10/23/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 11, 2017
STATE OF TENNESSEE v. DERRICK RICHARDSON
Appeal from the Criminal Court for Hamilton County
No. 298242 Barry A. Steelman, Judge
___________________________________
No. E2016-02293-CCA-R3-ECN
___________________________________
On December 10, 1992, Derrick Richardson, the Petitioner, was convicted of first degree
felony murder and sentenced to life. On appeal, this court affirmed the Petitioner’s
conviction. See State v. Derrick Richardson, No. 03C01-9305-CR-00165, 1994 WL
247114, at *1 (Tenn. Crim. App. June 9, 1994), perm. app. denied (Tenn. Sept. 12, 1994)
(concurring in results only). The Petitioner filed a petition for writ of error coram nobis
based on the affidavits of three individuals who claimed that one of the State’s “key
witnesses,” LaKeysh Davis, lied about seeing the Petitioner shoot the victim because she
was inside her home and could not have seen the location where the shooting occurred.
The Petitioner claims that the information provided by the affiants is newly discovered
evidence. Following a hearing, the coram nobis court denied coram nobis relief. We
affirm.
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 JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.
Donna Miller, Chattanooga, Tennessee, for the appellant, Derrick Richardson.
Herbert H. Slatery, III, Attorney General and Reporter; Benjamin A. Ball, Senior
Counsel; M. Neal Pinkston, District Attorney General; and Lance Pope, Assistant District
Attorney, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
This court on direct appeal summarized the facts as follows:
. . . In the early morning hours of December 8, 1993,1 the
[Petitioner], Gregory Strong, Stanley Gillespie, and Calvin Johnson were at
or near the Heaton Street residence of LaKeysh Davis, the mother of
Johnson’s son. Apparently upset because Davis’ husband had been shot
only a short while earlier, all of the men were armed with guns. The
victim, Louie Dwight, stopped his vehicle, approached the [Petitioner] and
Strong as they stood on the side of the street, and asked to buy drugs. The
[Petitioner], armed with a .38 pistol, and Strong, carrying a pump shotgun,
fired several shots, took the victim’s money, and threw his wallet on the
ground.
Johnson testified that he and Gillespie heard the shooting and
approached the scene. Johnson carried an AK47 assault rifle and Gillespie
had a .380 pistol. Each fired shots. Either the [Petitioner] or Stanley
Gillespie, or both, shot the victim in the legs. The victim got into his
vehicle to leave, stopped, and returned to retrieve his wallet. He then drove
away. After a short distance, however, the victim lost consciousness and
wrecked. He died due to multiple gunshot wounds to his legs.
The Hamilton County Medical Examiner testified that the victim
was struck by three bullets; there were two wounds in the right leg. A shot
to the left leg pierced its main artery. All shots that struck the defendant
were fired by low velocity weapons: a .38 or a .380.
Ms. Davis stated that the [Petitioner], Gillespie, and Strong
participated in the robbery. She testified that the [Petitioner] held his
weapon on the victim, took his wallet, and shot him in the leg. Strong
testified that he and the [Petitioner] never had any kind of agreement to rob
the victim and blamed the [Petitioner] for that offense. During the pretrial
investigation, Strong stated that the [Petitioner] had shot at the victim’s
legs; at trial, he said he did not know who fired the shots that actually
struck the victim.
1
This date is incorrect. The record shows that the homicide occurred on December 8, 1991, and
the Petitioner was convicted on December 10, 1992.
-2-
The [Petitioner], who told officers he fired his weapon twice,
admitted having shot at the victim’s truck but denied shooting the victim.
While conceding that the victim handed him the wallet, the [Petitioner]
testified that Strong took the money and was responsible for the robbery.
At that point, he said, Johnson and Gillespie arrived. The [Petitioner]
claimed Johnson shot at the victim’s truck while Gillespie fired the fatal
shots.
Id. at *1 (footnote added).
