State of Tennessee v. David Johnson ( 2022 )

04/18/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 10, 2020
STATE OF TENNESSEE v. DAVID JOHNSON
Appeal from the Criminal Court for Shelby County
No. 16-00393 Lee V. Coffee, Judge
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No. W2019-01133-CCA-R3-CD
___________________________________
On October 12, 2018, a Shelby County jury convicted the Defendant, David Johnson, of
aggravated rape committed in February 2000, based on DNA evidence linking him to the
crime. On appeal, the Defendant asserts that he is entitled to have the conviction
reversed and dismissed because he was not timely indicted. He also argues that the State
failed to establish the chain of custody of the DNA evidence. We conclude that the
Defendant was timely indicted through a “John Doe” indictment and that the trial court
did not abuse its discretion in finding that the chain of custody was adequately
established for the DNA evidence. Accordingly, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.
Shae Atkinson (at hearing on remand and on appeal),1 Robert Golder (on appeal),
Claiborne Ferguson (at trial), and Hayden Lawyer (at the motion for a new trial),
Memphis, Tennessee, for the appellant, David Johnson.
1
The trial court initially appointed Mr. Atkinson to represent the Defendant on appeal, but Mr.
Golder filed a motion for substitution of appellate counsel and filed the Defendant’s appellate brief. The
Defendant filed various motions seeking to change his representation, and Mr. Golder filed a motion to
withdraw. This court denied the motions and on November 23, 2021, entered an order declaring that Mr.
Golder remained counsel of record. On remand, the trial court held a hearing, during which it appointed
Mr. Atkinson to represent the Defendant after observing that Mr. Golder was working in another county
as a public defender. This court subsequently appointed Mr. Atkinson to represent the Defendant for the
remainder of the proceedings on appeal.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Cavett Ostner and Dru
Carpenter, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The victim was raped at knifepoint by an intruder in the early morning hours of
February 14, 2000. Although DNA evidence was collected, the evidence sat in a storage
facility and was not tested until years after the crime. At trial, the State presented
evidence that the DNA recovered from the victim was linked to the Defendant, while the
Defendant argued that the DNA evidence was not reliable.
In February 2000, the victim and her children shared a ground-floor apartment
with the victim’s twin sister. The victim’s sister’s bedroom had bars on the window, but
the victim’s bedroom, where she slept alone, did not. The victim testified that she spent
the evening of February 13, 2000, with her boyfriend and that she had consensual
intercourse with him. She returned to the apartment around 1:00 a.m. on February 14,
2000, took a shower, and went to bed. At around 2:30 or 3:00 a.m., the victim turned
over and saw a strange man in the window. She turned on the light, and the man told her
that he had a gun and instructed her to turn the light off. The victim complied, and the
man came through the window. The man put a butcher knife to the victim’s throat, told
her to turn onto her stomach, cut her underwear off with the knife, and penetrated her
vaginally while pressing the knife to her back. He then penetrated her orally. The victim
testified she could not see his face and could not tell what race the intruder was but that
he smelled like “a panhandler on the street.” The man fled out the window, and the
victim reported the rape to her sister, who called the police. The victim’s sister
confirmed that the victim woke her up, crying and shaking, and reported she had been
raped.
The victim was examined at the Memphis Sexual Assault Resource Center
(“MSARC”), and evidence was collected. Prior to the admission of the DNA evidence,
the Defendant objected on the basis that the State would not be able to establish the chain
of custody. The State reviewed its anticipated proof on the issue, and the trial court ruled
that, “subject to the … State’s … establishing a beginning and the end and no indicia of
tampering or substitution,” it would allow the evidence to be admitted.
Ms. Sally DiScenza, an expert in sexual assault examination, testified that she
collected evidence by swabbing the victim for DNA. She testified she would normally
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allow a victim to give a narrative and then specifically ask whether there was also an oral
or anal assault. She could not state whether she had done so in this case, and the victim’s
medical records indicated there was no oral assault. Ms. DiScenza sealed the evidence
she collected from the victim and put it into a locked storage area at the MSARC. At
trial, she identified the victim’s sexual assault kit, noting that she had signed and sealed
the kit at the time the evidence was collected.
Mr. Brian Smith, who was employed at the MSARC in February 2000, testified
that he transported the evidence to the Memphis Police Department. Mr. Smith had a key
to the lockbox in the nurse’s station of the MSARC. He identified his signature on the
evidence collected by Ms. DiScenza and the time and date in 2000 that he transported it.
He testified that he transferred the evidence to the north precinct of the Memphis Police
Department on Old Allen Road, where it was placed in a locked, temperature-regulated
room. He did not know what happened to the evidence after he placed it there.
Officer Thomas Smith took a statement from the victim at the MSARC, and the
victim told him that she would not be able to identify her assailant’s face. Officer Smith
accordingly did not show her a photographic lineup. Officer Smith stated that the victim
had described the knife as a steak knife. Officer Carl Sanford collected fingerprints from
the scene and also collected and photographed a pair of women’s underwear found near
the bed. Officer Smith testified that, while fingerprints were collected from the scene,
none of the fingerprints were of value. Accordingly, the case was closed as a “dead end.”
The victim did not hear anything further about the case until Sergeant Israel
Taylor contacted her in 2014. Sergeant Taylor had been assigned to investigate cases
with untested sexual assault kits. He acknowledged that he was unable to look at the
original investigatory file and could only view digital documents related to the case. In
the victim’s case, a suspect was identified, and Sergeant Taylor met with the victim and
showed her a photographic lineup which included the Defendant’s photograph. The
victim reiterated that she had not seen her assailant’s face, and she could not identify any
of the men in the lineup as the assailant. The victim told Sergeant Taylor that she had
never had consensual sex with any of the men in the photographic lineup. The victim’s
sister likewise testified that she had met the victim’s boyfriend from the time of the
assault and that she did not recognize any of the men in the lineup. Sergeant Taylor
attempted to locate the victim’s boyfriend from the time of the assault, and although he
found individuals with the same name in Memphis, he could not locate the correct
individual. The victim was not able to provide him with enough information to allow
him to locate her prior boyfriend.
