IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 21, 2013

JOANN G. ROSA v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 100898 Mary Beth Leibowitz, Judge

No. E2013-00356-CCA-R3-ECN-FILED-OCTOBER 21, 2013

The Petitioner, Joann G. Rosa, appeals the Knox County Criminal Court’s denial of her

petition for a writ of error coram nobis regarding her conviction for first degree murder, for

which she is serving a life sentence. The Petitioner contends that the trial judge who

presided over her jury trial pleaded guilty to official misconduct, that the judge’s misconduct

was newly discovered evidence entitling her to a new trial, that the judge’s misconduct

created structural error entitling her to a new trial, and that the trial judge who denied coram

nobis relief had a conflict of interest because she was mentioned in the Tennessee Bureau of

Investigation (TBI) report regarding the misconduct allegation. We affirm the judgment of

the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which ALAN E. GLENN and

ROGER A. PAGE, JJ., joined.

Joann G. Rosa, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney

General; and Randall E. Nichols, District Attorney General, for the appellee, State of

Tennessee.

OPINION

This case arises from the 1995 killing of James Dalton. This court summarized the

facts of the case in the appeal of the Petitioner’s conviction:

On March 25, 1995, the defendant; her codefendant, Dennis Halcomb;

the murder victim, James Dalton; and two friends, Teresa Dake and Larry
Davis, rented two adjoining motel rooms in Athens, Tennessee, and spent the

evening “partying.” The next day, the group decided to spend another evening

at the motel. That evening, while Dalton and Davis remained at the motel, the

defendant, co-defendant Halcomb, and Dake robbed the gas station where

Dake worked.

Early the next morning, on March 27, 1995, the group left Athens and

drove to Knoxville, stopping at another motel, where they again rented

adjoining rooms. The defendant, co-defendant Halcomb, and Dake expressed

concern that Dalton would report the robbery to authorities. The defendant

said they were going to have to “do something” to keep him from “saying

anything.” Later, while Davis and Dake slept in one of the motel rooms and

Dalton slept in the other, the defendant and co-defendant Halcomb discussed

what to do about Dalton. They planned to take Dalton’s wallet and car, and

Halcomb said he was going to knock Dalton out. The defendant took Dalton’s

keys and wallet and put them in the room where Dake and Davis were

sleeping.

When the defendant returned, Dalton confronted co-defendant Halcomb

about his missing keys and wallet. Halcomb, who was approximately 6'3" and

weighed over 200 pounds, began hitting Dalton, who was approximately 5'4"

and 145 pounds. Halcomb held Dalton’s neck in a chokehold and asked the

defendant to help him. While Dalton was on his knees leaning over the bed,

the defendant grabbed the front of Dalton’s throat and choked him, even while

Dalton gasped for air and begged her to stop. Halcomb removed Dalton’s belt

from his pants, placed it around Dalton’s neck, and told the defendant to hold

the belt. While Halcomb went to the restroom, the defendant choked Dalton

with the belt until his face turned blue. When Halcomb returned, the

defendant checked Dalton for a pulse, but did not find one.

They drove Dalton’s body to an area of town with which the defendant

was familiar. After the defendant sliced Dalton’s throat with a box cutter to

ensure he was dead, they dumped his body on the side of the road, covering it

with leaves. They returned to the motel, picked up Dake, and traveled in

Dalton’s car to Illinois to visit the defendant’s family and then to Daytona

Beach, Florida.

Meanwhile, Dalton was reported missing. On April 3, 1995, Sherry

Wade, a friend of Dake and the defendant, received a call from the defendant.

Knowing Dalton was missing and thinking he might be with them, Wade asked

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the defendant where Dalton was. At first, the defendant replied she did not

know, but then she told Wade “he was gone; he’s gone; he’s under a tree.” A

couple of days later, Wade reported this conversation to the McMinn County

Sheriff’s Department.

On April 6, 1995, the defendant, her codefendant, and Dake were

apprehended in a traffic stop while driving Dalton’s vehicle in Florida. During

an interview by the Florida authorities, the defendant initially denied knowing

anything about Dalton’s disappearance, but she later drew a map showing

where his body was buried. Using the map, Tennessee authorities found the

body[.]

State v. Rosa, 966 S.W.2d 833, 836 (Tenn. Crim. App. 1999). The Petitioner sought postconviction relief on the ground that she received the ineffective assistance of counsel. The

trial court denied relief, and this court affirmed. See Joann Gail Rosa v. State, No. E2002-

00437-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App. Mar. 17, 2003), perm. app. denied

(Tenn. Sept. 2, 2003).

