IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 28, 2011

DOLWIN D. CORMIA v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 277569 Barry A. Steelman, Judge

No. E2010-02290-CCA-R3-PC - Filed October 21, 2011

The Petitioner, Dolwin D. Cormia, filed a petition for writ of error coram nobis alleging that

newly discovered evidence—a Naval document diagnosing the Petitioner with “antisocial

personality disorder”—mandated a new trial. The Hamilton County Criminal Court

summarily dismissed the petition concluding that the Petitioner did not state a cognizable

claim for coram nobis relief. For the first time on appeal, the Petitioner alleges that the

coram nobis judge erred by not sua sponte recusing himself based upon the fact that the

coram nobis judge “was possibly an Assistant District Attorney and/or the Executive District

Attorney” at the time his case was being prosecuted. Following a review of the record, we

conclude that the Petitioner has failed to allege the existence of subsequently or newly

discovered evidence that would warrant relief under a writ of error coram nobis. We also

find that the Petitioner has failed to support his claim of recusal with sufficient

documentation to require reversal. The order of summary dismissal is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and

JOHN EVERETT WILLIAMS, JJ., joined.

Dolwin D. Cormia, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;

William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

In 1998, the Petitioner was convicted by a Hamilton County jury of first-degree

murder and abuse of a corpse. For these convictions, he received concurrent terms of life
without the possibility of parole and two years, respectively.

The facts upon which the Petitioner was convicted have previously been summarized

by this court as follows:

In the light most favorable to the [S]tate, the evidence at trial

demonstrated that the [Petitioner], . . . an East Los Angeles native, came to

Chattanooga in the Spring of 1996 with Chris “May-May” Cameron and

Dereath “Malik” Polydore. Cameron was in the marijuana trade, and upon

learning from the [Petitioner] that marijuana could be sold much more

profitably in Chattanooga than in Los Angeles, he agreed to pay the

[Petitioner] to accompany him to Chattanooga and to introduce him around

town. The three arrived on a Greyhound bus in April 1996. Apparently, the

business developed suitably, and the three stayed in Chattanooga for at least

three weeks. During this time, the three lived in the apartment home of Jamie

Sammons, the [Petitioner’s] girlfriend. Cameron and the [Petitioner] sold

marijuana during this time, and the proceeds were split equally among these

two men and Polydore.

Meanwhile, on Saturday, April 27, 1996, the victim, Welton Green, Jr.,

called on his friend Kirby Marshall at the Lady Luck Beauty Salon, which was

owned by Marshall and his wife. The victim, who was from California, was

driving a large, late model, rented Mercury with California license plates.

Marshall and the victim spent time driving around town that afternoon and

made plans to go out later that evening.

Later, Marshall and the victim went to a nightclub, The Whole Note,

but they were denied admission because of their attire. They purchased

alcohol and sat outside in the parking lot consuming it until after the club

closed. That same evening, the [Petitioner], Polydore and Cameron were

inside The Whole Note with Sammons and other female companions. The

[Petitioner] and Sammons got into an argument at the club, and Sammons went

home. After the club closed, the [Petitioner] and Cameron went to a Waffle

House.

When they arrived at the Waffle House, they encountered the victim

and Marshall. The victim and the [Petitioner] hugged each other, although the

[Petitioner] told the victim he did not know whether he should hug him or kill

him. Cameron had heard the [Petitioner] speak of the victim stealing money

from him, so he was surprised to see the two hugging. Cameron’s pager went

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off, and the victim offered to let Cameron use a cellular telephone in his car.

While the victim was retrieving the telephone, Marshall told the [Petitioner]

that the victim had a half kilo of cocaine and some money with him in

Chattanooga. Marshall also revealed the location of the victim’s hotel room.

A group of young women approached, and a plan was soon devised for

the victim, the [Petitioner], and two of the women to go to the victim’s hotel

room for the remainder of the night. Cameron, who had by now returned the

call to his pager, decided to return to Sammons’ apartment.

The next morning, the [Petitioner] arrived at Sammons’ apartment and

made some telephone calls. Cameron was still in bed, but he overheard the

[Petitioner] saying, “The guy is out here,” or “The guy is here.” After

Cameron arose, the [Petitioner] inquired whether he would like “to go on a

lick.” In other words, the [Petitioner] was inviting Cameron to participate in

a robbery. Because he was tired and had a hangover, Cameron declined.

However, Varian LaShon “Skinny” Ford arrived to pick up the [Petitioner].

According to Ford, however, he met the [Petitioner] at the Big Orange

Car Wash. The [Petitioner] made a telephone call, which Ford understood was

to the victim. Thereafter, the victim showed up in his rented Mercury, and

Ford and the [Petitioner] got into the car with him. Because Ford was familiar

with Chattanooga, he drove. The victim was in the front passenger seat and

the [Petitioner] was in the back seat. The three were cruising and headed in

the direction of Hamilton Place Mall.

Cameron testified that the pretext which was used to get the victim to

go on this car ride was that Ford, the [Petitioner] and another person were

going to purchase some cocaine from the victim. In actuality, the [Petitioner’s]

plan was to rob the victim.

