Ricky Harris v. State

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

Heard in Nashville

October 2, 2002 Session

RICKY HARRIS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Carter County

No. 10297 R. Jerry Beck, Judge

No. E1999-02771-SC-R11-PC - Filed April 16, 2003

In this appeal, the dispositive issues are whether a claim that the prosecution failed to disclose

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), is a cognizable basis

for reopening a post-conviction petition under Tennessee Code Annotated section 40-30-217(a) and

whether the Court of Criminal Appeals erred in sua sponte treating the petitioner’s motion as a

petition for writ of error coram nobis based upon newly discovered evidence. The trial court denied

the petitioner’s motion to reopen on the basis that it did not state a cognizable ground for reopening

a post-conviction suit under Tennessee Code Annotated section 40-30-217(a). The Court of

Criminal Appeals agreed that the motion did not state grounds for reopening under the post-

conviction statute, but the intermediate court sua sponte treated the motion as a petition for writ of

error coram nobis and concluded that due process precluded application of the one-year statute of

limitations to bar the petition.1 The Court of Criminal Appeals therefore remanded the case to the

trial court to consider the merits of the coram nobis claim. From this decision, the State filed an

application for permission to appeal, primarily arguing that the Court of Criminal Appeals erred in

sua sponte treating the motion to reopen as a petition for writ of error coram nobis. We granted the

State’s application for permission to appeal,2 and for the reasons herein stated, this Court concludes

that the lower courts correctly held that the motion does not state grounds for reopening under the

post-conviction statute but that the Court of Criminal Appeals erred in sua sponte treating the motion

to reopen as a petition for writ of error coram nobis. The judgment of the Court of Criminal Appeals

therefore is reversed, and the judgment of the trial court dismissing the motion is reinstated.

1

In holding that due process required tolling of the one-year statute of limitations, the interme diate appe llate

court relied upon W orkm an v. State, 41 S.W.3d 100 (Tenn. 2001) and Burford v. State, 845 S.W .2d 204 (T enn. 1992).

2

On May 6, 2002 , this Court appointed Kenne th F. Irvine, Jr. to represent Mr. Harris in this appeal. The Court

app reciates Mr. Irvine’s willingness to accept this appointment and the excellent representation he and Mr. Robert R.

Kurtz have provided M r. Harris.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals

Reversed; Judgment of the Trial Court Reinstated

FRANK F. DROWOTA , III, C.J., delivered the opinion of the court, in which WILLIAM M. BARKER, J.,

joined. JANICE M. HOLDER, J., filed a concurring opinion. E. RILEY ANDERSON, J., filed a

concurring and dissenting opinion, in which ADOLPHO A. BIRCH, JR., J., joined.

Michael E. Moore, Solicitor General, and Mark A. Fulks, Assistant Attorney General, for the

appellant, State of Tennessee.

Kenneth F. Irvine, Jr. and Robert R. Kurtz, Knoxville, Tennessee, for the appellee, Ricky Harris.

OPINION

BACKGROUND

In 1988, the petitioner, Ricky Harris, was convicted of first degree murder and sentenced to

life imprisonment. His conviction and sentence were affirmed on direct appeal in February of 1991.3

Harris filed a post-conviction petition in 1992 alleging that his counsel were ineffective and that the

State had suppressed exculpatory evidence. The trial court denied post-conviction relief, and the

Court of Criminal Appeals affirmed the denial.4

On December 10, 1998, just three days after this Court denied Harris’s application for

permission to appeal, Harris filed a motion in the trial court seeking to reopen his post-conviction

petition on the basis that his due process rights under the United States and Tennessee Constitutions

had been violated by the State’s failure to disclose exculpatory evidence material to his defense. See

Brady v. Maryland, 373 U.S. 83 (1963); Sample v. State, 82 S.W.3d 267 (Tenn. 2002).

In particular, Harris alleged that the State withheld the identity of a witness, who was

purportedly interviewed via telephone by a law enforcement officer investigating his case. Attached

to Harris’s motion were purported notes of the alleged interview. These purported notes, which are

unsigned and do not include the name of the officer who allegedly conducted the interview, indicate

that Ms. Corrine Hampton told the unidentified officer that she had car trouble at approximately 8:25

a.m. on September 8, 1987, on highway 19-E in Hampton, Tennessee; that Harris stopped and

assisted her; that she had seen inside his car and inside the trunk of his car; and that she had not seen

another person or a dead body anywhere in the car or in the trunk. Ms. Hampton said that she had

3

See State v. Ricky Jerom e Harris, No. 85 (Tenn. Crim. App ., Kno xville, Nov. 8, 199 0), perm. app. denied

(Tenn., Feb. 4, 1991);

4

See Ricky Harris, No. 03C 01-9 611 -CR-004 10 (Tenn. Crim. Ap p., April 23, 1 998 ), perm. app. denied, (Tenn.,

Dec. 7, 1998 ).

