
bloody palm print is incorrect, or that the bloody palm print is not
Petitioner’s. Moreover, Petitioner made no effort to offer any proof at the
habeas corpus evidentiary hearing that the bloody palm print is not
Petitioner’s, even though the lengthy examination of Sgt. Hunter offered
ample opportunity to do so.
Id. at *70. Furthermore, as to Petitioner’s challenge to trial counsel’s decision not to secure
expert services to assist with Sgt. Hunter’s testimony regarding the alternate light source
technique, the district court held:
Although no proof was adduced at the habeas corpus evidentiary
hearing regarding the trustworthiness and reliability of the ALS [alternate
light source], the court concludes, just as the Tennessee Supreme Court did,
that the ALS is merely a tool used to make fingerprints clearer for
examination and comparison. In other words, the ALS does not perform the
analysis or produce the results. Rather, it merely permits the user to see the
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image more clearly. In that regard, using the ALS is no different than using
a flashlight or a magnifying glass.
From the foregoing, and the record as a whole, the court concludes
that Petitioner has not demonstrated that he was prejudiced by defense
counsels’ decision not to retain the services of a forensic criminologist to
assist the defense with Sgt. Hunter’s testimony pertaining to the ALS.
Id. at *75. Petitioner also claimed the State withheld exculpatory evidence and knowingly
presented false testimony at trial regarding the bed sheet containing the bloody palm print
recovered at the crime scene. In denying relief on that claim, the district court ruled:
Sergeant Hunter testified at the evidentiary hearing that, although the
ALS equipment was brought to the scene, he did not remember using it to
examine anything. It can be used, he testified, to examine hair, fiber, tool
marks and other pieces of evidence. Sergeant Hunter testified that he did
examine the palm print on the sheet at the scene with a flashlight but did not
see enough ridge detail for him to conclude that there would be any
evidentiary value to the print on the sheet. He collected the sheet for use as
fiber evidence. Importantly, Sgt. Hunter testified that he did not notice at the
scene that it looked like the hand that made the palm print had two fingers
missing; it simply did not occur to him. Also at the scene, he did not yet
know that Petitioner had two fingers missing on his left hand. He did
discover that the next day, but he never went back to look at the print on the
sheet until January 29, when the prosecution met prior to the trial and decided
that all of the evidence needed to be looked at again. It was upon this later
examination that Sgt. Hunter realized that the palm print looked like it was
of a left hand that was missing the same two fingers that Petitioner was
missing on his left hand. This court found Sgt. Hunter’s testimony eminently
credible and his explanation for not having initially given significance to the
palm print understandable and, again, credible.
With respect to the Brady aspect of this claim, Petitioner has failed to
provide any proof whatsoever that any evidence pertaining to the bloody
palm print was favorable to him, that any evidence pertaining to the bloody
palm print was withheld, intentionally or unintentionally, and/or that
Petitioner was prejudiced in any way by either Sgt. Hunter or the prosecution
team with respect to the manner in which the evidence at issue was
discovered and divulged. Sergeant Hunter testified that he showed the print
to defense counsel on January 30, the day after he recognized its significance.
13
Id. at *77. Finally, Petitioner claimed the bloody palm print was not his. In support of this
claim, Petitioner relied on the report of Herbert MacDonell of the Laboratory of Forensic
Science in New York. The district court stated:
Based on this report, Petitioner argues that: 1) the bloody palm print
cannot be his because it has a ring finger, whereas he does not; 2) the ridge
detail on the palm print is not from the ridges on a hand, but “just texture of
the sheet”; 3) the match made between Petitioner’s palm print and the bloody
palm print on the sheet is “illusory.”
As to Petitioner’s first argument, the report does, in fact, make several
references to a ring finger that Petitioner does not have. However,
MacDonell’s analysis was limited to “photographs, reports, a transcript, and
palmprint. . .” Moreover, apart from MacDonell’s vague reference to the
“nature of . . . fabric which allows it to be ‘teased,’” nowhere in the report
does MacDonell take into consideration, or make any allowances for, the fact
that he was comparing Petitioner’s palm print taken in a controlled setting,
on a smooth flat surface (paper or a piece of cardstock), backed by a solid
surface (a table or desk) with the bloody palm print that was made in the heat
of a violent triple-murder, on a surface subject to distortion, wrinkles, and
folds (the sheet), on a soft background (the mattress), itself capable of
movement and causing distortion. This conclusion is supported by
MacDonell’s statement that, for there to be a match, “there should be a good
agreement between the bloodstain image and the general outline of Mr.