The Petitioner then filed a petition for post-conviction relief, claiming trial counsel
was ineffective for, among other things, failing to interview four witnesses named in a
statement given to police by co-defendant Calvin Johnson and for failing to call his
brother, Tony Richardson, and his mother, Ernestine Richardson, as witnesses. On
appeal from the post-conviction court’s denial of relief, this court addressed this issue, as
follows:
[The Petitioner] contends that Tony Richardson could have rebutted
the testimony of La[K]eysh[]2 Davis, a crucial prosecution witness. At [the
Petitioner’s] trial, Ms. Davis testified that she observed from her front
porch the events surrounding the robbery and subsequent murder of the
victim. Tony Richardson was prepared to testify that, at the time of the
murder, he was standing in the doorway of La[K]eysh[] Davis’ apartment
and that she was upstairs in her bedroom rather than on her front porch.
However, Richardson also testified that he could not see the events
surrounding the murder because his view was obstructed by a van which
was parked between him[] and the location of the robbery and murder.
[Trial counsel] explained that he opted not to call Tony Richardson because
Richardson had not observed the murder. Moreover, [trial counsel] claimed
that no one had informed him that Tony Richardson was prepared to refute
[Ms.] Davis’ statement that she witnessed the murder from her front porch.
Finally, [trial counsel] emphatically stated that had Tony Richardson been
able to clearly observe the robbery and the shooting of the victim, [trial
counsel] definitely would have called Richardson as a witness.
At the post-conviction hearing, Ms. Richardson stated that had she
been permitted to testify at her son’s trial, she would have recounted a
conversation between herself and [Ms.] Davis which occurred
2
Throughout the post-conviction appeal opinion LaKeysh Davis is referred to as Lakeysha Davis.
Ms. Davis spelled her name at the trial as LaKeysh, and we will refer to her by LaKeysh.
-3-
approximately three days before the commencement of the trial. According
to Ms. Richardson, [Ms.] Davis told her, “M[]s. Richardson, wait a minute,
I have something to tell you. I’m sorry, I didn’t see nothing, I don’t know
nothing. Calvin told me to get up there and lie like that, said if I didn’t, he
would have no more use for me and my baby.” At the post-conviction
hearing, however, both [trial counsel] and Mrs. Richardson testified that
Mrs. Richardson never disclosed this information to [trial counsel] at any
time prior to [the Petitioner]’s trial.
With regard to the four witnesses mentioned above, [trial counsel]
explained that he had not interviewed them because they could not be
located and because he “had no leads about finding any of them.” Under
these circumstances, we find no deficient representation. Again, [the
Petitioner] has also failed to show a reasonable probability that the result of
his trial would have been different had these witnesses been called.
Derrick Richardson v. State, No. 03C01-9605-CR-00186, 1998 WL 18199, at *3-4
(Tenn. Crim. App. Jan. 21, 1998) (footnote added), perm. app. denied (Tenn. June 8,
1998).
The Petitioner also filed a petition for writ of habeas corpus, which included as
one of the grounds for relief that “the [S]tate relied upon perjured testimony to support
the conviction[.]” Derrick Richardson v. Virginia Lewis, Warden, No. E2005-00817-
CCA-R3-HC, 2006 WL 3479530, at *1 (Tenn. Crim. App. Dec. 1, 2006), no perm. app.
filed. The habeas corpus court summarily dismissed the petition. Id. On appeal, this
court determined that the trial court correctly found that the claims were not cognizable
“because, even if proven, they would render the judgment merely voidable and not void.”
Id. at *2.
The Petitioner next filed two motions to reopen his post-conviction case, the first
filed in 2009 and the second filed in 2014. See Derrick Richardson v. State, No. E2014-
01554-CCA-R3-PC, 2015 WL 1305759, at *3 (Tenn. Crim. App. Mar. 20, 2015), no
perm. app. filed. The trial court discovered the unresolved 2009 motion after the
Petitioner filed his 2014 motion to reopen. Id. The 2009 motion claimed, in part, that
Ms. Davis was willing to recant her trial testimony and that her willingness to recant was
“new, scientific evidence of [the Petitioner’s] innocence.” Id. The trial court treated the
2009 motion as a petition for writ of error coram nobis and ordered the Petitioner to
submit an affidavit from Ms. Davis within 60 days. Id. The Petitioner failed to file a
signed affidavit from Ms. Davis, and the court dismissed both motions. Id. This court
dismissed the appeal because the Petitioner failed to file an application for permission to
appeal the denial of the motion to reopen post-conviction proceedings. Id. at *4.