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followed the defendant to Sherwood Chevrolet, where he worked, and obtained minor repairs to her

vehicle.

In his motion, the petitioner explained the significance and materiality of the alleged

interview notes as follows:

During the trial the State maintained the Petitioner had killed the victim at her home

or abducted her and took her to the Carr Cemetery where he disposed of the body or

killed her at that point and disposed of the body. The State maintained this occurred

between the time period of 8:00 a.m. and 9:00 to 9:30 a.m. Petitioner testified that

he did not commit the crime and that he drove from Hampton straight to Sherwood

Chevrolet in Johnson City. If the State would have provided this evidence, petitioner

could have presented Ms. Hampton as his alibi witness and corroborated his

testimony of what events occurred during the morning of September 8, 1987.

As to when he discovered this information, Harris alleged that he received the purported interview

notes along with an anonymous, hand-printed letter after he placed an advertisement in the

Elizabethton Star newspaper in August of 1998 seeking information about his case that would aid

in proving his innocence. The anonymous letter was attached to the petitioner’s motion, and it stated

that the writer is related to the sheriff who investigated Harris’s case and that the writer was shown

a copy of the notes of Ms. Hampton’s interview by the sheriff, who made the writer promise to keep

quiet about the information. According to the letter, the writer later obtained a copy of the interview

notes, but was afraid to disclose the information at that time and was doing so in response to Harris’s

advertisement because the writer had worked with and been a friend of Harris’s father.

The trial court denied the petitioner’s motion on the basis that it did not state a cognizable

ground for reopening under Tennessee Code Annotated section 40-30-217(a). The trial court also

pointed out that the petitioner had failed to support his motion with sworn affidavits. The

anonymous letter, the anonymous interview notes, and Ms. Hampton’s signed statement were not

proven or supported by affidavit. The motion was supported by only the petitioner’s affidavit which

recited the alleged facts. The petitioner subsequently filed in the trial court an affidavit from Ms.

Hampton containing the alleged exculpatory statement she allegedly gave to an unidentified law

enforcement officer. Interestingly, the affidavit states only that Ms. Hampton had car trouble in

September of 1987, but it does not indicate the exact date in September these events occurred. After

reconsidering the petition along with the affidavit, the trial court adhered to its initial conclusion that

the motion did not state a cognizable ground for reopening under the post-conviction statute. The

trial court did not treat the motion as a petition for writ of error coram nobis.

Harris appealed, and the Court of Criminal Appeals agreed with the trial court that a claimed

Brady violation is not a ground for reopening under Tennessee Code Annotated section 40-30-

217(a). Nonetheless, a majority of the intermediate court sua sponte treated the motion as a petition

for writ of error coram nobis and concluded that due process precluded application of the one-year

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writ of error coram nobis statute of limitations.5 The intermediate court therefore remanded the case

to the trial court to determine: (1) whether the State suppressed exculpatory evidence; (2) whether

the petitioner was diligent and not at fault in failing to raise the issue earlier; and (3) whether the

evidence may have resulted in a different outcome.

From this decision the State filed an application for permission to appeal, which this Court

granted. For the following reasons, the judgment of the Court of Criminal Appeals is reversed and

the judgment of the trial court is reinstated.

ANALYSIS

I. Motion to Reopen

We begin our review with the threshold issue of whether the lower courts properly

determined that the issue raised by the petitioner, i.e., the suppression of exculpatory evidence, was

not a proper basis upon which to reopen a post-conviction petition. The State argues that the

suppression of exculpatory evidence is not listed in Tennessee Code Annotated section 40-30-217(a)

as a ground for reopening a post-conviction petition. The petitioner asserts that, even if the motion

did not assert a cognizable ground for reopening, the Court of Criminal Appeals correctly treated it

as a petition for writ of error coram nobis.