Smith’s hand,” which MacDonell concluded there was not.
It is intuitively obvious that there is little likelihood that a “geometric”
match, to use MacDonell’s terminology, could be found between two prints
made under such polar-opposite circumstances. Based on this apparent flaw
in MacDonell’s analysis of the “photographs, reports, a transcript, and
palmprint . . .,” and the clear image of the two missing middle fingers in the
photograph of the bloody palm print actually analyzed by MacDonell, the
court is not persuaded that the report establishes that the bloody palm print
has a ring finger.
Next, Petitioner argues that the “ridge detail on the palm print is not
from the ridges on a hand, but ‘just texture of the sheet.’” The report provides
the following with respect to this claim:
The photocopy I received of the enhanced ‘Latent Palm Print’
exhibit is typical of bloodstains on the surface of woven
textiles. It should be noted that what is assumed to be friction
ridge detail is at a 45 degree angle to the vertical and horizontal
14
weave pattern. This type of pattern is consistent with a surface
transfer by an object having no ridge detail whatsover [sic].
Separation of a pattern resulting from the weave or texture of
a fabric from friction ridge detail left by a bloody finger, palm,
or foot has long been recognized as a serious problem.
Identification made with evidence of this type must always be
carefully scrutinized.
The report does not say, as Petitioner would have the court believe,
that what appears to be ridge detail on the bloody palm print is just the texture
of the sheet. MacDonell’s observation is only that the pattern, observed
forty-five degrees to the “vertical and horizontal weave pattern,” is consistent
with no ridge detail. Neither here, nor anywhere else in the report, does
MacDonell state definitively that there is no ridge detail on the bloody palm
print, much less that Sgt. Hunter had mistaken the weave pattern for ridge
detail. On the contrary, in his conclusion that “[t]he prosecution can not have
it both ways,” MacDonell appears to concede that it is possible to view the
bloody palm print as exhibiting ridge detail - but if that is the case, then he
concludes that the prosecution “match[ed] the overall handprint . . .
completely wrong.”
As to MacDonell’s alternative conclusion that, if the ridge detail is
correct, then the overall match is wrong, the court has previously noted that
MacDonell’s inability to make a “geometric” match stemmed from the vastly
different circumstances under which the two prints were made and his failure
to take those circumstances into consideration in his analysis. Therefore,
notwithstanding MacDonell’s views to the contrary, the court concludes that
the prosecution can have it both ways. Specifically, it is entirely reasonable
to conclude that the two palm prints, made under the radically different
circumstances described above, would not yield a geometric match when
superimposed on one another. Second, given the distortion of the bloody
palm print caused by the circumstances under which it was left on the sheet,
it is equally reasonable to conclude that a specific physical feature exhibited
by the palm print made under controlled circumstances could give the
appearance of being on another part of the bloody palm print because of that
distortion.
Finally, the court addresses Petitioner’s claim that the match made
between Petitioner’s palm print and the bloody palm print on the sheet is
“illusory.” Not only does Petitioner misstate the report, there is nothing in
the report that would support even an inference that this is the case. Although
MacDonell does conclude that there is “no compelling evidence to suggest
15
Mr. Smith is the only person who could have left the bloodstain pattern on
the sheet,” he also writes that:
While it is impossible to conclude that the faint stained areas
on the blue sheet were not made by the hand or fingers of a
specific individual, it can be stated that a positive identification
can not be made from the photocopies of the exhibits that were
submitted to this laboratory.
In other words, although MacDonell was unable to make a positive
identification based on the materials that had been submitted to him for
analysis, he conceded that it was impossible to conclude that a specific
individual could not be identified based on the print on the sheet. Based on
MacDonell’s own words, the report on which Petitioner relies to support his
claim that the bloody palm print is not his is, at best, inconclusive.
As reasoned above, none of the arguments proffered by Petitioner
establishes his innocence.
Id. at *85-87.
