        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                           JUNE SESSION, 1997

                                                           FILED
STATE OF TENNESSEE,          )    C.C.A. NO. 02C01-9612-CC-00451
                             )                         September 10, 1997
      Appellee,              )
                             )                            Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
                             )    GIBSON COUNTY
VS.                          )
                             )    HON. J. STEVEN STAFFORD
DOYLE HART,                  )    JUDGE
                             )
      Appellant.             )    (Writ of Error Coram Nobis)


               ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF GIBSON COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

CHARLES S. KELLY                  JOHN KNOX W ALKUP
P.O. Box 507                      Attorney General and Reporter
802 Troy Avenue
Dyersburg, TN 38025-0507          ELIZABETH T. RYAN
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  CLAYBURN L. PEEPLES
                                  District Attorney General
                                  110 South College Street
                                  Suite 200
                                  Trenton, TN 38382




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                        OPINION

        The Defendant, Doyle Hart, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for a writ of error coram nobis. The Defendant filed his petition for a writ

of error coram nobis on November 24, 1993, contending that his convictions for

aggravated rape and incest should be set aside because of newly discovered

evidence. A hearing was conducted on the petition on April 8, 1994. At the

conclusion of that hearing, the trial court denied the petition. On appeal to this

Court, the judgment of the trial court was reversed and the case was remanded

for a new hearing.1          A new hearing was conducted on July 8, 1996.                          In a

memorandum opinion filed on July 18, 1996, the trial court denied the petition.

It is from this order of denial that the Defendant now appeals. W e affirm the

judgment of the trial court.



        W e begin with a discussion of the circumstances of the Defendant’s

offenses. As we stated above, the Defendant was convicted of aggravated rape

and incest. The victim was the Defendant’s stepdaughter. 2 Although only a small

portion of the trial testimony is included in the record before us, we can glean the

following facts from this Court’s opinion in the Defendant’s direct appeal:

               The nine-year-old victim testified that on numerous occasions
        the defendant had sexually abused her. She explained that the
        defendant, who was her stepfather, would come into her bedroom
        after making sure that her mother was asleep, remove his pants and


        1
           See State v. Hart, 911 S.W .2d 371 (Tenn. Crim. App. 1995) (holding that the denial of the
petition must be reversed because the trial court considered evidence outside the record in denying
the petition).

        2
         It is the po licy of this C ourt n ot to refer to m inor victims of s exu al abu se b y nam e.
Accordingly, we will refer to the Defendant’s stepdaughter only as “the victim” throughout this opinion.

                                                   -2-
underwear, pull back the covers from her, slip down her panties, get
on top of her, and begin moving “up and down.” She testified that
the defendant had inserted his penis in her vagina for a short
distance. W hile using different terminology, she further stated that
the defendant had usually ejaculated. According to the victim this
happened on over twenty occasions and on one occasion blood
came from her vagina. She also related that the defendant had
improperly touched her with his hands on various occasions at their
home and while she had been with the defendant in his motor
vehicle.

        On cross-examination the victim admitted that she had told an
untruth about her stepmother striking her and pulling her hair. The
child then acknowledged that she had been hospitalized in Memphis
for five or six weeks because of this “lie” and because she did not
trust her stepmother. In addition, the victim was questioned by
defense counsel concerning numerous inconsistent statements
which she had made at the preliminary hearing and statements
which she had made to other individuals concerning the date of the
first sexual penetration by the defendant. Testifying at the
preliminary hearing, the victim had evidently stated that this had
occurred after her seventh birthday; however, she had told
numerous individuals that the penetration had occurred on the day
after her eighth birthday. W e note that on redirect examination the
victim concluded that the first penetration had, in fact, occurred after
her seventh birthday rather than after her eighth birthday. Defense
counsel questioned the victim extensively concerning other prior
inconsistent statements. During this questioning the victim admitted
to having falsely accused her stepbrother of sexual misconduct on
one occasion. She also acknowledged that she wanted her mother
and father to remarry.

