IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 25, 2011 at Knoxville
STATE OF TENNESSEE v. CANTRELL LASHONE WINTERS
Appeal from the Criminal Court for Davidson County
No. 2008-F-1674 Steve Dozier, Judge
No. M2009-01164-CCA-R3-CD - Filed March 24, 2011
A Davidson County Criminal Court jury convicted the defendant, Cantrell Lashone Winters,
of possession of 50 grams or more of hydromorphone in a school zone with intent to sell or
deliver, a Class A felony, see T.C.A. §§ 39-17-417(a)(4), (j)(3); 39-17-432(b) (2006), and
evading arrest, a Class D felony in this case, see id. § 39-16-603(b)(1), (3). In this appeal,
the defendant challenges the trial court’s denial of his motion to suppress evidence obtained
during the search of his person following his arrest, the trial court’s denial of his request for
substitute counsel, the admission of expert testimony on illegal drug packaging, the
sufficiency of the convicting evidence, and the trial court’s denial of his petition for writ of
error coram nobis. Because the evidence adduced at trial does not establish that the
defendant created a risk of death or injury, his conviction of Class D felony evading arrest
must be modified to Class E felony evading arrest. The judgments of the trial court are
otherwise affirmed.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed as Modified
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and N ORMA M CG EE O GLE, J., joined.
Dumaka Shabazz (on appeal and at motion for new trial), Nashville, Tennessee; and Mike
Engle, Assistant District Public Defender (at trial), for the appellant, Cantrell Lashone
Winters.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee
OPINION
On September 7, 2006, Metropolitan Nashville Police Department (“Metro”)
Flex Unit patrol officer Shane Fairbanks was patrolling an area in East Nashville when he
observed the defendant driving a Toyota Camry toward the intersection of Greenwood
Avenue and Scott Avenue. According to Officer Fairbanks, the defendant was not wearing
his seatbelt. Officer Fairbanks stopped the Camry and obtained identification from the
defendant and his passenger, Ollis Welch, Jr. Officer Fairbanks testified that as he spoke
with the defendant, he smelled marijuana and that, as a result, he asked the defendant if the
men had any marijuana in the car. When the men responded that they did not, Officer
Fairbanks “opened the driver’s door and told [the defendant] to step out.” At that point, the
defendant told Officer Fairbanks to “hold on.” The defendant then “grabbed the door, pulled
it back shut. At the same time, he put the car in gear and sped away.” According to Officer
Fairbanks, the defendant “blasted right through” a nearby four-way stop sign. Officer
Fairbanks conceded that there were no other persons or cars in the area when the defendant
fled in the Camry.
Officer Fairbanks lost sight of the Camry as he got into his patrol car to follow,
but he caught the car a short distance later. At that point, the Camry slowed to a stop, and
both men got out of the car and laid on the ground. Searches of both men and the vehicle
failed to yield any contraband. Officers did discover $10,220 on the defendant’s person,
$5,000 of which the defendant had stuffed “in between the fleshy part of his buttocks.” Mr.
Welch had $5,114 in his possession. Other officers who searched along the route traveled
by the Camry discovered “a sandwich bag” containing “several small yellow pills” in a
tomato patch.
Other evidence established that the route taken by the Camry passed within
1,000 feet of both Bailey Middle School and Rosebank Elementary School. Tennessee
Bureau of Investigation testing established that the sandwich bag contained 1,413
hydromorphone tablets manufactured by Abbott Laboratories and that the weight of the
hydromorphone was 127.1 grams.
Metro Lieutenant William Mackall testified as an expert in illegal narcotics
trafficking that the packaging of the hydromorpone tablets in this case into smaller, bagged
quantities of 50 to 100 pills indicated that they were intended for sale to intermediate level
drug sellers rather than street level drug consumers. Lieutenant Mackall explained that a
street level user typically purchased less than four pills. He also explained that the average
street price for a hydromorphone tablet at the time of the offenses was $15.
