                                                                                        11/02/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              February 14, 2018 Session

           STATE OF TENNESSEE v. RICO EUGENE MALLARD

               Appeal from the Criminal Court for Davidson County
               Nos. 97-C-1694, 97-019218    Steve R. Dozier, Judge
                      ___________________________________

                           No. M2017-01424-CCA-R3-ECN
                       ___________________________________


Petitioner, Rico Eugene Mallard, appeals the summary dismissal of his petition for writ
of error coram nobis in which he challenged his convictions for first degree felony
murder, especially aggravated robbery, and first degree premeditated murder and his
effective sentence of life imprisonment plus twenty-two years. We affirm the judgment
of the coram nobis court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

J. Russell Nixon, Murfreesboro, Tennessee, for the appellant, Rico Eugene Mallard.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn R. Funk, District Attorney General; and J. Wesley King, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

        As stated above, Defendant was convicted of first degree felony murder,
especially aggravated robbery, and first degree premeditated murder. These convictions
resulted from the murder of the victim, Larry Richard Huber, on January 16, 1997, while
Defendant and his Co-defendant, Terrance McLaurine, were robbing the victim of an
“Oldsmobile Cutlass automobile.” It does not appear that Petitioner appealed his
convictions or sentences or that he sought post-conviction relief.

       On April 27, 2017, Petitioner filed a pro se petition for writ of error coram nobis
claiming newly discovered evidence of his innocence. He raised numerous issues in the
petition, which was summarily dismissed by the trial court on June 19, 2017. The trial
court made the following conclusions in its order of dismissal:

        Here, the Petitioner is clearly outside the statute of limitations of one (1)
        year from the date of judgment but the statute of limitations could be
        tolled for due process considerations. The petition contains several bold
        allegations against the murder investigation which ultimately resulted in
        the conviction of the Petitioner. First, the Petitioner provides no
        evidence of support concerning the allegations towards the Metropolitan
        Nashville Police Department. Furthermore, the Petitioner correctly
        states the medical examiner, who testified in the trial, was arrested for
        possession of marijuana in March 2010 in Mississippi and received an
        official misconduct charge in 2010 in Davidson County. However, the
        Petitioner had seven (7) years to file any motions based upon this public
        information and did not. Therefore, although, possibly new to the
        Petitioner in 2017, this information was available for seven (7) years
        before he chose to file a petition. The allegations expressed in the
        petition provide the Court no due process concerns to toll the statute of
        limitations. Therefore, the Court, hereby, denies the petition as to each
        allegation presented.

        On appeal, Petitioner argues only that the trial court should have granted him a
new trial based on “newly discovered evidence that Terrance McLaurine would have
testified that [Petitioner] is not guilty of murder.” An affidavit by Co-defendant
McLaurine, attached to Defendant’s petition for writ of error coram nobis, contains the
following statements:

        1. That I am Terrance M. McLaurine, also known as Terrance Ivory.
        2. That I am a resident of Tennessee and over eighteen (18) years of
           age.
        3. That on or about May 16, 1997 I was indicted for First Degree
           Murder and Especially Aggravated Robbery in Davidson County,
           Tennessee.
        4. That my codefendant listed in the indictment is [Petitioner], who was
           seventeen years of age at the time of the indictment.
        5. Both [Petitioner] and I were initially charged in juvenile court and the
           cases were transferred to Davidson County Criminal Court.
        6. I entered a plea of guilty on January 4, 1999 to the reduced charge of
           Second Degree Murder, and received a sentence of fifteen (15) years,
           to be served at no less than 85% of the total sentence.
        7. I gave statements to law enforcement at the time of my arrest that are
           consistent with the statements contained in this affidavit.


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        8. [Petitioner] and I met with Mr. Huber through a friend who lived in
            the same apartment complex, with the intention to sell Mr. Huber
            drugs.
        9. Mr. Huber was driving away without paying for the drugs when
            [Petitioner] shot towards the car.
        10. [Petitioner] and I pulled Mr. Huber out of the car. I then shot Mr.
            Huber approximately five times.
        11. [Petitioner] did not direct me in any way to participate or shoot Mr.
            Huber.

        A writ of error coram nobis is a very limited remedy which allows a petitioner the
opportunity to present newly discovered evidence “which may have resulted in a different
verdict if heard by the jury at trial.” Workman v. State, 41 S.W.3d 100, 103 (Tenn.
2001); see also State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). The remedy is limited “to
matters that were not and could not be litigated on the trial of the case, on a motion for
new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas
proceeding.” T.C.A. § 40-26-105. Examples of newly discovered evidence include a
victim’s recanted testimony or physical evidence which casts doubts on the guilt of the
Petitioner. Workman, 41 S.W.3d at 101; State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim.
App. 2001); State v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995). The supreme court
has stated the following concerning the standard to be applied when a trial court reviews
a petition for writ of error coram nobis:

        [T]he trial judge must first consider the newly discovered evidence and
        be “reasonably well satisfied” with its veracity. 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 (Tenn. 2007). Whether to grant or deny a petition
for writ of error coram nobis rests within the sound discretion of the trial court. Id. at
527-28.


       A petition for writ of error coram nobis must be dismissed as untimely filed unless
filed within one (1) year of the date on which the petitioner’s judgment of conviction
became final in the trial court. Mixon, 983 S.W.2d at 670. The only exception to this is
when due process requires a tolling of the statute of limitations. Workman, 41 S.W.3d at
103.



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        Petitioner’s judgments for first degree felony murder and first degree premeditated
murder were entered on June 29, 1999, and the judgment for especially aggravated
robbery was entered on October 1, 1999. The petition for writ of error coram nobis was
not filed until April 27, 2017, more than 17 years after the one-year statute of limitations
expired.

        The record in this case does not implicate any due process concerns that may toll
the one-year statute of limitations for a writ of error coram nobis. The statements in the
affidavit by Co-defendant McLaurine would not have resulted in a different verdict if
heard by the jury at trial because the statements still showed that Petitioner was an active
participant, along with Co-defendant McLaurine, in the especially aggravated robbery
and shooting of the victim. As pointed out by the State in its brief, the affidavit shows
that Petitioner acted “‘with intent to promote or assist the commission of the offense or to
benefit in the proceeds or results of the offense,’” and was therefore criminally
responsible for the murder, even though Mr. McLaurine may have fired the fatal shots
that killed Mr. Huber. See Tenn. Code Ann. § 39-11-402.” Furthermore, as argued by
the State, Petitioner’s conviction for first degree felony murder would be unaffected by
Co-defendant McLaurine’s statement because Petitioner was convicted of the especially
aggravated robbery of the victim, which resulted in the victim’s death. The “presence,
companionship, and conduct before and after the offense” would support Petitioner’s first
degree felony murder conviction. State v. McBee, 644 S.W.2d 425, 428-29 (Tenn. Crim.
App. 1982). Furthermore, “[w]hen one enters into a scheme with another to commit one
of the felonies enumerated [in the felony murder statute] and death ensues, both
defendants are responsible for the death, regardless of who actually committed the
murder and whether the killing was specifically contemplated by the other.” State v.
Brown, 756 S.W.2d 700, 704 (Tenn. Crim. App. 1988).

                                     CONCLUSION

      The error coram nobis court appropriately summarily dismissed the petition.
Accordingly, the judgment of the trial court is affirmed.


                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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