IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 24, 2011 at Knoxville

KYNASTON SCOTT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2000-D-2256 Seth Norman, Judge

No. M2010-01761-CCA-OT-CO - Filed September 8, 2011

The Petitioner, Kynaston Scott, appeals as of right from the Davidson County Criminal

Court’s dismissal of his petition for a writ of error coram nobis. The Petitioner contends that

the coram nobis court erred by summarily dismissing his petition without an evidentiary

hearing. Following our review, we affirm the judgment of the coram nobis court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the Court, in which JERRY L. SMITH and

ROBERT W. WEDEMEYER, JJ., joined.

Kynaston Scott, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel and Mark A.

Fulks, Assistant Attorneys General; Victor S. Johnson, III, District Attorney General; and

Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

In 2001, the Petitioner was convicted by a Davidson County jury of first degree

murder and felony murder, stemming from the 1998 shooting death of Melvin Sharp. State

v. Kynaston Scott, No. M2001-00707-CCA-R3-CD, 2002 WL 31852856, at *1 (Tenn. Crim.

App. Dec. 20, 2002), perm. app. denied (Tenn. May 12, 2003). The trial court merged these

convictions and sentenced the Petitioner to life imprisonment in the Tennessee Department

of Correction. Id. Key to the State’s case were two juvenile eyewitnesses, Jeffrey Pinshon

and Joe Vaughn, who both identified the Petitioner as the shooter from a photographic

lineup. Id. at *2-3. The Petitioner’s conviction was affirmed by this court on direct appeal.

Id. at 8. The Petitioner subsequently filed a petition for post-conviction relief, which was
denied by the post-conviction court following an evidentiary hearing. Kynaston Scott v.

State, No. M2004-00809-CCA-R3-PC, 2005 WL 94456, at *1 (Tenn. Crim. App. Jan. 11,

2005), perm. app. denied (Tenn. May 2, 2005). This court affirmed the decision of the postconviction court on direct appeal. Id. at *7.

On May 24, 2010, the Petitioner filed a petition for writ of error coram nobis. The

petition provided the address and phone number of Rudy Vaughn, a third eyewitness to the

murder who was unable to be located at the time of the trial. The Petitioner contended that

on April 1, 1998, Rudy Vaughn gave a statement to the Metro-Nashville Police Department

that the shooter was a light-skinned black male. Rudy Vaughn was also unable to identify

the Petitioner from a photographic lineup. The Petitioner contended that this testimony

would have exonerated him had it been presented at trial. On July 12, 2010, the coram nobis

court issued an order summarily dismissing the petition for writ of error coram nobis. In the

order, the coram nobis court ruled that “[i]n light of the evidence presented at trial in this

matter, it does not appear as though the newly discovered evidence could have provided any

significant assistance in [the Petitioner’s] defense had it been presented” at trial. Therefore,

the coram nobis court concluded, the Petitioner “failed to make a sufficient showing that he

is entitled to relief by writ of error coram nobis.”

ANALYSIS

On appeal, the Petitioner contends that the coram nobis court erred by summarily

dismissing his petition without holding an evidentiary hearing. The Petitioner argues that the

order summarily dismissing his petition questioned his credibility and that the coram nobis

court should have first held an evidentiary hearing to evaluate the truthfulness of his claims.

The State responds that the petition should be dismissed as untimely. The State further

responds that the petition fails to adequately relate the necessary prerequisites for relief. The

Petitioner replies that the State waived the statute of limitations defense by failing to

affirmatively raise the defense prior to this appeal.

A writ of error coram nobis is an “extraordinary remedy” available only under very

limited circumstances, and thus it is “known more for its denial than its approval.” State v.

Mixon, 983 S.W.2d 661, 666 (Tenn. 1999) (citing Penn v. State, 670 S.W.2d 426, 428 (Ark.

1984)). 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.” Tenn. Code

Ann. § 40–26–105(b) (2006); see State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App.

1995). The decision to grant or deny the writ rests within the discretion of the trial court.

Teague 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.

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A petition for writ of error coram nobis must be filed within one year of the date the

judgment of the trial court becomes final. See Tenn. Code Ann. §§ 27–7–103, 40–26–105;

Mixon, 983 S.W.2d at 670-71. The one-year limitations period may be tolled only when

required by due process concerns. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001).

However, the State bears the burden of raising the bar of the statute of limitations as an

affirmative defense. See Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003) (citing Sands

v. State, 903 S.W.2d 297, 299 (Tenn. 1995)). Because there is no evidence in the record that

the State ever raised the statute of limitations in the trial court, “the State is precluded from

raising it as a defense in this court.” Calvin O. Tankesly v. State,

M2004–01440–CCA–R3–CO, 2005 WL 2008203, at *6 (Tenn. Crim. App. Aug. 19, 2005),

perm. app. denied (Tenn. Feb. 6, 2006); see also Andre L. Mayfield v. State,

M2009–02640–CCA–R3–CO, 2010 WL 4545822, at *4 (Tenn. Crim. App. Nov. 12, 2010)

(noting that the State had waived the statute of limitations defense where it failed to raise the

defense and had “57 days between the service of the petition” and the coram nobis court’s

order summarily dismissing the petition).

