        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 26, 2011

        ALONZO FELIX ANDRES JUAN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                        No. 277633    Barry Steelman, Judge




                  No. E2010-02147-CCA-R3-CD - Filed July 12, 2011


In 1992, the Petitioner, Alonzo Felix Andres Juan, was convicted of first degree murder and
theft of property of a value of $600.00. He was sentenced to concurrent terms of life
imprisonment and eleven months and twenty-nine days. This Court affirmed his convictions
on direct appeal. See State v. Alonzo Felix Andres Juan, No. 03C01-9211-CR-00382, 1993
WL 310702 (Tenn. Crim. App., Knoxville, Aug. 17, 1993), perm. to appeal denied, (Tenn.
Dec. 6, 1993). The Petitioner filed a petition for error coram nobis relief in September 2010,
however, the error coram nobis court summarily dismissed his petition without conducting
an evidentiary hearing. After our review, we affirm the summary dismissal of the petition.

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

D AVID H. W ELLES, S P. J., delivered the opinion of the Court, in which T HOMAS T. W OODALL
and J OHN E VERETT W ILLIAMS, JJ., joined.

Alonzo Felix Andres Juan, Appellant, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General, and William H. Cox, III, District Attorney General,for the appellee, State of
Tennessee.

                                         OPINION

                                   Factual Background

       In the Petitioner’s direct appeal, this Court summarized the facts as follows:
[T]he [Petitioner] is a native American Mayan from Guatemala. He rode to
Chattanooga from the Stevenson, Alabama area with two other migrant
workers, Julio Juan and Guillermo Juan.

       They were in Julio’s car. When they arrived in Chattanooga they
parked the car behind the residence of a Mexican acquaintance, and
immediately walked to a nearby tavern and commenced drinking beer and
socializing.

        The [Petitioner] left the tavern either with the victim or shortly after the
victim left with Guillermo Juan. The victim, who was a middle-aged
African-American female, was viciously assaulted in the back yard of a nearby
house. According to the [Petitioner], Guillermo Juan was there kicking and
beating the victim about the face and head; and then coerced him by threats
and got him to strike her, too. The two men dragged the victim into the house;
where she was stabbed to death. Three bloody knives were recovered by the
police at the scene. The [Petitioner] claimed that Guillermo used a knife in
each hand. He admitted holding the third bloody knife, but denied stabbing the
victim.

        [The Petitioner] and Guillermo immediately took Julio’s car and fled.
They were arrested in Florida. Both gave statements. Prior to [the Petitioner]’s
trial, Guillermo enter a plea of guilty to second degree murder.

      [The Petitioner]’s argument is that the State did not prove the requisite
premeditation, the coolness and reflection, necessary to first degree murder.

       The State’s position is that the evidence showed that Guillermo Matias
Juan premeditatedly killed the victim, and that the [Petitioner] acted in concert
with him. [The Petitioner] contends that the State did not prove premeditation,
coolness of mind or reflection on the part of Guillermo Juan.

       ....

       Very shortly after Guillermo left the tavern with the victim, when they
reached the back yard of a nearby house, he commenced viciously beating and
kicking her. Upon his arrival at the scene the [Petitioner] took off his belt and
commenced beating the victim with it. Both men kicked her with booted feet.
They dragged her into the house for the clear purpose of there killing her. She
was stabbed numerous times.

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       A jury could reasonably conclude that this vicious crime was planned
before the actors left the tavern. There is no question but that the victim was
dragged from the back yard, where she was already beaten into a state of near
helplessness, into the house to be slaughtered there.

       Even if the [Petitioner] did not himself premeditate and deliberate
regarding the murder, there was ample evidence that he acted with the intent
to promote or assist in the commission of the murder and is by statute
criminally responsible for that offense. T.C.A. Section 39-11-402. His thesis
that he acted out of fear of Guillermo was rejected by the jury.

       In our view of the evidence any rational trier of fact could have found
the essential elements of first degree murder beyond a reasonable doubt. Thus,
the legal sufficiency of the convicting evidence passes the relevant appellate
test. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed.2d 560
(1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Rule 13(e), Tenn.
R. App. P.

       The second issue grows out of the fact that the [Petitioner] subpoenaed
Guillermo Matias Juan to testify. Guillermo’s attorney invoked his Fifth
Amendment right not to testify. The learned trial judge correctly ruled that the
witness could not be forced to testify. [The Petitioner] contends that since the
witness had entered a plea to second degree murder and been sentenced that
he had no right to remain silent.

