State of Tennessee v. Takeita M. Locke

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 15, 2009 Session

STATE OF TENNESSEE v. TAKEITA M. LOCKE

Appeal from the Criminal Court for Knox County

No. 67739B Richard Baumgartner, Judge

No. E2009-00065-CCA-R3-CD - Filed July 6, 2010

The Defendant, Takeita M. Locke, appeals her conviction for criminally negligent homicide

and the trial court’s denial of her petition for writ of error coram nobis for a related especially

aggravated robbery conviction. She had been convicted in an earlier trial of especially

aggravated robbery related to the same facts and victim. For the homicide conviction, the

Defendant received a sentence of two years as a Range I offender, to be served concurrently

with the twenty-year sentence she was serving for the especially aggravated robbery

conviction. On appeal, she challenges (1) the trial court’s denial of her motion to dismiss for

violation of her right to a speedy trial, and (2) the trial court’s denial of her petition for writ

of error coram nobis related to the especially aggravated robbery conviction. We affirm the

judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,

J R. and N ORMA M CG EE O GLE, JJ., joined.

Wade V. Davies, Knoxville, Tennessee, for the appellant, Takeita M. Locke.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant

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

OPINION

The Defendant, who was seventeen years old on the date of the crimes, was charged

as an adult with first degree felony murder and especially aggravated robbery of Chuck

Newman. Jerry Graves was also charged with the offenses. The Defendant was tried and

convicted of both counts in October 1999. On appeal to the Tennessee Supreme Court, she

successfully challenged the jury instructions given for the felony murder count and was

granted a new trial for that conviction. The especially aggravated robbery conviction was

affirmed. See State v. Locke, 90 S.W.3d 663 (Tenn. 2002). In a separate trial, co-defendant

Graves was also convicted of the charged offenses, and the Tennessee Supreme Court

affirmed his convictions. See State v. Graves, 126 S.W.3d 873 (Tenn. 2003). On April 4,

2007, the Defendant filed a motion to dismiss the indictment for violation of her right to a

speedy trial. The trial court denied the motion. The Defendant was retried for the felony

murder count in April 2008, and she was found guilty of the lesser included offense of

criminally negligent homicide.

In October 2008, the Defendant filed a petition for writ of error coram nobis, in which

she alleged that the testimony of four witnesses at her retrial on the felony murder count was

exculpatory of the especially aggravated robbery conviction she received in her first trial.

After receiving stipulated and documentary evidence as proof, the trial court denied the

petition for writ of error coram nobis as untimely. The Defendant appealed both the

conviction of criminally negligent homicide and the coram nobis denial, and this court

consolidated the appeals.

I

The Defendant challenges the trial court’s ruling that her right to a speedy trial was

not violated in the retrial of the homicide case. She seeks reversal of the criminally negligent

homicide conviction and dismissal of the presentment.

Upon the State’s initiation of criminal proceedings, the right to a speedy trial is

implicated under the Sixth Amendment to the United States Constitution and article I, section

9 of the Tennessee Constitution. This right is statutory, as well, in Tennessee. T.C.A. § 40-

14-101 (2006). In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court devised

a balancing test to determine whether a defendant’s right to speedy trial was violated and

identified the following factors for consideration:

(1) the length of delay;

(2) the reason for the delay;

(3) the defendant’s assertion of his right to speedy trial; and

(4) the prejudice to the defendant.

Id., 407 U.S. at 530. In State v. Bishop, 493 S.W.2d 81 (Tenn. 1973), the Tennessee

Supreme Court implicitly adopted the Barker balancing test for our state’s constitutional and

statutory right to a speedy trial.

