                                                                                        05/01/2018
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                       AT KNOXVILLE
                       Assigned on Briefs December 20, 2017

          STATE OF TENNESSEE v. ANDREW YOUNG JOHNSON

                Appeal from the Criminal Court for Sullivan County
                        No. S38912   R. Jerry Beck, Judge


                            No. E2017-00756-CCA-R3-CD


The petitioner, Andrew Young Johnson, appeals the denial of his petition for writ of error
coram nobis, which petition challenged his 1998 convictions of attempted first degree
murder and felony reckless endangerment. Discerning no error, we affirm the denial of
coram nobis relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

David S. Barnett, Jr., Kingsport, Tennessee, for the appellant, Andrew Young Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Emily Smith,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               In 1998, a Sullivan County Criminal Court jury convicted the petitioner of
one count of attempted first degree murder and one count of felony reckless
endangerment. This court affirmed the convictions and accompanying 25-year sentence
on direct appeal. State v. Andrew Young Johnson, No. E1999-00002-CCA-R3-CD,
(Tenn. Crim. App., Knoxville, Apr. 18, 2000). The crimes in this case came on the tail
end of a night the petitioner spent “drinking and partying with [Andrew] Birdwell, James
Felty, and one other young man.” Id., slip op. at 2. While at Birdwell’s house, “the
[petitioner] showed the others a Derringer, a twenty-five millimeter semi-automatic
pistol, and a nine millimeter Ruger semi-automatic pistol, all of which were on the
[petitioner]’s person at Birdwell’s house.” Id. The young men traveled to a location on
“Weaver Pike to shoot the guns,” where “only the [petitioner] shot the nine millimeter
pistol.” Id. “After shooting the guns, the group got back into the car, with Felty driving,
and . . . . [a]s they were driving along Auburn Street, the [petitioner] told Felty to stop the
car, which he did.” Id. Once the car stopped, the [petitioner] got out of the car, fired his
weapon, and then returned to the car. Mr. Felty drove away after the petitioner demanded
that he do so, but when the petitioner asked to return to the scene of the latter shooting,
“Felty told the [petitioner] he would have to drive himself, and Felty got in the backseat.”
Id. “When the [petitioner] got close to the house where he had fired the shots, he and his
companions could see that the police were there, so the [petitioner] drove the car down a
side street.” Id., slip op. at 3. Shortly thereafter, the petitioner crashed the car, and the
four young men ran away, with Felty and his companion running in one direction and the
petitioner, who was wearing a Michigan Wolverines jacket, and Birdwell, who was
wearing a Kansas City Chiefs jacket, running in the other. Id.

              Bristol Police Department Lieutenant Craig Beyer “responded to a call that
shots had been fired in the Auburn Street area” and “was directed by neighbors to 101
Auburn Street, the residence of Mike Walling, who was inside the house at the time of
the shooting.” Id. Bullet holes riddled the house and a car parked in the rear of the
house. Officer Gary Privette “received information . . . about the shooting at 101 Auburn
and about the car accident on the nearby side street” and “learned that the four suspects
included two black males wearing sports jackets.” Id. Officer Privette joined in the
search for the young men, and, after learning that two of the suspects had been caught,
“[h]e reasoned that the two other suspects would have had time to reach Volunteer
Parkway, so he drove in that direction.” Id. “Soon, he spotted two black males in sports
insignia-type jackets walking along the street” but “was unable to use his radio to alert
backup because another officer had come on the radio at the same moment, and he could
not get through.” Officer Privette stopped his car, “‘went to the rear of the vehicle,’” and
drew his gun into “‘a gun ready position’” angled toward the ground. Id. He ordered the
men to “‘get their hands up.’” The petitioner initially raised his hands, “‘[a]nd then he
went to say something, he dropped his hands down like this.’” Id., slip op. at 4. The
petitioner then “‘dropped down behind a wall’” of “‘timbers that was reinforcing a-like a
flower bed’” and “‘immediately came back up.’” Id. When the petitioner came up from
behind the wall, he was holding his hands together and appeared to be aiming something
at Officer Privette. Officer Privette said that when he “‘heard two clicks,” he “presumed
it to be a weapon.” Id., slip op. at 5. The petitioner then went back behind the wall, and
Officer Privette took cover behind the left tire of his patrol car. Before he could get into
a position to see the two men, he “‘heard the gun rack’” and gunfire started to strike the
patrol car, shattering the window and puncturing the tire behind which Officer Privette
had positioned himself. Id. Officer Privette testified that “[t]he individual shooting at
him was wearing a blue and yellow Michigan State jacket that appeared mostly gray in
the light. The other male was wearing a red and yellow jacket.” Id.