        In addition to the victim, the State offered Jerri Jackson, the
victim’s stepmother. This witness testified that on several occasions
the victim had complained to her of pain and that she had observed
redness and swelling around the victim’s vagina. Jackson further
testified that the victim had been sent to Lakeside Hospital because
of problems which the victim had been having at school and home.
The victim was allegedly having particular difficulty accepting
disciplinary action. According to this witness false allegations made
against her by the victim had not lead to the victim’s hospitalization
but rather the victim’s overall behavioral problems. This witness
further testified that the redness and swelling which she had noticed
around the victim’s vagina had disappeared about three weeks after
the victim had begun living with her and the victim’s father.

       The State also called two medical doctors who testified that
they had found trauma to the vaginal opening. This trauma was
said to have indicated the introduction of a foreign object and was
not usually consistent with self-abuse. Both doctors related that in
their opinions penetration of one-half inch up to one inch or an inch

                                  -3-
and one-quarter would probably not have ruptured the victim’s
hymen.

        At the conclusion of the State’s proof, the defendant moved
for a judgm ent of acquittal. This was denied; however, two counts
of a four count indictment were dismissed with the consent of the
State. After this dismissal the State elected to proceed on one
incident which related to the occasion when the victim had allegedly
bled.

      The victim’s mother testified on behalf of her husband, the
defendant. She stated that after she had given birth to the
defendant’s son, the victim’s relationship with the defendant had
deteriorated. Furthermore, according to this witness the victim
walked into the bedroom on one occasion while this witness and the
defendant were engaged in sex, and, upon seeing them, had
become hysterical. The mother also related that during the period
of time in which these events were alleged to have occurred, the
defendant had not returned from work until shortly after midnight
each evening. She added that she had waited up for her husband
and had always talked with him while he ate. The witness then
concluded that these alleged offenses could not have happened on
twenty separate occasions as the victim claimed, especially since
the parents’ and the victim’s bedroom doors were so close to one
another.

      In addition, the witness related that the victim had frequently
experienced nightmares, had made an allegation of improper sexual
conduct by one of her stepbrothers, and had allegedly told her father
previously that her stepbrother had abused her. The mother then
added that while bathing the victim around the time of the alleged
offenses, she had observed no problem in the victim’s vaginal area
except for redness and rawness which the victim had experienced
each summer.

       According to this witness’ further testimony she had attended
family therapy while the victim had been at Lakeside, that the victim
had been caught being untruthful while in the hospital, that the only
occasion where blood had been observed on the victim’s panties
had been when the victim returned from a visit with her father and
stepmother, and that the victim had frequently fantasized about
events. On cross-examination this witness admitted that she had
waited for two weeks before telling the victim’s father about the
complaint made against the victim’s stepbrother, that she had never
taken the victim to the doctor and that she had not examined the
victim. According to this witness the victim had never made any
accusations except to tell her that “it felt like somebody was touching
her down there with their tongue and it must be the defendant
because he was the only one there.”




                                  -4-
            Sherry Donald, a social worker at the local mental health
      center, testified that she had talked to officials at Lakeside Hospital
      two months prior to trial but had not received the hospital report.
      Out of the jury’s presence she testified that she had been informed
      by hospital officials that the victim did lie frequently and was having
      problems with her sexuality. Donald further stated that she had
      been told that the victim fantasized, had a problem with reality, was
      very manipulative, and had an ultimate goal of reuniting her mother
      and father.

             However, the trial court granted the State’s objection and
      refused to allow this witness to testify concerning the information
      which she had obtained by telephone from Lakeside Hospital. While
      this testimony was excluded, she was allowed to introduce a
      statement which she had taken from the victim. This statement
      contained several inconsistencies with the victim’s trial testimony.

             Testifying in his own behalf, the defendant denied that he had
      ever committed any type of sexual offense against the victim. He
      explained that reasons for the victim’s untruthfulness included her
      refusal to accept discipline from him and his lack of attention after
      the birth of his son. On cross-examination the defendant denied
      that he had noticed any redness around the victim’s vagina when he
      had bathed her but admitted that on one or two occasions the victim
      had told him that the area burned. He added that the victim had at
      times threatened him with telling her mother that he was “messing
      with” her (the victim). These threats allegedly occurred when the
      victim was not getting her way. Lastly, we note the defendant’s
      admission that on one occasion there had been a discussion about
      the victim’s having blood present on her panties.

