Derrick Richardson v. State of Tennessee

05/09/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DERRICK RICHARDSON v. STATE OF TENNESSEE
Appeal from Criminal Court for Hamilton County
No. 304568 Barry A. Steelman, Judge
__________________________________
No. E2018-01352-CCA-R3-ECN
___________________________________
The Appellant, Derrick Richardson, appeals as of right from the Hamilton County
Criminal Court’s judgment summarily denying his petition for a writ of error coram nobis.
The State has filed a motion to dismiss this appeal due to an untimely notice of appeal.
Following our review, we conclude that the interest of justice requires a waiver of the
timely filing of the notice of appeal and deny the State’s motion to dismiss. We further
conclude, however, that an opinion in this case would have no precedential value and
affirm the judgment of the coram nobis court pursuant to Rule 20 of the Rules of the
Tennessee Court of Criminal Appeals.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
Derrick Richardson, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Garrett Ward, Assistant Attorney
General; and Neil Pinkston, District Attorney General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
Before the court is the State’s motion to dismiss this appeal based upon the untimely
filing of the notice of appeal. The pro se Appellant seeks an appeal as of right from the
coram nobis court’s summary denial of a petition for writ of error coram nobis. The
coram nobis court’s order denying the petition for writ of error coram nobis was filed on
June 7, 2018. The pro se Appellant filed a notice of appeal with this court on July 25,
2018, forty-eight days after the entry of the coram nobis court’s judgment. The pro se
Appellant has not filed a response to the State’s motion.
Tennessee Rule of Appellate Procedure 4(a) provides that “the notice of appeal
required by Rule 3 shall be filed with the clerk of the appellate court within 30 days after
the date of entry of the judgment.” Tenn. R. App. P. 4(a). “[H]owever, in all criminal
cases the ‘notice of appeal’ document is not jurisdictional and the timely filing of such
document may be waived in the interest of justice.” Id. The appellant bears the burden
of establishing when the interest of justice mandates waiver of the timely filing of the
notice of appeal. State v. Kevin Montrell Thompson, E2016-01565-CCA-R3-CD, 2017
WL 262701, at *2 (Tenn. Crim. App. Jan. 20, 2017). That said, the Appellant has not
responded to the State’s motion to dismiss. See State v. Rockwell, 280 S.W.3d 212, 214
(Tenn. Crim. App. 2007) (encouraging litigants to file a motion seeking permission to
waive the timely filing of a notice of appeal or motion to dismiss prior to assignment to the
court for consideration). In the notice of appeal, however, the Appellant contends that he
did not receive timely notification of the entry of the coram nobis court’s order denying
relief. Under these circumstances, we conclude that a waiver of the timeliness of the
notice of appeal is warranted. Therefore, the State’s motion to dismiss is DENIED.
Although we have concluded that the interest of justice requires a waiver of the
timely filing of the notice of appeal, we further conclude that an opinion in this case would
have no precedential value. See Tenn. Ct. Crim. App. R. 20. The record reflects that the
Appellant was convicted of first degree felony murder and sentenced to life imprisonment.
The Appellant was convicted based upon a theory of criminal responsibility for the conduct
of another. On direct appeal, the Appellant did not challenge the sufficiency of the
evidence but raised only one issue concerning the trial court’s jury instructions on criminal
responsibility for the conduct of another. Finding no error, this court affirmed the
Appellant’s conviction for first degree felony murder. State v. Derrick Richardson, No.
03C01-9305-CR-00165, 1994 WL 247114 (Tenn. Crim. App. June 9, 1994), perm. app.
denied (Tenn. Sept. 12, 1994). As this court noted on direct appeal,
There was conflicting testimony. We will attempt to fairly
summarize the facts. In the early morning hours of December 8, 1993, the
defendant, Gregory Strong, Stanley Gillespie, and Calvin Johnson were at or
near the Heaton Street residence of LaKeysh Davis, the mother of Johnson’s
son. Apparently upset because Davis’ husband had been shot only a short
while earlier, all of the men were armed with guns. The victim, Louie
Dwight, stopped his vehicle, approached the defendant and Strong as they
stood on the side of the street, and asked to buy drugs. The defendant,
armed with a .38 pistol, and Strong, carrying a pump shotgun, fired several
shots, took the victim’s money, and threw his wallet on the ground.
