Johnny Rutherford v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
March 6, 2000
DECEMBER 1999 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk

JOHNNY RUTHERFORD, )
)
Appellant, ) No. E1999-00932-CCA-R3-PC
)
) Anderson County
v. )
) Honorable James B. Scott, Jr., Judge
)
STATE OF TENNESSEE, ) (Post-Conviction: Armed Robbery, Aggravated
) Kidnapping, and Aggravated Rape)
Appellee. )

For the Appellant: For the Appellee:
Johnny Rutherford, Pro Se Paul G. Summers
NECXU09-00114033 Attorney General of Tennessee
Northeast Correctional Complex and
Post Office Box 5000 Ellen H. Pollack
Mountain City, Tennessee 38583 Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243

James N. Ramsey
District Attorney General
and
Janice G. Hicks
Assistant District Attorney General
127 Anderson County Courthouse
100 North Main Street
Clinton, Tennessee 37716

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge

OPINION

The petitioner, Johnny Rutherford, appeals as of right the Anderson

County Criminal Court’s denial of his petition for post-conviction relief. He seeks relief
from his 1986 convictions for armed robbery, aggravated kidnapping, and aggravated

rape. He was sentenced as a habitual offender to concurrent life sentences for the

armed robbery and aggravated rape convictions. He received a forty-year sentence for
the aggravated kidnapping conviction, which is consecutive to the life sentences. This

court affirmed the convictions for armed robbery, aggravated kidnapping, and

aggravated rape on direct appeal but vacated an escape conviction. State v. Johnny

Rutherford, No. 176, Anderson County (Tenn. Crim. App. Mar. 15, 1988), app. denied

(Tenn. May 31, 1988).

In this appeal, the petitioner contends that he received the ineffective

assistance of counsel because his attorney:

(1) failed to challenge the warrantless seizure of blood-stained
carpet from his car;

(2) failed to challenge false statements in the affidavit
supporting the search warrant for his blood sample;

(3) failed to challenge the chain of custody of the body
specimens before trial or to preserve this issue for appeal;

(4) failed to object to improper judicial conduct;

(5) failed to object to a constructive amendment of the
indictment during the jury charge;

(6) failed to request the trial court to instruct the jury on the
lesser included offenses of aggravated rape and aggravated
kidnapping and the definitions of “intentionally” and
“knowingly”; and,

(7) failed to object to the trial court’s instruction that no two
sets of fingerprints are alike.

The petitioner requests a remand based upon the trial court’s failure to make factual
findings and legal conclusions on two additional claims of ineffective assistance of

counsel:

(1) that his attorney failed to argue the search and seizure
issue effectively and

(2) that his attorney failed to challenge an officer’s testimony
regarding tire prints.

The petitioner also contends that the trial court erred in denying his request for funds for

a DNA test. We affirm the denial of post-conviction relief.

The petitioner filed a pro se petition on March 3, 1991, which was

amended by appointed counsel. Following an evidentiary hearing on November 19,

2
1992, the trial court denied the petition, finding that most of the petitioner’s issues were

previously determined on direct appeal, that proof of the petitioner’s identity was

overwhelming, and that the petitioner’s attorney exercised reasonable skill and
diligence. This court reversed and remanded the case for another evidentiary hearing

to allow the petitioner to present additional witnesses and to permit the trial court to

make additional factual findings. Johnny Rutherford v. State, No. 03C01-9306-CR-

00186, Anderson County (Tenn. Crim. App. Dec. 6, 1994). After the second evidentiary

hearing on November 4, 1996, the trial court denied the petition.

The following account of the facts appears in this court’s opinion in the

direct appeal:

[A]t 2 a.m. on the day in question, the victim was working the
late shift at the Git ‘n Go convenience market in Clinton,
Anderson County. A male entered. He presented a revolver.
He had a brown and orange ski mask over his head. He shook
his gun at her and said, “You know what I want.” She gave
him the available money and eight $1 food stamp coupons.

Not satisfied with the money, he forced her at gunpoint
to accompany him to his car parked a short distance away.
After practically stuffing her into his car, he drove for about
one-half hour, stopping at a deserted area. He forcibly
penetrated her vaginally while threatening her with anal
penetration as well as fellatio. He displayed two handguns
during the encounter.
On the return trip he released her; she fled to the
nearest house, from which the police were called. She
described the vehicle of her abductor as “dark in color”, “old
and large”, with a “spider-web” like crack in its windshield. She
told authorities that two “clutch pin keepers” fell into the seat of
the car after her assailant had yanked the name tag from her
smock.

A short time later, officers observed a car fitting the
description and followed it. They noticed that its license plate
was not plainly visible. Additionally, the car was weaving
across the road. They stopped the car. The defendant, the
sole occupant, was removed from the car, searched, and
placed in the police vehicle. The officers recovered from
defendant an amount of currency which nearly matched the
denominational description of the money taken from the victim.
A quick “once over” of the vehicle yielded eight $1 food stamp
coupons, a quantity of .38 caliber and .22 caliber cartridges.
Two “clutch pin keepers” such as would be used to attach a
name tag were found in the fold of the front seat.

The investigation continued, aided somewhat by a light
dusting of snow which made the tire tracks left by the vehicle
easy to follow. Along the route taken by the abductor’s vehicle,
Officer Humphrey recovered a flashlantern, a brown and
orange ski mask, a brown paper bag, a .22 caliber pistol, a .38
caliber pistol, and a dark jacket, each of which was identified

3
 by the victim as being similar to those which she had observed
the assailant wear or use on the night in question.
The victim was transported to an emergency medical
facility for examination and treatment. Personnel there
observed bruises and scratches on the inner portion of the
victim’s thighs as well as on her forehead. Also visible to them
was a cut on her toe. They described her as “tearful and
upset.”

A fingerprint expert compared a latent print lifted from
the flashlantern battery to the known prints of the defendant.
He found 12 points of comparison, concluding therefrom that
the prints on the flashlantern battery were those of the
defendant.