State v. Doyle Hart, C.C.A. No. 02C01-9209-CC-00202, Gibson County (Tenn.

Crim. App., Jackson, Aug. 11, 1993), perm. to appeal denied, (Tenn. 1993), slip

op. at 3-7. Based on the above evidence, the Defendant was convicted of

aggravated rape and incest. He was sentenced to an effective term of fifteen

years imprisonment. His convictions were affirmed on direct appeal to this Court.

Hart, C.C.A. No. 02C01-9209-CC-00202, slip op. at 16.



      On May 21, 1993, the victim and her m other, the Defendant’s wife, gave

sworn statements to defense counsel. The victim’s sworn statement was, in

essence, a recantation of her trial testimony. She stated that the Defendant had


                                        -5-
never raped or sexually abused her. Instead, she claimed that her stepbrother

(apparently her stepmother’s son) had sexually abused her. She stated that she

had blamed the Defendant for the abuse to avoid getting in trouble with her father

and stepmother. She also admitted that she had been jealous of the attention

paid to the Defendant’s son, her stepbrother.



      As a result of these sworn statements, the Defendant filed a petition for a

writ of error coram nobis on November 24, 1993. In the petition, he contended

that the victim had recanted her trial testimony.        He attached the sworn

statements of the victim and her mother to the petition and requested that the trial

court grant him a new trial based upon the newly discovered evidence. The trial

court conducted an evidentiary hearing on the petition on April 8, 1994.



      At that hearing, the victim stated that she “was telling a story” when she

testified at trial that the Defendant had sexually abused her. She gave several

reasons why she had testified untruthfully at trial. Among those reasons were

that she had had dreams about someone sexually abusing her, that her friends

were saying that they had had sex and she wanted to be a part of the group, that

she now understood that testifying untruthfully at trial was wrong, and that her

stepmother told her to blame the Defendant when the victim informed her that

she had been sexually abused by her stepbrother (the stepm other’s son).



      On cross-examination, the victim admitted that although she had been

hospitalized for several weeks after the trial, she had never informed any of her

counselors that she had lied while testifying. In addition, the victim related that

after giving the sworn statement to defense counsel in May of 1993, she talked

                                        -6-
to a Department of Human Services (DHS) official about having testified

untruthfully at trial. The DHS official doubted her recantation, and the victim

became upset and refused to talk with the official a second time. Furthermore,

the victim denied ever having been sexually abused by anyone, including the

Defendant, in spite of the medical evidence indicating signs of sexual abuse or

activity.



       The victim’s mother, Lisa Hart, also testified at the hearing conducted on

April 8, 1994. She stated that she and the Defendant were still married but that

she had filed for divorce. After the Defendant’s trial in 1992, the victim lived with

her father and stepm other for a period of time. In February of 1993, shortly

before giving the sworn statement to defense counsel, the victim moved back in

with Hart.   Hart testified that after a few weeks the victim began to initiate

conversations about the Defendant’s trial. Eventually the victim informed Hart

that she had lied at trial, and they then informed defense counsel. Hart denied

pressuring the victim to recant. On cross-examination, Hart admitted that she

doubted the victim’s claim of sexual abuse because “there was not enough facts

for [her] to accept it.”



       After considering the evidence presented at the hearing, the trial court

denied the petition. In written findings of fact, the trial judge found that the

victim’s recantation was due to pressure from her mother, Lisa Hart. Hart, 911

S.W.2d at 373. On appeal, however, a panel of this Court concluded that the trial

judge had considered inadmissible evidence and evidence outside the record in

arriving at his decision to deny the petition. Id. at 373-74. Accordingly, the trial




                                         -7-
court’s judgment was reversed and the case remanded for a new hearing. Id. at

378.



       A new hearing was conducted by a different trial judge on July 8, 1996.

The victim’s mother, Lisa Hart, testified at this hearing. Her testimony was

substantially the sam e as her testimony from the April, 1994 hearing. She related

that the victim had been living with her father during and immediately after the

Defendant’s trial but moved back in with her shortly before giving the sworn

statement of recantation to defense counsel in May of 1993. Hart testified that

she did not pressure the victim to recant.



