                                                                                          03/03/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs at Knoxville January 18, 2017

                 TOMMY NUNLEY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                       No. 96-10669    John Campbell, Judge


                            No. W2016-01487-CCA-R3-ECN


The petitioner, Tommy Nunley, appeals the summary denial of his petition for writ of
error coram nobis, which petition challenged his 1998 Shelby County Criminal Court
jury conviction of aggravated rape, claiming that the trial court erred by treating his
petition for writ of error coram nobis as a petition for DNA testing and by summarily
dismissing the petition. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Tommy Nunley, Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kirby May, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              A Shelby County Criminal Court jury convicted the petitioner of one count
of the aggravated rape of the victim, his 13-year-old cousin. See State v. Tommy Nunley,
No. 02C01-9804-CR-00114, slip op. at 1-3 (Tenn. Crim. App., Jackson, Mar. 12, 1999)
(summarizing the evidence adduced at the petitioner’s trial) (Nunley I). This court
affirmed the conviction and accompanying 25-year sentence on direct appeal. See id.

              The petitioner later filed a timely petition for post-conviction relief,
alleging, among other things, that his “trial counsel was ineffective for failing to move for
state-funded expert assistance for DNA testing of various items collected during the
investigation of the case.” Tommy Nunley v. State, No. W2003-02940-CCA-R3-PC, slip
op. at 2 (Tenn. Crim. App., Jackson, Jan. 6, 2006) (Nunley II). At the conclusion of the
evidentiary hearing on the petition for post-conviction relief, “the post-conviction court
sua sponte entered an order directing that the TBI conduct DNA testing on biological
samples obtained from the [p]etitioner and biological samples contained in the rape kit.”
Id., slip op. at 4. Nearly two years later, “the State reported that the rape kit at issue in
this case had been in the possession of the [Memphis Sexual Assault Resource Center]
where it was either lost or destroyed” during “‘a flood at U.T. Bowld.’” Id., slip op. at 5.
The post-conviction court granted post-conviction relief on grounds that the challenged
“evidence could and should have been tested at the time of the [p]etitioner’s trial, and that
because said evidence has been lost and/or destroyed, petitioner’s constitutional right to a
fair trial was violated.” Id.

               On appeal, this court reversed the grant of post-conviction relief,
concluding that the post-conviction court erred by ordering DNA testing on the
challenged evidence in the absence of a request from the petitioner and by granting post-
conviction relief after learning that the evidence was not available for testing. See id.,
slip op. at 5-7. We determined that “the lost evidence may not be imputed to trial
counsel’s” failure to seek pretrial DNA testing and that the petitioner had failed to
establish that, had counsel sought pretrial DNA testing, the results of his trial would have
been different. See id., slip op. at 7.

               In 2014, the pro se petitioner filed a petition for relief under the Post-
Conviction DNA Analysis Act of 2001, asking “that DNA analysis be performed on all
available evidence within the State’s possession.” Tommy Nunley v. State, No. W2014-
01776-CCA-R3-PC, slip op. at 2 (Tenn. Crim. App., Jackson, Apr. 13, 2015), perm. app.
denied (Tenn. Sept. 21, 2015) (Nunley III). The post-conviction court appointed counsel,
and, after the State filed a response, the court denied relief, concluding that the petitioner
“was not entitled to relief because the evidence at issue is not ‘still in existence and in
such a condition that DNA analysis may be conducted,’ as required by Section 40-30-
304(2).” Id. On appeal, this court affirmed the denial because the record established that
“the Rape Kit is no longer available for testing.” Id., slip op. at 4.

               On May 31, 2016, the pro se petitioner filed a petition for writ of error
coram nobis, claiming entitlement to relief on grounds that the State had violated his
constitutional rights by withholding exculpatory evidence. He argued that reports in the
possession of the State prior to his trial established that forensic testing conducted by
Cellular and Molecular Forensics Laboratory prior to trial exonerated him. In support of
his claims, the petitioner appended to his petition a copy of reports generated by Cellular
and Molecular Forensics Laboratory that indicated that testing on the rape kit, the
bedsheets, and the victim’s slacks was negative for the presence of “sperm components”;
letters from the assistant district attorney general requesting DNA or serology testing by
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the Tennessee Bureau of Investigation (“TBI”); a report from the TBI indicating that no
testing would be performed on the victim’s clothing “per laboratory policy”; and a memo
addressed to the petitioner’s file from David Shapiro, an assistant district attorney
general, that included a photocopy of a hand-written telephone message addressed to Mr.
Shapiro and Johnny McFarland, another assistant district attorney general, along with a
type-written statement that “[t]he local lab . . . determined that there was no match
between the defendant and the victim.”