On December 28, 2012, the Petitioner filed her petition for a writ of error coram nobis

on the ground that the trial judge who presided over her jury trial was convicted of official

misconduct on March 10, 2011. She argued that the TBI report and an interview of the judge

by a reporter showed the judge was intoxicated while presiding over criminal cases dating

from 1996 and that this was newly discovered evidence entitling her to a new trial. She

further argued that the judge’s ability to act as the thirteenth juror was impaired by his

addiction and that had she known of the addiction,she would have requested the judge recuse

himself from the trial. She argued the judge’s intoxication prevented her from being

convicted of lesser included homicide offenses.

The trial court summarily denied relief. It found that the Petitioner presented no

evidence showing the “inappropriate behavior” for which the trial judge pleaded guilty. It

found that the Petitioner failed to make specific allegations showing inappropriate conduct

by the judge during her trial and that the alleged conduct “would have changed the outcome

of her trial in 1996.” The court also found that the statute of limitations for filing a petition

for a writ of error coram nobis had expired. This appeal followed.

The Petitioner contends that the trial court erred by denying her coram nobis relief.

She argues that the TBI investigation into the trial judge who presided over her trial

constitutes newly discovered evidence because the report showed the judge engaged in

official misconduct, namely prescription drug abuse and illegal activities surrounding his

addiction. She argues the judge’s misconduct created structural error, entitling her to a new

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trial. The State responds that the court properly denied coram nobis relief because the

petition was untimely and that the Petitioner has failed to state a cognizable claim. We agree

with the State.

A writ of error coram nobis lies “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 (2012); 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.

Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988). A petition for a 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 (2000); State v. Mixon, 983 S.W.2d 661, 663 (Tenn. 1999); State

v. Ratliff, 71 S.W.3d 291, 295 (Tenn. Crim. App. 2001). The only exception to the statute

of limitations is when due process principles require tolling. Workman v. State, 41 S.W.3d

100, 103 (Tenn. 2001).

Due process may require tolling of the limitations period if a petitioner seeks relief

based upon newly discovered evidence of actual innocence. Harris v. State, 301 S.W.3d 141,

145 (Tenn. 2010); Workman, 41 S.W.3d at 101. “‘Before a state may terminate a claim for

failure to comply with procedural requirements such as statutes of limitations, due process

requires that potential litigants be provided an opportunity for the presentation of claims at

a meaningful time and in a meaningful manner.’” Workman, 41 S.W.3d at 102 (quoting

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 2002)). Nevertheless, a petitioner seeking

relief under the statute must exercise due diligence in presenting claims that fall outside the

statute of limitations. Harris, 301 S.W.3d at 144; Mixon, 983 S.W.2d at 670.

Although the Petitioner failed to attach a copy of the judgment of conviction to her

petition for relief, the trial court’s written order denying coram nobis relief states that the

Petitioner was sentenced on September 5, 1996. The Petitioner’s conviction became final

on June 14, 1999, when the supreme court denied her application for permission to appeal.

See Rosa, 966 S.W.2d at 833. The petition was untimely. The State argues that the

Petitioner is not entitled to tolling the statute of limitations because she has failed to state a

cognizable claim for coram nobis relief.

Our supreme court has said that determining whether due process requires tolling

requires a three-step analysis in which the court must

(1) determine when the limitations period would normally have begun to run;

(2) determine whether the grounds for relief actually arose after the limitations

period would normally have commenced; and (3) if the grounds are

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“later-arising,” determine if, under the facts of the case, a strict application of

the limitations period would effectively deny the petitioner a reasonable

opportunity to present the claim. In making this final determination, courts

should carefully weigh the petitioner’sliberty interest in “collaterally attacking

constitutional violations occurring during the conviction process,” Burford,

845 S.W.2d at 207, against the State’s interest in preventing the litigation of

“stale and fraudulent claims.” Id. at 208.

State v. Sands, 903 S.W.2d 297, 301 (Tenn. 2005).

The Petitioner argues that the TBI report and an interview of the judge by a reporter

showed that the judge was intoxicated while presiding over criminal cases dating from 1996

and that this is newly discovered evidence entitling her to a new trial. The Petitioner’s

argument is misplaced. “When a trial court addresses a petition for [a] writ of error coram

nobis, it must find that the subsequently or newly discovered evidence ‘may have resulted

in a different judgment, had it been presented at the trial.’” Wilson v. State, 367 S.W.3d 229,

235 (Tenn. 2012) (quoting T.C.A. § 40-26-105(b)). As a result, not only must the newly

discovered evidence supporting a petition for a writ of error coram nobis suggest actual

innocence, it must also be admissible. Id. at 237 (internal citations omitted) (concluding that

an assistant district attorney’s handwritten note expressing views about the credibility of two

of the State’s witnesses was inadmissible evidence and was insufficient to support a petition

for a writ of error coram nobis).

