### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jul y 14
, 200 9

BER NA RD O LA NE v. ST ATE OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty Nos. 94-11344-49, P- 24886 James M . Lammey, Jr ., Judge

No. W2008-02504-C CA-R 3-CO - Filed De cem ber 11, 2009

The pe titioner, Be rnar do L ane, a ppeals the de nial of re lief fr om his petiti on for wr it of err or cor am nobis. He wa s convicted of first deg ree felony murder, f irst deg ree preme ditated murder , and four counts of ag g ravated robber y

. On appea l, he argues that he has rec eived newly discovere d evidenc e in the form of a

n aff idavit signe d by

a code fenda

nt, which purports to exonerate the petitioner fr om all wrong doing. A fter c are ful revie w, we a ffirm the de nial of er ror c oram nobis re lief.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of t he court, in which N OR MA M C G EE O GLE and A LA N E. G LE NN , JJ., joined.
Robert Brooks, Memphis, Tennesse e, for the appe llant, Bernar do Lane

.
Rob e rt E. Coo pe r, Jr.
, At torn e y G e ne ra l a ndRe po rt e r; La c y W ilb e r, As sis ta nt A tto rn e y G e ne ra l; W ill ia m L

. Gi bb on s, Di stric t At torne y Ge ne ra l; a nd Da vid Za k, As sis ta nt Di stric t At torne y G e ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

Th is c ourt

summa ri zed the fo llo wi ngfa c ts o n d ir e c t a pp e a l:

The fa cts in this case re veal that on Dec ember 27, 1993, there was a home invasion at 6858 B irch Run L ane in Me mphis, Tennessee , during which four individuals were robbed. The four victims wer e B illy Mosley , h i s wi fe Ar tis Mosl ey , their daug hter Dany ale Da

vis, and their son Ke nneth Mosley . Duringthe robbe ry , Kenne th Mosley

wa s sh ot o nc e in t

he ba c k a nd kil le d. Pol ic e de ve lop e d th e fo llo wi ngfo ur su sp e c ts in the cri m es : Def

endant Ha

nna, De fenda

nt L ane, A ndre H amilton, and Der rick Coleman.

. . . .-2-

Th e fa c ts p re se nte d at tr ia l r e ve a le d th a t in De c e mbe r 19 93 , B ill y

Mo sle y liv e d w ith his wi fe Ar

tis Mo sle y , his son Ke nn e th Mos le y , an d h is s te pd a ug hte r D any a le Da

vis at 6858 Birc h Run L ane in Memphis, Tenne ssee. On t he eve ning of Dec ember

27, 1993, he and Ms. Mosley

had g one to bed a

nd Kenne th Mosley had gone out bowling

and /or to a wr e stl ingmatc h. Ke nn e th re tur ne d home be tw e e n 10:0 0 an d 10:3 0 p .m. Shortly there afte r, Billy Mosley hear d a loud “bump” and then he he ard sc rea ming in the house. B illy Mosley g ot out of bed, and as he opened hi s bedroom door, a man pu t a g un in h is fa c e and tol d him t o g e t ba c k in the be dr oo m. K e nn e th M os le y a lso told his dad to re turn to his bedroom. During this time, B illy Mosley hear d someone y e lli ngto K e nn e th M os le y , “ Whe re ’s the m on ey , wher e ’s the damn d op e .” B ill y Mosley and his wife r etre ated to the bathroom off of their bedroom. They then hea rd a sing le g unshot and Mrs. Mosley ran out of t he room. Billy Mosley hear d someone ye l l a th i s w i f

e t o g e td o w no nt h e f

l o o r

. S h o rt l y t h e r e a f

t e r , h e h e ar d

s o m e o n e s ay, “We’ve been in this house t oo long, let’s g et out of her e.” B illy Mosley emer g ed a short t i m e later to find Kenne th Mosley ly ing on the floor fa ce down, having been shot in the back. He also noticed that his front door had bee n broken dow n.