                                              -2-
               Officer Harold Wayne Tucker responded “with Boris, his trained police
dog,” to a “location close to the scene of the gunfire to receive instructions.” Id., slip op.
at 6. He went with the dog to a couple of different locations where the suspects had been
spotted, and the “dog quickly picked up a trail that led to a construction trailer behind a
red metal building.” Id. Officer Tucker saw a “‘white tennis shoe’” peak briefly out
from under the trailer before he “‘start[ed] hearing gunfire.’” Id. Boris came out from
underneath the trailer and succumbed to the four gunshot wounds he had received. Id.,
slip op. at 7. When Officer Tucker went to the ground himself, he saw “‘two individuals
under it,’” one of whom was holding “‘a large frame automatic in his hand’” pointed
“‘towards where . . . back up officers were’” located. Id. “‘[T]he one with the automatic
said something about shooting someone’” and then pointed the gun at Officer Tucker.
Officer Tucker, who feared for his life, fired a single round, causing the suspect holding
the weapon to drop it to the ground. Officer Tucker recalled that the armed suspect wore
“‘a bluish jacket’” with “‘couple of other colors,’” including “‘yellow on’” it while the
unarmed suspect wore “‘a maroon jacket.’” Id., slip op. at 8. He identified the one
wearing the blue and yellow jacket as the petitioner. Id.

                Officer Kenneth Smith recovered a 9mm Ruger pistol from underneath the
construction trailer and “two other weapons from the [petitioner]’s person at the time of
arrest-a Derringer and a twenty-five millimeter pistol.’” Id. Ballistics testing established
that “[11] shell casings taken from Auburn Street; six shell casings [taken] from English
Street where Officer Privette was fired on, as well as other shell casings taken from
Williams Street in Bristol, Virginia; two bullets taken from the police dog at the Williams
Street site; . . . and bullets taken from Officer Privette’s police car” had all been fired
from the 9mm Ruger recovered from underneath the construction trailer. Id.

                On April 2, 2015, the petitioner placed in the prison mailing system a
petition for writ of error coram nobis claiming entitlement to relief on grounds that newly
discovered evidence cast doubt upon his guilt. He claimed that on April 2, 2014, he had
received an audio recording of an interview with Mr. Birdwell and that the revelations in
the interview indicated that the petitioner had not acted with premeditation. Specifically,
he asserted that Mr. Birdwell told officers that he did not hear the petitioner’s weapon
click before the petitioner fired the weapon and that the petitioner told Mr. Birdwell that
he had shot only at the police cruiser and not at Officer Privette. The trial court
appointed counsel, and appointed counsel filed an amended petition for writ of error
coram nobis that claimed due process tolling of the one-year statute of limitations for
filing a petition for writ of error coram nobis because the State had withheld the Birdwell
interview. The State asserted the statute of limitations as an affirmative defense, arguing
that even if the recording had not been disclosed prior to trial, the petitioner had been
aware of its contents since at least 2005. The State also asserted that the recording did
not contain any evidence favorable to the petitioner.
                                             -3-
                At the March 9, 2017 hearing on the petition, the petitioner testified that he
had been in continuous confinement since his arrest on February 12, 1996, beginning his
stint of incarceration in federal custody. While in federal custody, he was transferred to
several different facilities. At some point, a friend’s wife was able to look through the
record in his case, and she alerted him to the presence of the audio recording of Mr.
Birdwell’s interview. Thereafter, the petitioner arranged for his ex-wife, Mary
Raykowitz, to obtain a copy of the recording from the Sullivan County District
Attorney’s Office. Ms. Raykowitz obtained the recording in May 2006. Ms. Raykowitz
listened to the recording and alerted the petitioner to its potentially exculpatory contents,
but federal prison officials would not allow the petitioner to possess the recording unless
the petitioner received it directly from “the courts.” The petitioner said that he did not
file a petition for writ of error coram nobis based upon Ms. Raykowitz’s assertions about
the contents of the recording because he did not want to swear under penalty of perjury
that her assertions were true and correct. The petitioner unsuccessfully endeavored to
have the recording sent to him by his trial counsel, the district attorney’s office, and the
trial court. The petitioner said that he listened to the recording for the first time in April
2014, after he had been transferred to the Department of Correction (“TDOC”).

