         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     October 2, 2007 Session

               MARGO FRESHWATER v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                             No. P-27089 W. Otis Higgs, Judge



                    No. W2006-01758-CCA-OT-CO - Filed October 8, 2008


Petitioner, Margo Freshwater, again seeks relief from the trial court’s denial of her petition for writ
of error coram nobis. In an earlier appeal, after determining that Petitioner’s petition for writ of error
coram nobis was not barred by the statute of limitations, this Court remanded the matter to the trial
court for an evidentiary hearing on the petition. See Freshwater v. State, 160 S.W.3d 548, 558
(Tenn. Crim. App. 2004). In that hearing on remand, Petitioner was to be given “the opportunity to
establish that there is a ‘reasonable probability’ that the newly discovered evidence may have
resulted in a different judgment if the evidence had been admitted at the previous trial.” Id.
Petitioner was also required to establish that she was “without fault in failing to present the newly
discovered evidence at the appropriate time.” Id. After conducting the evidentiary hearing on
remand, the trial court denied the petition. The trial court ruled that this Court had already made the
determination that Petitioner was without fault in failing to discover and present the evidence at the
appropriate time. Further, the trial court determined that Petitioner failed to demonstrate that the
presentation of the suppressed exculpatory evidence “would have” led to a different result if
presented at Petitioner’s trial. Because this Court’s determination as to Petitioner’s fault in the first
appeal was applicable solely to whether the statute of limitations for presentation of the writ of error
coram nobis should be tolled and because the trial court utilized a “would have” rather than a “may
have” standard to determine whether Petitioner was entitled to coram nobis relief, we reverse and
remand the matter to the trial court for further proceedings consistent with this opinion.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed and
                                        Remanded

JERRY L. SMITH , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS              AND
NORMA MCGEE OGLE, JJ., joined.

Stephen Ross Johnson, Ritchie, Dillard & Davies, Knoxville, Tennessee, for the appellant, Margo
Freshwater.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General, and John Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                             OPINION


        On overview of the facts underlying Petitioner’s 1969 conviction for first degree murder and
2003 petition for writ of error coram nobis were supplied by this Court on appeal from the first
denial of the petition for writ of error coram nobis:

              The petitioner and Glenn William Nash, a Memphis attorney, were indicted
       in March of 1968 for first degree murder and felony murder in the death of Hillman
       C. Robbins, Sr., a cashier of the Square D Liquor Store in Memphis. Mr. Nash took
       money from the register prior to taking the victim to the back room of the store where
       his hands were tied behind his back. The victim was shot multiple times in the head
       with both a .22 caliber pistol and a .38 caliber pistol. After traveling throughout the
       Southeast, the petitioner and Mr. Nash were eventually arrested in Mississippi.

               Mr. Nash was later found incompetent to stand trial. He has never been tried
       and the charges against him were ultimately dismissed on the basis of a speedy trial
       violation. The petitioner, on the other hand, was tried in Shelby County in early
       1969. After a trial on the merits, the petitioner was found guilty of first degree
       murder.

               At trial, the petitioner maintained that her participation in the robbery and
       subsequent flight with Mr. Nash were the result of duress and coercion. The
       prosecution offered evidence that the victim had been shot with a .22 caliber pistol.
       There was testimony introduced, through Johnny Box,FN1 that the petitioner possessed
       a .22 caliber weapon. As a result of this testimony, the State argued that the
       petitioner was responsible for shooting the victim with the .22 caliber weapon. The
       petitioner’s testimony, on the other hand, indicated that she knew nothing of Mr.
       Nash’s plan to rob the liquor store or shoot the cashier and that she cooperated with
       Mr. Nash only because she was in fear for her life. She maintained that Mr. Nash
       instructed her to exit the liquor store prior to the time that the victim was killed and
       that she did not fire a gun. She denied that she was in any way an accomplice. After
       being found guilty of first degree murder, the petitioner was sentenced by the jury to
       a ninety-nine year sentence and sent to the Tennessee Prison for Women in Nashville.

