State v. Doyle Hart ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1997
FILED
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9612-CC-00451
) September 10, 1997
Appellee, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
) GIBSON COUNTY
VS. )
) HON. J. STEVEN STAFFORD
DOYLE HART, ) JUDGE
)
Appellant. ) (Writ of Error Coram Nobis)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF GIBSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES S. KELLY JOHN KNOX W ALKUP
P.O. Box 507 Attorney General and Reporter
802 Troy Avenue
Dyersburg, TN 38025-0507 ELIZABETH T. RYAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
CLAYBURN L. PEEPLES
District Attorney General
110 South College Street
Suite 200
Trenton, TN 38382
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Doyle Hart, appeals as of right pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure from the trial court’s denial of his
petition for a writ of error coram nobis. The Defendant filed his petition for a writ
of error coram nobis on November 24, 1993, contending that his convictions for
aggravated rape and incest should be set aside because of newly discovered
evidence. A hearing was conducted on the petition on April 8, 1994. At the
conclusion of that hearing, the trial court denied the petition. On appeal to this
Court, the judgment of the trial court was reversed and the case was remanded
for a new hearing.1 A new hearing was conducted on July 8, 1996. In a
memorandum opinion filed on July 18, 1996, the trial court denied the petition.
It is from this order of denial that the Defendant now appeals. W e affirm the
judgment of the trial court.
W e begin with a discussion of the circumstances of the Defendant’s
offenses. As we stated above, the Defendant was convicted of aggravated rape
and incest. The victim was the Defendant’s stepdaughter. 2 Although only a small
portion of the trial testimony is included in the record before us, we can glean the
following facts from this Court’s opinion in the Defendant’s direct appeal:
The nine-year-old victim testified that on numerous occasions
the defendant had sexually abused her. She explained that the
defendant, who was her stepfather, would come into her bedroom
after making sure that her mother was asleep, remove his pants and
1
See State v. Hart, 911 S.W .2d 371 (Tenn. Crim. App. 1995) (holding that the denial of the
petition must be reversed because the trial court considered evidence outside the record in denying
the petition).
2
It is the po licy of this C ourt n ot to refer to m inor victims of s exu al abu se b y nam e.
Accordingly, we will refer to the Defendant’s stepdaughter only as “the victim” throughout this opinion.
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underwear, pull back the covers from her, slip down her panties, get
on top of her, and begin moving “up and down.” She testified that
the defendant had inserted his penis in her vagina for a short
distance. W hile using different terminology, she further stated that
the defendant had usually ejaculated. According to the victim this
happened on over twenty occasions and on one occasion blood
came from her vagina. She also related that the defendant had
improperly touched her with his hands on various occasions at their
home and while she had been with the defendant in his motor
vehicle.
On cross-examination the victim admitted that she had told an
untruth about her stepmother striking her and pulling her hair. The
child then acknowledged that she had been hospitalized in Memphis
for five or six weeks because of this “lie” and because she did not
trust her stepmother. In addition, the victim was questioned by
defense counsel concerning numerous inconsistent statements
which she had made at the preliminary hearing and statements
which she had made to other individuals concerning the date of the
first sexual penetration by the defendant. Testifying at the
preliminary hearing, the victim had evidently stated that this had
occurred after her seventh birthday; however, she had told
numerous individuals that the penetration had occurred on the day
after her eighth birthday. W e note that on redirect examination the
victim concluded that the first penetration had, in fact, occurred after
her seventh birthday rather than after her eighth birthday. Defense
counsel questioned the victim extensively concerning other prior
inconsistent statements. During this questioning the victim admitted
to having falsely accused her stepbrother of sexual misconduct on
one occasion. She also acknowledged that she wanted her mother
and father to remarry.
In addition to the victim, the State offered Jerri Jackson, the
victim’s stepmother. This witness testified that on several occasions
the victim had complained to her of pain and that she had observed
redness and swelling around the victim’s vagina. Jackson further
testified that the victim had been sent to Lakeside Hospital because
of problems which the victim had been having at school and home.