               The petitioner insisted that Mr. Birdwell’s assertion that he did not hear
clicking before the petitioner fired at Officer Privette negates the element of
premeditation. He also maintained that, despite Mr. Birdwell’s repeated assertions that
the petitioner was the shooter, Mr. Birdwell had actually placed himself “in the position
of the shooter” by admitting during the interview that he did not see the petitioner during
the shooting.

               During cross-examination, the petitioner acknowledged that the officer who
interviewed Mr. Birdwell testified during a jury-out hearing at the petitioner’s trial that he
had interviewed Mr. Birdwell for an hour and a half. The petitioner said that he did not
think trial counsel had been given a copy of Mr. Birdwell’s interview because he did not
share it with the petitioner. The petitioner claimed that he wanted Mr. Birdwell to testify,
but trial counsel cautioned him that they should not call any witness unless they could be
sure what the witness would say. He conceded that Mr. Birdwell would have testified
that the petitioner shot at Officer Privette but nevertheless claimed that Mr. Birdwell’s
statement established that Mr. Birdwell was the shooter because “[h]e knew exactly what
happened.” The petitioner argued that Mr. Birdwell’s rendition of events corroborated
the petitioner’s own assertion that he was not the shooter even though Mr. Birdwell
repeatedly told the interviewer that the petitioner was, in fact, the shooter.

               Former Sullivan County District Attorney General H. Greeley Wells, Jr.,
testified that he tried the petitioner’s case with Assistant District Attorney General Mary
                                             -4-
Katherine Harvey. Mr. Wells said that, upon a review of the petitioner’s case file that
included handwritten notes by Ms. Harvey, he learned that his office did not file a written
response to trial counsel’s request for discovery materials because the petitioner’s trial
counsel was not appointed until “less than a month before the trial date.” Instead,
because of time constraints, Ms. Harvey contacted trial counsel on May 21 or 22 and
“provided him with the discovery material which included the interviews of witnesses.”
Mr. Wells had no “independent recollection that there was a tape recording of an
interview with Mr. Birdwell.” He said that, based upon his review of Ms. Harvey’s
notes, he had “no question that she met with” trial counsel and provided him with the
requested discovery materials. Ms. Harvey’s notes, which were exhibited to Mr. Wells’
testimony, indicated that she copied for trial counsel “waivers, statements, incident
reports, interviews, and test results that were done on ballistics.”

              Mr. Wells opined that none of the information contained in the recorded
interview was exculpatory. He recalled that the petitioner presented a defense of
“misidentification” and that Mr. Birdwell’s statement did not support that defense. Mr.
Wells also recalled that trial counsel did not present Mr. Birdwell as a witness but did
bring Mr. Birdwell “into court . . . to . . . let the jury view him for the purpose . . . of
seeing that he was similar in size or looks as to [the petitioner] because the defense in the
case was it was a mistaken identity.” Mr. Wells said that charges initially levied against
Mr. Birdwell were later dismissed because “[t]here was no basis in fact for him being
charged as a co-defendant.”

