        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs at Knoxville December 15, 2009

             PHYLLIS ANN McBRIDE v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Rutherford County
                          No. F23199     David Bragg, Judge




                  No. M2009-01467-CCA-R3-PC - Filed May 27, 2010


The Petitioner, Phyllis Ann McBride, was convicted by a jury of the first degree murder of
her husband and was sentenced to life in prison. She appealed her conviction, and this court
affirmed. State v. Phyliss Ann McBride, No. 01C01-9606-CC-00269, Rutherford County
(Tenn. Crim. App. Oct. 24, 1997). The Petitioner’s subsequent petition for post-conviction
relief was denied, and this court affirmed. Phyllis McBride v. State, No. M2000-00034-
CCA-R3-CD, Rutherford County (Tenn. Crim. App. Mar. 22, 2001). The Petitioner now
appeals pro se the Rutherford County Circuit Court’s denial of her petition seeking a writ of
error coram nobis, post-conviction relief, and “DNA Pathological and Toxicological
Analysis.” We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and N ORMA M CG EE O GLE, JJ., joined.

Phyllis Ann McBride, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; William C. Whitesell, Jr., District Attorney General, for the appellee, State
of Tennessee.

                                         OPINION

       The facts underlying this appeal were detailed in this court’s opinion affirming the
Petitioner’s convictions:
        In November 1989, the victim, Bobby McBride, began
experiencing vision disturbances, shortness of breath,
hallucinations, dizziness, and sleeplessness. As a result of his
deteriorating condition, Mr. McBride was taken to the
emergency room where he was treated for “a urinary tract
infection and a throat infection.” On November 13, 1989,
approximately one week later, Mr. McBride was examined by
his family physician, Dr. Polk. Dr. Polk testified that, despite a
history of high blood pressure, Mr. McBride’s blood pressure
was very low and he appeared very confused. Moreover, the
victim was bloated and had “this gray, ashen look. . . . He was
washed down in perspiration. . . . His face was discolored. His
eyes looked . . . like they were ready to pop out. . . .” Because
of his condition, Mr. McBride was admitted to the hospital for
further observation and tests. During the day, Mr. McBride’s
condition continued to deteriorate despite numerous medications
and medical procedures. Later that evening, Mr. McBride died,
the cause of death being undetermined by the attending
physicians. Due to the peculiar circumstances and unknown
cause of Mr. McBride’s death, the attending physicians and the
county coroner requested, on several occasions, that an autopsy
be performed. However, the appellant was opposed, stating that
her husband would not have wanted an autopsy. Accordingly,
no autopsy was performed and no further inquiry was made as
to the victim’s cause of death.

       In July 1990, the appellant filed a complaint with the
Sheriff’s Department alleging that her father, Don Tiffin, Sr.,
had sexually abused her daughters. As a result of these
allegations, deputies ordered Tiffin out of the appellant’s house.
A few days after these allegations were made, Tiffin volunteered
to law enforcement officials that Bobby McBride’s body should
be exhumed, implicating the appellant in his death. In
November 1990, an autopsy was performed on the victim’s
body. The autopsy report established the cause of death as
“acute and chronic arsenic poisoning.”

       Testimony at trial connected the appellant to the murder
of her husband. Don Tiffin, Sr. testified that, prior to the
victim’s death, the appellant had inquired as to the effects of rat

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              poison on a person. He further stated that the appellant received
              a life insurance check in the amount of [$]43,000, in addition to
              the victim’s retirement benefits of $500.64 per month for the
              remainder of her life. Kim Bess, one of the appellant’s
              daughters, testified that, prior to the victim’s death, the appellant
              had asked her to put an electrical wire in the shower with the
              victim in order to kill him because she needed the money. Bess
              added that, on one occasion, she had observed the appellant “set
              [a can of drain opener] beside the refrigerator as she fixed [the
              victim] a glass of tea.”