The victim acknowledged having initially told police, “Because of the smell, I
thought it could have been a white person, but I’m not sure. It could have been a black
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person.” She acknowledged that she had not told police in 2000 about the oral rape and
explained that she was embarrassed to tell. Sergeant Taylor confirmed that the victim
was calm but became “uneasy” and “ashamed” when she told him in 2014 about the oral
rape. The victim did not recall describing the knife as a steak knife rather than a butcher
knife.
Special Agent Lawrence James, an expert in forensic biology with the Tennessee
Bureau of Investigation (“TBI”), performed analysis on the evidence collected from the
victim. He identified the sexual assault kit through seals, markings, barcodes, his initials,
and its unique lab number, 123004135. Special Agent James said that the kit first came
into his laboratory on July 16, 2012. The kit was sealed, and there was no evidence of
tampering. He testified that if he had seen any evidence of tampering, he would have
noted it and stopped the analysis. He stated that, with the exception of two pieces of
orange tape that he had added and marked with his initials to reseal the package, it was in
the same condition at trial as when he first saw it. Special Agent James’s documentation
indicated that the package was received on July 16, 2012, from Ms. Amber Garner.
Special Agent James processed the kit in 2012 and found sperm cells on the
vaginal swabs collected from the victim. At the time, the TBI required written
documentation from the district attorney before conducting further analysis.
Accordingly, his January 8, 2013, report noted, “DNA testing will be performed upon
request of the District Attorney General and receipt of a proper standard from the
consensual sex partner.” Special Agent James subsequently received a request for
testing, and his documentation indicates that the evidence was received again from Ms.
Garner on July 2, 2013. Special Agent James testified that he reopened the kit prior to
performing further testing and that all the seals were intact prior to his reopening it. The
rape kit included a blood standard from the victim, which exhibited some degradation but
was complete enough to compare to the other evidence. Special Agent James analyzed
the vaginal swabs collected by Ms. DiScenza and identified a mixture of DNA from at
least three individuals, and he was able to create a profile for the dominant contributor,
who was a male. He put the profile into a database, and issued a report on January 13,
2014, documenting his findings.
Sergeant Samuel McMinn testified that in 2016, he took a DNA sample from the
Defendant and submitted the sample for testing to the TBI. Special Agent James
received the sealed sample on August 26, 2016, and he conducted further analysis. Based
on his analysis, he concluded that the victim’s DNA was consistent with being a minor
contributor to the profiles on the vaginal swabs. The Defendant “did match up, or at least
was consistent, with the major profile from the vaginal swabs.” Special Agent James
testified that the probability of a randomly selected individual in the African American
population having the same profile was one in 676.6 quintillion, and the probability was
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further reduced in other racial populations. He stated that this probability exceeded the
world population.
On cross-examination, he agreed that the instrumentation and chemistry of DNA
analysis had changed since the time the sample was taken and that DNA analysis was a
relatively new field. He agreed that DNA would degrade with heat and humidity.
Special Agent James agreed that it would be important to have a standard from a
consensual sexual partner to exclude the consensual sexual partner, and he testified he
never received DNA from the victim’s consensual sexual partner. He agreed that a DNA
profile from a sample which contained a mixture of different individuals was not
generated entirely by a machine but that he had to make a determination regarding which
allele was part of which profile. He also agreed that the alleles identified by the machine
could be affected by “stutter,” “drop in,” or “drop out.” Special Agent James observed
some degree of degradation in both the victim’s blood standard and in the vaginal swabs,
and this degradation might have caused lower level contributors to drop out.
Nevertheless, he testified that he obtained a “robust profile” from the major contributor
and that the major contributor was the Defendant.
The parties entered by stipulation two exhibits for identification. One was a
supplement by Ms. Garner showing that she retrieved the evidence from “Old Allen
Station” on July 6, 2012, that she released it to the property and evidence room of the
Memphis Police Department on July 16, 2012, and that she subsequently transferred it
from the property and evidence room to the TBI on the same date. She retrieved the
evidence from the TBI and transferred it to the property and evidence room on January
31, 2013, and she resubmitted it to the TBI on July 2, 2013, and retrieved it again on
February 10, 2014. The other report was a “Chain of Custody” report showing the same
movement of the evidence after it was received by the property and evidence room on
July 16, 2012.
The jury found the Defendant guilty of aggravated rape. At the sentencing
hearing, the Defendant requested but was denied a continuance for the purpose of
obtaining new counsel, noting in particular that he had never been provided the “John
Doe” indictment and that the State had not pled facts pertinent to tolling. The parties
agreed that the Defendant was a Range I offender. The trial court found as enhancement
that the Defendant had a previous history of criminal behavior in addition to the offenses
necessary to establish his range. In particular, the Defendant had four prior felonies.
Two of them took place in Oklahoma and involved the Defendant entering two separate
women’s dwellings through unlocked windows. In one of the offenses, he assaulted a
sixteen-year-old girl and beat her nineteen-year-old sister when the sister attempted to
fend him off. He also had multiple misdemeanor convictions. The trial court sentenced
him to the maximum of twenty-five years to be served at one hundred percent.