Ollis Welch, Jr., testified on behalf of the defendant that on September 7, 2006,
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he and the defendant were driving to Mr. Welch’s mother’s house when they were stopped
by Officer Fairbanks. He said that the defendant, who had warned Mr. Welch that he might
“have to take off” from the officer, sped away after Officer Fairbanks asked him to step out
of the car. Mr. Welch said that as they drove away, he noticed for the first time a plastic bag
containing a large number of pills. He said that he “grabbed” the bag and threw it out the
window. Mr. Welch, who acknowledged that he knew the defendant to be a drug dealer,
denied placing the pills in the car and disclaimed any ownership in the contraband.
Based upon this proof, the jury convicted the defendant as charged of
possession with intent to sell or deliver 50 grams or more of hydromorphone in a school zone
and Class D felony evading arrest. Following a sentencing hearing, the trial court imposed
a total effective sentence of 34 years, 25 years of which was to be served at 100 percent by
operation of law. See T.C.A. § 39-17-432(c).
The defendant filed a timely but unsuccessful motion for new trial followed by
a timely notice of appeal to this court. In this appeal, the defendant challenges the trial
court’s denial of his pretrial motion to suppress evidence obtained during the search of his
vehicle and his person following his arrest; the trial court’s pretrial denial of his bid to have
his appointed counsel replaced; the trial court’s permitting Lieutenant Mackall to testify as
an expert; the sufficiency of the convicting evidence; and the trial court’s denial of his
petition for writ of error coram nobis. We will examine each claim in turn.
I. Motion to Suppress
The defendant claims that the trial court erred by denying his motion to
suppress evidence seized from his person and from his vehicle following his arrest because
the State failed to establish that Officer Fairbanks had reasonable suspicion to conduct the
initial investigative stop. The State contends, and we agree, that the defendant has waived
our consideration of this issue by failing to include a transcript of the suppression hearing in
the record on appeal.
The appellant bears the burden of preparing an adequate record on appeal, see
State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have
prepared a transcript of such part of the evidence or proceedings as is necessary to convey
a fair, accurate and complete account of what transpired with respect to those issues that are
the bases of appeal.” Tenn. R. App. P. 24(b). If the appellant fails to file an adequate record,
this court must presume the trial court’s ruling was correct. See State v. Richardson, 875
S.W.2d 671, 674 (Tenn. Crim. App. 1993). In the absence of the suppression hearing
transcript, we are without the facts upon which the trial court relied to make its ruling.
Although we are instructed to consider any evidence adduced at trial when reviewing the trial
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court’s ruling on a motion to suppress, see State v. Henning, 975 S.W.2d 290, 299 (Tenn.
1998), the consideration of such evidence should be done as a complement to the evidence
from the suppression hearing and not as a replacement for such evidence. Given this
deficiency in the record, review of the trial court’s denial of the defendant’s motion to
suppress is impossible, and we must presume that the trial court’s ruling was correct.
II. Motion to Remove and Replace Appointed Counsel
In September 2007, the defendant, via his appointed counsel, moved the court
to relieve appointed counsel and appoint substitute counsel. The defendant claimed that
appointed counsel had “not timely accomplished those tasks which [the defendant] believe[d]
to be essential to the preparation of his case,” that counsel had “not kept [the defendant]
apprised of the status of his three cases,” and that appointed counsel “displease[d] him in
several other ways that his attorney d[id] not even understand.” The trial court denied this
motion following a hearing, the transcript of which is not included in the appellate record.
The defendant apparently renewed his motion orally both prior to trial and during jury voir
dire. Neither the oral motions nor the trial court’s ruling on them are included in the
appellate record. Again, without these transcripts we are without the most basic of facts
upon which to conduct our analysis, and, as a result, we must presume that the ruling of the
trial court was correct. See Richardson, 875 S.W.2d at 674.
