IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 12, 2011 Session

ERSKINE LEROY JOHNSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P29609 John P. Colton, Jr., Judge

No. W2010-01800-CCA-R3-CO - Filed December 9, 2011

The Petitioner, Erskine Leroy Johnson, appeals the Shelby County Criminal Court’s

dismissal of his petition for a writ of error coram nobis from his 1985 conviction for felony

murder. He contends that newly discovered evidence entitles him to a new trial. He also

contends that the trial court improperly weighed the newly discovered evidence and failed

to assess that evidence in the context of the evidentiary record as a whole in determining

whether the result of the trial may have been different. We reverse the judgment of the trial

court, vacate the Petitioner’s felony murder conviction, and remand the case for a new trial.

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

Conviction Vacated, and Case Remanded

JOSEPH M. TIPTON, P.J., delivered the opinion of the Court, in which THOMAS T. WOODALL

AND NORMA MCGEE OGLE, JJ., joined.

Gerald D. Skahan, Memphis, Tennessee, and Jonathan I. Blackman, David E. Brodsky,

Carmine D. Boccuzzi, Jr., David H. Herrington, and Elizabeth Vicens, New York, New

York, for the appellant, Erskine Leroy Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy

P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

The record reflects that on December 7, 1985, the Petitioner was convicted of felony

murder and sentenced to death. The facts of this case were stated by our supreme court on

direct appeal:
Between 8:30 and 9:00 a.m. on 2 October 1983 Joe

Belenchia, owner of a Food Rite grocery in Memphis, was killed

in the course of an attempted robbery. An eyewitness to the

holdup[, Tommy Perkins,] made an in-court identification of the

defendant as the person who killed Mr. Belenchia. He had also

made a pretrial identification of defendant from a photo display.

He further identified Jerome Moreland, a friend of defendant’s,

who was also involved. The witness was not 100% sure of his

identification at trial and only “pretty sure” of his pretrial

identification. . . . This witness had also seen a

Burgundy-colored station wagon in the store parking lot with

two people in the front and two in the back. One of the

passengers in the rear seat was a female. This vehicle was

subsequently linked to the crime. Earlier in the morning of the

robbery a young boy saw a man switching license plates from a

car parked in the street to a maroon station wagon. Three people

were in the station wagon and the man switching the license

plate was observed talking to a woman in a white car. The

number on the license plate was the same as the number on the

vehicle used in the robbery. A palm print taken from this

vehicle was subsequently identified as defendant’s. Defendant

was wearing an orange or rust colored suede or leather jacket

which was identified by at least two witnesses to the robbery.

Another witness in the grocery store at the time of the robbery

testified that a woman, accompanied by a man, attempted to get

into the store office. She was carrying a brown paper bag in her

hand. She was prevented from doing so by the security guard

who in turn was restrained by the man, who put a gun to his

head. At that time the witness heard the sound of three shots

coming from the front of the store. During the police

investigation the maroon station wagon was traced to the St.

Louis Airport. Defendant’s cousin, Elizabeth Starks, testified

that defendant and another man named Jerome came to her

home the night before the homicide. They were traveling in a

maroon station wagon. The next morning defendant, Jerome

and another man came to her residence. Her boyfriend, Dennis

Williams went with the three men to the store for cake mix

about 7:00 a.m. When Mr. Williams returned he was pale and

acted exhausted and upset. Subsequently defendant,Jerome and

a third man returned to her house. A woman in a white car also

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came there. As previously noted, the witness Beverly Batts

testified that several months later defendant told her he and two

friends had stolen a car from the St. Louis Airport and he had

committed a robbery and murder in Memphis.

Defendant offered an alibi defense through a number of

witnesses who testified that on the night of 1 October 1983 and

the morning of 2 October 1983 he was in St. Louis at a birthday

party for his mother. He testified that he attended the birthday

party and on the following morning took his children to his

mother’s house in order to attend church. He denied knowing

Ms. Starks and said that Ms. Batts told him she would keep him

in jail because he would not pay her bail in California.