The victim was allegedly having particular difficulty accepting
disciplinary action. According to this witness false allegations made
against her by the victim had not lead to the victim’s hospitalization
but rather the victim’s overall behavioral problems. This witness
further testified that the redness and swelling which she had noticed
around the victim’s vagina had disappeared about three weeks after
the victim had begun living with her and the victim’s father.
The State also called two medical doctors who testified that
they had found trauma to the vaginal opening. This trauma was
said to have indicated the introduction of a foreign object and was
not usually consistent with self-abuse. Both doctors related that in
their opinions penetration of one-half inch up to one inch or an inch
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and one-quarter would probably not have ruptured the victim’s
hymen.
At the conclusion of the State’s proof, the defendant moved
for a judgm ent of acquittal. This was denied; however, two counts
of a four count indictment were dismissed with the consent of the
State. After this dismissal the State elected to proceed on one
incident which related to the occasion when the victim had allegedly
bled.
The victim’s mother testified on behalf of her husband, the
defendant. She stated that after she had given birth to the
defendant’s son, the victim’s relationship with the defendant had
deteriorated. Furthermore, according to this witness the victim
walked into the bedroom on one occasion while this witness and the
defendant were engaged in sex, and, upon seeing them, had
become hysterical. The mother also related that during the period
of time in which these events were alleged to have occurred, the
defendant had not returned from work until shortly after midnight
each evening. She added that she had waited up for her husband
and had always talked with him while he ate. The witness then
concluded that these alleged offenses could not have happened on
twenty separate occasions as the victim claimed, especially since
the parents’ and the victim’s bedroom doors were so close to one
another.
In addition, the witness related that the victim had frequently
experienced nightmares, had made an allegation of improper sexual
conduct by one of her stepbrothers, and had allegedly told her father
previously that her stepbrother had abused her. The mother then
added that while bathing the victim around the time of the alleged
offenses, she had observed no problem in the victim’s vaginal area
except for redness and rawness which the victim had experienced
each summer.
According to this witness’ further testimony she had attended
family therapy while the victim had been at Lakeside, that the victim
had been caught being untruthful while in the hospital, that the only
occasion where blood had been observed on the victim’s panties
had been when the victim returned from a visit with her father and
stepmother, and that the victim had frequently fantasized about
events. On cross-examination this witness admitted that she had
waited for two weeks before telling the victim’s father about the
complaint made against the victim’s stepbrother, that she had never
taken the victim to the doctor and that she had not examined the
victim. According to this witness the victim had never made any
accusations except to tell her that “it felt like somebody was touching
her down there with their tongue and it must be the defendant
because he was the only one there.”
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Sherry Donald, a social worker at the local mental health
center, testified that she had talked to officials at Lakeside Hospital
two months prior to trial but had not received the hospital report.
Out of the jury’s presence she testified that she had been informed
by hospital officials that the victim did lie frequently and was having
problems with her sexuality. Donald further stated that she had
been told that the victim fantasized, had a problem with reality, was
very manipulative, and had an ultimate goal of reuniting her mother
and father.
However, the trial court granted the State’s objection and
refused to allow this witness to testify concerning the information
which she had obtained by telephone from Lakeside Hospital. While
this testimony was excluded, she was allowed to introduce a
statement which she had taken from the victim. This statement
contained several inconsistencies with the victim’s trial testimony.
Testifying in his own behalf, the defendant denied that he had
ever committed any type of sexual offense against the victim. He
explained that reasons for the victim’s untruthfulness included her
refusal to accept discipline from him and his lack of attention after
the birth of his son. On cross-examination the defendant denied
that he had noticed any redness around the victim’s vagina when he
had bathed her but admitted that on one or two occasions the victim
had told him that the area burned. He added that the victim had at
times threatened him with telling her mother that he was “messing
with” her (the victim). These threats allegedly occurred when the
victim was not getting her way. Lastly, we note the defendant’s
admission that on one occasion there had been a discussion about
the victim’s having blood present on her panties.