Moreover, although appellate counsel has prepared four pages of argument on
this issue, he has failed to cite a single relevant case. The entire argument is devoted to the
repercussions of the complete deprivation of counsel by the trial court, which clearly did not
occur in this case. Despite raising the issue in his motion for new trial and calling trial
counsel as a witness at the hearing on the motion for a new trial, the defendant specifically
“does not challenge the effectiveness of his appointed counsel” on appeal. Other than his
bald assertion that the trial court should have granted his motion for substitute counsel, which
is completely unsupported by relevant authority, the defendant makes no specific claim of
error occasioned by the trial court’s failure to grant the motions. Under these circumstances,
the defendant has waived our consideration of this issue. See Tenn. Ct. Crim. App. R. 10(b).
III. Expert Testimony
The defendant also contends that the trial court erred by permitting Lieutenant
Mackall to testify as an expert in narcotics trafficking because the State failed to establish
that his testimony would substantially assist the trier of fact. The State asserts that the
defendant waived this issue by failing to object to Lieutenant Mackall’s testimony on
grounds that he was not qualified to render an expert opinion.
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Initially, we do not agree with the State that the defendant has waived our
consideration of this issue. The record establishes that prior to Lieutenant Mackall’s
testimony, defense counsel objected to the testimony on the basis that it was irrelevant and
that it would not substantially assist the trier of fact in determining whether the defendant
possessed the hydromorphone for sale or delivery. Counsel specifically stated that the
defendant was making no claim that the drugs were possessed for personal use and conceded
that the pills were obviously packaged for resale. The trial court overruled the defendant’s
objection and permitted Lieutenant Mackall to offer expert testimony. In this appeal, the
defendant again complains that Lieutenant Mackall’s expert testimony did not substantially
assist the trier of fact and does not, as the State contends, challenge Lieutenant Mackall’s
qualification to render such an opinion.
The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. See generally McDaniel v. CSX Transp., Inc., 955 S.W.2d 257
(Tenn. 1997). Rule 702 addresses the need for expert testimony and the qualifications of the
expert: “If scientific, technical, or other specialized knowledge will substantially assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify in the form of
an opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 focuses on the reliability of expert
opinion testimony. Generally, the admissibility of expert testimony is a matter entrusted to
the sound discretion of the trial court, and there can be no reversal on appeal absent clear
abuse of that discretion. See State v. Scott, 275 S.W.3d 395, 404 (Tenn. 2010); State v.
Copeland, 226 S.W.3d 287, 301 (Tenn. 2007). “A trial court abuses its discretion when it
applies incorrect legal standards, reaches an illogical conclusion, bases its decision on a
clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice
to the complaining party.” Scott, 275 S.W.3d at 404 (citing Konvalinka v.
Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).
This court has previously held that when the State establishes that an officer
possesses the necessary training, experience, and familiarity with the illicit drug trade, the
officer may testify about matters relating to the business of buying, selling, trading, and use
of illegal drugs pursuant to Rule 702 of the Tennessee Rules of Evidence. See State v. Bruce
Elliot, No. M2008-02686-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App., Nashville, Apr. 9,
2010); see also, e.g., State v. Gayle Thomas Crawford, No. W2009-00263-CCA-R3-CD, slip
op. at 8 (Tenn. Crim. App., Jackson, Oct. 7, 2009); State v. Daniel Potin,
W2005-01100-CCA-R3-CD, slip op. at 5-6 (Tenn. Crim. App., Jackson, June 7, 2006), perm.
app. denied (Tenn. Nov. 13, 2006); State v. Samuel L. Giddens, No. M2002-00163-
CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Nashville, Nov. 15, 2004); State v. Timothy
Murrell, No. W2001-02279-CCA-R3-CD, slip op. at 7-9 (Tenn. Crim. App., Jackson, July
2, 2003). Here, the State established that Lieutenant Mackall possessed the requisite training
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and experience to provide expert testimony on narcotics trafficking, and the defendant does
not challenge that qualification. Instead, the defendant contends that the testimony was
inadmissible because it did not “substantially assist the trier of fact” in determining any issue
of fact. We disagree.