-4-
Petition for Writ of Error Coram Nobis
On April 11, 2016, the Petitioner filed a Petition for Writ of Error Coram Nobis
claiming that he should be granted relief based on newly discovered evidence. In support
of his petition, the Petitioner filed the affidavits of three purported witnesses who claimed
that Ms. Davis could not have seen the Petitioner shoot the victim:
(1) Tony Richardson claimed that he was on the porch of Ms. Davis’
apartment and saw the Petitioner, Gregory Strong, Calvin Johnson, and
Stanley Gillespie go inside Ms. Davis’ apartment. A few minutes later, Mr.
Strong and the Petitioner exited and walked down the street. He stated a
“maroon Cherokee pulled up,” and the victim got out “and walked up on”
the Petitioner. Mr. Richardson said that he overheard the Petitioner “say
loudly from the side of the Cherokee, ‘man I don’t sell dope.’” He said,
“That’s when I heard a BOOM, [but] I couldn’t see because they were on
the other side of the Cherokee.” Then Mr. Gillespie and Mr. Johnson
“came from behind the apartment,” and Mr. Richardson heard gun shots
“but didn’t see who shot what.” He claimed Ms. Davis “was inside her
apartment and ran upstairs with her baby and Tinika Bates when they heard
the first shots.”;
(2) Tinika Bates claimed that she was sitting on the couch with Ms.
Davis who had “her newborn in her arms,” when the Petitioner, Mr. Strong,
Mr. Gillespie, and Mr. Johnson came in and told them that her brother,
Larry Smith, had “just been shot [] at a club named Henrys.” She stated
that, about fifteen minutes later, the Petitioner and Mr. Strong “went
outside where [Mr.] Richardson was on the porch.” Ms. Bates stated that,
“shortly after,” they heard gun shots, and she and Ms. Davis “took the baby
upstairs, while Mr. Johnson and Mr. Gillespie went out the back door.”
She said, “While [Ms. Davis] and myself [were] under the bed with the
baby, we heard all kinds of gun shots go off[.]”; and
(3) Fred Conyers affirmed that he “was standing on the other side of
the street and a few minutes later, a man in a maroon truck[-]like jeep
pulled up[,] and the man got out of the truck and start[ed] walking up on
[the Petitioner] asking to buy crack cocaine.” He stated that the Petitioner
“told the man that he [didn’t] sell crack cocaine but the man kept walking
up on [the Petitioner], and [the Petitioner] back[ed] up and pulled out a gun
and told the man to back up off him and the man step[ped] to the right and
[the Petitioner] shot the driver’s side door and the driver’s side back tire.”
-5-
Mr. Conyers stated that a “few second later, Mr. Strong shot his gun in the
air and told the man to leave[,] but the man handed [the Petitioner] his
wallet and [the Petitioner] handed the wallet to [Mr. ]Strong, and [Mr.
S]trong threw the wallet on the ground.” He said that a “few minutes later
[Mr.] Johnson and [Mr.] Gillespie came from behind the project complex
and [Mr. Johnson] started to shoot the man[’s] truck/jeep up and [Mr.
Gillespie] started to shoot the man in the legs for no reason.”
Coram Nobis Hearing
The coram nobis court conducted a hearing over the course of three days. On July
25, 2016, seven witnesses, including affiants Fred Conyers and Tony Richardson,
testified.3 Mr. Conyers testified that he grew up in the same area as the Petitioner. He
said that, on the day of the homicide, he was “just hanging out in the projects, about 3
a.m., so . . . the club just closed and everybody [was] just out chilling.” He saw the
victim drive up to where the Petitioner and Mr. Strong were standing and asked to buy
drugs. He could see what was happening, but he could not hear their conversation. He
said that the events occurred “kind of” near Ms. Davis’ house and that, when the first shot
was fired, he ran for cover. He did not remember seeing Ms. Davis. He stated that
Stanley Gillespie and Calvin Johnson “were the ones doing all of the shooting[,]” and
they “were basically the ones that actually shot [the victim].”
