         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   July 20, 2010 Session

                 STATE OF TENNESSEE v. GEROME J. SMITH

              Direct Appeal from the Criminal Court for Sumner County
                         No. 330-1998    C.L. Rogers, Judge




                No. M2009-01144-CCA-R3-CD - Filed August 31, 2010


The Petitioner, Gerome J. Smith, was convicted of first degree murder and sentenced to life
imprisonment. In May 2008, the Petitioner filed a petition for a writ of error coram nobis,
in which he alleged the existence of newly discovered evidence. The trial court dismissed
the petition based upon the one-year statute of limitations. On appeal, the Petitioner contends
the dismissal was an unconstitutional denial of his right to due process. After a thorough
review of the record and applicable law, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, delivered the opinion of the Court, in which JERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

Lance B. Mayes, Nashville, Tennessee; for the Appellant, Gerome J. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Clark B. Thornton, Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General, for the Appellee, State of Tennessee.

                                          OPINION
                                       I. Background

      In our opinion on the Petitioner’s previous appeal, this Court summarized the
underlying facts as follows:

       During the early morning hours of February 23, 1995, officers of the Gallatin
       Police Department were conducting an investigation of three shooting
       incidents over a two-hour period. During the investigation, police found the
       deceased victim, Chuckie Vaughn, who had been shot to death. He had six
       wounds. A loaded shotgun and several unfired shotgun shells lay near the
       victim. There was no evidence that the shotgun had been fired but .22 caliber
       shell casings were discovered within 30 feet of the victim. There were no
       signs of a struggle. Sherita Bennett told police that she had seen the
       [P]etitioner in the area of South Blakemore and Church Streets during the very
       early morning hours. About a week later, a .22 caliber rifle tied to a rock was
       found in Town Creek.

              The [P]etitioner immediately became a suspect after the shooting.
       Ultimately, he admitted to killing the victim and an audiotape of his statement
       to police was played for the jury at the trial.

               The [P]etitioner stated to police that he shot the victim from about 50
       yards away with a .22 caliber rifle and was not sure whether he had struck him
       or not. The [P]etitioner claimed that at the time of the shooting, the victim was
       firing shots towards another residence. The [P]etitioner admitted that he was
       hidden just before he fired the shots. He claimed self-defense, explaining that
       if he had run, the victim would have shot him in the back. In a separate,
       unrecorded statement, the [P]etitioner told Detective Hilgadiack that he and
       the victim had been involved in a shootout earlier in the evening.

Gerome Smith v. State, No. M1999-02511-CCA-R3-PC, 2000 WL 1278374, at *1-2 (Tenn.
Crim. App., at Nashville, Aug. 31, 2000), perm. app. denied (Tenn. Mar. 5, 2001).

         On May 30, 2008, the Petitioner filed a petition for a writ of error coram nobis. The
petition alleged the existence of newly discovered evidence “that was never presented to the
[trial] courts by his Attorney.” This evidence consisted of police reports, which the Petitioner
maintains showed police violated his right against self-incrimination and, thus, rendered his
confession inadmissible. The Petitioner contends that, without this confession, the State
would not have had sufficient evidence to convict him. The Petitioner attached the police
report, which contained the police officer’s summary of the Petitioner’s confession, to his
petition and highlighted the following portion of the report:

       I ask[ed] [the Petitioner] to tell me the truth[,] what happened and he stated he
       would after he talked with the attorney. I told [the Petitioner] that was his
       right[] but that an attorney would tell him not to make any statements.

      The State responded to the petition for a writ of error coram nobis with a motion to
dismiss, asserting that the petition was filed outside the statute of limitations. The trial court

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held a hearing on April 20, 2009. At this hearing the State argued that the petition was filed
well outside the one-year statute of limitations, and, because no due process reason for tolling
the statute existed, it should be dismissed. The Petitioner, who was appointed counsel after
he filed his original coram nobis petition, requested the trial court to grant him a continuance
in order for his counsel to amend his petition. After the hearing, the trial court issued an
order granting the State’s motion and dismissing the petition because it was filed outside the
statute of limitations.

                                         II. Analysis

      A writ of error coram nobis is available to a defendant in a criminal prosecution.
T.C.A. § 40-26-105(a) (2006). The decision to grant or to deny a petition for the writ of error
coram nobis on its merits rests within the sound discretion of the trial court. State v. Ricky
Harris, 301 S.W.3d 141, 144 (Tenn. 2010) (hereinafter “Harris II”) (citing State v. Vasques,
221 S.W.3d 514, 527-28 (Tenn. 2007)). Tennessee Code Annotated section 40-26-105(b)
provides, in pertinent part:

       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.

