Rivera L. Peoples v. State of Tennessee ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 1, 2015
RIVERA L. PEOPLES v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County
No. 2010-B-1177 Cheryl A. Blackburn, Judge
No. M2014-02139-CCA-R3-PC – Filed January 6, 2017
The Petitioner, Rivera L. Peoples, filed in the Davidson County Criminal Court a petition
for post-conviction relief from his conviction of first degree murder, alleging that his trial
counsel was ineffective. The Petitioner also filed a petition for a writ of error coram
nobis, alleging that newly discovered evidence in the form of recanted testimony entitled
him to relief. The trial court denied both petitions. On appeal, the Petitioner challenges
the rulings of the trial court. Upon review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Harry A. Christensen, Lebanon, Tennessee, for the Appellant, Rivera L. Peoples.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn Funk, District Attorney General; and Bret Gunn and Megan King, Assistant
District Attorneys General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
After a trial on August 9-11, 2010, the Petitioner was convicted by a Davidson
County Criminal Court Jury of first degree felony murder, and he received a life
sentence. On direct appeal, this court summarized the proof adduced at trial as follows:
The evidence at trial established that Linburg
Thompson (―Victim Thompson‖), a fifty-three-year-old father
of four, was killed on the night of December 10, 2008, while
working at Ace‘s Market in Nashville. Gift Wilford Bonwe,
another individual working at Ace‘s Market that evening,
testified that Victim Thompson had taken out the trash, and,
while Victim Thompson was outside, Bonwe heard loud
noises that sounded like the slamming of the dumpster lid.
As Bonwe walked toward the door, a lady rushed inside and
told him that there had been a shooting outside. Bonwe then
called the police. Shortly thereafter, a neighbor ran into the
store and told Bonwe that Victim Thompson had been shot.
Bonwe ran outside and found Victim Thompson on the
ground ―gasping for his life.‖ Unbeknownst to Bonwe, the
lady who reported the shooting had also been shot, and when
Bonwe returned into the store, he found her crawling on the
floor and asking for help.
....
Antoinette Bell (―Victim Bell‖) testified that she was
shot at Ace‘s Market on December 10, 2008. She lived
within walking distance of the store, and she was at the
market that night buying beer and cigarettes. Standing
outside, she observed a silver car across the street and noticed
two men get out of the car and walk toward the store. As one
of the men walked into the store, Victim Bell asked him for a
lighter. He told her that he did not have one, but as he later
walked back out of the store, he handed her a lighter. At
approximately the same time that the man with the lighter
exited the store, Victim Thompson walked out of the store
with garbage. Once Victim Thompson walked around the
corner toward the dumpster, Victim Bell heard someone say,
―go get the money out of the register.‖ She then heard Victim
Thompson respond, ―I‘m not going to get s**t, you go get it
yourself.‖ Immediately thereafter, she heard shots fired near
the dumpster, and she ran into the store. About a minute or so
after running into the store, Victim Bell became dizzy and
realized that she herself had been shot. On cross-
examination, Victim Bell stated that she did not notice how
many people were in the silver automobile. She did not see
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the face of any other individuals involved in the shooting
except for the person from whom she asked for the lighter.
Trey Mosby testified that in December of 2008, he
lived within close proximity to Ace‘s Market. On the night of
December 10, 2008, he was at home and observed a silver
Chevrolet Impala parked in front of his house. He noticed
that there were four black males sitting in the vehicle. Two of
the men in the vehicle stepped out and walked toward the
store. He noticed that the vehicle‘s rims were not typical
hubcaps but were alloy wheels with emblems. Mosby did not
witness the shooting because he and his roommate left their
residence right after he observed the men getting out of the
vehicle.
Brian Beech testified that he lived directly across the
alley from Ace‘s Market on December 10, 2008. At the time
of the shooting, Beech was asleep at home, but he awoke to
the sound of four gunshots. He jumped out of bed and ran
toward the back of the house to look out the window, at
which point he observed a silver Chevrolet Impala driving up
the alleyway. The Impala stopped long enough for an
individual to enter the back passenger seat and then continued
driving up the alleyway. Beech noticed that the vehicle had a
―drive-out tag,‖ ―some factory rims or some polished rims,‖
and a ―spoiler.‖ After the car drove away, Beech walked
outside and noticed that Victim Thompson was on the
ground. Later, the police escorted Beech to view a vehicle
which he identified as the vehicle he had seen in the alley.
Beverly Landstreet testified that on December 10,
2008, she lived next to the alley near Ace‘s Market. That
evening, she heard some gunshots, and when she looked
outside, she observed a silver Impala driving slowly up the
alleyway. She called the police and spoke with officers once
they arrived at the scene. Later, an officer escorted her and
her roommate to a location where they identified a vehicle as
the one they saw driving in the alley.
....
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Lieutenant Matt Pylkas, Metro Police Department
(―MPD‖), testified that he was working on the night of
December 10, 2008. When he received the call about the
shooting, Lieutenant Pylkas assisted in searching for the
suspects instead of going to the scene of the incident. He
received a description that the vehicle was ―a silver Impala
with a temporary tag‖ and ―an air foiler [sic] on the back.‖
Shortly after reaching the Edgehill area, he observed a vehicle
parked alone that matched the description received over the
radio. Lieutenant Pylkas exited his vehicle to peer inside the
Impala. He observed a stocking cap and some bandanas in
the interior of the vehicle, and he placed his hand in front of
the engine area and noticed that it was ―extremely hot,‖
indicating that the vehicle had been driven recently.
Officer George Bowton, a crime scene investigator for
the MPD, testified that on the night of December 10, 2008, he
responded to a call regarding a shooting at Ace‘s Market. As
part of his responsibility at the scene, he drew a diagram
depicting the scene of the shooting and the location of
evidence obtained. Additionally, he collected one bullet and
two shell casings as evidence. He identified the two shell
casings as Winchester nine millimeter Luger cartridge
casings.
Lynette Mace, MPD Crime Scene Investigations,
testified that her involvement with the case included
investigating the 1999 Chevrolet Impala identified by
witnesses as the car used in the commission of the shooting.
Her investigation included photographing the vehicle and
articles located inside and obtaining those items to submit for
analysis of deoxyribonucleic acid (―DNA‖), gunshot residue,
and fingerprints.
The State read into evidence the depositions of Officer
Thomas E. Simpkins, MPD, and Officer Belinda Shea, MPD.
Officer Simpkins stated in his deposition that he found
fingerprints on approximately seven compact discs that he
submitted for fingerprint analysis. In Officer Shea‘s
deposition, she testified as an expert in latent fingerprint
identification. She analyzed latent fingerprints submitted in
this case by Officer Simpkins and Officer Mace. From the
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compact discs submitted, she found prints matching those of
the [Petitioner] and an individual named Brian Moreland.
From the prints lifted from an amplifier located in the trunk,
Officer Shea matched a finger print to that of the [Petitioner].
Finally, on a box of dryer sheets, she identified prints as
matching those of an individual named James Dowell.
Officer Shea acknowledged that she analyzed several prints
that she could not match conclusively to certain individuals.