               FN1. While incarcerated in Mississippi, the petitioner was in a cell
               next to Mr. Box, an accused robber, and Mr. Nash. The petitioner


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       was intimate with Mr. Box on several occasions and the two had
       numerous conversations about the murder of the liquor store cashier
       during these encounters. Mr. Nash was present on at least one of
       these occasions. Mr. Box became a key witness for the prosecution
       at trial.

        On direct appeal, this Court affirmed the conviction. See Freshwater v. State,
2 Tenn. Crim. App. 314, 453 S.W.2d 446 (1969). In that appeal, the petitioner
challenged the sufficiency of the evidence, statements made by Mr. Box as
inadmissible hearsay, jury instructions, her sentence, the introduction of a photograph
of the deceased, and the testimony of the victim’s son. See id. The petitioner also
alleged that newly discovered evidence existed which would have changed the
outcome of her trial.FN2

       FN2. The newly discovered evidence in the direct appeal related to
       the discovery of evidence that Mr. Box was paid for his testimony by
       the State and did not relate at all to the claim of newly discovered
       evidence as alleged in the petition for writ of error coram nobis.

This Court determined that none of the petitioner’s allegations had merit. The
opinion, written by Judge Russell, determined that the jury was “well justified” in
determining that

       the defendant cased the liquor store in question with Nash earlier in
       the day, drove him to that store that night to the exclusion of other
       liquor stores passed in route, waited upon a customer while Nash was
       in the back with the victim, had in her possession a .22 caliber pistol
       and bullets, and the victim was shot with both a .38 caliber pistol and
       a .22 caliber pistol. She drove the getaway car, lived with Nash as
       man and wife as they traveled all over the southeast spending the
       fruits of the robbery, and never at any time did anything consistent
       with non-involvement or coerced involvement right up to the time
       that both were arrested as they left a bus in Mississippi. She did
       testify, without corroboration, that she tried to leave Nash in
       Chattanooga. When finally arrested, she denied her true identity, and
       did absolutely nothing consistent with being a true victim of coercion.


Id. at 448-49.

       On October 4, 1970, less than a year after the petitioner’s conviction was
affirmed, she escaped from the Tennessee Prison for Women. The petitioner
remained at large until May 19, 2002, when she was apprehended and arrested in


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       Columbus, Ohio. During the 32 years following her escape, the petitioner became
       a mother and grandmother and was married twice. After legal proceedings in Ohio,
       the petitioner was extradited to Tennessee. She later pled guilty to the charge of
       escape.

                On February 6, 2003, the petitioner filed a petition for writ of error coram
       nobis. In that petition, she claimed that prior to the 1969 trial, her attorney requested
       any written statements that she made to any witnesses that were reduced to writing,
       including the written statement of “any informer once held in the DeSoto County
       [Mississippi] Jail.” Unknown to the petitioner’s counsel at the time of trial, trial
       counsel for the prosecution referred the request to the Executive Assistant Attorney
       General who instructed trial counsel for the prosecution to refuse to provide the
       entire statement of Mr. Box to the defense because Mr. Box “was not a law-
       enforcement officer of the State of Tennessee, and the statement was not made in
       Tennessee.” Apparently, Mr. Box made several statements to authorities in which
       he recounted his conversations with the petitioner and Mr. Nash while incarcerated
       in the DeSoto County, Mississippi jail. Portions of these statements were given to
       the petitioner during discovery, including the last page of Mr. Box’s statement, which
       was produced to and utilized by the defense counsel in cross-examining Mr. Box at
       trial. However, a portion of Mr. Box’s handwritten statement that contained
       statements made by Mr. Nash to Mr. Box was never turned over to defense counsel.
       That statement was discovered in 2002 by current counsel for the petitioner and one
       of the original prosecutors during a review of the District Attorney’s case file. The
       undisclosed portion contained a confession made by Mr. Nash to Mr. Box that he was
       the only shooter of the victim. The coram nobis petition alleges that the suppression
       of this evidence was a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
       10 L. Ed. 2d (1963), because the evidence was obviously exculpatory in nature and
       should have thus been turned over to the defense in response to discovery.

