The opinion
12/05/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 1, 2022 Session
ANDRE BOWEN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 18-01853 Lee V. Coffee, Judge
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No. W2022-00229-CCA-R3-ECN
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Andre Bowen, Petitioner, claims that the trial court erred by summarily dismissing his
Petition for Writ of Error Coram Nobis. Discerning no error, we affirm the dismissal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which J. ROSS DYER
and KYLE A. HIXSON, JJ., joined.
Phyllis Aluko, District Public Defender; and Barry W. Kuhn (on appeal) and Samuel
Christian (at hearing) Assistant District Public Defenders, for the appellant, Andre Bowen.
Jonathan Skrmetti, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Steve Mulroy, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Petitioner and his Co-defendant, Anthony Olivo, were charged with first degree
felony murder in the perpetration of theft, first degree felony murder in the perpetration of
robbery, attempted especially aggravated robbery, and convicted felon in possession of a
firearm. See State v. Andre Bowen, No. W2019-01210-CCA-R3-CD, 2021 WL 1400929,
at *1 (Tenn. Crim. App. Apr. 13, 2021), perm. app. denied (Tenn. June 15, 2021); State v.
Anthony Olivo, No. W2019-00530-CCA-R3-CD, 2020 WL 2510533, at *1 (Tenn. Crim.
App. May 15, 2020), perm. app. denied (Tenn. Sept. 21, 2020). Following a joint trial, the
jury convicted Mr. Olivo as charged, and the trial court sentenced him to a total effective
sentence of life plus twenty years. Anthony Olivo, 2020 WL 2510533, at *1. The jury
convicted Petitioner as charged, except with respect to the murder charges for which it
convicted him of the lesser-included offense of facilitation of first degree murder in the
perpetration of robbery and acquitted him of the charge of first degree felony murder in the
perpetration of theft, and the trial court sentenced Petitioner to a total effective sentence of
seventy-two years. Andre Bowen, 2021 WL 1400929, at *1, *5. Neither Petitioner nor
Mr. Olivo testified at the trial.
Petitioner’s Direct Appeal
The following excerpts are quoted from this court’s opinion from Petitioner’s direct
appeal:
[S]hortly after 6:00 a.m. on August 1, 2015, the defendants were
driving in [Mr.] Olivo’s grey Lexus looking for a license plate to steal
because Co-defendant Olivo’s temporary tag had expired when they saw the
victim withdraw cash from a bank. The defendants then decided to rob the
victim and followed her in the Lexus. When the victim parked in the
driveway of her neighbor, Jane Rezos, [Mr.] Olivo exited the Lexus armed
with a gun, approached the victim, and attempted to rob her. A struggle
ensued after the victim produced her own weapon, and [Mr.] Olivo shot the
victim in the head. [Mr.] Olivo returned to the Lexus, and the defendants
fled the scene.
....
[Mr.] Olivo provided a statement to law enforcement after his arrest
on August 14, 2015, which implicated [Petitioner] in the crimes. [Memphis
Police Department (“MPD”)] Officer [Brad] Webb obtained a statement
from [Petitioner] on August 15, 2015. An advice of rights form, which was
signed by [Petitioner], and a redacted version of [Petitioner]’s statement were
entered into evidence, a copy of which was provided to the jury and read by
Officer Webb. In the statement, [Petitioner] denied being responsible for the
victim’s death but stated he knew who was responsible. He also stated he
heard the gunshot that killed the victim. [Petitioner] explained that on the
morning of the murder, he and [Mr.] Olivo were driving a dark grey Lexus
and planned to steal a car tag. [Petitioner] denied seeing the victim anywhere
prior to the shooting and denied that he and [Mr.] Olivo planned to rob the
victim. Furthermore, [Petitioner] stated he never saw the victim as he
remained in the front passenger’s seat during the shooting. [Petitioner]
explained as follows:
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Me and [Mr. Olivo] were just riding around, and, within a
minute or two, I heard a lady holler, but the windows were up,
and I can’t say what she said. Then I heard a shot, and looked
back, and saw [Mr. Olivo] running back to the car.
[Petitioner] denied having a weapon but mentioned seeing a small,
black handgun that day and stated no one else was with him and [Mr.] Olivo
at the time of the shooting. [Petitioner] also noted [Mr.] Olivo had a cut on
his forehead. A photograph of [Mr.] Olivo, as identified by [Petitioner], was
entered into evidence showing where [Petitioner] marked an injury to [Mr.]
Olivo’s forehead and wrote, “That’s the place he was bleeding from.”