State v. Johnson, 762 S.W.2d 110, 115-16 (Tenn. 1988). The court affirmed the Petitioner’s

conviction and death sentence. Id. at 120.

The Petitioner filed a petition for post-conviction relief claiming that the State

withheld exculpatory evidence at the trial that “would have shown that another ‘group’

committed these offenses; . . . strengthened his alibi defense; and it could have been used to

impeach Beverly Batts, who testified for the State that Defendant had confessed to the

murder.” Erskine Leroy Johnson v. State, No. 02C01-9707-CR-00292, Shelby County, slip

op. at 5 (Tenn. Crim. App. Aug. 12, 1999). This court agreed with the Petitioner that the

State withheld exculpatory evidence, including evidence that (1) Johnnie L. Wilborn, a

customer in the grocery store during the robbery, was shown twenty-four photographs,

including a photograph of the Petitioner, and picked out a photograph of Michael Brown as

looking like the gunman; (2) Harold Quarles, who testified at the trial, was shown a

photograph lineup by the police that included a photograph of the Petitioner, but Mr. Quarles

identified Michael Brown and Charles Keller as looking like the two individuals he saw

changing the license plate on the getaway vehicle before the shooting occurred; (3) Miles

McKinney identified the getaway car as being used by Darvi Cunningham, a prostitute

working for Eric Brown, Michael Brown’s brother, months before the shooting; (4) Eric

Brown, Michael Brown, and Charles Keller were involved in a car theft ring which stole

rental cars from the St. Louis Airport; (5) a police report showing that the Petitioner’s

fingerprints did not match any of the fingerprints removed from the vehicle; and (6) a police

report listing the places in the getaway car from which the prints were lifted, on which the

location from where the Petitioner’s palm print was alleged to have been taken was not listed.

Id. at 6-11.

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Despite finding this undisclosed evidence to be exculpatory, this court held that the

evidence was not material and that the State’s failure to disclose the evidence did not

undermine confidence in the guilty verdict because

[t]he circumstantial proof linking Defendant to this shooting is

strong. In addition to Mr. Perkins’s identification of Defendant

as the shooter, Defendant’s palm print was found on the getaway

car. Moreover, despite Defendant’s claim that he was in St.

Louis at the time of the shooting, his cousin, Elizabeth Starks,

identified him as being in Memphis on the day of the shooting

and identified him as being in the getaway car. She further

testified that she and a friend had been in that car prior to the

robbery. Her testimony was corroborated by the presence of

their fingerprintsin the car. Furthermore, Beverly Battstestified

that Defendant confessed to a “cold-blooded” shooting in

Memphis.

. . .

The identification by Perkins, the corroborated testimony of

Starks, Defendant’s admission to Batts, and Defendant’s palm

print on the getaway car have not been overcome.

Id. at 9-10. This court affirmed the conviction, but remanded the case for a new capital

sentencing hearing after determining that the failure of the State to disclose an exculpatory

police report, which indicated that the Petitioner did not fire a bullet that grazed a bystander

and that the victim had a gun, resulted in the jury’s arguable misapplication of the “great risk

of death” aggravating circumstance. Id. at 18, 41. The ruling was affirmed by our supreme

court. See Johnson v. State, 38 S.W.3d 52, 63 (Tenn. 2001). On remand, the State did not

seek the death penalty, and the trial court sentenced the Petitioner to life imprisonment.