               ....

                In response to the allegations in the petition for writ of error coram nobis, the
       State filed a motion to dismiss based on the one-year statute of limitations for coram
       nobis relief contained in Tennessee Code Annotated section 27-7-103. The trial
       court held a hearing on the motion to dismiss, at which the trial court heard argument
       from counsel for both the petitioner and the State. The trial court granted the motion
       to dismiss, determining that the petitioner failed to file her petition within the one-
       year statute of limitations and failed to demonstrate that due process required the
       tolling of the statute of limitations.

Freshwater, 160 S.W.3d at 550-52. Petitioner appealed the dismissal of the petition for writ of error
coram nobis to this Court. On appeal, we concluded that Petitioner’s petition for writ of error coram



                                                  -4-
nobis was not barred by the expiration of the statute of limitations. Id. at 558. Specifically, we
determined:

         [T]he decision of the trial court dismissing the portion of the writ of error coram
         nobis alleging the discovery of new evidence should be reversed and the case
         remanded for a hearing. At the hearing, the petitioner will have the opportunity to
         establish that there is a “reasonable probability” that the newly discovered evidence
         may have resulted in a different judgment if the evidence had been admitted at the
         previous trial. See Tenn. Code Ann. § 40-26-105; [State v. Workman, 111 S.W.3d
         10, 18 (Tenn. Crim. App. 2002)]. If she makes this showing, and if she also
         establishes that she “was without fault” in failing to present the newly discovered
         evidence at the appropriate time, she will be entitled to a new trial. Id.; see also
         [Workman v. State, 41 S.W.3d 100, 104 (Tenn. 2001); State v. Mixon, 983 S.W.2d
         661, 673 (Tenn. 1991)]. Further, we affirm the portion of the trial court’s decision
         dismissing the portion of the petition relating to the allegations of juror misconduct
         as those allegations should have been brought in a post-conviction proceeding.

Id.

        On remand, the trial court held an evidentiary hearing on the petition for writ of error coram
nobis. At the hearing, Petitioner presented the testimony of retired judge for the Shelby County
Criminal Court and State of Tennessee senior judge Honorable L. Terry Lafferty. Judge Lafferty was
assistant counsel for the prosecution at Petitioner’s 1969 trial.1

        Judge Lafferty was contacted by counsel for Petitioner in 2002 and agreed to sit down with
counsel to review the prosecution’s trial file from the 1969 trial. During their review of the
prosecution file, Judge Lafferty found a request by Jay Frank Hall, Petitioner’s trial counsel, dated
June 20, 1968, in which he requested “copies of [Petitioner’s] statements and any other statements
that he was entitled to under our procedure at the time” and statements of “any informer once held
in the DeSoto County Jail.” The file also contained a typewritten note, dated June 21, 1968,
memorializing the State’s decision not to provide defense counsel with Mr. Box’s statement. That
note states:

                On 6/21/68, I told Atty. Frank Hall, after conferring with Genl. Dwyer, that
         we would not furnish him a copy of the statement of Jimmy [sic] Box, Since [sic] this
         witness, Jimmy [sic] Box was not a law enforcement officer of the state of
         Tennessee, and the statement was not made in Tenn.


         1
          Petitioner also presented the testimony of Kenneth Armstrong, one of the jurors from the 1969 trial. Mr.
Armstrong’s testimony was presented in support of Petitioner’s constitutional claims surrounding the jury’s consideration
of extraneous prejudicial information at trial. This Court has already determined that these claims were time-barred.
Freshwater, 160 S.W .3d at 558. Accordingly, we do not find it necessary to include a summary of Mr. Armstrong’s
testimony herein.

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              Before trial, the Asst. trying this case should check with the officers of the
       MPD who heard the oral statement of the def. and make sure that no one else was
       present at the time who heard this statement.

The file also contained a receipt, signed by Attorney Hall, noting that he obtained a “portion of a
statement from [Mr. Box], who was an inmate in the DeSoto County Jail with [Petitioner] back in
[1968].”