To obtain a conviction in this case, the State was required to prove that the
defendant possessed the 1,413 hydromorphone pills for sale or delivery. Because Lieutenant
Mackall’s testimony addressed this issue directly, it was relevant. See Tenn. R. Evid. 401.
Moreover, despite defense counsel’s concession during the bench conference that the
defendant was making no claim that the drugs were possessed for any reason other than
resale, the defendant made no such concession in front of the jury. Even if he had, however,
the State was still entitled to prove its case. See State v. Robinson, 146 S.W.3d 469, 491
(Tenn. 2004) (observing that “the prosecution’s right to prove its case . . . may not be
foreclosed by a defendant’s characterization of the proof as undisputed or by a defendant’s
offer to stipulate or concede certain factual issues”). Lieutenant Mackall’s testimony
regarding the illicit sale of hydromorphone tablets most certainly informed the jury’s
determination whether the defendant possessed the hydromorphone tablets for resale. In
consequence, the trial court did not abuse its discretion by admitting the testimony.
IV. Sufficiency
The defendant also contends that the evidence adduced at trial was insufficient
to support his convictions. We review the defendant’s claim mindful that our standard of
review is whether, after considering the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. Winters, 137 S.W.3d at 654.
Recently, our supreme court adopted the position of the United States Supreme
Court “that direct and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence.” State v. Genaro Dorantes, No. M2007-01918-SC-R11-CD,
___ S.W.3d ___, slip op. at 11 (Tenn. Jan. 25, 2011). In Dorantes, the supreme court
specifically rejected the holding in State v. Crawford, 470 S.W.2d 610 (Tenn. 1971),
requiring that in a wholly circumstantial evidence case the State “prove facts and
circumstances ‘so strong and cogent as to exclude every other reasonable hypothesis save the
guilt of the defendant, and that beyond a reasonable doubt.’” Id., slip. op at 10 (quoting State
v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)). Accordingly, the State is no longer
required to “exclude every other reasonable hypothesis save the guilt of the defendant” to
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obtain a conviction based solely on circumstantial evidence and need only establish the
constitutionally required standard of proof beyond a reasonable doubt. Genaro Dorantes,
slip op. at 12.
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.
A. Possession with intent to sell or deliver 50 grams or more of hydromorphone
“It is an offense for a defendant to knowingly . . .[p]ossess a controlled
substance with intent to manufacture, deliver or sell the controlled substance.” T.C.A. § 39-
17-417(a)(4) (2006). Hydromorphone is a Schedule II controlled substance. Id. § 39-17-
408(b)(1)(L). The term “possession” embraces both actual and constructive possession.
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). To “constructively possess”
a drug, a person must have “‘the power and intention at a given time to exercise dominion
and control over . . . [the drugs] either directly or through others.’” Id. (quoting State v.
Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)). Additionally, “it may be inferred
from the amount of a controlled substance or substances possessed by an offender, along with
other relevant facts surrounding the arrest, that the controlled substance or substances were
possessed with the purpose of selling or otherwise dispensing.” T.C.A. § 39-17-419.
Finally, where the State establishes that the violation of subsection 417 “occurs on the
grounds or facilities of any school or within one thousand feet (1,000') of the real property
that comprises a public or private elementary school [or] middle school,” the defendant is
subjected to a higher offense classification, a greater fine, and a minimum mandatory
sentence. See id. § 39-17-432.
The evidence adduced at trial established that Officer Fairbanks stopped the
defendant’s vehicle after observing that the defendant was not wearing his seatbelt. During
the traffic stop, Officer Fairbanks detected an odor of marijuana and, as a result, asked the
defendant to step out of the car. Instead of heeding the officer’s directive, the defendant
closed the car door and drove away. Officer Fairbanks caught up with the defendant’s
vehicle a short distance away, and the defendant stopped the car and surrendered to the
officer. Officers searching along the route traveled by the defendant’s car discovered a
plastic bag containing some 1,413 hydromorphone tablets weighing 127.1 grams discarded
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in a tomato patch. Officers found no other persons in the general vicinity of the bag, which
lay directly below a bridge crossed by the defendant’s car during the chase. Mr. Welch, the
defendant’s passenger and co-defendant, testified that he saw the bag containing the pills in
the car after the defendant fled from the initial traffic stop. Although Mr. Welch admitted
throwing the bag out of the window, he disclaimed any ownership in the drugs and asserted
that he had seen the pills for the first time during the chase. Other evidence established that
the defendant traveled within 1000 feet of two different schools as he fled from Officer
Fairbanks. In our view, this evidence was sufficient to support the defendant’s conviction
of possession with intent to sell or deliver 50 grams or more of hydromorphone in a school
zone.
