Earley Story v. State of Tennessee ( 2021 )


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  •                                                                                                 03/25/2021
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    February 3, 2021 Session
    EARLEY STORY v. STATE OF TENNESSEE
    Appeal from the Criminal Court for Shelby County
    No. 97-08560       Chris Craft, Judge
    ___________________________________
    No. W2019-01406-CCA-R3-ECN
    ___________________________________
    The petitioner, Earley Story, appeals the denial of his petition for writ of error coram nobis
    by the Shelby County Criminal Court, arguing the trial court erred in dismissing the petition
    because newly discovered evidence exists which is material to his case. After our review,
    we affirm the denial of the petition.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
    CAMILLE R. MCMULLEN, JJ., joined.
    Lance R. Chism, Memphis, Tennessee, for the appellant, Earley Story.
    Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior
    Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    Factual and Procedural History
    In December 1999, a Shelby County jury convicted the petitioner of the sale of
    marijuana for which he received a sentence of one year suspended to probation. In
    affirming the petitioner’s conviction and sentence on appeal, the Court summarize the
    relevant facts as follows:1
    1
    The petitioner was charged with three counts of selling marijuana; however, the jury only
    found him guilty on one count. Accordingly, we have only recited the facts relating to the
    petitioner’s conviction.
    The State presented testimony regarding a third arranged buy on
    January 22, 1997. Detective [Carl] Harrison, Agent [Jeffrey] Butler, and
    [Alfredo] Shaw[, a cooperating individual,] repeated their established
    procedure and met at Church’s Chicken where Detective Harrison supplied
    Agent Butler with a microcassette recorder and eight hundred and fifty
    dollars ($850). Agent Butler and Shaw again returned to the residence at
    1349 Standridge. When they approached the residence, the [petitioner] and
    Dante Dale instructed the pair to proceed to Mok’s Grocery for the
    transaction. The two men did so, and waited a few minutes for the
    [petitioner] and Dale to arrive. Shortly thereafter, the [petitioner] and Dale,
    driving a “grayish-brown Cadillac,” met Agent Butler and Shaw behind
    Mok’s Grocery. Dale was driving the vehicle and the [petitioner] was in the
    front passenger seat. Agent Butler and Shaw got into the rear passenger
    compartment of the vehicle. Agent Butler gave the [petitioner] eight hundred
    and fifty dollars ($850) for the purchase of one pound of marijuana. The
    [petitioner] gave the packaged marijuana to Dale, who in turn passed the
    marijuana to Shaw. Agent Butler and Shaw returned to the undercover
    vehicle. They immediately proceeded to a meeting with Detective Harrison
    and relinquished possession of the recorder and the marijuana. Detective
    Harrison testified that the substance weighed 307.0 grams. [Friderica]
    Saharovici[, with the University of Tennessee’s Toxicology Laboratory,]
    again attested that the substance “contain[ed] tetrahydrocannabinol which is
    the active ingredient in marijuana.”
    At trial, the [the petitioner] denied involvement in any of the
    transactions. The [petitioner] testified that, at the time of the alleged January
    9, 1997, transaction, he was at his sister’s house picking up a prescription for
    his mother. The [petitioner]’s sister supported the [petitioner]’s version of
    events. The [petitioner] further contended that, at the time of the January 15,
    1997, drug deal, he was at home with his family, either in bed or working on
    his car. Both the [petitioner]’s wife and daughter corroborated the
    [petitioner]’s alibi. Additionally, the [petitioner] contended that he was
    home at the time of the January 22, 1997, transaction. The [petitioner]’s wife
    maintained that she did not recall the [petitioner] leaving home on January
    22, 1997.       Moreover, the [petitioner] asserted that, prior to the
    commencement of the instant legal proceedings, he had never met Etienne
    Harmon or Dante Dale.
    State v. Earley Story, No. W2001-00529-CCA-R3-CD, 
    2002 WL 31257803
    , at *2 (Tenn.
    Crim. App. Sept. 13, 2002), perm. app. denied (Tenn. Sept. 13, 2002).
    -2-
    On October 29, 2018, the petitioner filed the instant pro se petition for writ of error
    coram nobis, arguing he had newly discovered evidence material to his case. Specifically,
    the petitioner stated he recently received a copy of the log from the Narcotics Unit for the
    Shelby County Sheriff’s Department (“the log”)2 which showed monies provided to certain
