                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                                       Heard in Nashville
                                     October 2, 2002 Session

                     RICKY HARRIS v. STATE OF TENNESSEE

                   Appeal by Permission from the Court of Criminal Appeals
                              Circuit Court for Carter County
                             No. 10297     R. Jerry Beck, Judge



                      No. E1999-02771-SC-R11-PC - Filed April 16, 2003



E. RILEY ANDERSON, J., with whom ADOLPHO A. BIRCH, JR., J., joins, concurring in part and
dissenting in part.

        I concur in the majority’s opinion that the petitioner’s motion did not establish grounds to
reopen his post-conviction suit pursuant to Tennessee Code Annotated section 40-30-217(a) (1997).
I dissent, however, from the majority’s conclusion that the Court of Criminal Appeals erred in
treating the motion as a petition for the writ of error coram nobis. In my view, the substance of the
motion alleged grounds to be treated as a petition for the writ of error coram nobis and the majority
of this Court has erred in failing to address the important constitutional issue this case was taken to
resolve.

         Turning to the merits of the case, I would hold that the due process balancing analysis under
Workman v. State, 41 S.W.3d 100 (Tenn. 2001), may toll the one-year writ of error coram nobis
statute of limitations where the prosecution has suppressed exculpatory evidence in a non-capital
proceeding. Indeed, this Court has never distinguished between capital and non-capital cases in
considering whether due process mandates the tolling of a statute of limitations. I would also hold
that the petitioner’s motion asserted a prima facie case for the issuance of a writ of error coram nobis
and raised grounds requiring that the statute of limitations be tolled under due process principles.

        I would therefore affirm the Court of Criminal Appeals’ judgment remanding the case to the
trial court for a determination of whether (1) the petitioner has newly discovered evidence relating
to matters litigated at trial, (2) the petitioner was without fault in failing to present the evidence, and
(3) the evidence may have resulted in a different judgment had it been presented at trial. Because
the majority opinion fails to address these difficult issues, I respectfully dissent.
                                                BACKGROUND

       As the majority accurately summarizes, the petitioner, Ricky Harris, was convicted of first
degree murder and sentenced to serve life imprisonment in 1988. His conviction and sentence were
affirmed on direct appeal in February of 1991. He later filed a post-conviction petition alleging that
his counsel were ineffective and that the State had suppressed exculpatory evidence. The trial court
denied post-conviction relief and the Court of Criminal Appeals affirmed the decision in December
of 1998.1

        On December 10, 1998, the petitioner filed a motion in the trial court seeking to reopen the
post-conviction case on the grounds that the prosecution withheld exculpatory alibi evidence at trial
in violation of due process under the United States and Tennessee Constitutions. See Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); Sample v. State, 82 S.W.3d 267 (Tenn. 2002). The
motion to reopen alleged that the State had withheld the identification of a witness who had stated
that she was with the petitioner during the time prosecutors alleged he was disposing of the victim’s
body. According to the motion, which was accompanied by interview notes purportedly taken by
a police officer, the witness, Corrine Hampton, said that she had car trouble at about 8:25 a.m. on
September 8, 1987, and that the petitioner stopped to help her. She further stated that she did not
see a body inside the petitioner’s car or trunk and that she followed the petitioner to Sherwood
Chevrolet to have her car repaired.

        The motion asserted that the petitioner learned of this exculpatory evidence only after
receiving an anonymous letter in response to a newspaper ad the petitioner had placed in the
Elizabethon Star seeking information about the case in August of 1998. The motion explained the
materiality of the evidence:

                  During the trial the State maintained the Petitioner had killed the
                  victim at her home or abducted her and took her to the Carr Cemetery
                  where he disposed of the body or killed her at that point and disposed
                  of the body. The State maintained that this occurred between the time
                  period of 8:00 a.m. and 9:00 to 9:30 a.m. Petitioner testified that he
                  did not commit the crime and that he drove [] Hampton straight to
                  Sherwood Chevrolet in Johnson City. If the State would have
                  provided this evidence, petitioner could have presented Ms. Hampton
                  as his alibi witness and corroborated his testimony . . . .




         1
           See State v. Ricky Jerom e Harris, No. 85, 1990 W L 17 150 7 (T enn. C rim. App., N ov. 8, 199 0), perm. app.
denied, (Tenn., Feb. 4, 1991 ); Ricky Harris, No. 03C 01-9 611 -CR-004 10, 1 998 WL 19 144 1 (T enn. C rim. App.,
April 23, 1 998 ), perm. app. denied, (Tenn., Dec. 7, 1998).

