IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS

Criminal Court for Davidson County

No. 96-B-866

No. M2003-00380-CCA-R3-CO - Filed June 25, 2004

The Petitioner, Christopher A. Davis, appeals the trial court's denial of his petition for writ of error

coram nobis. The State has filed a motion requesting that this Court affirm the trial court's denial

of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner failed to file

his petition within the applicable statute of limitations, failed to assert a claim that is cognizable in

a petition for writ of error coram nobis, and the statute of limitations should not be tolled.

Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed Pursuant to Rule 20, Rules 

 of the Court of Criminal Appeals

DAVID H. WELLES , J., delivered the opinion of the court, in which JERRY L. SMITH and,

ROBERT W. WEDEMEYER, JJ., joined.

Hershell Koger, for the appellant, Christopher A. Davis.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham Marney, Assistant Attorney

General, for the appellee, State of Tennessee.

MEMORANDUM OPINION

Petitioner filed a petition for a writ of error coram nobis in the trial court on November 5,

2002. Consistent with the Supreme Court’s ruling in State v. Mixon, 983 S.W.2d 661, 672 (Tenn.

1999), petitioner filed a motion for stay of the appellate proceedings in this court on the same day

that he filed his petition for writ of error coram nobis in the trial court. This court denied the stay

after determining that the petition for writ of error coram nobis was time barred, the statute of

limitations should not be tolled, and the evidence presented was not newly discovered evidence as

required for the grant of a writ of error coram nobis. Petitioner proceeded with the petition for writ

of error coram nobis in the trial court. The trial court subsequently denied the petition, and appellant

appealed. The State has filed a motion to affirm the trial court pursuant to Rule 20 of the Rules of

the Court of Criminal Appeals. 
 Attorney Phillip Wehby has denied Petitioner’s allegations by way of affidavit. 1

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A brief summary of the facts was set forth in this court’s order denying the motion to stay

the appellate proceedings as follows:

 In the trial court, appellant was found guilty of two counts of first

degree murder, two counts of felony murder, two counts of especially

aggravated robbery, and two counts of especially aggravated

kidnapping. The felony murder counts were merged into the first

degree murder counts. Appellant was ultimately sentenced to death

on both counts of first degreemurder. Additionally, he was sentenced

to two concurrent twenty-five year sentences for the especially

aggravated robbery counts and two concurrent twenty-five year

sentences for the especially aggravated kidnapping counts.

Pretrial, appellant filed a motion to disqualify the Davidson

County District AttorneyGeneral’s Office. Appellant’s argument for

disqualification centered around the fact that the trial judge’s former

law clerk, who had been involved in at least one ex parte proceeding,

had joined the Davidson County District Attorney General’s office as

a prosecutor. The trial judge ruled that while his former law clerk

was prohibited from any participation in the case, the office of the

Davidson County District Attorney General was not disqualified from

the case. As a result, the Davidson County District Attorney

General’s office continued to prosecute the case.

Appellant asserts in his . . . petition for writ of error coram

nobis that he saw one of the State’s “significant” witnesses, enter a

car with the judge’s former law clerk during his trial. Appellant

further alleges that this fact is newly discovered evidence that the

judge’s former law clerk’s actions were contrary to the orders of the

trial court; that the formerlaw clerk’s actions created another conflict

of interest in the Davidson County District Attorney General’s office;

that the actions of the former law clerk created another appearance of

impropriety; and that said actions should be considered with respect

to the appellant’s pretrial motion to disqualify. 

State v. Christopher A. Davis, No. M2001-01866-CCA-R3-DD (Order, Nov. 12, 2002). 

In this appeal appellant again acknowledges that he witnessed the contact between the

witness and the disqualified attorney during the trial , but he contends that he did not realize the 1
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significance of the contact until after he read the brief his attorney forwarded him during his direct

appeal. After reading the brief in his direct appeal, appellant forwarded a letter to his attorney on

March 16, 2002, asserting for the first time that he saw Antonio Cartwright enter a car with Phillip

Wehby during his trial. After receiving petitioner’s letter, counsel for petitioner filed a petition for

writ of error coram nobis in the trial court on November 5, 2002. 

The petition for writ of error coram nobis is time barred. A petition for writ of error coram

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

983 S.W.2d at 671. Asthis court determined in its previous order, the trial court’s judgment became

final July 12, 2001, when petitioner’s motion for new trial was denied. Although petitioner knew

the information during trial, he did not raise it. Petitioner asserts that he did not have the

opportunity to present this evidence at trial, but such argument must fail. Petitioner, himself,

allegedly witnessed the contact between the witness and Mr. Wehby during trial. He could have

advised his counsel of this information, and counsel then could have raised the issue at trial. Instead,

petitioner waited almost two years from the time of trial to notify his counsel of this alleged contact

between the witness and Mr. Wehby. Counsel asserts that the timeliness of his petition should be

determined from March 16, 2002, the date on which petitioner advised him of the alleged contact

between Mr. Wehby and the state’s witness, but such argument is not supported by law. Petitioner

waited until November 5, 2002, more than one year after the judgment became final, to bring this

information to the trial court’s attention. The petition is time barred. 

In addition to the petition being time barred, the petition also fails to assert subsequent or

newly discovered evidence, as required for a writ of error coram nobis. It is the law in Tennessee

that a writ of error coram nobis should be granted when “subsequently or newly discovered evidence

. . . may have resulted in a different judgment, had it been presented at trial.” Tenn. Code Ann. § 40-

26-105 (1997 Repl.). As this court has previously held, the writ is “an exceedingly narrow remedy

appropriate only when an issue was not addressed or could not have been addressed at trial because

it was somehow hidden or unknown and would have prevented the rendition of the judgment had

it been known to the court.” Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App.

1998)(emphasis in original). By appellant’s own admission, he witnessed the alleged contact

between the State’s witness and the disqualified law clerk during the trial. As a result, the evidence

submitted in support of appellant’s petition does not constitute subsequently or newly discovered

evidence. Petitioner asserts in his brief to this court that “the instant coram nobis issue is an issue

that could not have been litigated at the time of the trial, given the timing of the 3/16/02 letter.”

While it is true that counsel did not have the benefit of having the letter or the information contained

therein during the trial or when preparing the motion for new trial, appellant had knowledge of the

information contained in the letter at the time of trial. Accordingly, the evidence presented in the

petition for writ of error coram nobis does not constitute newly discovered evidence. Furthermore,

as this court determined in the order denying the motion for stay, the statute of limitations should

not be tolled pursuant to Workman v. State, 41 S.W.3d 100 (Tenn. 2001). 

Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed in

accordance with Rule 20, Rules of the Court of Criminal Appeals. 
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DAVID H. WELLES, JUDGE