               The petitioner’s trial counsel testified that he did not have a “specific
recollection of receiving [the interview recording] in discovery,” but he cautioned that he
did not “have a specific recollection of receiving anything in discovery.” Counsel agreed
that the fact that Mr. Birdwell’s interview was mentioned without counsel’s objection
during the petitioner’s trial suggested that counsel was probably aware at the time that the
recording existed. Trial counsel said that he no longer possessed the petitioner’s case file
given the age of the case. However, counsel did recall that the “thrust of [the] defense in
the case” was misidentification, and he said that he would not have “assert[ed] a lack of
identification while at the same time asserting an alternative theory that the [petitioner]
actually did discharge a weapon, but had no intentions of doing harm to anybody.”
Counsel described the two defensive theories as “inapposite” and said that he could not
say that he would have called Mr. Birdwell as a witness “given the fact that apparently he
was willing to testify that [the petitioner] was the shooter.” He explained, “I may have
been prepared to cross-examine him, but I wasn’t going to call him as a witness.”

              Trial counsel agreed that, “in isolation,” he might “have used the statement
that he didn’t hear a ‘click, click, click,’ because that stands in contrast to apparently
what the officer says. . . . But again, that’s in isolation.” He also agreed that Mr.
                                             -5-
Birdwell’s statement that the petitioner claimed he intended to only shoot at the car “in
isolation . . . would go to his state of mind,” but he stated, “I cannot say today that I
would have tried to employ the strategy.”

               In the recording, which was exhibited to the hearing, Mr. Birdwell said that
on the evening of the offense, he was at his mother’s house watching television when the
petitioner called and asked him to pick the petitioner up. Mr. Birdwell asked Jamie Felty,
who had come over to hang out, to pick the petitioner up. Mr. Birdwell, Mr. Felty, and
Adam McDavid went to pick up the petitioner and Nikolaus Johnson and returned to Mr.
Birdwell’s mother’s house. Mr. Johnson left, but the petitioner remained. At some point,
the petitioner displayed three guns that he had in a black backpack, offering to sell one of
the guns to Mr. Birdwell’s mother, who declined. Mr. Birdwell said that the petitioner
did not tell him that the guns were stolen but that he “knew [the petitioner] didn’t go out
and buy it legally,” adding, “I mean, I knew that for a fact. I just know Andrew.” He
said that the petitioner “wants to let everybody . . . think he’s a thug, a gangster, crazy.”

              Between 10:30 and 11:00 p.m., the four left Mr. Birdwell’s mother’s house
with Mr. Felty driving. Mr. Birdwell was wearing a Kansas City Chiefs Jacket while the
petitioner was wearing either “a Notre Dame or Michigan jacket” that “was blue and
white and yellow.” Once in the car, the petitioner asked, “‘Where can we go shoot off
the gun?’” The young men then drove “pretty far down Weaver Pike.” Mr. Felty
stopped the car, and the petitioner rolled down his window and fired a 9 mm pistol until
the clip was empty. Mr. Birdwell and Mr. McDavid fired a .25 pistol from the back seat,
while Mr. Felty fired the “little bitty black gun” from the driver’s side window.

               After shooting the guns, the companions initially drove toward Mr.
Birdwell’s house, but the petitioner asked to be taken home first. The petitioner then
began providing directions to Mr. Felty, who was still driving, but the directions did not
take them to the petitioner’s house. Instead, the directions took them to the residence of
Mike Walling. At that point, the petitioner directed Mr. Felty to stop the car, and the
petitioner “just got out the car, and he went out, and he just . . . starts shooting at the
house. Starts shooting at the house.” Mr. Birdwell insisted that none of the others “knew
[the petitioner] was going to shoot at [Mr. Walling’s] house.” The petitioner then “ran
back into the car.” The petitioner denied to his “stunned” companions that he was
intentionally firing at Mr. Walling’s house, claiming, “‘I had to waste my bullets so I
could get some hollow points.’” He recalled that the petitioner “was hyped after he shot
at the house.”

