Jamie Brock v. State of Tennessee ( 2022 )

08/23/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 23, 2022
JAMIE BROCK v. STATE OF TENNESSEE
Appeal from the Criminal Court for Claiborne County
No. 2021-CR-3680 E. Shayne Sexton, Judge
No. E2022-00082-CCA-R3-PC
The pro se petitioner, Jamie Brock, appeals from the dismissal of his petition filed pursuant
to the Post-Conviction DNA Analysis Act of 2001 (“the Act”), which petition sought the
appointment of counsel to assist him in seeking DNA testing of evidence related to his first
degree murder conviction. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and ROBERT H. MONTGOMERY, JR, JJ., joined.
Jamie Brock, Mountain City, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Jared R. Effler, District Attorney General; and Graham E. Wilson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In August 2006, a Claiborne County Criminal Court Jury convicted the
petitioner of one count of first degree murder for the August 2005 beating death of his wife,
Janet Brock. State v. Brock, 327 S.W.3d 645 (Tenn. Crim. App. 2009). This court affirmed
the petitioner’s convictions on direct appeal, and our supreme court denied review. Id.It appears that, at some point, the petitioner filed a “Motion for DNA
Testing” pursuant to Code section 40-30-303, seeking “DNA testing/comparison of three
samples” of saliva and blood evidence.1 In the motion, he asserted that the results of
1
A file stamped copy of the motion is not included in the record, but a non-filed copy was attached
to the petitioner’s Notice of Appeal. We presume that the petitioner properly filed the motion at some point
because the post-conviction court ruled on it.
additional DNA testing “will exonerate him,” pointing out that at the time of his trial,
“CODIS was new and the science itself was underdeveloped and often unavailable.” The
State filed a response to the petitioner’s motion, and the post-conviction court summarily
denied the motion on September 22, 2020.
On November 4, 2021, the petitioner filed a “Motion for Post-Conviction
DNA Act Representation,” pursuant to Code section 40-30-307, seeking the appointment
of counsel to pursue post-conviction relief under the Act. In this petition, the petitioner
fleshed out his claim, asserting that multiple exhibits used at trial contained the DNA of
unknown persons. The petitioner argued that because DNA analysis had advanced since
his trial, the previously unknown DNA contributors “could be revealed” by additional
testing and that the testing results would prove his innocence. He also sought the testing
of previously untested pieces of evidence. In its written response, the State argued that the
petitioner was attempting to “rehash” the post-conviction court’s denial of his prior motion
for DNA testing.
Although no transcript of proceedings appears in the record, the post-
conviction court’s order denying the petitioner’s motions for DNA testing and
representation dated February 8, 2022, indicates that “the [petitioner] was present on his
Motions for DNA testing and representation” on December 20, 2021.
In this timely appeal, the petitioner reasserts his claim that the court should
appoint him counsel to assist him in pursuing post-conviction relief, arguing that he has a
constitutional right to representation. The State argues first that the petitioner has waived
his claim by failing to prepare an adequate record for review. Alternatively, the State
argues that the petitioner has no constitutional right to counsel in post-conviction
proceedings and that the post-conviction court did not abuse its discretion by denying the
petitioner’s request for counsel. We agree with the State.
The Act applies only to certain felonies, including first degree murder.
T.C.A. § 40-30-303. A petitioner may request “the forensic DNA 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 the judgment of
conviction and that may contain biological evidence.” Id. 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:
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(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 a 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 DNA analysis. T.C.A. §§ 40-30-304(2), -
305(2).
A petitioner’s failure to meet any of the qualifying criteria is fatal to the
action. See William D. Buford v. State, No. M2002-02180-CCA-R3-PC, slip op. at 6
(Tenn. Crim. App., Nashville, Apr. 24, 2003). 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 has considerable discretion in determining
whether to grant relief under the Act, and the scope of appellate review is limited. See
Sedley Alley v. State, No. W2006-01179-CCA-R3-PD, slip op. at 7 (Tenn. Crim. App.,
Jackson, June 22, 2006). 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 appeal,
this court will not reverse unless the judgment of the lower court is not supported by
substantial evidence. Id.
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In interpreting the scope of the Act, this court has ruled that the Act’s reach
“is limited to the performance of DNA analysis which compares the petitioner’s DNA to .
. . biological specimens gathered at the time of the offense.” Sedley Alley, slip op. at 11.
In other words, 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. The Act, at most, creates “a limited interest
of a defendant in establishing his/her innocence and [does] not create an interest in
establishing the guilt of a speculative and unknown third party.” Id.
Assuming that a hearing on the petitioner’s motion was held on December
20, 2021, as indicated by the post-conviction court’s order of February 8, 2022, the
petitioner has waived our review of this matter by failing to include the transcript of the
proceedings of December 20, 2021 in the appellate record. See State v. Draper, 800
S.W.2d 489, 493 (Tenn. Crim. App. 1990) (“It is well-established that an appellate court
is precluded from considering an issue when the record does not contain a transcript or
statement of what transpired in the trial court with respect to that issue.”). Without this
transcript, we cannot evaluate what evidence and arguments the post-conviction court
considered and, consequently, we must presume the court’s ruling is correct. See id.Waiver notwithstanding, we note that it is well-established that the
constitutional right to counsel does not extend to post-conviction proceedings. House v.
State, 911 S.W.2d 705, 712 (Tenn. 1995) (“[T]he scope of the right to counsel is limited,
and applies only through the first appeal as of right. It does not apply to post-conviction
proceedings.” (citing Pennsylvania v. Finley, 481, U.S. 551, 554-55 (1987))). Moreover,
the section of our Code on which the petitioner bases his argument leaves the decision
whether to appoint counsel for proceedings under the Act to the discretion of the post-
conviction court. T.C.A. § 40-30-307 (“The court may, at any time during proceedings
instituted under this part, appoint counsel for an indigent petitioner.”) (emphasis added).
In our view, the post-conviction court did not abuse its discretion by denying the
petitioner’s motion for the appointment of counsel after it had denied his motion for DNA
analysis.
Accordingly, we affirm the judgment of the post-conviction court.
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JAMES CURWOOD WITT, JR., JUDGE
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