### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE D ec em be r 9, 200 3 S es sio n STATE OF TENNESS EE v . JO EY THO MAS HOL LAND

Direc t Appeal from the Circ uit Court for Robertson County

No. 01-0174 M ichael R. Jones, Judge

No. M2003- 00988-CCA -R3-C D - F iled March 9, 2004

The Appe llant, J oey

Thomas Holland, appea ls the judgme nt of the Robertson County Circuit Court de nyinghis pe tit ion

fo r wri t of

e rr or c or am no bis

. Ho lla

nd wa s convic te d by a jur y of tw o c ounts of ag g ravated sexual battery of his minor son. Holland alleges that his convictions should be set aside be cause the v i ct im reca nted his trial testimony . After a thoroug h revie w of the r ecor d, we aff irm the dec ision of the trial court de nying the petition.

Te nn. R . A pp. P . 3 ; J udgm e ntof t he Ci r c uitCo ur t A ffirm e d.
D AVI D G. H AYES , J ., delivere d the opinion of the cour t, in which D AVI D H. W EL L ES and A L AN E. G L EN N , J J ., joined. Rog e r E ri c Ne ll, Di str ic t Pu bli c De fe nd e r; Cha

rl e s S. B loo dw or

th, As sis tant D istri c t Pu bli c Def ender , Springf

ield, Tenne ssee, f

or the Appe llant, Thomas Holland. Paul G. Summers, Attorney Gene ral a nd Reporter ; Michael M o o r e , So li c it o r G e n e r a l; H e le n a

Walton Yar broug h, Assistant Attorney Gene ra l ; J ohn Wesley

Carney , J r., District Attorney Gene ral; and Dent Morr iss, Assist ant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION

F ac tu al B ac kgr ound
On Ap ri l 24 , 2 00 1, the Ap pe lla nt was ind ic te d b y

a Rob e rt so n Co un ty

jur y fo r t wo c ounts of a g g ra vate d s e xua l batte ry
. I n Co un t 1, the Ap pe lla nt w a s c ha

rg e d w ithtou c hin g the vic tim ’s pe nis over his clothingduring September of 1995. In Count 2, al l eged to have occ urre d in Febr uary of 1999, he wa s char g ed with rubbingthe victim’s penis un d er his clothing. The vic tim was the Appellant’s son, who w as under the age of t hirteen at the t ime of t hese events. The Appe llant was tr ie d b y a jur y on Se pte mbe r 5 , 2 00 1. Th e tr ia l c ourt outli ne d the re le va nt tr ia l te sti mony

a s f oll ow s:-2- The victim testified at trial that while he, his br other, mom and da d lived on State L ine Road that his f

ather (the de fenda

nt) while they

wer e alone and in the living room “put his h an d u p underne ath my pants. He w as rubbingmy penis.” F urther, the victim testif

i ed t h at wh en he w as 9 [y ear s old] living in a tra iler that he ( the victim) was in a recliner and the defe ndant place d his hands under my pants and rubbed my

penis. On both occ asions the v i cti m was unable to remembe r what happene d that cause d the def endant t o s t o p . The victim stated he w as telling the truth. The cr oss examination of the victim established that the victim had made a prior stateme nt to Mike Noland.
Mr. Noland testified that he re quested the de fenda nt to come t o t h e DHS building. The defe ndant appe are d on one occ asion, but there was no intervie w. The defe ndant came back on April 10, 2001, and made a stateme nt. The statement wa s made a n exhibi t and re ad to the jury . Specifica lly the def endant a dmitted touching the victim’s penis in September 1995 a nd ag ain appr ox imately

in Febr uary 1999. Specifica lly

the def endant state d that the victim wa s sitti ng in a rec liner. Prior to the state me nt b e ingma de , th e de fe nd ant w a s a dv ise d th at the vic timha d ma de the se acc usations.
Cross e x amination of Mr. Noland led to the de nial from Mr. Nola nd that he told the defe ndant that by ag ree ing to this stateme nt that it would help the defe ndant t o r e g a i nc u s t o dy.
Th e de fe nd ant t e sti fi e d th a t th e date s, a dd re sse s and wh a t ha

pp e ne d c ame fr om t he vic tim ’s state me nt to Mr

. No land

. Th e de fe nd ant t e sti fi e d th a t he a g re e d to the statement beca

use - “I t w ould he lp me and Vane ssa g et custody back. And Iwas alre ady g oing thr oug h anger

manag ement cla sses and that it would g o lighter if I signe d the conf

ession. I f I

didn’t sign the confe ssion, the District Attorney would be out to ge t me if I went to tr ial.” On cross examination the defe ndant testified that the statement wa s not true. The defe ndant volunteer ed that “I was told this would never come to trial. This would - ne ver be pursued if I signe d a conf

ession.”
Mr. Noland wa s rec alled by the d ef en s e and testified that the vic tim was
scar ed for his mother when she and the de fenda nt would fig ht. Followingthe conc lusion of proof, the Appellant was convicte d of both counts of a g g ravated sexual battery , class B felonies. A sentenc ing he aringwas he ld on October 12, 2001, during which the tria l court sente nced the Appellant to ten y ear s on eac h count t o run concurre ntly

