State of Tennessee v. Ricky Lee Nelson-Concurring

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 27, 2014
• Docket: W2012-00741-CCA-R3-CD
• Status: Published

Opinion

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.

___________________________________ THOMAS T. WOODALL, JUDGE