Because coram nobis claims are “singularly fact-intensive,” they “are not easily

resolved on the face of the petition and often require a hearing.” Freshwater v. State, 160

S.W.3d 548, 554 (Tenn. Crim. App. 2004) (quoting Harris, 102 S.W.3d at 593).

Additionally, the coram nobis statute “does not contain provisions for summary disposition

or expedited appeals.” Id. However, to state a cognizable claim, a petition for writ of error

coram nobis must communicate the following:

(1) the grounds and the nature of the newly discovered evidence; (2) why the

admissibility of the newly discovered evidence may have resulted in a different

judgment had the evidence been admitted at the previous trial; (3) the

petitioner was without fault in failing to present the newly discovered evidence

at the appropriate time; and (4) the relief sought by the petitioner.

Id. at 553 (citing Hart, 911 S.W.2d at 374–75). “The sufficiency of the contents of a petition

for writ of error coram nobis filed pursuant to Tenn. Code Ann. § 40–26–105 is of utmost

importance,” because “[j]udges anticipate that the petition itself embodies the best case the

petitioner has for relief from the challenged judgment.” Harris v. State, 301 S.W.3d 141, 150

(Tenn. 2010) (Koch, J., concurring) (citation omitted). Accordingly, when a petition for writ

of error coram nobis fails to adequately relate the necessary prerequisites for relief, the coram

nobis court is not required to hold an evidentiary hearing prior to dismissing the petition. See

Cole v. State, 589 S.W.2d 941, 941-43 (Tenn. Crim. App. 1979); State v. Johnny L.

McGowan,Jr., No. M2007-02681-CCA-R3-CO, 2008 WL 4170273, at *3 (Tenn. Crim. App.

Aug. 5, 2008), perm. app. denied (Tenn. Oct. 27, 2008).

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The coram nobis statute “presupposes that the evidence (a) would be admissible

pursuant to the applicable rules of evidence, and (b) is material to the issues or grounds

raised in the petition.” Hart, 911 S.W.2d at 375. Whether the newly discovered evidence

“qualifies as impeachment evidence may be relevant in the determination but is not

controlling.” State v. Vasques, 221 S.W.3d 514, 528 (Tenn. 2007). Instead, the ultimate

question is “whether a reasonable basis exists for concluding that had the evidence been

presented at trial, the result of the proceedings might have been different.” Id. at 527

(internal quotation marks omitted).

In this case, the Petitioner’s newly discovered evidence consists of the location of a

third eyewitness, Rudy Vaughn, who was unable to identify the shooter in a photographic

lineup on April 1, 1998. However, during the Petitioner’s trial, two other eyewitnesses, Joe

Vaughn and Jeffrey Pinshon, testified that the Petitioner was the shooter. Joe Vaughn and

Jeffrey Pinshon also positively identified the Petitioner in a photographic lineup. On direct

appeal, this court concluded that the evidence presented at trial was sufficient to support the

Petitioner’s convictions. We agree with the coram nobis court that the Petitioner’s newly

discovered evidence “does not amount to evidence that ‘may have’ resulted in a different

outcome when compared to the quality and quantity of evidence presented by the State at

trial.” Accordingly, we conclude that the Petitioner has failed to state a cognizable claim for

error coram nobis relief.

Furthermore, in evaluating whether a petitioner is entitled to error coram nobis relief,

“the trial judge must first consider the newly discovered evidence and be ‘reasonably well

satisfied’ with its veracity.” Vasques, 221 S.W.3d at 527. Prior to trial, the Petitioner

attempted to coerce a witness, Jeffrey Pinshon. The coram nobis court expressed concern

with the veracity of the evidence the Petitioner subsequently sought to have admitted, noting

that “[u]ndisputed proof of Petitioner’s intent to have [a] witness commit perjury to his

benefit is probative of the Petitioner’s guilt and effectively undermines his credibility.”

Because “with the passage of time, evidence grows stale, witnesses disperse, and memories

erode[, a] claim of newly discovered evidence which is not asserted until appellate

proceedings are concluded, likely years after a person has been tried and convicted, is

inherently suspect.” Mixon, 983 S.W.2d at 670 (citing Herrera v. Collins, 506 U.S. 390, 403-

04, 417-18 (1993)). Accordingly, we conclude that the coram nobis court did not err in

summarily dismissing the petition.

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CONCLUSION

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

nobis court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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