While Ford, the [Petitioner] and the victim were stopped at a traffic

signal at the intersection of Lee Highway and Shallowford Road, a woman in

a car behind the Mercury observed the driver (Ford) and the back-seat

passenger (the [Petitioner]) jump on the person seated in the front passenger

seat (the victim). At first, she thought they were horsing around, but then she

saw that two or possibly all three of the men had drawn firearms. The

eyewitness saw the man in the back seat “kind of angling the gun down over

the fellow in the passenger seat.” She saw the rear-seat passenger’s hand jerk

back, and she presumed the gun fired. Then, she saw a gun fly out the

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window. The back-seat passenger casually got out of the car, retrieved the

gun, and returned to the car. The car quickly left the scene. The driver and the

back-seat passenger pushed the front-seat passenger down onto the floorboard.

The eyewitness testified that in her opinion, the back-seat passenger was not

acting in self-defense when he shot the victim; rather, he and the driver were

attacking the victim.

There was evidence that when the [Petitioner] first attempted to fire his

weapon, it did not discharge, so he attempted to fire it a second time, which

caused the victim’s fatal injury. Ford, the driver of the car, testified that after

the [Petitioner] shot the victim, the [Petitioner] asked the victim why he made

him do that. The [Petitioner] also told the victim that he owed him money and

should have honored the debt. The [Petitioner] and Ford returned to the Big

Orange Car Wash, where they parted company.

Ford purchased marijuana and then went to his girlfriend’s apartment

in the Mansion Hills complex. Later that evening he met the [Petitioner] at

Sammons’ apartment. The [Petitioner] was driving the victim’s rental car.

The victim’s body was not in the vehicle. Ford saw a floor mat on the front

passenger seat covering the victim’s blood. Ford wiped his fingerprints from

the car. The [Petitioner] wanted to go to the victim’s motel room, so Ford,

Cameron and the [Petitioner] left in Ford’s car.

The [Petitioner] had a key which allowed the three access to the

victim’s motel room. Inside, they searched for money but were unable to

locate any. They took two or three pieces of luggage from the room and

returned to Mansion Hills. That evening, the [Petitioner] told Cameron in

Ford’s presence where he had disposed of the victim’s body.

The next day, Marshall visited the [Petitioner] at Sammons’ apartment.

Marshall saw the victim’s luggage in a bedroom.

Sometime in late April, the victim’s rental car was discovered

abandoned. A Chattanooga police officer had it towed to a private storage lot,

where blood was discovered on the front passenger seat.

The [Petitioner] left Chattanooga and was for a time in Memphis.

Eventually, he returned to California.

For months, investigation progressed, but the police department was

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unable to locate the victim’s body. In January 1997, the police received

information from Ford which led them to discover the victim’s skeletonized

remains in a wooded area. They also received information from Ford and the

[Petitioner’s] other associates which led to the charges against the [Petitioner].

The [Petitioner] did not present evidence at trial; however, through

cross-examination of witnesses he presented his theory that he shot the victim

in self-defense because the victim pulled a gun on him while they were

tussling. The jury rejected this theory and convicted the [Petitioner] of first

degree murder and abuse of a corpse.

State v. Dolwin Deon Cormia, No. E1999-01504-CCA-R2-CD, 2000 WL 343793, at *1-3

(Tenn. Crim. App. Apr. 4, 2000), perm. appeal denied, (Tenn. Nov. 6, 2000).

In his direct appeal to this court, the Petitioner challenged the sufficiency of the

evidence, the admissibility of opinion testimony from an eyewitness to the shooting, the

admissibility of evidence of his involvement in the drug trade, and the jury instruction on

first-degree murder. Id. at *1. This court found no error of law requiring reversal of the

Petitioner’s convictions and affirmed. Id. at *1, 10.

Thereafter, the Petitioner filed a petition for post-conviction relief alleging that he was

denied effective assistance of counsel and that the assistant district attorney general

committed prosecutorial misconduct. After an evidentiary hearing was conducted, the

post-conviction court dismissed his petition. See Dolwin Deon Cormia v. State, No. E2003-

00653-CCA-R3-PC, 2005 WL 3190313, at *3 (Tenn. Crim. App. Nov. 28, 2005), perm.

appeal denied, (Tenn. Mar. 20, 2006). On appeal to this court, the Petitioner presented four

issues for our review:

(1) that the post-conviction court erred by finding that the Petitioner was not

denied effective assistance of counsel;

(2) that the post-conviction court erred by admitting Counsel’s file of the

Petitioner into evidence as a business record;

(3) that the post-conviction court erred by admitting hearsay testimony of

Counsel into evidence; and

(4) that the post-conviction court erred by not granting post-conviction relief

based upon the fact that the assistant district attorney general quoted from the

bible in his closing argument at the Petitioner’s trial.

Id. at *9. After reviewing the record and the applicable authorities, the panel concluded that

the Petitioner’s allegations did not merit relief and affirmed the judgment of the post-

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conviction court. Id. at *1, 12.