During subsequent federal habeas litigation, Petitioner secured the services of
another expert, Kathleen Bright-Birnbaum (the same expert upon whom Petitioner relies
in his current Fingerprint Act petition), to attempt to challenge Sgt. Hunter’s trial
testimony. The district court denied Petitioner’s additional challenge to counsel’s
representation regarding the palm print evidence:
. . . Petitioner now argues that, if counsel had conducted a thorough
investigation of the latent print evidence at the crime scene, they could have
demonstrated that the prosecution’s fingerprint witness, Johnny Hunter, was
unreliable and could have shown that the presence of prints that were not his
own “show[ed] someone else’s guilt.” The court has reviewed Petitioner’s
new evidence - the fingerprint analysis report of Kathleen Bright-Birnbaum
- and disagrees with Petitioner’s conclusions.
Sergeant Johnny Hunter testified at trial that only one print found at
the crime scene was identified as Petitioner’s: the bloody handprint on the
sheet near Judy Smith’s body. He explained that the print bore fifteen points
of identification, compared to the minimum eight points required by the FBI,
and that there was “no doubt” that the print belonged to Petitioner. Hunter
said that all the other prints found in the home either matched the victims
(which he testified would be expected, “because anytime you have a crime
scene you’re going to have fingerprints on that crime scene of the victim”),
16
were insufficient for comparison, or did not match any known individual.
Bright-Birnbaum disagrees with Hunter’s conclusions about several of those
prints. She says that two prints identified as those of one resident victim
were actually made by another resident victim and that several of the prints
Hunter found insufficient for comparison were actually identifiable but did
not match any known individual. She also identified two additional prints
left by resident victims and several prints of the officers who investigated the
crime scene. But establishing that the victims and others were in their own
home at some point does nothing to show someone else’s guilt, as Petitioner
suggests, so none of the disagreements between Bright-Birnbaum and Hunter
about the latent fingerprint evidence would have had any impact on the
outcome of Petitioner’s case. Carter v. City of Detroit, No. 11-15322, 2016
WL 319514, at *4 (E.D. Mich. Jan. 27, 2016), aff’d, 678 Fed. Appx. 290 (6th
Cir. 2017) (because unidentified prints do not preclude a defendant’s
presence at the same location, such evidence “is not exculpatory because it
cannot be said that such evidence is inconsistent with the prosecution's case
or [that it] tends to support the defendant’s case”).
The only print that was material to Petitioner’s conviction was his
bloody handprint on the sheet [footnote omitted], which neither Bright-
Birnbaum’s report nor any other evidence offered by Petitioner disputes.
Petitioner argues that disputing the accuracy of Hunter’s analysis of the latent
prints could have resulted in excluding him from testifying at trial. Even
accepting that leap, the fact that an expert that defense counsel consulted
about the bloody handprint agreed that it was Petitioner’s, [s]ee Smith v.
State, 1998 WL 345353, at *15, 16, and Petitioner’s inability to date to
produce any conflicting expert opinion about that print suggest that the
prosecution could easily have called another expert to testify that the bloody
handprint belonged to Petitioner.
Oscar Smith v. Wayne Carpenter, Warden, No. 3:99-CV-0731, 2018 WL 317429, at *9
(M.D. Tenn. Jan. 8, 2018). The Sixth Circuit agreed:
Jurists of reason could not disagree with the district court’s conclusion
that Bright-Birnbaum’s report is insufficient to establish prejudice from
counsel’s allegedly deficient performance. It is noteworthy that Bright-
Birnbaum agrees with many of Sgt. Hunter’s conclusions regarding the
individual prints, and her determination of mis-identification is limited to two
prints. While Bright-Birnbaum contends that a number of prints have
identifiable value, which differs from a portion of Sgt. Hunter’s findings,
none of these prints uncovers any evidence of significance. Smith believes
that these unidentified prints could belong to potential suspects in the
murders, but it is more likely that they belong to visitors of the victims’ home.
17
Most critically, Bright-Birnbaum’s report does not challenge Sgt. Hunter’s
conclusion regarding the key piece of fingerprint evidence - that the bloody
handprint on the sheet near Judy Smith’s body belonged to Petitioner. At
most, Bright-Birnbaum’s report raises some question about Sgt. Hunter’s
credibility, but it does not rise to the level of demonstrating a reasonable
probability that, except for counsel’s allegedly deficient performance, the
result of Smith’s trial would have been different.
Smith, 2018 WL 7247244 at *3.