On April 22, 2005, the Petitioner filed a petition for writ of error coram nobis,

claiming that he was entitled to a new trial based upon newly discovered evidence because:

(1) Dennis Williams, who identified the Petitioner as a perpetrator of the robbery and

corroborated the testimony of Elizabeth Starks, recanted his trial testimony and an earlier

statement provided to the police and now states that he never met the Petitioner and lied due

to police pressure and a desire to protect Ms. Starks, who was his girlfriend at the time; (2)

he learned during his investigation for his resentencing hearing that Elizabeth Starks, a key

witness for the prosecution, had a close personal relationship with Betty Jo Ford, a member

of the “Brown Gang,” and, therefore, had a motive to testify against the Petitioner in order

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to protect Ford; and (3) Tommy Perkins, an eyewitness who identified the Petitioner as the

man who shot the victim, stated that the State advised him just before he testified at the trial

that the Petitioner may have changed his appearance to make an identification more difficult,

which he understood as an indication that he should identify the Petitioner as the shooter

even if he did not recognize the Petitioner. The Petitioner argued that the newly discovered

evidence undermined the State’s evidence and strengthened his defense that the “Brown

Gang” was responsible for the murder and that the newly discovered evidence, when

considered in conjunction with the suppressed exculpatory evidence, overwhelmingly

demonstrated the likelihood that the jury may have reached a different result had they heard

all of the evidence.

Several affidavits were attached to the petition. In the first affidavit, Dennis Williams

stated that he lied when he told the police that the Petitioner was one of the individuals who

visited Ms. Starks’s home on the weekend of October 1, 1983. He stated that he lied because

the police threatened to take away his grant of immunity if he did not tell the truth, the police

told him that Ms. Starks said the Petitioner was at her home, and the police identified her

version of the events as the truth. In the second affidavit, Darvi Cunningham stated that she

had known Betty Jo Ford since 1982 and that she met Ms. Starks through Ms. Ford. She said

Ms. Ford and Ms. Starks were very close and told her that they were first cousins. In the

third affidavit, Tommy Perkins stated that the State advised him just before he testified at the

trial that the Petitioner may have changed his appearance to make an identification more

difficult, which he understood as an indication that he should identify the Petitioner as the

shooter even if he did not recognize the Petitioner. He said that he was not sure when he

identified the Petitioner at the trial as the man he saw shoot the victim and that his

identification was based in part on photographs of the Petitioner previously shown to him by

the police. He said the police previously stated that they caught the shooter and then showed

him photographs of only the Petitioner when asking him to identify the shooter.

At the hearing on the petition, Richard Walker testified that from the age of nine until

his mid-twenties, he saw Ms. Starks frequently because they each sang in gospel groups in

Memphis. Ms. Starks introduced him to Ms. Ford when he was in high school. He said that

Ms. Starks and Ms. Ford were “pretty tight. . . like partners” and that he frequently saw them

together. Mr. Walker began dating Ms. Ford shortly after being introduced to her and she

became pregnant with his child. He said that he lost touch with Ms. Ford after the baby was

born but that whenever he ran into Ms. Starks, she would tell him about Ms. Ford.

On cross-examination, Mr. Walker testified that the last time he saw Ms. Ford was in

1980 and agreed that the close relationship he observed between Ms. Ford and Ms. Starks

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was what he observed before 1980. He did not know the status of their relationship after

1980.

Joe Roy Robinson testified that in 1982, he “hung out” with Ms. Ford and Ms. Starks

at a club called the Executive Lounge. He said that Ms. Ford and Ms. Starks came to the

club together and that he saw them almost every weekend. He said that the two women were

“real close” and that he thought they were related. Almost every time he saw Ms. Starks, Ms.

Ford was with her. He said that Ms. Starks, Ms. Ford, and a woman named Darvi

Cunningham worked as prostitutes for his brothers and that the three women frequently spent

time together. On cross-examination, Mr. Robinson testified that over the course of four or

five years, he frequently saw Ms. Starks and Ms. Ford together.

Melvin Hoyle testified that he managed the Executive Lounge from 1977 until 1984.

He said that Ms. Starks frequently came to the club on weekends with Ms. Ford and that Ms.

Starks introduced him to Ms. Ford. He said that the women were “real close” and that he

thought they were related. On cross-examination, Mr. Hoyle testified that he never asked

Ms. Ford or Ms. Starks if they were related. On re-direct examination, Mr. Hoyle testified

that his observations of the two women led him to believe that they were cousins.