On August 17, 2010, the Petitioner filed a petition for writ of error coram nobis. He

based his claim for relief on alleged newly discovered evidence, specifically a consultation

report from the United States Navy diagnosing him with “antisocial personality disorder” and

difficulties with impulse control. The Petitioner provided the following rationale as to why

the admissibility of the report would have resulted in a different verdict if the evidence had

been admitted at histrial: “This new evidence coincides with [S]tate[’]s witness Varion Ford,

who testified that the [P]etitioner DID NOT intend to kill Welton Green, but reacted on

impulse and in self-defense when the victim reached for and pulled his gun on the

[P]etitioner.” He contended that his mental disorder established his innocence, thereby

preventing him from forming the requisite mentalstate for first-degree premeditated murder.

The Petitioner acknowledged that the statute of limitations for filing a writ of error coram

nobis was one year from the date of the final judgment in the case; however, he contended

that he exercised due diligence in locating the report and that the petition should not be

considered as time-barred because he filed the petition within one year from the date of

discovery of the report. The Petitioner further elaborated that due process precluded

application of the statute of limitations to bar consideration of his petition because hisinterest

in obtaining a hearing to present newly discovered evidence, which might establish actual

innocence, far outweighed any governmental interest in preventing the litigation of stale

claims.

In its September 21, 2010 order summarily dismissing the petition, the coram nobis

court framed the Petitioner’s allegations as follows:

(1) that there are newly discovered records from the United States [N]avy of

his anti-social personality disorder and difficulties with impulse control;

(2) that the newly discovered evidence corroborates the testimony of a

prosecution witness that he did not intend to kill the victim but was reacting

on impulse and in self-defense to the victim;

(3) that due process precludes strict application of the statute of limitations;

and

(4) that he is indigent.

The coram nobis court then noted the one-year statute of limitations for filing a petition for

the writ, but also remarked that the statute of limitations was an affirmative defense. The

court went on to evaluate the merits of the petition, characterizing the substance of the

Petitioner’s argument as follows: “that the evidence in issue negates the mens rea element

of the offense of first-degree murder.” The court then determined that the Petitioner did not

state a cognizable claim for relief:

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It is true that the theory of the defense was self-defense. Even if the records

in issue are newly acquired by the [P]etitioner, however, their contents are not

newly discovered. One of the [P]etitioner’s post-conviction claims, which,

with others, he did not pursue on appeal, was that counsel did not investigate

his competence to stand trial, even though he had told counsel that he was

discharged from the military for a mental, physical, or personality disorder.

On October 4, 2010, the Petitioner filed a motion to alter or amend judgment pursuant

to Tennessee Rule of Civil Procedure 59.04. He submitted that, while it was true that he

raised the issue of his competency or mental status in his original pro se petition for postconviction relief, the issue was not adopted by counsel in the amended petition and was not

presented at the post-conviction hearing. The Petitioner alleged that he was not provided

with the consultation report until February 22, 2010, when he requested his discharge records

in an effort to join the “G.B.V.A. Veterans Club at Morgan County Correctional Complex[,]”

and that it was only then that he received his “full medical record and consultation sheet[.]”

He prayed for the court to alter or amend its judgment based upon this information.

The coram nobis court issued a thorough and extensive order denying the Petitioner’s

motion to alter or amend on October 17, 2010. The coram nobis court first observed that

Rule 59 was inapplicable to a coram nobis proceeding and that such a motion was not

authorized by statute. The court, treating the Petitioner’s pleading as “a simple motion to

reconsider[,]” then determined, “There is, however, no reason to reconsider.” After restating

its findings of facts and conclusions of law in its original order of summary dismissal, the

coram nobis court found that the record in the Petitioner’s post-conviction case supported its

previousruling, thereafter, citing to the post-conviction court’s order denying post-conviction

relief.

The post-conviction order provides as follows:

In his testimony, the [P]etitioner addressed issues that he did not raise in his

amended petition, complaining that his trial counsel did not investigate his

competency to stand trial . . . . The [S]tate did not object to this evidence, and

the [c]ourt treats it as a de facto amendment to the petition.

. . . .

The Petitioner complains that counsel did not investigate his

competency to stand trial, even though he told counsel that a mental, physical,

or personality disorder was the basis for his discharge from the military.

Considering the evidence indicating that he was competent to stand trial, e.g.,

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his statement to counsel questioning, in view of Mr. Ford’s evidence, the

availability of a defense of identity in his case, and the absence of evidence,

even now, indicating that he was incompetent to stand trial, the [c]ourt finds

no deficiency or prejudice in counsel’s performance in this respect.

1

On appeal, this court concluded that the issue, among others, was waived because the

Petitioner failed to include it in his appellate brief. Cormia, 2005 WL 3190313, at *10.