       Vonda Borden, a former employee of the West Tennessee Behavioral

Center, testified that she counseled the victim in the spring of 1994 before the

first coram nobis hearing. Borden stated that the victim reported that she had lied

at trial because she was jealous of her baby brother and the Defendant, her

stepfather, had disciplined her and had broken promises to her. The victim

stated further that she had had dreams in which the Defendant sexually abused

her and she reported them as reality because her friends were claiming that they

had had sex and she wanted to be like them. Borden also confirmed that the

victim was anxious and fearful of testifying in court at the first coram nobis

hearing. On cross-examination, Borden admitted that it was not unusual for child

victims to recant in the manner in which occurred in the present case.



       The Defendant offered no further live testimony after Borden. Instead, the

Defendant offered a portion of the original trial testimony and a portion of the

testimony from the first coram nobis hearing as exhibits. He relied on the victim’s

                                        -8-
sworn statement and testimony from the first coram nobis hearing as evidence

of her recantation.



      The State called Dale Jackson, the father of the victim, as a witness at the

second coram nobis hearing. Jackson testified that the victim had lived with him

immediately after the Defendant’s trial. In the spring of 1993, the victim returned

to live with her mother. Jackson stated that the victim had never indicated to him

any desire to change her trial testimony.



      The State then called the victim to testify. She was fourteen years old at

the time of the hearing. In essence, the victim recanted her recantation. She

stated that she had been telling the truth when she testified at trial that the

Defendant had sexually abused her. She reiterated that the sexual abuse had

taken place. She testified that she recanted at the first coram nobis hearing

because she felt sorry for her mother and her stepbrother in that they were living

without the Defendant. She testified further that neither her mother nor the

Defendant pressured her to recant.



      On July 18, 1996, after reviewing all of the evidence, the trial court filed a

memorandum opinion denying the petition. Citing Ross v. State, 130 Tenn. 387,

170 S.W. 1026, 1028 (1914), the trial court noted that recanted testimony is

generally looked upon with distrust rather than favor. The trial court specifically

found the victim’s testimony at the second coram nobis hearing to be credible.

Moreover, the trial court also found that the victim’s explanation for testifying

falsely at the first coram nobis hearing was reasonable and believable.




                                        -9-
Accordingly, the trial court denied the petition. In this appeal, the Defendant

argues that the trial court erred in denying his petition.



      A writ of error coram nobis is available to a defendant in a criminal

prosecution. Tenn. Code Ann. § 40-26-105. The remedy is limited, however, 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.”

Tenn. Code Ann. § 40-26-105. This includes post-conviction proceedings. See

Rowe v. State, 498 S.W.2d 322, 325 (Tenn. 1973). A writ of error coram nobis

also lies “for subsequently or newly discovered evidence relating to matters which

were litigated at the trial” when the trial court “determines that such evidence may

have resulted in a different judgment, had it been presented at the trial.” Tenn.

Code Ann. § 40-26-105; Cole v. State, 589 S.W.2d 941 (Tenn. Crim. App. 1979).

The purpose of this remedy “is to bring to the attention of the [trial] court some

fact unknown to the court, which if known would have resulted in a different

judgment.” State ex rel. Carlson v. State, 219 Tenn. 80, 85-86, 407 S.W .2d 165,

167 (1966).



      A petition for the writ of error coram nobis in a criminal case, which seeks

relief on the ground of subsequently or newly discovered evidence, should recite:

(a) the grounds and the nature of the newly discovered evidence, Crawford v.

W illiams, 31 Tenn. (1 Swan) 341, 342 (1851), (b) why the admissibility of the

newly discovered evidence may have resulted in a different judgment if the

evidence had been admitted at the previous trial, Tenn. Code Ann. § 40-26-105,

(c) that the petitioner “was without fault in failing to present” the newly discovered

                                         -10-
evidence at the appropriate time, see State ex rel. Carlson, 219 Tenn. at 87, 407

S.W.2d at 168, Johnson v. Russell, 218 Tenn. 443, 448, 404 S.W.2d 471, 473

(1966), and (d) the relief sought by the petitioner.       Tenn. R. Crim. P. 47.

