Jamar Scott v. State of Tennessee

06/11/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 14, 2019

JAMAR SCOTT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2016-A-419 Seth W. Norman, Judge

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No. M2019-00014-CCA-R3-ECN

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The Petitioner, Jamar Scott, appeals the denial of his petition for writ of error coram

nobis, alleging that he has newly discovered evidence of innocence. Following our

review, we affirm the judgment of the error coram nobis court denying the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and J. ROSS DYER, JJ., joined.

Lauren Wills, Nashville, Tennessee, for the appellant, Jamar Scott.

Herbert H. Slatery III, Attorney General and Reporter; and Garrett D. Ward, Assistant

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

In January 2006, the Petitioner and his girlfriend, Francine Goss, were jointly

indicted by the Davidson County Grand Jury for two counts of first degree felony

murder, two counts of first degree premedicated murder, and two counts of attempted

robbery based on their robbery scheme in which the two victims were shot and killed

after Francine1lured the men to her home to rob them. State v. Jamar Ed-Wae Scott, No.

M2010-00809-CCA-R3-CD, 2011 WL 6382548, at *1 (Tenn. Crim. App. Dec. 15, 2011).

The cases were later severed and the Petitioner was twice tried separately. His first trial

ended in a hung jury and his second trial ended in the jury’s convicting him on all

indicted charges. After merging the murder convictions involving the same victims, the

trial court sentenced the Petitioner to an effective term of life plus eight years in the

Department of Correction. On direct appeal, this court affirmed the judgments of the trial

court. Id.

The Petitioner filed a timely petition for post-conviction relief, which was denied

by the post-conviction court. This court affirmed the judgment of the post-conviction

court and our supreme court denied the Petitioner’s application for permission to appeal.

Jamar Ed-Wae Scott v. State, No. M2013-01724-CCA-R3-PC, 2014 WL 2568138, at *1

(Tenn. Crim. App. June 9, 2014), perm. app. denied (Tenn. Nov. 20, 2014). Our post-

conviction opinion provides the following overview of the proof the State presented at

the Petitioner’s second trial:

The evidence adduced at the [P]etitioner’s trial, as summarized by

this court on direct appeal, established that on September 10, 2005, the

[P]etitioner’s girlfriend, Francine Goss, announced plans to commit a

robbery to obtain money and that she selected the victims when she went to

the store with a friend during the early morning hours of September 11,

2005. Ms. Goss brought the victims to her home, where five children lay

sleeping in a back bedroom. One of the children testified that that she had

seen the [P]etitioner inside Ms. Goss’s residence with a gun in his

waistband. At some point, “a ‘shootout’ occurred in Goss’s home,” and the

victims died as a result of multiple gunshot wounds sustained during the

shootout. Telephone records established that Ms. Goss and the [P]etitioner

spoke to each other 28 times between 2:32 a.m. and 4:38 a.m. Other

evidence established that the shootings occurred after 4:00 a.m. The

[P]etitioner admitted to two of his friends that he had shot two people, and

threatened the life of a potential State witness.

Id. (internal citations omitted).

On December 30, 2015, the Petitioner filed a pro se petition for writ of error

coram nobis on the basis of newly discovered evidence. He alleged that in June 2015, he

1

Because two of the individuals involved in this case, Francine Goss and her sister,

Victoria Goss, share the same last name, we will at times refer to them by their first names for

simplicity’s sake. We intend no disrespect by doing so.

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discovered a previously undisclosed interview that Detective Danny Satterfield had

conducted with the Petitioner’s girlfriend’s sister, Victoria Goss, in which she

specifically stated that the Petitioner was not involved in the shooting. According to the

Petitioner, he had been unaware of that interview or that Victoria had specifically

excluded him as the perpetrator.