The coram nobis court, following its recount of the Petitioner’s post-conviction case,

concluded that, based on the Petitioner’s testimony at the post-conviction hearing and the

notation on his “Certificate of Release or Discharge from Active Duty” (“Narrative Reason

for Separation: Other [illegible]/Mental Conditions-Personality Disorder”), the Petitioner was

aware, prior to trial, that a personality disorder was the reason he was discharged from the

Navy. The court elaborated that the evidence was not newly discovered because the

consultation report was only “the more complete description of the diagnosis” and because

the Petitioner’s allegation that counsel did not investigate the issue “presupposes that this

evidence was discoverable before trial.” In addition, the court concluded that, even if the

evidence was newly discovered, it was “not material.” The court concluded that the evidence

was “not material” (1) because a personality disorder was not a defense to prosecution nor

did it strengthen the Petitioner’s theory of self-defense and (2) because evidence of a

personality disorder did not negate the proof of premeditation and aggression in the case.

The court instructed the Petitioner that he had 30 days from the entry of the

September 21, 2010 order to timely file a notice of appeal document. His notice of appeal

was “file-stamped” on October 27, 2010, by the trial court clerk. The certificate of service

signed by the Petitioner reflects a date of October 22, 2010, for delivery of the document to

be mailed to the attorney general’s office. The case is now before us for our review.

ANALYSIS

I. Notice of Appeal

At the outset, we must address whether the Petitioner’s notice of appeal document was

timely filed. A notice of appeal must be filed within 30 days after the date of entry of the

judgment from which a petitioner is appealing, unless said petitioner filed one of the motions

listed in Tennessee Rule of Appellate Procedure 4(c). Tenn. R. App. P. 4(a), (c). The

Petitioner’s “motion to alter or amend” is not one of the motions listed in subsection (c) of

Rule 4 and, therefore, does not toll the commencement of the 30-day period. Michael A.

Sullivan v. Karen Watson, No. M2005-02061-CCA-R3-HC, 2006 WL 3831383, at *1-2

This court may take judicial notice of its own records. See Tenn. R. App. P. 13(c). 1

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(Tenn. Crim. App. Dec. 14, 2006) (citing State v. Bilbrey, 816 S.W.2d 71, 74 (Tenn. Crim.

App. 1991) (“No other motion, including one for rehearing, is allowed to suspend the

running of the appeal time from the entry of the judgment.”); State v. Ryan, 756 S.W.2d 284,

285, n.2 (Tenn. Crim. App. 1988) (“[T]here is no provision in the Tennessee Rules of

Criminal Procedure for a ‘petition to reconsider’ or a ‘petition to rehear.’”)); see also State

ex rel. David W. Dunn v. Howard Carlton, Warden, No. E2009-01647-CCA-R3-HC, 2010

WL 2219623, at *3-4 (Tenn. Crim. App. June 3, 2010). Thus, the Petitioner had 30 days

from the entry of the September 21, 2010 order to file a notice of appeal. Whether we use

October 22, 2010 (the date the Petitioner signed the certificate of service), or October 27,

2010 (the date the document was actually filed with the trial court clerk), the document was

not timely filed.

However, the filing of the notice of appeal document may be waived “in the interest

of justice.” Tenn. R. App. P. 4(a). In determining whether waiver is appropriate, the court

shall consider the nature of the issues for review, the reasons for the delay in seeking relief,

and other relevant factors presented in each case. Larry Coulter v. State, No.

M2002-02688-CCA-R3-PC, 2003 WL 22398393, at *5 (Tenn. Crim. App. Oct. 21, 2003),

perm. appeal denied, (Tenn. Mar. 8, 2004).

In his brief, the Petitioner has not addressed the issue of failing to timely file a notice

of appeal, even though he was instructed on the issue by the coram nobis court. He has not

filed a motion with this court seeking to be excused from the requirement of making a timely

notice of appeal. We must proceed under the assumption that the Petitioner believed his

filing of the motion to alter or amend tolled the 30-day filing requirement. We conclude that

the time limit was not tolled and that the notice of appeal was not timely filed. However, we

note that, due to the Petitioner’s incarceration, it is likely that he did not receive the order

denying his motion to alter or amend judgment precisely on October 17 and that his

certificate of service is dated only five days later, October 22, which is just one day past the

filing deadline. Additionally, the State has not sought dismissal of the appeal as untimely.

In the interest of justice, we have determined to exercise our discretion and waive the timely

filing of the notice of appeal in order to consider the petition on the merits.

II. Dismissal of the Petition

A writ of error coram nobis is available to a defendant in a criminal prosecution.

Tennessee Code Annotated section 40-26-105 provides, in pertinent part, as follows:

(b) 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

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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.

(c) The issue shall be tried by the court without the intervention of a

jury, and if the decision be in favor of the petitioner, the judgment complained

of shall be set aside and the defendant shall be granted a new trial in that

cause.

Tenn. Code Ann. § 40-26-105(b), (c).

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). “The purpose of this remedy is to bring to the attention of the court some

fact unknown to the court which if known would have resulted in a different judgment.”

Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004) (quoting State v. Hart,

911 S.W.2d 371, 374 (Tenn. Crim. App. 1995)). The decision to grant or deny a petition for

writ of error coram nobis rests within the sound discretion of the trial court. Tenn. Code

Ann. § 40-26-105; Hart, 911 S.W.2d at 375.