B ill y Mo sle y dis c ov e re d that his wa lle t and pa g e r, wh ic h h a d b e e n o n th e dr e sse r i n his bedroom, wer e missing. He testified t h at Kenne th Mosley looked as if he had been se arc hed bec ause his clothes w ere “open,” and his pants pocke ts were turned ins ide ou t. Mo sle y wa s un a ble to f ind the je we lr

y wh ic h K e nn e th M os le y

no rm a lly

wo re . Ag a llo n ju g of

c oin s th a t ha d b e e n o n th e fl oo r at th e fr on t do or wa s a lso missing. Mr. Mosley

testified th at he had once ove rhea rd an a rg ument betwee n Kenne th Mosley

and an individual called “Nardo.” Although B illy Mosley was not very familiar with Na

rdo, he te stified that Nar do had once come to the house and lef t

a no te fo r K e nn e th. Ho we ve r, he c ou ld not re me mbe r the e xac t dat e of Na rd o’ s v isi t. T h e n o t e, wh i ch wa s ad m i t t edat t ri al
, s t at edt h e f o l l o wi n g:
Say ma[ ]n y ou need to c all me soon as possible bec ause I don’t know what y ou pulling. [ I ] told y ou Iwas on my way and y ou said y ou was not goingno w[h] ere . I ’m not asking y ou n o m o re. It’s been a straig ht month and this i s last time. Don’t take this as a [threat]. You just need [to] stop play ing. I ’m not playing no mor e. [phone number]

On cr oss-examination, Billy Mosley stated that he only caug ht a g limpse of the man wh o p ut a

g un in h is f a c e . T hat ma

n h a d n othin g co veri ng his fa c e . M os le y a lso te sti fi e d th a t he wa s n ot harm e d dur ing the inc ide nt. He sa id t hat th e g un sh ot c a me
a ft e r t he int ru de rs ha d b e e n in

the ho us e a

pp ro xima te ly

fi ve min ute s.
Artis Mosley , Kenne th’s mother, testified to much of the same events as her husband. She sai d t hat she he ard he r daug hter say , “Please don’t hurt me,” a nd that she then

ra n o ut o f t he bathr oo m and

be dr oo m to the liv ingro om. A m an th e n p ut a g un in her f ace and instructed he r to lie down on the floor

. One of the i ntruders had a towe l-3-

cover ing his fa ce. She obse rved he r son lying on the fl o or. She saw a nother man with a g un ransa cking an adja cent be droom. The man w ith a towel over his face took Mrs. Mosley ’s ring s from her fing ers. Mrs. Mosley testified further that Na rdo had called the ir house on seve ral oc casions. S h e said that the voic e of the man with a towel over

his face sounded like that of Na rdo.

Dany ale Da

vis, Kenneth’s stepsister , test i fi ed that she had discove red she was preg nant ea

rlier on the da

y of the home inva sion. She stated that she wa s o n the telephone in he r bedr oom when she hear d the l oud cra sh that night. She we nt to her bedroo m d o o r an d as she r eac hed it, the door wa s thrown open a nd she saw a

man with a towel over his f

ace holding a g un. The man took money from her purse a nd proce eded to m o v e h er a

bout the house, instructing her to “ find the dope mone y .” Ms. Davis as ked the man not to hurt he r bec ause she was pre g nant, and the ma n replied, “ well, find the dope money .” They proce eded throug h the house looking f or
mon e y , and as the y

did so , M s. Da

vis sa w K e nn e th M os le y

lyingon the fl oo r w ith a man standingover him holding a gun.

Fo l l o wi ng the shooting, Ms. Da vis was shown two photo arr ay s by Serg eant Richardson. She identified D efe ndant Hanna in one of the ar

ray s and De fenda

nt L ane in the othe r one. She further ide ntified both Defe ndants in court as the pe rp e tr a tor s. Ho we ve r, Ms. Dav is was un a ble to s ay wh o a c tua lly

sh ot K e nn e th Mosle y

. M s

. D a v is a ls o id e n ti f ie d K e n n e th M o s le y ’ s a d dr e s s b o o k a t tr ia l. That addre ss book had a listing f or Nard o and phone numbe r next to hi s name. That number matc hed the t el ep h o n e number on the note lef

t with Billy

Mosley for K e n n e t h M o s l e y.
Serg eant Richa

rdson testified that he le arne d that the t elephone number listed beside the name Na

rd o in Ke nn e th M os le y ’s a dd

re ss bo ok and on the no te le ft fo r K e nn e th Mosley , belong ed to a pa g er r eg istered to De fenda nt L ane. While at De fenda nt L ane’ s home, the police called the number and observe d a page r come vibrating out fr om u nd e r a c he st o f d

ra we rs . D e fe nd ant L ane a dmi tte d th a t th e pa g e r w a s h is.

