        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 9, 2014 Session

               STATE OF TENNESSEE v. LETIVIAS D. PRINCE

                Appeal from the Circuit Court for Williamson County
                     No. CR031007       Jeffrey S. Bivins, Judge




             No. M2014-00260-CCA-R3-ECN - Filed December 11, 2014


The petitioner, Letivias D. Prince, appeals the Williamson County Circuit Court’s summary
dismissal of his petition for writ of error coram nobis, which challenged his 1997 jury
conviction of first degree murder. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

John G. Oliva, Nashville, Tennessee, for the appellant, Letivias D. Prince.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Ronald L. Davis, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               In 1997, a Williamson County Circuit Court jury convicted the petitioner of
first degree premeditated murder for shooting the victim, Richard Clinton Fly, and the trial
court imposed a sentence of life imprisonment. See State v. Letivias Prince, No.
M1998-00005-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Nashville, Aug. 10, 2000).
This court affirmed the petitioner’s conviction on direct appeal, see id., and similarly
affirmed the denial of the petitioner’s subsequent petition for post-conviction relief, see
Letivias D. Prince v. State, No. M2003-00166-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App.,
Nashville, Jan. 27, 2004), perm. app. denied, Letivias D. Prince v. State, No.
M2003-00166-SC-R11-PC (Tenn. June 21, 2004).
               On March 24, 2005, the petitioner filed a petition for writ of error coram nobis,
claiming entitlement to coram nobis relief on grounds that newly discovered evidence in the
form of an incident report wherein a potential witness identified someone other than the
petitioner as the perpetrator of the victim’s murder. The coram nobis court held a hearing
on the petition on November 1, 2005.

                At the hearing, Franklin Police Department Officer Charles Kirby testified that
on the morning following the overnight shooting of the victim, he was called to the lobby of
the police department to take “a walk-in report that was to be related to that investigation.”
He interviewed the witness, Michael Baer, who claimed to have seen a person other than the
defendant shoot the victim. According to the report prepared by Officer Kirby and exhibited
to the hearing, Mr. Baer alleged that a person named Terry “Belefont” had shot the victim.
Officer Kirby said that after taking the statement, which was at that time written on carbon
paper, he marked the statement “CID only” because it was otherwise the practice to send one
copy of the report to the records division, one to the investigators, and another “into a box
for the media.” He explained that officers were trained to write “Do not release, CID only,
across the top of the report” for cases still under investigation so that the reports would “not
. . . be released to the media.” Officer Kirby denied any intent to hide the report from the
State or the defendant.

                Mr. Baer testified that he knew the victim “through friends” and that after he
learned that the victim had been killed, he went to the police department and told them that
someone named “Bellefont” had shot the victim. He said that he did not remember having
made the report “until the next morning when [he] was called into detectives.” Mr. Baer,
who admitted having been “a heavy drinker back then,” did not recall having made the report
to Officer Kirby and could not explain why he had made the report about a shooting that he
did not actually witness. He said, “I mean it’s obvious I did make that up that night. . . . I
didn’t see it. I didn’t do it. I don’t know who did it . . . .” He claimed that he learned the
pertinent facts about the victim’s murder from a man named Tom Steward. Mr. Baer later
pleaded guilty to a charge of filing a false police report. He stated that, had he been called
to testify at the petitioner’s trial, he “would have testified [to] nothing,” adding, “I mean I
wasn’t there and didn’t see it.”

               Franklin Police Department Sergeant Ricky Brown testified that he was the
lead investigator into the victim’s murder and that he had been provided Mr. Baer’s statement
by Officer Kirby. Sergeant Brown interviewed Mr. Baer three days later, and, during that
interview, Mr. Baer told Sergeant Brown “that he made everything up” based upon “what
he’s heard from other people” because “he was intoxicated.” Officer Kirby, however, made
no note of Mr. Baer’s having been intoxicated. Sergeant Brown charged Mr. Baer with filing
a false police report, and Mr. Baer pleaded guilty to the charge.

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               The petitioner’s trial counsel testified that he filed both general and specific
requests for exculpatory evidence and that he did not receive from the State at any time the
report that Mr. Baer made to Officer Kirby. Counsel noted that he presented alternative
theories of defense at the petitioner’s trial, arguing that the petitioner did not shoot the victim
but that if he did, he acted in self-defense. These alternative theories fit the evidence,
including the petitioner’s own confession, that he fired a gun after having an argument with
the victim. Counsel recalled that during his pretrial investigation, he received information
that a person named Dee Dee Cannon “could possibly have been the shooter.” The primary
forensic evidence connecting the defendant to the crime was “a slug” recovered from the
victim’s truck that had blood on it and that was connected to the petitioner’s gun by ballistics
testing.

               Counsel testified that after the petitioner’s appeal of the denial of his petition
for post-conviction relief had concluded, the petitioner’s family sent him a copy of Officer
Kirby’s report that had been obtained via a request through the Open Records Act. Counsel
said that, had he had that report prior to the petitioner’s trial, he “would have been able to
investigate that and find out if there’s anything to this.” Counsel later learned that Mr. Baer
had pleaded guilty to filing a false police report and had been sentenced for that offense prior
to the petitioner’s trial. Nevertheless, counsel believed that he would have been “obliged to
put him on the stand to bring out the fact that this is someone who made this statement” so
that the jury could “at least consider the possibility that this is another theory on what
happened that night.” Counsel insisted that he could have impeached Mr. Baer with the
police report if Mr. Baer had testified at the petitioner’s trial in a manner consistent with his
guilty plea. He added, “[W]e’re trying to create confusion. We’re trying to create reasonable
doubt and this is just another weapon that I could have used to create reasonable doubt.”