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A review of the procedural history of the case is necessary for this inquiry. The

Defendant was charged by presentment in November 1998. Her first trial was held in

October 1999, and her felony murder conviction was reversed and remanded for a new trial

in November 2002. The Defendant’s second trial was in April 2008. The record reflects that

between the date of the reversal of the felony murder judgment and the second trial, the

Defendant filed the following motions:

Motion to Remand Defendant to Juvenile Court Because the

Tennessee Juvenile Transfer Statute is Unconstitutional, March

10, 2003

Motion to Suppress Juvenile Custodial Statements, March 28,

2003

Motion to Suppress Statement Taken in Violation of Right to

Counsel, April 3, 2003

In January 2004, the State filed a motion to prohibit the Defendant from denying or

collaterally challenging her conviction of especially aggravated robbery in her retrial for

felony murder. The State’s motion relied in part upon the favorable ruling for the State by

the judge of another division of the Knox County Criminal Court in State v. David

Scarbrough, No. 62279B (Knox County Apr. 4, 2003) (order). However, the trial court

denied the State’s motion. At a hearing on March 19, 2004, the court stated that it would

sign an order allowing the State to seek an interlocutory appeal, and the prosecutor said that

the State would seek to have the appellate court consolidate the Defendant’s appeal with the

David Scarbrough case. However, the State never pursued an interlocutory appeal in the

Defendant’s case. The Tennessee Supreme Court resolved the issue adversely to the State

on November 30, 2005, when it filed its opinion in State v. Scarbrough, 181 S.W.3d 650

(Tenn. 2005).

The record next reflects that the Defendant’s Motion to Dismiss for Violation of Her

Right to a Speedy Trial was filed on April 4, 2007. The motion recited that the case was set

for trial on May 15, 2007. The Defendant then filed a Motion to Continue on May 3, 2007,

due to counsel’s scheduling conflict between the Defendant’s motion hearing and trial and

a federal case in which counsel was the attorney of record. It appears that the court granted

the motion, as the trial took place in April 2008. In the interim, the court conducted hearings

on the Defendant’s two motions to suppress the Defendant’s statements and on the

Defendant’s motion to dismiss for violation of her right to speedy trial on July 19, 2007, and

September 26, 2007. The court denied all three motions. The court also considered several

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motions and notices related to trial evidence before the trial began in April 2008.

The first prong of the Barker inquiry is the length of the delay. In the present case,

the supreme court reversed the Defendant’s felony murder conviction in November 2002 and

ordered a new trial, which took place in April 2008, a delay of almost five and one-half years.

A delay which approaches one year is sufficient to trigger further inquiry. Doggett v. United

States, 505 U.S. 647, 652 (1992); State v. Utley, 956 S.W.2d 489, 494 (Tenn. 1997).

However, the complexity of the case is taken into account in evaluating the reasonableness

of the length of the delay. State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996) (citing Barker,

505 U.S. at 652). The length of the delay in the Defendant’s case is sufficient for us to

evaluate the remaining three Barker factors.

The record reflects that this case was challenging. At the hearing on the motion to

dismiss, the court inquired why the State never followed through on submitting an order for

the court’s signature allowing an interlocutory appeal, and the prosecutor stated, “Truth is,

Judge, I think it was just negligence. I just think that because they knew that [the contrary

ruling by another Knox County Criminal Court judge in the Scarbrough case] was going to

be appealed –.” After the supreme court’s Scarbrough ruling, another year and five months

passed before the Defendant sought dismissal of the case for violation of her speedy trial

right. However, the record reflects that the case had been set for trial in May 2007, one and

one-half years after the Scarbrough ruling, but was continued due to defense counsel’s trial

schedule.

No demand for a speedy trial before April 2007 appears in the record. The Defendant

argues that she had no obligation to bring herself to trial. While this is an accurate statement

of the law, the Supreme Court has cautioned that this “does not mean, however, that the

defendant has no responsibility to assert [her] right.” Barker, 407 U.S. at 528. A defendant’s

assertion of her speedy trial right, or failure to assert the right, is a factor to be considered in

determining whether a defendant has been denied her right to a speedy trial. See id.