              They drove away, but Mr. Felty, who was shaken up, allowed the petitioner
to drive. Mr. Birdwell insisted that the petitioner take him home. The petitioner then
said, “‘Well, let’s see if there’s any cops down here at . . . Mike Walling[’s].” Mr.
                                             -6-
Birdwell demanded that the petitioner take him home because the police would be
looking for their car. The petitioner ignored the request and drove toward Mr. Walling’s
house, where they saw several police cars. Upon seeing the police, the petitioner “took
the first right he could before we got to Mike Walling’s house and he sped up.” The
petitioner ran a stop sign, “[t]hen he saw this car coming off to this side, and he tried to
slow down and then we just collided.” Following the collision, none of the young men
knew what to do, but Mr. Birdwell got out of the car and began walking down the street.
After the accident, the petitioner had kept the 9mm pistol but dropped the back pack that
contained the remainder of the guns and ammunition.

               A short time later, Mr. Birdwell heard someone run up behind him, and he
turned to see the petitioner. Approximately 15 minutes later, the petitioner and Mr.
Birdwell were spotted by the police. The officer stopped his car, pointed his weapon at
the petitioner and Mr. Birdwell, and ordered them to stop. Mr. Birdwell said that he put
his hands up and got onto the ground as commanded, saying, “I didn’t hear a ‘click,
click’ or nothing. I just went down.” While he was on the ground, Mr. Birdwell heard
gunshots. When he looked up, he saw the patrol car but did not see the petitioner or the
police officer who had stopped them. He said, “I was just waiting for the cop to come. I
heard gunshots and I jumped a little bit and looked around and I ran. I didn’t see the cop,
didn’t see [the petitioner]. . . . I took off running ‘cause I didn’t know what . . . was
going on.” Mr. Birdwell said that he did not know at that time that the petitioner had
fired at the officer, “[b]ut later on I found out that he shot the police.” As he ran away,
Mr. Birdwell heard someone call his name and saw the petitioner “in this little ditch.”
Mr. Birdwell kept walking, and the petitioner followed.

               As the young men walked, Mr. Birdwell asked the petitioner why he shot at
the police officer, and the petitioner “act[ed] like it wasn’t no big deal” and “he was calm
about everything the whole time.” The petitioner said, “‘Look, don’t be no punk, you
know. Look, I got . . . you out of trouble with the police [indiscernible], you know.’”
Mr. Birdwell said that the petitioner “was, like, ‘Well, that cop didn’t shoot back.’”
When Mr. Birdwell asked the petitioner if he had shot the police officer, the petitioner
said, “‘No, I – just shot at the car.’” The petitioner “was scared after [the shooting at the
police officer] ‘cause he knew that sooner or later he was going to get caught.”
Nevertheless, the petitioner said, “‘Look, you want to rush up at somebody’s house?’”
Mr. Birdwell declined, and the petitioner called him a punk. When Mr. Birdwell told the
petitioner “how it was,” the petitioner “left the house business alone and he kept
following” Mr. Birdwell.

            Mr. Birdwell acknowledged that the petitioner “had been into the crack’”
and had been drinking gin on the night of the offenses. He also acknowledged that the

                                             -7-
petitioner had often threatened to solve issues with people by getting his gun, but Mr.
Birdwell “never thought he’d really try to kill nobody.”