In Gary S. Mayes v. State, No. E2012-00680-CCA-R3-PC, slip op. at 4 (Tenn. Crim.

App. Feb. 7, 2013), the petitioner sought coram nobis relief on a similar ground as the

Petitioner in the present case. There, the petitioner contended that “newly discovered

evidence related to ‘questions concerning the judgment and morality of the [post-conviction

judge]’ warranted coram nobis relief.” Id., slip op. at 2. This court concluded that the

general allegation did not “cast doubt” on the petitioner’s guilt and could not form the basis

of a petition for coram nobis relief. Id., slip op. at 4.

We conclude that the Petitioner has failed to state a cognizable claim for coram nobis

relief because she has not presented evidence of actual innocence. Evidence of intoxication

and illegal activities surrounding the judge’s drug abuse would not have been admissible at

her trial because it was not relevant and probative of whether she committed the crime of

which she was convicted. See Tenn. R. Evid. 401 (defining relevant evidence as “having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence”). Likewise, the

judge’s intoxication during her trial does not relate to matters litigated at the trial. See T.C.A.

§ 40-26-105. Tolling of the statute of limitations is unnecessary because she has failed to

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state a cognizable claim for relief. The Petitioner is not entitled to relief on this basis.

The Petitioner arguesthe trial judge’sintoxication created structural error. “Structural

constitutional errors are errors that compromise the integrity of the judicial process itself.”

State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (citing State v. Garrison, 40 S.W.3d

426, 433 n.9 (Tenn. 2000)). Structural errors “necessarily render a criminal trial

fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder v.

United States, 527 U.S. 1, 9 (1999). As a result, structural errors are subject to automatic

reversal because they deprive a defendant of a right to a fair trial. Rodriguez, 254 S.W.3d

at 361.

Our supreme court recently considered whether the behavior of the trial judge who

presided over the Petitioner’s trial rose to the level of structural error absent any evidence

that the judge’s misconduct affected the integrity of the trial. See State v. Letalvis Cobbins,

LeMaricus Davidson, and Geroge Thomas, No. E2012-00448-SC-R10-DD (Tenn. May 24,

2012). The defendants in Letalvis Cobbins, et al. argued that the trial judge’s misconduct

outside the courtroom constituted structural error, entitling them to new trials. Our supreme

court, though, disagreed. Similar to the Petitioner, the defendants failed to show any conduct

on the part of the judge affecting the integrity of their trials. The court concluded that a trial

judge’s misconduct alone does not constitute structural error. Id., slip op. at 4. The court

also concluded that a defendant must show that the “misconduct affected the trial

proceedings.” Id. (citing State v. Benson, 973 S.W.2d 202, 206 (Tenn. 1998) (concluding

that a petitioner must show that the trial judge, who engaged in acts of corruption at the time

of the trial, actually solicited a bribe from the petitioner)); see State v. Raynella Dossett

Leath, No. E2011-00437-CCA-R3-CD, slip op. at 43 (Tenn. Crim. App. June 3, 2013)

(concluding “a trial judge’s misconduct outside the courtroom does not constitute structural

error when there is no showing . . . in the record that the trial judge’s misconduct affected the

outcome of the proceedings”) (internal quotation omitted), perm. app. filed (Tenn. Aug. 1,

2013). The Petitioner failed to allege in her petition specific instances of conduct by the trial

judge affecting the integrity of her trial. Therefore, she cannot establish structural error. The

Petitioner is not entitled to relief on this basis.

The Petitioner also argues that the trial judge who denied coram nobis relief had a

conflict of interest because she was mentioned in the TBI report. The State contends the

issue is waived because the Petitioner failed to include the report in the appellate record. We

agree that the Petitioner is not entitled to relief.

The petition does not describe the nature of the alleged conflict of interest. The

Petitioner’s failure to describe the alleged conflict of interest and any mention of the trial

judge in the report, alone, do not justify recusal. See Alley v. State, 882 S.W.2d 810, 820

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(Tenn. Crim. App. 1994) (concluding that recusal is “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”). The Petitioner is not entitled to

relief.

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

court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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