The error coram nobis court noted that the petition appeared on its face to be

untimely but nevertheless appointed counsel to determine if due process required the

tolling of the statute of limitations. On October 4, 2016, error coram nobis counsel filed

an amended petition asserting, among other things, that the Petitioner and his counsel had

been diligent in their attempts to obtain any and all Brady material, that the Petitioner was

without fault in not discovering the videotaped interview until June 2015, and that the

error coram nobis petition was timely because it was filed within a year of the

Petitioner’s discovery of the previously unknown evidence.

At the error coram nobis hearing, the Petitioner testified that he had had a total of

five different attorneys over the course of the case. He said he asked each successive

attorney to provide him with copies of witness statements but he never received them.

Finally, in January 2013, he requested his file from the district attorney’s office. He

initially received a response informing him that he could purchase a copy of the file. He

later, however, received a follow-up letter informing him that he could not receive a copy

of his case file while his post-conviction case was pending.

The Petitioner testified that after his post-conviction case was completed he at first

attempted to get the case file from his post-conviction counsel but was unsuccessful. He

then again contacted the district attorney’s office directly and ultimately received the file

on June 19, 2015, after he signed a limited power of attorney authorizing his sister and

his cousin to pick it up on his behalf.

The Petitioner testified that when he reviewed his case file, he saw for the first

time a “Certified Voice Stress Analysis Test,”2 in which a criminal investigator

concluded that Victoria Goss, an eyewitness to the crimes, had been truthful in her

interview with law enforcement. The Petitioner said he then went to the prison library

and viewed the DVD of Victoria’s interview. During her interview, Victoria stated that

she was familiar with the Petitioner and was certain that the Petitioner was not the man

who shot the two victims. The Petitioner said that the above specific exonerating

information was not in the detective’s supplemental report or any other information he

received in discovery.

2

This was alternately referred to as a lie detector test.

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On cross-examination, the Petitioner acknowledged that he knew Victoria was

familiar with him and was aware that neither Francine nor Victoria ever identified him as

a perpetrator of the crimes. He further acknowledged that Detective Satterfield testified

at his trial that no one had identified the Petitioner. He complained, however, that the

essential information -- that Victoria had specifically excluded him as the perpetrator --

was missing from the detective’s supplemental report. According to the Petitioner, had

he and his counsel known of that interview and its contents, they would have sent their

private investigator to question Victoria in more detail.

The Petitioner testified that he did not know if his counsel had ever gone to the

police department’s evidence room or whether the DVD of the interview had been there.

Regardless, he insisted that Victoria’s interview was not included in the discovery

materials provided by the State. He conceded that a witness at his first trial, Reginald

Alexander, testified that the Petitioner told him that Victoria Goss had seen the

perpetrator and that the Petitioner was not the perpetrator. The Petitioner claimed,

however, that he never spoke to Mr. Alexander and that Mr. Alexander’s trial testimony

was fabricated.

The Petitioner’s trial counsel, who represented him in both trials, testified that she

requested and received discovery from the State, including DVDs of witness statements,

but never received the DVD of the interview at issue. She knew that Victoria was an

eyewitness to the crimes but, although her investigator had spoken with Victoria, until

trial counsel was contacted by error coram nobis counsel she was unaware of the

existence of either the DVD or the Voice Analysis Stress Test. Trial counsel was

uncertain whether she would have called Victoria as a defense witness had she known

about the DVD before trial, but she agreed that such knowledge would have altered the

manner in which she investigated the case and conducted the trial.

On cross-examination, trial counsel acknowledged she was aware from the

beginning of her representation that Victoria had been an eyewitness, that she had been

interviewed by the police, and that she had not identified the Petitioner as the perpetrator.

She further acknowledged that she had been in possession of the initial statement that

Victoria gave to police immediately after the shooting, and she conceded that it came out

at trial that no one present at the crime scene was able to identify the perpetrator.

Trial counsel testified that she had not seen the DVD at issue but from her

understanding it contained a two-hour interview of Victoria along with the administration

of a lie detector test. She acknowledged that the lie detector test would not have been

admissible at trial but said her knowledge of the test results could have changed the way

she assembled defense evidence. She conceded that in addition to her investigator having

interviewed Victoria, she herself “probably talked to her on the phone,” although she had

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no memory of doing so. She recalled having gone to the district attorney’s office to look

through the file and said she probably went to the property evidence room as well but

could not remember.