She also agreed that she could not discern the age of a
fingerprint from her analysis.
Brian Moreland testified that he was involved in an
attempted robbery at Ace‘s Market on December 10, 2008.
He stated that the other individuals involved in the attempted
robbery were the [Petitioner], Dowell, and Harris. He had
known these other men for approximately a few months prior
to the incident, and he identified the [Petitioner] and Harris as
brothers. On the night of the shooting, the four men
determined that they needed some money, so they decided to
drive around the area until they found a place to rob.
Moreland confirmed that they were riding in the [Petitioner‘s]
car and that the [Petitioner] was driving. They took with
them gloves, hats, bandanas, and two guns, and they
eventually decided to rob Ace‘s Market.
Moreland further testified that upon reaching the store,
Dowell exited the vehicle and walked toward the store. At
some point, Dowell entered the store, and the [Petitioner]
listened by cell phone from the car. When Dowell left the
store, the [Petitioner] drove the car up to the side of Ace‘s
Market to retrieve Dowell. As Dowell was about to get into
the car, Harris jumped out of the car. Harris confronted a
man standing outside, ―and when the dude swung at [Harris],
[Harris] shot‖ the man twice. Immediately thereafter, Harris
approached the front of the store, and, although Moreland
could not see Harris at this point, Moreland heard another
gunshot. Harris returned to the vehicle, and the four men
drove away to the Edgehill Housing Development, where
Harris‘s girlfriend lived and where Harris was staying at the
time.
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Moreland stayed at Harris‘s girlfriend‘s residence for a
few hours, and at some point, the four men saw police
surrounding the [Petitioner‘s] vehicle from the window. The
police eventually knocked on the door, but no one answered
the door. Moreland acknowledged that he had been charged
with the same crime as the [Petitioner], and, although he had
not been promised anything for his testimony, he hoped that
his testimony would be beneficial to the resolution of his
case.
On cross-examination, Moreland agreed that he never
intended for anyone to get shot or hurt. He also
acknowledged that, when Harris jumped out of the vehicle,
Harris was acting on his own accord and Moreland did not
know what Harris was doing. However, on redirect
examination, Moreland admitted that all of the men were
planning to get out of the car but that Harris simply jumped
out of the car sooner than Moreland anticipated.
Detective Jill Weaver, MPD, testified that she
interviewed approximately fifteen individuals throughout the
investigation of this case, including all four individuals
allegedly involved in the attempted robbery. The State
played a video that consisted of Detective Weaver
interviewing the [Petitioner]. In the video, the [Petitioner]
explained that on the night of the shooting he went to the mall
with his brother in the [Petitioner‘s] vehicle. When they
returned from the mall, he left his vehicle at his residence,
and his daughter‘s mother picked him up and drove him to
Fairview for the evening. The [Petitioner] also referred to his
association in the ―GD‘s,‖ which Detective Weaver explained
was a reference to a gang called the Gangster Disciples.
Jerome Bonsu testified that he owns an automobile
dealership on Dickerson Pike. He identified a bill of sale
from his company bearing the name of the [Petitioner] as the
purchaser of a gray Chevrolet Impala on November 24, 2008.
Bonsu confirmed that he sold the vehicle to the [Petitioner].
He also identified a reference sheet included with the
[Petitioner‘s] file that listed phone numbers for Antonio
Harris, Brian Moreland, James Dowell, and Sham[e]ka Harris
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[Malone1]. On the bill of sale, the [Petitioner] also provided
his cell phone number.
Agent Richard Littlehale, Tennessee Bureau of
Investigation (―TBI‖), testified as a communications analyst
in crime investigations. He received phone records for the
cell phone numbers of the [Petitioner], Moreland, Dowell,
and Harris, which were admitted as evidence at trial. Each
cell phone record included a reference to the cell tower used
to transmit each call. He then calculated the distance from
that tower to pertinent locations in the case. He explained
that in an urban area, cell towers were approximately one or
two miles apart. Calls customarily are transmitted from the
cell tower that is closest to the location of the cell phone.
From his calculation, a call made by the [Petitioner] at the
approximate time of the shooting was transmitted from a
tower point six four three (0.643) miles from the scene of the
shooting.
Dr. Thomas Deering, a medical examiner and forensic
pathologist with Forensic Medical Management Services,
testified that he performed an autopsy on Victim Thompson. .
. . Dr. Deering concluded that Victim Thompson died as a
result of multiple gunshot wounds to the abdomen.
Cassaundra Waters testified that in December of 2008,
she had been dating the [Petitioner] for about a month. She
worked with Lisa Anderson, the girlfriend of Harris, and
because Waters was separated from her husband at the time,
she also lived with Anderson. According to Waters, on the
evening of December 10, 2008, the [Petitioner] left with
Harris to go to the mall. After they returned to Anderson‘s
residence, police came to the door, but no one answered the
door. Waters could not recall whether the [Petitioner] spent
the night at Anderson‘s residence that night. The next day,
Waters and the [Petitioner] observed a news story on
television regarding the shooting at Ace‘s Market. The
Defendant told Waters that the [Petitioner], Harris, Dowell,
1
At the post-conviction hearing, this individual testified that her name was Shameka Harris Malone.
Additionally, she said that the Petitioner and Harris were her brothers.
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and Moreland went to the store that evening with the purpose
of robbing it.
Jamesia Dowell, sister of Dowell, testified that she has
had a relationship with the [Petitioner] and that they had two
children together. In December of 2008, she lived in
Fairview. Early one morning, the [Petitioner] woke Jamesia
by calling her to request that she say that he was in Fairview
if anyone asked her about his whereabouts on the night of
December 10, 2008. She acknowledged that he was not, in
fact, in Fairview on that date.
....
Agent James Russell Davis, II, TBI, testified as an
expert in the field of microanalysis. He explained that when a
weapon is fired, gunpowder settles on all the objects in close
proximity to the weapon. He tested gloves found throughout
the [Petitioner‘s] Impala including: one glove from the trunk,
two pairs from the rear seat area, and a pair located in the
glove box. From his analysis, Agent Davis discovered that
there was gunshot residue on all the gloves tested.
Agent Michael Turbeville, TBI, testified as an expert
in the field of DNA analysis. He tested a number of items in
an attempt to discover DNA profiles on the items. On a pair
of black gloves recovered from the rear passenger area of the
[Petitioner‘s] Impala was a mixture of DNA matching Harris,
Dowell, the [Petitioner], and a female. He also matched the
DNA found on a black bandana in the glove box to Harris.
