Jason L. White v. State of Tennessee

06/20/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 1, 2024 Session

JASON L. WHITE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 17-01568 James Jones, Jr., Judge

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No. W2023-01177-CCA-R3-ECN

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Petitioner, Jason L. White, appeals the Shelby County Criminal Court’s denial of his

“Petition for Writ of Error Coram Nobis.” Following our review of the entire record, the

briefs and oral arguments of the parties, and the applicable law, we affirm the judgment of

the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, and JOHN W. CAMPBELL, SR., JJ., joined.

Terrell L. Tooten, Memphis, Tennessee, for the appellant, Jason L. White.

Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas, Senior Assistant

Attorney General; Steve Mulroy, District Attorney General; and Leslie Byrd, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

Petitioner was convicted of one count of conspiracy to possess methamphetamine

with the intent to sell within a drug-free zone and one count of conspiracy to possess

methamphetamine with the intent to deliver within a drug-free zone. The trial court merged

the two counts and sentenced Petitioner as a career offender to sixty years to be served in

the Tennessee Department of Correction. State v. White, No. W2018-00329-CCA-R3-CD,

2019 WL 549652, at *1 (Tenn. Crim. App. Feb. 11, 2019). On direct appeal, this court

affirmed Petitioner’s convictions. Id. at *1-4.

Defendant’s convictions arose from a conspiracy between Petitioner and Co-

defendants Kristina Cole and Montez Mullins to distribute 441.17 grams of

methamphetamine that had been shipped from California to Co-defendant Cole’s address

located approximately 200.62 feet from Raleigh-Bartlett Meadows Elementary School. Id.

at *1-3. Officers from the Bartlett Police Department (“BPD”) intercepted the package,

addressed to “Bailey Green” and containing children’s clothing and methamphetamine,

after receiving information from a detective in Visalia, California, obtaining a search

warrant for Co-defendant Cole’s residence, and conducting a “controlled delivery” of the

package. Id. at *1. Inside the residence, officers found evidence of several forms of

communication between Co-defendant Cole and Petitioner, and observed a picture of

Petitioner wearing a prison uniform on the nightstand in the bedroom. Id. Officers also

found prepaid debit/credit cards and recovered three cell phones and a laptop that Co-

defendant Cole had used to track the package through the FedEx website. Id.

Although Petitioner was incarcerated at the time the methamphetamine was shipped

to Co-defendant Cole, he communicated with her through text messages from various

phone numbers sometimes labeled as “BooBear,” “New BooBear” or “Line Boo Other” in

Co-defendant Cole’s contact list. Id. at *2. Law enforcement also recovered a photograph

of Petitioner in a jail cell that had been sent to Co-defendant Cole’s HTC cell phone and

another photograph of Petitioner sent to Co-defendant’s LG cell phone. Id. There were

also text messages that referenced transferring money into accounts or purchasing prepaid

credit/debit cards. Id. A phone number labeled as “Line Boo Other” continuously called

Co-defendant Cole’s LG phone during the search of her residence. After Petitioner’s

brother arrived at the residence, the same number, labeled as “J” in his contact list, called

Petitioner’s brother. Id. On the day of the controlled delivery, Co-defendant Cole sent the

following text messages to Petitioner: “Package arrived[,]” “They put the wrong street

name. Lucky they knew what it was suppose [sic] to be[,]” and “What do you want me to

do with it?” Id. That same day, Investigator Andrew Brown with the Tennessee

Department of Correction saw Petitioner flushing a cell phone down the toilet in

Petitioner’s cell at the Riverbend Maximum Security Prison, and he recovered a cell phone

charger. Id. at *4.

The recordings of Co-defendant Cole’s outgoing calls with Petitioner after her

incarceration reveal that Petitioner told her that he had money for a lawyer to get her “out.”

Id. at *3. He also said that “[Co-defendant Mullins] did this s**t” and lied to Co-defendant

Cole by telling her that the package contained jewelry and that Co-defendant Mullins was

going to “admit to it.” Petitioner further told Co-defendant Cole, “They can’t hold you

accountable for what you don’t know.” Id.

