### IN THE COURT OF CRIMI NAL APPEALS OF TE NNESSEE AT NASHVILLE

ST A TE OF TE N N ES SE E v

. C HR IS TO P HE R A

. D A V IS

Crim inal Cou rt for Davidson Coun ty

No. 96-B-866

No. M2003- 00380-CCA -R3-C O - F iled Jun e 25, 2004

The Petitioner, Christopher A. Davis, appea ls the trial court' s denial of his petition for writ of er ror

cora m nobis. The State has filed a motion re questing that this Court aff irm the trial court's de nial of re lie f p ur su a nt t o Ru le 20 , Ru le s o f the Cou rt of Cr imi na l A pp e a ls. Th e Pe tit ion e r fa ile d to f ile his pe tit ion wi thi n th e app lic able sta tut e of lim ita tio ns , f

a ile d to a sse rt

a c la im t ha t is c og niza

ble in a petition for writ of err or cor am nobis, and the sta t u t e of limitations should not be tolled. Acc ording ly , the State' s motion i s g rante d and the judg ment of the trial c ourt is affir med.

Te nn. R . A pp. P . 3 ; J udgm e nt of t he Cr im ina l C our t A ffirm e d P ur sua nt to Rul e 20 , R ule s of t he Co ur t o f Cr im ina l A ppe als

D A V ID H. WEL

L ES , J., d elive re d th e op ini on of the c ou rt , in wh ic h JERR Y L. SMI TH and, ROBERT W. WEDEMEYER, J J ., joined.

He rs he ll K og e r, fo r the app e lla nt, Chr ist op he r A . D a vis

. Paul G. Summers, Attorney Gene ral & Reporter ; Eliz abeth B i n gh am M ar ney , Assistant Attorney Gene ral, for

the appe llee, State of Te nnessee

.

M EM OR AN DU M OP IN ION

Petitioner filed a pe tit i o n fo r a writ of er ror c oram nobis in the trial court on November 5, 2002. Consist ent with the Supreme Court’s r uling in State v. Mix on, 983 S.W .2d 661, 672 (Tenn. 1999), petitioner f

iled a motion for stay

of the a ppellate procee dings in this court on the s ame da y that he filed his pe tition for writ of err or cora m nobis in the trial court. This cour t denied the stay afte r dete rmining tha t the petition for writ of e rror cora m nobis was time barre d, the statute of limit ations should not be tolled, and the e vidence prese nted was not ne wly discovere d evidenc e as

re qu ir e d f or the g ra nt o f a wr it of e rr or c or a m no bis

. Pe tit ion e r p ro c e e de d w ith the pe tit ion fo r w ri t of er ror c oram nobis in the trial court. The trial court subsequently denied the pe tition, and appellant appea led. The State ha s filed a motion to affir m the trial court pur suant to Rule 20 of the Rules of the Court of Criminal Appea ls.Attorney Phill ip Wehby

has denie d Petitioner’s alleg ations by way of af fidavit. 1

2 A brief summary of the fa cts was se t forth in th i s co urt’s orde r deny ing the motion to s tay the app e lla te pr oc e e din g s a s f oll ow s:

I n th e tr ia l c ourt , appel la nt w a s f ou nd g uil ty

of tw o c ou nts of

fi rs t de g re e mur de r, tw o co un ts of fe lon y mur de r, tw o c ou nts of

e sp e c ia lly ag g ravat ed robbe ry , and two counts of e specia lly ag g rava ted kid na pp ing . T he fe lon y

mur de r c ou nts we re me rg e d in to the fi rs t de g re e mur de r c ou nts . A pp e lla nt w a s u lti ma tely sen te nc e d to de a th on both counts of first deg ree murder. Additionally , he wa s sentence d
to tw o c on c ur

re nt tw e nty -f

ive y e ar se nte nc e s fo r the es pe c ia lly ag g rava ted robbe ry

cou nts and two conc urre nt twenty -five y ear

se nte nc e s f

or the e sp e c ia lly

a g g ra va te d k idn app ing c ou nts

.

Pretrial, appe llant filed a motion to disqualify the Davidson CountyDistrict Attorney Gene ral’s Office

. Appellant’s a rg ument for disqualification ce ntere d around the fac t tha t the trial judg e’s f ormer l aw cl er k
, wh o h ad b ee n i n v o l v ed i n at l ea s to n e e x p ar t e p ro ce ed i n g, had joined the Da vidson County District Attorney Gene ral’s of

fice as a prose cutor. The trial judg e rule d th at whi le his former law cle rk was prohibited f

rom an y p ar t i cipation in the ca se, the off ice of the Da v id s o n Co u n ty

District Attorney

Gene ral wa s not disqualified from the ca se. As a r esult, the Davidson C ounty District Attorney Gene ral’s of

fice continued to prosec ute the ca se.
Appellant asse rt s in his . . . petiti on for writ of err or cor am nobis that he saw one of the State’s “ signifi ca n t ” witnesses, e nter a

car with the judge ’s former law cler k during his tri al

. Appellant further alleges that this fact is newly discovere d evidenc e that the judge ’s former law cle rk’s a ctions were contra ry to the order s of the trial court; that the former law cler k’s actions cre ated a nother c onflict of interest in the Davidson County District Attorney

Gene ral’s of

fice ; that the actions of the former law cle rk cr eate d another appea ranc e of impropriety ; and that said actions should be considere d with respec t to the appellant’ s pretria l motion t o disqualify

.