The trial court denied the petition after finding that the Petitioner was at fault for

failing to discover the evidence in a timely manner and that the Petitioner failed to show that

the evidence, if presented, “would have resulted in a different verdict.” On appeal, this court

concluded that due process required tolling the statute of limitations and that the trial court

denied the petition based upon an incorrect standard. See Erskine Leroy Johnson v. State,

No. W2007-01546-CCA-R3-CO, Shelby County, slip op. at 1 (Tenn. Crim. App. Sept. 30,

2009). This court reversed the denial of the petition and remanded to the trial court for

reconsideration of the petition under the correct standard. Id.

On remand, the trial court again denied the petition after it concluded that the

Petitioner failed to establish that the newly discovered evidence, if presented, may have

resulted in a different verdict. With regard to the affidavit of Dennis Williams, the trial court

found that it was not reasonably satisfied that Mr. Williams’s previous testimony was false

because he gave the statement with an attorney present and after being informed of his right

to remain silent. The court stated:

The mere fact that Mr. Williams now claims that he was

intimidated and coerced does not suffice to warrant a new trial.

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Even assuming that the new statement is true, this court is not

reasonably satisfied that the jury may have reached a different

verdict had they been aware of it . . . Williams’ identification of

Petitioner was merely a small piece of an otherwise strong case.

With regard to the affidavit of Tommy Lee Perkins, the trial court found that the jury

was aware of facts that could have impeached Mr. Perkins’s identification of the Petitioner

because Mr. Perkins testified at the trial that he was “not a hundred percent” sure of his

identification and that before his identification, the police told him that the suspect had been

caught and showed him several photographs of the Petitioner. The trial court found that the

additional evidence included in the affidavit, that Mr. Perkins was told by the State that the

Petitioner may have changed his appearance to make an identification more difficult and that

Mr. Perkins interpreted this as an indication that he should identify the Petitioner as the

person responsible for the shooting, was merely impeachment evidence that built upon other

impeachment evidence introduced during the trial. The trial court noted that Mr. Perkins did

not claim that his identification was false or coerced and concluded that “[b]ecause the

testimony of Mr. Perkins had already been significantly impeached, and perhaps discredited,

this court is not reasonably satisfied that the presentation of this additional evidence may

have caused the jury to reach a different verdict.”

With regard to evidence showing the existence of a relationship between Ms. Starks

and Ms. Ford, the trial court stated that the Petitioner had not shown that the evidence may

have caused the jury to reach a different verdict because the evidence did not establish a

“kinship relationship between Elizabeth Starks and Betty Jo Ford, nor any relationship for

that matter,” and did not establish that Ms. Starks would lie based solely on their alleged

relationship. The trial court noted that “Elizabeth Starks has a kinship relationship with

Petitioner and if she was inclined to lie based on a relationship, she would have done so on

Petitioner’s behalf.” This appeal followed.

The Petitioner contends that the trial court erred by improperly weighing newly

discovered evidence and by assessing each piece of evidence in isolation, rather than as a

whole in the context of the entire evidentiary record, in determining whether the result of the

trial may have been different had the newly discovered evidence been introduced at the trial.

He argues that the newly discovered evidence, when considered in conjunction with the

improperly withheld exculpatory evidence and the evidence introduced at the trial, entitles

him to a new trial. The State contends that the trial court correctly determined that the

affidavit of Mr. Williams was not credible and that the affidavit of Mr. Perkins did not

amount to new evidence, and then properly determined that the evidence of Ms. Starks’s

relationship with Ms. Ford could not have resulted in a different judgment in the context of

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the entire record. We conclude that the trial court erred in holding that the Petitioner failed

to establish that the evidence of a relationship between Ms. Starks and Ms. Ford, had it been

presented at the trial, may have resulted in a different judgment.

Tennessee Code Annotated section 40-26-105(b) states:

Upon a showing by the defendant that the defendant was

without fault in failing to present certain evidence at the proper

time, a writ of error coram nobis will lie for subsequently or

newly discovered evidence relating to matters which were

litigated at the trial if the judge determines that such evidence

may have resulted in a different judgment, had it been presented

at the trial.