               The trial court entered an order denying relief on June 9, 2016. The trial
court found that the claims alleged in the petition for writ of error coram nobis had been
raised and litigated and that the petitioner had failed to establish the existence of newly
discovered evidence that would have changed the outcome of his trial.

               In this timely appeal, the petitioner contends that the trial court erred by sua
sponte treating his petition for writ of error coram nobis as a petition for DNA testing and
that the court erred by denying coram nobis relief. The State contends that the trial court
treated the petition properly and that summary dismissal of the petition was appropriate.

               Clearly, the trial court did not treat the petition for writ of error coram nobis
as a petition for DNA testing. Although the court’s order is styled “Order Denying
Petitioner’s Petition for DNA Testing Pursuant to T.C.A. § 40-30-301 Et Seq.,” the order
disposes only of the petitioner’s bid for coram nobis relief and does not consider the
petition as a request for DNA testing. The title of the order is nothing more than a
clerical error. We turn, then, to the trial court’s denial of coram nobis relief.

             A writ of error coram nobis is an “extraordinary procedural remedy,” filling
only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672
(Tenn. 1999) (citation omitted). Coram nobis relief is provided for in criminal cases by
statute:

              The relief obtainable by this proceeding shall be confined to
              errors dehors the record and to matters that were not or could
              not have been litigated on the trial of the case, on a motion for
              a new trial, on appeal in the nature of a writ of error, on writ
              of error, or in a habeas corpus proceeding. 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

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              have resulted in a different judgment, had it been presented at
              the trial.

T.C.A. § 40-26-105(b) (2006); see State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn.
2007) (describing 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’” (citation omitted)). The grounds for seeking a petition for
writ of error coram nobis are not limited to specific categories but may be based upon any
“newly discovered evidence relating to matters which were litigated at the trial” so long
as the petitioner also establishes that the petitioner was “without fault” in failing to
present the evidence at the proper time. T.C.A. § 40-36-105(b).

               “The writ of error [coram nobis] may be had within one (1) year after the
judgment becomes final by petition presented to the judge at chambers or in open court . .
. . .” T.C.A. § 27-7-103; Mixon, 983 S.W.2d at 670. In coram nobis cases, however, the
statute of limitations is an affirmative defense that should be raised by the State in the
trial court. See Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003) (citing Sands v. State,
903 S.W.2d 297, 299 (Tenn. 1995)).

              Although the decision to grant or deny coram nobis relief rests within the
sound discretion of the trial court, see Vasques, 221 S.W.3d at 527-28, “[w]hether due
process considerations require tolling of a statute of limitations is a mixed question of law
and fact, which we review de novo with no presumption of correctness,” Harris v. State,
301 S.W.3d 141, 145 (Tenn. 2010).

              As an initial matter, we observe that although the trial court concluded that
the defendant’s petition for writ of error coram nobis was time barred, the State did not
plead the statute of limitations as an affirmative defense in the trial court. Consequently,
we will consider the petition on its merits. Harris, 102 S.W.3d at 593.

               As he did in the trial court, the petitioner claims entitlement to coram nobis
relief on grounds that the State withheld exculpatory evidence in violation of his
constitutional right to due process of law, referencing the documents appended to his
petition for writ of error coram nobis in support of his claim. He maintains that he only
became aware of each of the purportedly exculpatory documents when they were
appended to the State’s response to his 2014 petition for post-conviction DNA testing.
This court’s opinion reversing the grant of post-conviction relief, however, indicates that
the petitioner’s trial counsel was aware of the report of testing conducted by Cellular and
Molecular Forensics Laboratory prior to the petitioner’s trial. Nunley II, slip op. at 3-4.
Indeed, trial counsel testified at the post-conviction hearing that he had “discussed the
test results from various items which had already been tested with Paulette Sutton,
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Assistant Director of Forensic Services at the University of Tennessee, Regional Forensic
Center” prior to the petitioner’s trial. Id., slip op. at 3. Trial counsel asked Ms. Sutton to
perform an independent review of the testing conducted by Cellular and Molecular
Forensics Laboratory, and, following that review, Ms. Sutton provided the following
conclusions to trial counsel:

               “The only item of physical evidence from [the victim] which
               gave a positive test for acid phosphatase was the gray knit
               slacks (FSL # 5805). Further testing of these slacks did not
               show the presence of spermatozoa and was negative with the
               p30 antigen. In light of these cumulative laboratory results, I
               do not believe that testing for soluble blood group
               substance(s) would be likely to be of any benefit with this
               particular item of evidence, and would not recommend that
               blood group substance(s) testing be pursued.

