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Vick v. State

Court of Criminal Appeals of Tennessee, Knoxville

April 2, 2018

TRACY LEBRON VICK
v.
STATE OF TENNESSEE

          Assigned on Briefs February 27, 2018

          Appeal from the Criminal Court for Hamilton County No. 215412 Don W. Poole, Judge

         The Petitioner, Tracy Lebron Vick, pleaded guilty to second degree murder and received a forty-year sentence. Nineteen years after his sentencing, he filed a petition for post-conviction DNA analysis. The post-conviction court denied relief. On appeal, the Petitioner contends that the post-conviction court erred. We affirm the post-conviction court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Tracy Lebron Vick, Wartburg, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; M. Neal Pinkston, District Attorney General; for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., J., joined. James Curwood Witt, Jr., J., not participating.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Petitioner's conviction relates to the September 20, 1996 death of Melva Moore, whom the Petitioner shot as he attempted to enter Ms. Moore's home to rob her boyfriend. The Petitioner was charged with first degree murder and agreed to plead guilty to second degree murder as a Range II offender. The trial court imposed a maximum, forty-year sentence to be served consecutively to the sentence for a prior conviction. The Petitioner appealed the length of his sentence and the imposition of consecutive sentencing, and this court affirmed the trial court's judgment. See State v. Tracy Lebron Vick, No. 03C01-9803-CR-00100, 1999 WL 652452 (Tenn. Crim. App. Aug. 27, 1999), perm. app. denied (Tenn. Feb. 28, 2000). The Petitioner later pursued post-conviction relief, which was denied. See Tracy Lebron Vick v. State, No. E2002-01761-CCA-R3-PC, 2003 WL 21172319 (Tenn. Crim. App. May 20, 2003), perm. app. denied (Tenn. Oct. 6, 2003).

         In May 2017, the Petitioner filed the present petition for post-conviction DNA analysis pursuant to Tennessee Code Annotated sections 40-30-301 to -313. The petition alleged that the Petitioner had been notified by the district attorney in July 2016 of the existence of unanalyzed physical evidence collected during the victim's autopsy. The evidence consisted of a bullet fragment, head hair, and pubic hair. The Petitioner stated his belief that DNA and ballistic testing would show that he was not the shooter and would demonstrate that any minimal level of involvement which might be attributed to him would be insufficient to support a conviction of first or second degree murder. He requested DNA analysis of the evidence.

         The post-conviction court denied the petition on the basis that no reasonable probability existed that a DNA analysis would have rendered the verdict or sentence more favorable for the Petitioner if the results had been available in the conviction proceedings. See T.C.A. § 40-30-305(1) (2012). The court relied upon this court's opinion in the appeal of the Petitioner's conviction, in which the following facts were recited:

The defendant and two armed accomplices went to the home of the victim, Ms. Melva Moore, on September 20, 1996, to rob Moore's boyfriend. The defendant went to the back door of Moore's home carrying a loaded .357 revolver with the hammer cocked. When the defendant opened the door, he met Moore on her way outside. The defendant pushed the door open with the gun and shot Moore in the chest. Moore staggered to the living room of the house where she was found dead. The defendant claimed he did not intend to shoot Moore, but Moore slammed the door on his arm and the gun went off. When he heard the shot, the defendant ran. He was arrested six days later and charged with first degree murder.

See Tracy Lebron Vick, 1999 WL 652452, at *1. The post-conviction court stated, "Thus, by the petitioner's own admission, he was the shooter. The only issue was the petitioner's mens rea, his intent to rob the victim's boyfriend, an issue on which DNA evidence is not probative." The court denied the Petitioner's request for post-conviction DNA analysis.

         On appeal, the Petitioner contends that the post-conviction court erred in dismissing the petition without a response from the State, appointing counsel, conducting a hearing, and ordering DNA testing. The ...


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