A forensic serologist testified that a comparison of body
fluids obtained from the defendant and the victim indicated that
the victim has ABO type A blood, and her body produces the
A and H antigens only. On the other hand, the defendant has
ABO type AB blood, and his body produces the B antigen only.
His investigation found the presence of the B antigen in the
victim’s fluids, concluding therefrom that the B antigen in her
fluids was deposited by a person with ABO type AB or B blood.

In his statement to the police on February 13, defendant
said that after drinking at home, he left Knoxville at about
11:00, drove to Clinton via Oak Ridge, and went to a Moore
Street address to meet someone. Failing to find that person,
he drove toward Lake City.

The defendant’s wife testified that she was with him
from 10 p.m. on the night in question until 2:00 or 2:30 the next
morning. She said that the “clutch pin keepers” recovered in
the car could belong to her children.

Kathy Copock, a neighbor whose trailer home is within
view of the defendant’s trailer home testified that she saw the
defendant at 2 a.m. on the morning in question.
Defendant’s step daughter, Angie Wilson, testified that
she saw the defendant at 2:15 a.m. on the morning in
question.

As a witness in his own behalf, the defendant swore that
he left his trailer “around 2:30, sat on the side of the river for a
while . . . and then went from there to Lake City and that’s
where I got stopped.” He explained that the “clutch pin
keepers” probably belonged to his daughter, and that the
flashlantern was in his car when it was impounded by the
police.
He admitted to having seen the victim in the
convenience store on prior occasions, but denied that he
robbed, abducted, or raped her.

State v. Johnny Rutherford, slip op. at 2-5.

At the November 19, 1992, post-conviction evidentiary hearing, the

petitioner’s attorney testified that he represented the petitioner at trial and on direct

appeal. He said that he met with the petitioner twenty to thirty times. He said that on

4
four or five occasions, he discussed plea options with the petitioner. He said it was

possible that only two of the meetings lasted for forty-five minutes or more, but he

doubted it. He said he believed the state’s case was weaker at trial than he had
anticipated it would be because the victim’s testimony was tentative, but the state’s

case remained circumstantially strong. He stated that the state had ten to fifteen pieces

of circumstantial physical evidence that indicated either the petitioner or his car were
present at the robbery. He said he presented an alibi defense that the petitioner had a

domestic dispute with his wife at the trailer park, took a drive to cool off, and barely had

time to arrive at the place where the police stopped him. He agreed that the petitioner’s
conviction rested on legal and constitutional issues decided in the motion to suppress

evidence from the petitioner’s car.

The attorney testified that at the pretrial suppression hearing, he argued

that the police did not have probable cause to stop the petitioner’s car. He said that on

the night of the incident, two officers stopped the petitioner, placed him in the back of

the patrol car, and searched his car. He said the officers testified that they did not

consider the petitioner to be under arrest at this point but that he was not free to go. He

said that he tried to stress the problems with the timing of the search at the suppression

hearing. He said the trial court ruled that probable cause to stop and search existed

because the officers could have charged the petitioner with driving under the influence
of an intoxicant (DUI).

The attorney agreed that the affidavit supporting the search warrant for
the petitioner’s blood sample stated that the victim had identified the petitioner by his

voice. He said that this voice identification was not substantiated by the victim’s

testimony at trial.

The attorney testified that fingerprints were taken from a battery inside a

flashlight found by investigating officers on the morning of the crime. He stated that he

did not see an enlarged photograph of the fingerprints or a comparison of the
fingerprints from the battery with those of the petitioner. He said he only had the

opinion of the state’s fingerprint expert. He said that the expert did not bring the

photographs to trial. He said he did not have funds to hire his own fingerprint expert.

5
 The attorney testified that he did not know if a break in the chain of

custody for the rape kit existed. He said he did not remember the petitioner asking him

to subpoena an inmate who worked in the jail kitchen and who purportedly could testify
that the rape kit was kept in the jail’s refrigerator.

At the first hearing, the petitioner testified that he was incarcerated for
eleven months after his arrest in this case. He said he saw his initial attorney three

times before and during his preliminary hearing. The petitioner said that after his trial

attorney was appointed, he spoke to his trial attorney a number of times when the
attorney was at the jail visiting other inmates, but his attorney only came to see him

twice. He said the state’s evidence should have been used against someone else.

At the second evidentiary hearing on November 4, 1996, the petitioner’s

attorney testified that he did not remember if he objected specifically to the removal of

the blood-stained carpet from the petitioner’s car. He said he filed an objection to

everything taken from the petitioner’s car based upon the warrantless search of his car.

He said he remembered challenging the affidavit to the search warrant for the

petitioner’s blood sample. He said he objected to an amendment of the escape

indictment at trial, but he did not recall having any problems with the judge’s instructions

to the jury. He said he informed the petitioner of his habitual offender status. He said
they knew the petitioner was risking a life sentence with any felony conviction. He

stated that he did not ask the judge to charge any lesser included offenses because he

did not want to create the possibility of a compromise verdict.

Mark Wills testified that he was a patrol officer with the Lake City Police

Department in 1986. He said he did not recall having a manual on policies and
procedures for stops and searches. He said he normally would notify the dispatcher

when he was stopping someone, but he did not remember if he did so in the petitioner’s

case. He said that on the night of the incident, he stopped the petitioner’s car close to

the time that he received a dispatch to be on the lookout for a dark, older-model car.
He agreed that the stop of the petitioner went from being a traffic stop to an

investigatory stop because his focus for stopping the petitioner turned from the

petitioner’s license plate to the dispatch information. He said he assisted in the search

6
of the petitioner’s car after the petitioner was placed in the patrol car. He said he did

not get authorization from a supervisor before searching the car. He said he thought

that one of the officers searched the petitioner’s trunk. He agreed that the petitioner
could not have reached a weapon, destroyed any evidence, or driven away in the car

during the search. He said that officers arrested the petitioner at the scene and took

him to jail.