Fingerprint Act
This is a case of first impression involving statutory construction of the Fingerprint
Act. Statutory construction is a question of law that we review de novo. State v. Gentry,
538 S.W.3d 413, 420 (Tenn. 2017). “The role of this Court in construing statutes ‘is to
give effect to the legislative intent without unduly restricting or expanding a statute’s
coverage beyond its intended scope.’” State v. McGouey, 229 S.W.3d 668, 672 (Tenn.
2007) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “In ascertaining the
intent of the legislature, this Court may look to the language of the statute, its subject
matter, the object and reach of the statute, the wrong or evil which it seeks to remedy or
prevent, and the purpose sought to be accomplished in its enactment.” State v. Collins, 166
S.W.3d 721, 726 (Tenn. 2005)).
We begin with the statute’s language and give the legislature’s chosen words their
natural and ordinary meaning. State v. Edmondson, 231 S.W.3d 925, 927 (Tenn. 2007).
In so doing, we construe the words of the statute “in the context in which they appear in
the statute and in light of the statute’s general purpose.” Id. “When a statute’s text is clear
and unambiguous, the courts need not look beyond the statute itself to ascertain its
meaning.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010). We must
“presume that the General Assembly used every word deliberately and that each word has
a specific meaning and purpose.” Id.More importantly, as it relates to the matter at hand, this Court should not
incorporate “magic words” into criminal statutes, especially where the legislature has
specifically included the proposed language in other statutes but not in the one under
dispute. State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000). Statutes that relate to the same
subject or have a common purpose are construed “in pari materia.” Edmondson, 231
S.W.3d at 927. Those statutes must be construed harmoniously, so that they do not conflict.
State v. Turner, 193 S.W.3d 522, 526 (Tenn. 2006). Additionally, we presume that the
legislature is knowledgeable about its prior enactments and knows the state of the law at
the time it passes legislation. Edmondson, 231 S.W.3d at 927.
18
The Fingerprint Act permits an appropriate party, such as Petitioner in this case, to
file a petition, at any time, “requesting the performance of fingerprint analysis of any
evidence that is in the possession or control of the prosecution, law enforcement,
laboratory, or court, and that is related to the investigation or prosecution that resulted in a
judgment of conviction and that may contain fingerprint evidence.” T.C.A. § 40-30-403.
Depending on the situation, and after notice to the prosecution and an opportunity to
respond, the trial court shall or may order the requested fingerprint analysis. Compare
T.C.A. § 40-30-404(1) (the court shall order analysis if “[a] reasonable probability exists
that the petitioner would not have been prosecuted or convicted if exculpatory results had
been obtained through fingerprint analysis”) with T.C.A. § 40-30-405(1) (the court may
order analysis if “[a] reasonable probability exists that analysis of the evidence will produce
fingerprint results that 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”). Both Sections 404 and 405 presume the evidence is still available and in
such a condition susceptible to analysis, that it has not already been subjected to the type
of analysis being sought by the petition, and that the petition is not being made to
unreasonably delay execution of the sentence. T.C.A. §§ 40-30-404(2) to (4) and 405(2)
to (4). Petitioner filed his petition pursuant to Section 405. Thus, our analysis will be
confined to the terms of that section. As noted above, the trial court has the discretion to
order analysis under Section 405.
If the trial court decides to order analysis, based upon the satisfaction of the
requirements of Section 405,
the court must select the laboratory used by the original investigating agency
if the laboratory is capable of performing the required analysis. If the
laboratory used by the original investigating agency is not capable of
performing the required analysis, the court shall select a laboratory that the
court deems appropriate.
T.C.A. § 40-30-410. The Fingerprint Act also requires the court to order both parties to
produce the reports from any previous independent fingerprint analysis. Id. § 40-30-408.
Section 408 provides, in its entirety:
If evidence has previously been subjected to fingerprint analysis by
either the prosecution or defense, the court may order the prosecution or
defense to provide all parties and the court with access to the laboratory
reports prepared in connection with the fingerprint analysis, as well as the
underlying data and laboratory notes. If any fingerprint or other evidence
analysis was previously conducted by either the prosecution or defense
without knowledge of the other party, the analysis shall be revealed in the
motion for analysis or response, if any. If the court orders fingerprint
analysis in connection with a proceeding brought under this part, the court
19
shall order the production of any laboratory reports prepared in connection
with the fingerprint analysis and may, in the court’s discretion, order
production of the underlying data and laboratory notes.
