        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 4, 2015


               PATRICK TRAWICK v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                  No. 0208616, 0208617   James M. Lammey, Judge




              No. W2014-01454-CCA-R3-ECN - Filed August 12, 2015
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Petitioner, Patrick Trawick, was convicted of first degree murder and two counts of
aggravated assault and was sentenced to life in prison without the possibility of parole
plus six years. After denial of his direct appeal and his petition for post-conviction relief,
he filed the instant petition for writ of error coram nobis alleging that an eyewitness’s
recanting of his identification of petitioner constituted newly discovered evidence that
entitled him to relief. The coram nobis court dismissed the petition, and this appeal
follows. Upon review, we affirm the judgment of the coram nobis court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Robert Brooks, Memphis, Tennessee, for the Appellant, Patrick Trawick.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Jessica Banti, Assistant District Attorney
General, for the Appellee, State of Tennessee.
                                       OPINION

                             I. Facts and Procedural History

                                         A. Trial

       In 2008, petitioner was convicted by a Shelby County jury of one count of
premeditated first degree murder and two counts of aggravated assault related to the
death of his estranged girlfriend and the aggravated assault of her companion, Darryl
Turner. State v. Patrick Trawick, No. W2008-02675-CCA-R3-CD, 2010 WL 2349188,
at *1 (Tenn. Crim. App. June 9, 2010), perm. app. denied (Tenn. Nov. 18, 2010). The
jury sentenced him to life without the possibility of parole for the premeditated first
degree murder count, and the trial court imposed concurrent six-year sentences for the
two aggravated assault counts to be served consecutively to the sentence of life without
the possibility of parole. Id. His convictions were affirmed by this court on direct
appeal, and our supreme court denied discretionary review. Id.

        At petitioner’s trial, Darryl Turner testified that he and Tujauna Smith, the
deceased victim and petitioner’s ex-girlfriend, began dating four to six weeks before her
death on September 30, 2002. Id. He had met petitioner in prison in 1999, and they
became reacquainted upon Mr. Turner’s release. Id. Petitioner was unhappy with Mr.
Turner’s relationship with the victim; Mr. Turner offered to stop seeing the victim, but
petitioner assured him it was unnecessary. Id. On the day preceding the victim’s death,
petitioner visited the home of Mr. Turner’s mother and confronted the victim about her
failure to bring their thirteen-month-old daughter to see him. Id.

       On September 30, 2002, the victim picked up Mr. Turner at his mother’s house to
go out to dinner. Id. Soon thereafter, petitioner pulled up next to the victim’s car to try
to talk to her. Id. Although Mr. Turner urged the victim to find out what petitioner
wanted, the victim told Mr. Turner that it appeared that petitioner was reaching for a gun
so she sped away. Id. The victim drove away “frantically,” and when she stopped,
petitioner shot at them. Id. Mr. Turner instructed the victim to drive toward the North
Precinct of the Memphis Police Department. Id. The victim sped toward the precinct,
and petitioner continued his pursuit. Id. The victim hit a curb, at which time Mr. Turner
jumped out of the car and ran through the woods toward the precinct. Id. Mr. Turner
saw the victim drive past him with petitioner still following her. Id.

       About ten minutes after Mr. Turner’s arrival at the precinct, an officer informed
him that there had been a shooting at a nearby gas station and that the victim had been
killed. Id. at *2. After giving a statement, Mr. Turner identified petitioner from a
photographic line-up as the man who had chased and shot at them. Id. Several months
later, while both men were in jail, petitioner informed Mr. Turner that he had never
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intended to harm Mr. Turner but that his problem had been with the victim.                Id.
Petitioner also asked Mr. Turner not to testify against him. Id.

       Raymond E. Williamson testified that he was an assistant manager at the gas
station where the victim was killed. Id. He recalled seeing two cars pull up outside the
store and observed a man and a woman in an argument. Id. He said that the victim
appeared frightened and moved her hands in a defensive gesture and that petitioner
appeared “agitated.” Id. The victim entered the store, and petitioner followed her with a
gun in his hand. Id. At the front of the store, petitioner grabbed the victim and “pistol-
whipped” her. Id. Petitioner instructed the victim to “get the f*** out of the store.” Id.
Mr. Williamson pushed the panic button to alert the police when the confrontation
became physical. Id. The victim broke away from the petitioner and ran to the back of
the store, but petitioner caught up to her and shot her six or seven times. Id. Petitioner
then ran from the store. Id. Mr. Williamson supplied the police with the surveillance
tapes from the store, and he identified petitioner at trial as the shooter. Id.