Sta te v . Ch ris top he r A . D av is , No. M2001-01866-CCA-R3-DD (Orde r, Nov. 12, 2002).

I n this appeal a

ppellant ag ain ac k n o wl ed ges t hat he witnesse d the contac t betwee n the witness and the d i s q u al i fi ed attorne y during the trial , but he contends tha t he did not rea liz e the 13

signific ance of the c ontact until after he re ad the brief his attorney forwa rded him during his direct appea l. After r eading the brief in his direct appe al, appe llant forwa rded a letter to h i s attorney

on Ma rc h 16 , 2 00 2, a sse rt ing fo r the fi rs t ti me that he sa w A nto nio Cart wr ig ht e nte r a c ar w ith Phi lli p Wehby during his tria l. After r ece iving pe titioner’s letter, c ounsel for pe titioner filed a pe tition for writ of er ror c oram nobis in the trial court on November 5, 2002.

The pe tition for writ of er ror c oram nobis is time barre d. A petition for wr it of err or cor am nobis must be filed within one y ear of the time judg ment become s final in the trial court. Mix on, 98 3 S. W.2 d at 671

. As thi s cou rt de te rm ine d in its pre vio us or de r, the tr ia l c ou rt ’s jud g me nt b e c a me final Jul y 12, 2001, when petitioner’s motion for new trial wa s denied. Althoug h petitioner knew the information during trial, he did not raise it. Petit ioner a sserts that he did not have the opportunity

to present this evidenc e at tria l, but such arg ument must f ail . Petitioner, himself, alleg edly witnessed the c ontact betwe en the witness a nd Mr. Wehby during trial. He co u l d have advised his counse l of this information, and counsel then c ould have r aised the issue a t trial. I nstead, petitioner wa ited almost two y ear s from the time of trial to notify his counsel of this alleg ed conta ct betwee n the witness and Mr. Wehby . Counsel asserts that the t imeliness of hi s petition should be deter mined from Mar ch 16, 2002, the da te on which petitioner advised him of the a lleg ed conta ct betwee n Mr. Wehby

and the state’s witness, but suc h arg ument is not supported by law. Petitioner

wa ite d u nti l N ov e mbe r 5 , 2 00 2, mor e tha n o ne y e ar a ft e r the jud g me nt b e c a me fi na l, t o b ri ng thi s information to the trial court’s attention. The pe tition i s time barre d.

I n addition t o t h e p eti tion being time ba rre d, the petition also fails to assert subseque nt or newly discovere d evidenc e, as require d for a writ of error coram nobis. I t is the law in Tennesse e that a wr it of err or cor am nobis should be g rante d when “ subsequently or new ly discovere d evidenc e . . . may have r esulted in a diff

ere nt judgment, ha d it be en prese nted at trial.” Tenn. Code Ann. § 40- 26-105 (1997 Repl.). A s this c ourt has previously held, the writ is “ an exceeding ly narr ow re medy

app ro pr ia te on ly

wh e n a n is su e wa s n ot a dd re sse d o r c ou ld n ot ha ve be e n a dd re sse d a t tr ia l be c a us e it was somehow hidden o r u nknown and would ha ve pre vented the r endition of the judg ment had it been kn o wn t o the court.” New some v. State, 995 S.W .2d 129, 133 (Tenn. Crim. App. 1998)(e mphasis in original ). By appellant’ s own admission, he witnessed the a lleg ed conta ct betwee n the S tate’s witness and the disqualified law c lerk during the trial

. As a result, the evidenc e submit ted in support of appe llant’s petition does not constitute subsequently or new ly discovere d evidenc e. Petitioner asse rts in his brief to this court that “the inst ant coram nobis issue is an issue that could not have be en litiga ted at t h e time of the trial, g iven the timing of the 3/16/02 letter.” Whil e it is true that counse l did not have the benef it of having the letter or the information containe d there in during the trial or when prepa ring the motion for new tria l, appellant had know ledg e of the information containe d in the letter a t the time of trial. Acc ording ly , the evidenc e pre sented in the petition for writ of e rror cora m nobis does not c onstitut e newly discovere d evidenc e. F urthermor e,

a s th is c ou rt

de te rm ine d in the or de r d e ny ing the mot ion fo r s ta y , th e sta tut e of li mitat ion s sh ou ld not be tolled pursuant to Workman v. State, 41 S.W .3d 100 (Tenn. 2001)

.

Ac c or din g ly , th e Sta te ’s mot ion is g ra nte d. Th e jud g me nt o f the tr ia l c ou rt is a ff ir me d in

acc ordanc e with Rule 20, Rules of the Court of Criminal Appea ls.4 

### ____________________________________ DAVID H. W ELLES, JUDGE