                                                          -2-
Although the petitioner initially submitted only his own affidavit reciting the alleged facts, he later
filed an affidavit containing the allegedly exculpatory statements made by the witness in question.2

        The trial court denied the motion after finding that the alleged exculpatory evidence did not
constitute an appropriate ground for reopening a post-conviction petition under Tennessee Code
Annotated section 40-30-217(a). On appeal, the Court of Criminal Appeals agreed that the
suppression of exculpatory evidence is not a ground upon which to reopen a post-conviction case
under Tennessee Code Annotated section 40-30-217(a). A majority of that court nonetheless
concluded that the motion should be treated as a petition for the writ of error coram nobis and that
Workman v. State, 41 S.W.3d 100 (Tenn. 2001), which held that due process may toll the one-year
writ of error coram nobis statute of limitations in a capital case, should apply and not be limited to
capital cases. The case was therefore remanded for the trial court to determine (1) whether the State
suppressed exculpatory evidence, (2) whether the petitioner was diligent and not at fault in failing
to raise the issue earlier, and (3) whether the evidence may have resulted in a different outcome.
Unlike the majority of this Court, I would affirm the Court of Criminal Appeals’ judgment.

                                                      ANALYSIS

                                                  Motion to Reopen

        The majority opinion correctly begins its analysis with the threshold question of whether the
issue raised by the petitioner, i.e., the State’s suppression of exculpatory evidence, was a proper basis
upon which to reopen a post-conviction petition. The Post-Conviction Procedure Act requires a
petitioner to “petition for post-conviction relief . . . within one (1) year of the final action of the
highest state appellate court to which an appeal is taken . . . .” Tenn. Code Ann. § 40-30-202(a)
(1997). Moreover, the Act “contemplates the filing of only one (1) petition for post-conviction
relief.” Tenn. Code Ann. § 40-30-202(c).

       A petitioner may move to reopen post-conviction proceedings only “under the limited
circumstances set out in § 40-30-217.” Tenn. Code Ann. § 40-30-202(c). As the majority notes, the
circumstances include:

                           (1) The claim in the motion is based upon a final ruling of an
                   appellate court establishing a constitutional right that was not
                   recognized as existing at the time of trial, if retrospective application
                   of that right is required. Such motion must be filed within one (1)
                   year of the ruling of the highest state appellate court or the United
                   States supreme court establishing a constitutional right that was not
                   recognized as existing at the time of trial; or



        2
            The trial court accepted the affidavits as filed, and the Court of C riminal App eals treated them as a
supplemental record on appeal .

                                                            -3-
                       (2) The claim in the motion is based upon new scientific
                evidence establishing that such petitioner is actually innocent of the
                offense or offenses for which the petitioner was convicted; or

                        (3) The claim asserted in the motion seeks relief from a
                sentence that was enhanced because of a previous conviction and
                such conviction in the case in which the claim is asserted was not a
                guilty plea with an agreed sentence, and the previous conviction has
                subsequently been held to be invalid, in which case the motion must
                be filed within one (1) year of the finality of the ruling holding the
                previous conviction to be invalid; and

                         (4) It appears that the facts underlying the claim, if true,
                would establish by clear and convincing evidence that the petitioner
                is entitled to have the conviction set aside or the sentence reduced.

Tenn. Code Ann. § 40-30-217(a)(1)-(4) (1997). These circumstances plainly do not allow the
reopening of a post-conviction petition based on the State’s suppression of exculpatory evidence.
I therefore agree with the majority that the issue raised by the petitioner did not satisfy the limited
statutory grounds for reopening a post-conviction proceeding set forth above.

        Although I agree with the majority’s conclusion, Judge Witt’s dissenting opinion from the
Court of Criminal Appeals expresses a view that I share. Judge Witt recognized that the prosecutor’s
duty to reveal exculpatory evidence on both constitutional and ethical grounds is well-established
and that the suppression of exculpatory evidence violates the accused’s right to a fair trial. Brady
v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1196-97. Judge Witt therefore concluded that the
suppression of exculpatory evidence, although not a ground to reopen a post-conviction case, may
establish a due process basis for tolling the post-conviction statute of limitations in cases where a
petitioner’s liberty interest in litigating the issue after the expiration of the statute of limitations
outweighs the State’s otherwise legitimate interest in finality. See Burford v. State, 845 S.W.2d 204
(Tenn. 1992).

