Newsome v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1998 FILED

September 30, 1998

Cecil W. Crowson

JAMES E. NEWSOME, )

Appellate Court Clerk

) No. 01C01-9710-CR-00459

Appellant )

) DAVIDSON COUNTY

vs. )

) Hon. THOMAS H. SHRIVER, Judge

STATE OF TENNESSEE, )

) (Writ of Error Coram Nobis)

Appellee )

For the Appellant: For the Appellee:

David A. Collins John Knox Walkup

211 Printers Alley Bldg., 4th FL Attorney General and Reporter

Nashville, TN 37201

Daryl J. Brand

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

Victor S. (Torry) Johnson III

District Attorney General

Pam Anderson

Asst. District Attorney General

Washington Square, Suite 500

222-2nd Avenue North

Nashville, TN 36201-1649

OPINION FILED:

AFFIRMED

David G. Hayes

Judge

OPINION

The appellant, James E. Newsome, appeals the judgment of the Davidson

County Criminal Court denying his petition for writ of error coram nobis. Specifically,

the appellant contends that the trial court abused its discretion in finding that the

“newly discovered evidence” lacked credibility. On May 21, 1992, the appellant

entered a guilty plea to one count of second degree murder and was sentenced to

eighteen years in the Department of Correction as a Range I offender.1 No direct

appeals were taken by the appellant. He is currently incarcerated at Turney Center

Industrial Farm and Prison in Only, Tennessee.

After review of the record and the applicable law, we affirm the decision of

the trial court dismissing the appellant’s petition for writ of error coram nobis.

Background

In February 1996, the appellant filed a pro se petition for post-conviction relief

alleging ineffective assistance of counsel and “newly discovered evidence.”

Counsel was appointed and, on October 22, 1996, an evidentiary hearing was

conducted by the trial court. At the conclusion of the hearing, the trial court denied

post-conviction relief as to the issue of ineffective assistance of counsel, but granted

the appellant leave to file a petition for writ of error coram nobis in order to raise his

claims involving newly discovered evidence, i.e., that the true perpetrator of the

murder had confessed. On November 20, 1996, the appellant filed a petition for writ

of error coram nobis. A hearing was conducted on March 7, 1997.

1

This ple a resulted from the 1991 shooting death of Michae l We st outside a North

Nashville night club. West was killed by a gunshot to his back at very close range.

2

At the hearing, evidence relevant to the coram nobis claim presented at the

post-conviction hearing was reconsidered by the court. At the post-conviction

hearing, the appellant testified that, on December 28, 1995, while confined at the

Turney Center, fellow inmate Jon Woodruff,2 confessed to him that “he [was] the

one that actually shot Michael West that night.” Two to three weeks after Woodruff

admitted his culpability in the crime, the appellant approached Woodruff and asked

him to sign an affidavit verifying his earlier confession. This affidavit was

subsequently notarized, on January 13, 1996, by Bruce Roberts, the laundry

manager and notary at the Turney Center. 3 The appellant explained that he had

agreed to plead guilty to second degree murder because, at the time, he was also

facing charges of voluntary manslaughter and feared consecutive sentences. The

plea agreement on the present charge provided that the appellant’s sentences

would run concurrently.

The appellant presented several witnesses to confirm Woodruff’s subsequent

confession to West’s murder. Specifically, the appellant offered the testimony of

fellow inmates, Malcolm Fuller and Greg Turner who verified that they had

overheard Woodruff tell the appellant that he shot Michael West. Malcolm Fuller

had been the appellant’s cellmate for two years; Greg Turner admitted that he had

been friends with the appellant for the past four to five years. John Smith, another

2

W oodruf f, along with th e appe llant, was a s uspec t in W est’s 199 1 mu rder.