       The trial judge was influenced by the fact that Guillermo expressed the
intention to file a petition for post-conviction relief. In an analogous situation,
our Supreme Court held in State v. Dicks, 615 S.W.2d 126 (Tenn.1981)[,] that
immunity from testifying persisted while the witness’s case was on appeal.

       The State points out that Guillermo could still be liable for other
offenses arising out of this episode. This is unquestionably true, should facts
previously unknown to the prosecuting officials come to light. Attempted
rape, conspiracy, robbery and burglary are all offenses that this witness
obviously might be guilty of. In the final analysis, the witness and his attorney
have determined that answers to questions in this case might tend to
incriminate him. We cannot require him to reveal the precise basis for this
reliance upon his constitutional right not to incriminate himself, or he would
lose that right in the process. A witness’s right against self-incrimination is
paramount to a litigant’s right to compulsory process. State v. Dicks, 615

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       S.W.2d 126, 129 (Tenn. 1981). See also State v. Burns, 777 S.W.2d 355
       (Tenn. Crim. App. 1989). As an aside, the statement of this witness, filed for
       identification, clearly incriminated the [Petitioner]. Also, the trial judge
       offered to allow the statement of facts agreed to by the would-be witness at the
       time of his guilty plea to be introduced, but the [Petitioner] declined.

State v. Alonzo Felix Andres Juan, No. 03C01-9211-CR-00382, 1993 WL 310702, at *1-3
(Tenn. Crim. App., Knoxville, Aug. 17, 1993), perm. to appeal denied, (Tenn. Dec. 6, 1993).

        The Petitioner subsequently filed a petition for post-conviction relief and, after an
evidentiary hearing was conducted, the post-conviction court dismissed his petition. This
Court affirmed the dismissal pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. Alonzo Felix Andres Juan v. State, No. 03C01-9601-CR-00048, 1996 WL 467689,
at *1 (Tenn. Crim. App., Knoxville, Aug. 13, 1996), perm. to appeal denied, (Tenn. Feb. 10,
1997).

        On September 16, 2010, the Petitioner filed a petition for writ of error coram nobis.
He based his petition upon alleged newly discovered evidence, specifically a letter that
Guillermo Juan, his co-defendant, wrote to him on June 13, 2010, and an affidavit Guillermo
Juan signed on July 19, 2010. With his petition, the Petitioner also included an audio
recording of Guillermo Juan’s parole hearing in May 2010. During the hearing, Guillermo
Juan told the parole officer that he, not the Petitioner, killed the victim. At the conclusion
of the hearing, the parole officer stated that he was going to recommend that Guillermo Juan
be paroled to the federal immigration authorities, who had placed a detainer hold on him.


        The June 13, 2010 letter that Guillermo Juan purportedly sent to the Petitioner states,
in pertinent part, as follows:

               How are you doing today? I hope you are doing all right. Sorry brother
       it has been so long since I wrote you. Brother I feel so bad about leaving you
       in this prison. I wish both of us would get deported back to Guatemala [at] the
       same time. I am sorry about doing you like this. I think you should be the one
       who deserves to get deported and not me because you are a[n] innocent person.
       I wish I had never of killed that woman. I wish I could just let her take my
       money because I always can make my money back. I don’t know what I was
       thinking. . . . I was going to testif[y] on your behalf. I was going to tell them
       that you didn’t stab that woman that I was the one who stabbed her, but my
       lawyer would not let me. She said if you do that you would never get out of
       prison. That’s why I didn’t help you my brother. . . .

                                              -4-
      Guillermo Juan’s affidavit states, in part, the following:

      4. That I solely committed the murder in this case after having been drinking
      and having recognized and believed that the victim in the case had tried to
      steal my money;

      5. That I solely after the fact, in panic, took the victim’s vehicle and only I
      drove the vehicle;

      6. That Alonzo Felix Andres-Juan never at any time took anything from the
      victim, never stabbed the victim nor ever even drove the victim’s car;

      7. That although Alonzo Feliz Andres-Juan was charged with me in this case
      and convicted of first degree murder he is actually 100% innocent of these
      charges as he had absolutely no knowledge that I was going to kill the victim
      nor did he attempt to stab nor did he stab the victim at any time[.]