Id. It is clear this section contemplates a situation where, like in this case, a party already
obtained independent analysis before filing its petition under Section 403. Section 408
obviously precedes Section 410 which requires a court, if it grants the petition and orders
analysis, to select the original (or similar) lab that conducted the analysis in the first
instance.
Finally, if the results of the court-ordered fingerprint analysis are not favorable to
Petitioner, the trial court is directed to dismiss the petition. T.C.A. § 40-30-412. If,
however, the results are favorable, the court shall then schedule a hearing and thereafter
issue any order required by the Rules of Criminal Procedure or the Post-Conviction
Procedure Act. Id.
This Court concludes the Fingerprint Act’s text is clear and unambiguous; thus, we
need not look beyond the statute itself to ascertain its meaning. To that end, because the
language of the Fingerprint Act mirrors, for the most part, the wording of the Post-
Conviction DNA Analysis Act of 2001 (hereinafter “DNA Act”), the trial court looked to
case law discussing the DNA Act for guidance in ruling on the instant petition. Compare
T.C.A. §§ 40-30-301 to -313 with T.C.A. §§ 40-30-401 to -413. We agree with that logical
decision. The appellate courts of this state have had ample opportunity over the last twenty
years or so to interpret the meaning of the DNA Act.
In the following discussion of the established case law on the DNA Act, we will
substitute “fingerprint analysis” and citations to the relevant code sections of the
Fingerprint Act for “DNA analysis” and related citations to the DNA Act.
As this Court has noted, a trial court is not required to hold a hearing to determine
whether a petition for [fingerprint] analysis should be granted or denied. See Charles Elsea
v. State, No. E2017-01676-CCA-R3-PC, 2018 WL 2363589 at *3 (Tenn. Crim. App. May
24, 2018), no perm. app filed. Similarly, a petitioner must satisfy all four elements of
Section 405 before the trial court will order [fingerprint] analysis. See Powers, 343 S.W.3d
at 48. The only debate in this case is whether the requirement of Section 405(1) was
satisfied: “A reasonable probability exists that analysis of the evidence will produce
fingerprint results that would have rendered Petitioner’s verdict or sentence more favorable
if the results had been available at the proceeding leading to the judgment of conviction.”
T.C.A. § 40-30-405(1). “The definition of ‘reasonable probability’ has been well-
established in other contexts, and is traditionally articulated as ‘a probability sufficient to
undermine confidence in the outcome’” of the prosecution. Powers, 343 S.W.3d at 54(quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) and Strickland v.
Washington, 466 U.S. 668, 694 (1984)).
20
As the supreme court instructed in Powers, we begin with the proposition that the
[fingerprint] analysis will prove to be favorable to Petitioner. See 343 S.W.3d at 55, n.28.
“While courts must also consider the evidence that was presented against Petitioner at trial,
the evidence must be viewed in light of the effect that favorable [fingerprint] evidence
would have had on the fact-finder or the State.” See id. at 55. “[T]he analysis must focus
on the strength of the [fingerprint] evidence as compared to the evidence presented at trial
- that is, the way in which ‘the particular evidence of innocence interacts with the evidence
of guilt.’” See id. (citation omitted). However, there is no presumption of innocence
afforded a petitioner who requests [fingerprint] analysis pursuant to the Act. See Charles
Elsea, 2018 WL 2363589 at *4.
“It may also be proper to ‘consider . . . any stipulations of fact by Petitioner or his
counsel and the state’ in making this determination.” Powers, 343 S.W.3d at 55. (quoting
Mark A. Mitchell v. State, No. M2002-01500-CCA-R3-PC, 2003 WL 1868649 at *4 (Tenn.
Crim. App. Apr. 11, 2003), perm. app. denied (Tenn. Oct. 13, 2003)). Again, because a
trial court is not required to hold a hearing in order to decide whether testing should be
granted, thus limiting the record on appeal, “‘the opinions of [the appellate courts] on either
the direct appeal of the conviction or the appeals in any previous post-conviction or habeas
corpus actions may provide some assistance. These sources provide the essential facts of
the crime at issue and may be helpful to trial courts in their assessment of the merits of any
claim.’” Id. at 56 (quoting Mitchell, 2003 WL 1868649 at *9).
