        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 22, 2012

                 PHEDREK DAVIS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2003-D-2992     Seth Norman, Judge


                 No. M2011-01366-CCA-R3-CO - Filed July 23, 2012


The Petitioner, Phedrek Davis, appeals from the Davidson County Criminal Court’s summary
dismissal of his petition for writ of error coram nobis. In this appeal as of right, the
Petitioner contends that the coram nobis court erred by summarily dismissing his 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 Criminal Court is Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and J EFFREY S. B IVINS, JJ., joined.

Phedrek Davis, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                            PROCEDURAL BACKGROUND

       On August 31, 2005, a jury convicted the Petitioner of one count of assault, one count
of premeditated first degree murder, and one count of attempted second degree murder, for
which he received an effective sentence of life imprisonment plus fifteen years. On appeal,
this court upheld the Petitioner’s convictions. See State v. Phedrek T. Davis, No. M2006-
00198-CCA-R3-CD, 2007 WL 2051446 (Tenn. Crim. App. July 19, 2007) (“Davis I”). Our
supreme court granted permission to appeal and affirmed the Petitioner’s convictions and
sentences. See State v. Davis, 266 S.W.3d 896 (Tenn. 2008) (“Davis II”).
        During the trial, the victim in the attempted second degree murder charge, Eula
Beasley, testified that he witnessed the Petitioner approach the murder victim, slap her across
the face, and say, “[B]itch, I’m going to get you, don’t be in this house when I come back.”
Id. at 898. The Petitioner left, returned a short time later, and shot at the victim and Mr.
Beasley. Id. Mr. Beasley testified on direct examination that he was “not one hundred
percent positive” that the Petitioner used the word “kill” when he threatened the victim but
that “it might have been something like that.” Davis I, 2007 WL 2051446, at *14. Mr.
Beasley was shown a copy of his statement to police in order to refresh his recollection. Id.
Mr. Beasley then testified that he told the police that the Petitioner had said that “he was
going to kill [the victim] when he come [sic] back, he was going to shoot up the house and
everything.” Id. When asked if the Petitioner actually said that, Mr. Beasely responded,
“Yes, ma’am, I think so.” Id. Mr. Beasley’s statement had been reduced to writing by
Detective E.J. Bernard. Id. at *15. Mr. Beasley testified that he reviewed the written
statement and that it was accurate. Id.

        In 2009, the Petitioner filed a petition seeking post-conviction relief and alleging that
“newly discovered evidence prove[d] that the State solicited damaging perjury during his
initial trial, thereby violating his constitutional rights.” Phedrek T. Davis v. State, No.
M2009-01616-CCA-R3-CD, 2010 WL 1947379, at *1 (Tenn. Crim. App. May 14, 2010),
perm. app. denied, (Tenn. Nov. 10, 2010) (“Davis III”). The Petitioner alleged that Mr.
Beasley perjured himself when he testified “that he had initialed the statement after
confirming its accuracy.” Id. The Petitioner argued that Detective Bernard “was the true
author of the ‘EB’ (Eula Beasley) on the police report” and attached “a recent report from
a handwriting expert” to support his claim. Id. The post-conviction court summarily
dismissed the petition because “the issue of Mr. Beasley’s possible perjury regarding the
police report had been previously determined.” Id.

       In affirming the post-conviction court’s decision, this court stated the following:

       During his trial and appeal, the Petitioner had meaningful opportunities to
       introduce evidence of Detective Bernard’s forgery of Mr. Beasley’s initials,
       and he took advantage of these opportunities on several other occasions. At
       the trial, the Petitioner sought to introduce evidence of the allegations that
       Detective Bernard forged police reports. The trial court excluded the evidence
       because it was irrelevant. On appeal, the Petitioner challenged the trial court’s
       refusal to admit the evidence, but this court affirmed the trial court’s decision.
       As the record shows, the Petitioner’s lack of success in impeaching Mr.
       Beasley was due to a lawful exercise of courtroom discretion. This does not
       give the Petitioner grounds for post-conviction relief.