         I share Judge Witt’s concern that the State should not benefit from delay it has created by
suppressing exculpatory evidence and violating an accused’s constitutional rights. See Sample v.
State, 82 S.W.3d at 276. The legislature, however, has not indicated that a post-conviction case may
be reopened on this basis, even though it has properly recognized the consequences of the State’s
suppression of exculpatory evidence with respect to relieving a petitioner from other post-conviction
procedural defaults. See Tenn. Code Ann. § 40-30-206(g)(2) (1997) (ground not barred by waiver
if the “failure to present the ground was the result of state action in violation of the federal or state
constitution.”). While legislative action would be the simplest means for resolving these issues, I
nonetheless agree with the majority that the State’s suppression of exculpatory evidence is not a
ground upon which to reopen a post-conviction proceeding under the current provisions of
Tennessee Code Annotated section 40-30-217(a).


                                                  -4-
                                      Writ of Error Coram Nobis

         The majority next concludes that the Court of Criminal Appeals erred in its sua sponte
determination that the petitioner’s motion to reopen should be treated as a petition for the writ of
error coram nobis. The majority reasons that the pleading did not mention the writ of error coram
nobis, that the petitioner’s brief to the Court of Criminal Appeals indicated that he did not intend to
file a petition for the writ of error coram nobis, and that there are procedural and factual differences
between a motion to reopen and a petition for the writ of error coram nobis.

        Although I agree that sua sponte action by the appellate court may be infrequent, I disagree
with the majority’s view that the Court of Criminal Appeals’ action was error in this case and with
Justice Holder’s concurring opinion’s conclusion that the petitioner waived review of the issue. In
my view, the Court of Criminal Appeals’ action was correctly based on the substance of the
petitioner’s pleading and these issues have now been presented directly to this Court. Moreover,
since the majority’s opinion does not prohibit the petitioner from filing a petition for the writ of error
coram nobis following this appeal, the identical issues will undoubtedly return to this Court.
Because the Court of Criminal Appeals’ action was correct, and in the interests of judicial economy
and efficiency, I would address the merits of the issues as now presented and argued.

       Although the writ of error coram nobis is a narrow remedy, see State v. Mixon, 983 S.W.2d
661, 666 (Tenn. 1999), its requirements are well-established:

                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.

Tenn. Code Ann. § 40-26-105 (1997); see also State v. Mixon, 983 S.W.2d at 668. A petitioner must
therefore show that (1) there is newly discovered evidence relating to matters litigated at the trial,
(2) the petitioner was without fault in failing to present this evidence at the proper time, and (3) the
evidence may have resulted in a different judgment had it been presented at the trial. The remedy
in the appropriate case is a new trial. Id.

        The caption of the petitioner’s pleading belies the majority’s conclusion that it was intended
solely as a motion to reopen the petitioner’s post-conviction suit. The pleading is entitled a “motion
to reopen petition for post-conviction relief or in the alternative, motion for a new trial based on
newly discovered evidence.” (Emphasis added.) The motion was not limited to grounds for
reopening the petitioner’s post-conviction suit and instead included the “newly discovered evidence”
requirement for the writ of error coram nobis. In sum, the majority’s premise that the motion was



                                                   -5-
intended solely as a request to reopen the petitioner’s post-conviction proceeding is inconsistent with
the very title of the document.

         More importantly, the substance of the petitioner’s pleading also belies the majority’s
conclusion. See Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995) (recognizing that a court
is not limited to the title or form of a pleading and must instead look to its substance). The motion
asserted that the State withheld the identity of a witness who told a police officer that the petitioner
assisted her when she had car trouble, that she did not see a dead body in the petitioner’s car or trunk,
and that she followed the petitioner to Sherwood Chevrolet to have her car repaired. The motion
further asserted that the evidence would have corroborated the petitioner’s alibi for the time period
in which the State alleged he was disposing of the body. Finally, the motion alleged that the
petitioner did not obtain the evidence until he received a response to an advertisement he had placed
in the Elizabethton Star newspaper seeking information about his case in August of 1998.