“Previous appeals should not, however, be used to determine ‘the merits of any
claim,’ that is, whether the reasonable probability threshold has been established.” Id.“Courts, therefore, should guard against denying petitions for post-conviction [fingerprint]
testing under the Act based upon an appellate court’s prior determination that the evidence
on direct or post-conviction appeal, which was reviewed in the light most favorable to the
State, was sufficient to convict.” Id. at 57. “The ‘reasonable probability’ inquiry under
section 40-30-[405(1)] of the Act requires courts to look at the effect the favorable
[fingerprint] evidence would have had on the evidence at the time of trial . . . , not on the
evidence as construed by an appellate court in the light most favorable to the State.” Id.
Contrary to Petitioner’s assertion otherwise, because a trial court maintains the
discretion to order testing under Section 405, this Court reviews the matter under an abuse
of discretion standard and thus will not reverse the trial court’s decision unless it is
unsupported by substantial evidence. See Eddie Medlock v. State, No. W2018-01693-
CCA-R3-PC, 2019 WL 3071756 at *2 (Tenn. Crim. App. Jul. 12, 2019), perm. app. denied
(Tenn. Sept. 18, 2019).
Petition and Trial Court Ruling
In support of the instant petition, Petitioner again secured the services of Bright-
Birnbaum on his own accord. Bright-Birnbaum’s recent “Declaration,” signed and dated
21
June 29, 2021, is attached to the petition. Bright-Birnbaum states “the prevailing accepted
analysis, procedures and articulation of latent print examination has significantly changed”
since 1990. To that end, she states:
It is no longer accepted to make a match solely on a specified number of
points. (Another change is that identifications are no longer testified to as
absolute.) Instead of simply counting the number of “points,” latent print
examiners in the United States and most other countries around the world
utilize three levels of detail, using both quantitative-qualitative measures.
Having examined the bloody palm print (which she says is of poor “clarity/quality”)
pursuant to the quantitative-qualitative model, Bright-Birnbaum opined “the evidence is
inconclusive as to whether [Petitioner] is the source of the palm print from the crime scene.”
(Emphasis added). She further stated, “Mr. Hunter utilized outdated analysis that focused
exclusively upon the number of points to make a comparison. In my opinion, there is
insufficient support for Mr. Hunter’s conclusion of identification of the print using current
analysis procedures.” Bright-Birnbaum concluded her report by stating: “It is my
professional opinion, to a reasonable degree of scientific certainty under the currently
accepted standards for latent print identification, that Mr. Hunter’s conclusion that the
bloody print on the bed left ‘no doubt’ as to the identity of the perpetrator is not supported.”
After discussing the Fingerprint Act and pertinent case law, the trial court initially
determined Petitioner satisfied three of the four requirements of Section 405. See T.C.A.
§ 40-30-405(2) to (4). However, it ultimately concluded that no reasonable probability
existed that the jury would have returned a more favorable verdict or sentence if expert
testimony had been offered for the opinion that the source of the bloody palm print could
not be identified. See T.C.A. § 40-30-405(1). The trial court thus ruled that Petitioner was
not entitled to court-ordered fingerprint analysis. The trial court also ruled Petitioner failed
to satisfy all four requirements of Section 404. The trial court also reviewed the findings
of Bright-Birnbaum’s report and found them unpersuasive. In support of its conclusion,
the court cited two opinions by this Court dealing with the DNA Act: James Eric Winston
v. State, No. M2006-01699-CCA-R3-CD, 2007 WL 2351164 (Tenn. Crim. App. Aug. 20,
2007), no perm. app. filed, and Steven Craig Griffin v. State, No. M2008-00242-CCA-R3-
PC, 2009 WL 564228 (Tenn. Crim. App. Mar. 5, 2009), perm. app. denied (Tenn. Jun. 15,
2009). Both of those cases essentially held that inconclusive testing results do not equate
to “favorable” results.