Under the provisions of the Post-Conviction Procedure Act, a petitioner “must petition for

post-conviction relief . . . within one (1) year of the final action of the highest state appellate court

to which an appeal is taken . . . .” Tenn. Code Ann. § 40-30-202(a). Moreover, the Act

“contemplates the filing of only one (1) petition for post-conviction relief.” Tenn. Code Ann. § 40-

30-202(c). After a post-conviction proceeding has been completed and relief has been denied, as in

this case, a petitioner may move to reopen only “under the limited circumstances set out in 40-30-

217.” Id. These limited circumstances include the following:

(1) The claim in the motion is based upon a final ruling of an

appellate court establishing a constitutional right that was not

recognized as existing at the time of trial, if retrospective application

of that right is required. Such motion must be filed within one (1)

year of the ruling of the highest state appellate court or the United

States supreme court establishing a constitutional right that was not

recognized as existing at the time of trial; or

5

In dissent, Judge Witt opined that Workman was expressly limited to capital cases and

could not be applied to toll the one-year writ of error coram nobis statute of limitations in this case

but that due process may apply in some cases to toll the post-conviction statute of limitations bar of

Tennessee Code Annotated section 40-30-202(b).

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(2) The claim in the motion is based upon new scientific evidence

establishing that such petitioner is actually innocent of the offense or

offenses for which the petitioner was convicted; or

(3) The claim asserted in the motion seeks relief from a sentence that

was enhanced because of a previous conviction and such conviction

in the case in which the claim is asserted was not a guilty plea with

an agreed sentence, and the previous conviction has subsequently

been held to be invalid, in which case the motion must be filed within

one (1) year of the finality of the ruling holding the previous

conviction to be invalid; and

(4) It appears that the facts underlying the claim, if true, would

establish by clear and convincing evidence that the petitioner is

entitled to have the conviction set aside or the sentence reduced.

Tenn. Code Ann. § 40-30-217(a)(1)-(4). The plain language of this statute provides only three

grounds for reopening – a new constitutional right that is given retroactive application, new

scientific evidence of actual innocence, and evidence of an improperly enhanced sentence. A claim

that the State suppressed or failed to disclose exculpatory evidence in violation of Brady simply is

not one of the statutory grounds for reopening a post-conviction proceeding.6 Accordingly, we hold

that the trial court and the Court of Criminal Appeals correctly ruled that the petitioner’s claim that

the State failed to disclose exculpatory evidence is not a cognizable ground for reopening his post-

conviction proceeding.

II. Writ of Error Coram Nobis

We must next determine whether the Court of Criminal Appeals erred in sua sponte treating

the petitioner’s motion to reopen as a petition for writ of error coram nobis. The State argues that

the intermediate court erred because the allegations in the motion do not constitute subsequently or

newly discovered evidence that the defendant was without fault in presenting at the time of the trial.

Further, the State points out that an alleged violation of Brady is not cognizable in a writ of error

coram nobis proceeding. The petitioner, by and through appointed counsel, responds that the Court

of Criminal Appeals’s action was appropriate because the allegations of the motion sufficiently state

a coram nobis claim. In his pro se application for permission to appeal to the Court of Criminal

Appeals, Harris argued that the writ of error coram nobis does not apply in this case and alleged that

the trial court had erred by simply referring to Mixon v. State, 983 S.W.2d 661 (Tenn. 1999), which

involved a petition for writ of error coram nobis.

6

As the Court of Criminal Appeals pointed out, the General Assembly’s intent to exclude Brady claims as

grounds for reop ening is evidenced by other statutory provisions that provide relief from the procedural bar of waiver

when a claim is not raise d because of a Brady violation. See Tenn. Cod e Ann. § 40-30-206 (g)(2)( “failure to present

the ground wa s the result of state action in violation of the federal or state constitution.”). C learly, the G enera l Assem bly

knows how to make exceptions for Brady violations. It simply chose not to include such claims in the statute addressing

motions to reopen.

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Upon careful consideration, we conclude that the Court of Criminal Appeals erred in sua

sponte treating the motion to reopen as a petition for writ of error coram nobis. These proceedings

are fundamentally distinct in terms of the governing procedural rules and the grounds for relief.

Motions to reopen are filed only after the petitioner has unsuccessfully pursued post-conviction

relief. Therefore, the statute governing such motions contemplates a summary proceeding in which

the trial court can readily determine whether or not one of the three very narrow grounds for

reopening exists. As previously indicated, the three grounds for reopening a post-conviction petition

are: (1) a new constitutional right that is given retroactive application; (2) new scientific evidence

of actual innocence; or (3) evidence of an improperly enhanced sentence. Tenn. Code Ann. § 40-30-