Co-counsel, who also represented the Petitioner during both trials, testified that he

was aware that Victoria Goss had been interviewed by the police detective but was

unaware that she had been given a lie detector test or that she had been specifically

questioned about the Petitioner. On cross-examination, he acknowledged he and trial

counsel knew that both Victoria and Francine Goss were eyewitnesses and that he was

able to elicit from Detective Satterfield at trial that no one ever named the Petitioner as

the perpetrator. He insisted, however, that there was a vast difference between knowing

that Victoria never identified the Petitioner as the perpetrator and knowing that she

affirmatively stated that she was familiar with the Petitioner and that he was not present

during the shooting. According to co-counsel, had they known the latter, they would

have called Victoria as a defense witness:

No, the point is, is that, our defense is that he wasn’t there and we

had a declarative statement by a witness that we never received. Had we

received that, we would have put it on. . . . . If this tape exist[s] and we had

listened to this tape, there’s no way we could have gone through this trial

without calling her as a witness. I’m saying that vigorously. Period.

That’s what I was brought on to do was to try the case and I pretty

much formulated the trial strategy. Had I known this, we would have had

Victoria Goss here, on the stand, testifying. That was everything.

The Petitioner’s post-conviction counsel testified that during her representation of

the Petitioner, she was never aware of either the videotaped interview of Victoria Goss or

the lie detector test. Moreover, she had carefully gone through her file as a result of the

Petitioner’s having filed a June 2014 complaint against her with the Board of

Professional Responsibility and found no mention of the recorded interview or the lie

detector test.

On cross-examination, post-conviction counsel acknowledged that the State had

turned over disks of recorded interviews to trial counsel as part of discovery. She

recalled having gone to the district attorney’s office to review the case file but did not

recall having seen the disk in question. She did not recall having ever gone to the police

property room. She said she attempted to interview Victoria Goss but was unable to

locate her.

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Detective Danny Satterfield of the Metro Nashville Police Department agreed that

neither the Petitioner’s name nor Victoria’s stress test was mentioned in his one-page

report of the September 21, 2005 interview with Victoria Goss. He said he turned over

the entire case file, including the tape of the interview, to the district attorney’s office.

The assistant district attorney who co-prosecuted the trial, called as a witness by

the State, testified that the district attorney’s office provided open file discovery to

defense counsel. He said that Francine Goss was attempting to negotiate a deal at the

time of the Petitioner’s second trial and was on standby to testify for the State, but they

ultimately did not feel the need to call her as a witness. Had Victoria Goss testified at

trial that the perpetrator was not the Petitioner, they would have called Francine to rebut

Victoria’s testimony. He agreed that the State had a number of witnesses against the

Petitioner, including the Petitioner’s friend who testified that the Petitioner admitted that

he killed the victims and a neighbor who reported having seen the Petitioner walk to

Francine’s home a short time before the shooting and return to his vehicle after the

gunshots. The prosecutor said he did not initially remember Victoria Goss’s voice stress

test but as he reviewed the case he began to recall it:

But the more I saved everything, I recall conversations about - - not

just hers but Francine Goss’s Stress Test. That was one of the reasons we

didn’t - - not because of the Stress Test - - but one of the reasons we didn’t

want to call her, was because, I didn’t know whether she would end up

identifying [the Petitioner] as being the perpetrator. I had a feeling she

might, because her sister, by then, was cooperating. But the point is, that

we didn’t need to put on another witness that had given inconsistent

statements. You know, whether we called her - - if we called her, then they

could impeach her on the fact [that she initially did not identify the

Petitioner].