        Other witnesses, including Rodney Middlebrook, Torrance Holmes, and Rodarius
Ellis observed the arrival of the victim’s and petitioner’s vehicles, their argument, and the
assault and shooting inside the gas station. Memphis Police Department Officers Patrick
Taylor and Steven Ford, Sergeant Connie Justice, Technician Francis Donald Carpenter,
and Tennessee Bureau of Investigation firearms technician Alex Brodhag testified about
their investigations and findings. Id. at *3-4. Dr. O’Brian Cleary Smith, Shelby County
Medical Examiner, performed the autopsy on the victim and determined that she had
suffered four gunshot wounds. Id. at *4. One bullet entered at the top of her head and
traveled at an angle to rest in her brain, which would have resulted in instant death. Id.
A second bullet entered near her right shoulder, severed her spinal cord and came to rest
in her chest cavity, which would have proven fatal eventually. Id. A third bullet entered
her right shoulder and exited her back, while a fourth bullet entered the front of her right
leg and exited the back of her leg. Id. Dr. Smith was unable to determine the order in
which the wounds were inflicted.

                                  B. Procedural History

       Petitioner filed a timely petition for post-conviction relief alleging ineffective
assistance of counsel. The post-conviction court denied relief, and this court affirmed the
post-conviction court’s judgment on direct appeal. Patrick Trawick v. State, No. W2011-
02670-CCA-R3-PC, 2012 WL 3792095, at *1 (Tenn. Crim. App. Aug. 31, 2012).

       Subsequently, petitioner, through counsel, filed a petition for writ of error coram
nobis alleging newly discovered evidence in the form of an affidavit from Darryl Turner,


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a.k.a. Darryl Coleman,1 purporting to equivocate his eyewitness identification of
petitioner as the driver of the vehicle and the individual who had fired a weapon at the
victim and him. In the affidavit, Mr. Turner alleged that he was approached by
investigators for the State seeking his cooperation in building the case against petitioner
but that he declined because he “really wasn’t sure if [petitioner] was the gunman in this
case.” He alleged that he was later approached by his attorney with information that if he
identified petitioner as the shooter, the prosecutor would negotiate a more lenient plea on
Mr. Turner’s outstanding drug charges. As such, Mr. Turner identified petitioner
although he claimed he “really could not see and identify the driver of” the small white
car that engaged them in a high-speed chase.

       The State argued that the petition failed to allege how the newly discovered
evidence may have resulted in a different outcome because: (1) other witnesses identified
petitioner as the shooter; (2) surveillance tapes captured petitioner’s actions; and (3) Mr.
Turner identified petitioner as the shooter immediately following the event. Thus,
according to the State, Mr. Turner’s equivocation of his identification of petitioner does
not equate to petitioner’s actual innocence.

                               C. Error Coram Nobis Hearing

       At the beginning of the coram nobis hearing, petitioner’s counsel informed the
court that Mr. Turner requested an additional thirty days to “consider his position.” The
court replied, “[W]e’ve continued this several times, plus I don’t know what there is to
consider.” The State interjected, “Aggravated perjury charges.” The court answered, “I
understand that, and I’m sure he’s had plenty of time to think about that.” The coram
nobis court continued, “I don’t care if he needs thirty days. He should have had plenty of
time to think about this . . . . [W]e’ve put it off enough . . . . If he wants to testify that he
lied under oath or some other thing like that, that’s fine with me.” After consulting with
an assistant district public defender, Mr. Turner exercised his Fifth Amendment right
against self-incrimination and declined to testify. Upon consideration of the State’s
motion to dismiss, the court stated:

       I think it’s well taken. I will state, also, that after having reviewed the
       Court of Criminal Appeals decision, refreshing my memory of the facts of
       this case, I don’t believe had he testified . . . it would have made any
       difference. I think the proof was overwhelming . . . . [T]here was a video . .
       . . I think it was in color, and I thought it had pretty good clarity, and it was
       severely troubling. So, I don’t think it would have made any difference had

       1
           The affidavit is executed under the name “Darryl Coleman.” However, to minimize
confusion and maintain consistency with the facts from the direct appeal, we will continue to
refer to him as Darryl Turner.
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       he even testified at all during the trial. It just wouldn’t make any difference
       – his change of testimony had he elected to testify that he wished to change
       his testimony.