Regarding the pair of gloves found in the glove box, one
glove had DNA consistent with that of Harris and Dowell,
with the possibility of Moreland and a female as additional
contributors. The corresponding glove contained DNA
matching that of Harris and Dowell, with the possibility of the
[Petitioner] and a female as additional contributors. A black
bandana from the rear passenger area of the vehicle matched
the DNA of Harris and Dowell. Based on the analysis of an
additional pair of gloves retrieved from the rear passenger
area of the vehicle, Agent Turbeville discovered DNA on one
glove consistent with that of Harris, Dowell, and Moreland,
with the possibility of a match to the [Petitioner] and a
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female. With regard to the corresponding glove, he
discovered DNA consistent with that of the [Petitioner],
Dowell, and Moreland, with the possibility of Harris and a
female as additional contributors. From a bandana found in a
pocket in the back passenger seat, Agent Turbeville
discovered DNA matching that of the [Petitioner] and
Moreland. Another bandana found in that pocket contained
DNA consistent with that of Dowell. Agent Turbeville
opined that tennis shoes found in the car matched the
[Petitioner‘s] DNA as well as a female‘s DNA. A white shirt
retrieved from the rear floorboard contained DNA consistent
with that of the [Petitioner] and a female. Additionally,
Agent Turbeville obtained nasal secretion from the shirt that
matched the [Petitioner‘s] DNA.
. . . The [Petitioner] took the stand and testified that on
the evening of December 10, 2008, he drove to the mall with
his brother, Harris, and Dowell to buy shoes for his daughter.
The State asked the [Petitioner] why he did not mention to the
police that Dowell went with him to the mall. He responded,
―I guess, when you tell one lie, you‘ve just got to continue.
You have to build on that lie. So when you tell one lie,
you‘ve got to continue to tell another lie to cover that first one
up.‖ After returning from the mall to the Edgehill area,
Harris asked to borrow the [Petitioner‘s] car. According to
the [Petitioner], Harris, Dowell, and Moreland then left for
approximately fifteen to twenty minutes. When they
returned, Harris told the [Petitioner] that someone had been
shot.
State v. Rivera L. Peoples, No. M2010-02162-CCA-R3-CD, peop, at *1-6 (Tenn. Crim.
App. at Nashville, June 20, 2012) (footnotes omitted).
Thereafter, the Petitioner filed a petition for post-conviction relief, listing the
following instances of ineffective assistance of counsel:
1. The failure of [trial counsel] to investigate, subpoena, and
secure the attendance at trial [of] Shameka D. Harris
[Malone] as an alibi witness for [the Petitioner].
2. The failure of [trial counsel] to investigate, subpoena and
secure the attendance, at trial, of the custodian of the cellular
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phone records for the number (615) 589-0741 to authenticate
[the Petitioner‘s] cell phone records and calls during time
periods and location in relation to the crime.
3. The failure of [trial counsel] to investigate, subpoena and
secure the attendance, at trial, of co-defendant, James Dowell,
as an exonerating witness for [the Petitioner].
4. The failure of [trial counsel] to investigate, subpoena and
secure the attendance, at trial, of Joshua Ostein, as an
exonerating witness for [the Petitioner].
5. The failure of [trial counsel] to object, at trial, to the
playing of Detective Weaver‘s entire interview of Cassaundra
Waters.
6. The failure of [trial counsel] to request jury instructions
concerning what the trial court determined to be prior
inconsistent statements of Cassaundra Waters.
7. [Trial counsel] provided ineffective assistance of counsel
by failing to consult with [the Petitioner] regarding the
overarching defense strategy which involved [trial counsel‘s]
unilateral decision to concede [the Petitioner‘s] guilt in front
of the jury.
8. Subsequent to [the Petitioner‘s] conviction, [trial counsel]
received charges via the Board of Professional Responsibility
regarding three prior clients for mishandling their cases and
not proceeding in a timely fashion, resulting in a suspension
of his law license. In addition, on May 20, 2013, [the
Petitioner] received authorization from the Board of
Professional Responsibility to file formal charges against
[trial counsel] for his failure to handle [the Petitioner‘s] case
in a professional and effective manner, (including never
visiting [the Petitioner] to discuss his case while incarcerated
pending trial). . . .
The Petitioner also filed a petition for a writ of error coram nobis, alleging that
Moreland had recanted his trial testimony and exculpated the Petitioner from any
involvement in the murder. The trial court first held a hearing regarding the post-
conviction claims. Immediately thereafter, the court conducted a hearing regarding
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whether the petition for a writ of error coram nobis was time-barred or whether due
process required tolling of the statute of limitations.
At the post-conviction hearing, trial counsel testified that he discussed the charges2
with the Petitioner each time they went to court. Trial counsel did not recall meeting
with the Petitioner at the jail. During the meetings, trial counsel tried to explain the
defense strategy. Initially, trial counsel intended to pursue an alibi defense based upon
the Petitioner‘s spending the night at Malone‘s house. However, ―once all the proof had
come out,‖ trial counsel determined that the best strategy was to argue the Petitioner had
abandoned the crime.
Trial counsel said that he and the Petitioner discussed potential witnesses and that
the Petitioner told him Malone was an alibi witness. However, when trial counsel tried to
contact Malone, he did not get an answer or did not ―like the feel of what [he] heard.‖
Therefore, trial counsel never filed a notice that he intended to use an alibi witness. Trial
counsel said that not much evidence existed to support an alibi defense. Regarding alibi,
trial counsel said, ―It‘s fair to say someone might have – there might be someone out
there who could have said something.‖ Nevertheless, trial counsel asserted, ―If there was
an alibi possibility, I would have followed up with it.‖ Trial counsel maintained that the
defense was designed to counter the State‘s evidence and that he did not want to present a
defense that was not credible.
Trial counsel said that he learned from discovery that the State planned to
introduce cellular telephone records and that he discussed the records with the Petitioner.
The Petitioner told trial counsel that the telephone involved was not his; however, the
Petitioner had used that telephone number on the application to buy the car that was used
in the crimes.
Trial counsel said that he did not speak with the Petitioner‘s co-defendants but that
he did speak with their attorneys. The Petitioner told trial counsel that co-defendant
Dowell had written a letter stating his intention to recant his statement to the police that
implicated the Petitioner; however, Dowell‘s attorney told trial counsel that Dowell
would not recant his statement. Trial counsel said that he did not call Dowell as a witness
at trial because the police had video recorded an interview with Dowell shortly after the
crimes, and his testimony could have been impeached with the video.
Trial counsel said that he thought co-defendant Moreland would testify for the
State against the Petitioner. Trial counsel could not recall whether he researched
Moreland‘s criminal history to determine if any of the offenses could be used for
2
The Petitioner was originally charged with felony murder, attempted second degree murder, and
employing a firearm during a dangerous felony but ultimately was tried on only the felony murder charge.
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impeachment, but trial counsel said that he normally performed such research. Trial
counsel acknowledged that through discovery, he learned Joshua Ostein gave a statement
to detectives regarding ―[s]omething he overheard‖ concerning the murder. Trial counsel
did not interview Ostein. Trial counsel said that Ostein‘s statement would not have
rebutted Moreland‘s testimony. Trial counsel did not know whether Moreland, Dowell,
Harris, or Malone had signed affidavits.
Trial counsel conceded that the Board of Professional Responsibility (BPR) had
received complaints about his failure in civil cases to prepare for trial, stay in touch with
clients, perform due diligence, and other claims of misconduct. Counsel further
conceded that in January 2012, his license to practice law was suspended for two years.