       The handwritten statement of Mr. Box, in its entirety, discussed Mr. Nash’s confession to Mr.
Box that was given while the two were incarcerated together in Mississippi. In the statement, Mr.
Box claimed that Mr. Nash told him that he was solely responsible for the murder of Hillman
Robbins. The last page of Mr. Box’s statement contains the statements made by Petitioner to Mr.
Box. The last page of the statement was provided to Attorney Hall prior to Petitioner’s trial.

        According to Judge Lafferty, the law at that time did not permit a co-defendant to obtain a
copy of the statements of their co-defendants. Judge Lafferty opined that counsel for Petitioner was
probably not given the entire statement of Mr. Box. Further, Judge Lafferty testified that he did not
have any “recollection” whether counsel for Petitioner was “formally” given the statement but that
it was possible that the attorneys could have had an “informal conversation” regarding the existence
and substance of the remainder of the statement.

         On cross-examination, Judge Lafferty pointed out that Mr. Nash was basically “unavailable”
to testify for trial because he had already been declared incompetent. Further, Judge Lafferty stated
that the portion of Mr. Box’s statement containing information about what Mr. Nash told Mr. Box
amounted to hearsay. Finally, Judge Lafferty informed the court that counsel for Petitioner was
aware of Mr. Box’s existence prior to trial and could have interviewed him at any time.

        After hearing the testimony at the hearing, the trial court took the matter under advisement.
Later, in a written order, the trial court denied the petition for writ of error coram nobis. Petitioner
appeals this decision.

                                               Analysis

        On appeal, Petitioner contends that the trial court made several errors in denying coram nobis
relief. First, Petitioner contends that the trial court did not “conduct the appropriate legal analysis
subsequent to remand from this Court.” Specifically, Petitioner argues that the trial court should
have determined, as instructed by this Court on remand, if there was a “reasonable probability that
Mr. Nash’s confession may have resulted in a different judgment had it been admitted” at trial, rather
than making the decision to deny coram nobis relief on “whether [Petitioner] would have been
convicted as an aider and abettor even if the confession of Mr. Nash had been presented to and
considered by the jury at her trial” (emphasis added). Secondly, Petitioner asserts that even if the
trial court “applied the proper analytical framework, there is a reasonable probability that the
suppressed confession of Glenn Nash may have resulted in a different judgment if it had been


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admitted at the previous trial.” In other words, Petitioner argues that the trial court not only utilized
the incorrect standard but reached the incorrect result. The State, on the other hand, contends that
Petitioner has: “(1) failed to show that she was without fault in failing to present the newly
discovered evidence at the appropriate time and (2) failed to prove that the admission of the ‘newly
discovered’ evidence may have resulted in a different judgment.”

        As stated by this Court in the prior appeal:

        Relief by petition for writ of error coram nobis is provided for in Tennessee Code
        Annotated section 40-26-105. That statute provides, in pertinent part:

                [t]he 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. The issue
                shall be tried by the court without the intervention of a jury, and if the
                decision be in favor of the petitioner, the judgment complained of
                shall be set aside and the defendant shall be granted a new trial in that
                cause.

        The 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). The “purpose of this remedy ‘is to bring to the attention of the court some
        fact unknown to the court which if known would have resulted in a different
        judgment.’” State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting
        State ex rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1996)). The decision to
        grant or deny a petition for writ of error coram nobis rests within the sound discretion
        of the trial court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988),
        overruled on other grounds by Mixon, 983 S.W.2d at 671 n.3.

                A petition for writ of error coram nobis must relate: (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 to present
        the newly discovered evidence at the appropriate time; and (4) the relief sought by
        the petitioner. Hart, 911 S.W.2d at 374-75.



                                                   -7-
Freshwater, 160 S.W.3d at 553.