. The Appellant did not pursue a direc t appea l of his convictions or sentenc e. On August 27, 2002, the petitioner filed a petition for writ of e rror

cora m nobis, alleg ing that he wa s ent itl e d to a new tr ia l bec a us e the vic tim “ ha d re tr a c te d his s tate me nts and no w w ou ld s tate-3-

under oath that no molestation had in fac t occur red.” An evidentiary hear ing was held on Februa ry 21, 2003, during which the f ollowing e vidence , as summarized by the trial cour

t, was pre sented: . . . [A] taped inter

view of the victim . . . was m ad e o n De cember 5, 2002. The victim testified that neither e vent had oc curr ed. H e stated that he stated that the events did occ ur “be cause Ididn’t want my dad beating on my

mom no more and I jus t sa id t hat to g e t hi m out of the ho us e .” Th e vic tim fu rt he r te sti fi e d that he t old

his mother that his testimony was not true be cause “we wasn’t g etting a long an dstuff and I felt like I need my dad.” On cr oss examination t he victim stated that he did not tell his foster mom that his testim ony wa s n o t t ru e. This t estimony was ve ry e mot ion a l w ithte ars , h ang ingof the he a d a

nd me re no ds to s ome qu e sti on s.
Mike Noland testified that the vi ctim was int ervie wed at J o By rns school on Marc h 20, 2001. The notes of the statement wer e rea d to the defe ndant when he was int e rv ie we d. I n th is s tate me nt t he vic timstate d that the de fe nd ant t ou c he d h is p e nis about 2 y ea rs ago while they wer e living in Ada

ms area in a trailer

owned by

Max Ba g g ett. The c hil d d emons trated the actions of the de fenda nt. On the sec ond episode the victim state d that he was at home beca use the bus did not pick the m up and that the de fenda

nt touched his penis.
On Marc h 2 8, 20 03 , th e tr ia l co ur t is su e d a de ta ile d o pin ion

de nyingthe pe tit ion , a

nd thi s ti me ly appea l followed.
AN AL YSI S

I n this appeal, the A

ppellant ar g ues that the judg ments of conviction should be set a side and
a ne w tri a l or de re d b e c a

us e the vic tim , w ho te sti fied against t he Ap pe lla

nt at tr ia l, r e c ante d h is testimony . A wri t o f error cor am nobis is an extraordinary reme dy by which the tria l court may provide re lief fr om a judg ment under narrow and li mited circumstanc es. State v. Mix on , 983 S.W .2d 661, 666 (Tenn. 1999). The remedy is available by statute to a cr iminal defenda nt in Tennessee

. See Te nn . Co de Ann. § 4 0- 26 -1 05 (2 00 3) . T his statut e , in pe rt ine nt p art , p ro vid e s: Up on a sh ow ing by the de fe nd ant that the de fe nd ant wa s with out fa ult in f a ili ngto prese nt cer

tain evidenc e at the pr oper time, a wri t o f error c oram nobis will lie for subsequently

or new ly discovere d evidenc e re lating to matters which we re litig ated at the trial if the j udg e determines t hat s uch evidence ma y have r esulted in a diff

ere nt judgme nt, had it been pr esente d at the trial. T h e i s sue shall be trie d by the cour t without the intervention of a jur y , and if the decision be in favor of the pe titioner, the judgme nt complained of shall be set aside and the defe ndant shall be g rante d a new trial in that cause

. Id

.T h e A p p e llan t ar g u e s tha t t h e trial c o u rt a p p lied the w ro n g sta n d a rd in re a c h ing its d e c isio n . T h e A p p e llan t, 1 rel y i ng on St at e v. Wor kman , 111 S. W

. 3d 10, 18 ( T en n
. Cr i m
. A p p
. 2 0 0 2) , s u bmi t s t h at t h e cor r ec t s t an dar d i s : ( 1) whether t he newl y pro f f ered t est i m o ny i s, i n f

act , a recant at i o n and , (2) i f s o , “ t he co urt m ust go forward and de t erm i ne tha t t h e ne w tes tim o n y, i f c o n s id e re d in c o n n e c tio n w ith a ll o f o the r e v id e n c e in the c a se , cr e a te d a ‘re a so n a b le p ro b ab i l i t y’ t ha t ‘ m ay ha ve resu l t ed i n a d i f f ere nt jud gm en t .’ ” H o w ev er, t he A p p ell an t m i srea d s W or kman