To establish that he is entitled to a new trial, the Petitioner must show the following:

(a) the grounds and the nature of the newly discovered evidence; (b) why the admissibility

of the newly discovered evidence may have resulted in a different judgment if the evidence

had been admitted at the previous trial; (c) that the Petitioner was without fault in failing to

present the newly discovered evidence at the appropriate time; and (d) the relief sought.

Hart, 911 S.W.2d at 374-75.

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).

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In State v. Vasques, our supreme court noted that “Tennessee courts have struggled

with the proper standard to be applied in the determination of whether and when coram nobis

relief is appropriate in a criminal case.” 221 S.W.3d 514, 525 (Tenn. 2007). The court

further explained that some courts had looked at whether new evidence “would have”

resulted in a different judgment and some courts had used a “may have” standard. Id. Our

high court reasoned that “the ‘may have’ standard, if interpreted literally, is too lenient in the

common law context of writ of error coram nobis.” Id. at 527. Thus, in Vasques, the

Tennessee Supreme Court clarified the standard that should be used, explaining as follows:

[W]e hold that in 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. In the Court of Criminal

Appeals opinion in this case, Judge Joseph M. Tipton described the analysis

as follows: “whether a reasonable basis exists for concluding that had the

evidence been presented at trial, the result of the proceedings might have been

different.” Although imprecise, our standard, which requires determination of

both the relevance and the credibility of the discovered information, offers a

balance between the position of the State and that of the defense. In our view,

this interpretation upholds the traditional, discretionary authority of our trial

judges to consider the new evidence in the context of the trial, to assess its

veracity and its impact upon the testimony of the other witnesses, and to

determine the potential effect, if any, on the outcome.

Id. at 527-28.

The statute of limitations for seeking a writ of error coram nobis is one year from the

date the judgment becomes final in the trial court. Tenn. Code Ann. §§ 27-7-103, 40-26-105;

Mixon, 983 S.W.2d at 671. The one-year statute of limitations may be tolled only when

necessary so as not to offend due process requirements. Workman v. State, 41 S.W.3d 100,

103 (Tenn. 2001). The State bears the burden of raising the bar of the statute of limitations

as an affirmative defense. Harris, 102 S.W.3d at 593 (citing Sands v. State, 903 S.W.2d 297,

299 (Tenn. 1995)).

Based on the record, it is clear that the petition was filed many years after the statute

of limitations had expired. However, the record contains no pleading filed by the State in

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response to the petition, and “the statute of limitations [applicable to writs of error coram

2

nobis] is an affirmative defense which must be specifically plead or is deemed waived.”

Newsome v. State, 995 S.W.2d 129, 133 n.5 (Tenn. Crim. App. 1998). While the coram

nobis court in this case noted the applicable one-year statute of limitations period, the court

did not summarily dismiss the coram nobis petition as time-barred—likely because the

affirmative defense of the statute of limitations had not been properly raised at that

time —but summarily dismissed the petition on its merits finding that the Petitioner failed

3

to state a cognizable claim for relief. Because the statute of limitations was not raised as an

affirmative defense below, we will proceed to examine the Petitioner’s claims.

4

The Petitioner raises numerous challenges to the findings of the coram nobis court

on appeal: (1) the coram nobis court erred “by making the assumption that the newly

discovered/available evidence was available to [the] Petitioner and post-conviction counsel

based upon [the] issue of [the] Petitioner[’]s competency to stand trial having been raised in

[the] post-conviction proceeding”; (2) the coram nobis court “abused its discretion in

preliminary dismissing the petition . . . simply relying upon quotations from prior decision

of this court, on [the Petitioner’s] direct appeal as relating to sufficiency of the evidence”;

(3) the coram nobis court “used the wrong standard and[/]or failed to fully follow the

appropriate standard in denying the petition”; (4) the consultation report “requires this court

to grant [his] petition”; and (5) the coram nobis erred by “finding that the newly

discovered/available evidence was not material.” After reviewing the record, we conclude

that the error coram nobis court did not abuse its discretion when it dismissed the petition for

writ of error coram nobis without appointing counsel or conducting a hearing.

We agree with the rationale provided by the coram nobis court in its extensive and

thorough order denying the Petitioner’s motion to alter or amend judgment. While it may be

true that the Petitioner only recently received the consultation report, the Petitioner was

aware that a personality disorder was the reason for his January 1991 discharge from the

Navy. His “Certificate of Release or Discharge from Active Duty” form, which was given

to him at the time of his discharge, notes the following: “Narrative Reason for Separation:

We note that the coram nobis court sua sponte summarily dismissed the petition prior to the filing of a

2

responsive pleading.

See Reginol L. Waters v. State, No. M2006-01687-CCA-R3-CD, 2008 WL 366148, at *4-5 (Tenn. Crim.

3

App. Jan. 16, 2008), perm. appeal denied, (Tenn. Sept. 15, 2008); Bruce Alan Littleton v. State, No. M2006-

01675-CCA-R3-CD, 2007 WL 845900, at *2-3 (Tenn. Crim. App. Mar. 14, 2007), perm. appeal denied,

(Tenn. Aug. 13, 2007).

