                                                                                          05/26/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 18, 2017

               KENNETH J. CRADIC v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sullivan County
                         No. S48157   R. Jerry Beck, Judge


                            No. E2016-01082-CCA-R3-ECN


The Petitioner, Kenneth J. Cradic, appeals as of right from the Sullivan County Criminal
Court’s denial of his petition for writ of error coram nobis relief. The Petitioner contends
that the coram nobis court erred in denying his petition because he presented newly
discovered evidence of his actual innocence through a new witness who would discredit
the victim’s trial testimony and evidence that the victim recanted her trial testimony on
numerous occasions since the trial. 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 JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

David S. Barnette, Jr., Kingsport, Tennessee, for the appellant, Kenneth J. Cradic.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Barry Staubus, District Attorney General; and Andrea Black, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                               FACTUAL BACKGROUND

       The Petitioner is currently serving a total effective sentence of forty years’
incarceration as a result of his 2006 convictions for three counts of rape of a child and
three counts of incest. See State v. Kenneth J. Cradic, No. E2006-01975-CCA-R3-CD,
2008 WL 2937882, at *1 (Tenn. Crim. App. July 31, 2008), perm. app. denied (Tenn.
Jan. 20, 2009). The evidence at trial established that the Petitioner admitted to police
investigators that he had sex with the victim, his daughter, on at least one occasion. Id. at
*1-2. The victim testified that the Petitioner vaginally penetrated her on three occasions
at his home and a motel. Id. at *2.

        As pertinent to our review, the victim admitted during cross-examination at trial
that she told the Petitioner’s wife, “that . . . the [Petitioner] did these things to her because
she was afraid of the actual perpetrator.” Cradic, 2008 WL 2937882, at *2. The victim
also admitted “that she told two other people that the [Petitioner] was not the person who
touched her.” Id. On redirect examination, the victim testified that her mother’s
boyfriend, Larry Ritchie, “also touched her but that he did so after the [Petitioner] had
touched her.” Id. The victim also testified that the Petitioner’s wife promised to “buy her
gifts if she would tell the authorities that the [Petitioner] did not do anything.” Id. One
of the victim’s cousins testified on the Petitioner’s behalf that the victim had said that
Larry Ritchie, “not the [Petitioner], ‘did it.’” Id.

        The Petitioner filed a motion for new trial alleging newly discovered evidence of
his innocence in the form of an affidavit from his stepmother stating that “the victim had
informed her that the Petitioner did not commit the alleged offenses and that Larry
Ritchie had threatened the victim and forced her to testify that the Petitioner committed
the alleged offenses.” Kenneth J. Cradic v. State, No. E2010-00140-CCA-R3-PC, 2010
WL 2612736, at *6 (Tenn. Crim. App. June 30, 2010). Specifically, the affidavit alleged
that Larry Ritchie had threatened to harm the victim, her grandmother, and her brother if
she did not testify that the Petitioner had raped her. The trial court denied the Petitioner’s
motion for new trial on August 16, 2006. This court affirmed the Petitioner’s convictions
on direct appeal. Cradic, 2008 WL 2937882, at *8.

        On May 8, 2015, the Petitioner filed a pro se petition for writ of error coram nobis
relief. The essence of the petition was that the Petitioner had recently received a copy of
a letter his son, Charles Cradic, had written to the governor as part of the Petitioner’s
application for clemency. A copy of the letter was attached to the petition. Mr. Cradic
alleged in the letter that he knew the Petitioner had not raped the victim because he was
always with the victim when she visited the Petitioner, that he had actually witnessed
Larry Ritchie rape the victim, that Larry Ritchie threatened him and the victim by
threating to “kill [their] family,” and that he wanted to testify at trial about these matters,
but he was prevented from doing so by his mother and grandmother.

       An attorney was appointed to represent the Petitioner in this matter, and an
amended petition was filed along with affidavits from the Petitioner, Mr. Cradic, and Mr.
Cradic’s ex-girlfriend, Amber Keys. The Petitioner’s affidavit alleged that he was
unaware of the facts alleged in Mr. Cradic’s letter until he received a copy of it in July
2014. Mr. Cradic’s affidavit made the same allegations as those raised in his letter and
also claimed that the victim had “informed [him] years after the trial that [the Petitioner]
did not rape her.” Ms. Keys’s affidavit alleged that the victim had told her “on several
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occasions that [the Petitioner] did not rape her” and that the victim had “always
maintained . . . that Larry Ritchie raped her.”

       The State filed a response to the amended petition, arguing that the petition was
barred by the applicable statute of limitations and that all the issues raised had been
addressed at the Petitioner’s trial; therefore, the petition “failed to provide any newly
discovered evidence.” The coram nobis court held a hearing on this matter in April 2016.

        The victim testified at the coram nobis hearing that her trial testimony was true
and that the Petitioner and Larry Ritchie had both raped her. The victim explained that
Larry Ritchie raped her sometime after the Petitioner had raped her. The victim further
testified that Larry Ritchie never threatened her about her testimony at the Petitioner’s
trial. The victim admitted to telling the Petitioner’s stepmother that he had not raped her.
The victim explained that this was not true and that she only said it because the
Petitioner’s stepmother “was threatening [her] and stuff” and because she was “tired of
hearing [about] it” from the Petitioner’s family. The victim denied telling Ms. Keys that
the Petitioner did not rape her and claimed that Ms. Keys “heard it from [her] brother,”
who had heard it from the Petitioner’s stepmother. The victim admitted that she had
spoken to the Petitioner on the phone and that he tried to get her to write a letter on his
behalf, but she denied ever recanting her testimony to the Petitioner.