. In W

or kman , the c o u rt a c k n o w le d g e d tha t M i xon w a s the p ro p e r sta n d a rd to a p p ly t o ne w ly d isc o v e re d re c a n ta tio n tes tim o n y. Id

. at 1 7

. T he co urt t hen p roce ed ed t o cl ari f y t he co ram nob i s st at ut e, T enness ee C o d e A nno t at ed s ectio n 40

- 2 6

- 1 0 5 , and prong ( 3) of

t he M i xon a n al y s i s , c on cl u di n g t h at t h e “ r ea s on abl e pr obabi l i t y ” s t an dar d w as t h e pr oper i n t er pr et at i on of t he “ m ay have resul t ed i n a dif f erent judgm ent ” l anguage o f t h e s ta t ut e and t he “ m i ght have reached a dif f erent
c o n c lus io n h a d the tru th b e e n to ld ” la n g u a g e o f M i xon
. Id

. at 1 8. U l t i mat el y , t he W or kman cour t f

ound t hat a M i

xon a n a lysis w a s ina p p lica b le to the fac ts o f t h a t ca se b e c a u se the tes tim o n y giv e n w a s n o t a r e c a n ta tio n
. Id

. -4- Reca nted testimony

may qualify as new ly discovere d evidenc e. Mixon , 983 S.W .2d at 672. A n e w tri a l sh ou ld be g ra nte d on the ba sis of ne wl y dis c ov e re d r e c ante d te sti mony , h ow e ve r, on ly if: (1) the tr ial court is reasona bly well satisfied that the te stimony g iven by the mater ial wi t n e s s w a s f

a l s e an d t h e n e w t e s t i m o n y

i s tr u e ; ( 2 ) th e d e f

e n d an t w a s r e a s o n a

bly diligent in dis cover ing the new e vidence , or wa s surprised by the fa lse testimony , or was una ble to know of the f

alsity of the testimony until af ter the trial; and (3) the jury might have rea ched a

differ ent conc lusion had the truth been told.
Id . at 673 n.17 (c itations omitted). The decision to grant or deny a petition f or writ of er

ror c oram nobis based on new ly

discovere d evidenc e lies wi t h i n t h e sound discretion of the tr ial court. See Te nn . Co de Ann. § 4 0- 26 -1 05 ; Sta te v . H ar t , 911 S.W .2d 371, 375 (Tenn. Crim. App. 1995)

. As such, we will not overturn t he decision of t he trial court in t his case a bsent a showingof ab u s e o f d i s cr et i o n
. I ni t s o p i n i o n d en yi n g th e p et i t i o n , th e t ri al co urt , ap p l yi n g Mixon , fo un d th a t: 1
Had this victim testified at the t ri al of this case that nothing oc curr ed, a motion for judgme nt of ac quittal would have bee n g rante d. Normally p rior inconsistent statem en t s wo u ld not be admitted for the tr uth of the matter a sserted. I t w ould be a question of law for the court to ha ve considere d wheth er o r n o t the confe ssion or admission was corr oborate d. The jury might we ll have re ac hed a dif fe re nt c on c lus ion

if the vic timha d tes tif

ie d that the se e ve nts did no t oc c ur . It is clea r that the de fenda

nt was di lige nt in discovering the recantation. Prong s 2 and 3 above a re satisfied.
Th e mos t di fficul t par

t of thi s c a se is ( 1) - i s th is c ourt re a so na bly we ll
satis fi e d th a t th e vic tim ’s te sti mony a t tr ia l w a s a

lie and that he wa s te lli ngthe tr

uth at the la s t h e ar in g
. T h e v ic ti m te s ti f ie d th a t h e ma d e th e o r ig in a l s tate me n ts to g et rid of his da d so he would not be at his mother any more. He testified that he re cante d be c a us e he wa s ma d a t his mot he r a t th e tim e and

wa nte d h is d a d. Duri ngthe tim e that he wa s in foster ca

re, he made no r eca

ntation.-5- . . . There are fac tors on eac h side of this question. His testimony at trial wa s be lie ve d b y the j ur

y ; it wa s c omp e lli ng , to the po int and fu ll o f s pe c if

ic s. Hi s testimony at the hea

ring was e motional as one should expect.
Th e jur y fo un d be y on d a re a so na