                      Carol Burgeson, an admitted informant for law
              enforcement agencies, testified that she was acquainted with the
              appellant through her management of a children’s shop in
              Smyrna. She recalled that she was at the hospital on the day the
              victim was admitted and had spoken with the appellant
              concerning the victim’s condition. The appellant related to her
              that the victim had “gotten a hold of some bad dope.” Burgeson
              suggested that the police be notified[;] however, the appellant
              refused explaining that the police “would find out that he had
              been given too much cough medicine,” over ten different types.
              The appellant further stated that “she did not want [the victim]
              to be all right, that she had given him too much . . . and that she
              wanted him to die; he was mean and bad, and he had to die.”
              Based upon these facts, the appellant was convicted of first
              degree murder.

Phyliss Ann McBride, slip op. at 2-4 (footnote omitted).

        The Petitioner filed a petition for post-conviction relief in which she contended that
she was denied a fair and impartial jury because counsel was ineffective in failing to examine
all the jurors during voir dire. The trial court denied post-conviction relief, and this court
affirmed. Phyllis McBride, slip op. at 1.

       Beginning in May 2003 and continuing until April 2005, the Board of Medical
Examiners of the State of Tennessee (the Board) conducted an investigation into the medical
practices of Dr. Charles Harlan, the examiner who conducted the autopsy on the victim in
this case. In May 2005, the Board permanently revoked Dr. Harlan’s medical license and
imposed civil penalties. The Board found that Dr. Harlan’s practices between 1995 and 2003
amounted to unprofessional conduct, dishonorable conduct, making false statements or

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representations, fraud or deceit, malpractice, negligence, incompetence, violations of
criminal statutes, and “a pattern of continued or repeated negligence and incompetence.” Dr.
Harlan was found to have misidentified victims, to have incorrectly determined the cause of
death on numerous occasions–sometimes identifying a homicide as an accidental death and
vice versa, and to have concealed that he contaminated samples.

        After learning about Dr. Harlan’s revoked medical license, the Petitioner filed a
petition for writ of error coram nobis, for post-conviction relief, and for “DNA Pathological
and Toxicological Analysis.” She claimed that the Board’s findings of fact and conclusions
of law amounted to new evidence, that the prosecution failed to disclose a promise of
immunity to Tiffin and a promise of compensation, immunity, or leniency to Burgeson, and
that the Post-Conviction DNA Analysis Act of 2001 should be construed to allow forensic
analysis of biological evidence in addition to DNA.

       The trial court denied the Petitioner relief. It found that the petition for writ of error
coram nobis and for post-conviction relief was untimely filed and that the petition for DNA
pathological and toxicological analysis failed to conform with statutory requirements.

                                                I

       The Petitioner contends on appeal that the trial court improperly dismissed her petition
for writ of error coram nobis. The State contends that the trial court properly dismissed the
petition as time-barred.

        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.” T.C.A. §
40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). The decision to
grant or deny such a writ rests within the sound discretion of the trial court. Harris v. State,
301 S.W.3d 141, 144 (Tenn. 2010). A petition for writ of error coram nobis must be filed
within one year of the date the judgment becomes final in the trial court. T.C.A. § 27-7-103;
State v. Mixon, 983 S.W.2d 661, 663 (Tenn. 1999); State v. Ratliff, 71 S.W.3d 291, 295
(Tenn. Crim. App. 2001). The only exception to the statute of limitations is when due
process requires tolling. Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001).

        The Petitioner claims that the findings of fact and conclusions of law issued when Dr.
Harlan’s medical license was revoked were new evidence and that due process considerations
require the tolling of the statute of limitations. The trial court determined that the credibility
of the autopsy report could have been called into question at the trial and that, therefore, due
process did not require tolling of the statute of limitations. The Petitioner’s trial concluded

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in 1994. Dr. Harlan’s medical license was revoked in 2005. The Petitioner did not file the
petition for writ of error coram nobis until August 2009. Notwithstanding the Petitioner’s
failure to file a petition for the writ between 1994 and 2005, the Petitioner provides no reason
for the nearly five year delay after the revocation of Dr. Harlan’s license other than she did
not learn of the action against Dr. Harlan until sometime in 2008 and it took her another year
to draft the petition.