Accordingly, the coram nobis court dismissed the petition, and this appeal follows.

                                        II. Analysis

       On appeal, petitioner argues that the coram nobis court and the State “threatened
and intimidated [Mr. Turner] by declaring their belief that [he] was lying and [by]
threatening prosecution.” Petitioner claims that the court and prosecutor “drove the
witness from the stand, thus ensuring the failure of . . . petitioner’s meritorious claims.”
The State responds that the coram nobis court properly dismissed the petition. We agree
with the State.

       In support of his position, petitioner cites case law in which trial courts and
prosecutors have levied the threat of prosecution for perjury over a witness during trial by
repeatedly and plainly accusing witnesses of lying under oath. See, e.g., State v. Schafer,
973 S.W.2d 269, 276 (Tenn. Crim. App. 1997) (finding plain error when the trial court
accused the witness no less than five times of lying under oath and trying to help the
defendant). However, a court should warn a witness of potential perjury charges when
there is good cause to do so based upon the inconsistencies of various statements. See
State v. Eaves, 959 S.W.2d 601, 605 (Tenn. Crim. App. 1997); see also Schafer, 973
S.W.2d at 276 (stating that the trial court did not err by instructing the witness about the
significance of his oath to testify truthfully).

        As noted above, Mr. Turner did not testify at the coram nobis hearing. However,
we cannot conclude that the prosecutor or the coram nobis court is to blame for his
decision. The transcript from the coram nobis hearing makes clear that the matter had
been continued more than once and that Mr. Turner’s indecision had been mounting for
some time. He requested additional time to consider “his position.” When the trial court
asked what remained to be considered, the State answered, “Aggravated perjury charges.”
The only other comment to that end by the coram nobis court was when the court stated
that Mr. Turner would be allowed to testify that he lied under oath if he wished. That
statement was not a threat or intimidation of Mr. Turner; it was, in fact, a realistic
summation of what Mr. Turner would be doing if he chose to testify in accordance with
his affidavit. His testimony at trial was very clear that petitioner was the driver and the
shooter who engaged him and the victim in a high-speed car chase, and his affidavit
equivocated that position. After consultation with an attorney, Mr. Turner reconsidered
his position and declined to testify. We find no error attributable to the coram nobis court
or the prosecutor in Mr. Turner’s failure to testify.

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       Even if Mr. Turner had chosen to testify at the coram nobis hearing, the court
properly denied the petition. 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). Our legislature has limited the relief available through
the writ:

               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 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 judgment, had it been presented at
       the trial.

Tenn. Code Ann. § 40-26-105(b). To demonstrate he is entitled to coram nobis relief,
petitioner must clear several procedural hurdles.

       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. 2004) (citing
State v. Hart, 911 S.W.2d 371, 374-75 (Tenn. Crim. App. 1995)). The record reflects
that petitioner complied with the initial requirements in his petition for relief.

        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. When a petition is
filed outside of the statute of limitations, the coram nobis court must determine whether
due process requires tolling. Harris, 301 S.W.3d at 145. However, the State did not raise
this issue in its brief. The State has the burden of raising untimeliness as an affirmative

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defense. Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2007).            Thus, we will next
determine whether petitioner has alleged a basis for relief.

       In resolving this issue, the coram nobis court noted that Mr. Turner was not the
only eyewitness to the crime. There were several other eyewitnesses to the chase and
appellant’s shooting of the victim, including an assistant store manager and three other
individuals. In addition, a video surveillance tape depicting the murder was shown to the
jury. Mr. Turner identified petitioner from a line-up immediately following the murder.
The coram nobis court correctly observed that had Mr. Turner testified at trial
consistently with the “newly discovered evidence,” he would have been impeached by his
prior inconsistent statement in which he identified the petitioner as the shooter. Even if
Mr. Turner had testified as he indicated in his affidavit, it is clear that error coram nobis
relief would not have been proper. Accordingly, the coram nobis court did not abuse its
discretion in dismissing the petition.

                                     CONCLUSION

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


                                                  _________________________________
                                                  ROGER A. PAGE, JUDGE




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