Finally, we assess the prejudice to the Defendant due to the delay. The Defendant

claims that the passage of time undoubtedly eroded the memories of key witnesses about the

facts related to the sequence of events, a crucial issue in this case. While the passage of time

certainly may affect the memory of witnesses, in this case that concern is somewhat lessened

because the key witnesses had testified under oath at both the Defendant’s first trial and

Graves’s trial, making their prior testimony available to refresh their recollections or to be

used for cross-examination if their memories proved insufficient or flawed. Thus, the delay

before the second trial had no effect on the Defendant’s ability to challenge her especially

aggravated robbery conviction.

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We weigh the length of the delay against the State and the reason for the delay against

the State. Conversely, we weigh the lack of demand for a speedy trial and the prejudice

factors against the Defendant. In assessing the factors, we are troubled by the prosecutor’s

inability to articulate a satisfactory explanation for the delay. We consider it significant,

however, that the Defendant had the benefit of the previous sworn testimony of the key

witnesses at her earlier trial and at Graves’s trial, and we balance the Defendant’s claim of

prejudice from witnesses’ loss of memory against her failure to demand a speedy trial. Upon

consideration, we hold that the trial court did not err in finding that the Defendant was not

entitled to have the presentment dismissed based upon a speedy trial violation. The

Defendant is not entitled to relief.

II

The Defendant challenges the trial court’s denial of her petition for the writ of error

coram nobis. She claims that testimony of Jerry Graves, Robert Richards, Sam Brown, and

Joseph Newman at her second trial was newly discovered evidence that would have shown

that she was not guilty of especially aggravated robbery had it been presented in her first trial.

In support of her petition, she offered a stipulation of the parties and documentary proof, but

she did not offer any new testimonial evidence. The Defendant also argues that the speedy

trial violation further delayed her ability to present newly discovered evidence of her

innocence. She claims that she was without fault in failing to present this evidence within

one year of her conviction. The State argues that the Defendant’s petition was untimely and

without merit. We hold that the trial court properly denied the petition as untimely.

A writ of error coram nobis lies

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.

T.C.A. § 40-26-105(b); see State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995).

The decision to grant or deny such a writ rests within the sound discretion of the trial court.

Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010). A petition for writ of error coram nobis

must be filed within one year of the date the judgment becomes final in the trial court.

T.C.A. § 27-7-103; State v. Mixon, 983 S.W.2d 661, 663 (Tenn. 1999); State v. Ratliff, 71

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S.W.3d 291, 295 (Tenn. Crim. App. 2001).

Despite the one year statute of limitations, due process may require tolling of the

limitations period if a petitioner seeks relief based upon newly discovered evidence of actual

innocence. Harris, 301 S.W.3d at 145; Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001).

“Before a state may terminate a claim for failure to comply with procedural requirements

such as statutes of limitations, due process requires that potential litigants be provided an

opportunity for the presentation of claims at a meaningful time and in a meaningful manner.”

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 2002). Nevertheless, a petitioner seeking relief

under the statute must exercise due diligence in presenting claims that fall outside the statute

of limitations. Harris, 301 S.W.3d at 144; Mixon, 983 S.W.2d at 670. Our supreme court

has said that determining whether due process requires tolling requires a three-step analysis

in which the court must

(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. In making this final

determination, courts should carefully weigh the petitioner’s

liberty interest in “collaterally attacking constitutional violations

occurring during the conviction process,” Burford, 845 S.W.2d

at 207, against the State’s interest in preventing the litigation of

“stale and fraudulent claims.” Id. at 208.

Sands v. State, 903 S.W.2d 287, 301 (Tenn. 1995) (footnote omitted).

The evidence presented at the Defendant’s first trial provides context for the

Defendant’s coram nobis claims:

In the early morning hours of October 17, 1998, the

defendant, Takeita M. Locke, was riding in a car with her

boyfriend, Jerry “Bam” Graves, Adam Faw (the driver), and

Christina Martin. During the ride, the members of the group

decided to rob someone and proceeded to the Montgomery

Village Housing Project in Knoxville, Tennessee. Upon arriving

in the parking lot, at around 5:00 a.m., Graves spotted Chuck

Newman walking toward one of the apartments. Mr. Newman

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knocked on the door of Karen Verklas’ apartment and proceeded

inside when she opened the door. Before Ms. Verklas could

close the door, Graves barged inside and demanded Mr.

