                                                                                          07/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 June 20, 2018 Session

             TIMOTHY P. GUILFOY v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2011-A-779    Monte D. Watkins, Judge


                            No. M2017-01454-CCA-R3-ECN


The Petitioner, Timothy P. Guilfoy, appeals from the Davidson County Criminal Court’s
denial of his petition for a writ of error coram nobis. The Petitioner contends that the
coram nobis court erred in denying his petition because he presented newly discovered
evidence in the form of an affidavit from the jury foreperson stating that the jury viewed
videotaped forensic interviews of the victims during its deliberations. Discerning no
error, we affirm the judgment of the coram nobis court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Samuel J. Muldavin, Memphis, Tennessee, for the appellant, Timothy P. Guilfoy.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Roger D. Moore,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        The Petitioner is serving a total effective sentence of forty years for his October
2011 convictions for three counts of aggravated sexual battery and one count of rape of a
child. On January 17, 2017, the Petitioner filed the instant petition for writ of error
coram nobis. Attached to his petition was an affidavit from the jury foreperson stating
that videotaped forensic interviews of the victims were admitted into evidence at trial but
not played in the courtroom during the trial, that she requested that the jury be allowed to
view the interviews in the jury room during its deliberations, and that the jury had viewed
them. The State responded to the petition by arguing that it was barred by the statute of
limitations. On June 23, 2017, the coram nobis court entered a written order denying the
petition on the grounds that it was time-barred and failed to state a cognizable claim for
coram nobis relief. The Petitioner now appeals to this court.

       This is the Petitioner’s third attempt to raise in this court the issue of the jury’s
viewing the videotaped forensic interviews during its deliberations. See Timothy Guilfoy
v. State (Guilfoy II), No. M2014-01619-CCA-R3-PC, 2015 WL 4880182, at *11-12
(Tenn. Crim. App. Aug. 14, 2015), perm. app. denied (Tenn. Feb. 18, 2016); State v.
Timothy P. Guilfoy (Guilfoy I), No. M2012-00600-CCA-R3-CD, 2013 WL 1965996, at
*14-15 (Tenn. Crim. App. May 13, 2013). During the Petitioner’s trial, “the trial court
admitted as substantive evidence the recorded forensic interviews” of the victims
“[w]ithout objection” from trial counsel. Guilfoy I, 2013 WL 1965996, at *14. “[T]he
interviews were not played in open court,” but “they were made available to the jury
during the jury’s deliberations.” Id.

       The Petitioner conceded in his error coram nobis petition that he had retained a
private investigator “who issued a written report” in November 2011 stating “that he had
succeeded in speaking to several jurors and had ascertained that the jury had in fact,
watched the forensic [interviews] during their deliberations.” Included in the Petitioner’s
motion for new trial was the issue of the jury’s having viewed the forensic interviews
during its deliberations despite the fact that they were not played during the trial. On
direct appeal, appellate counsel framed the issue as an objection to the admission of the
forensic interviews “as substantive evidence.” Guilfoy I, 2013 WL 1965996, at *1.

       A panel of this court concluded on direct appeal that the Petitioner had waived
plenary appellate review of the issue by failing to make a contemporaneous objection to
the admission of the forensic interviews. Guilfoy I, 2013 WL 1965996, at *14. The
panel determined that “the trial court erred in admitting the recordings of the interviews
into evidence,” but that the Petitioner had “failed to establish the prerequisites for plain
error relief” because the appellate record did not “demonstrate that the jury ever watched
the interviews.” Id. The panel stated that the record was “simply silent” on whether the
jury had viewed the recordings during its deliberations. Id.

        The Petitioner conceded in his error coram nobis petition that he attempted to raise
this issue again in his post-conviction proceedings. The Petitioner sought to have the jury
foreperson testify at the post-conviction hearing that the jury had viewed the recordings
of the forensic interviews during its deliberations, but the post-conviction court ruled her
testimony inadmissible. Nonetheless, the Petitioner presented the testimony of his sister
that she had asked trial counsel while the jury was deliberating “if she had time to get
lunch before the jury returned” and that trial counsel responded that “she likely did
because the jurors had requested that a TV and viewing equipment be brought into the
jury room so they could ‘watch the video.’” Guilfoy II, 2015 WL 4880182, at *8.

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       The Petitioner appealed the post-conviction court’s denial of his post-conviction
petition to this court. On appeal, the Petitioner did not raise the issue of the post-
conviction court’s having barred the jury foreperson’s testimony. However, the
Petitioner did allege on appeal that trial counsel was ineffective for failing “to object to
the introduction of the videos of the victims’ forensic interviews as substantive
evidence.” Guilfoy II, 2015 WL 4880182, at *11. A panel of this court concluded that
the Petitioner had “failed to prove that there was a reasonable probability that the
outcome of the trial would have been different had the forensic interview[s] not been
introduced as substantive evidence.” Id. at *12.

