         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 13, 2004

                    KEVIN TAYLOR v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                           No. 95-C-1907    Seth Norman, Judge



                  No. M2003-02982-CCA-R3-CO - Filed December 13, 2004


The petitioner appeals the trial court’s denial of his petition for writ of error coram nobis.
Particularly, he avers that the court abused its discretion in summarily dismissing his petition solely
on the lack of credibility of the affiant supporting the petition. We remand the matter to the trial
court for an evidentiary hearing.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Remanded for
                                   Evidentiary Hearing

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID H. WELLES, J., joined.

Kevin Taylor, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                  Facts and Procedural History

        Following a jury trial, the petitioner, Kevin Taylor, was convicted of felony murder and
attempted especially aggravated robbery; he received an effective sentence of life imprisonment. On
direct appeal, this Court affirmed the judgment of the trial court. State v. Kevin Taylor, No. 01C01-
9707-CR-00263, 1998 Tenn. Crim. App. LEXIS 1272 (Tenn. Crim. App., Nashville, Dec. 9, 1998),
perm. to app. denied (Tenn. 1999).

       That opinion recites a succinct summary of the facts underlying the convictions:
       On December 26, 1994, the 20-year old victim, Joshua Sabine, drove to
Nashville with James DeMoss, Rex Clayton and 15-year old Brian Binkley. The
victim was driving, and Binkley was in the front passenger seat. DeMoss and
Clayton were in the rear seat. The victim intended to purchase some wheel rims in
Nashville.

       The victim drove near a housing project in West Nashville where Cordell
Sykes, the co-defendant, asked the victim if he had come for the rims. Sykes
requested that they come back in approximately 30 minutes.

        Upon their return Sykes approached the driver’s door and advised the victim
that he was unable to get the wheel rims. The defendant approached the passenger
door and endeavored to sell drugs to the car occupants. Binkley advised him they
were not interested in purchasing drugs, and the defendant walked around to the
driver’s door. Sykes then reached into the vehicle to place the gear shift in “park”
and struggled with the victim. At that time another person began shooting into the
vehicle. Binkley testified that both of Sykes’ hands were inside the vehicle at the
time of the shooting, and Sykes did not have a weapon.

        Regina Tyson and Tara Williams were together at the scene at the time of the
shooting. Tyson testified she observed the defendant and Corey Gooch walk by her.
The defendant took Gooch’s baseball cap, placed it upon his head and lowered it just
above his eyebrows. The defendant also slid a gun into his black leather jacket and
stated that he was “going to show them how to do a jack move.” She explained that
“jack move” means robbing someone.

        Tyson further testified that both Sykes and the defendant were at the Blazer
when she heard gunshots. She then observed Sykes flee while the defendant simply
walked across the street, got in his car and drove away. The only person she saw
with a gun that night was the defendant.

        Corey Gooch testified that he was with the defendant on the night in question.
He observed the defendant at the vehicle and saw Sykes on the driver’s side
struggling with the driver. He also observed the defendant at the vehicle when he
heard the shots but was unable to determine who actually fired the shots. Gooch saw
the defendant later that evening, and the defendant stated there was a radio in the
vehicle but things, “didn’t work out.” Gooch assumed the defendant was trying to
get the radio.

       The victim was shot in the hail of gunfire. Binkley grabbed the steering
wheel, pushed the accelerator and sped from the scene. The parties drove to a
convenience store and called 911. The victim subsequently died from the gunshot
wounds.


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               The forensic pathologist testified that the victim had three gunshot wounds;
        namely, one to the left part of the back, one to the back of the left hand and one to the
        upper left arm. Since the back wound had “stippling,” that shot was fired from a
        distance of less than three feet.

                 The defendant was arrested several months after the incident. In his initial
        statement to the police, he stated he was across the street when the shooting began.
        After further interrogation, he admitted approaching the passenger side trying to sell
        drugs and then going around to the driver’s side where he stood beside Sykes. He
        told the officers that Sykes was the person who shot the victim. The defendant
        denied to the officers that he was wearing a black leather jacket. This was contrary
        to the trial testimony of Binkley, Tyson and Gooch.