Additionally, the Petitioner had filed a complaint with the BPR, which trial counsel was
disputing ―very aggressively.‖ Trial counsel asserted that he did a ―professional job‖
representing the Petitioner; he noted, however, that ―[c]ommunication was breaking
down towards the end.‖
On cross-examination, trial counsel said he thoroughly examined the State‘s proof
against the Petitioner, and he informed the Petitioner the State‘s case was strong. The
Petitioner told trial counsel at least three or four different versions of the events on the
night of the offenses. During counsel‘s discussions with the Petitioner, ―the details
would evolve.‖ Trial counsel became uncomfortable with presenting any of the
Petitioner‘s versions of events at trial. He felt ―boxed in‖ because he feared the Petitioner
would commit perjury and advised the Petitioner against testifying. Nevertheless, the
Petitioner insisted on testifying.
Trial counsel asked the Petitioner to introduce himself and to tell what happened
but did not ask further questions because he did not want to suborn perjury. Trial counsel
stated that the Petitioner‘s testimony was not corroborated by any other proof. Trial
counsel ―thought it would be presumptuous to think the jury would be that gullible for me
to argue that fact pattern or that narrative‖ to which the Petitioner testified. Before trial,
trial counsel had never heard the version of events to which the Petitioner testified.
When faced with the Petitioner‘s testimony, which contradicted the Petitioner‘s previous
versions of events, trial counsel concluded that presenting a defense of abandonment was
the Petitioner‘s best chance to receive a lesser offense, an acquittal, or a hung jury. Trial
counsel noted that one of the co-defendants had advanced an abandonment defense and
obtained a mistrial due to a hung jury.
Trial counsel acknowledged that he knew about Dowell‘s letter recanting his
statement to the police. Trial counsel said that even if Dowell had testified consistently
with the recantation, the State would have introduced the video recorded interview of
Dowell as a prior inconsistent statement. In the interview, Dowell stated that the
defendants were in the Petitioner‘s car, the Petitioner was driving, and the Petitioner ―was
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part of the robbery plan.‖ Trial counsel opined that the timing of the interview made it
more credible than Dowell‘s potential trial testimony.
Trial counsel said the undisputed proof at trial was that Harris had shot the clerk.
Trial counsel thought that the Petitioner first mentioned four to six months after the crime
that he had a cellular telephone other than the one the police investigated. Trial counsel
thought that telephone companies typically did not keep records for longer than six
months. The Petitioner never explained why he gave the number of the cellular
telephone found in the car on his application when he bought the car instead of the other
cellular telephone. Trial counsel said that he was well-prepared for trial and that even
with hindsight, he would not have made different choices.
On redirect examination, trial counsel said that he did not find the Petitioner‘s
claims regarding alibi evidence to be credible, explaining:
[W]e had two witnesses that said he asked them to lie about
him being in Fairview [at Malone‘s house], we had his car,
we had the phone number he provided on the application used
in the robbery bouncing off the same towers as the other three
numbers, the other three codefendants, and we had a
codefendant testify.
On recross-examination, trial counsel acknowledged that the Petitioner had filed
several complaints against him with the BPR. In his complaints, the Petitioner made
allegations similar to those he made in his post-conviction petition.
James Dowell, a co-defendant, testified that the Petitioner had fathered children
with Dowell‘s sister and that he had known the Petitioner since 2005 or 2006. Dowell
identified a letter he wrote to trial counsel in 2009 or 2010, before the Petitioner‘s trial, in
which he exculpated the Petitioner. The letter was admitted as an exhibit to the hearing.
Dowell testified that the Petitioner was not at Ace‘s Market on the night of the
offenses. Dowell said that he, Moreland, and Harris went to Malone‘s house where the
Petitioner was and borrowed the Petitioner‘s car. Harris drove them to Ace‘s Market.
One of the men talked on a cellular telephone during the drive, but Dowell could not
remember which man used the telephone.
On cross-examination, Dowell acknowledged that after his arrest, he told the
police that the Petitioner ―was involved and was part of the plan to rob the Ace Market.‖
After being indicted, Dowell spoke with a prosecutor and reiterated the Petitioner‘s
involvement in the crimes. He provided details in the hope that he could testify for the
State. Sometime before the Petitioner‘s trial, Dowell and the Petitioner were transported
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together for a court date in Williamson County. Thereafter, Dowell wrote the recantation
letter. Because of the letter, the prosecutor told Dowell‘s attorney that Dowell had
breached the ―deal‖ with the State, that he would not be used as a witness at the
Petitioner‘s trial, and that he would be prosecuted for the offenses.
Dowell denied telling his attorney that he was forced to write the recantation letter
and that its contents were not true. Dowell stated that after he wrote the letter, he no
longer wanted to testify against the Petitioner. Nevertheless, after he wrote the letter, his
attorney filed a motion contending that Dowell was willing to abide by the deal with the
State and should not be prosecuted. Dowell asserted that he did not know why a hearing
was held on the motion or why his attorney appealed the issue to the Tennessee Supreme
Court.3 He said that if he had been called to testify at the Petitioner‘s trial, he would have
testified about his own involvement in the crime and ―to this letter, that I wrote the
letter.‖
On redirect examination, Dowell said that the State had offered a deal he could not
refuse. In return for his testimony, his charges would be dismissed, and he would be
released from jail. Dowell asserted that he ―made up a lot of stuff just to get that deal.‖
Dowell said that the Petitioner did not force him to write the recantation letter and that he
did not discuss the letter with the Petitioner before he wrote it and sent it to trial counsel.
Dowell said that he implicated the Petitioner because he had a ―vendetta‖ against the
Petitioner at the time. Once Dowell realized the seriousness of the offenses, he felt
compelled to exonerate the Petitioner.
Shameka Harris Malone, the Petitioner and Harris‘s sister, testified that on the
night of December 10, 2008, the Petitioner was at her house ―[a]ll night,‖ wrapping
Christmas presents. She acknowledged that her house was a ―couple of blocks‖ from
Ace‘s Market but asserted that it ―wasn‘t walking distance.‖
On cross-examination, Malone said that around 9:00 p.m., the Petitioner called her
house and asked for her help wrapping Christmas presents. He arrived at her house
around 9:15 or 9:30 p.m. and stayed until morning. She and the Petitioner were alone in
the house. She was ―sure‖ that the Petitioner talked to Harris ―and them‖ by telephone
―[n]ot long‖ after the Petitioner arrived at the house. Malone said that ―the others‖ did
not ―come back‖ to her house that night.
3
See State v. James L. Dowell, No. M2012-00520-CCA-R3-CD, 2013 WL 1804191, at *25-26 (Tenn.
Crim. App. at Nashville, Apr. 30, 2013) (concerning an unrelated aggravated robbery and especially
aggravated kidnapping case with Dowell and the Petitioner as co-defendants in which Dowell challenged
the State‘s failure to honor an immunity cooperation agreement); perm. to appeal denied, (Tenn. Oct. 16,
2013).
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Malone said that a detective came to her house but did not ask her questions. Trial
counsel never spoke with her, and she never told him that the Petitioner was with her at
the time of the offense.