MPD Lieutenant Robert Wilkie testified regarding the statement
provided by [Mr.] Olivo on August 14, 2015. A copy of the advice of rights
form signed by [Mr.] Olivo and a redacted version of his statement were
entered into evidence and read to the jury by Lieutenant Wilkie. In the
statement, [Mr.] Olivo denied seeing the victim prior to August 1, 2015,
denied planning to rob the victim, denied shooting the victim, and denied
being armed during the shooting though he admitted to seeing a black,
automatic handgun. [Mr.] Olivo admitted that prior to the crimes, he was
searching for a car tag because his temporary tag had expired, he was present
during the shooting but did not exit his vehicle, and he was sorry for what
happened to the victim. [Mr.] Olivo explained the shooting in further detail,
as follows:
Me and [Petitioner] were just riding around, and we were
looking to find a Lexus to steal the tag off of and put on my
car. I just turned on a street, and then I seen a car on my right
side. I stopped in the street, and she was straight across the
street near her truck, and she hollered to get away from the car.
I seen her in her purse, and it looked like she was trying to get
something. And that’s when she pulled out a gun and shot
once, and we pulled off. I turned around at the end of the street
and went to south Memphis and dropped [Petitioner] off near
Pond Street, and then I went home to my mom’s.
Id. at *1-3.
Petitioner was questioned on August 15, 2015, by Officer Webb and MPD Sergeant
Tess Kent. Petitioner’s interview, redacted so as to not implicate Mr. Olivo, was read to
the jury and entered as Exhibit 39. The Petitioner’s unredacted interview was entered for
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identification as Exhibit 39A. The following is a portion of the exchange between Sergeant
Kent and Petitioner:1
Q. Exactly where were you when the shooting occurred?
A. Sitting in the car. Front passenger seat. The car was parked a little
past where I heard the shot come from. Then I heard the shot I looked back
a little over my left shoulder and saw [Mr. Olivo] running to the car.
....
Q. In your own words tell me what happened before, during, and after
the shooting.
A. Me and [Mr. Olivo] were just riding around, and, he was looking
to find a Lexus to steal the tag off and put on his car. [Mr. Olivo] pulled
over and stopped and then took the gun out of the glove box [and] got out of
the car. He walked away from the car and within a minute or two I heard a
lady holler, but the window[s] were up and I can’t say what she said, then I
heard a shot and looked back and saw [Mr. Olivo] running back to the car.
Q. Was there any talk of robbing anyone?
A. No sir.
Q. Was there a plan of stealing a tag?
A. Yes.
Writ of Error Coram Nobis
Petitioner has been represented by attorneys from the Shelby County Public
Defender’s office at trial, on appeal, and in this proceeding. Assistant Public Defender
Sam Christian, who was one of Petitioner’s trial counsels, filed a Petition for Writ of Error
Coram Nobis (“the Petition”) on March 24, 2021, claiming that Petitioner had discovered
new evidence that was not available or discoverable before his trial and that this evidence
may lead to an acquittal of the charges. The Petition claimed that Mr. Christian first
1
Because one issue in this appeal is whether the proffered post-trial statements of Mr. Olivo— to
the effect that Petitioner was asleep in the car when the victim was murdered—are credible, we have
included the unredacted response of Petitioner, with the part redacted from Petitioner’s answer and not read
to the jury italicized.
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became aware of possible evidence in August of 2020 when Petitioner told him that
Petitioner had talked by phone with Mr. Olivo and that Mr. Olivo told Petitioner that he
had made statements at his sentencing hearing that might aid Petitioner. Mr. Christian
asked to speak with Mr. Olivo, but Mr. Olivo’s counsel would not permit him to speak to
Mr. Olivo while Mr. Olivo’s appeal was pending. The Tennessee Supreme Court denied
Mr. Olivo’s Rule 11 Application on September 21, 2020.
In an affidavit attached to the Petition, Kathleen Duckett, an investigator with the
Shelby County Public Defender’s Office, affirmed that she was on a telephone conference
call with Mr. Olivo, Mr. Christian, and Assistant Public Defender Barry Kuhn on
November 12, 2020. According to Ms. Duckett’s affidavit, Mr. Olivo stated that, during
his sentencing hearing, he “told the court that Petitioner did not know anything about the
situation until after the fact” and that Petitioner “was asleep in the car and did not know
what happened.” He said that he and Petitioner “had been driving around all night ‘getting
blazed’ and doing drugs” and that Petitioner “fell asleep in the early morning hours” and
that he “continued to drive around for forty-five minutes after [Petitioner] fell asleep before
anything happened.”
Also attached to the Petition was the portion of Mr. Olivo’s sentencing hearing
transcript containing Mr. Olivo’s allocution, during which he stated that he would “like to
apologize to [Petitioner] for him being charged with something that he had no knowledge
of what was going on or what happened till after the fact.”