State v. Doyle Hart, C.C.A. No. 02C01-9209-CC-00202, Gibson County (Tenn.
Crim. App., Jackson, Aug. 11, 1993), perm. to appeal denied, (Tenn. 1993), slip
op. at 3-7. Based on the above evidence, the Defendant was convicted of
aggravated rape and incest. He was sentenced to an effective term of fifteen
years imprisonment. His convictions were affirmed on direct appeal to this Court.
Hart, C.C.A. No. 02C01-9209-CC-00202, slip op. at 16.
On May 21, 1993, the victim and her m other, the Defendant’s wife, gave
sworn statements to defense counsel. The victim’s sworn statement was, in
essence, a recantation of her trial testimony. She stated that the Defendant had
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never raped or sexually abused her. Instead, she claimed that her stepbrother
(apparently her stepmother’s son) had sexually abused her. She stated that she
had blamed the Defendant for the abuse to avoid getting in trouble with her father
and stepmother. She also admitted that she had been jealous of the attention
paid to the Defendant’s son, her stepbrother.
As a result of these sworn statements, the Defendant filed a petition for a
writ of error coram nobis on November 24, 1993. In the petition, he contended
that the victim had recanted her trial testimony. He attached the sworn
statements of the victim and her mother to the petition and requested that the trial
court grant him a new trial based upon the newly discovered evidence. The trial
court conducted an evidentiary hearing on the petition on April 8, 1994.
At that hearing, the victim stated that she “was telling a story” when she
testified at trial that the Defendant had sexually abused her. She gave several
reasons why she had testified untruthfully at trial. Among those reasons were
that she had had dreams about someone sexually abusing her, that her friends
were saying that they had had sex and she wanted to be a part of the group, that
she now understood that testifying untruthfully at trial was wrong, and that her
stepmother told her to blame the Defendant when the victim informed her that
she had been sexually abused by her stepbrother (the stepm other’s son).
On cross-examination, the victim admitted that although she had been
hospitalized for several weeks after the trial, she had never informed any of her
counselors that she had lied while testifying. In addition, the victim related that
after giving the sworn statement to defense counsel in May of 1993, she talked
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to a Department of Human Services (DHS) official about having testified
untruthfully at trial. The DHS official doubted her recantation, and the victim
became upset and refused to talk with the official a second time. Furthermore,
the victim denied ever having been sexually abused by anyone, including the
Defendant, in spite of the medical evidence indicating signs of sexual abuse or
activity.
The victim’s mother, Lisa Hart, also testified at the hearing conducted on
April 8, 1994. She stated that she and the Defendant were still married but that
she had filed for divorce. After the Defendant’s trial in 1992, the victim lived with
her father and stepm other for a period of time. In February of 1993, shortly
before giving the sworn statement to defense counsel, the victim moved back in
with Hart. Hart testified that after a few weeks the victim began to initiate
conversations about the Defendant’s trial. Eventually the victim informed Hart
that she had lied at trial, and they then informed defense counsel. Hart denied
pressuring the victim to recant. On cross-examination, Hart admitted that she
doubted the victim’s claim of sexual abuse because “there was not enough facts
for [her] to accept it.”
After considering the evidence presented at the hearing, the trial court
denied the petition. In written findings of fact, the trial judge found that the
victim’s recantation was due to pressure from her mother, Lisa Hart. Hart, 911
S.W.2d at 373. On appeal, however, a panel of this Court concluded that the trial
judge had considered inadmissible evidence and evidence outside the record in
arriving at his decision to deny the petition. Id. at 373-74. Accordingly, the trial
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court’s judgment was reversed and the case remanded for a new hearing. Id. at
378.
A new hearing was conducted by a different trial judge on July 8, 1996.
The victim’s mother, Lisa Hart, testified at this hearing. Her testimony was
substantially the sam e as her testimony from the April, 1994 hearing. She related
that the victim had been living with her father during and immediately after the
Defendant’s trial but moved back in with her shortly before giving the sworn
statement of recantation to defense counsel in May of 1993. Hart testified that
she did not pressure the victim to recant.