    confidential informants, including Mr. Shaw, for undercover transactions on certain dates
    but does not show money provided to Mr. Shaw on January 22, 1997. According to the
    petitioner, the log, therefore, reveals that neither Mr. Shaw nor the petitioner were involved
    in an undercover drug transaction on that date. The State filed a motion to dismiss. A
    hearing on the State’s motion was held on June 21, 2019.
    After initially questioning whether the petition was timely and/or whether the statute
    of limitations should be tolled, the State argued that based on the testimony presented at
    trial, the log would not have had an impact on the petitioner’s case. The State noted the
    proof at trial revealed that “the buy was made directly by [Agent Butler] and that the money
    [was] never passed or transferred to Mr. Shaw in order to make that buy.” After noting the
    petitioner was acquitted on two other charges because his alibi defense was credited by the
    jury, the State reminded the trial court that the petitioner was unable to present a credible
    alibi for January 22. Further, the proof revealed it was “Agent Butler who had the money,
    Agent Butler who had the microcassette recording that transaction, Agent Butler who then
    received the drugs, and Agent Butler who then turned [the drugs] over to Detective, I
    believe, Harrison. And so, nothing about the log, the State submits, would change the
    circumstances of that trial.”
    At the conclusion of the hearing, the trial court agreed with the State “that if [the
    petitioner] had known about this log book at the time of trial in 1997, that because the
    person who testified that they bought drugs from [the petitioner] was not Mr. Shaw but was
    [Agent Butler], this would not have made a difference and I agree.” Accordingly, the trial
    court dismissed the petition. This timely appeal followed.
    Analysis
    On appeal, the petitioner contends the trial court erred in dismissing his petition. He
    argues that the fact Mr. Shaw is not listed on the log for January 22, 1997, raised serious
    questions about the State’s case. The State submits the log “merely [serves] the purpose
    to impeach or contradict the evidence at trial,” and therefore, is not a proper basis for a writ
    of error coram nobis. Additionally, the State argues “there is no reasonable probability that
    the new information might have changed the outcome of the trial.” Upon our review of
    2
    We note that while the copy of the log included in the record on appeal is difficult to read,
    if not illegible, such did not have an effect on the conclusions reached by this Court.
    -3-
    the record, the applicable law, and the arguments of the parties, we agree with the State
    and affirm the decision of the trial court.
    A writ of error coram nobis is available to convicted defendants based on
    subsequently or newly discovered evidence. 
    Tenn. Code Ann. § 40-26-105
    (a), (b) (2006).
    However, a writ of error coram nobis is an “extraordinary procedural remedy” that “fills
    only a slight gap into which few cases fall.” State v. Mixon, 
    983 S.W.2d 661
    , 672 (Tenn.
    1999) (citing Penn v. State, 
    670 S.W.2d 426
    , 428 (Ark. 1984)); State v. Workman, 
    111 S.W.3d 10
    , 18 (Tenn. Crim. App. 2002)).
    “It may be granted only when the coram nobis petition is in writing, describes ‘with
    particularity’ the substance of the alleged newly discovered evidence, and demonstrates
    that it qualifies as newly discovered evidence.” Nunley v. State, 
    552 S.W.3d 800
    , 816
    (Tenn. 2018) (citing and quoting Payne v. State, 
    493 S.W.3d 478
    , 484-85 (Tenn. 2016)).
    “In order to qualify as newly discovered evidence, ‘the proffered evidence must be
    (a) evidence of facts existing, but not yet ascertained, at the time of the original trial, (b)
    admissible, and (c) credible.’” 
    Id.
     (quoting Payne, 493 S.W.3d at 484-85).
    Additionally, the coram nobis petition must show why the newly discovered
    evidence “‘could not have been discovered in a more timely manner with the exercise of
    reasonable diligence’ and how the newly discovered evidence, had it been admitted at trial,
    ‘may have resulted in a different judgment.’” Id. (quoting Payne, 493 S.W.3d at 484-85).
    “The statute presupposes that the newly discovered evidence would be admissible at trial.”
    Id. (citing Wilson v. State, 
    367 S.W.3d 229
    , 235 (Tenn. 2012); State v. Hart, 
    911 S.W.2d 371
    , 375 (Tenn. Crim. App. 1995)).
    Relief by petition for writ of error coram nobis is provided for in Tennessee Code
    Annotated section 40-26-105. The statute provides, in pertinent part:
    (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 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 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.
    -4-
    