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Post-Trial Proceedings
The Defendant moved for a new trial, asserting various grounds, including that the
State failed to prove the integrity of the DNA evidence, in particular by not introducing
evidence regarding the condition of the kit or how the kit was stored and maintained for
twelve years and by not establishing the identity of the kit. The Defendant’s grounds for
a new trial also included allegations that the State’s DNA evidence was inaccurate
according to a defense expert,2 that the State “failed to prove the chain of custody,” that
the statute of limitations had expired, and that the “John Doe” indictment was not served
on the Defendant and improperly used DNA coding.
At the hearing on the motion for a new trial, the Defendant introduced as exhibits
the laboratory data related to the DNA analysis, noting that his expert relied on the
materials and that he received them in discovery. Part of the one-hundred-page analysis
packet was a sheet beginning on “Page 2” which followed what was already the second
page of Special Agent James’s January 2014 report. The unsigned narrative, which
appears to have been initialed by Special Agent James, recites that the author became
aware of an issue in an unrelated case in which evidence was reported as having been
submitted by the Shelby County District Attorney General’s office on December 13,
2012, although the evidence was actually in the TBI vault at the time. The author of the
partial report reviewed other cases in which evidence was purportedly submitted by the
same investigator on December 13, 2012. Evidence in one unrelated case was actually
submitted on December 13, 2012. Regarding the case at bar, the report narrative states
that “123004135 was actually in my possession and being worked on 12/13/12. So the
evidence transfer in LIMS was clearly erroneous.” The narrative noted that two amended
reports were issued in the Defendant’s case. The January 13, 2014, report states, “This
report[] is an amended version of the Serology/DNA report originally issued 12/19/13. It
has been amended to reflect accurate chain of custody.” The Defendant did not present
any argument at the hearing on the motion for a new trial related to the “Page 2” partial
report.
The trial court ruled that the Defendant was not entitled to relief based on the
issues raised in the motion for a new trial. In particular, it found that the rape kit was
sealed and showed no evidence of tampering, that the DNA evidence was described as
“robust” by the expert, and that the indictment charging the Defendant with aggravated
rape was a superseding indictment. The trial court stated that no motion was filed to
2
At the hearing, the parties mentioned an amended motion filed April 25, 2019, which included
an affidavit. The amended motion in the record was filed on April 16, 2019, and no affidavit is included
in the record.
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dismiss the indictment based on the statute of limitations, and it reviewed the timeliness
of the indictment for plain error. 3 It found that the “John Doe” indictment was timely
filed and that the State did not have to plead any tolling facts with regard to the statute of
limitations. The court found that a “John Doe” indictment cannot be served and that the
Defendant was indicted by name pursuant to a superseding indictment after his DNA
profile was confirmed as a match for the sperm recovered from the victim. At the
hearing, the Defendant personally addressed the court regarding the indictment, stating
that he had been trying to obtain a copy for three years, during which time he was
“constantly bringing it up in your courtroom, Your Honor, that … nobody [will] give me
a copy of it.” The court denied the motion for a new trial.4
On appeal, the Defendant filed a brief arguing that the statute of limitations had
expired because a “John Doe” indictment had never been filed and no tolling facts were
alleged, and he asserted that the rape kit was not properly authenticated and the chain of
custody not established. On January 30, 2020, after the Defendant filed his brief, the trial
prosecutor asked the trial court to supplement the appellate record with the “John Doe”
indictment, attaching an affidavit which noted that the “John Doe” indictment, number
15-00747, identified the accused by DNA and was returned on February 12, 2015, and
that the “John Doe” indictment was superseded by indictment number 16-00393, which
identified the Defendant by name and was returned on January 21, 2016. On February
10, 2020, the Assistant Attorney General moved to supplement the record with the “John
Doe” indictment. This court granted the motion to supplement.
The Shelby County Clerk subsequently forwarded a certification that the “John
Doe” indictment, number 15-00747, “has not been received or not to be found.” The
State moved for an extension of time, noting that it anticipated that the record would be
supplemented with the “John Doe” indictment. On March 24, 2020, the trial court
entered a written order to supplement the record, and the clerk subsequently forwarded
the trial court’s order and the “John Doe” indictment to this court.
The “John Doe” indictment, number 15-00747, was returned on February 12,
2015, and it alleged that “John Doe,” TBI case number 1230004135, committed
aggravated rape of the victim in the case at bar between February 12 and February 15,
3
The attorney initially representing the Defendant at trial filed a motion to dismiss the indictment
based on a due process violation premised on preindictment delay relative to the 2016 superseding
indictment, but the record does not reflect any resolution of this motion.
4
While a written order is not in the appellate record, this court ordered and received a
supplemental record with the minute entry showing that the motion was denied. See State v. Byington,
284 S.W.3d 220, 223 (Tenn. 2009) (holding that when the record contained a transcript of the denial of
the motion for a new trial but no order, the proper procedure was to order supplementation of the record).
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2000. The indictment contained the DNA profile of the perpetrator, identifying the loci
used and the numerical values associated with the loci. The technical record on appeal
contains an indictment returned on January 21, 2016, naming the Defendant in the
aggravated rape of the victim committed on February 12, 2000. Prior to trial, the
prosecutor asked for an amendment to the 2016 indictment, noting that the 2016
indictment was a “superseding indictment that lists David Johnson,” that the correct date
range was between February 12 and February 15, 2000, and that “[t]he John Doe warrant
that was originally issued had the correct range of dates, February the 12th of 2000,
through February the 15th of 2000.” Trial counsel informed the court that he did not
believe there was a good faith basis to object to the amendment, but the Defendant
addressed the court and objected to the amendment of the superseding indictment, putting
forth a contention that there was no “John Doe” indictment.
