Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 27, 2018
from the Criminal Court for Hamilton County No. 215412 Don W.
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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
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.
H. MONTGOMERY, JR., JUDGE
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).
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.
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.
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 ...