        A petitioner is required to show that he or she was not at fault in failing to present the
newly discovered evidence at the proper time. T.C.A. § 40-26-105(b). “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.” State v. Vasques, 221 S.W.3d 514,
527-28 (Tenn. 2007). In the present case, the Petitioner has alleged that she discovered the
information about Dr. Harlan’s license revocation in 2008, three years after the doctor’s
license was revoked. She then waited “about a year” to file her petition. Despite her
allegation of when she actually discovered the information, the Petitioner has not alleged
facts from which a court could conclude that despite an exercise of reasonable diligence, the
information was not discoverable within the statutory period for bringing a timely coram
nobis claim. As a result, the trial court was not required to consider whether a reasonable
basis existed that had the evidence been presented at the trial, the result of the proceeding
might have been different. See id.

        The statute provides that the evidence must be “newly discovered evidence relating
to matters which were litigated at the trial . . . .” T.C.A. § 40-26-105(b). The Board
determined that the period of Dr. Harlan’s medical malpractice occurred after he had
conducted the autopsy and had testified in this case. In addition, the Petitioner was given the
opportunity to challenge Dr. Harlan’s credibility and the validity of the autopsy report during
cross-examination and failed to do so. We do not believe that the revocation of Dr. Harlan’s
medical license and the Board’s findings constitute “new evidence” as contemplated by the
statute. We hold that the trial court did not abuse its discretion when it denied the Petitioner
a writ of error coram nobis because the petition was not timely filed.

                                                II

        The Petitioner contends that the trial court improperly dismissed her petition for post-
conviction relief. The State contends that the trial court did not err in summarily dismissing
the petition for post-conviction relief because the Petitioner had previously filed a petition
for post-conviction relief that had been resolved on its merits by a court of competent
jurisdiction.

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        Post-conviction relief may only be given if a conviction or sentence is void or
voidable because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006). The
Post-Conviction Procedure Act allows for the filing of only one petition, which must be filed
within one year of the final action by the highest state appellate court to which an appeal is
made and within one year of the trial court’s judgment becoming final. Id. § 40-30-102(a),
(c). In pertinent part, the statute allows exceptions to the statute of limitations when “[t]he
claim in the petition is based upon new scientific evidence establishing that the petitioner is
actually innocent of the offense or offenses for which the petitioner was convicted; . . . .”
Id. § 40-30-102(b). In addition, principles of due process may allow tolling of the statute of
limitations in limited circumstances. See Burford v. State, 845 S.W.2d 204, 208 (Tenn.
1992) (“due process requires that potential litigants be provided an opportunity for the
presentation of claims at a meaningful time and in a meaningful manner”).

       The Petitioner previously filed a petition for post-conviction relief in which she
alleged that she had received the ineffective assistance of counsel at the trial. The trial court
denied relief, and this court affirmed. Phyllis McBride, slip op. at 1. The Petitioner
acknowledges that the post-conviction statute of limitations has expired. However, she
argues that due process concerns allow the tolling of the statute of limitations. The Petitioner
claims that Don Tiffin’s and Carol Burgeson’s testimony should be reevaluated as violations
of the protections announced in Brady v. Maryland, 373 U.S. 83, 87 (1963), in light of the
new evidence of Dr. Harlan’s misconduct. She claims that the “prosecution engaged in a
pattern of misconduct that was designed to conceal the existence of incentives to both Tiffin
and Burgeson” and that “she has been denied a reasonable opportunity to litigate these issues,
and her interest in raising them outweighs the State’s interest in the finality of judgments.”

       A petitioner may move to reopen a previously filed petition for post-conviction relief
in limited circumstances, including the discovery of new evidence establishing that the
petitioner is actually innocent of the offense . . . .” Id. § 40-30-102. The trial court also
evaluated the Petitioner’s petition as one to reopen, but it found that the Petitioner had not
presented facts establishing by clear and convincing evidence that her sentence should be set
aside or reduced. See T.C.A. § 40-30-117(a)(4). In her reply brief, the Petitioner stated that
she did not intend the petition to be considered as a motion to reopen her previously filed
petition for post-conviction relief.