Discussion
Petitioner argues the trial court erred in denying him a hearing under Section 412
because, by the time he filed his petition, he already obtained what he deems to be favorable
results from the fingerprint analysis of his own expert. In addition, and despite the fact he
specifically states in his petition that he relies upon the provisions of Section 405, Petitioner
22
also argues the trial court confused the different standards set forth in Sections 404 and 412
and thus erred in denying him a hearing: The Petitioner frames his issue by stating the trial
court “[I]n failing to recognize that the Fingerprint Act sets forth differing procedures with
respect to ‘exculpatory’ versus ‘favorable’ prints, the court, then, proceeded to intermingle
the two, erroneously imputing the ‘exculpatory’ requirement from Section 404 into the
analysis of [Petitioner’s] entitlement to a hearing under Section 412.” According to
Petitioner’s argument on this point, because Section 412 mandates a hearing if the results
of the analysis are favorable, the “favorability” of the results may differ depending on
whether Section 404 or 405 applies. To that end, Petitioner contends the trial court
erroneously required him to prove the results of the analysis are exculpatory, as
contemplated by Section 404, rather than favorable.
The State argues Petitioner misinterprets the intent of the Fingerprint Act.
According to the State, the statute permits the trial court to order analysis only if a petitioner
first satisfies the requirement of Section 405, mainly that “a reasonable probability exists
that analysis of the evidence will produce fingerprint results that 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.” T.C.A. § 40-30-405(1). We agree.
The State also contends the trial court correctly determined Petitioner did not satisfy
Section 405(1). We, too, agree.
Section 403 of the Act provides that a party may petition the court for “the
performance of fingerprint analysis of any evidence” in the State’s possession. T.C.A. §
40-30-403. The Act does not detail what information or documentation a petition must
contain other than suggesting the moving party shall affirm that the evidence has not
already been subjected to the particular analysis being requested. T.C.A. § 40-30-405(3).
If the court decides to order fingerprint analysis, the statute directs the court to select the
original laboratory, or another lab deemed appropriate, to conduct the analysis. T.C.A. §
40-30-410. Accordingly, although Petitioner attached to his petition results from an
independent analysis previously conducted, the trial court was still required, first, to
consider whether Section 405(1) has been satisfied, and second, if fingerprint analysis is
ordered, to choose the original or similar lab to conduct the test. In his reply brief,
Petitioner argues the Act provides different procedures for the trial court to follow: one in
a case in which a petitioner has already obtained fingerprint analysis and another where a
petitioner is requesting the court to order the analysis. Petitioner simply misinterprets the
intent of the Act in this respect. Petitioner was obviously free to obtain (and pay for) his
own independent analysis. But that does not discount the trial court’s obligation, after a
petition has been filed by an appropriate party, to first decide whether 405(1) has been
satisfied. If the court answers in the affirmative, the Act mandates testing by the original,
or other appropriate, lab. T.C.A. § 40-30-410. Only then does the trial court move onto
the directives set forth in Section 412. T.C.A. § 40-30-412. The fact Petitioner already
paid for his own independent testing does not mean the trial court can ignore the mandates
of the Act. Section 408 contemplates the scenario presented in this case by requiring either
23
party to disclose the results of any independent analysis already obtained. T.C.A. § 40-30-
408 (“the analysis shall be revealed in the motion for analysis”). It does not require the
court, for obvious reasons, to consider only that independent analysis.
Petitioner focuses his argument on appeal on the meaning of the word “favorable,”
both in the context of Section 405(1) (“fingerprint results that would have rendered the
petitioner’s verdict or sentence more favorable”) and Section 412 (“If the results of the
post-conviction fingerprint analysis are favorable”). See T.C.A. §§ 40-30-405(1) and -412
(emphasis added). However, the first, and most crucial, step the courts must decide in the
process is whether “a reasonable probability exists” that testing of the fingerprint evidence
would result in a more favorable verdict or sentence. See T.C.A. § 40-30-405(1). Petitioner
cursorily addresses this question in a footnote in his principal brief by suggesting Bright-
Birnbaum’s report would have served to impeach the trial testimony of Sgt. Hunter.
However, because the trial court must presume the fingerprint analysis would be favorable
to Petitioner before determining whether there is a reasonable probability of a more
favorable verdict or sentence, Bright-Birnbaum’s report is not relevant in this analysis.
Powers, 343 S.W.3d at 55, n.28. We note that, although Petitioner insists Bright-
Birnbaum’s report is favorable to him, she merely opined that “the evidence is inconclusive
as to whether [Petitioner] is the source of the palm print from the crime scene” and that
“Mr. Hunter’s conclusion that the bloody print on the bed left ‘no doubt’ as to the identity
of the perpetrator is not supported.”