Because the statute of limitations was not raised an affirmative defense, we do not have to address whether 4

due process requires the limitations period to be tolled pursuant to the analysis in Workman, 41S.W.3d 100.

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Other [illegible]/Mental Conditions-Personality Disorder.” The consultation report only

provides a more complete description of his diagnosis.

Moreover, as noted by the coram nobis court, the post-conviction court considered the

issue of trial counsel’s failure to investigate the Petitioner’s competency even though it was

not included in the amended petition. The post-conviction court made the following ruling

in its order denying post-conviction relief:

The Petitioner complains that counsel did not investigate his

competency to stand trial, even though he told counsel that a mental, physical,

or personality disorder was the basis for his discharge from the military.

Considering the evidence indicating that he was competent to stand trial, e.g.,

his statement to counsel questioning, in view of Mr. Ford’s evidence, the

availability of a defense of identity in his case, and the absence of evidence,

even now, indicating that he was incompetent to stand trial, the [c]ourt finds

no deficiency or prejudice in counsel’s performance in this respect.

The Petitioner then appealed to this court raising only one issue of ineffective assistance.

Therefore, this court treated his allegation that trial counsel “failed to investigate the

Petitioner’s competence to stand trial” as waived. See Cormia, 2005 WL 3190313, at *10.

It is fundamental that “[t]he [coram nobis] proceeding is confined to errors outside the

record and to matters which were not and could not have been litigated at trial, the motion

for new trial, appeal, or upon post-conviction petition.” Kenneth C. Stomm v. State, No.

03C01-9110-CR-00342, 1992 WL 97081, at *1 (Tenn. Crim. App. May 12, 1992); see also

Tenn. Code Ann. § 40-26-105. The fact that the Petitioner may not have received the

consultation report until February 2010 is inconsequential; the issue was addressed at the

post-conviction level, and the report does little to enhance the Petitioner’s argument. Here,

it is clear that the Petitioner was not only aware of the reason underlying his discharge from

the Navy prior to trial but, in fact, he later claimed that trial counsel was ineffective for not

investigating the matter more thoroughly after being informed that a “mental, physical, or

personality disorder” was the basis of his discharge. The Petitioner has failed to allege the

existence of subsequently or newly discovered evidence that would warrant relief under a

writ of error coram nobis.

The coram nobis court then assumed, for the sake of argument, that the evidence was

“newly discovered” but found that, nonetheless, the evidence was “not material.” The court

concluded that “[a] personality disorder is not a defense to prosecution[,]” citing to

Tennessee Code Annotated section 39-11-501 (Insanity), which provides, “It is an

affirmative defense to prosecution that, at the time of the commission of the acts constituting

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the offense, the defendant, as a result of a severe mental disease or defect, was unable to

appreciate the nature or wrongfulness of the defendant’s acts.” See Tenn. Code. Ann. § 39-

11-501(a). The coram nobis court also found that the evidence of a personality disorder

would not have strengthened the Petitioner’stheory of self-defense, citing to Tennessee Code

Annotated section 39-11-611(Self-dense), which requires “a reasonable belief that there is

an imminent danger of death or serious bodily injury” and that “[t]he belief of danger is

founded upon reasonable grounds.” See Tenn. Code. Ann. § 39-11-611(b)(2). Finally, citing

to this court’s summarization of the facts in the Petitioner’s direct appeal opinion, the court

determined that the evidence of a personality disorder did not negate the proof of

premeditation and aggression. See Cormia, 2000 WL 343793, at *4-5.

Regarding the Petitioner’s argument that the error coram nobis court “used the wrong

standard” when denying his petition, we conclude that this issue has no merit. In Vasques,

our supreme court instructed that the trial court should “determine whether the new evidence

may have led to a different result.” 221 S.W.3d at 527. Our highest court also stated that the

trial judges should “consider the new evidence in the context of the trial, to assess its veracity

and its impact upon the testimony of the other witnesses, and to determine the potential

effect, if any, on the outcome.” Id. at 528. It appears that the Petitioner is arguing that,

because the coram nobis court did not use the precise words “may have led to a different

result” in its findings, it used the wrong standard. After reviewing the “newly discovered

evidence,” the coram nobis court concluded, just as this court does, that the “newly

discovered evidence” does not have “any judgment-affecting potential.” See Alonzo Felix

AndresJuan v. State, No. E2010-02147-CCA-R3-CD, 2011 WL 2693535, at *7 (Tenn. Crim.

App. July 12, 2011).

We feel constrained to convey that our supreme court has distinguished “mental

disease or defect” from emotional state or mental condition:

[W]e emphasize that the psychiatric testimony must demonstrate that the

defendant’s inability to form the requisite culpable mental state was the

product of a mental disease or defect, not just a particular emotional state or

mental condition. It is the showing of lack of capacity to form the requisite

culpable mental intent that is central to evaluating the admissibility of expert

psychiatric testimony on the issue.