On cross-examination, the prosecutor testified that witness statements and

recorded interviews should not only have been in the police property room but also in the

case file kept in the district attorney’s office. He thought he remembered that everything

in the file was copied for defense counsel as part of discovery but said defense counsel

might have chosen only certain items to be copied. He acknowledged that the DVD of

Victoria’s interview would have been a relevant piece of evidence to copy. He could not

explain why trial counsel missed it but pointed out that the Petitioner’s sister and cousin

had been able to find it when they went to the district attorney’s office to get a copy of

the file for the Petitioner. He was adamant that he did not withhold the DVD from

defense counsel or remove it from the case file at any time.

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On December 7, 2018, the error coram nobis court entered an order denying the

petition. Addressing the merits of the petition, the court concluded that the Petitioner

failed to show that the videotape was newly discovered evidence that may have changed

the result of the trial. Among other things, the court found that although the videotaped

interview with Victoria Goss was exculpatory, the information she provided in it was

available to the Petitioner and, as such, that the videotape was merely cumulative. The

court disagreed that there was a significant difference between “the more generalized

failure to make an identification and the direct statement that it was not [the Petitioner].”

ANALYSIS

The Petitioner contends that the error coram nobis court abused its discretion in

denying the petition, asserting that he met his burden of demonstrating that he was

without fault in failing to have discovered the DVD before trial and that the DVD might

have resulted in a different judgment had it been available at trial. In support of the latter

assertion, the Petitioner argues that he could have used the DVD to, among other things,

impeach the credibility of Detective Satterfield, who neglected to mention anything in his

supplemental report about the Voice Stress Analysis Test or the fact that Victoria Goss

specifically excluded the Petitioner as the perpetrator. The State responds by arguing that

the error coram nobis court properly denied the petition because “the proffered evidence

did not contain facts existing but not ascertained at [the] time of trial.” We agree with the

State.

A writ of error coram nobis is an extraordinary remedy by which the court may

provide relief from a judgment under only narrow and limited circumstances. State v.

Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated section 40-26-

105 provides this remedy to criminal defendants:

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. The issue shall be tried by the court without the intervention of a

jury, and if the decision be in favor of the petitioner, the judgment

complained of shall be set aside and the defendant shall be granted a new

trial in that cause.

Tenn. Code Ann. § 40-26-105(b), (c).

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Our supreme court has stated the standard of review as “whether a reasonable

basis exists for concluding that had the evidence been presented at trial, the result of the

proceedings might have been different.” State v. Vasques, 221 S.W.3d 514, 525-28

(Tenn. 2007) (citation omitted). Coram nobis claims may be based upon any “newly

discovered evidence relating to matters litigated at the trial” so long as the petitioner

establishes that he or she was “without fault” in failing to present the evidence at the

proper time. Harris v. State, 102 S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims are

“singularly fact-intensive,” are not easily resolved on the face of the petition, and often

require a hearing. Id. at 592-93. The decision to grant or deny coram nobis relief rests

within the sound discretion of the coram nobis court. Vasques, 221 S.W.3d at 527-28.

We review this issue, therefore, under an abuse of discretion standard.

We find no abuse of discretion in the error coram nobis court’s denial of the

petition. Both of the Petitioner’s trial counsel were aware from the beginning that

Victoria Goss was an eyewitness, that she was familiar with the Petitioner, and that she

reported to the police that she could not identify the perpetrator. Counsel’s investigator

interviewed her and trial counsel herself acknowledged that she probably spoke to her by

telephone. Therefore, assuming, arguendo, that her September 21, 2005 videotaped

interview was missing or not included in the discovery file, it does not constitute newly

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

at trial. “Newly discovered evidence that is merely cumulative or serves no other

purpose than to contradict or impeach does not warrant the issuance of the writ.” Wlodarz

v. State, 361 S.W.3d 490, 499 (Tenn. 2012), abrogated on other grounds by Frazier v.

State, 495 S.W.3d 246, 28 (Tenn. 2016). Therefore, we affirm the denial of the petition

for writ of error coram nobis.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the

error coram nobis court.

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ALAN E. GLENN, JUDGE

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