Officer Danny Humphrey of the Anderson County Sheriff’s Department

testified that he arrived on the scene only minutes after officers stopped the petitioner’s
car. He said he searched the car based upon the traffic stop and found clutch pin

keepers in the crease of the front seat. He said he did not inventory the car nor did he

have a search warrant. He said that he would normally search for a weapon, but he did
not remember if he had been searching for one in this case. He agreed that he testified

at the preliminary hearing that he was searching for evidence. He said he did not

remember if the food stamps were found in the petitioner’s car or shirt. He said he later

found some clothing, including a ski mask, at an area called the “turkey shoot.” He said

he did not remember talking to the victim or giving information to Officer Scarboro to be

used to obtain a search warrant for the petitioner’s blood sample.

Officer Humphrey testified that he brought the tires from the petitioner’s
car to trial. He said that the tires were evidence and that he did not have a search

warrant to remove them from the car. He said he brought the tires to court in order to

compare them to photographs of tire prints. He said that his only training in identifying
tire prints occurred at the police academy in 1983.

Officer Dorman Scarboro testified that he vaguely remembered
investigating the kidnapping and rape of the victim on February 13, 1986. He stated

that he did not recall getting the search warrant for the petitioner’s blood sample. He

said he did not know if the petitioner had been in the victim’s presence before he signed

the affidavit. He said that if he had stated in the affidavit that the victim identified the
petitioner as the perpetrator of the crimes, then it was true. He said he was not aware

that the victim did not identify her assailant in her statements and testimony. He said

he was sure that the judge who signed the search warrant had questioned him

7
regarding the affidavit. He said he told the truth when he signed the affidavit in front of

the judge.

Richard Foschino testified that in February 1986, he was a detective with

the Anderson County Sheriff’s Department. He said that although Lake City officers

stopped the petitioner, he was in charge of the investigation. He said the Clinton Chief
of Police sent him evidence in the case, which he sent to the Tennessee Bureau of

Investigation (TBI), but he did not recall what type of evidence this was. He said he

normally prepared the evidence for the TBI lab. He stated that he stored blood
evidence and rape kits in a locked refrigerator in the kitchen at the courthouse. He said

that only he, the Sheriff, and maybe another investigator had keys to the refrigerator.

He said that if an inmate trustee said he saw evidence in the refrigerator, then the
trustee was wrong. He said he would have been able to tell if someone had tampered

with the lock.

Detective Foschino testified that he remembered the carpet being

removed from the petitioner’s car but that he did not remember if he removed it or

watched someone else remove it. He agreed that the petitioner was in jail at the time

the carpet was removed and therefore could not harm the officers or destroy the

evidence. Detective Foschino said he assumed that he would have been looking for
evidence in the car. He stated that he might have been taking photographs of the car.

Following the evidentiary hearing, the trial court found that the petitioner failed to show

either deficiency or prejudice and denied the petition for post-conviction relief.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

The petitioner contends that he received the ineffective assistance of
counsel. When a claim of ineffective assistance of counsel is made under the Sixth

Amendment, the burden is upon the petitioner to show (1) that counsel’s performance

was deficient and (2) that the deficiency was prejudicial in terms of rendering a

reasonable probability that the result of the trial was unreliable or the proceedings
fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44

(1993). The Strickland standard has been applied to the right to counsel under Article I,

8
Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2

(Tenn. 1989).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

held that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel’s conduct, a “fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

We also note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

The petitioner must show both deficiency and prejudice by a

preponderance of the evidence.1 See Brooks v. State, 756 S.W.2d 288, 289 (Tenn.

Crim. App. 1988). Since the creation of post-conviction procedures, the findings of the
trial court in a post-conviction case have been given the weight of a jury verdict. See

Janow v. State, 4 Tenn. Crim. App. 195, 200, 470 S.W.2d 19, 21 (1971). Our long-

standing standard of review on appeal bound us to the trial court’s findings of fact
unless we concluded that the evidence preponderated against those findings. Black v.

State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Our traditional standard

prevented us from reweighing or reevaluating the evidence, or substituting our own

inferences for those drawn by the trial court. Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997) (reviewing the issue of the ineffective assistance of counsel). Questions

1
For post-conviction petitions filed after May 10, 1995, petitioners have the burden of proving
factual allegations by clear and convincing evidence. Tenn. Code A nn. § 40-30-210(f).

9
concerning the credibility of witnesses and the weight and value to be given to their

testimony were resolved by the trial court, not this court. Id. This court has held that it

would give due deference to the trial court’s findings regarding the ineffective
assistance of counsel under the well-settled standard set forth in Henley. Richard C.

Taylor v. State, No. 01C01-9707-CC-00384, Williamson County, slip op. at 26 (Tenn.

Crim. App. July 21, 1999).

While reaffirming the Henley standard for purely factual issues, our

supreme court recently stated that “the issues of deficient performance by counsel and
possible prejudice to the defense are mixed questions of law and fact” requiring a de

novo review by this court. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We do not

believe that the supreme court intended in one sentence, without further discussion, to
overrule sub silentio over thirty years of jurisprudence regarding the standard of review

in post-conviction cases. Thus, we believe that the standard of review remains whether

the evidence preponderates against the trial court’s finding that the petitioner received

the effective assistance of counsel. In any event, we believe that either standard yields

the same result in this case.

1. Blood-Stained Carpet

The petitioner contends that his attorney was ineffective for failing to
challenge and appeal the warrantless removal of blood-stained carpet from the

petitioner’s car after the Anderson County Sheriff’s Department impounded the car. He

states that the Sheriff’s Department impounded his car and inventoried its contents,
searched the car and dusted for fingerprints on another occasion, and removed a piece

of carpet on a third occasion, all without a search warrant. He argues that his attorney

failed to object to the state’s use of the blood-stained carpet at trial. Alternatively, the
petitioner argues that even if his attorney objected to the warrantless search and

seizure of evidence from his car, his attorney did not cross-examine the officer who

conducted the warrantless search of the car. He claims that this relieved the state of its

burden of proving that the seizure of the carpet fell within the inventory exception to the
warrant requirement. He also argues that his attorney failed to address this issue in his

direct appeal. The state contends that the issue of the warrantless seizure of evidence

from the petitioner’s car has been previously determined on direct appeal.

