1 It is the policy of the authoring judg e to identify victims of sex crimes by their initials.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE June 24, 200 3 Session
STATE OF TENN ESSEE v. WILLIAM PA UL EBLEN
Direct Appeal from the Criminal Court for K nox County No. 67260 Richard R. Baumgartner, Judge

No. E2002-01221-CCA-R3-CD September 26, 2003

The Defendant, WilliamPaul Eblen, was convicted by a jury of two c ounts of aggravated ra pe and
one count of aggravate d kidnapping. The trial court sentenced the De fenda nt to two concurrent terms of twenty-four

years f or the rapes, and to a

concurrent term of eleven years for t he kid nappi ng, all to be served in the Department of Correction. In this direct appeal, the Defendant challeng es the sufficiency

of the eviden ce; alleges that the prosecutor committed reve rsible misconduct during closing argument; and complains that the trial court erre d in overruling his petition for writ of error coram nobis. We affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined. Mike Whalen, Knoxville, Tennessee, for the appellant, William Paul Eblen.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Randall E. Nichols, District Attorney Ge neral; and Scott Green, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The eighteen-y

ear-old victim, C.P., 1 testified that she left her a partment to go to the Breezeway

market at about 8:45 on the evening of August 31, 1998. She stated that she drove her car, and followed the car driven by the sister of her

friend and

neighbor, Melissa Tapp. Melissa was in the back seat of the car driven by her sister. C.P. explained that Melissa’s car went through the drive-thru window of

the mark et first; C .P. was be

hind in her

car. No one else was with C. P. Melissa’s car drove off, and C.P. pulled up to the window. She placed her or d er and w as d riving away when she

heard a man who ha

d been sta

nding ne arby

yell at her t

hat she ha

d droppe d some-2-

mo ne y. She stopped, and the man walked up to the passenger side of her car. C.P. testified that the man got into her car, pulled a gun, a nd told her to drive.

C.P. testified that the man had been wearing a g reen shirt and brown khaki shorts. The man told her not

to look at h

im. He took

off his sh

irt and wr apped it a round his head, le aving o nly his ey es showin g. He to ld C.P. wher e to drive . When they

reache d a back

road, the man told C.P. to stop and get out of the car. The man followed C.P. and ma

de her g o to the fr

ont of the car. He told her to lay down on

the ground; she did so. The man then got on top of her, pulled a knife, and sliced open the front of her dress. The man then told C. P. to take off her unde rwear, which she

did. C.P.
was on her me

nstrual p eriod an d told the ma n that she was wea ring a t ampon. The man told

her to
remove it; she did. The man then pulledhis pants down and raped her vaginally . When C.P. tried to push the man away , he struck her three times in the face. The rap e lasted for seve ral minute s, until C.P.’s attacker ejaculated.

The man got u

p and told C .P. to get up. The two retur ned to the car, and the man t

old C.P. to drive. A

t this time, t

he victim d

id not know

where th e gu n was located. After she had driven aroundfor a while, the ma n t ol d C .P . t o p ul l o ve r a ga in , i n a n a ll ey. The man told the victim to get out and bend over the hood of the car. When C.P. complied, the man pulled her underwear down and raped her anally . The victim testified that she told the man to stop, that it hurt; she testified that she could “feel it ripping.” The man did not stop until he had ejaculated aga in. They then re-entered the car and

the man to ld C.P. not to call th e police or he would have her killed. The man then shoved a ten-dollar bill in her mouth, told her, “Thanks for a good time,” wiped the car down with his shirt, a

nd left.

The victim

drove ho me and tol d Melissa Tapp and Melissa’s sister that she had been raped. Melissa flagge d down a policeman, and an ambulance arrive d shortly thereaf ter to transport the victim to the hospita

l.

On cross-examination, the victim admitted that she had called the police about her boyfriend, Tony Norris, the night before (Aug ust 30, 1998). She swore out a complaint stating that Mr. Norr is had shoved her around, put her on the floor, and punched her in the lip. Later in the trial, she stated that she did not remember

testifying a

t the preliminary

hearing that she had seen another man talking with the Defendant at the Breezeway market while she was at the window.

Dr. Timothy Gunter

examined the victim at the emergency room and collected evidence for
a rape kit. He testified that the victim arrived at the emergency room at 12:24 a.m. The victim told him that she h ad been

sexually assaulte d. Dr. Gunter test ified tha t the victim had a he

ma to ma (bruising and sw elli ng) on her ri ght che ek. This appeared to be a new injury , that is, having occurred within the previou s two hours . Dr. Gunter testified that the hematoma on the victim’s cheek was consistent with having been inflicted by a fist. Dr. Gunter also testified that he observed irritation
on the victim’s labia, which is usually ca used by friction. The

re was also some blood from the victim’s menstrual period. Dr. G unter testified that C.P.’s rectal area was “diffuse ly swollen, the whole rectal area, and there wa s a small tear.” He explained tha t the area “appeared to be-3-

traumatized,” that the tear was “fresh,” and that the injuries were most likely caused by

some type of penetration trauma.

On cross-examination, Dr. Gunter stated that he had examined C.P.’s back

and saw n o cuts or scrapes. He admitted that rectal tears can be cause d by bowel movements. He a lso testified that the victim’s facial injuries did not appear to have been inflicted on the pr evious night, August 30.

Knoxville Police De

partmen t Office r La rry Franklin Viney ard spoke

briefly with the vi ctim at the hospital. He noticed a small cut to her u pper lip and redn ess in her face. He descr

ibed thes e injuries as “consistent with injuries that occurred immediately after an assaul t.” He su

bsequen tly visited the Breezeway

market and spoke there with a Mr. Mullins. Mr. Mullins told Officer Vineyard that the Defendant had been at the marke tthe night before and advised him of one of the Defendant’s relatives who lived nearby . Officer Viney ardspoke with the relative and aske d him to have the Defe

ndant con tact him. O ffic er Vineyard la ter heard from the Defendant’s mother and visited he r house to speak with the Defe

ndant. Of

ficer Viney ard spoke

with the D efenda

nt late in the morning on September 1, and collected the clothes which the Defendant told him he had been wearing the night

before. Officer Viney

ard described these clothes as a blue shirt and aqua pa nts. Officer Vineyard a

lso prepared a photographic line-up containing six photographs, including one of the Defendant. When the victim was shown this line -up, she identified the Defendant as her assailant in “less than probably five seconds.”

Sub sequent

laboratory te sting revealed the presence of sperm in swabs taken from th e victim’s vaginal and rectal area s. DNA testing revealed that the sperm matche d the DNA pr ofi le obtained from a sample of the Defendant’s blood, to a statistical probability of “one in 3.29 quintillion.”

Melissa Tapp testified that

she had known the victim about two years a nd that they had bee

n best friends. She testified that she saw no marks on C.P.’s face at the time they all l eft to go to the store. She also testified that she had seen a man standing near the Bre ezeway drive -thru window at the time she was there in the car ahead of the victim’s. The man was we aring beige shorts and a green t-shirt. T he next time

she saw th

e victim was at the apartment. She heard a car horn blowing like someone was “lay

ing on it.” She went

out about five minutes later and found the victim in her
car. She described

the victim as “[h]er eye wa s black, and her dress was torn.” Ms. Tapp testified that the victim was crying , upset, looked terri fie d, and was say ing she had been raped. Ms. Tapp flagged down a police of

ficer.

Officer Mark Fortner was the patrol office r flagged down by

Ms. Tapp. He spoke with the victim at the ap artm en t. He test ified tha t she had s ome red marks on he r face and “wa s pretty distraught.” He described the marks on her face as appearing

“pretty fresh.” C.P. gave him a tendollar bill and told him that her attacker had given it to her.-4-

Officer Mark Waggone

r collected evidence

at the crime scene and

also at the hospital. He took photographs of the victim and took into custody the rape kit and the victim’s clo thes. He testified that the victim had a split upper lip and bruising on her right chee k and right ey e. Officer James L. Miller, Jr. testified on behalf of the Defendant. He explained that he had reported to the victim’s residence on the night of August 30, 1998, on a domestic c all. The v

ictim told him that she had been in an argument with her boyfrie

nd, Tony Norris, and tha

t he had struck her with his fist. Officer Miller testified that he observed the victim to have a split lower lip.

Michael Ralph Mullins also testified on behalf of the Defendant. He testified that he was a t the Breezeway

market a t the sa me time as the Defendant on the night of August 31. Mr. Mullins testified that he saw a car pull up to the window, and the Defendant asked the woman driving if she would give him a ride to the Pilot. Mr. Mullins testified that the female responded, “sure,” a nd leaned over and opened the car door from the inside. The Defendant got in and they drove off. Mr. Mulllins described the woman as “f riendly, and laughing, and cutting up, and g oing on.” He described the Defe ndant’ s clothing at that time as a white t-shirt and bagg y white shorts. Mr. Mullins stated tha

t it was between eight and nine o’cloc k in the evening when he observed this even t.
The Defendant also testified. He stated that he had known the victim since 1996 because she and his wife were friends. The Defenda ntand his wife lived next door to Terry Norris’ mother. The foursome visited with each other frequently . He saw the victim at the Breezeway market on the night in question between 10:30 and 10:45. He stated that the car in front of the victim’s was Judy Cooper’ s, and he did not see Melissa Tapp that night. The De fendant asked the victim if sh

e would drive him home in exchange for gas money . She said yes, and he g ot in her car. They drove to a gas station and pulle d into the p arking lot. There, they

commenced talking and

flirting. The victim was complaining about her boyf riend, Terry

Norris. They

then drove to a nearby

park. The Defendant stated that he did not ask the victim to drop him off at his mother’s because he “wanted to do more,” that he “felt [he] had a chance to do more,” and that the “opportunity was - was there.” At the park, they got out and talked for about five minutes. They then “sta

rted to kiss each other” and “procee ded to have sex.” The Defendant did not accost the victim with a gun or a knife, and had neither w ith him. The victi m did not pro test or as k the Defe ndant to st

op. When the

y f inished, t hey returne d to the victim’s car and drove toward the Defe ndant’s mother’s house. There, they stopped in an alley behind the house and had sex again.

On cross-examination, the Defendant stated that both episode s of sex were vaginal. He explained that a tota

l of about thirty minutes elapsedbetween the time he got in the victim’s car and they had sex the

first time . The fir st

episode l asted ab out fifte en minute s. It took them two minutes to get to the alley , at which point they talked for a couple of minutes and then had the second episode of intercourse. This episode lasted five minutes. The victim then dropped the Defendant off behind his house and left.

The Defendant examined the victim’s dress, which had earlier been admitted into evidence, and acknowledged the tears in the fabric. He stated that

the dress had not been like that when he left-5-

the victim. He also stated that he did not know how the victim’s rectal area came to be injured. He te stified that he had not noticed any marks or bruises or puffiness on her face w h ile they wer

e together. He state d that the y ha d kissed while havi ng sex an d that the vic tim had not complained about a hurt lip. He testified that he gave the victim ten dollars for g as.
The Defendant acknowledged tha t Officer Viney ard asked him to give a blood sample. He te stifie d that he refused to give a sample on Off icer Viney ard’s advice. He also testified that the victim was lying, but that he didn’t “ have a clue” as to why

. Officer Vineyard te stified on rebutta l and deni ed having

advised t he Defe ndant torefuse the blood test. He statedthat he “encouraged him to take the test”but that the Defendant refused. He also testified that Mr. Mullins told him on the morning after the incident that he had been at the store, saw the victim drive in, and as she was starting out of the exit, saw the Defendant y ell at her. The victim stopped, and he saw the Defendant g o get in her car.

On the basis of this proof, the jury c onvicted the Defe ndant of t wo counts of aggravated r ape with a deadly we apon and one count of aggr avated kidnapping to facilitate a felony

. ANALYSIS As a preliminary ma

tter, the State has alleged that the Defenda ntdid not timely

file his motion for new

trial. The judgme

nt forms in

this case indicate that they were entered on June 29, 2001. The motion for new trial was filed on July 31, 2001, outside the mandatory thirty-day

filing period. See

Tenn. R. Crim. P. 33(b). Upon motion of the Defendant to correct the judgments, the trial judge made a specific finding tha t he did not sign the judgment forms until July 2, 2001, at the earlies t. The tri al judge

specific ally

decline d, howeve

r, to alte r or ame nd the judg

ment form s.
The Defendan t now contends that a judgment cannot be “entered” until it has been signed by the trial judge. However, the Defe ndant cites us to no case law directly on this point. Our supreme court ha s noted the

distinctio n betwee

n the “re ndition” o f a judg ment and its “entry :”

“Rendered” means expresse d or announced in a conclusive manner and with decisive effec t, certainly so whe

n at the same time notat ion of it is made on a judgment docket, or other more or less permanent memorandum recor d kept by the Judge for the purpose. “The rendition of judgment, and the entry of judg

ment, are different and distinct, each from

the other . The for

mer is the act of the court, while the latter is the act of the clerk of the court.”

Jackson v. Jarratt, 165 Tenn. 76, 79, 52 S.W.2d 137, 138 (1932) (quoting Anderso n v. Mitche ll , 58 Ind. 593, 594 (1877)). Thus, as our court of appeals has recognized, “[t]he ‘entry ’ of a judgment has been defin ed as ‘t he min ister ial ac t by which endur ing ev idence of the judicial act of rendition of judgment is afforded.’” Brannon v. County of Shelby , 900 S .W. 2d 30, 33 (Tenn. Ct. App. 1994) (quoting Carter v. Board of Zoning Appeals of Nashville , 377 S .W.2d 914, 9 16 (T enn. 1964) ). We have found no controlling authority stating that a judgment must besigned by the trial judge prior2 We note that t rial courts are empowered to cor rect cleri cal mis takes aff ecti ng thei r own doc ume nts. See Tenn. R. Cri m. P. 36.
-6- to the judgment

being entered. I

ndeed, contrary

to the Defendant’s position, this Court has held on several occasions that a judgment is not void for lack of the rendering judge’s signature. See James Russell Gann v. David Mills, Warden , No. E2003-00281-CCA-R3-PC, 2003 WL 21714064, at *1 (Tenn. Crim. App., Knoxville, July 24, 2003), and cases cited therein. Thus, it wouldappear that a judgment can be “entered” prior to, or even without, being signed by the trial judge.

Of course, this confusion could be obviated if trial courts established a procedure where by judgmen ts were not dated and entered until signed by the judge. In that eve

nt, there would be no question as to the date from which the time for filing a newtrial motion begins to run. In this case,
we need not determine whether, for the purposes o f this app eal, the trial court needs to amend the judgmen ts. 2 The failure to timely f ile a motion for new trial results in the waiver of most issue s otherwis e appealable. SeeTenn. R. App. P. 3(e). However, a challeng e to the suff iciency of the evidence is not thereby

waived. See, e .g. , State v. Dodson , 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Thus, we wi ll address the Defendant’s contentions in that rega rd. With respect to the Defendant’s contention of prosecutorial misconduct duringclosing argument, that issue is normall

y waivedif not rai sed in a tim ely new tria l motion. He

re, howe ver, the Defend ant raise s that issue in the context of

plain error. Trial er

rors rising to the

level of plain er ror are not waive d by

an untimely motion for new trial. See Tenn. R. Crim. P. 52(b).

Fi na ll y, the Defe

ndant’s i ssue conc erning

the trial court’ s denial o f his petition for writ of
error coram nobis arises outside the context of the original trial, and is, indeed , a s eparat e procee ding. Thus, it is n ot an issue subject to

being r aised in a motio n for new tri al, and w e will address it on the merits in this appeal. See State v. Mixon , 983 S.W.2d 661, 671 (Tenn. 1999).

In short, this Court has jurisdiction to review the issues before it in this appeal, irrespective of whether the Defendant’s motion for new trial wa s timely filed. Because the issue of the effective date of entry

of the judgments is moot, we decline to address it further.

SUFFICIENCY OF THE EVIDENCE The Defend ant conte

nds that there is no t suffici ent evidenc e to support hi s convict ions. Tennessee Rule of Ap

pellate P rocedur e 13(e) prescr

ibes that “ [f]indingsof guilt in criminal actions whether by t he trial c ourt or ju

ry shall be s et asid e if the evidence is insufficient to support the findi ngs by the trier of f

act of guilt bey ond a reasonable doubt.” Ev idenc e is sufficient if, after reviewing the evidence in the light most favorable to the prosecu tion, any rationa l trier of fact could have found the

essentia l element s of the c

rime bey ond a rea sonable

doubt. See Jackson v. V

irginia , 443 U.S. 307, 319 ( 1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 200 0). I n addition , becau se conviction by a trier of

fact destroy s the presumption of innocence an d imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidenc e was insuffic ient. See McBee

v. State , 372 S.W.2d 173, 1 76 (Tenn . 1963); see also Stat e v. Buggs , 995 S.W.2d 102,-7-

105-06 (Tenn. 1999); State v . Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence a s well as a ll reason able and

legit imate inf erences that may

be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 191; see also Buggs , 995 S.W.2d at 105. Likewise, sho uld the reviewing court find particular conf licts in the trial testimo ny, th e court must resolve them in favor of the jury verdict or trial court judgment. See Tuggl e , 639 S .W.2 d at 91 4. All quest ions invo lvin g the cre dibilit y of witnesses, the we ight and value to be given the evidenc e, and a ll factua l issues ar e resolv ed by

the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 7 95 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

The Defendant was convicted of two counts of aggravated r

ape with a deadly

weapon. That crime is defined as the “unlawf ul sexual pe

netratio n of a vic tim

by the defe

ndant . . . accompanied by . . . [f]orce or coercion . . . used to acco mplish the act and the defendant is armed with a weap on[.]” Tenn. Code Ann. § 39-13-502(a)(1). Here, the victim testified that the Defendant was armedwith both a

gun and a knife, and used

both to threaten her. The Def endant un

lawfully sexually penetra ted the vi ctim on two

separa te occa sions, bothof which were accomplished by force
or coercion. Medical proof corrobora ted the victim’s testimony. T he Defendant acknowledged having had sex with the victim. The Defendant’s argument that the evidence is not suff icient re sts on the claim

that the Sta

te’s pro of is not cred

ible. This Court doe s not addr ess issue s of cre dibility of witnesses; the jury does. The evidence being more than sufficient to support the Defendant’s two convicti ons of ag grava

ted rape , this issue

is without me

rit.

The Defendant was also convicted of one count of a ggravated kidnapping . As charg ed in this case, that crime is committed upon the false imprisonment of another, to facilitate the commission of a ny felony

. SeeTenn. Code Ann. § 39-13-304(a)(1). “A per son commits the offense of fals e imprisonment who knowing ly r emoves or

confine s another

unlawfu lly s o as to inte

rfere substantia

lly withthe other’s liberty.” Id. § 39-13-302(a). The proo f in this ca se, take n in the lig

ht most fav orable to the State , establis hed that t he Defe ndant fa lsely imprisoned the victim within her own car in order to commit the felony of ag gravated rape. The pr oof be ing more than sufficient to support the Defend ant’s co nviction o f this cha rge, th is issue is without mer

it.
PROSECUTORIAL MISCONDUCT The defense theory

offer ed at trial was that the victim willingly eng aged in sex with the Defenda nt, but claimed rape in order to avoid reprisal by her violent boyfrie

nd. During def

ens e counsel’s examination of witnesses, the points were mad e that it was possible that the victim had torn her own dress, and that theinjury to her rectum had been caused by a bowel movement. During init ial cl osin g argumen t, th e pros ecuto r coun tered t his t heory wit h the f ollo wing:-8- What else are they

trying to get you to swa

llow? Her dress wasn’t like that when she left [the Defendant]. Well, how did it get this way , [Defendan t] ? It is cl early ripped, folks. No question about that. Are we to believe, as well, th e suggestion

or the innuendo that is made that she r ipped her own dres s to make it look better? I suppose she cut her own rectum to make that look better, too, and cre ated the swelling by pe

netrating something into her rectum to make that look better.

. . . Pardon my Frenc

h. The tear in her rectum. I suppose she did that on the way home from the alley ove

r in Western Height s, as well. And maybe while she was doing that, she

made her rectum sw ell up like the

doctor de scribed

to y ou. What did the doctor te

ll yo u that wasconsis tent w ith? Trauma, penetration. And they ca n’t explain that. You get

[defense counsel] to

stand up he

re and e xplain that t

o you. He is going to have the opportunity. I challenge him right now. How did that happen?

Alth ough no objection was interposed to the underlined portion of the argument, the Defendant now contends that the prosecutor’s statements constituted an impermissible shifting of the b urde n of proof to h im.

Later in his i niti al clo sing ar gument , the p rosecu tor st ated t he fol lowi ng:
When [Office

r] Vineyard firs t got up to

[the Defendant’s] place thene xt da y, we have heard on and on and on about what a cooperative sort [the Defendant] has been. Of course, then we find out here just about half an hour ago that this man, who is trying to co nvi nce you that he just has consensual sex with [C.P.] some twelve hours before, wh en

thi s of fic er ge ts u p ther e t o ta lk t o him, w ha t do es he do? H e wants to talk to a lawyer

. Again, no objection was made to this portion of the prosecutor’s argument. On appe al, however, the Defendant

contends that the prosecutor’s statement constitutes an impermissible comment on the Defend ant’s exe

rcise of his constit

utional ri ght to co

unsel.

Where a prosecuting attorney makes allegedly

objectionable remarks during closing argume nt, but no contemporaneous objection is made, the complaining defenda nt is not entitled to relief on appeal unless the remarks constitute “plain error.” SeeTenn. R. App. P. 3(e); Te nn. R

. Crim. P. 52(b); see also State v. Ma rshall , 870 S.W.2d 532, 540 (Ten n. Crim. Ap

p. 1993); Taylor
v. State , 582 S.W.2d 98 , 100 (Te nn. Crim. App. 1979). In order to dete rmine whether the challenged remarks constitute

plain error, we must consider

five factors. See State v. Smith , 24 S.W.3d 274, 282 (Tenn. 2000). Those factors are: (a) the record

must clea

rly establish what occ urred in the trial court; (b) a clear and unequivocal rule of la

w must have

been bre ached; ( c) a subs tantial r ight of the accused must have

been ad versely affected; (d) the accused did not waive the issue-9-

for tactical reasons; and

(e) consideration of the error is “necessary

to do substantial justice.”

Id. at 282 (quot ing State v. Adkisson , 899 S.W.2d 626, 641- 42 (Tenn . Crim. App . 1994)). All five factors must be established beforewe will find plain error. See id. at 283. Ultimately, the err or must have been “‘of such a gre at magnitude that it pro bably chang ed the out

come of the trial.’” State v. Adkisson , 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994) (quot ing United States v. Kerley , 838 F.2d 932, 937 (7th Cir. 1988)).

With respect to the first challenged portion of the prosecutor’sinitial closing argument, the first factor has been established. However, we do not find that the p rosecut or’s cha llenge to defen se counsel to “explain that” breached a clear a nd une quivocal rule of law. That is, we conclude that the comment did not impermissibly shift the burden of proof t o the Defendant. The prosecutor’s comments, taken in context, were a challenge to the cr edibility of the Defe

ndant’s theory

of how the victim’s rectal area came to be injured. During the trial, defense counsel ha d proffered proof of

how the injury could have been caused by a bowel movement. The prosecutor wanted the jury to rejec t that theory . We note th at the ch alleng ed comme nts were made during t

he State’ s initial closing argume nt. Thus, the

prosecu tor knew full well t

hat defe nse coun sel would

soon be addressing the jury with his own inte

rpreta tion of the

proof. T

he State w as taking

a preem ptive stri ke at t h e argument it expecte d from the

Defend ant. Such argument was not improper. Thus, the second fa ctor for the determination of plain error during c losing argument has not been satisfied.

For the same reasons, we find that the third and fifth factors have likewise not been satisfied. Ac co rd in gl y, the Defendant has failed to establish that this portion of the prosecutor’s closing argume nt constitu

ted plain error, and this iss ue is ther efore without mer

it.

With respect to the second portion of the argument complained of, we find th e first f actor to be satisfie d. We furt

her find the seco nd facto

r to be sa tisfied. T he prose cutor specifically referred to the Defendant’s invocation of his constitutional right to counsel during questioningby the police. The prosecu

tor did so in

order to cast doubt on the Defendant’s theory that his intercour se with the victim was consensual, and to cast doubt on his posture of cooperation with the police. “A violation of [a] defendant ’s right to counsel occurs when a prosec utor’s . . . argument seeks to penalize the defendant for exercising his constitutional right.” State v. Hines , 919 S.W.2d 573, 580 (Tenn. 1995). Such penalizing occurs when a prosecutor asks the jur y to draw a neg ative inf erence from a defendant’s exercise

of his rig ht to counsel. See id. For the same reason, we find that a substantial right of the Defendant was adversely affected, satisfy

ing the third Smithfactor. Because the record is devoid of any indica

tion that the Defendant waived this issue at trialfor tac tical re asons, we also find the fourth factor satisfied.

We thus arrive at the fifth factor: whether c onside ration of the error is necessary to do substantial ju stice. We note that the error here is one of constitutional dimensions: that is, the prosecutor

violated the Defe ndant’s c onstitution al r

ight to cou nsel. Such errors must be found harmlessbeyond a re asonable doubt before an affected defendant is denied rel ief. Cf. State v.-10-

Transou , 928 S.W.2d 94 9, 960 (Te nn. Crim. App. 1996) (prosecutorial comment on the defendant’s constitutional ri ght agains t self-incrimination subject to review for harmless error be yond a
reasona ble doubt ). We h ave n o trou

ble c oncl uding that, in the

over all c onte xtof this trial, and in the overall cont ext of both the

State’s a nd the Defendant ’s closing argume nts, the challenged statement by the prosecutor was harmless bey ond a reasonable doubt. The jury did not convict the Defendant because he wanted to speak to a lawy er; it convicted the Defend ant beca use the proof of his guilt was overwh elmi ng. Accord

ingly , we hold t

hat t he Defend ant has failed to establish that he is entitled to a new trial on the basis of the State’s closing argument, and this issue is theref ore witho ut merit.
DENIAL OF

WRIT OF ER

ROR CORAM

NOBIS The Defend ant filed

a petition

for a wr it of err or cora m nobis on th

e basis of

newly discovered

evidence. See Tenn. Code Ann. § 40-26 -105. At th e heari ng, the Defendant introduced testimonyfrom three witness es. Rober t Lamb testi fied t hat he ha

d dated th

e victim f or about a month in July 1999. During this time, the victim told him that the Defend ant had raped her. However, after the victim became drunk, she told hi m “that the only reason s he said it

was because, if Terry [Norr

is] found out, and she was going to -- he told her that, if she didn’t put a charge on [the Defe ndan t], that he was going to beat her up or wha tever. And that is why she took the charge out.” Mr. Lamb did not pass this information on to anyone p rior to the Defend ant’s tri al. Mr. L amb admitted to having met the Defendant while incarc erated onan aggravated a ssault conviction arising from his beating his girlfriend. Mr. George By

rd also testified. He stated that he began dating the victim around F ebruary 2001. They dated f

or several months. During this time, the victim told him she had to go to court regarding a rape charge. Mr. By

rd testif ied that th e victim to ld him

“that the re wasn ’t nothing

to it” and that “the

only reason she said it was to keep her boy friend, Terry

Norris, at the time from beating her up.” Mr. By

rd did not pass this information on to anyone befor e the Defendant’s trial. Mr. By rd was also s erving

time on a f

elony convicti on and wa s incarc erated with the D efenda

nt.

Ms. Wilma Bell , Mr. By

rd’s mothe

r, alsotestified that the victim told her that “the boy didn’t rape her, that she was testify ing to tha t in fear of her bo yf

riend -- her ex-bo yf

riend.” Ms. Bell t

old
no one about

this information prior

to the Defendant’s trial because she “didn’t know w hat to do.”

The victim

also testified. She acknowledged her re lationships with Mr. Lamb, Mr. By rd, and Ms. Bell, but flatly denied the ir testimony. She reiterate d that the Defendant had raped her.

The trial court took the Defendant’s petition under advi sement and subsequently issued a written order. In analy

zing the evidence presented to it, the trial court correctly applied a three-prong test to determine whether the Defendant had e stablished his right to a new trial. Th at test is: (1) the trial judg e is reasona

bly satisfied that testimony given by a material witness was false and that the
new testimo ny is true; (2) that the de fendant was reasonably

diligent in discovering the new evidence, or unable

to know the

falsity until afte r the tria l; and (3) that the jury

might have reached3 In Mixon , th is t est was applied t o newly discovere d recan ted testim ony. W e dee m this test eq ually ap pro priate

for new ly disco vered evide nce o f the ma terial witne ss’s prio r statem ents inco nsistent with his or he r trial testimo ny. -11- a differe nt conclu sion had th

e truth be en told

. See State v. Mixon , 983 S.W.2d 661, 672-73 n.17 (Tenn. 1999). 3 In apply

ing this test, the trial court determined:
[D]efense counsel w as dilig ent in

attemptin g to locate th

ese witne sses prio

r to trial , butwas unable to do so, therefo re, meeting that prong of the test. The c ourt is not convinced, however , that a ma terial w itness, in t

his case, [th e victim], testified fa ls el y, or that the new testimony presente d by Mr. L amb, Mr. B yr

d, and Ms. Bell is credible. Mr. Lamb and Mr . Byrd are both former boy

friends of the victim . . . and
were incarcerated with the Defendant . . . following his conviction in this case in May 2001. Their

testimony, considered

together with all the other facts and circ umstances of this case , is simply

not cred ible. The testimony

of Ms. Bell, while more troub ling, also lacks credibility suffic ient to justify a new tri al in this c ase. When the court considers the entire record in this case, including the victim’s te st im on y, the physical and medi ca l evidenc e, and the testimony

of corr oboratin g witne sses, the

court is satisfied that a proper verdict was reac hed. On the basis of these findings, the trial court denied the De fendant’s petition.

This Court reviews a trial court’s denial of a petition for a writ of error coram nobis under
an abuse of discretion standard. See Teagu e v. State , 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988), overruled on other grounds by Mixon , 983 S.W.2d at 671 n.13. We will find an abuse of discretion only where a trial court applies an incorrect legal standard, or reac hes a decision

which is a

gainst logicor reasoning and causes an injustice to the complaining party. See State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999).
Here, the trial court made specific findings about the witnesse s’ cred

ibility . On the ba sis of those findings, the trial court concluded that the first prong of the applicable test was not met. We find no abuse

of discr etion on th

e trial c ourt’s pa

rt inthis regard. Accordingly , we decline to rever se the trial court’s ruling d

eny ing the D efenda

nt’s petit ion, and f ind this issu e to be wit

hout merit

. CONCLUSION The Defend ant has f

ailed to e stablish th at he is entitled to a dismissal of his convictions, or a new trial. Accordingly , we affirm the judgments of the trial court.

___________________________________ DAVID H. WEL

LES, JUDGE