3

The affidavit reads:

I, Jon W oodraft, after being duly sworn in accordance with the law, deposes ans

says the following:

On the date of December 3, 1991 I Jon Woodraft got into an altercation with Mike

West on Joe Johnson in Nashville, Tennessee that led into a shootout between

the two of us above listed persons. I shot Mr. West into the back area of his body

with a .357 Magnum handgun. This was after he made a threat about killing me

and reached for his gun that’s when I shot him once in the back area at close

range. Another suspect was arrested and took a plea because he didn’t know

about justice and didn’t want to take chances of facing a life sentence. When

truly an d rea lly I was the o ne th at co mm itted th e crim e and tried to save mys elf

from prosecution by acting as if I knew him and I saw him do it. I finally admitted

this to him and I finally met him on December 28, 1995.

Jon W oodruff [cursive]

3

inmate, also testified that, while helping Woodruff move his property to his unit,

Woodruff admitted that he had committed the homicide for which the appellant had

been convicted.

Jon Woodruff testified that he was currently serving a life sentence for murder

at the Turney Center. He denied ever having a conversation with the appellant on

December 28, 1995. Although he admitted that the signature on the affidavit was

his, he denied reading the substance of the affidavit prior to signing and refused to

answer any questions regarding the truth of the matter asserted in the affidavit.

Metro Police Department Detective David Miller, the investigating officer in

the 1991 shooting death of Michael West, testified that the victim was killed as the

result of a gunshot wound to the back. The autopsy report revealed that the victim

was shot at a very close range with a .357 revolver. A .357 revolver was later

located underneath a waterbed in the residence where the appellant was living.

The investigation of the homicide led police to two suspects, the appellant

and Jon Woodruff. A polygraph examination was given to both individuals. During

the post- examination interview, Jon Woodruff stated that the appellant was the

shooter and disclosed his location and the appellant’s location during the shooting.

Similarly, the appellant admitted that he was the shooter and disclosed his angle

and distance from the victim. Detective Miller added that an eyewitness to the

account, Clarence Goins, stated that he observed the appellant “running behind the

victim with the gun.” Mr. Goins additionally stated that, “just after the shooting and

before they left the scene, [the appellant] told him, quote, I just shot a N-word.”

The trial court, after considering this evidence, denied the appellant’s petition.

In reaching its decision, the court found that, although the evidence met the criteria

for “newly discovered evidence,” the subsequent confession of Jon Woodruff lacked

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credibility. Specifically, the court noted that the appellant had failed a polygraph

examination and confessed to the homicide; the murder weapon was located under

the appellant’s bed; Jon Woodruff and Clarence Goins had both named the

appellant as the shooter; and that the appellant knowingly and voluntarily entered

his guilty plea. Moreover, the court noted the variance between the spelling of

Woodruff’s name and the style of the writing in the body of the affidavit and the

signature line, “giving rise to the strong suspicion that . . . [someone else] wrote the

confession and that Woodruff was induced to sign by coercion or bribery.”

Analysis

The appellant contends that the trial court abused its discretion in denying his

petition. The State makes a two pronged response to the appellant’s assertion.

First, the State contends that a guilty plea may not be set aside by means of a

petition for writ of error coram nobis based on newly discovered evidence. Second,

the State argues that the trial court properly found that the newly discovered

evidence lacked credibility, and, thus, acted within its discretion in denying the

petition for writ of error coram nobis.

A writ of error coram nobis is available to a defendant in a criminal

prosecution. Tenn. Code Ann. § 40-26-105 (1997); State v. Hart, 911 S.W.2d 371,

374 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). However, the writ is

an exceedingly narrow remedy appropriate only when an issue was not addressed

or could not have been addressed at trial because it was somehow hidden or

unknown and would have prevented the rendition of the judgment had it been

known to the court. See Tenn. Code Ann. § 40-26-105; Hart, 911 S.W.2d at 374;

State v. Hooper, No. 03C01-9701-CR-00035 (Tenn. Crim. App. at Knoxville, Mar. 6,

1998). Hence, the writ will lie for subsequently or newly discovered evidence if the

5

petition relates (1) the grounds and the nature of the newly discovered evidence; (2)

why the admissibility of the newly discovered evidence may have resulted in a

different judgment had the evidence been admitted at the previous trial; (3) the

petitioner was without fault in failing to present the newly discovered evidence at the

appropriate time; and (4) the relief sought by the petitioner. 4 Hart, 911 S.W.2d at

374-375.