Brittany Bates testified that she talked to the Petitioner on a nearly daily basis
during the four months the Petitioner was in custody awaiting trial. During almost every
conversation, the Petitioner asked for her assistance in contacting trial counsel. Bates
tried to deliver ―papers‖ to trial counsel‘s office, but he either was not there when she
went by the office or canceled their appointments. She alleged that trial counsel‘s
secretary was in the office on only one occasion when she tried to make a delivery.
Josh Ostein testified that ―[a]t some point,‖ he overheard Moreland say
that he was trying to serve somebody [at Ace‘s Market] and
they tried to take the dope from him. So when they tried to
take the dope, [Moreland] pulled out a gun and started
shooting. And one of the victims that was in the way lost his
life in the process of it.
Ostein said that Moreland did not mention the Petitioner when describing the incident.
Ostein said that he was never asked to testify to counter Moreland‘s testimony.
On cross-examination, Ostein said that he was subpoenaed to testify at Dowell‘s
trial. During a jury-out hearing, Ostein invoked his Fifth Amendment right to remain
silent but was told that because he was not a defendant, he had no Fifth Amendment
privilege in relation to that case. Nevertheless, Ostein asserted that he did not want to get
involved, and ―they let [him] go.‖ Ostein said that at the time of Dowell‘s trial, he was
scared that he ―might end up getting involved in this.‖
Ostein said that when he was booked into jail on unrelated robbery charges,
Detective Weaver asked him about Moreland. Ostein opined that Detective Weaver
thought he knew something about the Ace‘s Market shooting because he was from the
same area as Moreland. Ostein said that he was arrested a couple of months after the
Ace‘s Market shooting.
Upon questioning by the post-conviction court, Ostein said that he did not recall
testifying during a jury-out hearing at Dowell‘s trial that he did not know Moreland.
The Petitioner testified that trial counsel did not visit him in jail. He also testified
that he never spoke with trial counsel about his case. He tried calling or writing, but trial
counsel never responded. While in jail, the Petitioner asked Bates to try to contact trial
counsel, but she was unsuccessful.
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The Petitioner testified that he told trial counsel ―through correspondence‖ that the
telephone records used by the State to place the Petitioner at the scene of the crime were
from a ―prepaid phone that was used by several people‖; it was not the cellular telephone
registered in his name. Trial counsel told the Petitioner that pursuing the records relating
to the telephone registered to the Petitioner was ―a wild goose chase.‖
The Petitioner said that the night of the offense, he and his brother, Harris, were at
Hickory Hollow Mall. After the Petitioner left the mall, he went to Malone‘s house to
wrap Christmas presents. The Petitioner spent the rest of the night at Malone‘s house and
let Harris borrow his car.
The Petitioner said that his car was impounded after the crime. The Petitioner said
when he spoke to detectives about the car, he tried to protect people and denied that the
car was his or that his brother was involved. He asserted that he did not know the lies he
told to protect people would result in his being convicted of murder.
The Petitioner asserted that he wanted his defense to be that he was not at the
scene of the crime. He never told trial counsel that he was present at the scene but
abandoned his involvement in the crimes. He thought trial counsel‘s arguing
abandonment essentially conceded the Petitioner‘s guilt in the crimes. The Petitioner
said trial counsel presented the abandonment defense without first consulting him.
The Petitioner asserted that he and trial counsel did not communicate before trial.
Trial counsel sent ―a paralegal or an assistant‖ and an investigator to meet with the
Petitioner, but they would not answer the Petitioner‘s questions. The Petitioner had never
heard about criminal responsibility before the first day of trial. The Petitioner said that he
was never advised of the charges against him or of the potential life sentence.
On cross-examination, the Petitioner said that trial counsel never informed him of
any plea offers made by the State.
The State recalled trial counsel, who testified that he conveyed the State‘s plea
offer to the Petitioner and discussed the offer with him. Trial counsel said that ―it was a
forty-year offer, dismiss everything else.‖ Trial counsel said that he explained felony
murder and criminal responsibility to the Petitioner.
Upon questioning by the post-conviction court, trial counsel acknowledged that
the Petitioner testified that he was not present at the scene of the crime and was instead at
his sister‘s house. He contended that he did not know what the Petitioner‘s trial
testimony would be. Trial counsel said that he argued abandonment based on the
evidence presented at trial, explaining that he thought the jury would not believe the
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Petitioner‘s testimony. Trial counsel focused on the State‘s burden of proof during the
opening statement and on abandonment during closing argument. Trial counsel
acknowledged that he hired a private investigator and that he had a ―[s]ecretary slash
paralegal.‖ Trial counsel asserted that his paralegal ―at that time was in the office all the
time except for an hour for lunch.‖
Dowell‘s attorney, C.W., testified that Dowell‘s agreement with the State was
―that if he testified truthfully and was honest from that point forward that he would
receive substantial mercy in . . . the murder case.‖ The agreement further provided that
the charges against him on ―the home invasion cases‖ would be ―dismissed or retired.‖
C.W. recalled that Moreland had agreed to testify against Dowell. C.W. said that the
State never promised that Dowell would be released ―[a]t any particular time.‖
C.W. agreed that Dowell‘s ―position . . . changed‖ after he wrote the recantation
letter. C.W. filed a motion to compel the State to enforce the deal regardless of Dowell‘s
recantation letter. At a hearing on the motion, C.W. informed the court that Dowell had
told the truth in his statement to the police and that Dowell was willing to testify
consistently with the statement. C.W. appealed the State‘s failure to honor the deal, but
relief was denied. C.W. thought he called Ostein to testify at Dowell‘s trial in order to
rebut Moreland‘s testimony that Harris was the shooter. However, Ostein refused to
testify.
Teresa Michelle Hamblen, a correctional officer, testified that she recognized a
document written and signed by Moreland. She first saw the document on March 6,
2013. She did not recall notarizing the document but acknowledged signing it. Hamblen
said that her records reflected that the document was a letter, not an affidavit. On cross-
examination, Hamblen said that she did not place Moreland under oath before he signed
the document.
In support of the petition for a writ of error coram nobis, the Petitioner testified
that Moreland wrote him letters apologizing for lying and implicating the Petitioner in the
crimes. Moreland asked if he could do anything to help the Petitioner, and the Petitioner
suggested that he ―put it in writing.‖ ―[S]ometime right before‖ the Petitioner filed the
petition for a writ of error coram nobis in May 2013, the Petitioner received an affidavit
from Moreland, recanting his trial testimony. The Petitioner said that prior to trial, he did
not know what Moreland‘s testimony would be.
The Petitioner said that his trial ended on August 11, 2010, and that his motion for
new trial was denied thirty or forty-five days later. The Petitioner said that he was
incarcerated and could not have obtained Moreland‘s recantation earlier.
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On cross-examination, the Petitioner said that at the time of the hearing, he and
Moreland were not housed at the same facility. They previously had been in the same
prison but had not been allowed see each other because they were deemed
―incompatible[],‖ and Moreland was in protective custody. The Petitioner said that he
did not have any friends in prison take messages to Moreland. The Petitioner said that
Moreland wrote three or four letters before writing the recantation.