Serg eant Richardson also explained that he took statements from De fenda nt Hanna and Andr e Ha

milton. Hamilton indicated that it was Hanna and L ane who enter ed the Mosley home. He also indicated the purpose of g oing to the Mosley home was to ge t money . After

waiting in the car

for a t i m e, Hamilton and Der rick Coleman approa ched the home. As they did so, the y hear d a g unshot. Hamilton the n returne d back to the vehicle. Def

endant Hanna’ s statement i ndicated that Hanna w as indee d inside th e M o s le y

h o me

. A c c o r d in g to D e f e n d an t H ann a , h e w a s in

a b a c k r o om wh e n h e he ard

a g un sh ot. De fe nd ant H a

nn a a dmi tte d th a t th e y

we re a ll g oin g to s pli t t h e m o n e y, b u ts t a t e d

t h a th e d i d

n o tf i n d an y m o n e y.
Serg eant Richa

rdson also re trieved live .380 c aliber Winchester ammunitio n from-4-

Def endant Ha

nna’s r es idence . Duringthe cour se of a n interview w ith Derric k Coleman, Serg eant Ri ch ardson learne d that a .380 handgun was missing f rom the Co l em an h o u s eh o l d

. C o l em an ’s m o t h er gav e S er gea n tR i ch ar d s on ammunition from the spare clip to the g un. Serg eant Richa rdson sent this ammunition t o the Tenne ssee B ur e a u o f I nv e sti g a tio n f

or te sti nga g a ins t th e bu lle t r e c ov e re d fr om K e nn e th Mosley ’s body

and the spe nt shell recove red f rom the Mosl ey h ome. Def endant Ha n n a a dm i t t e d t o h av i n g p o s s es s eda . 3 8 0 h an d gu no nt h e n i gh to f t h e s h o o t i n g. Serg eant Richa

rdson also testified that a towel matchingthe desc ription of the one

worn by one of the intruders was rec overe d from the vehicle driv en b y An dre Hamilton on the night of

the shooting.

Rob e rt Ro y se , a

fo re ns ic sc ie nti st w iththe TB I , te sti fi e d c on c e rn ingfi re arm s identification testing . Roy se testified that the bullet rec overe d from Ke nneth Mosley

was a .380 aut o b ullet[ ] and that the spent shell casingrec overe d from the Mosley home was a

.380 auto Winchester shell. Roy se further testi fied that two live rounds of ammunition also went to him for testing and that they wer e .380 auto Winchester

.

Dr. J err y Fr ancisc o testified that Kenne th Mosley died from a sing le g unshot wound to the back which t ore through his major orga ns and severed his aorta

. Dr. F ranc isco stated that he f

ound no drug s or alcohol in Ke nneth Mosley ’s sy stem. The distance

o f t h e g u n s h o tw a s g r e a t e r

t h ant w o f

e e tf r o m K e n n e t h M o s l e y’ s b o dy.

Def endant Ha

nna off ere d no proof at trial. Defe ndant L ane of fer ed o n ly

the testimony of Paul Dalha

user, a g enetic te sting e x pert. Da lhauser te stified t h at he attempted to per form DNAtesting on the t o we l recovere d from Andr e Ha milton’s vehicle. H oweve r, the towe l did not contain enough DNA for analy sis, so the test was inconclusive.

State v. Redonna T. Hanna and Bernardo C. Lane , No. 02 C01 -9 80 6- CR- 00 16 5, 19 99 Te nn . Cr im. App. L EXI S 909, at **4, 7-13 (Te nn. Crim. App. at J ackson, Sept. 7, 1999).

I n h is p e tit ion fo r wr it of e rr or c or a m nobi s, the pe tit ion e r a lle g e d th a t he ha d r e c e ive d n e wl y dis c ov e re d e vid e nc e tha

t w a s n ot a

va ila ble a t th e tim e of

his tr ia l. S pecif

ic a lly , h e argue s th a t hi s codef endant, Redonna

Hanna , executed an a f

f id a v it o n May 24, 2007, which stated that the petitioner was not re sponsible for the wr ong doing ide ntified in the judgme nts. The pe titioner did not attach

an ac tual copy

of the a ffidavit in his petition for relief but, rather
, h an d wr o t e t h e lang uag e of the aff idavit. Accor ding to the pe titioner, codef endant Hann a s t at ed in the alleg ed af fidavit that he conspired w ith other code fenda nts to blame the petitioner for the murder

.
Th e State re sp on de d to the pe tit ion and fi le d a mot ion to d ism iss on