In what appears to be a question of first impression, the State argues that a

writ of error coram nobis will not issue to set aside a guilty plea that was voluntarily

and knowingly entered. After a review of the law, the principles behind the issuance

of the writ, and the law of sister jurisdictions, we find the State’s argument well

taken.5

There are three methods by which one can set aside a guilty plea:

(1) for any fair and just reason before the sentence is imposed, Tenn.

R. Crim. P. 32(f);

(2) to correct manifest injustice after sentence but before the

judgment becomes final, Tenn. R. Crim. P. 32(f); and

(3) once the judgment is final, if the plea was not entered voluntarily,

intelligently, and knowingly, or was obtained through the abridgement

of any right guaranteed by the United States or Tennessee

Constitutions, State v. Mackey, 553 S.W.2d 337, 340-341 (Tenn.

1977); Tenn. Code Ann. § 40-30-203.

State v. Lyons, No. 01C01-9508-CR-00263 (Tenn. Crim. App. at Nashville, Aug. 15,

1997), reconsideration denied, (Sept. 19, 1997). Thus, in order for a writ to issue,

the appellant would have to present newly discovered evidence which would show

4

Comp are Tenn. Code Ann. § 40-30-217(a)(2) (1997) (post-conviction petition may be

reopened only on the basis of newly discovered scie ntific evidence establishing the actual

innocence of the petitioner).

5

We note that a writ o f erro r cor am n obis will only issue one year after the judgment

becom es final. Te nn. Cod e Ann. § 27-7-10 3 (1980 ); Hicks v. State, No. 03C01-9608-CR-00296

(Tenn. Crim. App. at Knoxville, Mar. 3, 1998). Although it appears from the record that the

appellant’s petition was filed beyond the one year statute of limitations applicable to writs of error

cora m no bis, the statute of limitations is an affirmative defense which must be specifically plead or

is deem ed waive d. See State v. Mixon, No. 0 2C0 1-95 07-C C-0 020 4, foo tnote 1 (Te nn. C rim .

App. at J acks on, Aug . 28, 1997 ), perm. to appeal granted, (Tenn. Apr. 13, 1998) (citing Sands v.

State , 903 S.W.2d 297, 299 (Tenn. 1995)). The State failed to assert the time period in the case

sub judice.

6

that his plea was not voluntarily or knowingly entered. However, the newly

discovered evidence asserted by the appellant fails to affect the voluntariness of his

1992 guilty plea.

An otherwise valid guilty plea does not become involuntary merely because it

is induced by the defendant’s desire to limit the possible maximum penalty to less

than that authorized if there is a jury trial. Nor does it become involuntary by the

mere fact that a third party has subsequently confessed to the crime as such

assertions are not uncommon and must be approached with some skepticism. See

Brown v. State, 955 S.W.2d 901, 902 (Ark. 1997).

By pleading guilty, the appellant admitted his factual guilt and waived his right

to confront his accusers. See, e.g., People v. Jackson, 620 N.Y.S.2d 240, 241

(N.Y.Co.Ct. 1994). He may not seek, after the judgment has become final, to later

recant his admission as to those facts by an allegation that a third party has

confessed. Moreover, a third party confession is not so much “newly discovered

evidence” as it is “newly disclosed” to the court. See Travis v. State, CR-92-958

(Ala. Crim. App. Apr. 18, 1997) (not yet released for publication). There can be no

doubt that, at the time the defendant entered his guilty plea, he knew that either he

did or did not commit the murder for which he had been convicted. See Travis, CR-