        In my view, the allegations in the motion established a prima facie case on each element for
the writ of error coram nobis. The motion asserted that the petitioner obtained newly discovered
evidence, that the evidence related to matters litigated at his trial, and that the petitioner was not at
fault for failing to present the evidence at trial because the prosecution withheld the identity of the
witness. The motion also asserted that the evidence would have corroborated the petitioner’s alibi.
I would therefore hold that the Court of Criminal Appeals correctly determined that the substance
of the petitioner’s motion alleged the necessary elements for raising a petition for the writ of error
coram nobis.

                                         Statute of Limitations

       By concluding that the Court of Criminal Appeals erred in treating the petitioner’s motion
as an error coram nobis petition, the majority effectively avoids the critical issue in this case:
whether due process tolled the one-year statute of limitations for filing a petition for the writ of error
coram nobis under our decision in Workman v. State, 41 S.W.3d 100 (Tenn. 2001).

        As the parties concede, the petitioner failed to file his petition within one (1) year after the
judgment became final as required in error coram nobis cases. Tenn. Code Ann. § 27-7-103 (2000).
This Court has consistently recognized, however, that principles of due process may toll the writ of
error coram nobis statute of limitations or the post-conviction statute of limitations where the
petitioner’s liberty interest in raising a late-arising issue outweighs the State’s finality interest
embodied in the statute. Workman, 41 S.W.3d at 101-02; see also Williams v. State, 44 S.W.3d 464
(Tenn. 2001); Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn.
1992).

        In Workman, the petitioner’s writ of error coram nobis petition, which claimed that he had
evidence unavailable at trial that proved his innocence of capital murder, was dismissed because it
was filed after the one-year statute of limitations in error coram nobis cases. A majority of the
Supreme Court reversed the dismissal after weighing the competing interests:


                                                   -6-
                [W]e have no hesitation in concluding that due process precludes
                application of the statute of limitations to bar consideration of the
                writ of error coram nobis in this case. [The petitioner’s] interest in
                obtaining a hearing to present newly discovered evidence that may
                establish actual innocence of a capital offense far outweighs any
                governmental interest in preventing the litigation [of] stale claims.
                . . . The delay in obtaining this evidence is not attributable to the fault
                of [the petitioner] or his attorneys. . . . No court in this State has
                actually held a hearing to fully evaluate the strength of these claims.
                Under such circumstances, [the petitioner’s] interest in obtaining a
                hearing on these claims clearly outweighs the governmental interest
                embodied in the statute of limitations. Accordingly, due process
                precludes summary dismissal of this claim based upon a statutory
                time bar.

Workman, 41 S.W.3d at 103. The case was therefore remanded to the trial court for further
proceedings.

         Although Workman was decided in the context of a capital case, and the Court was duly
aware of the interests at stake in a capital case, its holding was not expressly limited to writ of error
coram nobis petitions filed in capital cases. Indeed, the reasoning in Workman was predicated on
a line of cases, beginning with Burford v. State, which applied due process principles to toll the
statutes of limitations in circumstances not limited to capital cases. See Williams, 44 S.W.3d at 471;
Seals, 23 S.W.3d at 279; Burford, 845 S.W.2d at 208. As we said in Burford, “before a state may
terminate a claim for failure to comply with procedural requirements such as statutes of limitations,
due process requires that potential litigants be provided an opportunity for the presentation of claims
at a meaningful time and in a meaningful manner.” 845 S.W.2d at 208. In sum, this Court has never
distinguished between capital and non-capital cases when analyzing whether due process mandates
the tolling of a statute of limitations. Accordingly, I would affirm the Court of Criminal Appeals’
determination that Workman is not limited to capital cases.

        In applying the due process balancing analysis from Burford and Workman, I conclude that
the petitioner’s allegations that the State withheld the identification of an alibi witness and
exculpatory statements made by that witness raise a substantial liberty interest affecting the
petitioner’s rights to due process and a fair trial. Indeed, this Court has recognized the significance
of a suppression of exculpatory evidence issue when considering a petitioner’s liberty interest under
the due process balancing analysis. See Sample v. State, 82 S.W.3d at 276; see also Workman, 41
S.W.3d at 102.

