        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 2, 2014

        TERESA DEION SMITH HARRIS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Henry County
                      No. 12080     C. Creed McGinley, Judge


              No. W2014-01020-CCA-R3-ECN - Filed January 16, 2015


Petitioner, Teresa Deion Smith Harris, appeals the denial of her petition for writ of error
coram nobis. In the circuit court, petitioner raised a claim of newly discovered evidence
relating to the timing of the victim’s death and the degree of torture that he endured. The
coram nobis court summarily denied the petition. Following our review, we affirm the
judgment of the coram nobis court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and D. K ELLY T HOMAS, J R., JJ., joined.

Teresa Deion Smith Harris, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Hansel Jay McCadams, District Attorney General; and Beth Boswell Hall, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                              I. Facts and Procedural History

      In the appeal from the denial of a previous petition for error coram nobis, this court
provided a brief synopsis of the facts developed at trial:

              The Petitioner was convicted of first degree felony murder and
       sentenced to life without the possibility of parole for her role in the death of
       nineteen-year-old Dennis Brooks, Jr. The Petitioner and her co-defendants,
       Walter Smothers and Stacy Ramsey, decided to stop and steal a vehicle after
       their vehicle broke down. The Petitioner flagged down a vehicle driven by the
       victim, and the trio overcame the victim. The victim was kidnapped, beaten,
       shot, stabbed, murdered, and mutilated. The Petitioner admitted to pressing
       the victim’s excised heart against her lips and stabbing the victim once but
       otherwise denied participating in the mutilation.

Teresa Deion Smith Harris v. State, No. W2012-00540-CCA-R3-CO, 2012 WL 3457797,
at *1 (Tenn. Crim. App. Aug. 15, 2012), no perm. app. filed, (citing State v. Harris, 989
S.W.2d 307, 309-11 (Tenn. 1999)). This court affirmed petitioner’s conviction and sentence,
State v. Teresa Deion Smith Harris, No. 02C01-9412-CC-00265, 1996 WL 654335 (Tenn.
Crim. App. Nov. 12, 1996), perm. app. granted (Tenn. June 8, 1998), and our supreme court
affirmed after finding harmless error in application of one of two aggravating circumstances.
Harris, 989 S.W.2d at 316.

       Petitioner subsequently filed a petition for post-conviction relief asserting newly
discovered evidence and ineffective assistance of counsel, which was denied by the post-
conviction court. This court affirmed the denial of post-conviction relief. Teresa Deion
Smith Harris v. State, No. W2000-02611-CCA-R3-PC, 2001 WL 892848 (Tenn. Crim. App.
Dec. 17, 2001), no perm. app. filed. She then filed her first petition for writ of error coram
nobis in August 2011, which was summarily dismissed by the coram nobis court. This court
affirmed the denial of relief on appeal. Teresa Deion Smith Harris v. State, 2012 WL
3457797, at *3.

       Petitioner filed the instant petition for writ of error coram nobis on February 11, 2014.
It was summarily dismissed by the coram nobis court, and this appeal follows.

                                         II. Analysis

                                   A. Standard of Review

         The decision to grant or deny a petition for writ of error coram nobis on its merits is
left to the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141, 144 (Tenn.
2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). A trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases
its decision on a clearly erroneous assessment of the evidence, or employs reasoning that
causes an injustice to the complaining party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)). The writ of error coram
nobis is an “extraordinary procedural remedy . . . into which few cases fall.” State v. Mixon,
983 S.W.2d 661, 672 (Tenn. 1999). To demonstrate that she is entitled to coram nobis relief,
petitioner must clear several procedural hurdles.

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        First, the petition for writ of error coram nobis must relate: (1) the grounds and the
nature of the newly discovered evidence; (2) why the admissibility of the newly discovered
evidence may have resulted in a different judgment had the evidence been admitted at the
previous trial; (3) the petitioner was without fault in failing to present the newly discovered
evidence at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v.
State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 1995) (citing State v. Hart, 911 S.W.2d 371,
374-75 (Tenn. Crim. App. 1995)).