Co-defendant Mullins was interviewed by BPD Detective Robert Christian and said

that while incarcerated at the “Northeast penitentiary,” he met another inmate named

“Angel” who offered to pay him $600 to provide an address in Memphis. Id. Co-defendant

Mullins said that Angel told him the package would contain “ice,” or crystal

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methamphetamine. He then contacted Co-defendant Cole and asked if he could send a

package with a gift of jewelry for his mother to her address. Co-defendant Cole agreed,

and Co-defendant Mullins gave her address to Angel. Id. Co-defendant Mullins told

Detective Christian that Angel gave him $300 through PayPal and promised to give him

an additional $300 after the package was delivered. He said that Angel also provided a

tracking number for the package, which he gave to Co-defendant Cole. Id. A few days

later, Co-defendant Mullins received a text message from Co-defendant Cole informing

him that the package had arrived, despite having the wrong address. Id. Co-defendant

Cole told Detective Christian that he informed Angel that the package had arrived, and he

attempted to call Co-defendant Cole. When he was unable to reach her, Co-defendant

Mullins called “Co-defendant Cole’s ‘husband,’ [Petitioner].” Id. Co-defendant Mullins

said that he met Co-defendant Cole through Petitioner and that Co-defendant Cole was

unaware that the package sent to her address contained methamphetamine. Id. at *4.

Detective Christian asserted that he did not believe that Co-defendant Mullins was

completely truthful during the interview because he said “honestly” and “I swear to God”

frequently. Id.

Petitioner subsequently filed an unsuccessful petition for post-conviction relief.

This court upheld the denial of that petition on appeal but remanded for the entry of

amended judgments that properly reflected the offenses for which Petitioner was indicted

and convicted. White v. State, No. W2022-01437-CCA-R3-PC, 2023 WL 6142444 (Tenn.

Crim. App. Sept. 20, 2023), perm. app. denied (Tenn. Apr. 11, 2024). As relevant to this

appeal, the petition included claims that trial counsel was ineffective for failing to

investigate the time of Co-defendant Cole’s arrest, the execution of the search warrant, and

the sending of three text messages from Detective Mark Gaia, and for failing to use this

evidence to impeach the detective. Id. at *21. Petitioner argued that Detective Gaia sent

three text messages to Petitioner from Co-defendant Cole’s phone. Concerning the text

messages, this court observed that Petitioner elicited testimony at trial that Detective Gaia

sent the third text message from Co-defendant Cole’s phone. This court further concluded

that “the weight of the other evidence presented at trial suggests the results of a potential

investigation by Counsel would not have affected the jury’s verdict even if the investigation

showed Detective Gaia sent one or both of the other texts.” Therefore, Petitioner failed to

establish prejudice. Id. Petitioner further argued that trial counsel was ineffective for

failing to secure Co-defendant Mullins as a witness at trial. Id. at *19. This court found:

Although [Co-defendant] Mullins’s indictment precluded Counsel from

calling him as a witness, [Co-defendant] Mullins’s statement was still

admitted at trial. On direct appeal, this court observed, “In the confession,

Co-defendant Mullins stated that [Petitioner’s] only involv[e]ment in the

offenses was by introducing Co-defendant Mullins to Co-defendant Cole at

some point in the past and when Co-defendant Mullins called [Petitioner]

after he could not reach Co-defendant Cole.” White, 2019 WL 549652, at

*9. “Thus, the confession served to exculpate [Petitioner].” Id. When asked

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by the State whether this proof would “have been the testimony you would

have hoped to have presented had [Co-defendant Mullins] been a witness for

you at trial, versus a co-defendant,” Counsel replied, “Yes, and that is why

we had him on the transport order to come down and testify.”

Id. at *20. Therefore, this court concluded that Petitioner failed to show that trial counsel

was deficient in “failing to prepare a strategy-based defense,” and because Co-defendant

Mullins’s statement was introduced even though he did not testify at trial, Petitioner failed

to show prejudice. Id.