E.H. testified that she represented Moreland in the Ace‘s Market murder case. She
said that during the pendency of that case, she and Moreland met with the State regarding
whether Moreland would testify for the State. The State never encouraged Moreland to
lie. Moreland never told E.H. that the Petitioner was not involved with the murder; in
fact, he said ―quite the opposite.‖ When asked if Moreland ever said the Petitioner was
not involved, E.H. responded, ―There was never any doubt who was involved.‖
E.H. said that she had been ―in touch‖ with Moreland since the recantation
document was filed. She knew that Moreland was placed in protective custody because
of a concern that either the Petitioner or the Petitioner‘s ―agents‖ would harm Moreland.
On cross-examination, E.H. denied that Moreland‘s testimony was ―crucial‖ to the
Petitioner‘s prosecution, noting that the State had ―a very strong case‖ against the
Petitioner without Moreland‘s testimony. She noted that Moreland ―never wanted to
testify.‖ E.H. advised him that testifying for the State could benefit him but that they had
no deal that guaranteed any benefit. She thought Moreland originally faced a fifty-six-
year sentence but eventually received a ten-year sentence.
Upon questioning by the post-conviction court, E.H. said that Moreland testified
two or three times against the Petitioner and Dowell.4 Moreland‘s trial testimony was
consistent with what he told E.H. E.H. said that at least one month prior to trial, trial
counsel knew that Moreland intended to testify for the State against the Petitioner.
The assistant district attorney general who prosecuted the Petitioner testified that
Moreland testified for the State at the Petitioner‘s trial. The prosecutor said that he never
attempted to have Moreland testify untruthfully and that he never ―coach[ed]‖ Moreland
on how he should testify. The prosecutor told Moreland that if he testified against the
4
The Petitioner and Dowell were tried separately for the murder committed at Ace‘s Market, and
Moreland testified at each trial. See State v. James L. Dowell, III, No. M2011-02096-CCA-R3-CD, 2012
WL 3939978 (Tenn. Crim. App. at Nashville, Sept. 11, 2012); State v. Rivera L. Peoples, No. M2010-
02162-CCA-R3-CD, 2012 WL 2356584 (Tenn. Crim. App. at Nashville, June 20, 2012). Additionally,
Moreland testified at an unrelated case in which the Petitioner and Dowell were tried jointly for multiple
counts of aggravated robbery and especially aggravated kidnapping. State v. James L. Dowell, No.
M2012-00520-CCA-R3-CD, 2013 WL 1804191 (Tenn. Crim. App. at Nashville, Apr. 30, 2013).
- 18 -
Petitioner, he would ―take all this into account in deciding how to resolve [Moreland‘s]
case.‖ Moreland never told the prosecutor that the Petitioner was not involved in the
crimes.
The prosecutor stated that initially, the State planned to have Dowell testify
against the Petitioner. However, before the Petitioner‘s trial, Dowell and the Petitioner
were transported together to Williamson County for a case; afterward, Dowell recanted
his statement implicating the Petitioner. Because Dowell was no longer a suitable
witness, the prosecutor approached E.H. about Moreland‘s testifying for the State. Once
it was determined Moreland would testify for the State, the prosecutor informed the
Petitioner‘s trial counsel.
On cross-examination, the prosecutor opined that Moreland‘s testimony was not
―critical‖ to the State‘s case against the Petitioner but that his testimony was ―helpful.‖
Regarding the Petitioner‘s role, Moreland consistently told the prosecutor that the
Petitioner was at the scene and was involved in the crime. The prosecutor noted that
even without Moreland‘s testimony, the State had ample evidence incriminating the
Petitioner, including the car, the items in the car, and the cellular telephone records.
The prosecutor said that Moreland‘s affidavit stating the State encouraged him to
lie was ―upsetting‖ because Moreland ―should have never been put in a position where he
could have been influenced by either [the Petitioner] or people that were associated with
[the Petitioner].‖ The prosecutor understood that Moreland had to ―survive‖ in prison.
The prosecutor said, ―My opinion is he signed that affidavit so he could go to sleep that
next night and not feel like somebody was going to hurt him and the next night and the
next night until he got out of prison.‖
Upon questioning by the post-conviction court, the prosecutor said that he was
careful when interviewing Moreland prior to trial because he did not want to suggest
what Moreland should say. Moreland‘s statements and testimony were consistent with
the other evidence the prosecutor had.
Brian Moreland was called to the stand. When asked about his affidavit recanting
his testimony against the Petitioner, Moreland stated, ―I don‘t want to testify.‖ When
asked to identify his signature on the document, Moreland responded, ―I don‘t want to.‖
At the conclusion of the hearings, the trial court issued an order denying both the
petition for post-conviction relief and the petition for a writ of error coram nobis.
Regarding the post-conviction claims, the court found that the Petitioner failed to prove
that his counsel was deficient or that the deficiency prejudiced the Petitioner. Regarding
the petition for a writ of error coram nobis, the court found that the petition was not filed
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timely and that due process did not require tolling of the statute of limitations. On
appeal, the Petitioner challenges the rulings of the trial court.
II. Analysis
A. Post-Conviction
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. ' 40-30-110(f). ―‗Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.‘‖ State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‘s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court‘s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‘s
conclusions of law purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, ―the petitioner bears the burden of proving both that counsel‘s
performance was deficient and that the deficiency prejudiced the defense.‖ Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‘s
performance was below ―the range of competence demanded of attorneys in criminal
cases.‖ Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that ―there is a reasonable probability that, but for counsel‘s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.‖ Strickland, 466 U.S. at 694. Moreover,
[b]ecause a petitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice provides
a sufficient basis to deny relief on the ineffective assistance
claim. Indeed, a court need not address the components in
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any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
On appeal, the Petitioner contends:
1. Trial counsel‘s performance was deficient for his failure to
hire an[] expert/forensics data examiner to rebut the State‘s
expert‘s false testimony regarding the attachment of cell
phone signals to cell towers, and how the police were able to
locate the [Petitioner] at the time of the victim‘s death . . . .
2. Trial counsel was ineffective at the time of trial, as he was
performing under pressure of disciplinary action and possible
suspension from the practice of law, to the point that the
[Petitioner] was denied the right to a fair trial, in violation of
the Sixth Amendment of the United States Constitution and
law.
3. [The Petitioner] was denied his fundamental right to
dispense with the services of trial counsel, in direct violation
of his right to a fair trial under the Sixth Amendment.
4. Trial counsel was ineffective for his failure to present an
alibi defense that was available for his client at the time of
trial.
5. Trial counsel committed the felony offense of Aggravated
Perjury during the post-conviction proceedings, . . . and the
[trial court] committed ―plain error‖ in relying heavily on trial
counsel‘s non-credible testimony when making its ruling on
the Post-Conviction Petition.
6. Trial counsel was ineffective for failing to impeach State‘s
witness, Brian Moreland, with [a] prior felony conviction
during the rebuttal of his testimony.
7. Trial counsel was ineffective for conceding to an element
of the crime and effectively denying [the Petitioner] the right
to a fair trial, and the denial of due process of law and equal
protection under the law.