Newman’s money. When Newman refused, a struggle ensued.

Ms. Verklas had been inside with her boyfriend, [Robert]

Richards, and both watched as Graves forced Mr. Newman onto

the couch and began beating him with a gun around the head.

They also both observed, during the struggle, the defendant

enter the apartment and attempt to pry Mr. Newman’s hand open

while he was being pistol-whipped by Graves. After Ms.

Verklas and Mr. Richards fled the apartment to summon help,

Mr. Newman was fatally stabbed with a kitchen knife by either

Graves or the defendant.

Investigator Samuel Brown of the Knoxville Police

Department responded to the incident and interviewed both Ms.

Verklas and Mr. Richards. Investigator Brown determined that

the nicknames used by the suspects were “Sherry or Cherry” and

“Bam.” Subsequently, Investigator Brown spoke to other

personnel at the Knoxville Police Department who informed

him that a young woman named Takeita Bell may use the

nickname “Cherry.” As a result, Investigator Brown had Locke

arrested and taken into juvenile custody. On October 18, 1998

and the following day, Investigator Brown interviewed the

defendant at the Juvenile Detention Facility after informing her

of her rights. She was later charged in Juvenile Court which

issued an order on December 9, 1998 transferring her to Knox

County Criminal Court for prosecution as an adult.

Subsequently, a presentment charged the defendant and Graves

with the offenses of felony murder and especially aggravated

robbery.

The trial began on October 13, 1999, with the State

calling Dr. Sandra Elkins, who is employed as the Knox County

Medical Examiner and Director of Autopsy Services at the

University of Tennessee Medical Center. Dr. Elkins performed

the autopsy on Mr. Newman and testified that the stab wound

was approximately 3.55 inches deep and was the cause of death.

Dr. Elkins also noted that the curved lacerations on Mr.

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Newman’s skull were consistent with someone who had been

struck in the head with an object such as the butt of a pistol.

The State then called several witnesses who linked the

defendant to the murder of Mr. Newman. Both Ms. Verklas and

Mr. Richards testified that Locke entered the apartment during

the struggle and attempted to pry open the victim’s hand while

he was being beaten with the gun by Graves. Mr. Richards also

stated that the defendant asked Graves, “How much does he

have on him?” as she was attempting to pry open the victim’s

hand. Both Ms. Verklas and Mr. Richards also testified that they

witnessed Graves and Locke leave the apartment together.

Additionally, Adam Faw testified that after providing Graves

with a gun, he watched from the car as Locke stood look-out at

a garbage dumpster and then ran inside the apartment after the

commotion began. The State then called Investigator Brown and

Officer Lawrence Libscombe to detail the conflicting statements

that had been offered by the defendant concerning the robbery

and homicide of Chuck Newman.

For the defense, Melvina Terry testified that she was a

resident of Montgomery Village and that she was outside in the

parking lot when Mr. Newman was beaten and stabbed. Ms.

Terry claimed that she witnessed Mr. Newman walk inside the

Verklas apartment followed by two males. Ms. Terry further

claimed that she and the defendant were standing outside talking

while the attack occurred. Ms. Terry testified that after hearing

some yelling and commotion coming from the Verklas

apartment, Locke ran over to the apartment and came out five

minutes later shaking. After this, Ms. Terry claimed that Graves

emerged from the apartment with the gun and forced Locke to

get in the car.

The defendant’s mother, Mary Ann Bell, also testified on

the defendant’s behalf. Ms. Bell testified that Graves had

routinely beaten Locke during their relationship; had stabbed

Locke with a pair of scissors; and had once shot a gun at Ms.

Bell herself. On cross-examination, Ms. Bell admitted that Ms.