T.C.A. § 40-26-105(b) (2010); see State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App.

1995). The decision to grant or deny such a writ rests within the sound discretion of the trial

court. Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010). A petition for writ of error coram

nobis must be filed within one year of the date the judgment becomes final in the trial court.

T.C.A. § 27-7-103 (2010); State v. Mixon, 983 S.W.2d 661, 663 (Tenn. 1999); State v.

Ratliff, 71 S.W.3d 291, 295 (Tenn. Crim. App. 2001). Despite the one-year statute of

limitations, due process may require tolling of the limitations period if a petitioner seeks

relief based upon newly discovered evidence of actual innocence. Harris, 301 S.W.3d at 145;

Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001).

[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 (Tenn. 2007).

A new trial should be granted upon the basis of newly

discovered recanted testimony only if (1) the trial court is

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reasonably wellsatisfied that the testimony given by the material

witness was false and the new testimony is true; (2) the

defendant was reasonably diligent in discovering the new

evidence, or was surprised by the false testimony, or was unable

to know of the falsity of the testimony until after the trial; and

(3) the jury might have reached a different conclusion had the

truth been told.

State v. Ratliff, 71 S.W.3d 291, 298 (Tenn. Crim. App. 2001). The assessment of witness

credibility is entrusted to the sound discretion of the trial court. See Hart, 911 S.W.2d at 375;

Roland Bennett v. State, No. E2004-01416-CCA-R3-PC, Hamilton County, slip op. at 6

(Tenn. Crim. App. July 14, 2005) (holding that the trial court did not abuse its discretion in

denying error coram nobis relief after determining that a witness who recanted previous

testimony was not credible), app. denied (Tenn. Dec. 5, 2005).

Before we determine whether the trial court erred in its assessment of the evidence

admitted at the coram nobis hearing, we must first determine whether this evidence should

have been considered only in light of the evidence admitted at the trial or whether the entire

record should be taken into account, including the wrongfully withheld exculpatory evidence

that was not discovered until after the trial. We have found no case on point with the unique

situation facing the Petitioner, who, after the trial, discovered exculpatory evidence that a

post-conviction court deemed to be wrongly withheld but not sufficiently material to warrant

a reversal of the guilty verdict, and then subsequently discovered additional evidence that

potentially undermined the verdict and the rationale underlying the post-conviction court’s

holding. Although this court has determined that suppressed exculpatory evidence can

amount to newly discovered evidence and can be considered by an error coram nobis court,

it has not addressed whether wrongly suppressed exculpatory evidence may be considered

in conjunction with newly discovered evidence that wasfound after the exculpatory evidence

was previously presented to a post-conviction court. See Freshwater v. State, 160 S.W.3d

548, 555-56 (Tenn. Crim. App. 2004)

Our supreme court has stated that in determining whether newly discovered evidence

may have led to a different result, “the trial judge must then consider both the evidence at

trial and that offered at the coram nobis proceeding . . . .” Vasques, 221 S.W.3d at 527. We

note that in the same opinion, the court stated that in determining whether error coram nobis

relief was warranted, it would “carefully consider all of the proof in the context of the new

information offered at the coram nobis proceeding.” Id. at 522 (emphasis added). Here, a

finding that the trial courtshould consider the newly discovered evidence only in conjunction

with the evidence submitted at trial would require the court to ignore evidence that this court

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previously determined was exculpatory and should have been made available for the

Petitioners’s use at the trial. See Erskine Leroy Johnson, slip op. at 6-11. We hold that

when determining whether error coram nobis relief was warranted, the newly discovered

evidence should be considered in light of the evidence introduced at the trial and the

improperly withheld exculpatory evidence that this court previously determined should have

been made available for use at the trial.