        Although the majority states in footnote 10 that it is reserving the later-arising claim question
for another day, it engages in an extensive discussion of the alleged facts and then comes to
conclusions about the issue it purports not to address. I disagree with the majority’s conclusion that
the petitioner’s liberty interest was negated because he failed to raise a later-arising claim. The issue


                                                   -7-
is not simply the question of the petitioner’s own whereabouts for the purpose of an alibi, but rather,
the State’s suppression of the identification of a witness and an exculpatory statement made by that
witness. Moreover, the petitioner’s knowledge of his location at the time of the offense would not
be nearly as persuasive without the corroboration of a disinterested witness. In any event, any
conclusions with regard to the petitioner’s fault require factual findings that are better left to the trial
court in evaluating whether the writ of error coram nobis requirements have been met. In short, I
do not agree that the petitioner has failed to assert a later-arising issue or that the petitioner’s liberty
interests are diminished as concluded by the majority.

        In addition, I believe that the petitioner’s sentence of life imprisonment further heightened
his liberty interest in seeking to raise these issues. The State has offered no principled basis for
either distinguishing between a life sentence and a capital sentence in weighing a petitioner’s liberty
interest under the due process analysis or for finding that a life sentence does not implicate a
significant liberty interest. The State’s failure was foreordained because there is no question that a
sentence of life imprisonment is a substantial deprivation of liberty.

        Finally, I would conclude that balancing the interests of the parties favors the petitioner’s
liberty interest. The Court has implicitly recognized, for example, that the State’s finality interest
is seriously compromised when the prosecution has suppressed evidence in violation of its
constitutional duty and is directly responsible for causing the delay in finality. See Sample, 82
S.W.3d at 276 (“[T]he 16-month period under these circumstances must be viewed with and
mitigated by the fact that the prosecution suppressed the evidence and prevented the issue from being
litigated for over 10 years.”). Indeed, it is dubious to suggest that the State has any legitimate
interest in the finality of a conviction where that conviction may have been secured in part through
the suppression of evidence favorable to the accused. Any other conclusion is tantamount to stating
that a petitioner should have no available remedy if and when the prosecution has succeeded in
suppressing evidence until after the applicable statute of limitations has expired. I strongly reject
such a view.

        I disagree with Justice Holder’s concurring opinion’s conclusion that the record on appeal
is insufficient to address this issue or to apply the due process analysis. On the contrary, the
petitioner’s liberty interests and the State’s alleged interests in finality that I have discussed are fully
evident from the record and can be balanced under the due process principles described in our
controlling cases. I do agree, however, that a remand for additional proceedings is necessary to
resolve the factual issues with respect to the writ of error coram nobis requirements. Accordingly,
I would affirm the Court of Criminal Appeals’ conclusion that due process tolled the one-year statute
of limitations and that the case must be remanded to the trial court for further proceedings.

                                            CONCLUSION

        I concur in the majority’s opinion that the petitioner’s motion did not establish grounds to
reopen his post-conviction suit pursuant to Tennessee Code Annotated section 40-30-217(a). I
dissent, however, from the majority’s conclusion that the Court of Criminal Appeals erred in treating


                                                    -8-
the motion as a petition for the writ of error coram nobis. In my view, the substance of the motion
alleged adequate grounds to be treated as a petition for the writ of error coram nobis and the majority
of this Court has erred in failing to address the important constitutional issue this case was taken to
resolve.

        Accordingly, I would address the merits of this case and would hold that the due process
balancing analysis under Workman v. State, 41 S.W.3d 100 (Tenn. 2001), may toll the one-year writ
of error coram nobis statute of limitations where the prosecution has suppressed exculpatory
evidence in a non-capital case. This Court has never distinguished between capital and non-capital
cases in considering whether due process mandates the tolling of a statute of limitations, nor is there
any reason to do so. I would also hold that the petitioner’s motion asserted a prima facie case for
the issuance of the writ of error coram nobis and required that the statute of limitations be tolled
under due process principles.

        I would therefore affirm the Court of Criminal Appeals’ judgment remanding the case to the
trial court for a determination of whether (1) the petitioner has newly discovered evidence relating
to matters litigated at trial, (2) the petitioner was without fault in failing to present the evidence, and
(3) the evidence may have resulted in a different judgment had it been presented at trial. Because
the majority opinion fails to address these difficult issues, I respectfully dissent. I am authorized to
state that Justice Birch joins in this concurring and dissenting opinion.


                                                         _____________________________
                                                         E. RILEY ANDERSON, JUSTICE




                                                   -9-