       On September 30, 2010, in an order dismissing the petition, the error coram nobis
court found as follows:

             Assuming arguendo that the co-defendant’s recent admissions
      regarding the [P]etitioner’s role in the victim’s death constitute new, credible
      evidence, the [c]ourt considers whether they have judgment-affecting
      potential. By his own account, the [P]etitioner joined in the attack on the
      victim outside, removing his belt, striking her with it, and kicking her, helped
      drag her inside, and, though he did not stab her himself and did tell the co-
      defendant not to kill her, held one of the knives that the co-defendant used to
      stab her.

              As the analysis of the sufficiency of the evidence of first-degree murder
      by the Court of Criminal Appeals reflects, the validity of the conviction for
      first-degree murder does not depend on whether the [P]etitioner did or did not
      stab the victim himself. His joinder in the co-defendant’s initial attack on the
      victim and his subsequent assistance to the co-defendant in the co-defendant’s
      fatal attack on the victim constitute a sufficient predicate for application of the
      theory of criminal responsibility.

             Likewise, although the sufficiency of the evidence of theft of property
      was not an issue on direct appeal, the validity of the conviction for theft of
      property does not depend on whether the [P]etitioner did or did not drive the

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       vehicle himself. Presumably, that he did not drive reflects no more than that
       he could not drive. His joinder in the co-defendant’s flight constitutes a
       sufficient predicate for application of the theory of criminal responsibility.
       The evidence in issue not negating the criminal-responsibility elements of the
       [P]etitioner’s offenses, the [c]ourt finds it does not have judgment-affecting
       potential.

               The [c]ourt observes that none of the new evidence explains the
       [P]etitioner’s participation in the offenses or flight. There is still no
       corroboration of his claim of duress.

               As for the co-defendant’s new claim of provocation, the [c]ourt finds
       it incredible that the co-defendant did not claim provocation before. Even
       were the new claim credible, however, the [c]ourt does not regard it as having
       judgment-affecting potential, beating and stabbing a prostitute to death being
       a grossly disproprtionate response to the provocation of “having recognized
       and believed that [she] had tried to steal [an unspecified amount of] money[.]”
       Exhibit C, para. 4 (emphasis added).

              The [c]ourt concludes that the subject petition does not state a claim for
       the writ of error coram nobis and should be dismissed.

(footnote omitted). It is from this order dismissing his petition that the Petitioner now
appeals.

                                           Analysis
       In this appeal, the Petitioner raises the following issues: (1) The error coram nobis
court abused its discretion when it dismissed the Petitioner’s petition without appointing
counsel and conducting an evidentiary hearing; (2) The error coram nobis court did not use
the appropriate standard when it denied relief; (3) The error coram nobis court abused its
discretion when it found that the Petitioner was not entitled to relief; and (4) The error coram
nobis court should have recused itself. We choose to combine the first three issues in our
analysis but will address the fourth issue separately.

I. Dismissal of the Petition

       Tennessee Code Annotated section 40-26-105 provides a mechanism, a writ of error
coram nobis, in which some convicted criminal defendants may be able to obtain relief.
However, our supreme court has noted that “[t]he writ of error coram nobis is an
extraordinary remedy known more for its denial than its approval.” State v. Mixon, 983

                                              -6-
S.W.2d 661, 666 (Tenn. 1999). Our writ of error coram nobis statutue provides, in pertinent
part, as follows:

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

Tenn. Code Ann. § 40-26-105(b).

       In State v. Vasques, 221 S.W.3d 514, 525 (Tenn. 2007), our supreme court noted that
“Tennessee courts have struggled with the proper standard to be applied in the determination
of whether and when coram nobis relief is appropriate in a criminal case.” The court further
explained that some courts had looked at whether new evidence “would have” resulted in a
different judgment and some courts had used a “may have” standard. Id. Our high court
reasoned that “the ‘may have’ standard, if interpreted literally, is too lenient in the common
law context of writ of error coram nobis.” Id. a 527. Thus, in Vasques, the Tennessee
Supreme Court clarified the standard that should be used, explaining as follows:

       [W]e hold that in a coram nobis proceeding, the trial judge must first consider
       the newly discovered evidence and be “reasonably well satisfied” with its
       veracity. If the defendant is “without fault” in the sense that the exercise of
       reasonable diligence would not have led to a timely discovery of the new
       information, the trial judge must then consider both the evidence at trial and
       that offered at the coram nobis proceeding in order to determine whether the
       new evidence may have led to a different result. In the Court of Criminal
       Appeals opinion in this case, Judge Joseph M. Tipton described the analysis
       as follows: “whether a reasonable basis exists for concluding that had the
       evidence been presented at trial, the result of the proceedings might have been
       different.” Although imprecise, our standard, which requires determination of
       both the relevance and the credibility of the discovered information, offers a
       balance between the position of the State and that of the defense. In our view,
       this interpretation upholds the traditional, discretionary authority of our trial
       judges to consider the new evidence in the context of the trial, to assess its



                                              -7-
       veracity and its impact upon the testimony of the other witnesses, and to
       determine the potential effect, if any, on the outcome.

Id. at 527-28. “The decision to grant or deny a petition for the writ of error coram nobis on
the ground of subsequently or newly discovered evidence rests within the sound discretion
of the trial court.” State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).

        The statute of limitations for a petition seeking a writ of error coram nobis is one year
after the judgment becomes final. See Tenn. Code Ann. § 27-7-103. However, “the State
bears the burden of raising the bar of the statute of limitations as an affirmative defense.”
Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003). In the instant case, the State has not
raised the statute of limitations as an affirmative defense.

       While we acknowledge that our supreme court has said, “Unlike motions to reopen,
coram nobis claims 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), we note that filing a petition
for a writ of error coram nobis does not automatically grant the Petitioner an evidentiary
hearing on the matter. See Teague v. State, 772 S.W.2d 915, 922 (Tenn. Crim. App. 1988)
(concluding that the coram nobis court did not err when it failed to hold an evidentiary
hearing and noting that “the petitioner failed to establish that he was entitled to an evidentiary
hearing regarding this issue”); Cole v. State, 589 S.W.2d 941, 943 (Tenn. Crim. App. 1979)
(finding that the coram nobis court did not err when it failed to hold an evidentiary hearing
regarding a post-trial statement from the victim because the statement was not “newly
discovered evidence”). In Richard Hale Austin v. State, this Court explained as follows:

       Similar to habeas corpus hearings, coram nobis evidentiary hearings are not
       mandated by statute in every case as the petitioner argues. Specifically, a
       “habeas corpus petition may be dismissed without a hearing, and without the
       appointment of counsel for a hearing” if the petition does not allege facts
       showing that the petitioner is entitled to relief. State ex rel. Edmondson v.
       Henderson, 421 S.W.2d 635, 636 (Tenn. 1967) (citing State ex rel. Byrd v.
       Bomar, 381 S.W.2d 280 (Tenn. 1964)). Likewise, a coram nobis petition must
       state a claim for coram nobis relief and satisfy the threshold statutory
       requirements before the court holds an evidentiary hearing to determine
       whether the petitioner is entitled to coram nobis relief.

No. W2005-02591-CCA-R3-CO, 2006 WL 3626332, at *5 (Tenn. Crim. App., Jackson, Dec.
13, 2006).




                                               -8-
        After reviewing the record, we conclude that the error coram nobis court did not abuse
its discretion when it dismissed the Petitioner’s petition for writ of error coram nobis without
appointing counsel or conducting a hearing. The error coram nobis court assumed that the
Petitioner’s co-defendant’s letter and affidavit constituted new and credible evidence and
evaluated whether such evidence had “judgment-affecting potential.” The lower court
correctly noted that, although the evidence presented at trial did not indicate that the
Petitioner stabbed the victim himself, he was criminally responsible because he acted with
the intent to promote or assist Guillermo Juan in her murder. The proof at trial showed that
the Petitioner struck the victim with his belt, kicked her, helped Guillermo Juan drag the
victim inside the house, and held one of the bloody knives that Guillermo Juan used to stab
the victim. The Petitioner then fled with Guillermo Juan in Julio’s car, and they were later
apprehended together in Florida.

        The error coram nobis court did not err when it concluded that, even if Guillermo
Juan’s purported letter and affidavit are taken as true, they do not present any new evidence
that may have led to a different result at the Petitioner’s trial. Guillermo Juan’s letter stated
that he was the one that stabbed the victim. However, that was consistent with the evidence
presented at the Petitioner’s trial. Similarly, in Guillermo Juan’s affidavit, he stated that the
Petitioner did not drive the stolen vehicle nor did he stab the victim. We agree with the error
coram nobis court that none of the “new evidence” presented by the Petitioner in this petition
demonstrates that his trial may have resulted in a different judgment. Therefore, the error
coram nobis court did not err when it summarily dismissed the Petitioner’s petition without
a hearing because, even taking all the evidence as new and credible, no facts were alleged
that entitled the Petitioner to relief.

        Finally, regarding the Petitioner’s argument that the error coram nobis court “used the
wrong standard” when denying his petition, we conclude that this issue has no merit. In
Vasquez, our supreme court instructed that the trial court should “determine whether the new
evidence may have led to a different result.” 221 S.W.3d at 527. Our highest court also
stated that the trial judges should “consider the new evidence in the context of the trial, to
assess its veracity and its impact upon the testimony of the other witnesses, and to determine
the potential effect, if any, on the outcome.” Id. at 528.

        In its order, the error coram nobis court concluded, “The evidence in issue not
negating the criminal-responsibility elements of the [P]etitioner’s offenses, the [c]ourt finds
it does not have judgment-affecting potential.” It appears that the Petitioner is arguing that,
because the error coram nobis court did not use the word “may” in the preceding sentence,
it used the wrong standard. We conclude that there is no merit to his argument. In its order,
the error coram nobis court quoted from Vasques and acknowledged that Vasques set the
standard by which to evaluate petitions for a writ of error coram nobis. After reviewing the

                                               -9-
“new evidence” under the proper standard, the error coram nobis court concluded, just as this
Court does, that the “new evidence” does not have any judgment-affecting potential. In our
view, the error coram nobis court did not employ the wrong standard when evaluating the
Petitioner’s case. The Petitioner is not entitled to relief on this issue.

II. Recusal

       The Petitioner argues that “[t]he error coram nobis court should have recused itself
and/or conducted a hearing in relation to whether Judge Barry Steelman was possibly an
Assistant District Attorney and/or the Executive District Attorney while the cases of either
the Petitioner and/or that of the co-defendant were being handled by the Hamilton County
[District Attorney’s] Office.” The Petitioner asserts that, because his petition was summarily
dismissed, he had no opportunity to find out which judge was assigned his case and,
therefore, had no opportunity to previously raise this issue.

       “[A] trial judge should recuse himself whenever he has any doubt as to his ability to
preside impartially in a criminal case or whenever his impartiality can reasonably be
questioned.” State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995); see also Tenn. R. Sup. Ct.
10, Canon 3(E)(1)(a) (“A judge shall disqualify himself or herself in a proceeding in which
the judge’s impartiality might reasonably be questioned, including but not limited to
instances where . . . the judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.”).
However, this Court has stated that “a judge need not disqualify himself or herself from
hearing a criminal matter which was pending at the time when he or she served as an
assistant district attorney in the same judicial district, if the judge neither reviewed,
personally prosecuted, nor had any direct involvement in the case.” State v. Margo Ellis, No.
W2000-02242-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 579, at *6 (Tenn. Crim. App.,
Jackson, July 19, 2001).

        We recognize that the Petitioner has not had an opportunity to raise this issue prior to
his appeal and are mindful that, under certain facts, it would be prudent for this Court to
remand such an issue to the error coram nobis court for further proceedings. See, e.g., John
C. Wells, III v. State, No. M2002-01303-CCA-R3-PC, 2003 WL 21713423, at *3 (Tenn.
Crim. App., Nashville, July 23, 2003) (noting that this Court remanded the case to the post-
conviction court for additional findings regarding the petitioner’s allegation that the judge
was a Deputy District Attorney at the time of his conviction). However, this is not such a
case. In his brief, the Petitioner states that the error coram nobis judge “was possibly” an
Assistant District Attorney at the time his, or his co-defendant’s, case was being prosecuted.
However, the Petitioner made no effort to submit documentary evidence to factually support
his claim of a “possible” conflict of interest. He has not asked to supplement the appellate

                                              -10-
record with any kind of documentation supporting his broad allegations. The Petitioner is
not entitled to relief on this issue.

                                      Conclusion

       Based on the foregoing authorities and reasoning, we affirm the dismissal of the
Petitioner’s petition for writ of error coram nobis.




                                                 _________________________________
                                                 DAVID H. WELLES, SPECIAL JUDGE




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