State v. Hall, 958 S.W.2d 679, 690 (Tenn. 1997); see also State v. Faulkner, 154 S.W.3d 48,

56-57 (Tenn. 2005). The consultation report provided by the Petitioner does not support his

argument that his “antisocial personality disorder” proves hisinnocence by negating the mens

rea for murder. To the contrary, the treating psychologist stated in the report that the

Petitioner was “not considered mentally ill” and that he did not require and would not have

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“benefit[ted] from hospitalization or psychiatric treatment.” The psychologist further

provided, “There was no evidence of cognitive impairment. Normal psycho motor activity

was evident. There was no evidence of psychosis, organicity, affective disorder, suicidality

nor homicidality—suicidal/homicidal ideation or intent was denied.” The report reflects that

the evaluation was requested because the Petitioner had a “[history] of gang-related activity

[and] violence,” that he was “having difficulties at work,” and that he feared “he may react

violently.” It was also noted that the Petitioner did not desire to remain in the Navy. To any

extent that the Petitioner raises a cognizable claim under the error coram nobis statute, we

agree with the rationale provided by the coram nobis court that the Petitioner has failed to

establish that the subsequently or newly discovered evidence might have resulted in a

different judgment had it been presented at the trial.

III. Recusal

Finally, the Petitioner argues that the coram nobis judge should have recused himself

or “conducted a hearing in relation to whether [he] was possibly an Assistant District

Attorney and/or the Executive District Attorney while the case of the Petitioner was being

handled by the Hamilton County District Attorney[’]s Office.” The State argues that the

Petitioner cannot raise the issue for the first time appeal. The Petitioner asserts that, because

5

the coram nobis court summarily dismissed the petition, he was not provided with an

opportunity to previously raise the issue.

A trial judge should recuse himself or herself whenever the judge “has any doubt as

to his [or her] ability to preside impartially in a criminal case or whenever his [or her]

impartiality can reasonably be questioned.” Pannell v. State, 71 S.W.3d 720, 725 (Tenn.

Crim. App. 2001) (emphasis added). Although the first proviso is a subjective test, the latter

emphasized proviso requires an objective standard. Alley v. State, 882 S.W.2d 810, 820-21

(Tenn. Crim. App. 1994). “Thus, while a trial judge should grant a recusal whenever the

judge has any doubts about his or her ability to preside impartially, recusal is also warranted

when a person of ordinary prudence in the judge’s position, knowing all of the facts known

to the judge, would find a reasonable basis for questioning the judge’s impartiality.” Id. at

820. The standard of review on appeal is whether the trial court abused its discretion by

denying the motion. Bd. of Prof’l Responsibility v. Slavin, 145 S.W.3d 538, 546 (Tenn.

2004); State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993).

The Code of Judicial Conduct states, in pertinent part, as follows:

(1) A judge shall disqualify himself or herself in a proceeding in which

The State says in its appellate brief that Judge Steelman presided over the Petitioner’s trial; however, the 5

record shows that Judge Douglas A. Meyer presided. See Cormia, 2000 WL 343793.

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the judge’s impartiality might reasonably be questioned, including but not

limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a

party’slawyer, or personal knowledge of disputed evidentiary facts concerning

the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer

with whom the judge previously practiced law served during such association

as a lawyer concerning the matter, or the judge has been a material witness

concerning it . . . .

Tenn. Sup. Ct. R. 10, Canon 3.E.(1)(a)-(b). The commentary following subsection (a) and

(b) provides,

A lawyer in a government agency does not ordinarily have an

association with other lawyers employed by that agency within the meaning of

Section 3E(1)(b); a judge formerly employed by a government agency,

however, should disqualify himself . . . in a proceeding if the judge’s

impartiality might reasonably be questioned because of such association.

At this juncture, we feel a brief overview of the relevant jurisprudence necessary. Our

supreme court, in State v. Warner, held that the Tennessee Constitution did not require

recusal where the judge was the District Attorney who prosecuted the defendant on two of

the underlying offenses charged in the habitual criminal indictment. 649 S.W.2d 580, 581-82

(Tenn. 1983); see State v. Terry Byington, No. E2008-01762-CCA-R3-CD, 2009 WL

5173773, at *3 (Tenn. Crim. App. Dec. 30, 2009); State v. Conway, 77 S.W.3d 213, Tenn.

Crim. App. 2001). Additionally, the supreme court in Warner limited the scope of Canon

3(E)(1)(b) to “the cause on trial . . . and not . . . prior concluded trials . . . .” 649 S.W.2d at

581; see also State v. Smith, 906 S.W.2d 6, 12 (Tenn. Crim. App. 1995).

In Owens v. State, a panel of this court determined that disqualification was not

required where the post-conviction judge was “one of nearly seventy attorneys” employed

by the District Attorney General’s office during the prosecution of the petitioner, he never

assisted in the prosecution of the case, and he knew nothing about the facts. 13 S.W.3d 742,

757 (Tenn. Crim. App. 1999). Similarly, this court held a judge was not disqualified from

hearing a post-conviction relief petition when the judge “had no involvement, whether

investigatory or supervisory, with the petitioner’s criminal case while she was in the district

attorney’s office,” and the judge “had departed from the district attorney’s office over one

year prior to the indictment’s return.” Jesse C. Minor ex rel. Hal Hardin v. State, No.