Vonda Borden, a former employee of the West Tennessee Behavioral
Center, testified that she counseled the victim in the spring of 1994 before the
first coram nobis hearing. Borden stated that the victim reported that she had lied
at trial because she was jealous of her baby brother and the Defendant, her
stepfather, had disciplined her and had broken promises to her. The victim
stated further that she had had dreams in which the Defendant sexually abused
her and she reported them as reality because her friends were claiming that they
had had sex and she wanted to be like them. Borden also confirmed that the
victim was anxious and fearful of testifying in court at the first coram nobis
hearing. On cross-examination, Borden admitted that it was not unusual for child
victims to recant in the manner in which occurred in the present case.
The Defendant offered no further live testimony after Borden. Instead, the
Defendant offered a portion of the original trial testimony and a portion of the
testimony from the first coram nobis hearing as exhibits. He relied on the victim’s
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sworn statement and testimony from the first coram nobis hearing as evidence
of her recantation.
The State called Dale Jackson, the father of the victim, as a witness at the
second coram nobis hearing. Jackson testified that the victim had lived with him
immediately after the Defendant’s trial. In the spring of 1993, the victim returned
to live with her mother. Jackson stated that the victim had never indicated to him
any desire to change her trial testimony.
The State then called the victim to testify. She was fourteen years old at
the time of the hearing. In essence, the victim recanted her recantation. She
stated that she had been telling the truth when she testified at trial that the
Defendant had sexually abused her. She reiterated that the sexual abuse had
taken place. She testified that she recanted at the first coram nobis hearing
because she felt sorry for her mother and her stepbrother in that they were living
without the Defendant. She testified further that neither her mother nor the
Defendant pressured her to recant.
On July 18, 1996, after reviewing all of the evidence, the trial court filed a
memorandum opinion denying the petition. Citing Ross v. State, 130 Tenn. 387,
170 S.W. 1026, 1028 (1914), the trial court noted that recanted testimony is
generally looked upon with distrust rather than favor. The trial court specifically
found the victim’s testimony at the second coram nobis hearing to be credible.
Moreover, the trial court also found that the victim’s explanation for testifying
falsely at the first coram nobis hearing was reasonable and believable.
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Accordingly, the trial court denied the petition. In this appeal, the Defendant
argues that the trial court erred in denying his petition.
A writ of error coram nobis is available to a defendant in a criminal
prosecution. Tenn. Code Ann. § 40-26-105. The remedy is limited, however, 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.”
Tenn. Code Ann. § 40-26-105. This includes post-conviction proceedings. See
Rowe v. State, 498 S.W.2d 322, 325 (Tenn. 1973). A writ of error coram nobis
also lies “for subsequently or newly discovered evidence relating to matters which
were litigated at the trial” when the trial court “determines that such evidence may
have resulted in a different judgment, had it been presented at the trial.” Tenn.
Code Ann. § 40-26-105; Cole v. State, 589 S.W.2d 941 (Tenn. Crim. App. 1979).
The purpose of this remedy “is to bring to the attention of the [trial] court some
fact unknown to the court, which if known would have resulted in a different
judgment.” State ex rel. Carlson v. State, 219 Tenn. 80, 85-86, 407 S.W .2d 165,
167 (1966).
A petition for the writ of error coram nobis in a criminal case, which seeks
relief on the ground of subsequently or newly discovered evidence, should recite:
(a) the grounds and the nature of the newly discovered evidence, Crawford v.
W illiams, 31 Tenn. (1 Swan) 341, 342 (1851), (b) why the admissibility of the
newly discovered evidence may have resulted in a different judgment if the
evidence had been admitted at the previous trial, Tenn. Code Ann. § 40-26-105,
(c) that the petitioner “was without fault in failing to present” the newly discovered
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evidence at the appropriate time, see State ex rel. Carlson, 219 Tenn. at 87, 407
S.W.2d at 168, Johnson v. Russell, 218 Tenn. 443, 448, 404 S.W.2d 471, 473
(1966), and (d) the relief sought by the petitioner. Tenn. R. Crim. P. 47.