B. Class D Felony Evading Arrest
“It is unlawful for any person, while operating a motor vehicle on any street,
road, alley or highway in this state, to intentionally flee or attempt to elude any law
enforcement officer, after having received any signal from the officer to bring the vehicle to
a stop.” T.C.A. § 39-16-603(b)(1). Evading arrest by way of a motor vehicle is a Class E
felony “unless the flight or attempt to elude creates a risk of death or injury to innocent
bystanders or other third parties, in which case a violation of subsection (b) is a Class D
felony.” Id. at (b)(3). This court has held that “[f]or such Class D felony convictions, all that
need be shown is that the defendant evaded arrest and that, in doing so, he created the risk
of death or injury.” State v. Johnny C. Menifee, No. M2005-00708-CCA-R3-CD, slip op.
at 5 (Tenn. Crim. App., Nashville, July 31, 2006) (citing State v. Payne, 7 S.W.3d 25, 28
(Tenn. 1999)).
Here, Officer Fairbanks testified that after he ordered the defendant to step out
of his vehicle, the defendant closed the door to the car and drove away. The officer did not
testify as to the defendant’s rate of speed as he left the area, and the officer caught up with
the defendant’s vehicle a short distance away despite the delay experienced as he returned
to his cruiser. The officer acknowledged that although the defendant ran a stop sign, there
were no other vehicles near the intersection and no bystanders along the route traveled by the
defendant. Although the officer stated that the defendant was driving “fast,” he did not
testify that the defendant drove in an erratic manner that might have endangered the life of
Mr. Welch as he traveled the two blocks before stopping his car a second time. The State
failed to present any proof from which the jury could have concluded that the defendant
created “a risk of death or injury to innocent bystanders or other third parties.” Consequently
the defendant’s conviction of Class D felony evading arrest must be modified to a conviction
of Class E felony evading arrest, see T.C.A. § 39-16-603(b)(3), and the case is remanded for
resentencing as to this count alone.
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V. Writ of Error Coram Nobis
Finally, the defendant complains that the trial court erred by summarily
dismissing his petition for a writ of error coram nobis. The State contends that summary
dismissal was appropriate because the defendant actually presented at trial the same evidence
he claimed in his petition to be “newly-discovered.”
A writ of error coram nobis is an “extraordinary procedural remedy,” filling
only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn.
1999) (citation omitted). Coram nobis relief is provided for in criminal cases by statute:
The relief obtainable by this proceeding shall be confined to
errors dehors the record and to matters that were not or could
not have been litigated on the trial of the case, on a motion for
a new trial, on appeal in the nature of a writ of error, on writ of
error, or in a habeas corpus proceeding. 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) (2006); see State v. Vasques, 221 S.W.3d 514, 525 (Tenn. 2007).
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.
Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).
“The writ of error [coram nobis] may be had within one (1) year after the
judgment becomes final by petition presented to the judge at chambers or in open court, who
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may order it to operate as a supersedeas or not.” T.C.A. § 27-7-103 (2000); see Mixon, 983
S.W.2d at 670 (holding that a petition for a writ of error coram nobis is untimely unless it is
brought within one year of the entry of the trial court’s “final,” or last, order; the time for
filing is not extended by the pursuit of a timely direct appeal). The decision to grant or deny
coram nobis relief rests within the sound discretion of the trial court. Vasques, 221 S.W.3d
at 527-28.