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Initially, we note that the State contends the Petitioner waived his issues regarding
trial counsel‘s failure to hire a cellular telephone technology expert, trial counsel‘s
representation being hampered by fear of pending disciplinary action, trial counsel‘s
failure to impeach Moreland with a prior felony conviction, and the denial of the
Petitioner‘s right to dispense with counsel. The State asserts that the Petitioner failed to
raise the issues specifically in his post-conviction petition, present evidence regarding the
issues at the post-conviction hearing, and argue the issues in the trial court. We agree.
We will not address issues raised for the first time on appeal. State v. Alvarado, 961
S.W.2d 136, 153 (Tenn. Crim. App. 1996); State v. Turner, 919 S.W.2d 346, 356-57
(Tenn. Crim. App. 1995). Accordingly, we conclude that the Petitioner is not entitled to
relief on these issues.
Regarding the Petitioner‘s claim that trial counsel was ineffective by utilizing the
abandonment defense, the Petitioner testified that counsel did not discuss the defense
with the Petitioner and that the defense essentially conceded an element of the offense.
In a related issue, the Petitioner contends that trial counsel should have pursued an alibi
defense by calling Ostein, Malone, and Dowell as potentially exculpatory witnesses.
The trial court found that trial counsel was credible but that the Petitioner was not
credible. Trial counsel testified that although he did not meet with the Petitioner in jail,
he met with the Petitioner each time they were in court. During the meetings, trial
counsel reviewed the State‘s evidence with the Petitioner, and they discussed trial
strategy. Additionally, trial counsel‘s investigator met with the Petitioner in jail. As the
trial court noted, trial counsel did not investigate records relating to the Petitioner‘s other
cellular telephone ―because it would not disprove the State‘s evidence‖ regarding the
cellular telephone found in the Petitioner‘s car. The trial court stated that ―a difficult part
of the case was that [the Petitioner‘s] version of events shifted,‖ causing trial counsel to
have ―an ethical issue about [the Petitioner] taking the stand because he did not want to
be a participant in suborning perjury.‖ Nevertheless, the Petitioner exercised his
constitutional right to testify and gave a version of events that was not believable. The
trial court found that trial counsel ―was hamstrung by [the Petitioner‘s] decision to
perjure himself.‖ The trial court stated that the Petitioner‘s complaints amounted to
―attempting to blame [trial counsel] for [the Petitioner‘s refusal] to heed counsel‘s advice
after testifying to a version of facts rejected by the jury.‖
The trial court further found ―it incredulous‖ that the Petitioner‘s alleged alibi
witness, Malone, ―maintained silence that [the Petitioner] was at her house the entire
evening until years after his conviction.‖ Further, the court noted that Malone‘s account
varied from the Petitioner‘s trial testimony. Notably, Malone testified at the post-
conviction hearing that the Petitioner was at her house all night and that the co-
defendants did not come by her house. At trial, the Petitioner asserted that he was at
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Malone‘s house, that the co-defendants borrowed his car, and that they returned to
Malone‘s house after the shooting.
The trial court accredited trial counsel‘s testimony that given the State‘s evidence
against the Petitioner and the Petitioner‘s ―perjured testimony,‖ an alibi defense was not
believable and was not the ―best strategy.‖
The trial court acknowledged Dowell‘s testimony that his statement implicating
the Petitioner was false. The trial court noted, however, that the Petitioner was the father
of Dowell‘s sister‘s children and that Dowell had changed his story after being
transported with the Petitioner to court in Williamson County. The trial court further
found that Ostein‘s testimony that he heard Moreland confess to being the shooter was
contradicted by other evidence, noting that it was undisputed Harris was the shooter.
Moreover, Ostein was called as a witness in Dowell‘s trial and refused to testify.
Therefore, trial counsel chose to pursue a defense of abandonment instead of alibi.
The trial court stated that the Petitioner did not tell trial counsel about his other
cellular telephone until approximately seventeen months after the murder. The court
accredited trial counsel‘s statement that telephone records likely would not exist after that
length of time. Further, the court found that the other telephone would not disprove the
State‘s claim that the telephone number the Petitioner gave on his car application was the
number of the telephone used by the Petitioner during the crime. The court stated that the
Petitioner ―admitted at trial that he was using the phone and it is known that Mr. Dowell
was on the phone, so any records would be irrelevant.‖
Based upon the foregoing, the trial court found that the Petitioner failed to prove
either that trial counsel was deficient or that the Petitioner was prejudiced by any alleged
deficiency. We conclude that even if counsel was deficient, the Petitioner has failed to
prove any prejudice. This court has stated that, ―[w]hen reviewing trial counsel‘s actions,
this court should not use the benefit of hindsight to second-guess trial strategy and
criticize counsel‘s tactics.‖ Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998).
Moreover, ―[a]llegations of ineffective assistance of counsel relating to matters of trial
strategy or tactics do not provide a basis for post-conviction relief.‖ Taylor v. State, 814
S.W.2d 374, 378 (Tenn. Crim. App. 1991). We conclude that the post-conviction court
did not err by finding that the Petitioner failed to prove that his trial counsel was
ineffective.
The Petitioner also claims that trial counsel committed aggravated perjury during
the post-conviction hearing and that the trial court ―committed ‗plain error‘‖ by relying
on counsel‘s perjured testimony. The Petitioner asserts that trial counsel ―repeatedly lied
about everything from going to visit the [Petitioner] in jail, to discussing defense strategy,
as later revealed th[r]ough the Complaint of the Board of Professional Responsibility.‖
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We note that trial counsel acknowledged that he did not visit the Petitioner in jail.
However, trial counsel also testified that he discussed defense strategy with the
Petitioner. The trial court accredited the testimony of trial counsel. It is well established
that ―[i]n post-conviction claims, the credibility of the witnesses and the weight and value
to be given their testimony is within the exclusive authority of the trial court.‖ Timothy
John Hickman v. State, No. 01C01-9711-CR-00527, 1998 WL 305505, at *1 (Tenn.
Crim. App. at Nashville, June 11, 1998) (citing Taylor v. State, 875 S.W.2d 684, 686
(Tenn. Crim. App. 1993)). Therefore, this court may not re-weigh or re-evaluate the
evidence, nor may we substitute our inferences for those drawn by the post-conviction
court. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). Instead, we generally must
defer to the post-conviction court‘s findings regarding ―witness credibility, the weight
and value of witness testimony, and the resolution of factual issues presented by the
evidence.‖ Id. Again, we conclude that the Petitioner is not entitled to post-conviction
relief.
B. Writ of Error Coram Nobis
As his final claim, the Petitioner alleges that the trial court erred by ruling that due
process did not require tolling of the statute of limitations for filing a petition for a writ of
error coram nobis.
The writ of error coram nobis, which originated in common law five centuries ago,
―allowed a trial court to reopen and correct its judgment upon discovery of a substantial
factual error not appearing in the record which, if known at the time of judgment, would
have prevented the judgment from being pronounced.‖ State v. Mixon, 983 S.W.2d 661,
666-67 (Tenn. 1999). The writ, as first codified in Tennessee in 1858, was applicable to
civil cases. Id. at 667-68. In 1955, a statutory version of the writ of error coram nobis
was enacted, making the writ also applicable to criminal proceedings. Id. at 668. In
general, the writ ―is an extraordinary procedural remedy . . . [that] fills only a slight gap
into which few cases fall.‖ Id. at 672.