        Mr. Cradic testified that the victim had never “technically told” him that the
Petitioner had not raped her. Mr. Cradic explained that the contents of his letter and
affidavit were based on what he had heard from the Petitioner’s stepmother. Mr. Cradic
further explained that he had received a letter from the Petitioner “telling [him] basically
what to say” in his letter to the governor. Mr. Cradic testified that he did not recall Larry
Ritchie ever threatening him or the victim. Mr. Cradic also testified that he remembered
seeing Larry Ritchie rape the victim but that he did not recall anyone preventing him
“from going to the police or anything like that.” Mr. Cradic admitted that he did not see
the Petitioner rape the victim. However, he testified that he “had suspicions” because
when they stayed at the motel the Petitioner “would always make [him] sleep [on] the
floor and make [the victim] sleep in the bed with him.” Mr. Cradic also recalled the
Petitioner’s taking the victim into the bathroom with him at his home as the victim had
testified at trial.

       Ms. Keys testified that there were “times that [the victim] had told [her] that [the
Petitioner] had never done anything to her, and then there [were] other times that she had
told [her] that [he] did.” Ms. Keys admitted that the victim never told her who, other than
the Petitioner, had raped her. Ms. Keys testified that the victim had told her that she “felt
like” she was threatened, but Ms. Keys admitted that the victim had never said that she
was threatened regarding her testimony at the Petitioner’s trial. The Petitioner testified

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that the victim had recently recanted to him and had agreed to write a letter to exonerate
him.

        The coram nobis court denied the petition, finding the Petitioner’s claims to be
“totally incredible” in light of the evidence at the original trial and the testimony at the
coram nobis hearing. The coram nobis court also stated that it did not believe that the
Petitioner’s claims constituted newly discovered evidence because most of the claims had
been raised at his original trial. The Petitioner filed a timely notice of appeal, and the
matter is now before this court.

                                        ANALYSIS

         The Petitioner contends that the coram nobis court erred in denying his petition.
On appeal, the Petitioner argues that the victim’s inconsistent statements, along with the
“inconsistent statements of all the parties,” would have resulted in a different verdict at
trial. The State responds that most of the Petitioner’s claims are barred by the applicable
statute of limitations and that the Petitioner failed to establish that the victim’s testimony
at trial was false.

       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. 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
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whether due process tolls 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)).

       Recanted testimony may qualify as newly discovered evidence and justify the
granting of a writ of error coram nobis. Mixon, 983 S.W.2d at 672. However, newly
discovered recanted testimony will only justify the granting of a writ of error coram nobis
and a new trial if:

       (1) the trial court is reasonably well satisfied that the testimony given by
       the material witness was false and the new testimony is true; (2) the
       defendant was reasonably diligent in discovering the new evidence, or was
       surprised by the false testimony, or was unable to know of the falsity of the
       testimony until after trial; and (3) the jury might have reached a different
       conclusion had the truth been told.

Id. at 673 n.17. Furthermore, any alleged newly discovered evidence must be admissible
at trial in order for error coram nobis relief to be granted. Wilson, 367 S.W.3d at 235.

       The petition raised a combination of claims that had been previously addressed
and new claims. The Petitioner’s claims regarding the victim’s having lied at trial and
having been threatened regarding her trial testimony were barred by the statute of
limitations. Those issues were raised at the Petitioner’s trial and his motion for new trial,
and the victim was cross-examined at trial about having recanted her allegations against
the Petitioner. The claim from Mr. Cradic’s letter and affidavit that he witnessed Larry
Ritchie rape the victim was also time-barred because the victim testified at trial that Larry
Ritchie had “also touched her.”

        The coram nobis court did not address the statute of limitations with respect to the
Petitioner’s remaining claims. The Petitioner’s claims that the victim had recently
recanted her trial testimony to himself and others can be quickly dispatched. The coram
nobis court found these allegations to be “totally incredible.” The victim testified again
that the Petitioner had raped her and explained her inconsistent statements as being the
result of threats from the Petitioner’s family. Mr. Cradic recanted the claims in his letter
                                             -5-
and affidavit at the evidentiary hearing, and Ms. Keys testified that the victim had said
both that the Petitioner had and had not raped her. As such, the Petitioner’s claims fail to
meet the threshold burden of showing that the victim’s trial testimony was false and that
her statements recanting that testimony were true.

        With respect to the claims that Mr. Cradic could have corroborated the Petitioner’s
claims that he did not rape the victim, that Larry Ritchie threatened him, and that he was
prevented from testifying on the Petitioner’s behalf by his mother and grandmother, we
note that Mr. Cradic recanted these claims at the evidentiary hearing. In fact, Mr. Cradic
testified that he actually had “suspicions” that the Petitioner had raped the victim.
Therefore, the only evidence to support these claims, Mr. Cradic’s letter and affidavit,
would be inadmissible hearsay. See Tenn. R. Evid. 802. Accordingly, we conclude that
the coram nobis court did not abuse its discretion in denying the petition.

                                     CONCLUSION

       Upon consideration of 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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