After the trial court clerk supplemented the record with the “John Doe”
indictment, the State filed its appellate brief. Subsequently, on May 8, 2020, the
Defendant moved to strike the supplemental record containing the “John Doe”
indictment, arguing that the indictment “magically appeared,” under “suspicious
circumstances” and had been improperly included because it had not been made part of
the record below or considered by the trial court. The Defendant also argued that the
indictment was improperly supplemented because the court’s order to supplement the
record occurred after an improper ex parte meeting with the prosecutor. The State
responded that appellate counsel had been aware of the motion to supplement for three
months and had waived any objection. It argued that the record contained numerous
references to the “John Doe” indictment and that the indictment was therefore properly
includable. The State’s response included a declaration by the Assistant District Attorney
General (the “ADA”) that the trial court had granted a January 2020 motion to
supplement, that the clerk’s office would not supplement without a written order, and that
he obtained a written order in March 2020. The declaration stated that the ADA
informed the Defendant’s trial counsel that he was seeking to supplement the record, and
that trial counsel had no objection. This court ordered and received supplemental
briefing on the issue surrounding the supplementation of the record.
In its January 19, 2021, order, this court expressed “deep concern about the
Defendant’s ‘thinly-veiled’ allegation that the State fraudulently manufactured the ‘John
Doe’ indictment,” noting that the Defendant based the claim in part on the inaccurate
assertion that the “John Doe” indictment was never mentioned during trial proceedings.
However, because the Defendant’s appellate counsel was not given proper notice of the
hearing in the trial court regarding supplementation, we remanded the case for a hearing
and for the trial court to make written findings regarding whether the “John Doe”
indictment in the appellate record accurately reflects what occurred in the trial court.
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On November 22, 2021,5 the trial court held a thorough hearing and entered
detailed findings of fact to facilitate this court’s appellate review. The trial court found
that the delay in holding a hearing was attributable to the Defendant, whose counsel
“abandoned him basically,” because the trial court “could not get [counsel] to come to
court.” The court noted that, after further delay during which the Defendant attempted to
hire private counsel, the trial court had appointed new counsel for the purpose of holding
the hearing.
At the hearing, the ADA who tried the case testified that, after communicating
with the Assistant Attorney General assigned to the appeal, he asked the trial court to
supplement the record. The ADA submitted an affidavit with his motion to supplement
the record, and in the affidavit, he stated that the “John Doe” indictment, which identified
the Defendant by DNA, was superseded by an indictment naming the Defendant. The
ADA had contacted trial counsel’s office before addressing the trial court. The ADA
presented the “John Doe” indictment to the trial court for the purpose of supplementing
the record. He testified that he retrieved the “John Doe” indictment from the “clerk’s
jacket,” and he identified the “John Doe” indictment, which was made an exhibit to the
hearing. The ADA stated that there was never “any question as to the existence of” a
“John Doe” indictment. He testified that the State’s file number on the “John Doe”
indictment was AX1896 and that the number on the superseding indictment was
AX1896A, indicating that it superseded the prior indictment. He agreed that the
superseding indictment was subsequently amended to reflect the correct dates of the
offense.
Ms. Cassaundra Horton, who worked for the criminal court clerk’s office, testified
that each indictment would come with an indictment number and a number from the
District Attorney General’s office, and that each case would be assigned a “C” number
for the Odyssey data system. If an indictment listing a “John Doe” was superseded by an
indictment with a named individual, the indictments would have different numbers. She
stated that she searched several times for the “John Doe” indictment, number 15-00747,
and that every time she entered the indictment number, “it [would] come[] back no match
found.” She testified that the system would not retrieve any not-in-custody (or “John
Doe”) cases and that these cases would only be visible if a superseding case was linked to
them. Typically, a superseding case would not be linked to a “John Doe” indictment, and
it was not linked in this case. The cases were linked only by the number assigned by the
District Attorney General’s office. She stated that while the “John Doe” indictment
would not be accessible on the computer system, that did not mean that the indictment
did not exist.
5
This court filed an order on the day after the hearing, November 23, 2021, noting that no
supplement had been received and ordering the trial court to update this court on the status of the remand.
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In order to clarify the record to facilitate appellate review, the trial court conducted
a thorough analysis of the issue and made specific findings of fact. Regarding the clerk’s
initial certification that the “John Doe” indictment had “not been received or [was] not to
be found,” the trial court found that statute prohibited an indictment returned against a
person not in custody from being inspected by any person except the judge, clerk of the
court, and the district attorney general until the defendant had been arrested. See T.C.A.
§§ 40-13-111, -112; State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996) (noting that a
sealed indictment has the effect of formally charging a defendant but “is not subject to
inspection by, or disclosure to, the public until the defendant is arrested or makes bail”).
The court found that in this case, the “John Doe” indictment was never served on the
Defendant because once his identity was confirmed through DNA analysis, a superseding
indictment was issued. The Defendant was ultimately arrested and served with the
superseding warrant. The court found that because the “John Doe” indictment had never
been served, the clerk’s office could not legally make the document public. The trial
court concluded that “[t]he indictment has continuously been in the custody of the office
of the Shelby County Criminal Court Clerk.” (Emphasis in the original.) The court
found that the indictment should be included in the record and that the supplemental
record consisting of the “John Doe” indictment accurately reflected what had occurred in
the trial court.
ANALYSIS
I. “John Doe” Indictment
The Defendant argues that prosecution was not begun within the limitations period
because there was no “John Doe” indictment. He asserts the trial court erred insofar as it
denied his claim based on failure to raise the issue prior to trial. He also contends that
even if the “John Doe” indictment existed, the superseding indictment was invalid for
failing to plead specific facts as to tolling. The State responds that the Defendant was
timely indicted through the “John Doe” indictment and through the superseding
indictment. The State asserts that the “John Doe” indictment was properly included as a
supplement to the record. We conclude that the “John Doe” indictment is properly before
this court and that the record reflects that the Defendant was indicted within the statutory
limitations period.