The Petitioner contends that the trial court erred by considering each piece of newly

discovered evidence in isolation, rather than as a whole, in determining whether the result

of the trial may have been different. We disagree. Although the trial court made specific

findings with regard to each piece of evidence and individually rejected the argument that

each piece of evidence may have resulted in a different judgment had it been presented at the

trial, the trial court ultimately concluded that the Petitioner failed to establish “that the newly

discovered evidence, if presented, may have resulted in a different verdict. Petitioner has not

met this burden with regard to all pieces of evidence heretofore presented.” Additionally,

the record reflects that the trial court considered the newly discovered evidence in

conjunction with the wrongly suppressed evidence and the evidence introduced at the trial,

as it found that the evidence establishing a relationship between Ms. Starks and Ms. Ford

provided “a further link between the Brown gang and the Belenchia homicide.” The

Petitioner is not entitled to relief on this claim.

The Petitioner also contends that the trial court improperly weighed and assessed the

newly discovered evidence in determining whether the result of the trial may have been

different. With regard to the affidavit of Mr. Williams, the trial court was not satisfied that

his new testimony was true and his previous testimony was false. The Petitioner contends

that the trial court improperly assessed this evidence because Mr. Williams’s affidavit states

that he lied because the police threatened to take away a grant of immunity if he did not tell

the truth, that the police insisted that Ms. Starks’s version of events was the truth, and that

he did not want to get Ms. Starks into trouble by contradicting what she told the police. The

State contends that the trial court properly rejected this evidence after determining that it was

not credible. We conclude that the trial court did not abuse its discretion in determining that

Mr. Williams’s testimony contained in the affidavit was not credible.

The record reflects that Mr. Williams had an attorney negotiate a signed immunity

agreement with the State before he agreed to speak with the police. As noted by the trial

court, Mr. Williams gave his original statement with an attorney present and after being

informed of his right to remain silent. We note that Mr. Williams did not testify at the error

coram nobis hearing and that the trial court’s assessment of his credibility was limited to the

evidence contained in the record and his affidavit. In light of evidence showing that Mr.

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Williams had a preexisting signed immunity agreement, that an attorney was present to

thwart police interrogation tactics, and that he could have remained silent and not

contradicted Ms. Starks’s testimony, we conclude that the trial court did not abuse its

discretion in determining that the testimony of Mr. Williams contained in the affidavit was

not credible.

With regard to the affidavit of Tommy Lee Perkins, the Petitioner contends that the

trial court erred in its assessment of this evidence because it gave no weight to the fact that

the only eyewitness to identify the Petitioner had his testimony significantly impeached. The

State contends that the trial court properly rejected this evidence because it did not constitute

newly discovered evidence and that the Petitioner did not establish that the evidence may

have affected the judgment had it been presented at the trial. We agree with the State.

In denying relief, the trial court did not expressly find that the affidavit was not newly

discovered evidence. Rather, it stated that the affidavit was merely cumulative impeachment

evidence that built upon impeachment evidence offered at the trial and that because Mr.

Perkins’s testimony was significantly impeached at the trial, it was not satisfied that

presentation of the additional impeachment evidence may have affected the verdict. The fact

that Mr. Perkins now states that the State approached him shortly before he testified and told

him the Petitioner may have changed his appearance to make an identification more difficult

does not amount to newly discovered evidence that the Petitioner was without fault for

failing to present at the proper time. The Petitioner could have elicited this impeachment

evidence at the trial during cross-examination of Mr. Perkins and did so with regard to

similar impeachment evidence. The Petitioner elicited testimony that Mr. Perkins was “not

a hundred percent” sure of his identification and that prior to his identification, the police

conditioned his identification by telling him that the suspect had been caught and showing

him several photographs of the Petitioner. A follow-up question asking if the State otherwise

conditioned his identification would have produced the testimony that the Petitioner now

asserts constitutes newly discovered evidence.

The trial court correctly noted that Mr. Perkins’s identification of the Petitioner was

significantly impeached at the trial. The cumulative impeachment evidence contained in the

affidavit would have done little to impeach Mr. Perkins’s already questionable identification.

We conclude that the trial court did not err in rejecting the notion that the presentation of this

additional evidence, when considered in light of the entire record, may have caused the jury

to reach a different verdict.