On June 28, 2023, Petitioner filed a petition for writ of error coram nobis and

attached an affidavit from Co-defendant Cole. In the affidavit, Co-defendant Cole asserted

that she did not electronically track the package delivered to her residence, that she did not

send any text messages from her phone after her arrest, that the text messages were sent to

a phone belonging to Co-defendant Mullins, that Co-defendant Mullins gave a statement

that the phone number was his and that he was the caller who spoke to Detective Gaia

during a phone conversation after Co-defendant Cole was arrested and handcuffed, and

that Petitioner knew nothing about the package being sent to her. Petitioner also attached

Co-defendant Cole’s “arrest ticket” which he claimed showed that she had not sent the text

messages because they were sent from her phone after her arrest. Petitioner further argued

that the affidavit and arrest records were newly discovered evidence of actual innocence

demonstrating that Detective Gaia sent the text messages from Co-defendant Cole’s phone.

Petitioner asserted that he could have used the evidence to impeach Detective Gaia.

The error coram nobis court summarily dismissed the petition finding that the

affidavit was submitted as impeachment evidence that was provided after Petitioner’s

conviction, sentencing, and appellate review. The court also found that the affidavit was

not credible and was thus not “newly discovered evidence.” The court further concluded:

Even if the Court were to consider the affidavit to be credible, the content

and basis of the affidavit have been heavily litigated during the trial and post-

conviction stages of litigation. [ ] Petitioner states that [Co-defendant]

Cole’s arrest record corroborates the content of the affidavit. This arrest

record was known of, and available to Petitioner at trial. Petitioner contends

that the information in the affidavit was not available because [Co-defendant]

Cole did not testify and Petitioner could not compel her to testify because

she was a co-defendant. However, [ ] Petitioner references [Co-defendant]

Cole’s text message logs which would have shown when the texts were sent.

This, along with [Co-defendant] Cole’s arrest record, would have

corroborated the assertion that [ ] Petitioner was not texting [Co-defendant

Cole] about the narcotics at issue. The text logs, the arrest records, the

testimony of, and opportunity to cross-examine Detective Gaia were all

available at trial. The only thing this affidavit adds is the convenient addition

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that the co-defendant now asserts that she witnessed Detective Gaia using

her phone to send the messages. Again, the Court does not find this addition

to be credible.

By failing to establish that the information presented qualifies as “newly

discovered evidence,” [ ] Petitioner does not make reach [sic] the further

determination of whether said evidence would have resulted in a different

verdict.

Analysis

Petitioner argues that “this matter should be remanded back to the trial court, as it

is clear that the trial court has engaged in making witness credibility determinations without

ever having a hearing to determine the credibility of the witness.” He essentially asserts

that he is entitled to equitable tolling because Co-defendant Cole’s affidavit “makes it clear

that Detective Gaia was not being truthful when he testified and has made very serious and

material misrepresentations which led to [Petitioner’s conviction]” and that he had no

means of getting this information sooner because Co-defendant Cole was represented by

counsel. Petitioner also suggests that “key evidence was withheld from the defense[.]”

The State argues that the coram nobis court properly denied the petition because it is time-

barred, and Petitioner “has not shown that he is entitled to due process tolling of the statute

of limitations.” We agree with the State.

The writ of error coram nobis is “an extraordinary procedural remedy,” and is

subject to a one-year statute of limitations which is measured from the date the judgment

becomes final. Nunley v. State, 552 S.W.3d 800, 816 (Tenn. 2018) (quoting State v. Mixon,

983 S.W.2d 661, 672 (Tenn. 1999)); see also T.C.A. § 27-7-103. Compliance with the

one-year statute of limitations is an “essential element of a coram nobis claim.” Nunley,

552 S.W.3d at 828 (quoting Harris v. State, 301 S.W.3d 141, 153 (Tenn. 2010)). Due

process may require tolling of the statute of limitations if there is evidence to which the

petitioner did not have access in order to timely assert a claim. Workman v. State, 41

S.W.3d 100, 102 (Tenn. 2001) (citing Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)). A

coram nobis petition must show on its face that it was timely filed pursuant to Mixon, or

contain specific facts showing entitlement to equitable tolling pursuant to Workman.