Affidavits should be filed in support of the petition or at some point in time prior
to the hearing. See Ross v. State, 130 Tenn. 387, 390-94, 170 S.W . 1026, 1027-
28 (1914); State v. Todd, 631 S.W.2d 464, 466-67 (Tenn. Crim. App. 1981).
As a general rule, subsequently or newly discovered evidence which is
simply cum ulative to other evidence in the record, see Scruggs v. State, 218
Tenn. 477, 479-80, 404 S.W .2d 485, 486 (1966), or serves no other purpose than
to contradict or impeach the evidence adduced during the course of the trial, see
Hawkins v. State, 220 Tenn. 383, 392, 417 S.W.2d 774, 778 (1967), will not
justify the granting of the petition for the writ of error coram nobis when the
evidence, if introduced, would not have resulted in a different judgment.
The decision to grant or to deny a petition for the writ of error coram nobis
on the ground of subsequently or newly discovered evidence rests within the
sound discretion of the trial court. Tenn. Code Ann. § 40-26-105; Teague v.
State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988), cert. denied, 493 U.S. 874,
110 S.Ct. 210, 107 L.Ed.2d 163 (1989), overruled on other grounds by Owens v.
State, 908 S.W .2d 923, 928 (Tenn. 1995); Jones v. State, 519 S.W .2d 398, 400
(Tenn. Crim. App. 1974). Before the petitioner is entitled to relief, it must be
established, and the trial court must find, that a defendant “was without fault in
failing to present certain evidence at the proper time” and that the subsequently
or newly discovered evidence relating to matters litigated at trial “may have
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resulted in a different judgment had it been presented at the trial.” Tenn. Code
Ann. § 40-26-105.
In exercising its discretion, the trial court must determine the credibility of
the witnesses who testify in support of the petition for the writ of error coram
nobis. If the trial court does not believe that the witnesses presented by the
petitioner are credible, the court should deny the application. Conversely, if the
witnesses are credible, and the evidence presented would result in a different
judgment, the trial court should grant the relief sought.
To determine whether to grant a new trial in cases involving recanted
testimony, the test is as follows: “(1) Is the trial judge reasonably well satisfied
that the testimony given by a m aterial witness was false and that the new
testimony is true; (2) was the defendant reasonably diligent in discovering the
new evidence, or surprised by false testimony, or unable to know of the falsity
until after the trial; and (3) might the jury have reached a different conclusion had
the truth been told.” State v. Phillip Lloyd Herndon, C.C.A. No. 03C01-9303-CR-
00098, Knox County (Tenn. Crim. App., Knoxville, May 11, 1994). We point out
that, as the trial court noted in this case, recanted testimony is looked upon with
distrust rather than favor due to the great temptation to strengthen the weak
points of the case discovered during the trial by perjury or subornation of perjury.
See Ross, 130 Tenn. at 394, 170 S.W. at 1028.
Applying the above precepts to the case sub judice, we can only conclude
that the trial court did not err in denying the petition. After reviewing all of the
evidence and evaluating the credibility of the witnesses, the trial court specifically
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found that the victim’s testimony from the July 1996 coram nobis hearing,
recanting her earlier recantation, was credible. Obviously the trial court was not
reasonably well-satisfied that the testimony given by the victim at the Defendant’s
trial was false nor that her testimony at the first coram nobis hearing was true.
See Herndon, C.C.A. No. 03C01-9303-CR-00098, slip op. at 4. The trial judge
was in the best position to make this type of credibility determination. From our
review of the record, we do not believe that the trial judge abused his discretion
in accrediting the victim’s testimony from the July 1996 coram nobis hearing.
Accordingly, the Defendant’s issue on appeal lacks merit.
For the reasons set forth in the discussion above, we conclude that the trial
court did not err in dismissing the Defendant’s petition for a writ of error coram
nobis. W e therefore affirm the judgment of the trial court.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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