July 29 , 2 00 8. Th e State raised the aff

irmative def

ense that the petition was untimely and ar g ued that the testimony of codef endant Ha

nna wa s “neither

the s ole or primary rea son that the petit ioner was found g uilty by the jury in the case .”-5-

The trial c ourt denied the petition on October 22, 2008, finding that the petition was timebarr ed beca

use the statute of

limit ations had passe d. Howeve r, the c ourt ana ly zed whether

due proce ss require d a tolling of the statute. The c ourt stated:

Even a ssuming that the ne w statement is true, this c o u rt is not reasona bly satisfied that the jury

would have r eac hed a dif fer ent ver dict h ad t h ey b een a war e of the state me nt. Th e jur

y ha d mu c h mo re e vid e nc e su ff ic ie nt to sup po rt

the c on vic tio ns , such as Da

ny ale Da vis identify ing [the] Petitioner, in a photo line-up and at trial, as one of the perpe trators.

Thus, the cour

t concluded that the petitioner had f ailed to me et his burden of establishing that the newly discovere d evidenc e, if pre sented, would have re sulted in a diffe rent ve rdict.

An a ly sis

Trial courts may grant a criminal defendant a new trial following a judgment of c onviction, under limited circ umstances, through the extra ordinary r emedy of fer ed by a w ri t o f er ror coram
no bis . T .C. A. § 4 0- 26 -1 05 (2 00 6) ; State v. Mix on , 9 83 S.W .2 d 66 1, 66 6 (T e nn

. 19 99 ). Th e writ of er ror c oram nobis is an “e xtraordina ry proc edura l remedy,” filling only a “slight gap into which few case s fall.” Mixon
, 983 S.W.2d at 672. A writ of err or cor am nobis may be gra nted wher e the defe ndant establishes the existence of newly-discove red evidenc e rela ting to matters litigated at trial if the def endant shows he was without fault in failing t o prese nt the evidenc e at the pr oper time a nd if the judge de termines the e vidence may have resulted in a differe nt judgment had it been pr esente d to the jury. T. C.A . § 40 -2 6- 10 5; Mixon
, 983 S.W

. 2 d at 668. A petition for wr it of err or cor am nobis must relate: (1) the g rounds and the na ture of the newly

discovere d evidenc e; (2) why the admissibili ty of the newly -discover ed evidenc e may have resulted in a differ ent judgme nt ha d the

e vid e nc e be e n a dmi tte d at th e pr e vio us tr ia l; ( 3) that th e pe tit ion e r w a s w ith ou t f a ult in f a ili ng to pr e s e n t th e n e w ly

- d is c o v e r e d e v id e n c e a t th e a p p r o p r iate ti me ; an d ( 4 ) th e r e li e f s o u g ht by the petitioner. Fr eshw at er v . S tate , 160 S.W .3d 548, 553 (Tenn. Crim. App. 2004) . The Te nnessee Sup re me Court ha s re c e ntl y he ld that for a pe tit ion fo r a wr it of e rr or c or a m no bis to b e su c c e ssf ul, “the standa

rd to be a pplied is whether the new e vidence , if prese nted to the jury
, may have r esulted in a diffe rent outcome . . . .” State v. Vasques , 221 S.W .3d 514, 526 (Tenn. 2007)

.

I t h as b ee n deter

mined that, for pur

poses of c oram nobis re lief, a judg ment become s final thirty day s afte r t he entry of t he judgment i n the t rial court, if no post-trial motion is fil ed or upon entry of an order disposing of a timely filed post-trial motion. Freshwater , 160 S.W .3d at 553. The

on e -ye ar s tatut e of

lim itatio ns a

pp lic a ble to t he wr it o f e rr or

c or a m no bis is an

a ff ir mativ e de fe ns e which must be specifically pled by the State, or it is deemed w aived. Ha rri s v . S tate , 102 S.W .3d 58 7, 59 3 ( Te nn . 2 00 3) ; Ne wso mev . S tate , 995 S.W .2d 129, 133 (Tenn. Crim. App. 1998). The trial court, howe ver, may consider an unt imely petition if apply ing the statute of limitations would deny the petitioner due proce ss. W or k ma n v. Sta te , 4 1 S. W.3 d 1 00 , 1 03 (T e nn . 2 00 1) ; Bu rfo rd v . S tate , 845 S.W .2d 204, 209-10 (Te nn. 1992).-6-