A. Supplementation of the Record
The Defendant moved for this court to strike the supplemental record containing
the “John Doe” indictment, asserting that it was not properly includable. He cited to the
Rule regarding hearsay to argue that the indictment was not self-authenticating because
the circumstances of its preparation indicated a lack of trustworthiness. See Tenn. R.
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Evid. 803(8) (providing a hearsay exception for public records “[u]nless the source of
information or the method or circumstances of preparation indicate lack of
trustworthiness”). The State argued that the indictment, as a certified copy of a public
record, was self-authenticating and that the trial court had properly ruled on the validity
of the indictment. See Tenn. R. Evid. 902(4).
Tennessee Rule of Appellate Procedure 24(e) provides:
If any matter properly includable is omitted from the record, is improperly
included, or is misstated therein, the record may be corrected or modified to
conform to the truth. Any differences regarding whether the record
accurately discloses what occurred in the trial court shall be submitted to
and settled by the trial court regardless of whether the record has been
transmitted to the appellate court. Absent extraordinary circumstances, the
determination of the trial court is conclusive. If necessary, the appellate or
trial court may direct that a supplemental record be certified and
transmitted.
Tenn. R. App. P. 24(e). However, supplementation should be limited to matters
necessary to demonstrate what transpired in the trial court:
Nothing in this rule shall be construed as empowering the parties or any
court to add to or subtract from the record except insofar as may be
necessary to convey a fair, accurate and complete account of what
transpired in the trial court with respect to those issues that are the bases of
appeal.
Tenn. R. App. P. 24(g). Supplementation is not limited to matters introduced into
evidence at trial, but may include other matters considered by the trial court. State v.
Housler, 167 S.W.3d 294, 297 (Tenn. 2005) (concluding that a transcript used during trial
was properly includable although it was never introduced as an exhibit); see State v.
Smotherman, 201 S.W.3d 657, 661 (Tenn. 2006) (the record did not show that the search
warrant and affidavit were entered into evidence, but they were properly included in a
supplemental record because it appeared that the trial court considered them). Matters
not considered below are not properly includable. State v. Rogers, 188 S.W.3d 593, 611
(Tenn. 2006) (concluding that sealed records which were part of pretrial discovery but
were never before the trial court were not includable in the appellate record).
“[A]bsent extraordinary circumstances, an appellate court does not have the
authority to refuse to consider matters that are determined by the trial court judge to be
appropriately includable in the record.” Bradshaw v. Daniel, 854 S.W.2d 865, 869
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(Tenn. 1993) (concluding that the appellate court erred in refusing to consider the
transcript of the first trial when the trial court had considered that testimony in denying
summary judgment). The “dual goals of avoiding technicality and expediting a just
resolution of the case on its merits …. are achieved by according deference to the trial
court’s decision as to which matters are properly includable in the record, thereby
avoiding additional litigation on that subject alone.” Housler, 167 S.W.3d at 296. As we
noted in our order remanding the case, the trial court is in the best position to determine
which matters are “necessary to provide a fair, accurate, and complete account of the
proceedings upon which the appeal is based.” Id.Because the parties agreed that the supplementation took place pursuant to a
hearing of which the Defendant’s appellate counsel had no notice and during which he
had no opportunity to be heard, we remanded for the trial court to hold a hearing
regarding whether the “John Doe” indictment was properly includable in the record. The
trial court conducted a very thorough hearing and entered detailed findings of fact
regarding the matter. At the hearing, the prosecutor identified the “John Doe”
indictment, number 15-00747, and he stated that he had obtained it by retrieving it from
the “clerk’s jacket.” He noted that the numbers assigned to the “John Doe” indictment
and the 2016 indictment reflected that the 2016 indictment was a superseding indictment
of the “John Doe” indictment. Ms. Horton testified that a “John Doe” indictment would
not be accessible through the computer system used by the clerk’s office unless it was
specifically linked to a superseding indictment. The trial court found that the “John Doe”
indictment had “continuously been in the custody of the office of the Shelby County
Criminal Court Clerk.” It found that the indictment had not been made accessible to the
Defendant or the public because, pursuant to Tennessee Code Annotated sections 40-13-
111 and -112, it is a misdemeanor to allow any person other than the judge, the
prosecutor, and the clerk to inspect an indictment against a person not in custody prior to
its being served. See T.C.A. §§ 40-13-111 (“When an indictment is found against any
person not in actual custody or who has not given bail to answer to the indictment, that
indictment shall not be inspected by any person except the judge and clerk of the court
and the district attorney general until the defendant has been arrested.”); -112(a); -112(b)
(making disclosure of the indictment a Class A misdemeanor). The trial court concluded
that the “John Doe” indictment should be included in the appellate record because it
accurately reflected what transpired in the trial court with respect to issues raised on
appeal.
The Defendant’s supplemental brief challenged the authentication of the “John
Doe” indictment. Under Tennessee Rule of Evidence 902(4), no extrinsic evidence of
authenticity is required for:
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A copy of an official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded or filed in a
public office (including data compilations in any form), certified as correct
by the custodian or other person authorized to make the certification, by
certificate complying with paragraph (1), (2), or (3) of this rule or
complying with any Act of Congress or the Tennessee Legislature or rule
prescribed by the Tennessee Supreme Court.
Tenn. R. Evid. 902(4). Here, the indictment was recorded or filed in a public office and
certified as correct by the custodian of records. Id. The certification bore a seal
purporting to belong to “a political subdivision, department, office, or agency” of the
State. See Tenn. R. Evid. 902(1). In any event, the document was authenticated on
remand by the testimony of the ADA, who identified the “John Doe” indictment as the
one he retrieved from the “clerk’s jacket.” The Defendant claimed in his brief urging this
court to strike the document that the circumstances of the preparation of the document
indicated a lack of trustworthiness under Tennessee Rule of Evidence 803(8) because the
clerk initially supplemented the record with a certification that the indictment could not
be located. We note that this Rule pertains to hearsay, but in any event, the trial court
found that the indictment had been continuously in the clerk’s possession and was simply
not produced due to the statutory mandates in Tennessee Code Annotated sections 40-13-
111 and -112.
The trial court ordered the record to be supplemented with the “John Doe”
indictment. We conclude that there are no “extraordinary circumstances” which would
undermine the conclusive nature of the trial court’s determination. See Tenn. R. App. P.
24(e). Therefore, we will consider the “John Doe” indictment in evaluating the
Defendant’s claim that the statute of limitations prohibits his prosecution.
B. Statute of Limitations
The Defendant asserts that the trial court erred in reviewing the issue regarding the
statute of limitations for plain error because he was not required to raise the issue prior to
trial. He also argues that prosecution was barred because it was not begun in the
statutory limitations period and that even if the “John Doe” indictment was timely
returned, the superseding indictment failed to plead tolling facts. The State responds that
the prosecution was properly commenced prior to the expiration of the statute of
limitations through the filing of the “John Doe” indictment.
Prosecution of a felony offense is barred unless it is begun within the statutory
limitations period. T.C.A. § 40-2-101. The limitations period serves to protect against
delay and the use of stale evidence and serves as an incentive to efficient prosecution.
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State v. Burdick, 395 S.W.3d 120, 124 (Tenn. 2012). A statute of limitations is not
jurisdictional but may be waived so long as the waiver is knowingly and voluntarily
entered. State v. Pearson, 858 S.W.2d 879, 887 (Tenn. 1993). Although the right to
timely prosecution is not a fundamental right, it is nevertheless “substantial.” Id. “To
determine whether a knowing and voluntary waiver of the statute of limitations exists, the
court utilized ‘the same standard applied in determining whether there has been an
effective waiver as to fundamental rights.’” State v. Shell, 512 S.W.3d 267, 274 (Tenn.
Crim. App. 2016) (quoting Pearson, 858 S.W.2d at 887). The relinquishment of the right
to a timely prosecution may not be presumed from a silent record. Pearson, 858 S.W.2d
at 887. Here, we agree with the Defendant that the record does not indicate that he
waived his right to indictment within the limitations period.
The prosecution for a Class A felony offense must be begun within fifteen years.
T.C.A. § 40-2-101(b)(1) (1998); T.C.A. § 39-13-502(b) (2000) (classifying aggravated
rape as a Class A felony). “A prosecution is … commenced, within the meaning of this
chapter, by finding an indictment or presentment or the issuing of a warrant identifying
the offender by a deoxyribonucleic acid (DNA) profile.” T.C.A. § 40-2-104 (2013); see
2013 Tennessee Laws Pub. Ch. 205 § 2 (noting that the amendment related to indictment
by DNA profile “shall apply to the commencement for any offense, regardless of when
committed” so long as the limitations period has not expired).
A superseding indictment is one obtained without dismissal of the prior
indictment, and the prosecution has the broad discretion to seek a superseding indictment
so long as jeopardy has not attached. State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000).
“Thus, the State may obtain a superseding indictment at any time prior to trial without
dismissing the pending indictment and may then select the indictment under which to
proceed at trial.” Id.So long as a timely indictment is pending and the charges are neither broadened
nor substantially amended, the superseding indictment may be filed after the statute of
limitations has run. State v. Lawson, 291 S.W.3d 864, 872 (Tenn. 2009). “Further, the
subsequent indictment need not include ‘commencing facts’ to establish that the
prosecution was timely and initiated by other of the statutory methods.” Id. The
Defendant’s argument that “the original indictment must be specifically pled as a ‘tolling
fact’ to justify the issuance of a time-barred indictment” is contrary to law. When an
indictment has been timely issued, a superseding indictment need not allege facts
showing that the prosecution was commenced within the limitations period. State v.
Nielsen, 44 S.W.3d 496, 499-500 (Tenn. 2001) (distinguishing State v. Comstock, 326
S.W.2d 669 (Tenn. 1959), relied on by the Defendant here, on the basis that the timely
filed indictment in Comstock had been quashed); State v. Messamore, 937 S.W.2d 916,
919 (Tenn. 1996) (the State was not required to plead tolling facts when prosecution was
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timely commenced by means other than the indictments, which were returned after the
limitations period).
Because “a DNA profile exclusively identifies an accused with nearly irrefutable
precision,” the inclusion of a DNA profile on a “John Doe” warrant is sufficient to
identify a defendant with reasonable certainty as required by constitution and statute.
Burdick, 395 S.W.3d at 128 (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7;
T.C.A. § 40-6-208; Tenn. R. Crim. P. 4(c)(1)(B)). Accordingly, “[a] criminal
prosecution is commenced if, within the statute of limitations for a particular offense, a
warrant is issued identifying the defendant by gender and his or her unique DNA profile.
Furthermore, a superseding indictment in the defendant’s proper name provides the
requisite notice of the charge.” Id. at 130.