10
 The trial court found that the trial attorney raised the issue of the blood-

stained carpet and that it was fully addressed in the pretrial suppression hearing. The

court also found that this court reviewed the issue on direct appeal and affirmed the
admissibility of the evidence. The court found that the petitioner had produced no

additional evidence to support his contentions.

The issue of whether the carpet should have been suppressed was

previously determined on direct appeal. Tenn. Code Ann. § 40-30-112(a) (repealed

1995). With regard to the initial stop of the petitioner, this court held on direct appeal:
Two Lake City officers observed that defendant’s
automobile matched the description of the perpetrator’s. It was
weaving as though the driver was intoxicated, and the license
plate was not readable. These observations were sufficient to
justify the initial stop. After the stop, the officers observed
other things in and about the automobile (the windshield was
cracked, as described by the victim, pistol cartridges were
observed in the back of the automobile) which furnished them
with probable cause to arrest the defendant and to search
incident to the arrest.

State v. Johnny Rutherford, slip op. at 10 (citations omitted). The court noted that the

petitioner’s detention in the back of the patrol car constituted an arrest. Id. at 11. The

court also held:

In his motion to suppress defendant also challenges the
warrantless search and seizure of items from the automobile
after it had been impounded. The initial search incident to
defendant’s arrest was proper and therefore the subsequent
search at the impound lot was also proper, because the
justification to conduct such a warrantless search did not
vanish once the car had been immobilized. Florida v. Meyers,
466 U.S. 380, [382, 104 S. Ct. 1852, 1853] (1984); Capps v.
State, 505 S.W.2d 727 (Tenn. 1974).

Id. Thus, this court’s opinion on direct appeal confirms the trial court’s finding that the

attorney raised the issue of the blood-stained carpet at the suppression hearing and on
appeal.

The petitioner has also failed to show how he was prejudiced by his

attorney’s decision not to cross-examine Detective Foschino. Detective Foschino either
removed the carpet from the petitioner’s car or was present when another officer

removed it at the impound lot. Once the state established that the initial search was

proper, then the subsequent searches of the impounded car were also proper. Officer
Foschino was not present when the petitioner was stopped or at the initial search. His

11
testimony could reveal nothing about the propriety of the initial search. Thus, the

petitioner suffered no prejudice as a result of his attorney’s decision not to cross-

examine Officer Foschino.

The petitioner argues that his attorney was ineffective for not requiring the

state to show that it had reasonable cause to impound the petitioner’s car. The “routine
inventory search of an automobile lawfully impounded” is an exception to the warrant

requirement. South Dakota v. Opperman, 428 U.S. 364, 365, 96 S. Ct. 3092, 3095

(1976). The inventory search pursuant to a lawful impoundment is justified by the need
to protect the owner’s property while in police custody, the need to protect police

against claims of lost property, and the need to protect police from potential danger.

Opperman, 428 U.S. at 369, 96 S. Ct. at 3097. Our supreme court has delineated

guidelines for determining whether an impoundment is lawful, and thus, a subsequent

inventory search valid. Drinkard v. State, 584 S.W.2d 650, 653 (Tenn. 1979). In

Drinkard, the court stated that:

[I]f the circumstances that bring the automobile to the attention
of the police in the first place are such that the driver, even
though arrested, is able to make his or her own arrangements
for the custody of the vehicle, or if the vehicle can be parked
and locked without obstructing traffic or endangering the
public, the police should permit the action to be taken rather
than impound the car against the will of the driver and then
search it. Just cause to arrest the driver is not, alone, enough;
there must be reasonable cause to take his vehicle into
custody.

Id. The burden of proving the propriety of the impoundment and subsequent search

rests with the party seeking to introduce the fruits of the search. Id. (citation omitted).

The petitioner contends that no evidence exists that he was given the opportunity to

make other arrangements for the custody of his car. He also claims that no evidence
exists regarding whether he could have parked and locked his car without obstructing

traffic or endangering the public.

We believe that the issue of whether the carpet seized from the car
should have been suppressed does not turn on the reasonableness of the

impoundment. The validity of the warrantless searches of the car at the impound lot

stems from the lawful search of the car incident to the petitioner’s arrest, not from a
prior inventory search. Furthermore, despite the officers’ failure to consult the petitioner

12
about an alternative to impoundment, the impoundment appears reasonable and

necessary. No one was present at the scene to take control of the car. The petitioner,

the car’s sole occupant, had been arrested and taken to jail. Additionally, the presence
of snow on the roads and the earliness of the hour do not suggest that it was safe to

leave the car parked along the side of the road. The petitioner has not shown that he

was prejudiced by his attorney’s failure to explore the propriety of the impoundment.

2. False Statements in Affidavit

The petitioner contends that his attorney was ineffective for not seeking
the suppression of his blood sample, which he claims was obtained with a search

warrant based upon an affidavit containing false statements. He asserts that the

affidavit falsely states that the victim identified him by his voice in the affiant’s presence,
that food stamps taken in the robbery were found on his person, and that the victim

could identify the food stamps as those taken in the robbery. He also argues that the

use of his name in the affidavit falsely indicates that the victim identified him as the

perpetrator of the crimes. He contends that the remaining statements in the affidavit do

not provide probable cause to issue the warrant. The state contends that the petitioner

has failed to show prejudice because a search warrant would have been forthcoming

based upon the circumstantial evidence of the petitioner’s guilt that the police had at the

time the warrant was issued.

The petitioner’s attorney read the affidavit into evidence at the first

evidentiary hearing:
[The victim] who was a clerk at the [Git]-N-Go market in
Anderson County told affiant that Johnny Rutherford came into
the store at 2:00 a.m. on Friday, [February] 13th, 1986, and
forced her to give him the store’s cash and food stamps by
threatening her with a gun. And he then kidnapped her and
raped her at gunpoint. [The victim] stated that Rutherford wore
a ski mask, and she can identify Johnny Rutherford by his
voice and has done so in the presence of affiant. . . . .