Nunley, 552 S.W.3d at 831.

The one-year statute of limitations may be tolled if a petition for a writ of error

coram nobis seeks relief based upon new evidence of actual innocence discovered after

expiration of the limitations period. Id. at 828-29. And “[i]n keeping with the

extraordinary nature of the writ,” a petitioner must set forth facts demonstrating that the

claim arose after the statute of limitations would have started to run and that a strict

application of the limitations requirement would deny him a reasonable opportunity to

present his claim. Id. at 829.

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The coram nobis court possesses the discretion to summarily dismiss a petition if it

fails to show on its face that it is timely filed or that the averments merit due process tolling.

Id. Whether due process considerations require tolling of a statute of limitations is a mixed

question of law and fact, which is reviewed de novo with no presumption of correctness.

Id. at 831. “The inquiry ends if his petition is not timely and if he has failed to demonstrate

that he is entitled to relief from the statute of limitations.” Id. (petitioner’s other claims

pretermitted by his untimely petition and failure to establish due process tolling) (emphasis

added).

The record from Petitioner’s direct appeal1 shows that he filed a motion for new trial

on January 9, 2018, which was denied by the trial court on January 30, 2018. Pursuant to

Mixon, Petitioner was required to file his coram nobis petition on or before March 1, 2018.

He filed his petition on June 28, 2023, more than five years after the one-year statute of

limitations. Therefore, as argued by the State in its brief, the error coram nobis petition is

untimely.2

In considering whether Petitioner’s allegations merit equitable tolling of the statute

of limitations, the record is clear that Co-defendant Cole’s affidavit was not newly

discovered evidence that could establish Petitioner’s actual innocence. Nunley, 552

S.W.3d at 828-29.

As a general rule, subsequently or newly discovered evidence which is

simply cumulative 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 a petition for the writ of error coram nobis

when the evidence, if introduced, would not have resulted in a different

judgment.

In exercising its discretion, the trial court must determine the credibility of

the witnesses who testify in support of the accused’s error coram nobis

application. If the trial court does not believe that the witnesses presented by

the accused are credible, the court should deny the application. Conversely,

1

This court may take judicial notice of its own records. State v. Lawson, 291 S.W.3d 864, 869 (Tenn.

2009).

2

We note that the coram nobis court did not address the timeliness of the petition in its order summarily

dismissing the petition, and there is no response filed by the State to the petition in the technical record.

However, this does not preclude us from considering the timeliness of the petition. Nunley, 552 S.W.3d at

831.

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if the witnesses are credible, and the evidence presented would result in a

different judgment, the trial court should grant the relief sought.

State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. July 19, 1995) (citations omitted).

The coram nobis court specifically found that Co-defendant Cole’s affidavit was not

credible.

We find nothing in the record to dispute the coram nobis court’s conclusion that Co-

defendant Cole’s assertions in the affidavit were not credible. See Taylor v. State, 2006

WL 3831372, No. M2005-02897-CCA-R3-CO, at *7 (Tenn. Crim. App. Dec. 18, 2006).

Co-defendant Cole asserts in her affidavit that she “did not speak before out of fear of

retaliation because [her] co-defendant, [Petitioner], was shipped out of state and [she]

worried that speaking out on [her] behalf would cause the same to happen to [her].”

However, the record from Petitioner’s appeal from the denial of his Tennessee Rule of

Appellate Procedure Rule 10 application for extraordinary appeal shows that he was

transferred and housed in a prison in New Mexico pursuant to the Interstate Corrections

Compact, Tennessee Code Annotated § 41-23-104, due to safety concerns and Petitioner’s

continued threats of violence toward the district attorney general, trial counsel, correctional

staff, and others. Therefore, Co-defendant Cole’s claim that she feared being transferred

out of state by “speaking out” was not credible based on the record.

