                                                                                        05/09/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 4, 2018

                EDWARD HOOD, II v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Henderson County
                          No. 08059-3 Kyle Atkins, Judge
                     ___________________________________

                          No. W2017-00934-CCA-R3-ECN
                       ___________________________________


The pro se Petitioner, Edward Hood, II, appeals the summary dismissal of his petition for
writ of error coram nobis, arguing that a letter that he received from his daughter, K.P.,
constitutes newly discovered evidence of his innocence and that the coram nobis court
erred in dismissing his petition without the appointment of counsel or an evidentiary
hearing. Following our review, we affirm the dismissal of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Edward L. Hood, II, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Jody S. Pickens, District Attorney General; and Angela R. Scott, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       The Petitioner was convicted by a Henderson County Circuit Court jury of two
counts of rape of a child, a Class A felony, and two counts of incest, a Class C felony,
and was sentenced to consecutive sentences of twenty-three years and twenty-five years
for the rape of a child convictions and concurrent five year sentences for each of the
incest convictions, for an effective sentence of forty-eight years in the Tennessee
Department of Correction.1 State v. Edward L. Hood, Jr., No. W2009-02501-CCA-R3-
CD, 2010 WL 5054422, at *1 (Tenn. Crim. App. Dec. 6, 2010), perm. app. denied (Tenn.
Apr. 14, 2011). His conviction was affirmed by this court on direct appeal, and our
supreme court denied his application for permission to appeal. Our direct appeal opinion
provides the following summary of the proof presented at trial:

     Trial. C.L., the victim in this case, testified that she was eleven years old
     when the first crime in this case occurred. She stated that on February 24,
     2007, her father, [the Petitioner], entered her room and took off his clothes.
     He then walked over to her bed, took her pajamas off, got on top of her, and
     penetrated her vagina with his penis. Before leaving her room, [the Petitioner]
     told the victim, “If you say anything[,] I’m going to hurt you.” The victim
     stated that she remembered the crime occurring on February 24 because it was
     close to her mother’s birthday on February 23.

     On July 28, 2007, the victim stated that her father had sexual intercourse with
     her in the same manner as on February 24, 2007. She remembered the date
     that this second crime occurred because it was close to her birthday on July
     20. She said she later told her mother about these crimes, but she and her
     mother did not immediately report these crimes to the police. The victim said
     that she and her mother reported the crimes to the police some time in
     December when her father was no longer living with them. The victim said
     that she did not immediately tell her mother about the February 24, 2007
     crime because she was scared. She could not explain why she and her mother
     did not contact the police regarding the crimes sooner. On cross-examination,
     the victim denied allowing boys into her room through her window.

     Landon Delaney testified that he was a correctional officer at the Henderson
     County Jail in 2007. On December 26, 2007, during a random search of [the
     Petitioner’s] cell, Delaney found a note written by [the Petitioner], which
     stated, “I, [the Petitioner], fingered and [f––––] my youngest child, [the
     victim], and said some sex-related things to [the victim’s] friend, [K.B.]. She
     and [the victim] were talking about sex and having a threesome. I said I
     wanted to see that. Signed, Ed Hood.” Delaney said that he removed the note
     from [the Petitioner’s] cell and gave it to the jail sergeant, Lelani Murphy.
     Although [the Petitioner] never reported a fight while he was in jail, Delaney
     remembered [the Petitioner] having a black eye at some point during his

       1
         Edward Hood was referred to as Edward L. Hood, Jr. on direct appeal and is referred to
as Edward Hood, II, in this error coram nobis appeal. Edward L. Hood, Jr. and Edward Hood, II,
both refer to the same person, the Petitioner.
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incarceration. He said [the Petitioner] never disclosed who had given him the
black eye and never wanted to answer any questions about it. Delaney stated
that it was unusual for inmates to write confessions and that [Petitioner’s] note
was the only confession that he had ever found at the jail.

Justin Wallace, an investigator with the Henderson County Sheriff’s
Department, testified that [the Petitioner] asked to speak with him on
December 26, 2007, regarding the note that was found in his cell. Investigator
Wallace gave [the Petitioner] his Miranda rights, [the Petitioner] signed a
written waiver of these rights, and then [the Petitioner] gave the following
statement:

      I, Ed Hood, did advise Investigator Wallace that there was a
      possibility that while I was messed up on pills that I could have had
      sexual relations with my daughter, [the victim]. I also advised him
      that while my daughter was on the phone with [K.B.] I overheard
      them talking about having a threesome. I advised [K.B.] that I would
      like to see that when she was eighteen.