Officer Humphreys of the Anderson County Sheriff’s
Department told affiant he recovered a ski mask about one
and a half miles from the scene of the rape. [The victim] has
identified this as the mask worn by the robber/kidnapper/rapist.
[The victim] has furnished blood and saliva, hair and
vaginal specimens to the police. The TBI crime laboratory in
Nashville has told affiant and other officers that the laboratory,
upon receiving such samples from rape victims, can make a
determination within a reasonable degree of probability [on] the

13
 identity of the rapist if they receive hair, saliva and blood
samples from a suspect. Johnny Rutherford has voluntarily
supplied pubic hair samplings [sic] to officers but refused to
supply other specimens.

Food stamps identified by the victim as taken in the
robbery, found by Officer Humphreys on Johnny Rutherford’s
possession or person–[(the attorney interjects that he cannot
read this word)–a]t approximately 3:40 a.m., according to what
Officer Humphreys told me, Affiant, DJS.

Officer Dorman Scarboro testified that he was the affiant.

The trial court found that the attorney objected to the affidavit to the

search warrant for the petitioner’s blood sample on the morning of the trial, but it ruled

that his objection came too late. The court found the record to be devoid of evidence
that the voice identification statement is false. It noted that on the morning of the trial,

the petitioner’s attorney argued that at the preliminary hearing, the victim testified that

she could not recognize the petitioner’s voice. Noting that the attorney did not
represent the petitioner at the time of the preliminary hearing, the trial court found his

statement to be hearsay. The court found that the record contained no evidence from

the victim about identifying the petitioner in person. It found that Officer Scarboro had

no independent recollection of the facts in the affidavit. The court concluded that the

warrant was valid on its face regarding the voice identification. With regard to the food
stamps, the court found:

There is a statement in the search warrant that the food
stamps were found on the person of the [petitioner] when the
proof is that the food stamps were found over the sun visor in
the vehicle. The petitioner was arrested in the vehicle and the
petitioner claims that the food stamps belonged to his wife.
The fact that the food stamps were found in the vehicle
occupied by the petitioner instead of being on his person
appears to this Court to be a minor misstatement and would
not diminish . . . the determination of probable cause.
The court found that the petitioner was not prejudiced by the attorney’s failure to file a

motion to suppress the blood sample.

Our supreme court has defined two situations in which false information
within the supporting affidavit requires the application of the exclusionary rule despite

the affidavit’s facial sufficiency:

(1) a false statement made with intent to deceive the Court,
whether material or immaterial to the issue of probable cause,
and

14
 (2) a false statement, essential to the establishment of
probable cause, recklessly made. Recklessness may be
established by showing that a statement was false when made
and that affiant did not have reasonable grounds for believing
it, at that time.
State v. Little, 560 S.W.2d 403, 407 (Tenn. 1978). Thus, even an immaterial statement

in the affidavit will result in exclusion of the evidence if the statement is intentionally

false. However, negligence or innocent mistake is insufficient to justify exclusion. Id. at
406-07.

The record reveals that the petitioner’s attorney filed a motion to
reconsider suppression two days before the trial. This motion included the contention

that the affidavit used to obtain the search warrant for the petitioner’s blood sample

falsely stated that the victim identified the petitioner by voice. The trial court denied the
motion on the morning of trial, finding that the motion came too late for a hearing on the

matter and that no sufficient reason to suppress the evidence existed at that time.

Our review of the victim’s testimony at trial reveals that she did not

mention whether she could at that time or had previously identified the petitioner by his

voice. The victim was not asked at trial to identify the petitioner as the perpetrator. The

preliminary hearing testimony was not officially recorded. The attorney testified at the

evidentiary hearing that the petitioner’s initial attorney taped the preliminary hearing and
had his staff create a transcript. Even if the victim could not recognize the petitioner’s

voice at the preliminary hearing, this does not preclude the possibility that she was able

to recognize his voice as that of her assailant at some earlier time. The petitioner has
failed to show that the voice identification statement in the affidavit is false; therefore,

he is not prejudiced by his attorney’s failure to challenge the warrant at the suppression

hearing. Furthermore, the petitioner is not prejudiced by the use of his name in the
affidavit based upon the facial validity of the voice identification.

The record supports the trial court’s finding that the officers found the food

stamps in the petitioner’s car rather than on his person. Although the victim could not
identify the food stamps from the petitioner’s car as the ones from the robbery, she did

testify that she gave the perpetrator eight one-dollar food stamps from the register.

This matched the amount and denomination of the food stamps found in the petitioner’s

15
car. The fact that the food stamps were in the car rather than on the petitioner is not

material to the issue of probable cause when the petitioner had just stepped out of the

car before his arrest. The fact that the food stamps matched in number and
denomination but had no other distinguishing features for the victim to identify is also

immaterial. Finally, the petitioner has made no showing that Officer Scarboro

intentionally misstated these facts in the affidavit. Thus, the petitioner is not prejudiced
by the presence of these immaterial misstatements in the affidavit.

3. Chain of Custody

The petitioner contends that his attorney was ineffective for failing to
challenge the chain of custody of the rape kit and the petitioner’s blood and saliva

samples before trial or to preserve this issue for appeal. He argues that the record

does not reveal who had possession of this evidence between February 13, 1986, and

February 19, 1986. He claims that his attorney failed to subpoena an inmate trustee

who could testify that he saw vials of blood, a rape kit, and other evidence stored

openly in the refrigerator at the jail during this six-day period. He states that the trustee

died before the post-conviction evidentiary hearing. He claims that if his attorney had

raised this issue before trial, then the trial court would have suppressed the rape kit as
well as his blood and saliva samples. The state contends that the record reveals that

the evidentiary specimens were properly delivered to the TBI laboratory for testing. It

also argues that even if the attorney should have challenged the chain of custody, his
failure to do so is harmless in light of the overwhelming evidence of the petitioner’s guilt.

The trial court found that both Deputy Edwin Kelly and Detective Richard
Foschino delivered or mailed specimens to the TBI laboratory. It found that no

evidence existed that someone tampered with the specimens in question. In the direct

appeal, the petitioner’s attorney argued that the state did not prove the chain of custody

of a blood specimen, but the court could not review the matter because it could not
determine which specimen was at issue. State v. Johnny Rutherford, slip op. at 7.