         On remand, the trial court correctly stated in its order denying coram nobis relief that in order
to succeed on her petition, Petitioner had to “demonstrate that the evidence is in fact new evidence;
if presented at trial the evidence may have resulted in a different judgment; and that she was without
fault in failing to present the newly discovered evidence at the appropriate time.” However, the trial
court found that this Court “removed” the issue of Petitioner’s fault from consideration when we
determined that “petitioner’s allegations of newly discovered evidence in the context of violations
of Brady v. Maryland were not, and could not have been litigated previously,” and that any delay in
obtaining this evidence “is not attributable to the fault of the petitioner or her attorneys.” See
Freshwater, 160 S.W.3d at 555-56. The trial court also found that this Court made that
determination by stating: “despite petitioner’s discovery request for statements of Mr. Box prior to
trial, the existence of the evidence was not discovered until September of 2002, when current counsel
reviewed the District Attorney’s case file from the original trial.” Id. at 556. The trial court
disagreed with this Court’s conclusion on remand but stated that it was “bound” by this Court’s
holding in regard to Petitioner’s fault in failing to present the evidence of the remainder of Mr. Box’s
statement. The trial court stated: “at the very least, it appears counsel was aware that the informant
Johnny Box had given some type of statement to authorities” and there was evidence that
“indicate[d] counsel may have been aware of the Nash portion of Box’s statement.” To support this
conclusion, the trial court pointed to portions of the trial transcript wherein Mr. Box was “repeatedly
admonished not [to] say ‘what Nash told you.’” The trial court also noted that in Petitioner’s motion
for new trial, she claimed she was “prejudiced” because Mr. Box testified about what Mr. Nash
“admitted to him after the termination of the alleged conspiracy” while the three were in jail in
Mississippi. The trial court concluded, “despite the State’s arguments that defense counsel likely
knew of the Nash admissions this court will assume for purposes of review that his information was
unknown to counsel at the time of trial.” Thus, the trial court determined that it was bound by this
Court’s determination in Freshwater regarding Petitioner’s fault.

         It appears that the trial court misconstrued the mandate prescribed by this Court in
Freshwater. In Freshwater, this Court did make a determination as to Petitioner’s fault. However,
we determined that Petitioner was without fault in failing to present the evidence in a timely fashion
merely in the context of a due process analysis relevant to whether the statute of limitations for
coram nobis relief should be tolled. Our determination of fault did not pertain to Petitioner’s fault
in “failing to present the newly discovered evidence at the appropriate time,” in this case, at trial.
See id. at 556-58. We directed the trial court to make this determination on remand. In fact, this
Court specifically set forth that on remand, Petitioner must “establish[] that she was ‘without fault’
in failing to present the newly discovered evidence at the appropriate time” to be entitled to a new
trial. Id. at 558. Consequently, the trial court was not “bound” by this Court’s decision. Rather, this
Court directed the trial court on remand to determine Petitioner’s fault in failing to present the
evidence of the portion of Mr. Box’s at trial.

       The trial court determined that the only remaining issue was “what effect this evidence may
have had on petitioner’s trial.” The trial court again stated that this Court “tailored” the review of


                                                   -8-
the issue on remand by determining that the statements made by Mr. Box about Mr. Nash’s
admissions were “obviously exculpatory in nature as they corroborated the testimony of the
petitioner.” Id. at 557. The trial court stated that it would “accept the proposition that the evidence
was not provided to or known to defense counsel and that, if provided, the evidence would have been
admitted,” but that “even if the new evidence were introduced, the culpability of the defendant
remains the same” and there was “still ample evidence to support a guilty verdict.” The trial court
felt that Petitioner could have and would have been found guilty as an aider and abettor and would
have therefore been punished to the same degree as a principal. The trial court concluded that it was
“simply not persuaded that there is a reasonable probability that had Nash’s admissions to Box been
introduced a different result may have occurred.”

        At the conclusion of its order denying the petition for coram nobis relief, the trial court made
the following statement summarizing its ruling:

       Upon remand from the Tennessee Court of Criminal Appeals, this court finds that the
       only issue left to be decided is whether there is a reasonable probability that, had the
       petitioner presented the evidence of codefendant’s exculpatory admissions to the jury
       at trial, there would have been a different result. Having answered that question in
       the negative, finding that petitioner has failed to demonstrate that presentation of
       such evidence at trial would have led to a different result, petitioner Freshwater’s
       petition for Writ of Error Coram Nobis and request for a new trial is; hereby,
       DENIED.