Currently, the writ is codified in Tennessee Code Annotated section 40-26-105(b):
The relief obtainable by this proceeding shall be confined to
errors dehors the record and to matters that were not or could
not have been litigated on the trial of the case, on a motion for
a new trial, on appeal in the nature of a writ of error, on writ
of error, or in a habeas corpus proceeding. Upon a showing
by the defendant that the defendant was without fault in
failing to present certain evidence at the proper time, a writ of
error coram nobis will lie for subsequently or newly
- 24 -
discovered evidence relating to matters which were litigated
at the trial if the judge determines that such evidence may
have resulted in a different judgment, had it been presented at
the trial.
Our supreme court outlined the procedure that a trial court considering a petition
for a writ of error coram nobis is to follow:
[T]he trial judge must first consider the newly discovered
evidence and be ―reasonably well satisfied‖ with its veracity.
If the defendant is ―without fault‖ in the sense that the
exercise of reasonable diligence would not have led to a
timely discovery of the new information, the trial judge must
then consider both the evidence at trial and that offered at the
coram nobis proceeding in order to determine whether the
new evidence may have led to a different result.
State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). In determining whether the new
information may have led to a different result, the question before the court is ―‗whether a
reasonable basis exists for concluding that had the evidence been presented at trial, the
result of the proceedings might have been different.‘‖ Id. (quoting State v. Roberto
Vasques, No. M2004-00166-CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn. Crim. App.
at Nashville, Oct. 7, 2005)). Generally, a decision whether to grant a writ of error coram
nobis rests within the sound discretion of the trial court. Id.
A writ of error coram nobis must be filed within one year after the judgment
becomes final in the trial court. Tenn. Code Ann. ' 27-7-103. ―The statute of limitations
is computed from the date the judgment of the trial court becomes final, either thirty days
after its entry in the trial court if no post-trial motions are filed or upon entry of an order
disposing of a timely filed, post-trial motion.‖ State v. Harris, 301 S.W.3d 141, 145
(Tenn. 2010). The trial court stated that the limitations period commenced in 2010, when
the motion for new trial was denied. The petition for a writ of error coram nobis was
filed in 2013, which clearly was well beyond the one-year statute of limitations.
Nevertheless, the one-year statute of limitations may be tolled on due process grounds if
a petition seeks relief based upon newly discovered evidence of actual innocence.
Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012).
Our supreme court has stated that ―[i]n determining whether tolling of the statute
is proper, the court is required to balance the petitioner‘s interest in having a hearing with
the interest of the State in preventing a claim that is stale and groundless.‖ Id. In
general, ―‗before a state may terminate a claim for failure to comply with . . . statutes of
limitations, due process requires that potential litigants be provided an opportunity for the
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presentation of claims at a meaningful time and in a meaningful manner.‘‖ Id. (quoting
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). Our supreme court described the
three steps of the ―Burford rule‖ as follows:
―(1) determine when the limitations period would normally
have begun to run; (2) determine whether the grounds for
relief actually arose after the limitations period would
normally have commenced; and (3) if the grounds are ‗later-
arising,‘ determine if, under the facts of the case, a strict
application of the limitations period would effectively deny
the petitioner a reasonable opportunity to present the claim.‖
Id. (quoting Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)). ―Whether due process
considerations require tolling of a statute of limitations is a mixed question of law and
fact, which we review de novo with no presumption of correctness.‖ Harris, 301 S.W.3d
at 145.
The Petitioner‘s petition for coram nobis relief is based on a claim of recanted
testimony. Recanted testimony may be considered newly discovered evidence under
certain circumstances. See Mixon, 983 S.W.2d at 672. This court has concluded that a
trial court should only grant a writ of error coram nobis upon the basis of newly
discovered recanted testimony if:
(1) the trial court is reasonably well satisfied that the
testimony given by the material witness was false and the
new testimony is true; (2) the defendant was reasonably
diligent in discovering the new evidence, or was surprised by
the false testimony, or was unable to know of the falsity of
the testimony until after the trial; and (3) the jury might have
reached a different conclusion had the truth been told.
State v. Ratliff, 71 S.W.3d 291, 298 (Tenn. Crim. App. 2001) (citing Mixon, 983 S.W.2d
at 673 n.17).
In the instant case, the trial court stated that ―it has not been established that . . .
Moreland testified falsely at trial and that his alleged recantation is true.‖ The court also
noted that the document was typewritten and not in Moreland‘s own handwriting. The
court stated that although Moreland was called as a witness at the hearing, he elected not
to testify. Accordingly, the court found that ―there is no proof before [the trial court] that
. . . Moreland recants his previous statements inculpating‖ the Petitioner.
Moreover, the trial court noted E.H.‘s testimony that Moreland told the truth at
- 26 -
trial, that he never stated the Petitioner was not involved in the offense, and that
Moreland changed his story only after being housed in the same facility as the Petitioner.
The trial court further noted that ―[t]here has been a pattern of witnesses varying
testimony after having contact with [the Petitioner] or his agents.‖
The trial court also questioned whether the Petitioner was diligent in discovering
the newly discovered evidence. The court cited Mark C. Noles v. State, No. M2009-
02073-CCA-R3-PC, 2010 WL 2867180, at *4 (Tenn. Crim. App. at Nashville, July 22,
2010), finding that if Moreland‘s trial testimony were false, the Petitioner would have
known about the falsity because he was ―‗present at the events‘ which gave rise to the
testimony.‖
Finally, the court found that there was ―no reasonable probability that the result of
the proceeding would have been different.‖ We note that the proper standard to be
applied, however, is whether the jury ―may have‖ reached a different result. This court
has previously stated, ―While this appears at first glance to be a matter of mere semantics,
the difference in the analysis of the situation under a ‗would have‘ standard is definitively
more burdensome for a coram nobis petitioner than would be the case under a ‗may have‘
standard.‖ Margo Freshwater v. State, No. W2006-01758-CCA-OT-CO, 2008 WL
4560242, at *9 (Tenn. Crim. App. at Jackson, Oct. 8, 2008). Regardless, we conclude
that the Petitioner is not entitled to relief.
Nevertheless, the court found that the State‘s case against the Petitioner was
strong, stating:
Moreland‘s testimony as an accomplice was corroborated by
the eyewitness testimony of Trey Mosby (who testified he
saw four men in the silver Chevrolet Impala) and Brian Beech
(who testified as to his observations of the vehicle) as well as
the phone records for the phone number [the Petitioner] had
previously used as a contact number on the bill of sale for the
vehicle used in the robbery, and the testimony of Ms. Watters,
[the Petitioner‘s] girlfriend. . . . Additionally, as the State
pointed out, [the Petitioner‘s] car was used in the commission
of the offense; the police recovered robbery accouterments—
masks, gloves, bandanas—in the vehicle, all of which had
[the Petitioner‘s] DNA on them.
We conclude that the trial court did not abuse its discretion in dismissing the
petition for a writ of error coram nobis.
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III. Conclusion
Finding no error, we affirm the rulings of the trial court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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