    Tenn. Code Ann. § 40-26-105
    (b). The decision to grant or deny a petition for writ of error
    coram nobis rests within the sound discretion of the trial court. State v. Hall, 
    461 S.W.3d 469
    , 496 (Tenn. 2015). If a petition for coram nobis relief is granted, the judgment of
    conviction will be set aside and a new trial will be granted. Payne, 493 S.W.3d at 485.
    Petitions for coram nobis relief must be supported by affidavits that are “relevant,
    material, and germane to the grounds raised in the petition,” and “the affiant must have
    personal knowledge of the statements contained in the affidavit.” Hart, 
    911 S.W.2d at 375
    .
    “Affidavits which fail to meet these criteria will not justify the granting of an evidentiary
    hearing since the information contained in the affidavits, taken as true, would not entitle
    the petitioner to relief.” 
    Id.
     (citing State v. Todd, 
    631 S.W.2d 464
    , 466-67 (Tenn. Crim.
    App. 1981)).
    “[C]oram nobis petitions with inadequate allegations are susceptible to summary
    dismissal on the face of the petition, without discovery or an evidentiary hearing.” Nunley,
    552 S.W.3d at 831. “This holding correlates with the ‘less intense’ abuse-of-
    discretion standard of appellate review for a trial court’s decision on whether to grant a
    writ of error coram nobis.” Id. at 826.
    In addition to the requirements regarding specificity, petitions for writ
    of error coram nobis are subject to a one-year statute of limitations. 
    Tenn. Code Ann. § 27-7-103
    . The statute of limitations is calculated 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, post-trial motion. Payne, 493
    S.W.3d at 484; Mixon, 
    983 S.W.2d at 670
    . A petition for a writ of error coram nobis may
    be summarily dismissed if it fails to show on its face that it has been timely filed because
    the timely filing requirement in Code section 27-7-103 is an essential element of
    a coram nobis claim. Nunley, 552 S.W.3d at 828. “[T]he statute of limitations set forth in
    Section 27-7-103 is not an affirmative defense that must be specifically raised by the State
    in error coram nobis cases; instead, the coram nobis petition must show on its face that it
    is timely filed.” Id.
    Due process considerations may toll the one-year statute of limitations when a
    petitioner seeks a writ of error coram nobis. Workman, 41 S.W.3d at 101-102. Due
    process requires the tolling of a statute of limitations period when a petitioner would
    otherwise be denied “‘an opportunity for the presentation of claims at a meaningful time
    and in a meaningful manner.’” Id. at 102 (quoting Burford v. State, 
    845 S.W.2d 204
    , 208
    (Tenn. 1992)). “To accommodate due process concerns, the one-year statute of limitations
    may be tolled if a petition for a writ of error coram nobis seeks relief based upon
    -5-
    new evidence of actual innocence discovered after expiration of the limitations period.”
    Nunley, 552 S.W.3d at 828-29 (citing Wilson, 367 S.W.3d at 234).
    “If a petition for a writ of error coram nobis fails to show on its face either that it
    has been timely filed in accordance with Tennessee Code Annotated section 27-7-103 or
    specific facts showing why the petitioner is entitled to equitable tolling of the statute of
    limitations, the trial court is within its discretion to summarily dismiss it.” Id. A trial court
    is not required to conduct an evidentiary hearing prior to dismissing a coram nobis petition
    if the petition fails to meet the necessary prerequisites for granting coram nobis relief. Id.
    (citation and internal quotation marks omitted). Moreover, “[i]f the averments in the
    petition are insufficient to warrant relief, the petition may be dismissed prior to any