Terry was a personal friend of hers and that Ms. Terry routinely

smoked crack cocaine. Lastly, the defendant took the stand in

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her own defense. She claimed that on the day in question, she sat

on some steps with Ms. Terry while Graves and Faw committed

the robbery and murder of Chuck Newman. Locke further

testified that she did not enter the apartment at any time.

Locke, 90 S.W.3d at 667-68 (footnotes omitted).

Testimony of Jerry Graves

Jerry Graves, the Defendant’s co-defendant, testified at the Defendant’s second trial

that he went to Verklas’s house to sell drugs, not to commit a robbery. He said he killed the

victim during a fight over the victim’s failure to pay for the drugs. Facing the same charges

as the Defendant, Graves did not testify at the Defendant’s first trial. In Graves’s trial, which

took place between the Defendant’s first and second trials, Graves testified that he did not

rob the victim or attempt to rob him. Graves testified that he sold drugs and that the

altercation with the victim was over a drug transaction. He denied that the Defendant was

involved in the altercation with the victim. The parties stipulated for purposes of the coram

nobis petition that Graves’s trial counsel would not have permitted Graves to waive his Fifth

Amendment privileges and testify at any time during her representation of him in the trial

court and on direct appeal. The supreme court filed its opinion in State v. Graves, 126

S.W.3d 873 (Tenn. 2003), on May 27, 2003.

The Defendant claims that she “was unable to procure this testimony from Mr. Graves

until he was subpoenaed to testify at her second trial.” The Defendant argues that Graves’s

trial counsel would not let him testify during counsel’s representation of him and that

Graves’s collateral review of his convictions “has only recently concluded.” According to

this court’s records from Graves’s appeal, Graves’s trial was held on September 18 and 19,

2000. His conviction was final, and thus trial counsel’s representation of him concluded, on

May 27, 2003. Graves’s unsuccessful attempt at obtaining post-conviction relief ended on

August 25, 2008, when the supreme court denied permission to appeal. See Jerry Graves v.

State, No. E2007-00064-CCA-R3-PC, Knox County (Tenn. Crim. App. Mar. 5, 2008), app.

denied (Tenn. Aug. 25, 2008).

The Defendant failed to present her claim within one year of her conviction of

especially aggravated robbery becoming final. Thus, we must consider whether she has been

afforded, consistent with her right to due process, the opportunity to present her claim at a

meaningful time and in a meaningful manner. The Defendant has established that Graves

was an unavailable witness at her first trial. However, Graves then testified at his own trial

in September 2000 to essentially the same facts as he testified at the Defendant’s second trial

in 2008. Even if we were to assume that Graves’s testimony was later-arising evidence that

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would have changed the result of the Defendant’s first trial, the Defendant has not explained

how Graves’s testimony under oath in September 2000 did not trigger the one-year statute

of limitations for the Defendant to bring her coram nobis claim. Had the Defendant pursued

a timely coram nobis claim in which Graves was called as a witness but asserted his Fifth

Amendment privilege, Graves could have been declared an unavailable witness and his prior

sworn testimony may have been used as evidence to support the Defendant’s assertion of

newly discovered evidence. See Tenn. R. Evid. 804(a)(1), (b)(1). The Defendant did not file

her coram nobis claim until 2008, eight years after the evidence was available to her. We

note, as well, that Graves’s direct appeal was concluded in 2003, and there is no proof that

Graves would have asserted his Fifth Amendment privilege after that time. Further, we reject

the Defendant’s suggestion that Graves’s pending post-conviction action had any tolling

effect on her coram nobis statute of limitations. Cf. Harris, 301 S.W.3d at 146-47 (“No

statute in Tennessee nor tolling rule developed at common law provides that the time for

filing a cause of action is tolled during the period in which a litigant pursues a related but

independent cause of action.”). Although the Defendant argues that she had no way of

presenting Graves’s testimony until her second trial, she has not explained why she could not

have subpoenaed him as a witness in a timely coram nobis proceeding. We conclude,

therefore, that the Defendant was not denied a reasonable opportunity to present her claim

for coram nobis relief based upon Jerry Graves’s testimony, and due process does not require

tolling of the statute of limitations.