Donna Heatherington, a lieutenant with the Lexington Police Department,
testified that the victim and the victim’s mother initially reported the crimes to
her in December 2007. She then set up a forensic interview for the victim at
the Carl Perkins Center. Although she attempted to talk to [the Petitioner]
about these crimes, he refused to talk to her. She said that she did not
interview the victim’s sister, K.P., because she was not living in the home at
the time that these crimes occurred. Lieutenant Heatherington stated that a
rape kit was not conducted on the victim because so much time had passed
since the crimes were committed. Following Lt. Heatherington’s testimony,
the State rested.

...

Robin Reddick, the victim’s aunt and [the Petitioner’s] sister, stated that the
victim had lived with her for approximately a month and a half. Reddick
stated that she did not find the victim to be an honest, truthful child.

Victoria Westerfield, the victim’s cousin, testified that the victim told her at a
Christmas party that “she lied about her daddy’s case and misse[d] her
daddy.” Westerfield said that there were no adults present when the victim
made this statement to her.

                                      -3-
     ...

     Shannon Hood, the victim’s mother, testified that she gave a statement to
     Lieutenant Heatherington regarding the crimes [the Petitioner] committed
     against her daughter. She stated that [the Petitioner] had become slightly
     more strict with the victim just before the victim made the sexual abuse
     allegations against him. During cross-examination by the State, Ms. Hood
     admitted that she was aware that [the Petitioner] was committing these crimes
     against their daughter but did not tell the police immediately. However, Ms.
     Hood said that she told Lieutenant Heatherington that she failed to contact the
     police immediately regarding [the Petitioner’s] crimes. She said that her
     failure to immediately contact the police about these crimes was one of the
     main reasons that the victim was currently living with a foster family instead
     of with her. Ms. Hood said that she knew [the Petitioner] was committing
     these crimes because she “heard moaning” when [the Petitioner] would go
     into the victim’s room. She said that [the Petitioner] would stay in the
     victim’s room for thirty minutes to an hour. She claimed that she did not
     contact the police because she “was scared.”

Hood, 2010 WL 5054422, at *1-3.

       Defense counsel sought to call the victim’s sister, K.P., as a witness at trial. The
State objected, expressing concern that K.P. was not capable of testifying because she
was mentally incompetent.” Id. at *6. Following a jury-out hearing, the trial court
excluded K.P. as a witness based on its observations of her. Id. at *7. The court noted
for the record that “when [K.P.] was asked to raise her hand she could barely do that.”
Id.

        On direct appeal, the Petitioner argued that his right to present witnesses was
violated by the court’s refusal to allow the defense to call K.P. to testify. Specifically, he
contended that “because there was no voir dire regarding K.P.’s competency, the trial
court was unable to make an informed decision regarding this issue.” Id. at *6. The State
responded that the issue was waived “because there was no offer at proof made at trial or
at the motion for new trial hearing regarding K.P.’s competency to testify.” Id. The State
further argued that the exclusion of K.P.’s testimony was harmless given “the substantial
proof of [the Petitioner’s] guilt at trial.” Id. This court agreed with the State, concluding
that “the trial court did not abuse its discretion in preventing K.P. from testifying for the
defense.” Id. at *7.

       On July 15, 2014, the Petitioner filed a petition for post-conviction relief in which
he asserted, among other things, that he was entitled to due process tolling of the statute
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of limitations “due to his incompetence.” Edward Hood, Jr. v. State, No. W2016-01998-
CCA-R3-PC, 2017 WL 2482991, at *3, *5 (Tenn. Crim. App. June 7, 2017). On appeal,
this court affirmed the dismissal of the petition as time-barred, concluding that the
Petitioner had not demonstrated that the statute of limitations should be tolled due to his
alleged mental incompetence. Id. at *5-*7.

        On February 2, 2017, the petitioner filed the pro se petition for writ of error coram
nobis at issue in this case, arguing that he had newly discovered evidence, specifically, an
undated note signed by his daughter, K.P., which entitled him to a new trial.2 The note,
which was not dated or notarized and appeared to be in a child’s handwriting read, “This
is to say I K.P.W. heard my sister; C.3 say that she lied on her Dad; Edward Hood at a
Christmas party. Another time the state had set up a supervised visit, she told me she had
lied and it wasn’t true and she knew it wasn’t. Signed, K.P.W.”4

        On April 13, 2017, the error coram nobis court entered an order dismissing the
petition on the grounds that the note did not constitute newly discovered evidence, as the
information in the letter “was reasonably available at the time of trial.” The court also
determined that the letter was unreliable because it was not dated or notarized and its
author had been found incompetent to testify at trial. Further, the court held that the letter
would not have resulted in a different verdict because “there was testimony during the
original trial by other witnesses and by the victim that the victim lied about the abuse by
[the] [P]etitioner.” On May 4, 2017, the Petitioner filed a timely notice of appeal.

