        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 25, 2010 Session

               KENNETH ALAN STEELE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                          No. 244865 Don W. Poole, Judge




                 No. E2009–02376-CCA-R3-PC - Filed March 10, 2011




J AMES C URWOOD W ITT, J R., J., concurring.

               I concur in the majority opinion. I respectfully express my view that the trial
court’s “would not have changed the results” formulation does not necessarily equate to the
application of a wrong standard. As the majority opinion notes, Mixon and Vasques
formulate the standard for establishing entitlement to coram nobis relief as when the
petitioner shows that the new evidence “may have” resulted in a different judgment. See
State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007); State v. Mixon, 983 S.W.3d 661, 672
(Tenn. 1999). One might view the trial court’s formulation in the present case as merely
stating the correct standard in the negative. Certainly, the more precise formulation of the
opposite of “may have” is “could not have” or “cannot have,” but still the court may have
correctly determined that no possibility existed that the result of trial may have been different
with the new evidence at play. Obviously, the use of the Mixon-Vasques language would be
preferable.




                                                    JAMES CURWOOD WITT, JR., JUDGE