16
 At trial, Officer Dorman Scarboro testified that he gave blood and saliva

samples taken from the petitioner to Detective Richard Foschino. Detective Foschino

testified that he received the rape kit from Officer Penny Baker on February 13 and that
he prepared it for the TBI laboratory. He said he received the petitioner’s blood and

saliva specimens from Officer Scarboro and prepared them for the TBI laboratory.

At the second evidentiary hearing, Detective Foschino testified that he
sent some of the evidence from this case to the TBI laboratory, although he did not

recall what type of evidence it was. He said that he normally prepared the evidence for

the TBI laboratory and that he stored blood evidence and rape kits in a locked
refrigerator in the kitchen at the courthouse. He said that he was one of three officers

with a key to this refrigerator. He stated that presumably, he would have been able to

tell if someone had tampered with the lock. He said that if an inmate trustee said that
he saw evidence in the refrigerator, then the trustee was wrong. The petitioner’s

attorney testified that he did not remember the petitioner asking him to subpoena an

inmate who worked in the jail kitchen who could supposedly testify that the rape kit was

kept in the jail’s refrigerator.

The record does not reflect a break in the chain of custody of the rape kit

or the petitioner’s blood and saliva samples, nor does it reflect that someone had

tampered with these items. The proof of the identity of physical evidence does not
have to exclude all possibility of tampering. Ritter v. State, 3 Tenn. Crim. App. 372,

378, 462 S.W.2d 247, 250 (Tenn. Crim. App. 1970). Instead, the “‘circumstances need

only establish reasonable assurance of the identity’” of the evidence. Id. (quoting
Patterson v. State, 160 S.E.2d 815, 817 (Ga. 1968)); State v. Woods, 806 S.W.2d 205,

212 (Tenn. Crim. App. 1990). The petitioner does not allege that the trustee claimed to

have seen the particular rape kit and specimens from this case in a refrigerator at the
jail. The petitioner has failed to show prejudice.

4. Improper Judicial Conduct

The petitioner contends that he received the ineffective assistance of
counsel because his attorney failed to object to what he claims is improper judicial

conduct at his trial. He summarily argues that the trial court commented on the

evidence and questioned witnesses, bringing out points neglected by the state. The

17
petitioner argues that he was prejudiced because without the trial court’s questions and

comments, the state would not have presented sufficient evidence to convict him of the

crimes. He also claims that because of their high regard for the trial judge, the jurors
placed more weight on testimony when the judge requested that a witness repeat an

answer or asked additional questions. The state contends that the petitioner has not

cited to the record as required by Rule 27(a)(7), T.R.A.P., to indicate which of the trial
court’s questions or comments were prejudicial to his case. It further argues that the

record does not support the petitioner’s claim.

A trial court may ask questions of witnesses in order to clarify obscure

points in the testimony or to supply omissions in the interest of justice. Collins v. State,

220 Tenn. 275, 278-79, 416 S.W.2d 766, 767 (1967); State v. Jenkins, 733 S.W.2d
528, 532 (Tenn. Crim. App. 1987). The trial court found that at the convicting trial, it

questioned the victim in order to clarify certain points in her testimony because, despite

numerous admonitions to speak up, she spoke too softly for the jury to hear her at

times. Our review of the victim’s testimony does not show otherwise. The trial court’s

questions and comments at the petitioner’s trial were not improper. Therefore, the

attorney’s lack of objection was neither deficient nor improperly prejudicial.

5. Constructive Amendment of the Indictment
The petitioner contends that his attorney provided ineffective assistance

by failing to object to the jury instruction on aggravated rape. He argues that when the

trial court instructed the jury that aggravated rape could be proven if a deadly weapon
were used or if the victim suffered personal injury, it constructively amended the

indictment, which charged the use of a deadly weapon. The state contends that the

attorney had no basis to object because the trial court properly instructed the jury on the
relevant law.

The indictment states, in pertinent part, that on February 13, 1986, the

petitioner did “unlawfully and feloniously engage in sexual penetration of [the victim], by
use of fear and coercion and by use of a deadly weapon, to wit: a gun[.]” At the time of

the offense and of the petitioner’s trial, Tenn. Code Ann. § 39-2-603(a)(1) and (2)

defined aggravated rape as:

18
 the unlawful sexual penetration of a victim by a defendant or
the unlawful sexual penetration of a defendant by a victim
accompanied by any of the following circumstances:

(1) Force or coercion is used to accomplish the act and the
defendant is armed with a weapon . . . [or]

(2) The defendant causes personal injury to the victim[.]
The trial court gave the following charge on aggravated rape:

For you to find the defendant guilty of [aggravated rape], the
state must have proven, beyond a reasonable doubt, the
existence of two essential elements:
(1) that the defendant had (unlawful) sexual penetration of the
alleged victim; and
(2) that :(a) force or coercion was used to accomplish the act,
and the defendant was armed with a weapon or any article
used or fashioned in a manner to lead the alleged victim
reasonably to believe it to be a weapon; or

(b) the defendant caused personal injury to the alleged victim;
and force or coercion was used to accomplish the act.

The trial court found that the indictment was not amended and that it had correctly

instructed the jury on the law at the time.

The trial court’s “‘instruction . . . should be limited to the precise offense

alleged in the charging instrument to the exclusion of the remaining theories.’” State v.

VanArsdale, 919 S.W.2d 626, 634 (Tenn. Crim. App. 1995) (quoting State v. Wayne E.

Mitchell, No. 01C01-9209-CR-00295, Davidson County, slip op. at 6 (Tenn. Crim. App.
Mar. 11, 1993)) (reversing based upon other grounds). In Wayne E. Mitchell, the state

elected that it would prosecute on the count alleging aggravated rape committed with a

deadly weapon. The trial court instructed the jury on the entire aggravated rape statute.
Although this court noted that the instruction should be limited to the means of

committing the offense as alleged in the indictment, we held that the verdict conformed

to the indictment. Wayne E. Mitchell, slip op. at 6. This court also noted that “the

balance of the instruction was mere surplusage” that did not affect the trial’s outcome.