    response from the state and without a hearing.” Id. (citation and internal quotation marks
    omitted).
    While there is a legitimate question concerning the timeliness of the instant
    petition,3 the trial court did not dismiss the petition based on timeliness. Rather, the trial
    court reviewed the merits of the petitioner’s claim and found the petitioner was not entitled
    to relief. Because the trial court did not rule on the timeliness issue nor was the record
    developed concerning the same, we will only address the trial court’s findings as to the
    merits of the petition.
    At trial, both Agent Butler and Mr. Shaw testified that the buy money was given to
    Agent Butler by Detective Harrison; Agent Butler carried the money to the buy location;
    and Agent Butler gave the money to and received the drugs from the petitioner. Based on
    the proof presented at trial, at no point did Mr. Shaw handle the money. Thus, the
    petitioner’s argument that the log casts doubt on the State’s proof, amounts to nothing more
    than potential impeachment evidence. “As a general rule, subsequently or newly
    discovered evidence which is simply cumulative to other evidence in the record, or serves
    no other purpose than to contradict or impeach the evidence adduced during the course of
    the trial, will not justify the granting of a petition for the writ of error coram nobis when
    the evidence, if introduced, would not have resulted in a different judgment.” Hart, 
    911 S.W.2d at 375
     (citations omitted). Therefore, the coram nobis court did not abuse its
    discretion by denying relief on this ground, and the petitioner is not entitled
    to coram nobis relief.
    Finally, in a footnote, the petitioner alleges that the trial court applied the wrong
    standard in reviewing the petition. We disagree. In denying the petitioner’s claim, the trial
    3
    On direct appeal of his conviction, the Tennessee Supreme Court denied the petitioner’s
    application for permission to appeal on January 27, 2003. The instant petition was then filed over 15 years
    later on October 29, 2018.
    -6-
    court found that the log “would not have made a difference.” Contrary to the petitioner’s
    claim, the language used by the trial court does not necessarily equate to the application of
    a wrong standard. While Mixon and Vasques formulate the standard for establishing
    entitlement to coram nobis relief as when the petitioner shows that the new evidence “may
    have” resulted in a different judgment, see State v. Vasques, 
    221 S.W.3d 514
    , 527 (Tenn.
    2007); State v. Mixon, 
    983 S.W.3d 661
    , 672 (Tenn. 1999), one might view the trial court’s
    phrasing in the present case as merely stating the correct standard in the negative. See
    Kenneth Alan Steele v. State, No. E2009-02376-CCA-R3-PC, 
    2011 WL 882998
    , at *9
    (Tenn. Crim. App. Mar. 10, 2011) (Witt, J., concurring), perm. app. denied (Tenn. July
    14, 2011). “Certainly, the more precise formulation of the opposite of ‘may have’ is
    ‘could not have’ or ‘cannot have,’ but still the court may have correctly determined that no
    possibility existed that the result of trial may have been different with the new evidence at
    play.” 
    Id.
     While the use of the Mixon–Vasques language would be preferable, we find no
    error in the ruling of the trial court in the instant matter.
    Conclusion
    Based upon the foregoing authorities and reasoning, the judgment of the coram
    nobis court is affirmed.
    ____________________________________
    J. ROSS DYER, JUDGE
    -7-
    

Document Info

Docket Number: W2019-01406-CCA-R3-ECN

Judges: Judge J. Ross Dyer

Filed Date: 3/25/2021

Precedential Status: Precedential

Modified Date: 3/26/2021