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M2001-00545-CCA-R10-PC, 2001 WL 1545498, at *9-10 (Tenn. Crim. App. Dec. 5, 2001).

This court also held that “a judge need not disqualify himself or herself from hearing a

criminal matter which was pending at the time when he or she served as an Assistant District

Attorney in the same judicial district, if the judge neither reviewed, personally prosecuted,

nor had any direct involvement in the case.” State v. Margo Ellis, No. W2000-02242-CCAR3-CD, 2001 Tenn. Crim. App. LEXIS 579, at *6 (Tenn. Crim. App. July 19, 2001). In

6

addition, this court held a judge was not disqualified from hearing a post-conviction relief

petition where, as an Assistant District Attorney General, he was merely present in the

courtroom during one pre-trial hearing due to the absence of the assigned prosecutor and

knew nothing about the petitioner’s cases. Victor James Cazes v. State, No.

W1998-00386-CCA-R3-PC, 1999 Tenn. Crim. App. LEXIS 1194, at *52-53 (Tenn. Crim.

App. Dec. 9, 1999). Finally, this court in John C. Welles, III, v. State, a case involving nine

7

counts of aggravated sexual battery of a minor, concluded that, where the judge-thenprosecutor had general supervisory responsibilities in an “office having over forty

attorneys[,]” recusal was not required. In that case, the panel reasoned that the judge was not

disqualified because her responsibilities as a supervising prosecutor did not include oversight

of child sexual abuse cases, she did not supervise the petitioner’s case or the Assistant

District Attorney General who prosecuted the petitioner’s case, and she had no contact with

the petitioner’s case “either directly or indirectly[.]” No. M2002-01303-CCA-R3-PC, 2003

WL 21713423, at *5 (Tenn. Crim. App. July 23, 2003), perm. appeal denied, (Tenn. Nov. 24,

2003).

While the failure to seek recusal in a timely manner may result in waiver of a party’s

right to question a judge’s impartiality, a reviewing court may nonetheless address the merits

of a recusal issue because of the fundamental right of a criminal defendant to a fair trial.

Byington, 2009 WL 5173773, at *3 (citing Slavin, 145 S.W.3d at 548) (other citations

omitted). Moreover, we recognize that the Petitioner entered no personal appearance in court

and was provided no opportunity to object as the coram nobis court’s action was summary

nature and, are mindful that, under certain facts, it would be prudent for this court to remand

such an issue for further proceedings. See, e.g., Ashad R.A. Muhammad Ali v. State, No.

M2002-02936-CCA-R3-PC, 2004 WL 193057, at *2-3 (Tenn. Crim. App. Jan. 28, 2004).

However, under the circumstances of this case, we do not feel this is such a case.

Recently, in Juan, the petitioner presented this precise issue:

The Petitioner argues that “[t]he error coram nobis court should have

Only the LEXIS citation is currently available. 6

Again, only the LEXIS citation is currently available. 7

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recused itself and/or conducted a hearing in relation to whether Judge Barry

Steelman was possibly an Assistant District Attorney and/or the Executive

District Attorney while the cases of either the Petitioner and/or that of the

co-defendant were being handled by the Hamilton County [District Attorney’s]

Office.” The Petitioner asserts that, because his petition was summarily

dismissed, he had no opportunity to find out which judge was assigned his case

and, therefore, had no opportunity to previously raise this issue.

2011 WL 2693535, at *7. The panel concluded that the Petitioner was not entitled to relief

based upon the following rationale:

In his brief, the Petitioner states that the error coram nobis judge “was

possibly” an Assistant District Attorney at the time his, or his co-defendant’s,

case was being prosecuted. However, the Petitioner made no effort to submit

documentary evidence to factually support his claim of a “possible” conflict

of interest. He has not asked to supplement the appellate record with any kind

of documentation supporting his broad allegations.

Id. at *8. We find the same rationale to be applicable here.

The record of the Petitioner’s direct appeal reflects that David Denny and Dean

Ferraro were the Assistant District Attorneys prosecuting the Petitioner at trial and that

William H. Cox, III, was the District Attorney General at that time. See Cormia, 2000 WL

343793. In his post-conviction proceedings, the record reflects that Rodney C. Strong was

the Assistant District Attorney on the matter and that William H. Cox, III, was still the

District Attorney General at that time. See Cormia, 2005 WL 3190313.

As we noted from our discussion of the relevant caselaw, just because the judge was

employed as an Assistant District Attorney in the Hamilton County District Attorney’s Office

at the time of the Petitioner’s prosecution is not enough, by itself, to require recusal.

Moreover, supervisory authority, without more, is not enough to disqualify a judge. The

Petitioner’s broad allegation of a “possible” conflict of interest is not supported by any

documentary evidence from trial counsel or any other source and, therefore, a remand is not

required on the record before us. He is not entitled to relief on this issue.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the summary dismissal

of the petition for writ of error coram nobis.

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_________________________________

D. KELLY THOMAS, JR., JUDGE

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