217(a)(1)-(4). Because all of these grounds can and likely will be proven by documentary evidence

alone, there will rarely be a factual dispute as to their existence. When a ground for reopening is

proven, the only factual dispute will be whether or not the petitioner has established by clear and

convincing evidence that he or she is entitled to have the conviction set aside or the sentence

reduced. Tenn. Code Ann. § 40-30-217(a)(4). Again, because of the nature of the grounds for

reopening, even this factual issue should be relatively uncomplicated. Therefore, although the State

may choose to respond to a motion to reopen, the statute certainly does not require the filing of a

response. Where, as here, a motion to reopen is denied, the petitioner has only ten days to file an

application for permission to appeal in the Court of Criminal Appeals, with the State having ten days

to respond. Tenn. Code Ann. § 40-30-217(c). The record on appeal therefore is minimal, consisting

of the application which must have attached to it all documents filed by both parties in the trial court

and the order denying the motion. Id.

Writ of error coram nobis claims in criminal cases are governed by a different statute,

Tennessee Code Annotated section 40-26-105,7 which currently provides:

[u]pon 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.

7

As this Court has recognized , “[t]he writ of error cora m nobis is an extra ordinary rem edy known more for its

denial than its approval.” State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). The writ of error coram nobis was limited

in scope in Tennessee to civil proceedings until the General Assembly passed a statute in 1955 extending it to criminal

proceedings. Id. at 668. Criminal coram nobis proceedings were “to be governed by the same rules and procedure

app licable to the writ of error cora m nob is in civil cases, except in so far as inco nsistent herewith.” 195 5 T enn. P ub. Acts

166 . However, in 1971, Rule 60 of the T ennessee R ules of C ivil Pro cedure becam e effective and su perse ded the writ

of error coram nobis in civil cases. Mixon, 983 S.W .2d at 668. Because the General Assemb ly has never repealed the

statute, the writ of error coram nobis continues to be a remedy in criminal actions, but “the procedure governing the

remedy is based upon the civil writ of error coram nobis which has been abolished for almost 28 years.” Id. The statutes

thus give rise to an anomalous situation – an existing reme dy that is governed by antiquated procedural rules. Id.

Nonetheless, the Genera l Assem bly has not reso lved this anom aly since it was first pointed out four years ago in Mixon.

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The grounds for seeking a petition for writ of error coram nobis are not limited to specific categories,

as are the grounds for reopening a post-conviction petition. Coram nobis claims may be based upon

any “newly discovered evidence relating to matters litigated at the trial” so long as the petitioner also

establishes that the petitioner was “without fault” in failing to present the evidence at the proper

time. Coram nobis claims therefore are singularly fact-intensive. Unlike motions to reopen, coram

nobis claims are not easily resolved on the face of the petition and often require a hearing. The

coram nobis statute also does not contain provisions for summary disposition or expedited appeals.

Even more significant to the issue in this appeal, however, is a distinction relating to the statute of

limitations. In motion to reopen proceedings, the petitioner must set out the factual basis for his or

her claim, including facts to show that the motion has been timely filed within one year of the ruling

establishing a new retroactive constitutional right or within one year of the ruling holding a previous

enhancing conviction invalid. See Tenn. Code Ann. § 40-30-217(1) & (3). Although coram nobis

claims also are governed by a one-year statute of limitations,8 the State bears the burden of raising

the bar of the statute of limitations as an affirmative defense. See Sands v. State, 903 S.W.2d 297,

299 (Tenn. 1995).

The distinctions between motion to reopen and coram nobis proceedings illustrate why it will

rarely, if ever, be appropriate for an appellate court to sua sponte treat a motion to reopen as a

petition for writ of error coram nobis. In doing so, the appellate court will deprive the State of an

opportunity to file an appropriate response in an error coram nobis proceeding, and the trial court,

which is accustomed to resolving the factual disputes likely to arise, will be deprived of the

opportunity to determine the merits of the petition in light of the State’s response. In sua sponte

treating the motion to reopen as a petition for writ of error coram nobis, the Court of Criminal

Appeals in this case apparently failed to consider the fundamental distinctions between these

proceedings. The intermediate appellate court’s reliance upon Norton v. Everhart, 895 S.W.2d 317,

319 (Tenn. 1995), as authority for its action was misplaced. In considering whether a trial court had

the authority to treat a habeas corpus petition as a petition for writ of certiorari, this Court in Norton

stated:

It is well settled that a trial court is not bound by the title of the pleading, but has the

discretion to treat the pleading according to the relief sought. Fallin v. Knox County

Board of Commissioners, 656 S.W.2d 338, 342 (Tenn.1983); State v. Minimum

Salary Dep't. of A.M.E. Church, 477 S.W.2d 11, 12 (Tenn.1972).