Again, the Act permits a party to request testing (Section 403), then requires the
court to determine whether testing should be ordered (Section 405), then, if the petition is
not dismissed, directs the court to order the testing at a specific lab (Section 410), and,
finally, permits the court to conduct a hearing on the matter if favorable testing results are
obtained (Section 412). We do not agree with Petitioner’s argument that a hearing must
occur simply because he has attached to his petition independent results which he deems
to be favorable. Such a procedure would ignore the overall intent of the Fingerprint Act
and puts the proverbial cart before the horse.
The trial court found no reasonable probability the jury would have returned a more
favorable verdict or sentence if evidence was presented at the time of trial that the source
of the bloody palm print was inconclusive. T.C.A. § 40-30-405(1). There is substantial
evidence in the records to support that conclusion. Again, “[a] reasonable probability of a
different result exists when potentially favorable [fingerprint] results ‘undermine the
confidence in the outcome of the prosecution.’” Charles Elsea, 2018 WL 2363589, at *4.
As the trial court observed, “the State possessed extensive circumstantial evidence against
Petitioner other than the palm print, including (1) Petitioner’s prior threats against and/or
prior violence involving the victims; (2) a neighbor seeing Petitioner’s car in the victims’
driveway the night of the murders; (3) life insurance policies taken out by Petitioner on the
lives of the three victims, and (4) one of the child victims yelling out ‘Frank, no!’ on the
911 recording.” Moreover, as the trial court noted, “[t]he evidence introduced at trial
24
suggested Petitioner (and nobody else) had motive to kill the victims.” Two of Petitioner’s
co-workers testified Petitioner solicited them to kill his wife. Likewise, as summarized
above, evidence, in addition to the neighbor’s testimony, was introduced to contest
Petitioner’s alibi defense. The jury also learned Petitioner referred to his estranged wife in
the past tense during questioning by the police and he did not “ask the officers the logical
questions of where, when, how and by whom” when he was informed about the murders.
Oscar Smith, 2005 WL 2416504, at *4. The post-conviction evidence also revealed
Petitioner “was not contesting that the print was his; he was claiming that someone planted
the print at the scene.” Oscar Franklin Smith, 1998 WL 345353, at *15. Even Bright-
Birnbaum could not conclusively state Petitioner did not leave the bloody palm print at the
crime scene.
We are mindful all of the trial evidence must be viewed in light of the effect the
favorable fingerprint evidence would have had on the jury during both stages of the trial in
this capital case. Powers, 343 S.W.3d at Id. at 55. That is, “[t]he ‘reasonable probability’
inquiry under section 40-30-[405(1)] of the Act requires courts to look at the effect the
[favorable fingerprint] evidence would have had on the evidence at the time of trial . . .,
not on the evidence as construed by an appellate court in the light most favorable to the
State.” Id. at 57. In the case at hand, if we stacked the assumed most favorable fingerprint
evidence on one side of a set of scales and the trial evidence on the other, the fingerprint
evidence would not even begin to affect the scales or tip them in Petitioner’s favor, either
as to the guilty verdict or the sentences of death. Accordingly, we conclude the trial court
did not abuse its discretion in determining no “reasonable probability” existed that
Petitioner would have received a more favorable verdict or sentence. The trial court’s
judgment is supported by substantial evidence.
Having concluded Petitioner did not satisfy Section 405(1), the trial court could
have correctly summarily dismissed the petition at that point. Instead, it proceeded to
review whether Bright-Birnbaum’s test results were favorable pursuant to Section 412. A
Section 412 analysis was not needed since Section 405(1) was not satisfied. As discussed
above, because the trial court must presume the fingerprint analysis would be favorable to
Petitioner before determining whether there is a reasonable probability of a more favorable
verdict or sentence, Bright-Birnbaum’s results were irrelevant to the court’s analysis. And
because we conclude the trial court did not abuse its discretion in finding Section 405(1)
was not satisfied, it is unnecessary for this Court to even consider the trial court’s
assessment of the results of Bright-Birnbaum’s testing.
Conclusion
Pursuant to the discussion above, the ruling of the post-conviction court is affirmed.
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TIMOTHY L. EASTER, JUDGE
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