T o d et erm i n e i f du e p ro ce s s re qu i re s t o l l i n g o f t h e s t at u t e o f l i m i t at i o n s , a c o u rt m u s twe i gh the petitioner’s inter est in having an opportunity to present his cla ims in a meaning ful time and

m an n e r a g a i n s tt h e S t a t e ’ s i n t e r e s ti np r e v e n t i n g t h e l i t i g a t i o no f s t a l e an d

f r a u d u l e n tc la ims

. Bu rfo rd , 845 S.W .2d at 208. More spe cifica lly , a cour t should uti liz e the f

ollow i ng analy sis: (1) deter mine when the limit ations period would normally have begun to r un; ( 2) dete rmine whe ther the g rounds for r elief a ctually arose afte r the li mitations period would have normally commence d; and (3) if the g rounds ar e later- arising
, deter mine if, under the fa cts of the c ase, a strict application of the lim itatio ns pe ri od

wo uld e ff e c tiv e ly de ny the pe tit ion e r a

re a s o n a b l e o p p o r t u n ity to p re se nt t

he c la im. Sa nd s v . S tate , 903 S.W .2d 297, 301 (Tenn. 1995)

.

He re , th e pe tit ion e r a c kn ow le dg e d th a t his pe tit ion wa s un tim e ly bu t argue s th a t du e pr oc e ss should toll the statute of limitations. The petitioner spec ifically points to t he opinion in W orkman
, in which the Te nnessee Supreme Court per mitted the petitioner to pr ocee d with a n untimely

cora m nobis petition. However, w e conc lude that, in the instant case, the trial court pr operly found that the petition was untimely

and that due pr ocess did not require a tol ling of the statute of limitations. The petitioner’s judg ment beca me final on J une 4, 1998. The purported a ffidavit of the codef endant wa s
a lle g e dly e xec ute d o n M ay

24 , 2 00 7. Th e pe tit ion e r d id n ot f ile his pe tit ion

fo r wr it o f c or a m no bis until May 22, 2008. The petiti oner doe s not ex plain his almost one-y ear delay other than to state that it is comparable to other

Tenne ssee c ases whe re the statute of limitations was tolled.

I n the present case , the one-y ear statute of l imitations period e x pired in 1999, so we c oncur that the petition was cle arly not timely . Thus, the claim for a wr it of er ro r coram nobis is barred unless the petitioner wa s not affor ded a r easona ble opportunity

to present the c laim before the limit ations period ran. After ca ref ul review , we a lso ag ree that the trial cour t properly conclude d that due proc ess did not require a tol ling of the s tatute of limit ations beca use the pe titioner failed to set forth a c og niza b l e claim for coram nobis relief. The trial court f ound that the code fenda

nt’s statement to police wa s not the primary fac tor behind his convictions, and, therefor e, the ne w alleg ed aff idavit would not have been l ikely to preve nt his convictions. Acc ording to the trial court, the jur y that convicted the petitioner had “ much m o re evidence sufficie nt to support the convictions, such as Da ny ale Da vis identify ing [the] Petit ioner, in a photo line-up and at t ri al
, as one of the perpe trators.”
The pe titio n er al s o ar gu es that the trial c ourt err ed whe n it failed to g rant a n evidentiar

y hear ing. H oweve r, this court has pr eviously held that cor am nobis evidentiary hear ings a

re not mandated by statute in ever y case

. State v. Johnny L. McGowan , No. M2007-02681-CCA-R3-CO, 2008 Tenn. Crim

. App. L EXI S 675, at *7 (Tenn. Crim. App. at Na shville, Aug . 5, 2008) (quoting Ri c ha rd Ha le Au sti n v . S

tate , No. W 2005-02591-CCA-R3-CO, 2006 Tenn. Crim

. App. L EXI S 970, at **14-15 (T enn. C ri m . App. at Jackson, Dec . 13, 2006). A pe tition for coram nobis may be dismiss ed without a hear ing and without the appointment of counse l for a he aringif the petition does not alleg e fa cts showing that the petitioner wa s entitled to relief. Id. (qu oting Sta te e xre l. Edmondson v. He nderson , 421 S.W .2d 635, 636 (Tenn. 1967) ).-7- Conclusion

Ba s ed on the foreg oing a nd the re cord a s a whole, w e conc lude that the trial c ourt did not abuse its discre tion in deny ing the petition for writ of err or cor am nobis. The new evidenc e, in the form of a n aff idavit by a codefe ndant which purported to exonerate the petitioner, would not have been likely

to result in a diffe rent outcome at trial if pre sented to the jury

.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE