# FILED
September 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY SESSION, 1998

JAMES E. NEWSOME , ) ) No. 01C01-9710-CR-00459 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. THOMAS H. SHRIVER, Judge STATE OF TENN ESSEE, ) ) (Writ of Error Coram Nobis) Appellee )
For the Appellant : For the Appellee : David A. Collins John Knox Walkup 211 Printers Alley Bldg., 4th FL Attorney General and Repor ter Nashville, TN 37201 Daryl J. Brand Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. (Torry

) Johnson III District Attorney General Pam Anderson Asst. District Attor

ney General Washington Square, Suite 500 222-2nd Avenue North Nashville, TN 36201-1649

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 This ple a resulted from the 1991 shooting death of Michae l We st outside a North Nashvill e night cl ub. West was killed by a gunshot to hi s back at very close range. 2 OPINION
The appellant, James E. Newsome, appeals the judgment of the Dav idson County Criminal Court denying his petition for writ of error coram nobis . Specif ically, the appellant contends that the tr ial court abused its discretion in finding that the “newly discov

ered evidence” lacked c redibility. On May 21, 1992, the appellant entered a guilty plea t

o one count of second degree murder and was sentenced to eighteen years in the Department of Correction as a Range I offe nder. 1 No direct appeals were taken by the appellant. He is curr ently incarcerated at Tur ney Center Industrial Farm and Pris on in Only, Tennessee.

After review of the recor d and the applicable law, we affirm the decision of the trial court dismissing the appellant’s petition for writ of error coram nobis

.

Background
In February 1996, the appell ant filed a pro se petition for post-convic tion relief alleging ineffective assistance of counsel and “newly discovered evidence.” Counsel was appointed and, on October 22, 1996, an evidenti ary hearing was conducted by the trial co urt. At the conclusion of the hear ing, the trial court d enied post-conviction reli ef as to the issue of ineffective assi stance of counsel, but granted the appellant leave to file a petition for writ of error coram nobis in order to raise his claims involving

newly discover

ed evidence, i.e. , that the true perpetrator of the murder had confessed. On November 20, 1996, the appellant filed a petition for writ of error coram nobis . A hearing was conduc ted on March 7, 1997.2 W oodruf f, along with th e appe llant, was a s uspec t in W est’s 199 1 mu rder.
3 The affidavi t reads: I, Jon W oodraft , after being duly sworn in accordan ce with t he law, deposes ans says the fol lowing: On the da

te of December 3, 1991 I Jon Woodraft got i nto an alt ercat ion wi th Mike West on Joe Johnson in Nashvill e, Tennessee that l ed into a shoot out between the two of us ab ove list ed persons. I shot Mr. West into t he back area of his body with a . 357 Magnum handgun. This was after he made a threat about kill ing me and reached for hi s gun that’ s when I shot hi m once in the back area at close range. Another

suspect was arrest

ed and took a plea because he didn’ t know about justi ce and didn’ t want to take chances of faci ng a lif e sentence. When truly an d rea lly I was the o ne th at co mm itted th e crim e and tried to save mys elf from prosecution by

acting as if I knew him and I saw hi m do it. I f inally admitted this to him and I fi nally met him on December 28, 1995. Jon W oodruff [cursiv e] 3 At the hearing, evidence relevant to the coram nobis claim presented at the post-conviction heari ng was reconsidered by the court. At the post-conviction hearing, the appellant testi fied that, on December 28, 1995, w hile confined at the Turney Center,fellow

inmate J on Woodruff, 2 confessed to him that “he [was ] the one that actuall y shot M ichael West that ni ght.” T wo to th ree wee ks after Woodruff admitted his culpability in the crime, the appellant app roached Woodruff and asked him to sign an affidavit v erifying his earli er confession. This affidavit w as subsequently notarized, on January 13, 1996, by Bruce Roberts, the laundry manager and notary at the Turney Center. 3 The appellant explained that he had agreed to plead guilty to second degree murder because, at the time, he was also facing charges of voluntar y manslaughter and feared cons ecutive sentences. The plea agreement on the present cha rge provided that the appe llant’s sentences would run c oncurren tly.
The appellant presented several witnesses to confirm Woodruff’s subsequent confession to West’s murder. Specifically , the appellant offered the testimony of fellow inmates, Malcolm F uller and Greg Turner w ho verified that they had overheard Woodruff tell the appellant that he shot Michael West. Malcolm Fuller had been the appellant’s cellmate for two years; Greg Turner admitted that he had been friends with the appella nt for the past four to five year s. John Smith, another4

inmate, also testified that, w hile helping Woodruff move his property to his unit, Woodruff admitted that he had committed the homicide for whic h the appellant had been convicted.
Jon Woodruff testified that he was currently serving a life sentenc

e for murder at the Turney Center. He den ied ever having a c onversation with the appellant on December 28, 1995. Although he admi tted that the signature on the affidavit was his, he denied reading the s ubstance of the affidavit prior to signing and refused to answer any questi ons regarding the truth of the matter asserted in the affidav it.
Metro Police Department Detective David Miller, the investigating officer in the 1991 shooting death of Michael West, testified that the victim was killed as the result of a gunshot wound to the back. The autopsy report revealed that the victim was shot at a very

close range with a .357 revolver. A .357 revolver was later located underneath a waterbed in the residence where the appellant was liv ing.
The investigation of the homicide led police to two s uspects, the appellant and Jon Woodruff. A polygraph examination w as given to both indiv

iduals. During the post- examination inter view, Jon Woodruff stated that the appellant w as the shooter and disclosed his l ocation and the appellant’s loc ation during the shooting

. Similarly, the appellant admitted that he was the shooter and disclosed h is angle and distance from the victim. Detective Miller added that an eyewitness to the account, Clarence Goins, s tated that he observed the appell ant “running behind the victim with the g un.” Mr. Goins additiona lly stated that, “jus t after the shooting and before they left the scene, [the appellant] to ld him, quote, I just shot a N-word.”
The trial court, after conside ring this evidence,denied the appellant’s petiti on. In reaching its decision, the court found that, although the evidence met the criteria for “newly discov

ered evidence,” the subse quent confession of Jon Woodruff lacked5

credibility. Speci

fically, the court noted th at the appellant had failed a poly graph examination and confessed to the homic ide; the murder weapon w as located under the appellant’s bed; Jon Woodruff and Clarence Goins had both named the appellant as the shooter; and that the appellant knowingl y and voluntarily

entered his guilty plea. M oreover, the court noted th e variance between the s pelling of Woodruff’s name and the style of the writing in the body of the affidavit and the signature line, “gi

ving rise to the st rong suspicion that . . .[someone else] wrote the confession and that Woodruff was induced to sign by coercion or bribery .”

Analysis
The appellant contends that the trial court abuse d its discretion in denying his petition. The State makes a tw o pronged response to the appell ant’s assertion. First, the Stat

e conten ds that a

guilty plea may

not be se

t aside by means

of a petition for writ of error coram nobis based on newly discov ered evidence. Second, the State argues that the tri al court properly found that the newly discov

ered evidence lacked credibi lity, and, thus, acted w ithin its discretion i n denying the petition for writ of error coram nobis

.

A writ of error coram nobis is available to a defendant i n a criminal prosecution. Tenn. Code Ann. § 40- 26-105 (1997); State v. Hart , 911 S.W.2d 371, 374 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995). However, the writ is an exceedingly narr

ow remedy appropriate only when an issue w as not addressed or could not have been address ed 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. See Tenn. Code Ann. § 40-26-105; Hart , 911 S.W.2d at 374; State v. Hooper , No. 03C01-9701-CR-00035 ( Tenn. Crim. App. at Knoxvi lle, Mar. 6, 1998). Hence, the writ

will lie for subseq uently or newly discovered evidence if the4 Comp are Tenn. Code Ann. § 40-30- 217(a)(2) ( 1997) (post-co nvicti on petit ion may be reopened only

on the basis of

newly di scovered scie ntific evidence establishi ng the actual innocence of the petitioner).

5 We note that a writ o f erro r cor am n obis willonly i ssue one year af ter the j udgment becom es final. Te nn. Cod e Ann. § 27-7-10 3 (1980 ); Hicks v. State , No. 03C01-9608-CR-00296 (Tenn. Crim. App. at

Knoxvill e, Mar. 3, 1 998). Alt hough it appear s from the record t hat the appellant’s peti tion was fi led beyond the one year st atute of l imitati ons applicabl e to writs of error cora m no bis , the sta

tute of l imitati ons is an affi rmative defense whi ch must be specifica lly plead or is deem ed waive d. See State v. Mixon , No. 0 2C0 1-95 07-C C-0 020 4, foo tnote 1 (Te nn. C rim

. App. at J acks on, Aug . 28, 1997 ), perm. to appeal gr anted , (Tenn. Apr. 13, 1998) (ci ting Sands v. State , 903 S.W.2d 297, 299 (Tenn. 1 995)). The Stat e fail ed to assert the time period in the case sub judice

. 6 petition relates (1) the grounds and the nature of the new ly discovered ev

idence; (2) why the admissibili

ty of the newly disc

overed evidence may ha ve resulted in a different judgment had the evidence been admitted at the previous t rial; (3) the petitioner was without fault in failing to prese nt the newly discov ered evidence at the appropriate time; and (4) the relief sought by the petitioner. 4 Hart , 911 S.W.2d at 374-375.
In what appears to be a ques tion of first impression, the St ate argues that a writ of error coram nobis will not issue to set aside a guilty plea that was voluntarily and knowingly entered. After a review of the law, the principles behind the issuance of the writ, and the law of sister jurisdictions, we find the State’s argument well taken. 5
There are three methods by w hich one can set aside a gui lty plea: (1) for any fair and just r eason before the sentence is imposed, Tenn. R. Crim. P. 32(f); (2) to correct manifest in justice after sentence but before the judgment becomes final, Tenn. R. Cr im. P. 32(f); and (3) once th e judgmen t is final , if the p lea was not entered voluntari ly, intelligently, and k

nowingly, or w

as obtained through the abridgement of any right guaranteed by the United States or Tennessee Constitutions, State v. Mackey , 553 S.W.2d 337, 340-341 (Tenn. 1977); Tenn. Code Ann. § 40-30-203. State v. Lyons , No. 01C01-9508-CR-00263 ( Tenn. Crim. App. at Nashvi lle, Aug. 15, 1997), reconsideration denied , (Sept. 19, 1997). Thus, in or der for a writ to iss ue, the appellant would have to present newly dis covered evidence w

hich would show6 Our ho lding in this m atter is limited to the prem ise that a su bsequ ent third pa rty confession wi ll not

affect t he voluntariness of a gui lty plea, t hus, preclud ing the i ssuance of a writ of err or co ram nobis based on newly discovered ev idence. However , we do acknowledge t hat should “newl y discover ed evidence” ef

fect the v

oluntari ness of a guilty pl ea, a writ ma y prop erly lie. 7 that his plea was not voluntarily or knowingly entered. However, the newly discovered evidence asserted by the appellant fails to affect th e voluntariness of his 1992 guilty plea.
An otherwise valid guilty plea does not become involuntary merely because it is induced by the defendant’s desire to limit the possible maximum penalty to less than that authorized if there i s a jury trial. N or does it become involuntar y by the mere fact that a third party has subsequently confessed to the crime as such assertions are not uncommon and must be approached with some skepti cism. See Brown v. State , 955 S.W.2d 901, 902 (Ark. 1997).
By pleading guilty, the appellant admitted his factual guilt and waived his right to confront his accusers. See, e.g. , People v. Jackson , 620 N.Y.S.2d 240, 241 (N.Y.Co.Ct. 1994). H e may not seek, after the judg ment has become final, to later recant his admission as to those facts by an allegatio n that a third party has confessed. Moreover, a thi rd party confession is not so much “newly dis

covered evidence” as it is “newly disclosed” to the court. See Travis v. State , CR-92-958 (Ala. Crim. App. Apr. 18, 1997) ( not yet released for public ation). There can be no doubt that, at the time the defendant entered his guilty plea, he knew that either he did or did not commit the murder for which he had been convi cted. See Travis , CR92-958. In other words, a subsequent third party confession does not affect the voluntariness of a guilty plea. Thus, if the plea ag reement was negotiated in good faith, there are no allegati ons of fraud or misfeasance, and, in all other regards, the plea agreement was entered into voluntarily and knowingly, he cannot now complain of that which he ha d willingly ba rgained f or previou sly. 6 A petition for the writ of8

error coram nobis

is not intended to reliev e a party of its own neg ligence, ignorance, or change of mind.
Although we are not advocating the persecution of the innocent, there is a need for finality of legal deci sions. At some point, the proc eedings must come to a halt despite the prospect of all egations without end that something went wrong . The traditional method for addressi ng actual innocence based upon new ly discovered evidence which is pro cedurall y barred f rom the co urts is thr ough execu tive clemency. See Herrera v. Colli ns , 506 U.S. 390, 400, 113 S.Ct. 853, 860 (1993). If the appellant has not already pursued this option, it is still available to him. Tenn. Code Ann. §§ 40-27-101 through - 109 (1997); Hicks , No. 03C01-9608-CR-00296.
Assuming arguendo that rel ief could be available in this context, we cannot conclude, as argued by the appellant, that the trial court abused its discretion in denying the appellant a new trial. Specifically, the appellant asserts that there is “absolutely no proof in the record” to support the tr ial court’s finding that “the Woodruff a ffidavit was signed as a result of ‘coercion or bribery.’”
The decision to grant or deny a petition for the writ of error coram nobis on the ground of newly dis covered evidence res

ts within the sound discretion of the trial court. Hart , 911 S.W.2d at 375; Trammell v. State , No. 01C01-9602-CC-00083 (Tenn. Crim. App. at Nashv ille, Jul. 11, 1997), perm. to appeal denied , (Tenn. Apr. 13, 1998). In exercisi ng its discretion, the trial court must determine the credibility of the witnesses who testify in support of the accused’s coram nobis application. Id . If the trial court does not believe that the witnesses presented by the accused are credible, the court should deny the application. Id . Moreover, before reli ef may be granted, it must be established, and the trial court must find , that the newly discovered evidence may have resulted in a different j udgment had it been presented at the trial. Id . This rule presupposes that the evidence would be9

admissible pursuant to the appl icable rules of evidence an d is material to the issues or grounds raised in th e petition. Id

.
First, the appellant pres ented several witnes

ses who testified that they overheard Jon Woodruff confess to the homicide for w hich the appellant stands convicted. Such hearsay evidence is not legal

evidence and is not admiss ible to show that someone other than the a ccused committed the offense at issue. A defendant may disprove his guilt by proving the guilt of some other person; but, this must be done with legal evidence and not by the testimony of witnesses who heard another admit that he committed the offense. Sec ond, the proof supporting the appellant’s conviction

for the murder of Michael West includes a confessi on by the appellant, the testimony of tw o eyewitnesses, and the discovery of the murder weapon beneath the appellant’s bed. The “newly discov ered evidence” asserted by the appellant, i.e. , that Jon Woodruff was the true killer, i s merely contradictor y of the overwhelming proof. Newly discovered evidence which serves no other purpose than to c ontradi ct or im peach th e evide nce supporting the conv

iction will not justify the granting of a petition for the writ of error coram nobis when the evidence, if introduced would not hav e resulted in a different judgment. Hart , 911 S.W.2d at 375. Finally, this c

ourt will not second g uess the trial court’s evaluation of the witnesses’ credibi lity. Accordingl y, we cannot conclude that the trial court abused its discretion in denying

the relief sought by the appellant.

For the reasons discussed herein, the appellant’s petition for the writ of error coram nobis

was properly deni ed.

____________________________________

DAVID G. HAYES, Jud ge10

CONCUR:

_________________________________________ PAUL G. SUMMERS, Ju dge

__________________________________________ JERRY L. SMITH, Jud ge