In his motion to strike, the Defendant asserts that he has never been identified as
the person in the “John Doe” indictment because the jury was not provided the “John
Doe” indictment and accordingly never made a factual finding that he was the person
whose DNA was listed in the “John Doe” indictment. He does not, and cannot, cite any
authority for the proposition that the jury was required to find beyond a reasonable doubt
that his DNA was listed in the original “John Doe” indictment. The jury found beyond a
reasonable doubt that the Defendant’s DNA was recovered from the victim’s vaginal
swabs, and accordingly, his identity was properly established at trial. We note that the
exhibits contain analysis listing the numerical DNA profile obtained from the sperm in
the swabs, which matches that listed in the “John Doe” indictment, and that Special
Agent James testified that the Defendant’s known DNA matched the DNA from the
swabs. In any event, the Defendant never presented to the trial court his contention that
the indictment did not name him because his DNA did not match that listed in the “John
Doe” indictment, and he never challenged the superseding indictment on this ground
below. Accordingly, the court was not given the opportunity to make any factual
findings regarding the identity of the DNA listed in the “John Doe” indictment. Insofar
as this issue is raised, it is waived, and the Defendant is not entitled to relief. State v.
Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time
on appeal are considered waived.”).
Here, the “John Doe” indictment, listing the Defendant’s genetic profile and
naming the victim and date, was returned on February 12, 2015, within the fifteen-year
statutory limitations period. A superseding indictment was returned in 2016, after the
Defendant was identified by name. The trial court found on remand that the “John Doe”
indictment had been continuously in the possession of the trial court clerk after it was
issued. The court further found, consistent with the testimony of the ADA, that after the
Defendant was identified as the perpetrator through his DNA, the indictment was
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superseded by the 2016 indictment which named the Defendant. The Defendant was
timely indicted and is not entitled to relief.
II. Authentication and Chain of Custody
The Defendant next asserts that the sexual assault kit should not have been
admitted because it could not be properly authenticated due to a break in the chain of
custody. He asserts that the authenticity of the sexual assault kit is “highly suspect
because of inaccuracies and inconsistencies glaring enough to require the creation of an
‘amended’ chain of custody.” He contends that Special Agent James “was able to receive
the kit on July 12, four days before it was received by the TBI” and that the kit had been
“misidentified” when a report showed it as “purportedly submitted to the TBI on
December 13, 2013 despite having already been in the possession of the TBI since July.”
We conclude that the evidence presented to the trial court was adequate to establish the
identity and integrity of the evidence.
Tennessee Rule of Evidence 901 requires that physical evidence be authenticated
prior to its admission, and authentication requires evidence sufficient “to support a
finding by the trier of fact that the matter in question is what its proponent claims.”
Tenn. R. Evid. 901(a). “[I]t is ‘well-established that as a condition precedent to the
introduction of tangible evidence, a witness must be able to identify the evidence or
establish an unbroken chain of custody.’” State v. Cannon, 254 S.W.3d 287, 296 (Tenn.
2008) (quoting State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000)). Evidence should not be
admitted if its identity and integrity cannot be demonstrated by chain of custody or other
appropriate means. Scott, 33 S.W.3d at 760. This requirement is meant to preclude the
possibility that the evidence has been subject to tampering, substitution, or mistake.
Cannon, 254 S.W.3d at 296. Authentication requires that each link in the chain be
sufficiently established, but “[a]n item is not necessarily precluded from admission as
evidence if the State fails to call all of the witnesses who handled the item.” Id. The
State is not required to prove the identity of the evidence beyond all possible doubt or to
exclude every possibility of tampering. Id. Instead, it must “reasonably establish the
identity and integrity of the evidence.” Id. If the State does not offer sufficient proof of
the chain of custody of the item, it is not admissible unless its identity and integrity are
demonstrated by other appropriate means. Id. (citing Scott, 33 S.W.3d at 760).
“Reasonable assurance, rather than absolute assurance, is the prerequisite for admission.”
State v. Terry Scott, No. E2003-00360-CCA-R3-CD, 2003 WL 22326980, at *2 (Tenn.
Crim. App. Oct. 9, 2003).
A trial court’s decision to admit evidence based on establishing a chain of custody
is reviewed for abuse of discretion. Scott, 33 S.W.3d at 752. This court will not reverse
the trial court’s decision to admit evidence unless the court applied an incorrect legal
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standard or reached a decision which was against logic or reasoning and which caused an
injustice to the complaining party. Cannon, 254 S.W.3d at 295.
At trial, the State presented testimony from Ms. DiScenza that she had collected
DNA evidence by swabbing the victim and that she had placed the swabs into the sexual
assault kit, sealed the kit, and placed the kit into a locked storage area. She was able to
identify the sexual assault kit as the one she collected from the victim through her
signature and markings. Mr. Smith then transported the evidence from the locked area of
the Memphis Sexual Assault Resource Center to the north precinct on Old Allen Road,
where it was placed in a locked, temperature-controlled room. He was likewise able to
identify the evidence through his signature. The trial court was also presented with a
supplement written by Ms. Garner which reflected that she recovered the kit from Old
Allen Station on July 6, 2012, and that on July 16, 2012, she released it to the property
and evidence room, immediately received it back, and delivered it to the TBI. She
transported the kit from the TBI back to the property and evidence room of the Memphis
Police Department on January 31, 2013; transported the kit from the property and
evidence room back to the TBI on July 2, 2013; and returned it to the property and
evidence room on February 10, 2014. A chain of custody report reflecting the transfers
to and from the property room was also presented to the trial court.
Special Agent James testified that he received the kit on July 16, 2012. He
identified the kit through seals, markings, barcodes, his initials, and its unique lab
number. The kit was sealed and showed no signs of tampering when he received it.
After isolating sperm cells, he resealed the kit. He received the kit again for further
testing on July 2, 2013, at which time the kit remained sealed and intact. Accordingly,
the State presented witnesses establishing that the evidence was collected by Ms.