                The defense offered no evidence at trial.

         Thereafter, the petitioner filed a petition for post-conviction relief, which was denied by the
 trial court. This Court likewise affirmed that judgment. Kevin Taylor v. State, No. M2000-01414-
 CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 634 (Tenn. Crim. App., Nashville, Aug. 17, 2001),
 perm. to appeal denied (Tenn. 2003).

          On September 26, 2003, the petitioner filed a pro se petition for writ of error coram nobis,
averring that newly discovered evidence merited a new trial. In support of his petition, the petitioner
submitted the affidavit of eyewitness James DeMoss (“DeMoss”), who could not be located to testify
at trial. DeMoss stated in his affidavit that he was present in the vehicle with the victim at the time
of the murder and that the petitioner was not the gunman. He further explained that, although he
wished to testify at trial, he had not been contacted by either party and was unaware that the trial had
commenced until well after it had concluded. The trial court summarily dismissed the petition, citing
several reasons for its finding, including: the affiant’s lack of credibility, the cumulative and
contradictory nature of the proffered evidence, and the petitioner’s lack of diligence in failing to
present the evidence at the appropriate time. The petitioner now appeals to this Court.

                                               Analysis

         The writ of error coram nobis is a decidedly narrow remedy and is only appropriate when the
 issue presented was either not addressed, or could not have been addressed at trial because it was in
 some way hidden or unknown, and would have prevented the judgment rendered had it been known
 to the court. See Tenn. Code Ann. § 40-26-105 (2003); State v. James Hooper, No. 03C01-9701-
 CR-00035, 1998 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App., Knoxville, March 6, 1998); State
 v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995). Thus, the writ will lie for newly discovered
 evidence if the petition relates (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


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to present the newly discovered evidence at the appropriate time; and (4) the relief sought by the
petitioner. Hart, 911 S.W.2d at 374-375.

         In the case sub judice, the trial court determined, without an evidentiary hearing, that the
evidence did not merit coram nobis relief. Our supreme court has held that coram nobis claims are
“singularly fact-intensive,” and “are not easily resolved on the face of the petition and often require
a hearing.” Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003). In the instant matter, the court based
its findings on facts outside the petition, looking to testimony elicited at the post-conviction hearing
and statements allegedly made by the affiant to officers immediately after the victim was murdered.
In so doing, the court denied the petitioner the opportunity to subject the witness to the process of
examination. We conclude that an evidentiary hearing would allow the trial court to better gauge
the credibility of the affiant; the effect, if any, that his testimony might have had on the jury’s
verdict; and if the petitioner was indeed at fault in failing to present the testimony to the tribunal at
the appropriate time. In sum, we hold that the trial court must delve more deeply into the facts
surrounding the petition in order to make a sufficient determination of its merits. Therefore, we
remand this matter to the trial court for an evidentiary hearing on the coram nobis petition.

                                    Statute of Limitations

        On appeal, the State contends that the petition is outside the statute of limitations and is thus
time-barred. The statute of limitations for seeking a writ of error coram nobis is one year from the
date the judgment becomes final. Tenn. Code Ann. § 27-7-103 (2004).

        In the present case, the trial court’s judgment became final in May 1996; thus, the statute of
limitations had long expired before the petitioner filed his petition in September 2003. However,
it is well-settled law that the statute of limitations applicable to writs of error coram nobis is an
affirmative defense, which the State bears the burden of raising. See Harris v. State, 102 S.W.3d 587
(Tenn. 2003); Sands v. State, 903 S.W.2d 297 (Tenn. 1995). We note, however, that it appears from
the record that summary dismissal precluded the State from raising the statute of limitations as a
defense in the trial court. Therefore, we conclude that the affirmative defense of the statute of
limitations has not been waived; however, due to the lack of a record on this issue it is not
cognizable on this appeal.

                                              Conclusion

       Based on the foregoing reasons, this matter is remanded to the trial court for an evidentiary
hearing on the coram nobis petition and the statute of limitations pertaining thereto.




                                                             _______________________________________
                                                              JOHN EVERETT WILLIAMS, JUDGE


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