         The Petitioner now raises this issue again in the context of the coram nobis court’s
denial of his petition for writ of error coram nobis. A writ of error coram nobis is an
extraordinary remedy available only under very narrow and limited circumstances. State
v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). A writ of error coram nobis lies “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; see also State v. Hart,
911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). The purpose of a writ of error coram
nobis is to bring to the court’s attention a previously unknown fact that, had it been
known, may have resulted in a different judgment. State v. Vasques, 221 S.W.3d 514,
526-27 (Tenn. 2007).

       The decision to grant or deny the writ rests within the discretion of the coram
nobis court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988). “A court
abuses its discretion when it applies an incorrect legal standard or its decision is illogical
or unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes
reasoning that results in an injustice to the complaining party.” State v. Wilson, 367
S.W.3d 229, 235 (Tenn. 2012).

       A petition for writ of error coram nobis must be filed within one year of the date
the judgment of the trial court became final. See Tenn. Code Ann. §§ 27-7-103,
40-26-105; Mixon, 983 S.W.2d at 671. For coram nobis purposes, a trial court’s
judgment becomes final “either thirty days after its entry in the trial court if no post-trial
motions are filed or upon entry of an order disposing of a timely filed, post-trial motion.”
Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010). “The State bears the burden of
raising the bar of the statute of limitations as an affirmative defense.” Id.

      The one-year limitations period may be tolled only when required by due process
concerns. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001). Courts must
“balance the petitioner’s interest in having a hearing with the interest of the State in
preventing a claim that is stale and groundless” in determining whether due process tolls

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the statute of limitations. Wilson, 367 S.W.3d at 234. To do so, courts perform the
following steps:

       (1) determine when the limitations period would normally have begun to
       run; (2) determine whether the grounds for relief actually arose after the
       limitations period would normally have commenced; and (3) if the grounds
       are “later-arising,” determine if, under the facts of the case a strict
       applications of the limitations period would effectively deny the petitioner a
       reasonable opportunity to present the claim.

Id. (quoting Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)).

        The Petitioner’s motion for new trial was denied on March 13, 2012; therefore, the
trial court’s judgments became final on April 12, 2012. The Petitioner had until April 12,
2013, to file a petition for writ of error coram nobis. The instant petition was not filed
until January 17, 2017, well outside the one-year statute of limitations. The State raised
the statute of limitations as an affirmative defense in the coram nobis court, and the
coram nobis court concluded that the petition was time-barred. We agree with the coram
nobis court’s conclusion. The Petitioner’s grounds for relief were not “later-arising.” In
fact, the Petitioner conceded in his petition that he was aware that the jury had viewed the
forensic interviews during its deliberations as early as November 2011. Therefore, we
conclude that due process does not require tolling of the statute of limitations.

        Moreover, the petition for writ of error coram nobis failed to state a cognizable
claim for relief. Coram nobis relief is not available for matters which could have been
raised in a motion for new trial, on direct appeal, or in a petition for post-conviction
relief. Freshwater v. State, 160 S.W.3d 548, 556 (Tenn. Crim. App. 2004). Here, the
issue was raised in the Petitioner’s motion for new trial, on direct appeal, at his
post-conviction proceedings, and in an appeal of his post-conviction proceedings. As
such, the petition failed to present any subsequent or newly discovered evidence that
could not have been raised in an earlier proceeding.

       Much of the Petitioner’s brief is focused on the fact that the record was
insufficient for this court to determine on direct appeal if the jury viewed the forensic
interviews during its deliberations and the fact that the post-conviction court barred the
foreperson of the jury from testifying at the post-conviction hearing. However, a petition
for writ of error coram nobis is not the proper forum to address these issues.

       With respect to the record on direct appeal, it is the appellant’s “duty to prepare a
record which conveys a fair, accurate[,] and complete account of what transpired with
respect to the issues forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557,
560 (Tenn. 1993). To the extent that either trial or appellate counsel failed to adequately
                                            -4-
preserve the issue in the appellate record, a post-conviction claim of ineffective
assistance of counsel would have been the proper avenue to address their deficiencies in
compiling the appellate record.        See Laquan Napoleon Johnson v. State, No.
M2014-00976-CCA-R3-ECN, 2015 WL 1517795, at *4 (Tenn. Crim. App. Mar. 31,
2015) (noting that a claim of ineffective assistance of counsel “is not an appropriate
ground for relief” in a coram nobis proceeding).

        Likewise, any challenge to the post-conviction court’s ruling on the admissibility
of the jury foreperson’s testimony at the post-conviction hearing should have been raised
on appeal from that court’s denial of post-conviction relief. Accordingly, we conclude
that the coram nobis court did not abuse its discretion in denying the petition for writ of
error coram nobis as time-barred and for failing to state a cognizable claim for coram
nobis relief.

       Upon the foregoing and the record as a whole, the judgment of the coram nobis
court is affirmed.

                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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