Id.

In the present case, the jury returned a general verdict of guilty for the
aggravated rape. Generally, we will affirm a general verdict of guilt if the indictment

contains at least one proper count supported by the proof. Tenn. Code Ann. § 40-18-

111. The petitioner has failed to show that the trial court’s instruction on the alternate

19
theory of personal injury prejudiced him by affecting the outcome of the case. The trial

court properly denied the petition on this ground.

6. Lesser Included Offenses and Definitions

The petitioner contends that his attorney was ineffective because he failed

to request an instruction on the lesser included offenses of aggravated rape and
aggravated kidnapping and on the definitions of “intentionally” and “knowingly.” He

argues that because the trial court charged the jury on robbery as well as armed

robbery, it should have also charged rape and kidnapping in addition to aggravated
rape and aggravated kidnapping. The state contends that no evidence existed that the

petitioner was guilty of any lesser included offenses. It argues that the petitioner

professed his innocence at trial; therefore, he was either guilty of the crimes as charged
or not guilty.

The trial court has a duty to charge the jury on all lesser included offenses

included in the indictment even if the defendant does not request it. Tenn. Code Ann. §

40-18-110. Although § 40-18-110 seems to require jury instructions on all lesser

included offenses regardless of the proof in the record, our supreme court “has

consistently required some factual basis for submitting an instruction on an included

offense to the jury.” Burns v. State, 6 S.W.3d 453, 467 (Tenn. 1999). In this respect,

the evidence presented at the convicting trial did not warrant instructions on the lesser

included offenses of rape and kidnapping.

At his trial, the petitioner denied robbing, abducting, or raping the victim.

The victim testified that her assailant forced her from the convenience store and into his

car at gunpoint. She stated that although he kept the gun in his pocket while he raped
her, he reached for the gun to threaten her immediately preceding the rape when she

refused to cooperate. Officer Danny Humphrey testified that he found two guns at the

turkey shoot in a paper bag in a pile of clothing, which included a ski mask. He stated

that he found a flashlight three or four feet away. The petitioner argues that because
the guns were not found on his person, the jury could have disregarded the victim’s

uncorroborated testimony that her assailant used a gun. The fact that Officer

Humphrey found the guns abandoned with other physical evidence from the crime does

20
not reasonably support the inference that a weapon was not used in the offenses. The

petitioner has failed to point to any evidence that could support an instruction on the

lesser included offenses.

The petitioner’s trial attorney noted that the petitioner consistently

maintained his innocence. The attorney testified that he did not ask the judge to charge
any lesser included offenses because he did not want to create the possibility of a

compromise verdict. The petitioner presents no argument as to how he was prejudiced

by his attorney’s failure to request the trial court to instruct the jury on the definitions of
“knowingly” and “intentionally.” The petitioner has failed to show both deficiency and

prejudice.

7. Fingerprint Instruction

The petitioner contends that his attorney was ineffective for failing to

object to the trial court’s instruction that no two sets of fingerprints are alike. He argues

that this statement intrudes upon the jury’s deliberations, focuses the jury upon one

isolated fact, creates an irrebuttable presumption that the petitioner is the perpetrator

upon proof that the fingerprint was his, and relieves the state of its burden of proof on

this issue. The state contends that the trial court’s instruction followed Tennessee
Pattern Instruction § 37.15 on fingerprints in effect at the time of the petitioner’s trial. It

further argues that the petitioner was not harmed by the instruction because the proof

contains a significant amount of other evidence pointing to the petitioner’s guilt.

The trial court instructed the jury on fingerprint evidence as follows:

Fingerprint evidence has been presented in this case.
You may consider this evidence in determining the defendant’s
identity as the person who committed this crime.

Fingerprint evidence is circumstantial evidence; that is,
it is proof of collateral facts and circumstances from which the
existence of a primary fact may be deduced by you according
to reason and common experience. There are no two sets of
fingerprints exactly alike. For fingerprint evidence alone to
sustain a conviction, you must find that the defendant’s
fingerprints could only have been impressed at the crime
scene during the commission of the crime.

21
 The weight to be accorded fingerprint evidence is a
question for the jury to decide in light of all the surrounding
facts and circumstances of the case.

This instruction is identical to Tennessee Pattern Instruction § 37.15 (2d ed. 1988) and
current Tennessee Pattern Instruction § 42.17 (4th ed. 1995).

We note that our supreme court has recognized that fingerprint evidence
“is infallible because of its conclusiveness.” Jamison v. State, 209 Tenn. 425, 434, 354

S.W.2d 252, 255 (1962) (holding that fingerprint evidence alone is sufficient to support

a burglary conviction). The court based this conclusion upon expert testimony and its
review of case law from which it determined that “all fingerprints that have ever been

taken . . . run into an infinite number and no two have ever been found alike.” Id. Thus,

if the record contains no evidence that the fingerprint was innocently placed, fingerprint
evidence alone may sustain the conviction. State v. Evans, 669 S.W.2d 708, 710

(Tenn. Crim. App. 1984); see State v. Cupp, 215 Tenn. 165, 171-72, 384 S.W.2d 34,

37 (1964).

We believe that the trial court’s instruction to the jury that no two sets of

fingerprints are alike is a statement of fact that improperly intrudes upon the province of

the jury. See Tenn. Const., art. VI, § 9. This is so even if we view the statement as

setting forth facts that could be judicially noticed. See Tenn. R. Evid. 201(g) (“In a
criminal case, the court shall instruct the jury that it may, but is not required to, accept

as conclusive any fact judicially noticed.”). However, we do not believe that the

petitioner is entitled to relief on this issue.

At the petitioner’s trial, Donald R. Hampton, a latent fingerprint examiner

from the Tennessee Bureau of Investigation, testified that he identified a fingerprint
found on the flashlight battery as that of the petitioner. He stated that his identification

contained no margin of error. He testified without contradiction that no two people,

including identical twins, have the same fingerprints. In considering this testimony and

the remaining evidence that connected the petitioner to the crime, we conclude that the
petitioner has failed to show that he was prejudiced by the trial court’s instruction.