Affidavits should be filed in support of the petition or at some point in time prior

to the hearing. See Ross v. State, 130 Tenn. 387, 390-94, 170 S.W . 1026, 1027-

28 (1914); State v. Todd, 631 S.W.2d 464, 466-67 (Tenn. Crim. App. 1981).



      As a general rule, subsequently or newly discovered evidence which is

simply cum ulative to other evidence in the record, see Scruggs v. State, 218

Tenn. 477, 479-80, 404 S.W .2d 485, 486 (1966), or serves no other purpose than

to contradict or impeach the evidence adduced during the course of the trial, see

Hawkins v. State, 220 Tenn. 383, 392, 417 S.W.2d 774, 778 (1967), will not

justify the granting of the petition for the writ of error coram nobis when the

evidence, if introduced, would not have resulted in a different judgment.



      The decision to grant or to deny a petition for the writ of error coram nobis

on the ground of subsequently or newly discovered evidence rests within the

sound discretion of the trial court. Tenn. Code Ann. § 40-26-105; Teague v.

State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988), cert. denied, 493 U.S. 874,

110 S.Ct. 210, 107 L.Ed.2d 163 (1989), overruled on other grounds by Owens v.

State, 908 S.W .2d 923, 928 (Tenn. 1995); Jones v. State, 519 S.W .2d 398, 400

(Tenn. Crim. App. 1974). Before the petitioner is entitled to relief, it must be

established, and the trial court must find, that a defendant “was without fault in

failing to present certain evidence at the proper time” and that the subsequently

or newly discovered evidence relating to matters litigated at trial “may have




                                        -11-
resulted in a different judgment had it been presented at the trial.” Tenn. Code

Ann. § 40-26-105.



      In exercising its discretion, the trial court must determine the credibility of

the witnesses who testify in support of the petition for the writ of error coram

nobis. If the trial court does not believe that the witnesses presented by the

petitioner are credible, the court should deny the application. Conversely, if the

witnesses are credible, and the evidence presented would result in a different

judgment, the trial court should grant the relief sought.



      To determine whether to grant a new trial in cases involving recanted

testimony, the test is as follows: “(1) Is the trial judge reasonably well satisfied

that the testimony given by a m aterial witness was false and that the new

testimony is true; (2) was the defendant reasonably diligent in discovering the

new evidence, or surprised by false testimony, or unable to know of the falsity

until after the trial; and (3) might the jury have reached a different conclusion had

the truth been told.” State v. Phillip Lloyd Herndon, C.C.A. No. 03C01-9303-CR-

00098, Knox County (Tenn. Crim. App., Knoxville, May 11, 1994). We point out

that, as the trial court noted in this case, recanted testimony is looked upon with

distrust rather than favor due to the great temptation to strengthen the weak

points of the case discovered during the trial by perjury or subornation of perjury.

See Ross, 130 Tenn. at 394, 170 S.W. at 1028.



      Applying the above precepts to the case sub judice, we can only conclude

that the trial court did not err in denying the petition. After reviewing all of the

evidence and evaluating the credibility of the witnesses, the trial court specifically

                                         -12-
found that the victim’s testimony from the July 1996 coram nobis hearing,

recanting her earlier recantation, was credible. Obviously the trial court was not

reasonably well-satisfied that the testimony given by the victim at the Defendant’s

trial was false nor that her testimony at the first coram nobis hearing was true.

See Herndon, C.C.A. No. 03C01-9303-CR-00098, slip op. at 4. The trial judge

was in the best position to make this type of credibility determination. From our

review of the record, we do not believe that the trial judge abused his discretion

in accrediting the victim’s testimony from the July 1996 coram nobis hearing.

Accordingly, the Defendant’s issue on appeal lacks merit.



      For the reasons set forth in the discussion above, we conclude that the trial

court did not err in dismissing the Defendant’s petition for a writ of error coram

nobis. W e therefore affirm the judgment of the trial court.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE



___________________________________
JOE G. RILEY, JUDGE



                                       -13-