With regard to evidence indicating a relationship between Ms. Starks and Ms. Ford,

the Petitioner contends that the trial court erred in its assessment of this evidence by only

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considering the impeachment value of the evidence and disregarding its earlier finding that

the evidence forged a connection between Ms. Starks and the Brown Gang and further

implicated the Brown Gang as responsible for the murder. The State contends that the trial

court did not err in its assessment of this evidence because other evidence in the record

supports the finding of guilt. We agree with the Petitioner.

The trial court found that the testimony of witnesses at the error coram nobis hearing

and the evidence contained in Darvi Cunningham’s affidavit tended to establish that

“Elizabeth Starks and Betty Joe Ford, a prostitute for the Brown Gang, were close friends

who may have even held themselves out as cousins.” The court held that the evidence, if

true,

would serve to impeach the testimony of Elizabeth Starks

because it would supply a motive for her, as perhaps a member

of the Brown gang, to point the investigation towards another

suspect. This would also provide a further link between the

Brown gang and the Belenchia homicide because if Starks were

a member of the Brown gang, who were being investigated for

the crime, and she falsely implicated an unrelated party, then

this would tend to implicate the Browns as trying to divert

investigative attention from their group.

Despite these findings, the trial court concluded that the Petitioner had not shown that

this additional evidence may have caused the jury to reach a different verdict because the

evidence did not establish a “kinship relationship” between Ms. Starks and Ms. Ford and did

not establish that Ms. Starks would lie based solely on their relationship. The trial court

noted that “Elizabeth Starks has a kinship relationship with Petitioner and if she was inclined

to lie based on a relationship, she would have done so on Petitioner’s behalf.” However, the

trial court did not state that it ever questioned the credibility of Ms. Cunningham, Mr.

Walker, Mr. Robinson, or Mr. Hoyle. Instead, it noted that their testimony undermined Ms.

Starks’s credibility as a witness and provided a further link between the Brown Gang and the

Belenchia homicide. It also noted that the evidence supplied a motive for Ms. Starks to lie

and point the investigation away from the Brown Gang and towards another suspect.

Furthermore, although the trial courtstated that Ms. Starks would have lied for the Petitioner,

her cousin, if she were inclined to lie based on a relationship, that finding is not supported

by the record. The record reflects that although Ms. Starks was related to the Petitioner, she

did not know the Petitioner, had not met him until the night before the murder when he was

introduced to her as her cousin, and had never heard that she had a cousin named Erskine

Johnson. In contrast to evidence of no relationship between Ms. Starks and the Petitioner,

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the record reflects that she had a close relationship with Ms. Ford and a motive to protect Ms.

Ford and the Brown Gang, who were being investigated for the crime. We conclude that the

trial court abused its discretion by concluding that the Petitioner failed to show that evidence

indicating a relationship between Ms. Starks and Ms. Ford may have caused the jury to reach

a different verdict.

As noted by the trial court and this court, Ms. Starks was a “very important” witness

for the State. Although Mr. Perkins’s identification and Mr. Williams’s trial testimony have

not been overcome, Mr. Perkins’s testimony was “significantly impeached, and perhaps

discredited,” while Mr. Williams’s testimony now corroborates Ms. Starks, who haslikewise

been significantly impeached and discredited. We conclude that evidence tending to impeach

Ms. Starks’s testimony and forge a link between her and the Brown Gang, when considered

in conjunction with multiple pieces of evidence implicating the Brown Gang and the

evidence at the trial, including evidence that the sole eyewitness identifying the Petitioner

as the shooter had his testimony significantly impeached, may have resulted in a different

judgment had it been presented at the trial. We conclude that the trial court erred by denying

the petition.

In consideration of the foregoing and the record as a whole, we reverse the judgment

of the trial court, vacate the Petitioner’s felony murder conviction, and remand the case for

a new trial.

___________________________________

JOSEPH M. TIPTON , PRESIDING JUDGE

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