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Davis III, 2010 WL 1947379, at *2. This court concluded that “the Petitioner had a full and
fair hearing on Mr. Beasley’s alleged perjury.” Id. at *4.

        On October 5, 2009, the Petitioner filed a petition for writ for error coram nobis
arguing that “because he did not receive the police reports from which Mr. Beasley refreshed
his memory until after trial and because he did not receive the handwriting expert’s report
until June 3, 2009, the discovery that the ‘EB’ was not Mr. Beasley’s initials amounted to
new evidence.” Phedrek T. Davis v. State, No. M2009-02310-CCA-R3-CO, 2010 WL
3270015, at *1 (Tenn. Crim. App. Aug. 19, 2010) (“Davis IV”). The coram nobis court
summarily dismissed the petition “stating that the evidence presented by the [P]etitioner was
not ‘newly discovered’ noting that the statement containing the initials had been presented
at trial and litigated at trial and on appeal.” Id. In affirming the coram nobis court’s
dismissal, this court stated the following:

       We agree that the evidence presented by the [P]etitioner is not “new” evidence.
       By the [P]etitioner’s own admission, he obtained the document containing the
       initials at trial. Petitioner certainly had an opportunity to cross-examine Mr.
       Beasley about whether he initialed the statement but apparently did not.
       Further, the statement at issue was an oral statement given to law enforcement
       officers by Mr. Beasley and memorialized by Detective Bernard. Whether Mr.
       Beasley incorrectly identified the initials, he never altered his account of what
       happened. The purportedly “new” evidence from the [P]etitioner does not
       change these circumstances, and the coram nobis court did not abuse its
       discretion in ruling that the petition should be dismissed.

Id. at *3.

        On April 27, 2011, the Petitioner filed the petition for writ of error coram nobis at
issue in this case. Attached to the petition was an affidavit sworn by Mr. Beasley in which
Mr. Beasley stated that he “testified at trial that [he] initialed a police report that was
prepared by [D]etective E.J. Bernard but [he] did not initial any statement or report”; that he
also “testified that [the Petitioner] threaten[ed] to kill everybody, but [he] never heard [the
Petitioner] threaten to kill anybody”; and that he admitted that he “testified falsely at trial.”
The Petitioner argued that this affidavit constituted newly discovered evidence that would
have been essential to his defense because Mr. Beasley “was the only material witness at trial
to offer substantive evidence to support” premeditation and that Mr. Beasley’s testimony that
he initialed the statement amounted to an adoption of “the contents of the report as being
information that he gave to Detective Bernard on the day of the homicide.” The coram nobis
court summarily dismissed the petition concluding that the “issue [had] been previously



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adjudicated several times, thus, the [P]etitoner [was] not entitled to relief by subsequent
filing of petition for writ of error coram nobis.”

                                         ANALYSIS

      On appeal, the Petitioner contends that the coram nobis court erred by summarily
dismissing his petition and argues that “the jury would have convicted him of second degree
murder had the jury not been presented with Mr. Beasley’s lie.” The Petitioner further
contends that Mr. Beasley’s affidavit constitutes newly discovered evidence. The State
responds that the Petitioner’s claims have been previously determined; therefore, they are not
cognizable in a coram nobis proceeding.

        A writ of error coram nobis is an extraordinary remedy available only under very
narrow and limited circumstances. State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). A
writ of error coram nobis lies “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.” Tenn. Code Ann. § 40-
26-105 (2006); see State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). The
purpose of a writ of error coram nobis “is to bring to the court’s attention a previously
unknown fact that, had it been known, would have resulted in a different judgment.” Cyrus
Deville Wilson v. State, - - S.W.3d - -, No. M2009-02241-SC-R11-CO, 2012 WL 1377373,
at *4 (Tenn. Apr. 20, 2012). The decision to grant or deny the writ rests within the discretion
of the trial court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988).