On cross-examination Mr. Conyers stated that he was in federal prison on drug
charges when he learned by watching the news that the Petitioner had been convicted of
felony murder. He initially stated that he was convicted of federal drug charges in May
or June of 1991. He later stated that he was arrested in May or June of 1991 and
remained continuously incarcerated in the county jail for seventeen months until his jury
trial. After he was convicted, he remained in federal custody until 2000.
Tony Richardson, the Petitioner’s older brother, testified that he was subpoenaed
by the State for his brother’s trial, but he was never called as a witness. He stated that he
was standing on Ms. Davis’ front porch when the victim’s brick-colored Jeep pulled up;
Ms. Davis was upstairs with her newborn child and Ms. Bates. He heard the Petitioner
tell the driver of the Jeep, “I don’t sell drugs.” He stated that the Petitioner, Mr. Strong,
and the driver of the Jeep moved around to the other side of the vehicle “where [he]
couldn’t see,” and he heard a “pow.” He said that “[a]fter Calvin [Johnson] and Stanley
3
Thomas Eustice of the Hamilton County Sheriff’s Department testified at the first hearing that
he placed a subpoena for Ms. Davis and Ms. Bates in the United States mail. Ms. Davis and Ms. Bates
did not appear at the hearing on July 25. The coram nobis court found that mail service of process was
not sufficient and granted a continuance so that the Petitioner could attempt to personally serve Ms. Davis
and Ms. Bates.
-6-
[Gillespie] came around from the back of the house and they went to the other side of the
truck too, then [he] heard a lot of shots.”
Ernestine Richardson, the Petitioner’s mother, testified that in 2013, Ms. Davis
told her that “she did not see anything.4 She was [] under the bed with her two-month-old
son.” Ms. Richardson took the information to Detective Kilgore, and Ms. Richardson
was later notified that a detective had spoken with Ms. Davis and that Ms. Davis
maintained that her testimony was true. Ms. Richardson claimed that Ms. Davis had been
forced to lie at trial by her baby’s father, Calvin Johnson, and others. She said that Mr.
Johnson was charged in the homicide, but he received probation. On cross-examination,
Ms. Richardson stated that she did not remember testifying at the post-conviction
hearing.
Curtis Mapp testified that he was a childhood friend of the Petitioner. He said the
Petitioner contacted him from prison and asked him for help in finding witnesses who
could state that Ms. Davis gave false testimony during the Petitioner’s jury trial. He
spoke to several people and prepared affidavits from what they told him. He said he
carried the affiants to a notary where the affidavits were signed.
The Petitioner testified that he and a few of his friends were at a club called
Henry’s and that, after it closed, “[they] all went back to the projects” where Larry Davis,
Ms. Davis’ husband, was shot. The Petitioner and Mr. Strong went to Ms. Davis’ house
to tell her about the shooting; Mr. Johnson and Mr. Gillespie also came to the house.
While the Petitioner and Mr. Strong were outside smoking a cigarette, the victim pulled
up, got out of his Jeep, and asked to buy some crack. The Petitioner said that the victim
“still was walking up on [him] so [he] shot the back tire[]” of the victim’s Jeep because
he felt scared. He said that Mr. Strong then “shot up in the air” and told the victim to
“get up out of here.” The Petitioner said that, after he shot the victim’s back tire, the
victim handed his wallet to the Petitioner, who handed it to Mr. Strong; Mr. Strong then
threw the wallet on the ground, and Alonzo Richardson picked the wallet up. The
Petitioner said that when “[Mr.] Gillespie and [Mr.] Johnson came around the corner
from behind the house[,] . . . [Mr.] Johnson just started shooting the truck for no reason,
and [Mr. Gillespie] shot him in the leg for no reason.” The victim “drove down the street
for a minute and stopped the truck and walked back down the street and said, man, where
[is] my wallet at?” The Petitioner claimed that Mr. Freeman handed the wallet to the
victim, who walked back to his vehicle and drove away.
