            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

              STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS

                               Criminal Court for Davidson County
                                          No. 96-B-866



                      No. M2003-00380-CCA-R3-CO - Filed June 25, 2004



The Petitioner, Christopher A. Davis, appeals the trial court's denial of his petition for writ of error
coram nobis. The State has filed a motion requesting that this Court affirm the trial court's denial
of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner failed to file
his petition within the applicable statute of limitations, failed to assert a claim that is cognizable in
a petition for writ of error coram nobis, and the statute of limitations should not be tolled.
Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed Pursuant to Rule 20, Rules
                  of the Court of Criminal Appeals

DAVID H. WELLES , J., delivered the opinion of the court, in which JERRY L. SMITH and,
ROBERT W. WEDEMEYER, JJ., joined.

Hershell Koger, for the appellant, Christopher A. Davis.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham Marney, Assistant Attorney
General, for the appellee, State of Tennessee.

                                   MEMORANDUM OPINION

        Petitioner filed a petition for a writ of error coram nobis in the trial court on November 5,
2002. Consistent with the Supreme Court’s ruling in State v. Mixon, 983 S.W.2d 661, 672 (Tenn.
1999), petitioner filed a motion for stay of the appellate proceedings in this court on the same day
that he filed his petition for writ of error coram nobis in the trial court. This court denied the stay
after determining that the petition for writ of error coram nobis was time barred, the statute of
limitations should not be tolled, and the evidence presented was not newly discovered evidence as
required for the grant of a writ of error coram nobis. Petitioner proceeded with the petition for writ
of error coram nobis in the trial court. The trial court subsequently denied the petition, and appellant
appealed. The State has filed a motion to affirm the trial court pursuant to Rule 20 of the Rules of
the Court of Criminal Appeals.
       A brief summary of the facts was set forth in this court’s order denying the motion to stay
the appellate proceedings as follows:

                  In the trial court, appellant was found guilty of two counts of first
                 degree murder, two counts of felony murder, two counts of especially
                 aggravated robbery, and two counts of especially aggravated
                 kidnapping. The felony murder counts were merged into the first
                 degree murder counts. Appellant was ultimately sentenced to death
                 on both counts of first degree murder. Additionally, he was sentenced
                 to two concurrent twenty-five year sentences for the especially
                 aggravated robbery counts and two concurrent twenty-five year
                 sentences for the especially aggravated kidnapping counts.


                         Pretrial, appellant filed a motion to disqualify the Davidson
                 County District Attorney General’s Office. Appellant’s argument for
                 disqualification centered around the fact that the trial judge’s former
                 law clerk, who had been involved in at least one ex parte proceeding,
                 had joined the Davidson County District Attorney General’s office as
                 a prosecutor. The trial judge ruled that while his former law clerk
                 was prohibited from any participation in the case, the office of the
                 Davidson County District Attorney General was not disqualified from
                 the case. As a result, the Davidson County District Attorney
                 General’s office continued to prosecute the case.

                          Appellant asserts in his . . . petition for writ of error coram
                 nobis that he saw one of the State’s “significant” witnesses, enter a
                 car with the judge’s former law clerk during his trial. Appellant
                 further alleges that this fact is newly discovered evidence that the
                 judge’s former law clerk’s actions were contrary to the orders of the
                 trial court; that the former law clerk’s actions created another conflict
                 of interest in the Davidson County District Attorney General’s office;
                 that the actions of the former law clerk created another appearance of
                 impropriety; and that said actions should be considered with respect
                 to the appellant’s pretrial motion to disqualify.

State v. Christopher A. Davis, No. M2001-01866-CCA-R3-DD (Order, Nov. 12, 2002).

       In this appeal appellant again acknowledges that he witnessed the contact between the
witness and the disqualified attorney during the trial1, but he contends that he did not realize the


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           Attorney Phillip Wehby has denied Petitioner’s allegations by way of affidavit.

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significance of the contact until after he read the brief his attorney forwarded him during his direct
appeal. After reading the brief in his direct appeal, appellant forwarded a letter to his attorney on
March 16, 2002, asserting for the first time that he saw Antonio Cartwright enter a car with Phillip
Wehby during his trial. After receiving petitioner’s letter, counsel for petitioner filed a petition for
writ of error coram nobis in the trial court on November 5, 2002.

        The petition for writ of error coram nobis is time barred. A petition for writ of error coram
nobis must be filed within one year of the time judgment becomes final in the trial court. Mixon,
983 S.W.2d at 671. As this court determined in its previous order, the trial court’s judgment became
final July 12, 2001, when petitioner’s motion for new trial was denied. Although petitioner knew
the information during trial, he did not raise it. Petitioner asserts that he did not have the
opportunity to present this evidence at trial, but such argument must fail. Petitioner, himself,
allegedly witnessed the contact between the witness and Mr. Wehby during trial. He could have
advised his counsel of this information, and counsel then could have raised the issue at trial. Instead,
petitioner waited almost two years from the time of trial to notify his counsel of this alleged contact
between the witness and Mr. Wehby. Counsel asserts that the timeliness of his petition should be
determined from March 16, 2002, the date on which petitioner advised him of the alleged contact
between Mr. Wehby and the state’s witness, but such argument is not supported by law. Petitioner
waited until November 5, 2002, more than one year after the judgment became final, to bring this
information to the trial court’s attention. The petition is time barred.

         In addition to the petition being time barred, the petition also fails to assert subsequent or
newly discovered evidence, as required for a writ of error coram nobis. It is the law in Tennessee
that a writ of error coram nobis should be granted when “subsequently or newly discovered evidence
. . . may have resulted in a different judgment, had it been presented at trial.” Tenn. Code Ann. § 40-
26-105 (1997 Repl.). As this court has previously held, the writ is “an exceedingly narrow remedy
appropriate only when an issue was not addressed or could not have been addressed at trial because
it was somehow hidden or unknown and would have prevented the rendition of the judgment had
it been known to the court.” Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App.
1998)(emphasis in original). By appellant’s own admission, he witnessed the alleged contact
between the State’s witness and the disqualified law clerk during the trial. As a result, the evidence
submitted in support of appellant’s petition does not constitute subsequently or newly discovered
evidence. Petitioner asserts in his brief to this court that “the instant coram nobis issue is an issue
that could not have been litigated at the time of the trial, given the timing of the 3/16/02 letter.”
While it is true that counsel did not have the benefit of having the letter or the information contained
therein during the trial or when preparing the motion for new trial, appellant had knowledge of the
information contained in the letter at the time of trial. Accordingly, the evidence presented in the
petition for writ of error coram nobis does not constitute newly discovered evidence. Furthermore,
as this court determined in the order denying the motion for stay, the statute of limitations should
not be tolled pursuant to Workman v. State, 41 S.W.3d 100 (Tenn. 2001).

       Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.


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____________________________________
DAVID H. WELLES, JUDGE




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