Here, the defendant sought coram nobis relief on the basis of newly discovered
evidence in the form of the transcript of Mr. Welch’s guilty plea submission hearing and an
affidavit from Mr. Welch purporting to claim full ownership of the defenestrated
hydromorphone tablets. The trial court summarily dismissed the petition, concluding that
neither the hearing transcript nor Mr. Welch’s affidavit constituted newly discovered
evidence. The record fully supports this conclusion.
The transcript of Mr. Welch’s guilty plea submission and sentencing hearing
does not qualify as newly discovered evidence because it was available to the defendant prior
to his trial and was, in fact, utilized by defense counsel during his cross-examination of Mr.
Welch. See Arthur Stamey, III, v. State, No. E2009-00996-CCA-R3-CD, slip op. at 7-9 (Tenn.
Crim. App., Knoxville, Feb. 11, 2010) (holding that evidence does not qualify as newly
discovered when it was available to defense counsel prior to trial). In addition, Mr. Welch’s
affidavit does not constitute newly discovered evidence because it is inadmissible hearsay.
The rule requiring a coram nobis petitioner to establish that newly discovered evidence may
have resulted in a different outcome “presupposes that the evidence (a) would be admissible
pursuant to the applicable rules of evidence, and (b) is material to the issues or grounds
raised in the petition.” State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).
Moreover, were we to consider Mr. Welch’s affidavit as a recantation of his
trial testimony that he did not possess the hydromorphone tablets prior to picking them up
to throw them out the window, the defendant would not be entitled to relief. A new trial may
be granted on the basis of a recantation only when:
(1) the trial court is reasonably well satisfied that the testimony
given by the material witness was false and the new testimony
is true; (2) the defendant was reasonably diligent in discovering
the new evidence, or was surprised by the false testimony, or
was unable to know of the falsity of the testimony until after the
trial; and (3) the jury might have reached a different conclusion
had the truth been told.
Mixon, 983 S.W.2d at 673 n.17. Here, the only sworn testimony offered by Mr. Welch
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occurred at the defendant’s trial and at Mr. Welch’s own guilty plea submission hearing. In
his testimony at both proceedings, Mr. Welch admitted throwing the drugs out the window
but denied having possessed them prior to doing so. In his “affidavit” attached to the petition
for writ of error coram nobis, Mr. Welch states that he did, in fact, possess the drugs all along
without the defendant’s knowledge.1 Furthermore, the defendant, who maintained all along
that the drugs belonged to Mr. Welch, cannot establish that he “was surprised by the false
testimony, or was unable to know of the falsity of the testimony until after the trial” because,
as indicated above, Mr. Welch’s trial testimony was the same as that offered at his guilty plea
submission hearing, the transcript of which was available to the defendant at his trial. In
consequence, the trial court did not err by summarily dismissing the petition for writ of error
coram nobis.
Conclusion
Because he failed to include in the appellate record the transcripts of the
hearings on his motion to suppress and to replace his appointed counsel, the defendant has
waived our consideration of those issues. Because Lieutenant Mackall’s testimony was
relevant and of substantial assistance to the trier of fact, the trial court did not err by
permitting Lieutenant Mackall to testify as an expert in the field of illegal narcotics
trafficking. The evidence adduced at trial was sufficient to support the defendant’s
conviction of possession with intent to sell or deliver 50 grams or more of hydromorphone
in a school zone but was insufficient to establish that the defendant created a risk of death
or injury to bystanders or other third parties when he fled from Officer Fairbanks, resulting
in the defendant’s conviction of Class D felony evading arrest being modified to Class E
felony evading arrest. Finally, because the defendant failed to establish that Mr. Welch’s
unsworn affidavit and guilty plea submission hearing testimony qualified as newly
discovered evidence, the trial court did not err by summarily dismissing his petition for writ
of error coram nobis. Accordingly, the judgments of the trial court are affirmed as modified.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
1
Although a page containing a notary signature and seal follows Mr. Welch’s affidavit, nothing
actually indicates that the notary signature and seal belong with the affidavit.
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