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
4
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
10