                      The items collected in the sexual assault kit from [the
               victim] appear to have been tested only for the presence of
               spermatozoa. No tests which would indicate the presence of
               seminal fluid, as opposed to spermatozoa, appear to have
               been conducted. Without test results for both seminal fluid
               and spermatozoa, I am unable to make a recommendation
               regarding testing for blood group substance(s) from the
               components of the sexual assault kit.”

Id., slip op. at 3-4.

               Because the petitioner’s trial counsel possessed this information prior to the
petitioner’s trial, the reports generated by Cellular and Molecular Forensics Laboratory
cannot qualify as newly discovered evidence.

               Similarly, with regard to the TBI report, the petitioner testified at the
hearing on his petition for post-conviction relief that his original attorney “informed him
that the TBI could not do a comparison because the sample was too small.” Nunley II,
slip op. at 4. Although this testimony does not indicate that the petitioner was aware that
the TBI had declined to do any testing “per laboratory policy,” it does establish that the
petitioner was aware prior to his trial that the TBI would not perform any testing.
Consequently, the TBI report cannot qualify as newly discovered evidence.

              That leaves the two letters from the assistant district attorney to the TBI
requesting testing and the memo to the petitioner’s file from Mr. Shapiro. Even if they
                                             -5-
qualified as newly discovered evidence, the letters from the assistant district attorney
general requesting forensic testing would not entitle the petitioner to coram nobis relief
because no “‘reasonable basis exists for concluding that had the evidence been presented
at trial, the result of the proceedings might have been different.’” Vasques, 221 S.W.3d
at 525-28. Neither letter contains any information that touches upon the petitioner’s guilt
or innocence.

             Finally, the memo to the petitioner’s file does not, as the petitioner alleges,
exonerate him. The type-written portion of the memo states:

              I spoke to Steve Weichman at the TBI lab. His lab’s policy is
              not to re-do tests already done by another certified lab. The
              local lab (Becky Joyner’s outfit) determined that there was no
              match between the defendant and the victim . . . .1 He will
              not re-do any tests.

The photocopied telephone message indicates that Steve Weichman from the TBI
laboratory telephoned Messrs. Shapiro and McFarland on September 2, 1997, and left the
following message: “TBI no longer does blood grouping. Due to Becky Joyner results,
he cannot do DNA. He will not re-do Becky Joyner’s test. Call him.” The record
establishes that “Becky Joyner’s outfit” is, in fact, Cellular and Molecular Forensics
Laboratory.2 As indicated above, the results of testing conducted by Cellular and
Molecular Forensics Laboratory, which were appended to the petition for writ of error
coram nobis, were available to the petitioner prior to his trial. Trial counsel not only
reviewed this information but consulted with Ms. Sutton, an independent expert, to
analyze the results and discuss the potential for further forensic testing. Additionally,
both the petitioner and his counsel were aware prior to trial that the TBI would not
conduct any further testing of the materials in this case. Moreover, regardless of what the
memo suggests, testing performed by Cellular and Molecular Forensics Laboratory did
not, in fact, “determine[] that there was no match between the defendant and the victim.”
Instead, the testing established that, of the items tested, only the victim’s slacks were
positive for any of the components of semen, and the slacks were negative for the
presence of spermatozoa. These results are no different than those available to the
petitioner prior to his trial. Thus, examined within the context of the record as a whole,
the information contained in the memo does not qualify as newly discovered evidence.

               Because the petitioner failed to present newly discovered evidence to
establish a “‘reasonable basis . . . for concluding that had the evidence been presented at
       1
        We have omitted the victim’s surname in order to conform with this court’s policy.
       2
         Ms. Joyner’s signature appears on the bottom of each of the documents from Cellular and
Molecular Forensics Laboratory.
                                              -6-
trial, the result of the proceedings might have been different,’” Vasques, 221 S.W.3d at
525-28, we affirm the judgment of the trial court denying the petition for writ of error
coram nobis.

                                                 _________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE




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