4
Ernestine Richardson was Ernestine Freeman at the time of the coram nobis hearing. We will
continue to refer to her as Ms. Richardson to avoid confusion.
-7-
The Petitioner said that he contacted Ms. Bates’s brother, Larry Smith, when Mr.
Smith was released from federal prison, and Mr. Smith told him that Ms. Bates said that
Ms. Davis was upstairs when the victim was shot and did not see anything.5 The
Petitioner noted that Mr. Strong, Mr. Gillespie, and Mr. Johnson all received sentences
that were more lenient than his sentence for their involvement in the offenses.
Cameka Bruce testified that she worked in the major crimes division of the
Chattanooga Police Department. She spoke with Ms. Davis on February 24, 2015, after
Ms. Richardson reported that Ms. Davis had recanted her testimony. Officer Bruce could
not discern any difference between what Ms. Davis told her and Ms. Davis’ testimony.
Her report was entered into evidence as Exhibit 4 without objection. The report stated:
Ms. Richardson reported she came in contact with the witness, [Ms.]
Davis, who testified during her son’s trial a few years ago. Ms. Richardson
reported Ms. Davis stated she lied on the stand during her trial. Ms.
Richardson claims Ms. Davis stated she never witnessed any of the events
she reported to Police and testified to during the trial.
....
Inv. Puglise and I spoke with Ms. [Davis] on the front porch of her
residence at the address listed above. Ms. [Davis] reported her statement to
Police and testimony during the trial remains the same. Ms. [Davis]
reported she has received threatening letters from [the Petitioner] while he
has been in prison. Ms. [Davis] reported [the Petitioner] demanded she go
to the District Attorney’s office and change her statement or he would send
people he knows (Gangster Disciples) after her. Ms. [Davis] stated she
disposed of the letters after reading them. Ms. [Davis] reported she moved
to her current residence in an attempt to get away from threats against her.
Upon completion of the follow-up investigation, there’s no new or
additional information to be taken into consideration pertaining to this case.
Ms. Davis testified on August 18, 2016. She was first examined by the court
about failing to appear on August 15, 2016.6 She denied being served a subpoena, which
the court found to be untrue. Her bond was set at $10,000, and she was removed
temporarily from the courtroom. Before exiting, she stated that she did not remember
testifying at trial. Ms. Davis was brought back into the courtroom and was sworn as a
5
The record does not contain the date Mr. Smith was released from federal prison.
6
On August 15, 2016, Steve Duncan testified that he served the subpoena on Ms. Davis and tried
unsuccessfully to serve Ms. Bates with a subpoena on nine separate occasions. When Ms. Davis failed to
appear on August 15, the coram nobis court issued a capias for Ms. Davis.
-8-
witness. When asked by the coram nobis court if she could make the $10,000 bond, Ms.
Davis stated: “I can’t. I don’t care what y’all do to me. Y’all already endangered me
and my family’s life. They already tried to kill my son. I don’t care. It doesn’t matter to
me.” Ms. Davis refused to say who tried to kill her son or who had threatened her. The
coram nobis court then explained that Ms. Davis was in custody because she failed to
cooperate with the coram nobis court’s orders. Ms. Davis was again removed from the
courtroom. After extensive discussion with counsel and at the request of the Petitioner,
the coram nobis court admitted the transcript of Ms. Davis’ trial testimony as Exhibit 9.
Ms. Davis was brought back into court, and the Petitioner was recalled as a
witness. He claimed that he was not criminally responsible for the murder because there
was “no common design between two or more people” to rob the victim. Following the
Petitioner’s testimony, the coram nobis court announced that it would take the matter
under advisement. However, after further discussion, Ms. Davis was recalled as a
witness and the following exchange took place:
[THE STATE:] And where were you at when you first heard
gunshots?