DiScenza and that it was sealed by her and remained sealed until Special Agent James
conducted testing on it. The evidence had spent a number of years at a locked and
temperature-regulated storage facility, from which Ms. Garner retrieved it in 2012, prior
to transferring it to the property and evidence room and subsequently to the TBI. The
evidence was returned to the Memphis Police Department’s property and evidence room
and then again transferred by Ms. Garner for further testing to the TBI, where Special
Agent James again received it in a sealed condition. We conclude that the trial court did
not abuse its discretion in finding that the chain of custody was properly established. See,
e.g., State v. Tony Gibson, No. W2017-01235-CCA-R3-CD, 2018 WL 4677521, at *7
(Tenn. Crim. App. Sept. 28, 2018) (the identity and integrity of the evidence was
reasonably established when the officer who retrieved and transported the evidence did
not testify, but other witnesses testified regarding the collection of the evidence and there
was a lack of evidence suggesting tampering); State v. Kevin Allen Fleming, No. E2016-
01746-CCA-R3-CD, 2018 WL 1433503, at *15-17 (Tenn. Crim. App. Mar. 22, 2018)
(the chain of custody was adequately established when the trooper observed the
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collection of the blood, sealed the kit, and took it to a secure evidence locker, and when
the TBI agent testified regarding the integrity of the evidence once it was placed into the
TBI drop box); State v. Randy Timothy Jones, No. M2017-00769-CCA-R3-CD, 2018 WL
1182573, at *5-6 (Tenn. Crim. App. Mar. 7, 2018) (the chain of custody was sufficiently
established by the trooper’s testimony that he witnessed the collection of the blood,
labeled and sealed it, and put it into a locked evidence drop box, and by testimony that
the forensic technician received the box and that it was sealed and gave no indication of
tampering); State v. Charles Drake, No. E2004-00247-CCA-R3-CD, 2005 WL 1330844,
at *14 (Tenn. Crim. App. June 6, 2005) (the chain of custody was adequately established
when the officer who witnessed the collection of DNA evidence testified and the TBI
technician testified regarding the circumstances around her receipt of the evidence and
regarding its sealed condition, even though the transporting officer did not testify);
compare Cannon, 254 S.W.3d at 298 (the chain of custody was not established when
there was contradictory proof regarding whether or in what manner the evidence was
recovered from the victim); Scott, 33 S.W.3d at 760-61 (the evidence was not properly
authenticated when it had been mounted on slides and there was no testimony explaining
this alteration in the condition of the evidence); State v. Michael R. Anderson, No.
M2008-01230-CCA-R3-CD, 2009 WL 856903, at *3-4 (Tenn. Crim. App. Mar. 31,
2009) (the chain of custody was not established when the State did not present evidence
regarding the sealing of the kit or what steps were taken to identify it to reduce the
possibility of mistake).
The Defendant contends that, despite this evidence, the chain of custody contains
irregularities which require a finding that the identity of the kit was not reasonably
established. Initially, the Defendant’s claim that the evidence was received by Special
Agent James on July 12, 2012, has no support in the record. The Defendant cites to the
January 8, 2013, report, but this report indicates, consistently with the other evidence,
that the kit was received by the TBI on July 16, 2012.
The Defendant also attacks the chain of custody based on an addendum to the TBI
lab report. The unsigned addendum, which begins on “Page 2” and appears to have
initials consistent with Special Agent James’s, states that the author became aware that
evidence in an unrelated case was missing a submittal form, although TBI records
reflected the evidence had been submitted on December 13, 2012. In investigating, the
author discovered that the evidence in this unrelated case had not in fact been submitted
on that date but had been in the continuous possession of the TBI since 2010. Out of
caution, he investigated two other cases which were purportedly submitted by the same
investigator from the Shelby County District Attorney’s office on the same date. In one
of the cases, evidence was actually submitted on that date. The report reflects that, in the
Defendant’s case, the evidence was not submitted on December 13, 2012, but was in the
TBI’s possession and “being worked” on that date. The report concluded that the
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evidence transfer noted in the system for that date was erroneous. Two reports related to
the Defendant’s case were amended to reflect the correct chain of custody.
The Defendant asserts that this report raises questions regarding the authenticity of
the evidence. However, this particular contention has been waived. The partial TBI
report was introduced for the first time into the record by the Defendant at the hearing on
the motion for a new trial as “the analysis that was provided to us in discovery by the
State.” At trial, the Defendant never argued that there was an error discovered by the TBI
with respect to the chain of custody; instead, he merely asserted that the State had not
established the chain of custody. Because the partial report was not raised at trial and
was not before the trial court, the trial court did not have the opportunity to consider this
evidence when it made its determination regarding the chain of custody at trial, and the
State did not have any reason to elicit any testimony from Special Agent James regarding
the partial report. The trial court, based on the evidence before it, ruled that the chain of
custody had been adequately established. Furthermore, this particular issue was not
raised in the motion for a new trial. At the motion hearing, the Defendant presented a
cursory argument that the trial court had erred in its chain of custody determination. He
also argued that an affidavit from his own expert demonstrated that the State’s expert had
miscalculated the probability that the Defendant’s DNA was the DNA recovered from the
swabs. The Defendant introduced the discovery related to DNA analysis only to be
considered as the data that the Defendant’s own expert had relied on in forming her
opinion, and the partial report at issue was page fifty-one of the 105 pages of discovery
introduced as an exhibit. The trial court made no ruling regarding the effect of the partial
report on the authentication of the evidence because the issue was not raised.
Accordingly, this particular objection is waived. See State v. Howard, 504 S.W.3d 260,
277 (Tenn. 2016) (“It is well-settled that a defendant may not advocate a different or
novel position on appeal.”); Johnson, 970 S.W.2d at 508. Because the trial court did not
abuse its discretion in determining that the identity and integrity of the evidence was
adequately established by testimony that it was collected from the victim, sealed, stored
in a locked facility, and remained sealed at the time the TBI received it for analysis, the
Defendant is not entitled to relief.
CONCLUSION
Based on the foregoing analysis, we affirm the judgment of the trial court.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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