Testimony of Robert Richards

The Defendant also seeks coram nobis relief based upon “newly discovered evidence”

of Robert Richards’ testimony at her second trial. She alleges that Richards’ testimony at the

second trial contradicted Verklas’s testimony at both the first and second trials. Verklas

testified on both occasions that the Defendant went into the apartment when Graves and the

victim were struggling and that the Defendant tried to pry the victim’s hands open. Richards

testified at the second trial that the Defendant did not come into the apartment until Verklas

had gone outside.

Richards testified at the Defendant’s first trial, but his testimony did not address when

the Defendant entered the apartment in relation to when Verklas left. Richards was a known

and available witness for the first trial, and there is no allegation that he recanted earlier

testimony at the second trial. A petitioner is required to show that he or she was not at fault

in failing to present the evidence in question at the proper time. T.C.A. § 40-26-105(b). The

Defendant has not offered any explanation for her failure to present this evidence at the first

trial, nor has she explained how Richards’ testimony on these facts was unavailable to her

at the time of the first trial through the exercise of reasonable diligence. Evidence is not

“newly discovered” as contemplated by the coram nobis statute merely because it was not

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discovered at an earlier time. We conclude that Richards’ testimony at the second trial was

not later arising evidence and therefore not a proper basis for coram nobis relief.

Testimony of Sam Brown

The Defendant claims newly discovered evidence in Sam Brown’s testimony at the

second trial that Verklas told him during his investigation that she left the apartment before

the Defendant entered. The Defendant contends that this proof corroborates Verklas’s

statement in the 9-1-1 call that she was already outside when she saw the Defendant go into

the apartment. The Defendant claims she had no way of knowing of Verklas’s statement

about leaving the apartment before the Defendant entered until Brown’s testimony at the

second trial. The Defendant has not claimed that the State concealed this information during

the discovery process, and there is no indication that the Defendant could not have

discovered it before the second trial with reasonable diligence. To the contrary, the record

reflects that defense counsel cross-examined Brown at the second trial about the portion of

his investigative report that memorialized Verklas’s statement of these facts. Brown also

testified that he had recorded an interview with Verklas. An investigative report was

received as proof at the coram nobis hearing. The report states Verklas gave a statement to

Brown in which she said that she went outside to get help after the victim and Graves were

struggling, that she saw the Defendant go inside the apartment and slam and lock the door,

and that the victim came outside minutes later stating that he had been stabbed. The

existence of the report and the recorded interview suggest that the information was available

during the discovery process, which would have taken place before both trials. The evidence

was neither newly discovered evidence as contemplated by the coram nobis statute, nor has

the Defendant established that the information could not have been presented at the first trial.

The Defendant is not entitled to relief.

Testimony of Joseph Newman

The Defendant’s last claim of newly discovered evidence is the testimony of Joseph

Newman at the second trial. Mr. Newman did not testify at the Defendant’s first trial, and

he testified at the second trial that he saw Graves and the victim exchange a bag of money

in the housing project parking lot the day before the crimes. The Defendant claims that this

corroborates Graves’s testimony that the crimes arose from a drug deal that went afoul, rather

than a robbery. The Defendant argues that she had no way of knowing until Newman’s

testimony at the second trial that Newman saw this transaction.

The Defendant’s counsel argued at the coram nobis hearing that the witness was not

disclosed during discovery. Counsel did not present proof to corroborate this claim, nor did

counsel present evidence to show that despite the exercise of reasonable diligence, the

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Defendant could not have discovered and presented Newman’s testimony at the proper time.

See T.C.A. § 40-26-105(b). We conclude that the portion of the coram nobis claim related

to Joseph Newman’s testimony was barred by the statute of limitations. The trial court

properly dismissed the petition.

In consideration of the foregoing and the record as a whole, the judgments of the trial

court are affirmed.

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JOSEPH M. TIPTON, PRESIDING JUDGE

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