On April 16, 2021, Petitioner filed, as an addendum to the Petition, the affidavit of
Mr. Olivo, which stated:
[Petitioner] was in the car with me during the events which occurred August
1, 2015, but he was asleep. He was not aware of anything that occurred. He
had taken a Xanax tablet and was asleep. He had gone to sleep forty-five
minutes to an hour during the drive. I was about to take him home[, and] my
wife called and wanted something from the store[.] [Petitioner] was asleep
the whole time. I made a stop at the store, went to my house, left[,] made a
detour[,] when I got out the car he was asleep, but when [I] got back in the
car he was up hollering at me asking me what’s going on and I told him while
[I] was dropping him off. I wanted to testify during trial, but I asked my
lawyer several times and he told me not to testify that it wouldn’t be in my
best interest [i]f I wanted a chance to win the trial. I just wanted to do what
was right.
On December 1, 2021, the State filed a response asking that the Petition be
summarily dismissed because the information alleged in the Petition was not newly
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discovered evidence and that the Petition was not timely filed. On January 20, 2022, the
trial court summarily dismissed the Petition by written order, in which the court found:
The allegations raised in the Writ of Error Coram Nobis should have
been raised on direct appeal. The evidence is not newly discovered and has
been in possession of . . . [P]etitioner since at least April 12, 2019. The
unsworn statements made by Mr. Olivo during an allocution at his sentencing
hearing were made on March 8, 2019. [Petitioner’s] sentencing hearing took
place one month later on April 12, 2019. The allocution made by Mr. Olivo
is not newly discovered evidence.
This information has been available since at least March 8, 2019. This
information was known to all parties at . . . Petitioner’s sentencing hearing.
During . . . Petitioner’s sentencing hearing, the trial court discussed the
allocution made by Mr. Olivo at the earlier hearing in which Mr. Olivo
asserted that . . . Petitioner was not involved in this offense (see-attached
transcript of proceedings [held on] Friday, April 12, 2019, Page 37 beginning
at line 21). This petition was filed untimely. Even if April 12, 2019[,] is
accepted as the date when the information regarding Mr. Olivo’s allocution
was known to . . . Petitioner, this petition for error coram nobis was filed two
years later on March 23, 2021. Petitioner has willfully filed a document that
is void of any truth. This Petitioner has filed an absolutely false pleading in
this case.
On February 23, 2022, Petitioner filed a notice of appeal.
Analysis
Petitioner claims that the trial court erred by summarily dismissing the Petition,
arguing that he was without fault in failing to present certain evidence at trial, that the
evidence was newly discovered, and that the evidence may result in a different verdict if
admitted during a new trial. Petitioner acknowledges that the Petition was not filed before
the expiration of the one-year statute of limitations but argues that statute should be tolled
because its application denies him due process. The State argues that the trial court
properly dismissed the Petition. We agree with the State. Mr. Olivo’s statements that
Petitioner was asleep in the car when the victim was murdered are not newly discovered
evidence, and the statements lack veracity, as found by the trial court.
The writ of error coram nobis, codified in Tennessee Code Annotated section 40-
26-105 for criminal cases, is “an extraordinary procedural remedy,” providing relief in
only a limited number of cases. State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999)
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(emphasis in original). The petition for writ of error coram nobis must be in writing and
must describe with particularity the nature and substance of the newly discovered evidence
and demonstrate that the evidence qualifies as newly discovered evidence. Harris v. State,
301 S.W.3d 141, 144 (Tenn. 2010), overruled on other grounds by State v. Nunley, 552
S.W.3d 800, 828 (Tenn. 2018). “[T]o be considered ‘newly discovered evidence,’ the
proffered evidence must be (a) evidence of facts existing, but not yet ascertained, at the
time of the original trial, (b) admissible, and (c) credible.” Id. (footnotes omitted).
Petitioner must also show “why the newly discovered evidence could not have been
discovered in a more timely manner with the exercise of reasonable diligence; and . . . how
the newly discovered evidence, had it been admitted at trial, may have resulted in a
different judgment.” Id. (footnotes omitted). Before granting coram nobis relief, the trial
court must be “reasonably well satisfied” with the veracity of the proffered evidence. State
v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007).
Petitions for writ of error coram nobis are subject to a one-year statute of limitations.
Tenn. Code Ann. § 27-7-103 (2020). “The statute of limitations is computed from the date
the judgment of the trial court becomes final, either thirty days after its entry in the trial
court if no post-trial motions are filed or upon entry of an order disposing of a timely filed,
post-trial motion.” Harris, 301 S.W.3d at 144 (citing Mixon, 983 S.W.2d at 670).
Calculating the statute of limitations in this manner is consistent with the “longstanding
rule that persons seeking relief under the writ must exercise due diligence in presenting the
claim.” Mixon, 983 S.W.2d at 670; see also Harris, 301 S.W.3d at 144.
Our supreme court has determined that “compliance with the timely filing
requirement . . . is an essential element of a coram nobis claim.” Nunley, 552 S.W.3d at
828. However, a petitioner can request equitable tolling of the limitations period. Id. To
determine whether due process requires tolling, courts must balance the State’s interest in
preventing “stale and groundless” claims against the petitioner’s interest in having a
hearing to present newly discovered evidence which may have led the jury to a different
verdict if it had been presented at trial. Workman v. State, 41 S.W.3d 100, 103 (Tenn.
2001). To balance these interests, courts should use a three-step analysis:
(1) determine when the limitations period would normally have begun to run;
(2) determine whether the ground 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.
Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995); see also Harris, 301 S.W.3d at 145.
Likewise, “the coram nobis petition must be filed within a time period that ‘does not exceed
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the reasonable opportunity afforded by due process.’” Nunley, 552 S.W.3d at 830 (quoting
Sample v. State, 82 S.W.3d 267, 275 (Tenn. 2002)); see Workman, 41 S.W.3d at 103.
Whether due process considerations require tolling the statute of limitations is a mixed
question of law and fact, which we review de novo with no presumption of correctness.
Harris, 301 S.W.3d at 144 (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921
(Tenn. 2007)).
After a review of the record, we determine that the Petition was not timely filed and
that due process considerations do not warrant the tolling of the statute of limitations.
Petitioner’s grounds for relief are not “later-arising,” and thus, a strict application of the
limitations period would not effectively deny Petitioner a reasonable opportunity to present
his claim. See Sands, 903 S.W.2d at 301.
Even if the Petition were timely, Mr. Olivo’s proffered testimony is not newly
discovered evidence. Harris, 301 S.W.3d at 144. Petitioner argues that Mr. Olivo is now
prepared to testify that Petitioner was asleep in the car when the victim was murdered and
that, therefore, Petitioner was not responsible for what occurred. Petitioner claims that Mr.
Olivo’s statements constitute newly discovered evidence. Petitioner is the one person who
would have known if he were asleep in the car when the victim was murdered, and he
would have known this information prior to his trial. If he had in fact been asleep, he could
have so testified. The only thing that is newly discovered is that Mr. Olivo, after being
sentenced to life plus twenty years and exhausting his appeal, now appears willing to
testify.
Furthermore, the trial court found that Petitioner had “willfully filed a document
that is void of any truth” and that Petitioner had filed “an absolutely false pleading in this
case.” The record fully supports the trial court’s credibility findings. Both Petitioner and
Mr. Olivo gave statements to the police before trial that contradict the proffered statements
by Mr. Olivo that Petitioner was asleep when the murder occurred. Mr. Olivo stated that
he and Petitioner were riding around looking for a car tag to steal. Neither Mr. Olivo nor
Petitioner told the police that Petitioner was asleep.
Petitioner told Sergeant Webb and Sergeant Kent that:
Me and [Mr. Olivo] were just riding around, and [Mr. Olivo] was looking to
find a Lexus to steal the tag off and put on his car. [Mr. Olivo] pulled over
and stopped and then took the gun out of the glove box [and] got out of the
car. He walked away from the car and within a minute or two I heard a lady
holler, but the window[s] were up and I can’t say what she said, then I heard
a shot and looked back and saw [Mr. Olivo] running back to the car.
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If Petitioner were in fact asleep when the victim was killed, he could not have known
that Mr. Olivo “pulled over and stopped and then took the gun out of the glove box [and]
got out of the car” and that he “walked away from the car and within a minute or two [he]
heard a lady holler[.]” Petitioner also told Sergeant Webb and Sergeant Kent that he was
“[s]itting in the car. Front passenger seat. The car was parked a little past where I heard
the shot come from. Then I heard the shot I looked back a little over my left shoulder and
saw [Mr. Olivo] running to the car.” Petitioner could not have known what occurred
before, during, and after the victim was murdered if he were asleep in the car when it
occurred. Because the proffered evidence—Mr. Olivo’s statements that Petitioner was
asleep when the murder occurred and did not know what happened—is not credible, it does
not constitute “newly discovered evidence” for purposes of a writ of error coram nobis.
See id.; Vasques, 221 S.W.3d at 527.
Conclusion
We affirm the trial court’s summary dismissal of the Petition.
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ROBERT L. HOLLOWAY, JR., JUDGE
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