As to Co-defendant Cole’s claim that she did not track the FedEx package that was

sent to her residence, Detective Gaia testified at trial that he recovered a laptop during the

search of Co-defendant Cole’s residence showing that the package had recently been

tracked on the FedEx website. White, 2019 WL 549652, at *1. Additionally, Co-

Defendant Cole claimed that Petitioner had no knowledge of the package sent to her

residence and its contents. However, the evidence presented at trial showed that Petitioner

and Co-defendant Cole were in a romantic relationship, and Co-defendant Mullins referred

to Petitioner as Co-Defendant’s Cole’s “husband.” Id. at *1-3. There was also a picture

of Petitioner that appeared to have been taken in a jail cell sent to Co-defendant Cole’s

phone. Id. at *2. On the day of the controlled delivery, Co-defendant Cole sent a text

message to a contact listed as “Line Boo Other” in her phone stating: “Package arrived[,]”

“They put the wrong street name. Lucky they knew what it was suppose [sic] to be[,]” and

“What do you want me to do with it?” Id. The same contact also called Co-defendant

Cole’s phone continuously while Detective Gaia was talking to her and also called

Petitioner’s brother’s phone after he arrived at the residence. Id. Petitioner was later seen

flushing a cell phone down the toilet in his jail cell, and a phone charger was recovered.

Id. at *4. During a recorded call after Co-defendant Cole’s arrest, Petitioner told her that

they would get some money and a lawyer to get her out of jail and that Co-defendant

Mullins would take the blame for everything. Id. at *3.

As pointed out by the State, Co-defendant Cole had an incentive to provide

favorable evidence for Petitioner and minimize the roles that she and Petitioner had in the

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offense due to their relationship. The record supports the coram nobis court’s reasons to

discredit Co-defendant Cole’s self-serving affidavit. Petitioner contends that that the

coram nobis court was required to hold a hearing before determining whether Co-defendant

Cole’s affidavit was credible. However, our supreme court has held that “there is no

requirement that trial courts hold an evidentiary hearing prior to dismissing a coram nobis

petition if the petition ‘fails to meet the necessary prerequisites for granting coram nobis

relief.’” Nunley, 552 S.W.3d at 829 (quoting Harris, 301 S.W.3d at 153).

Even if Co-defendant Cole’s affidavit were found to be credible, the information

contained therein was not “newly discovered.” As the coram nobis court concluded, “the

content and basis of the affidavit have been heavily litigated during the trial and post-

conviction stages of litigation.” Co-defendant Cole’s text logs and arrest records, the

testimony of, and opportunity to cross-examine Detective Gaia were all available at trial,

as was Co-defendant’s Mullins statement indicating that Petitioner had no knowledge of

the package. As pointed out by the coram nobis court, “[t]he only thing this affidavit adds

is the convenient addition that the co-defendant now asserts that she witnessed Detective

Gaia using her phone to send the messages.” At Petitioner’s post-conviction hearing, trial

counsel acknowledged that Detective Gaia was impeached on cross-examination by

admitting that he sent the third text message from Co-defendant Cole’s phone. Trial

counsel noted that this fact was omitted from the detective’s direct examination, and made

the detective look “shady.” White, 2023 WL 6142444, at *21. Petitioner raised the claim

at the post-conviction hearing that Detective Gaia sent all three text messages. Therefore,

Petitioner has had information about the text messages since his trial, and Co-defendant

Cole’s affidavit does not qualify as newly discovered evidence.

Additionally, the information contained in Co-defendant Cole’s affidavit serves no

other purpose than to contradict or impeach the evidence presented at trial and does not

justify granting the petition for error coram nobis. This evidence, if introduced, would not

have resulted in a different judgment. Hart, 911 S.W.2d at 375; White, 2023 WL 6142444,

at *21.

We conclude that Petitioner is not entitled to equitable tolling of the statute of

limitations for his untimely petition and that the coram nobis court did not abuse its

discretion by finding that Co-defendant Cole’s affidavit was not credible and did not

constitute newly discovered evidence and dismissing Petitioner’s petition without a

hearing. Petitioner is not entitled to relief.

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Conclusion

For the foregoing reasons, the judgment of the coram nobis court is affirmed.

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JILL BARTEE AYERS, JUDGE

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