[MS. DAVIS:] I was standing in my front room, me and Mr.
Johnson. [The Petitioner’s] brother, Tony Richardson, was on my front
porch. Me and Mr. Calvin Johnson w[ere] in my house. We heard arguing,
then we heard gunshots. I let Mr. Calvin Johnson out of my house. He ran
to see what was going on. Mr. Tony Richardson told me to lock my doors
and grab my boys, because I had two of them, grab my boys and go hide.
So I grabbed my boys, went upstairs, put them in the bath tub, went
in my bedroom, looked out the window, and every last one of them, [Tony]
Richardson, Mr. Johnson, every last one of them shot that man. They
robbed that man and they shot that man. Every last one of them shot that
car up. Every last one of them. Every last one of them.
[THE STATE:] You saw this from - -
[MS. DAVIS:] I s[aw] it all. Every last one of them, [the
Petitioner], Mr. Johnson, [Mr.] Gillespie, every last one of them . . . robbed
that man and they shot that man and that man got back in his car and they
started shooting at him. He had a green truck. Every last one of them did.
And they all need to be in jail, every last one of them do [sic], because they
didn’t have [any] business bothering that man.
-9-
Coram Nobis Court’s Order
The coram nobis court issued a detailed order going through the case history and
the testimony of the witnesses at the hearings. The coram nobis court found that “[a]t all
relevant times, the [P]etitioner knew that his brother was on Ms. Davis’ porch during the
incident and was a potential witness.” The coram nobis court ruled that Mr. Richardson’s
evidence was not newly discovered and faulted the Petitioner “for not presenting it before
now.” The coram nobis court also noted that “at all relevant times, the [P]etitioner knew
or had reason to know from his own and his brother’s observations that [Ms. Bates] was
upstairs with Ms. Davis during the incident and was a potential witness.” Concerning
Mr. Conyers’ evidence, the coram nobis court found that “neither party was aware that
Mr. Conyers was in the alley during the incident until his conversation with Mr. Mapp
early this year.” The coram nobis court “regard[ed] this evidence as newly discovered,
d[id] not fault the [P]etitioner for not presenting it before now, and f[ound] that due
process preclude[d] strict application of the statute of limitations.” However, the coram
nobis court determined that there was no reasonable basis to conclude that Mr. Conyers’
evidence, had it been presented at trial, would have led to a different result and dismissed
the petition. The Petitioner timely appealed.
Analysis
On appeal, the Petitioner claims that the coram nobis court erred in finding that the
newly discovered evidence did not warrant a new trial because the coram nobis court
based that finding on only a portion of the trial testimony. The State argues that the
coram nobis court acted within its discretion in determining that there was no reasonable
basis to conclude that the newly discovered evidence, had it been presented at trial, would
have led to a different result. We agree with the State.
Error Coram Nobis Relief
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). Tennessee Code Annotated section 40-26-105(b) provides that coram
nobis relief is available in criminal cases as follows:
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
- 10 -
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.
Unlike the grounds for reopening a post-conviction petition, the grounds for
seeking a petition for writ of error coram nobis are not limited to specific categories. See
Harris v. State, 102 S.W.3d 587, 592 (Tenn. 2003). “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.” Id. at 592-93. Coram nobis claims are “singularly fact-
intensive,” are not easily resolved on the face of the petition, and often require a hearing.
Id. at 593.
[I]n a coram nobis proceeding, the trial judge must first consider the newly
discovered evidence and be ‘reasonably well satisfied’ with its veracity. If
the defendant is ‘without fault’ in the sense that the exercise of reasonable
diligence would not have led to a timely discovery of the new information,
the trial judge must then consider both the evidence at trial and that offered
at the coram nobis proceeding in order to determine whether the new
evidence may have led to a different result.
State v. Vasques, 221 S.W.3d 514, 527 (emphasis in original). In determining whether
the new information may have led to a different result, the question before the court is
“whether a reasonable basis exists for concluding that had the evidence been presented at
trial, the results of the proceedings might have been different.” Id. (citing State v.