        Next, a petition for writ of error coram nobis must generally be filed within one year
after the judgment becomes final. Tenn. Code Ann. § 27-7-103. Petitioner’s judgment
became final on May 7, 1994. See Mixon, 983 S.W.2d at 670 (in contrast with post-
conviction proceedings, in error coram nobis proceedings, the statute of limitations begins
to run when the judgment becomes final, which is thirty days after entry). Petitioner filed the
instant petition for writ of error coram nobis on February 11, 2014; however, our disposition
of this matter does not necessitate an analysis of whether due process principles require
tolling of the statute of limitations. See Harris, 301 S.W.3d at 145.

                                   B. Petitioner’s Claims

      In sum, petitioner claims that the coram nobis court erred in failing to conduct an
evidentiary hearing and by declining to review the coroner’s report from trial and that the
coram nobis court exhibited bias as demonstrated in the language of the order of dismissal.

        All of the evidence that petitioner advances as newly discovered evidence relates to
the timing of the gunshot wounds to the victim, which, she asserts, would negate a finding
that the murder was torturous or heinous, atrocious, or cruel. She has presented affidavits
of a witness from trial, Johnny Keith Noles, and her father, William L. Smith, who, along
with petitioner’s husband, Timothy McDonald, conducted an experiment designed to
contradict Mr. Noles’ trial testimony about the gunshots he heard on the night in question.
Petitioner also presents an affidavit from Mr. McDonald, who claimed expertise in general
physics based on his two years of engineering school and his military aviation training. He
sought to discredit Mr. Noles’ trial testimony using an algebraic equation.

       All of this evidence, together with the coroner’s report that petitioner asserts should
have been reviewed by the coram nobis court, related to the timing of the gunshot wounds
with respect to torture of the victim. However, in petitioner’s direct appeal, our supreme
court invalidated the application of Tennessee Code Annotated section 39-13-204(i)(5), the
“especially heinous, atrocious, or cruel” aggravating circumstance. Her conviction was
upheld based on a different aggravating circumstance. Because all of the proffered evidence
pertained to the victim’s suffering as embodied by the “(i)(5)” aggravating circumstance,

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none of this evidence would have resulted in a different judgment had the evidence been
admitted at the previous trial. Freshwater, 160 S.W.3d at 553.

        Finally, petitioner claims that the coram nobis court exhibited bias through its written
order summarily dismissing her petition. “A judge should grant a motion to recuse ‘when
the judge has any doubt as to his or her ability to preside impartially in the case or when a
person of ordinary prudence in the judge’s position, knowing all of the facts known to the
judge, would find a reasonable basis for questioning the judge’s impartiality.’” Smith v.
State, 357 S.W.3d 322, 341 (Tenn. 2011) (quoting Bean v. Bailey, 280 S.W.3d 798, 805
(Tenn. 2009)). The decision whether to grant a motion for recusal is discretionary with the
trial judge; however, the standard for recusal is objective. Bean, 280 S.W.3d at 805.

       We note that petitioner failed to file a motion to recuse in the lower court before this
case was appealed. Tennessee Supreme Court Rule 10B states, “Any party seeking
disqualification, recusal, or a determination of constitutional or statutory incompetence of
a judge of a court of record, or a judge acting as a court of record, shall do so by a timely
filed written motion.” Petitioner has waived this issue by failing to proceed as required in
the coram nobis court or by failing to argue to this court why the doctrine of waiver should
not be applied to her claim.

        Because petitioner failed to establish that the proffered evidence would have resulted
in a different outcome at trial and because she has not established bias on behalf of the coram
nobis court, we affirm the coram nobis court’s denial of relief.

                                       CONCLUSION


       Based on our review of the record, the briefs of the parties, and the applicable law, we
affirm the judgment of the coram nobis court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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