(emphasis added).

         After reviewing the trial transcript, the transcript of the hearing on the writ of error coram
nobis, and the trial court’s lengthy ruling, we determine that the trial court utilized an incorrect
standard to determine the potential effect of the newly discovered evidence on the verdict. Recently,
in State v. Vasques, 221 S.W.3d 514 (Tenn. 2007), the supreme court examined whether coram nobis
relief was available for six defendants convicted of conspiracy to possess with intent to sell more
than 70 pounds of marijuana within 1000 feet of a school zone. On appeal, petitioners claimed that
there was newly discovered evidence that an officer involved in surveillance had stolen drugs from
the evidence room and used cocaine. Id. at 517. The trial court granted the writ of error coram nobis
as to all six defendants, and the State appealed. Id. On appeal, this Court affirmed the judgment of
the trial court with respect to two of the six defendants and reversed the judgment as to the remaining
four. Id. The supreme court granted permission to appeal. On appeal, the court noted that there was
some discrepancy among the courts of the state in the application of the standard to determine
whether relief should be granted on a writ of error coram nobis. Id. at 525-28. The court specifically
pointed to several prior opinions from this state and the statute for coram nobis relief, T.C.A. § 40-
26-105, noting that there were two standards that had been applied on the basis of whether the newly
discovered evidence “would have” or “may have” resulted in a different judgment at trial. Id. In
Vasques, the supreme court examined both State v. Mixon, 983 S.W.2d 661 (Tenn. 1999), and State



                                                  -9-
v. Workman, 111 S.W.3d 10 (Tenn. Crim. App. 2002). Vasques, 221 S.W.3d at 525-28. This Court
relied on both of these opinions in Petitioner’s earlier appeal of the denial of coram nobis relief.

        Our supreme court ultimately concluded:

                 In an effort to amplify the standard established in Mixon and confirmed by our
        own decision in Workman, we 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 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.

         After clarifying the standard to be used, the court concluded that this Court had properly
affirmed the grant of coram nobis relief to two of the defendants, Vasquez and Garza, because the
officer’s testimony directly implicated these two defendants. Id. at 528. According to the remaining
testimony at trial, defendants Vasquez and Garza were not apprehended at the location where the
drug transaction took place, they were not found in possession of marijuana, and they did not have
a device that would have enabled them to have direct contact with the other co-conspirators. Id. at
528. Further, the court noted that Vasquez and Garza did not attempt to flee when approached by
the authorities. The court looked at the evidence introduced at trial and concluded that “knowledge
by the jury of [the officer’s] theft of confiscated drugs and his illegal use of cocaine was credible,
relevant evidence of the kind and quality that might have produced a different result as to Vasquez
and Garza.” Id. As to the other defendants, the court opined that while the evidence of the officer’s
improprieties would likely have a deleterious effect on the integrity of the overall drug operation,
there was testimony of approximately fifteen other law enforcement officials as to the other four
defendants’ involvement in the drug transaction and evidence of their direct participation at the scene
of the transaction involving a large quantity of drugs. Id. at 529. In other words, as to the remaining
defendants, the “mere possibility of a different result in their cases [was] not enough to warrant relief
under writ of error coram nobis.” Id.



                                                  -10-
        In this case, the trial court determined whether the evidence “would have” resulted in a
different verdict at trial, as opposed to whether the evidence “may have” resulted in a different
outcome. While this appears at first glance to be a matter of mere semantics, the difference in the
analysis of the situation under a “would have” standard is definitively more burdensome for a coram
nobis petitioner than would be the case under a “may have” standard.

        Accordingly, this case is remanded to the trial court for further proceedings. On remand
Petitioner should be permitted to present evidence that she was without fault in presenting the
exculpatory evidence at trial. In addition, as instructed by Vasquez, the trial court should make the
determination of whether the exculpatory evidence “may have led to a different result at trial.” See
Id.

                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is reversed and remanded for further
proceedings consistent with this opinion.


                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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