Johnson testified that he and Gillespie heard the shooting and
approached the scene. Johnson carried an AK47 assault rifle and Gillespie
had a .380 pistol. Each fired shots. Either the defendant or Stanley
Gillespie, or both, shot the victim in the legs. The victim got into his vehicle
to leave, stopped, and returned to retrieve his wallet. He then drove away.
After a short distance, however, the victim lost consciousness and wrecked.
He died due to multiple gunshot wounds to his legs.
The Hamilton County Medical Examiner testified that the victim was
struck by three bullets; there were two wounds in the right leg. A shot to the
left leg pierced its main artery. All shots that struck the defendant were
fired by low velocity weapons: a .38 or a .380.
Ms. Davis stated that the defendant, Gillespie, and Strong participated
in the robbery. She testified that the defendant held his weapon on the
victim, took his wallet, and shot him in the leg. Strong testified that he and
the defendant never had any kind of agreement to rob the victim and blamed
the defendant for that offense. During the pretrial investigation, Strong
stated that the defendant had shot at the victim’s legs; at trial, he said he did
not know who fired the shots that actually struck the victim.
The defendant, who told officers he fired his weapon twice, admitted
having shot at the victim’s truck but denied shooting the victim. While
conceding that the victim handed him the wallet, the defendant testified that
Strong took the money and was responsible for the robbery. At that point,
he said, Johnson and Gillespie arrived. The defendant claimed Johnson shot
at the victim’s truck while Gillespie fired the fatal shots.
Id. at *1 (emphasis added).
On March 29, 2018, the Appellant filed his third pro se petition for writ of error
coram nobis, this time supported by the affidavits of two purported witnesses stating that
they saw the Appellant walking away from the scene of the robbery and murder and that
codefendant Gillespie was the shooter. On June 7, 2018, the coram nobis court summarily
denied coram nobis relief, ruling that the new testimony identifying codefendant Gillespie
as the shooter would not exculpate the Appellant from criminal responsibility for the
felony murder. The coram nobis court also ruled that to the extent the new testimony
attempted to eliminate the Appellant’s presence from the scene entirely, that testimony was
inconsistent with the Appellant’s own admissions made to the police and at trial wherein he
placed himself at the scene and admitted to shooting the victim.
A writ of error coram nobis is an “extraordinary remedy” available only under very
limited circumstances, and thus it is “known more for its denial than its approval.” State
v. Mixon, 983 S.W.2d 661, 666 (Tenn.1999) (citing Penn v. State, 282 Ark. 571, 670
S.W.2d 426, 428 (Ark.1984)). A writ of error coram nobis lies “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.” Tenn.Code Ann. § 40–26–105(b) (2006); see State v. Hart, 911
S.W.2d 371, 375 (Tenn.Crim.App.1995). The decision to grant or deny the writ rests
within the discretion of the trial court. Teague v. State, 772 S.W.2d 915, 921
(Tenn.Crim.App.1988), overruled on other grounds by Mixon, 983 S.W.2d at 671 n. 13.
We cannot conclude that the coram nobis court abused its discretion in denying the
Appellant’s petition. As stated by the coram nobis court, there is no proof alleged in the
petition that may have resulted in a different judgment had it been presented to the jury.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, we affirm the
judgment of the Hamilton County Criminal Court pursuant to Rule 20 of the Rules of the
Tennessee Court of Criminal Appeals.
______________________________________
D. KELLY THOMAS, JR., JUDGE