                Former Assistant District Attorney General John Barringer testified that he
tried the petitioner’s case alongside District Attorney General Joe Baugh. At some point
during the investigation, Mr. Barringer learned from Sergeant Brown that Mr. Baer “had filed
a false report that was associated with the Letivias Prince case.” Mr. Baer later told Mr.
Barringer “that he had made the whole thing up” as a result of his “alcohol problems and .
. . some crack problems.” Mr. Baer “said that he made up the person’s name and that he just
made up the whole thing and he didn’t really have an explanation.” After speaking with Mr.
Barringer, Mr. Baer agreed to plead guilty to the charge of filing a false police report in
exchange for a sentence of 90 days to be suspended after service of 10 days in jail.

              Mr. Barringer said that, “to the best of [his] recollection,” he told trial counsel
about Mr. Baer’s having filed a false report in relation to the petitioner’s case, but he could
not recall whether he had turned the actual report over to counsel. It was also his recollection
that counsel agreed “that it was really irrelevant.” Mr. Barringer did not believe the report

                                                -3-
to be exculpatory because Mr. Baer had already recanted and pleaded guilty to making a false
report. He characterized Mr. Baer’s statement as “such an aside,” adding, “I mean it
happened pretty early on in the case. He pled guilty and was already on probation. . . . [I]t
just wasn’t a major issue.” Mr. Barringer recalled that ballistics testing established that the
petitioner’s gun fired the bullet “that had gone actually through Mr. Fly’s head and was found
in the . . . floor board of the truck.”

                 At the conclusion of the hearing, the coram nobis court took the petition under
advisement. In an order issued on January 13, 2014,1 the court denied coram nobis relief,
finding that “there is no reasonable basis to conclude that the result of the trial might have
been different if the information had been disclosed.” Although the court agreed that the
statement was exculpatory and should have been disclosed to the petitioner prior to trial, the
court accredited Mr. Baer’s testimony that “his intoxicated state was a triggering factor in his
unadvisable decision to make the initial false statement indicating an unidentified Mr.
Belefont was Ricky Fly’s murderer” and that “he had no first-hand knowledge of the murder
and only reported what he had been told by others.” The court concluded, “Thus, Mr.
B[ae]r’s statement, even assuming it would have been admissible at trial, would have had
little, if any, to offer in the way of exculpatory assistance to the petitioner at trial.”

               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


        1
          In the order, the coram nobis court acknowledged the delay between the 2005 hearing and the filing
of the order, attributing it to oversight. In 2011, the trial judge, Judge Jeffrey S. Bivins, was appointed to
this court, which appointment would ordinarily have deprived him of the authority to enter the order more
than 60 days after his appointment. See T.C.A. § 17-1-304(b). On August 31, 2011, however, the chief
justice of our supreme court entered an order designating Judge Bivins to preside over all those cases pending
at the time of his appointment until their conclusion.

                                                     -4-
                 judgment, had it been presented at the trial.

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, as are the grounds for
                 reopening a post-conviction petition. Coram nobis claims may
                 be based upon any “newly discovered evidence relating to
                 matters 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. Coram nobis claims
                 therefore are singularly fact-intensive. Unlike motions to
                 reopen, coram nobis claims are not easily resolved on the face
                 of the petition and often require a hearing.

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003). The decision to grant or deny coram
nobis relief rests within the sound discretion of the trial court. Vasques, 221 S.W.3d at
527-28.

                We agree with the coram nobis court’s assessment that, even if the petitioner
could have overcome the substantial hurdle of admissibility at trial, Mr. Baer’s statement
would not have changed the outcome of the trial. Mr. Baer testified at the coram nobis
hearing that he did not witness the victim’s murder and that he did not know who had
perpetrated the act. Because Mr. Baer had already recanted the statement and pleaded guilty
to filing a false police report prior to the petitioner’s trial, it is easy to assume that Mr. Baer
would have offered similar testimony had he been called as a witness at the petitioner’s trial.
Assuming for the sake of argument that the petitioner could have impeached Mr. Baer with
the police report,2 the report would still have offered little in the way of exculpatory evidence


        2
          This is a mighty assumption indeed in light of the fact that the actual report is Officer Kirby’s
recitation of his conversation with Mr. Baer, making it hearsay within hearsay not covered by any exception
to the hearsay rule, see Tenn. R. Evid. 803(8) (expressly excluding police reports from the public records and
reports hearsay exception); see also Tenn. R. Evid. 803(26), Advisory Comm’n Comments (“A ‘police
report’ . . . of the recorded statement would not qualify [for admission as substantive evidence as a prior
inconsistent statement] since it is not literally the witness’s own words contained on audio or video media.”),
and considering that “[d]ecisional law prohibits a lawyer from calling a witness -- knowing the testimony
will be adverse to the lawyer’s position -- solely to impeach that witness by an inconsistent statement,” Tenn.
                                                                                                   (continued...)

                                                      -5-
after the jury was made aware that Mr. Baer not only recanted but accepted legal liability,
including a period of incarceration, for making “the whole thing up.” Although the statement
should have been disclosed to the petitioner prior to his trial, we cannot say that, had the
evidence been admitted at trial, the result of the proceeding might have been different.

              Accordingly, the judgment of the coram nobis court is affirmed.

                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




       2
         (...continued)
R. Evid. 607, Advisory Comm’n Comments.



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