Roberto Vasques et al, No. M2004-00166-CCA-R3-CD, 2005 WL 2477530, at *13
(Tenn. Crim. App. Oct. 7, 2005)). The decision to grant or deny coram nobis relief rests
within the sound discretion of the trial court. Id. at 527-28.
Newly Discovered Evidence
We agree with the coram nobis court’s finding that “[a]t all relevant times,7 the
[P]etitioner knew that his brother [Tony Richardson] was on Ms. Davis’s porch during
the incident and was a potential witness.” The coram nobis court correctly determined
that Mr. Richardson’s testimony was not newly discovered evidence. We also agree with
the coram nobis court’s finding that “at all relevant times, the [P]etitioner knew or had
reason to know from his own and his brother’s observations that [Ms. Bates] was upstairs
7
The Petitioner should have known by the date of his jury trial that his brother was on Ms. Davis’
porch and certainly knew by the time of his post-conviction relief hearing when his brother testified
concerning his and Ms. Davis’ location during the homicide.
- 11 -
with Ms. Davis during the incident and was a potential witness.” The trial court correctly
determined that the information in Ms. Bates’s affidavit was not newly discovered
evidence.
The coram nobis court found Mr. Conyers’ testimony to be newly discovered
evidence. Mr. Conyers initially testified at the coram nobis hearing that he was convicted
of federal drug offenses in May or June of 1991. He later stated that he was arrested in
May or June of 1991 and remained in custody for seventeen months until his trial, and
that following his conviction, he remained incarcerated until his release from prison in
2000. Under either version of Mr. Conyers’ testimony, he was incarcerated on December
8, 1991, when the homicide he claimed he witnessed was committed. Mr. Conyers could
not have observed the homicide or the location of Ms. Davis during the homicide.
Although Mr. Conyers’ evidence may have been newly discovered by the Petitioner, its
veracity is highly questionable.
Effect of Newly Discovered Evidence on Verdict of Guilty
Although the coram nobis court did not have before it the entire trial transcript, the
coram nobis court did have access to the following evidence: the testimony of numerous
witnesses at the coram nobis hearing; various exhibits; the opinions of this court from the
direct appeal, the post-conviction relief appeal, the habeas corpus appeal, and the appeal
from the motion to reopen post-conviction relief proceedings; and the transcript of Ms.
Davis’ testimony. The coram nobis court had more than sufficient evidence to make the
necessary findings and to render its decision. The trial court summarized its reasoning
for determining that there was no reasonable basis to conclude that Mr. Conyers’
evidence had it been presented at trial would have led to a different result, as follows:
[T]he [P]etitioner admitted firing first, firing two shots at the
victim’s vehicle before the arrival of shooting co-defendants, and the
petitioner did not explain why the victim handed him the victim’s wallet or
why he apparently passed the wallet to co-defendant Strong instead of
returning it to the victim. Thus, contrary to his assertions, his own trial
testimony implicates him in robbery.
Furthermore, none of the evidence in issue, newly discovered or not,
including the [P]etitioner’s, his brother’s, or Mr. Conyers’s testimony,
satisfactorily explains the [P]etitioner’s actions. Arguably, the brother’s
account of everyone’s movement to the other side of the truck inculpates
the [P]etitioner even more, contradicting the [P]etitioner’s and Mr.
Conyers’s belated explanations that the [P]etitioner fired shots to
discourage the victim’s approach by suggesting that the [P]etitioner and co-
- 12 -
defendant Strong pursued the victim around the vehicle, back to the driver’s
door.
Nor does the newly discovered evidence concern the [P]etitioner’s
criminal responsibility for the conduct of the late-arriving actors. Thus, if
the evidence of his criminal responsibility was sufficient, it remains so.
The coram nobis court did not abuse its discretion in determining that there was no
reasonable basis to conclude that Mr. Conyers’ evidence had it been presented at trial
would have led to a different result.
Conclusion
The judgment of the coram nobis court is affirmed.
_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
- 13 -