                                               ANALYSIS

        The Petitioner contends that the trial court erred when it denied his petition for
writ of error coram nobis. He acknowledges that his petition was filed almost seven
years after the statute of limitations expired, but argues that due process should toll the
statute of limitations due to his newly discovered evidence. He alleges that he “exercised
due diligence in trying to locate evidence to prove his innocence, but [was] unsuccessful
until December 18, 2016 when he received his letter from [K.P.]” in which K.P. stated
that the victim told her that the victim lied about the Petitioner’s raping the victim. The
Petitioner requests a remand to the trial court for an evidentiary hearing and the
appointment of counsel to determine whether the letter was reliable, whether a different
verdict would have resulted from this allegedly newly discovered evidence, and whether
K.P. is currently incompetent.



       2
         In accordance with the policy of this court, we identify minors by their initials.
       3
         It is the policy of this court to refer to juvenile victims of sexual assault by their initials only.
       4
         At trial, the court referred to the victim’s sister as K.P. K.P.W. and K.P. are the same person.
                                                     -5-
      A writ of error coram nobis is an extraordinary remedy by which the court may
provide relief from a judgment under only narrow and limited circumstances. State v.
Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated section 40-26-
105 provides this remedy to criminal defendants:

              Upon a showing by the defendant that the defendant was without fault
     in failing to present certain evidence at the proper time, a writ of error coram
     nobis will lie 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. The issue shall be tried by the court without the intervention of a
     jury, and if the decision be in favor of the petitioner, the judgment complained
     of shall be set aside and the defendant shall be granted a new trial in that
     cause.

Tenn. Code Ann. § 40-26-105(b), (c) (2012).

       Our supreme court has stated the standard of review as “whether a reasonable
basis exists for concluding that had the evidence been presented at trial, the result of the
proceedings might have been different.” State v. Vasques, 221 S.W.3d 514, 525-28
(Tenn. 2007) (citations omitted).

       Coram nobis claims may be based upon any “newly discovered evidence relating
to matters litigated at the trial” so long as the petitioner establishes that he or she was
“without fault” in failing to present the evidence at the proper time. Harris v. State, 102
S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims are “singularly fact-intensive,” are
not easily resolved on the face of the petition, and often require a hearing. Id. at 592-93.
The decision to grant or deny a petition for writ of error coram nobis based on newly
discovered evidence lies within the sound discretion of the trial court. See Tenn. Code
Ann. § 40-26-105; State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995);
Vasques, 221 S.W.3d at 527-28. We review this issue, therefore, under an abuse of
discretion standard.

        We conclude that the trial court properly dismissed the petition without a hearing.
First, we agree that the petition was untimely and that the Petitioner has shown no reason
that the statute of limitations should be tolled. The time limit for seeking a writ of error
coram nobis is one year from the date the judgment becomes final in the trial court. See
Tenn. Code Ann. § 40-26-105, 27-7-103; Mixon, 983 S.W.2d at 667. In this matter, the
judgment became final in 2009, but the petition for post-conviction relief was not filed
until 2017, meaning that it was untimely by nearly seven years.

                                           -6-
       Second, even if the letter from K.P. were deemed reliable and thus considered by
the court, it did not present any new evidence that may have produced a different result at
the Petitioner’s trial. The letter was consistent with the trial testimony of the victim’s
cousin, Victoria Westerfield, that the victim told her that the victim “lied about her
daddy’s case and misse[d] her daddy.” Hood, 2010 WL 5054422, at *2. Further, the
victim admitted at trial that she had previously told a forensic interviewer that the
Petitioner never sexually abused her, but explained that she said this because she did not
want the Petitioner to get into trouble and because she was afraid of him. Id. “Newly
discovered evidence that is merely cumulative or serves no other purpose than to
contradict or impeach does not warrant the issuance of the writ.” Wlodarz v. State, 361
S.W.3d 490, 499 (Tenn. 2012), abrogated on other grounds by Frazier v. State, 495
S.W.3d 246, 28 (Tenn. 2016). Therefore, we conclude that the trial court properly
dismissed the Petitioner’s untimely petition for writ of error coram nobis relief without
appointing counsel or holding an evidentiary hearing. See State v. Lingerfelt, 687
S.W.2d 294, 295 (Tenn. Crim. App. 1984).

                                 CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court dismissing the petition for writ of error coram nobis.


                                             ____________________________________
                                             ALAN E. GLENN, JUDGE




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