II. INSUFFICIENT FACTUAL FINDINGS AND LEGAL CONCLUSIONS

22
 The petitioner contends that the trial court erred by failing to make factual

findings and legal conclusions regarding two additional claims of ineffective assistance

of counsel: that his attorney failed to argue the search and seizure issue and that the
attorney failed to object to an officer’s testimony on the tire prints. The petitioner

asserts that Tenn. Code Ann. § 40-30-118(b) (repealed 1995), which controls this case,

requires the court to make factual findings and legal conclusions with regard to each
ground presented. The petitioner argues that this case must be remanded back to the

trial court for findings on these two issues.

1. Search Issue

Contrary to the petitioner’s contention, the trial court made the following

findings regarding the petitioner’s claim that his attorney failed to argue the search and
seizure question:

Petitioner reiterates the issue on the search question as
to the search of the vehicle and the failure of the state to prove
that the facts justified an exception to the search warrant
[requirement]. This has been addressed fully in the original
case [and] the original appeal and is not now subject to post
conviction attack.

The validity of the warrantless search of the petitioner’s car was previously determined

on direct appeal. State v. Johnny Rutherford, slip op. at 10-11. This court held that the

petitioner was arrested at the time he was detained in the back of the patrol car and

that the warrantless search was a search incident to arrest. Id. The attorney

challenged the search of the petitioner’s car in a pretrial suppression hearing, renewed
his motion to suppress on the morning of trial, and raised the suppression issue on

appeal. No deficiency or prejudice exists.

2. Tire Print Testimony

The trial court does not address the petitioner’s claim that his attorney

failed to challenge an officer’s testimony regarding tire prints being from the petitioner’s

car. Noting that the petitioner had filed several amended petitions, the court stated that
it would address the petitions filed on February 19, 1996, and October 29, 1996. The

court noted that the petitioner’s Memorandum of Points and Authorities accompanying

the February 19 petition states that “the petitioner has amended his petition for post-
conviction relief, voluntarily dismissing all issues except those raised in the

23
accompanying petition.” The petitioner first raised the issue of the tire print testimony in

an Addendum to Memorandum on Points and Authorities filed on October 29, 1996.

The Post-Conviction Procedure Act in effect at the time the petitioner filed

his original pro se petition prohibits the trial court from dismissing the petition for failure

to follow proper procedures “until after the judge has given the petitioner reasonable
opportunity, with the aid of counsel, to file an amended petition.” Tenn. Code Ann. §

40-30-107 (repealed 1995). “The court may . . . freely allow amendments and shall

require amendments needed to achieve substantial justice and a full hearing of all
available grounds for relief.” Tenn. Code Ann. § 40-30-115(a) (repealed 1995).2 Thus,
arguably the trial court should have entered factual findings and legal conclusions

regarding the issue of the tire print testimony.

Nevertheless, we do not believe that the case must be remanded for

findings on this issue. At trial, Officer Danny Humphrey testified that on the night of the

offenses, he observed tire prints in the snow on the road through Foust Cemetery and

also on the road by the turkey shoot. Officer Humphrey identified photographs of these

tire prints. The trial court overruled the attorney’s objection to Officer Humphrey’s

testimony that the tire prints at the cemetery and those at the turkey shoot appeared to

be the same. The attorney objected to the state’s request that Officer Humphrey
compare the tire prints to the tires from the petitioner’s car because the state had not

qualified the officer as an expert. The trial court sustained this objection. The petitioner

contends that his attorney should have challenged the tire print evidence in a pretrial
motion and on appeal. The petitioner has failed to show that he was prejudiced

because Officer Humphrey’s testimony was limited to what he observed.

III. FUNDS FOR DNA EXPERT

The petitioner contends that he is entitled to funds for an expert to test the

DNA from the victim’s rape kit and his blood sample. He argues that the trial court

erred in determining that he failed to show a particularized need for this expert. He
claims that he has continuously maintained his factual innocence and that no witness,

2
The leg islature did n ot include th is provision in the 1995 act. Blair v. State , 969 S.W.2d
423, 424 (Tenn. Crim . App. 1997).

24
including the victim, has identified him as the perpetrator of these crimes. He argues

that the DNA testing may be the only way for him to establish his innocence in this

case. The state summarily responds that the petitioner’s motion for expert services did
not comply with Rule 13, § 5(b), Tenn. S. Ct. R., and that the trial court properly found

that the petitioner has not shown a substantial need for the expert.

The petitioner filed a motion for expert forensic services on February 19,

1996. In this motion, he maintained that DNA analysis was not available to him or the

state at the time of his trial in 1986. As his threshold showing that he would be
deprived of due process if the funds were denied, the petitioner contended that he pled

not guilty at trial and that he has continuously maintained his innocence. He stated that

the victim has never identified him as the perpetrator and that the tests of the biological
specimens at the time of trial were inconclusive. Alternatively, he requested that the

trial court grant him a continuance until Professor Barry Scheck of the Benjamin N.

Cardozo School of Law completed pro bono testing, which began on August 21, 1995.

In the order denying post-conviction relief, the court denied the petitioner’s motion,

stating:

There is no showing of a substantial need for an expert
in this case. The proof is strong and all scientific evidence is
directly pointed to the petitioner. There is no threshold
showing that there was or is a reasonable likelihood that the
assistance of an expert would have materially assisted him in
the presentation of his case.

Neither due process nor equal protection requires the state “to provide

expert services to indigent non-capital post-conviction petitioners.” Davis v. State, 912

S.W.2d 689, 696-97 (Tenn. 1995); see Tenn. S. Ct. R. 13 § 5(b). Thus, the trial court
properly denied the petitioner’s request for funds for expert services.

Based upon the foregoing and the record as a whole, we affirm the trial

court’s denial of the petition for post-conviction relief.

________________________________
Joseph M. Tipton, Judge

CONCUR:

25
_____________________________
David H. Welles, Judge

_____________________________
Jerry L. Smith, Judge

26