Id. at 319 (emphasis added). The decision in Norton recognizes the authority of trial courts to treat

a pleading in accordance with the relief sought.9 However, the decision in Norton does not support

8

See Tenn. Code Ann.§ 27-7-103(“[t]he writ of error coram nobis may be had within one (1) year after the

judgment beco mes final . . . .”); State v. Mixon, 983 S.W .2d 661, 669 (Tenn. 1999 ).

9

The concurring opinion indicates that, because the plead ing was titled “mo tion to re ope n petition for post-

conviction relief or in the alternative motion for a new trial based on newly discovered evidence,” the petitioner on

appeal could have complained that the trial court erred in failing to treat the pleading as a petition for writ of error coram

nobis. We disagree. As a practical matter, such a rule would unnecessarily expend judicial resources and fundamentally

(continued...)

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the notion that appellate courts may independently examine motions to reopen to determine whether

the petitioner should have pursued a completely different avenue of relief in the trial court.

Appellate review generally is limited to the issues raised and decided in the trial court. See, e.g.,

Tenn. R. App. P. 13 & 36. Adherence to this principle is particularly important in the context of

motions to reopen given the limited, summary, and expedited nature of such proceedings. Indeed,

were appellate courts to routinely evaluate such motions and address grounds never litigated nor

decided in the trial court, the summary nature of such proceedings would be irrevocably altered.

Therefore, we conclude that the Court of Criminal Appeals erred in sua sponte treating the motion

to reopen as a petition for writ of error coram nobis. Having so decided, we need not address any

issues relating to the one-year coram nobis statute of limitations.10

CONCLUSION

For the reasons stated herein, the judgment of the Court of Criminal Appeals is reversed, and

the judgment of the trial court dismissing the motion is reinstated. Costs of this appeal are taxed to

the appellee, Ricky Harris, for which execution may issue if necessary.

9

(...continued)

alter motion to reopen proceedings. For example, to avoid a remand, trial courts likely would evaluate the merits of

every possible alternative claim, even where, as here, the petitioner does not actively pursue the alternative claim. The

State would also likely respond to the alternative claims to raise any applicable affirmative defenses, transforming the

summary motion to reopen proceeding into lengthy litigation. Given the fundamental differences betwe en mo tions to

reopen and petitions for writ of error coram nobis, a petitioner who is seeking to have the trial court consider both of

these avenues for relief must be required to actively p ursue b oth in the trial court. When a petitioner does not do so,

he or she should not be heard to complain on appeal about the trial court’s failure to evaluate the merits of the alternative

claim fo r relief.

10

W hile we reserve this question for another day, we feel comp elled to point out in response to the dissenting

opinion that the threshold inquiry in the Burford due process analysis is whether a petitioner has alleged a “later-arising”

prima facie claim which will be preclud ed by strict app lication o f the statute o f limitations. See, e.g., Burford, 845

S.W.2d at 209; Sand s v. State, 903 S.W.2d 297, 301 (T enn. 1995). In this case, the evidence upon which Harris relies

does not appear to be “newly discovered” nor does Harris appear to be “without fault” in failing to previously present

it. As the State points out, if the allegations are true, at 8:30 a.m. on the day the victim disappeared, Harris stopped along

the road side an d rendered assistance to a strand ed m otorist. Harris apparently searche d his trunk for the ap propriate

tools, tightened the fan belt on the m otorist’s car, and started the car. T hrougho ut these activities, the motorist

accompanied Harris, allegedly observing his actions as well as the trunk and interior of his car. Therefore, if the

allegations are true, Harris was acutely aware of the existence o f the strand ed motorist prior to his initial trial. Mo reover,

Harris appears to be at fa ult in failing to previously present this evidence prior to trial since he failed to disclose her

existenc e and gave a stateme nt to po lice indicating that he dro ve dire ctly from the victim’s home to his work place on

the morning of the victim’s disappearance. Thus, the evidence upon which H arris relies does not appear to be

subsequently or newly disco vered , and H arris do es not appear to be “without fault” in failing to previously present this

evidence. Therefore, accepting for the sake of argument the dissent’s proposition that the Burford due pro cess analysis

applies in this case, Harris would not be entitled to relief from the one-year statute of limitations. Indeed, it would not

be necessary for a court to engage in the balancing portion of the analysis because the proof upon which Harris relies

does not appear to state a prima facie later-arising claim under the writ of error coram nobis statute.

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___________________________________

FRANK F. DROWOTA, III,

CHIEF JUSTICE

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