92-958. In other words, a subsequent third party confession does not affect the

voluntariness of a guilty plea. Thus, if the plea agreement was negotiated in good

faith, there are no allegations of fraud or misfeasance, and, in all other regards, the

plea agreement was entered into voluntarily and knowingly, he cannot now complain

of that which he had willingly bargained for previously.6 A petition for the writ of

6

Our ho lding in this m atter is limited to the prem ise that a su bsequ ent third pa rty

confession will not affect the voluntariness of a guilty plea, thus, precluding the issuance of a writ

of err or co ram nobis based on newly discovered evidence. However, we do acknowledge that

should “newly discovered evidence” effect the voluntariness of a guilty plea, a writ ma y prop erly

lie.

7

error coram nobis is not intended to relieve a party of its own negligence, ignorance,

or change of mind.

Although we are not advocating the persecution of the innocent, there is a

need for finality of legal decisions. At some point, the proceedings must come to a

halt despite the prospect of allegations without end that something went wrong. The

traditional method for addressing actual innocence based upon newly discovered

evidence which is procedurally barred from the courts is through executive

clemency. See Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860 (1993). If

the appellant has not already pursued this option, it is still available to him. Tenn.

Code Ann. §§ 40-27-101 through -109 (1997); Hicks, No. 03C01-9608-CR-00296.

Assuming arguendo that relief could be available in this context, we cannot

conclude, as argued by the appellant, that the trial court abused its discretion in

denying the appellant a new trial. Specifically, the appellant asserts that there is

“absolutely no proof in the record” to support the trial court’s finding that “the

Woodruff affidavit was signed as a result of ‘coercion or bribery.’”

The decision to grant or deny a petition for the writ of error coram nobis on

the ground of newly discovered evidence rests within the sound discretion of the trial

court. Hart, 911 S.W.2d at 375; Trammell v. State, No. 01C01-9602-CC-00083

(Tenn. Crim. App. at Nashville, Jul. 11, 1997), perm. to appeal denied, (Tenn. Apr.

13, 1998). In exercising its discretion, the trial court must determine the credibility of

the witnesses who testify in support of the accused’s coram nobis application. Id. If

the trial court does not believe that the witnesses presented by the accused are

credible, the court should deny the application. Id. Moreover, before relief may be

granted, it must be established, and the trial court must find, that the newly

discovered evidence may have resulted in a different judgment had it been

presented at the trial. Id. This rule presupposes that the evidence would be

8

admissible pursuant to the applicable rules of evidence and is material to the issues

or grounds raised in the petition. Id.

First, the appellant presented several witnesses who testified that they

overheard Jon Woodruff confess to the homicide for which the appellant stands

convicted. Such hearsay evidence is not legal evidence and is not admissible to

show that someone other than the accused committed the offense at issue. A

defendant may disprove his guilt by proving the guilt of some other person; but, this

must be done with legal evidence and not by the testimony of witnesses who heard

another admit that he committed the offense. Second, the proof supporting the

appellant’s conviction for the murder of Michael West includes a confession by the

appellant, the testimony of two eyewitnesses, and the discovery of the murder

weapon beneath the appellant’s bed. The “newly discovered evidence” asserted by

the appellant, i.e., that Jon Woodruff was the true killer, is merely contradictory of

the overwhelming proof. Newly discovered evidence which serves no other purpose

than to contradict or impeach the evidence supporting the conviction 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. Finally, this court will not second guess the trial court’s evaluation of the

witnesses’ credibility. Accordingly, we cannot conclude that the trial court abused its

discretion in denying the relief sought by the appellant.

For the reasons discussed herein, the appellant’s petition for the writ of error

coram nobis was properly denied.

____________________________________

DAVID G. HAYES, Judge

9

CONCUR:

_________________________________________

PAUL G. SUMMERS, Judge

__________________________________________

JERRY L. SMITH, Judge

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