ble do ub t tha t the de fe nd ant did do tho se a c ts testified to by

the victi m
. I n doing so, the jury reje cted the te stimony

of the de fe nd ant t

hat he did no t c omm it e ith e r a c t and c on fe sse d o nly

to h e lp h im r e g a in
c us tod y . T he te sti mony

of the de fe nd ant at tr ia l and a t th e tim e of

the he ari nga s to why he mad e th e s tate me n t a r e ju s t n o t r e a s o n a

b le

. Ap p ly

in g c o mm o ns e n s e and
re a so n, thi s c ourt c an no t a c c e pt t hat r e a so nin g by

the de fe nd ant j us t a s th e jur y c ou ld not. Placing the confe ssion with the trial t es timony , this court is more than
rea sonably

well satisfied that the te stimony of the victim at t he ti me of the trial was true; there fore , this court is not reasona bly well satisfied that the testimony g iven by the victim at the trial wa s false a nd the cour

t is not reasonably

well satisfied that the testimony g iven by the victim at the hea

ring was true

. I n this matter, the trial cour t conducted a

n evidentiary

hear ing on the Appellant’s c laim of
rec anted testimony

at which the vic tim; hi s mo ther, Va nessa Holland; a

nd Mike Noland with the Depa rtment of Children Servic es testified. I n Marc h of 2001 , t h e victim and his y oung er br other
wer e remove d from their pa rents’ home and plac ed in foster car e. The victim remained in foste r ca re a t th e tim e of

tr ia l; h ow e ve r, he wa s re tur ne d to his mot

he r’ s c us tod

y a pp ro ximate ly tw o a

nd on e -h a lf
months fo llo wi ngthe c on c lus ion of tr ia l pr oc e e ding s. I t w a s n ot u nti l th e vic timre tur

ne d to his mot he r’ s c us tod

y tha t he c la ime d th e in st ances of sexua l c on du c t di d n ot h a pp e n. Whil e in h is mother’s c are , the victim rea d letters fr om the Appellant that stated “ how har d it is to be in prison” and “how he wants to come home, be a f amily ag ain.” Also at this t ime, the victim was not g etting alongwith his mot her a

nd felt like he ne eded his father. F urthermor e, ac cordingto Mike Noland, the victim’s mother told him, prior to trial, that she believe d the Appellant a bused the victim. As noted by the trial cour

t, the Appellant’s r easons f or conf essing to these cr imes are unrea sonable, i.e ., it is n o t r e a s o n a

b le to c o n c lu d e th a t a dmi tt in g to s e xu a l a b u s e o f o n e ’ s c h il d w o u ld h elp that individual reg ain custody of the c hild. More over, at trial, the victim g ave spe cific te stimony about two instances of

improper se x ual contac t by his father

. Since the same trial judg e presided at both the t rial and cora m nobis hear ing, the judge had
a un iqu e op po rt

un ity to de te rm ine , to the e xten t th a t it is p os sib le to k

no w whe n a

no the r p e rs on

is being untruthful, at which occa sion the victim testified falsely

. Te rry Ste ph e ns v . S

tate , No. M2001- 0 0 0 2 3 -C C A- R 3 -C O (T en n
. C ri m
. Ap p
. at Na s h v i l l e, De c. 1 9 , 2 0 0 1 ) ( ci t i n g Me nd iol a v . S c ho mi g , 224 F.3d 589, 593 (7th Cir. 2000)). Applying the dictates of Mixon , the cour t determined that the false te stimony

occur red at the hear ing and, based upon our review of the entire rec ord including theA ltho u g h i t is n o t th e b a sis fo r o u r h o ld ing in this c a se , w e no te tha t co u rts a re sk e p tica l o f re c a n ta tio n s in 2

s exu al ab us e cas es i nv ol vi ng chi l dren f or, i n s uch cas es , “ r eca nt at i on i s a r ecu r r i ng phen om enon. ” Te r r y St ephe ns , N o. M 2 0 0 1

- 0 0 0 2 3

- C C A

- R 3

- C O (quo t i ng Un i t ed S t a t es v

. P ro vo st , 96 9 F.2d 61 7 , 62 1 (8 C i r. 19 9 2 ))

. th
-6- trial transc ript, we c annot say that the cour

t abused its discretion in so concluding

. Acc ording ly , we a ff ir m th e or de r o f t

he tr ia l c ourt

de nyingthe pe tit ion

fo r wri t of

e rr or c or am no bis

. 2

CO NC LU SION

B a se d u po n th e fo re g oin g a

uth or iti e s and

re a so nin g , w e a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

.

___________________________________ DAVI D G. HAY ES, J UDGE