        This court addressed the issue of Burgeson’s incentive to testify falsely against the
Petitioner in the Petitioner’s first appeal and held that it was without merit. Phyliss Ann
McBride, slip op. at 9. Nothing prevented the Petitioner from raising the issue of Tiffin’s
bias at the trial. See T.R.A.P. 36(a). We fail to see how Dr. Harlan’s malpractice altered the
issue of Tiffin’s and Burgeson’s alleged bias such that the statute of limitations should be
tolled. We hold that the trial court did not err when it dismissed the Petitioner’s second

                                               -6-
petition for post-conviction relief. Moreover, given the Petitioner’s assertion that the petition
at issue was not intended to reopen her first post-conviction petition, we conclude that we
are without jurisdiction to consider a second post-conviction petition, given the statute’s
specific directive that a petitioner be allowed only one post-conviction petition. See id. §
40-30-102(c).

                                               III

        The Petitioner contends that the trial court improperly dismissed her petition for DNA
pathological and toxicological analysis. The State contends that the trial court properly
denied the petition because the Post-Conviction DNA Analysis Act does not authorize the
tests the Petitioner requested.

       The Post-Conviction DNA Analysis Act of 2001 provides that a person convicted of
certain enumerated crimes, including first degree murder,

              may at any time, file a petition requesting the forensic DNA
              analysis of any evidence that is in the possession or control of
              the prosecution, law enforcement, laboratory, or court, and that
              is related to the investigation or prosecution that resulted in the
              judgment of conviction and that may contain biological
              evidence.

T.C.A. § 40-30-303. DNA analysis is required if the trial court determines:

              (1) A reasonable probability exists that the petitioner would not
              have been prosecuted or convicted if exculpatory results had
              been obtained through DNA analysis;

              (2) The evidence is still in existence and in such a condition that
              DNA analysis may be conducted;

              (3) The evidence was never previously subjected to DNA
              analysis or was not subjected to the analysis that is now
              requested which could resolve an issue not resolved by previous
              analysis; and

              (4) The application for analysis is made for the purpose of
              demonstrating innocence and not to unreasonably delay the
              execution of sentence or administration of justice.

                                               -7-
T.C.A. § 40-30-304; see T.C.A. § 40-30-305.

        In denying relief, the trial court determined that the Petitioner had failed to provide
facts to support a reasonable probability she would not have been prosecuted or convicted
and that the verdict or sentence imposed would have been more favorable through DNA
analysis. The court also found that the Petitioner had not shown that evidence was still in
existence, that evidence was in a condition to allow DNA testing, or that evidence had not
been previously subjected to DNA analysis.

        The Petitioner argues that “forensic DNA pathology and toxicology analysis will
achieve the purpose of determining whether Dr. Harlan correctly established the victim’s
cause of death as ‘acute and chronic poisoning.’” She acknowledges that the statute does not
specify that it permits the type of forensic and toxicological testing she desires. However,
she urges us to construe Code section 40-30-304(3) to allow for such testing. That section
states in pertinent part:

              [T]he court shall order DNA analysis if it finds that:

                     (3) The evidence was never previously subjected
                     to DNA analysis or was not subjected to the
                     analysis that is now requested which could
                     resolve an issue not resolved by previous analysis;
                     ....

T.C.A. § 40-30-304(3) (emphasis added). The Petitioner argues that the conjunction “or”
indicates the second of two alternatives. The State argues that the statute applies only to
DNA testing and not to the type of forensic and toxicological testing the Petitioner requests.
DNA analysis is the process through which DNA “in a human biological specimen is
analyzed and compared with DNA from another biological specimen for identification
purposes.” T.C.A. § 40-30-302. The Petitioner’s argument ignores the statute’s directive
that the court shall order DNA analysis only, not other forensic tests. We hold that the trial
court did not err in denying relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.

                                                ___________________________________
                                                JOSEPH M. TIPTON, PRESIDING JUDGE




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