        Coram nobis claims are “singularly fact-intensive” and “are not easily resolved on the
face of the petition and often require a hearing.” Freshwater v. State, 160 S.W.3d 548, 554
(Tenn. Crim. App. 2004) (quoting Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003)).
However, a petitioner is not automatically entitled to an evidentiary hearing by simply filing
a petition for writ of error coram nobis. See Teague v. State, 772 S.W.2d 915, 922 (Tenn.
Crim. App. 1988); see also Cole v. State, 589 S.W.2d 941, 943 (Tenn. Crim. App. 1979)
(concluding that the coram nobis court did not err in summarily dismissing the petition
because the victim’s post-trial statement was not “newly discovered evidence”). Instead, the
petition must “demonstrate that the petitioner is entitled to the extraordinary relief that the
writ provides.” Harris v. State, 301 S.W.3d 141, 150 (Tenn. 2010) (Koch, J., concurring)
(citations omitted).

       Recanted testimony may qualify as newly discovered evidence and justify the granting
of a writ of error coram nobis. Mixon, 983 S.W.2d at 672. However, newly discovered
recanted testimony will only justify the granting of a writ of error coram nobis and a new trial
if:

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        (1) the trial court is reasonably well satisfied that the testimony given by the
        material witness was false and the new testimony is true; (2) the defendant was
        reasonably diligent in discovering the new evidence, or was surprised by the
        false testimony, or was unable to know of the falsity of the testimony until
        after trial; and (3) the jury might have reached a different conclusion had the
        truth been told.

Id. at 673 n.17. The coram nobis court did not abuse its discretion in summarily dismissing
the petition for writ of error coram nobis because Mr. Beasley’s affidavit failed to satisfy the
Mixon factors. Furthermore, we agree with the coram nobis court that the issues raised in
the petition have been previously litigated and determined in several prior proceedings.

        With respect to the Petitioner’s contention that Mr. Beasley lied when he testified that
the Petitioner threatened to kill everyone, the Petitioner cannot claim to have been surprised
by the alleged false testimony or unable to know of the falsity of the testimony until after
trial. Mr. Beasley testified that he was “not positive” when asked if the Petitioner used the
word “kill.” Davis I, 2007 WL 2051446, at *14. In fact, even after being shown his
statement to police, Mr Beasley “continued to equivocate over whether [the Petitioner] had
used the word ‘kill’ in his threat.” Id. at *15. Mr. Beasley only testified that he told the
police the Petitioner had used the word “kill” and that he thought that was what the Petitioner
had said. Id. at *14-15. Furthermore, despite the Petitioner’s assertions, testimony about
whether he used the word “kill” was not the only evidence of premeditation. Mr. Beasley
testified that the Petitioner told the victim, “[B]itch, I’m going to get you, don’t be in this
house when I come back.” Davis II, 266 S.W.3d at 898. Additionally, a second witness
testified that the Petitioner said, “[W]hen I come back I’m going to shoot this m----- f-----
up.”1 Id. at 899. Therefore, a jury would not have reached a different conclusion had Mr.
Beasley testified that the Petitioner never used the word “kill.”

        With respect to the Petitioner’s contention that Mr. Beasley lied when he testified that
he initialed his statement, the Petitioner has litigated the issue that the statement or the initials
on the statement were a forgery on direct appeal to this court, in a post-conviction
proceeding, and in a prior petition for writ of error coram nobis. Therefore, the Petitioner
cannot claim to be surprised by Mr. Beasley’s allegedly false testimony regarding the initials
on the police statement. In fact, the Petitioner challenged the falsity of the initials at trial.
Furthermore, as this court has previously noted, regardless of who initialed the statement, Mr.
Beasley testified that the written statement accurately reflected what he orally told the police.


1
 In his reply brief, the Petitioner asserts that the witness never testified to this statement and that the State
has fabricated evidence against him. However, the fact that the opinions from both this court and our
supreme court quote the witness’s testimony belies this assertion.

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Whether Mr. Beasley did or did not initial the statement would not change the substance of
that testimony. Accordingly, we conclude that the coram nobis court did not abuse its
discretion in summarily dismissing the petition.

                                      CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgment of the coram
nobis court is affirmed.




                                                   ________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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