               At the conclusion of the hearing, the coram nobis court implicitly
accredited the petitioner’s testimony that he filed his petition for writ of error coram
nobis within one year of having first listened to the recording on April 2, 2014, and, as a
result, agreed “to decide the issue on its merits rather than dismiss it” as untimely.
Ultimately, however, the court denied relief: “One, I can’t find that it’s exculpatory from
what I’ve heard; and two, I can’t see where it would be helpful. And it certainly would
be inconsistent with the defense at trial which was a defense of lack of valid identity of
the [petitioner] as the shooter.” In a later-filed written order, the court specifically
accredited “the testimony of DA Wells” and concluded that “[t]he allegation that the
district attorney withheld Birdwell’s statement is without merit.” The court found that
“[c]redible proof indicates” that the district attorney’s office provided the recording of
Mr. Birdwell’s interview to trial counsel prior to trial. The court also concluded that Mr.
Birdwell’s statement was not exculpatory because Mr. Birdwell’s “statement established
the [petitioner] as the shooter” in direct contravention of the mistaken identity defense
offered at trial. As a result, the court ruled, “there was not a reasonable probability that
the alleged newly discovered evidence might have resulted in a different judgment.”

            In this appeal, the petitioner claims that the trial court erred by refusing to
find a due process violation based upon the State’s suppression of Mr. Birdwell’s
statement.

             A 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) (citation omitted). Coram nobis relief is provided for in criminal cases by
statute:

              The 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.
                                             -8-
T.C.A. § 40-26-105(b) (2006); see State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn.
2007) (describing standard of review as “‘whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceedings
might have been different’” (citation omitted)). The grounds for seeking a petition for
writ of error coram nobis are not limited to specific categories but may be based upon any
“newly discovered evidence relating to matters which were litigated at the trial” so long
as the petitioner also establishes that the petitioner was “without fault” in failing to
present the evidence at the proper time. T.C.A. § 40-36-105(b).

               “The writ of error [coram nobis] may be had within one (1) year after the
judgment becomes final by petition presented to the judge at chambers or in open court . .
. . .” T.C.A. § 27-7-103; Mixon, 983 S.W.2d at 670. In coram nobis cases, however, the
statute of limitations is an affirmative defense that should be raised by the State in the
trial court. See Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003) (citing Sands v. State,
903 S.W.2d 297, 299 (Tenn. 1995)).

              Although the decision to grant or deny coram nobis relief rests within the
sound discretion of the trial court, see Vasques, 221 S.W.3d at 527-28, “[w]hether due
process considerations require tolling of a statute of limitations is a mixed question of law
and fact, which we review de novo with no presumption of correctness,” Harris v. State,
301 S.W.3d 141, 145 (Tenn. 2010).

              Even assuming for the sake of argument that the petitioner did not become
aware of the recording until 2005 and was unable to listen to it until April 2014 as he
claims, he has failed to establish entitlement to coram nobis relief. Mr. Birdwell’s
statement is not in any way exculpatory and might actually best be described as damning.
Mr. Birdwell’s statement tracks nearly exactly the proof at the petitioner’s trial as
summarized by this court on direct appeal. Mr. Birdwell stated that the petitioner
possessed all the weapons and that the weapons were stolen. He also indicated that the
petitioner had previously indicated a willingness to solve problems by getting his gun.
He also acknowledged that the petitioner “had been into the crack” and had been drinking
gin on the night of the offenses. Mr. Birdwell said that the petitioner orchestrated the
shooting at Mr. Walling’s house and that the petitioner demanded to drive thereafter
because he wanted to see how many police officers had responded to the shooting. Mr.
Birdwell maintained throughout his statement that it was the petitioner who fired at
Officer Privette and that the petitioner had done both shootings in an attempt to prove
himself a real gangster. Mr. Birdwell stated that, after shooting at Officer Privette, the
petitioner wanted to “‘rush up at somebody’s house’” and hide out from the police. In
light of the mountain of incriminatory information contained within the statement, that
Mr. Birdwell said he did not hear the petitioner’s gun click before he fired upon Officer
                                             -9-
Privette is of no consequence. The petitioner’s claim that Mr. Birdwell’s statement in
any way suggests that Mr. Birdwell, and not the petitioner, was the shooter is nothing
short of ludicrous. Certainly nothing suggests that had Mr. Birdwell’s statement “‘been
presented at trial, the result of the proceedings might have been different.’” Vasques, 221
S.W.3d at 527.

             Accordingly, we affirm the judgment of the coram nobis court.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




                                           -10-