        A writ of error coram nobis is an “extraordinary procedural remedy,” filling only a
“slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999);
State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002). As previously noted by our
Court, “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
v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting State ex rel. Carlson v.
State, 407 S.W.2d 165, 167 (Tenn. 1996)).

        A petition for a writ of error coram nobis should provide: (a) the grounds and the
nature of the newly discovered evidence; (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; (c) that the Petitioner was without fault in failing to present the newly
discovered evidence at the appropriate time; and (d) the relief sought. Hart, 911 S.W.2d at
374-75. Affidavits should be filed in support of the petition or at some point in time prior
to the hearing. Id. at 375.



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        The grounds for seeking a petition for writ of error coram nobis are not limited
        to specific categories, as are the grounds for reopening a post-conviction
        petition. Coram nobis claims may be based upon any “newly discovered
        evidence relating to matters litigated at the trial” so long as the petitioner also
        establishes that the petitioner was “without fault” in failing to present the
        evidence at the proper time. Coram nobis claims therefore are singularly
        fact-intensive. Unlike motions to reopen, coram nobis claims are not easily
        resolved on the face of the petition and often require a hearing.

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003) (hereinafter “Harris I”).

        The statute of limitations for seeking a writ of error coram nobis is one year from the
date the judgment becomes final in the trial court. T.C.A. § 27-7-103; Harris II, 301 S.W.3d
at 144; Mixon, 983 S.W.2d at 671. The statute of limitations is computed from the date the
judgment of the trial court becomes final, either thirty days after its entry in the trial court if
no post-trial motions are filed, or upon entry of an order disposing of a timely filed, post-trial
motion. Harris II, 301 S.W.3d at 144 (citing Mixon, 983 S.W.2d at 670). Whether a claim
is barred by an applicable statute of limitations is a question of law, which we review de
novo. Id. (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)). We
construe the coram nobis statute of limitations consistently with the longstanding rule that
persons seeking relief under the writ must exercise due diligence in presenting the claim. Id.
(citing Mixon, 983 S.W.2d at 670). The State bears the burden of raising the bar of the
statute of limitations as an affirmative defense. Id. (citing Harris I, 102 S.W.3d at 593).

        The Petitioner was convicted by a jury and sentenced to life imprisonment on April
3, 1996. According to the Petitioner’s petition, his motion for a new trial was dismissed on
May 29, 1996. Thus, the judgment became final on June 28, 1996, and the Petitioner had
until June 28, 1997, to file his petition within the statute of limitations. The Petitioner filed
the petition for a writ of error coram nobis on May 30, 2008. The parties do not dispute that
the statute of limitations, if not tolled, expired many years before the filing of the instant
petition.

        The State properly raised the statute of limitations in the trial court. The trial court
held a hearing on the State’s motion to dismiss, and, after hearing from both parties, the trial
court issued an order dismissing the Petitioner’s petition for writ of error coram nobis:

        [T]he Court finds that the motion should be granted and that . . . the Writ of
        Error Coram Nobis was dismissed based upon the statute of limitations as filed
        at the request of the State of Tennessee’s District Attorney’s Office. The
        essence of their motion was that the Writ of Error Coram Nobis was not

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        properly filed. During this hearing, counsel for [the Petitioner] asked for leave
        to amend his Writ and in addition, opposed the motion for dismissal citing
        certain case law. After the Court, having heard this[,] it granted the State’s
        request for dismissal based on the statute of limitations. Further, the Court did
        not actually hear [the Petitioner’s] Writ of Error Coram Nobis as it was
        dismissed pursuant to the motion.


        The Petitioner contends that the trial court improperly dismissed the petition without
an evidentiary hearing. We first note that this Court has repeatedly held that, in general, trial
courts are not required to hold evidentiary hearings when the petition for a writ of error coram
nobis fails to meet the necessary prerequisites to file for such relief. See State v. Lingerfelt,
687 S.W.2d 294, 295 (Tenn. Crim. App. 1984); Cole v. State, 589 S.W.2d 941, 943 (Tenn.
Crim. App. 1979); see also State v. Johnny L. McGowan, No. M2007-02681-CCA-R3-C0,
2008 WL 4170273, at *3 (Tenn. Crim. App. Aug. 5, 2008), perm. app. denied (Tenn. Oct. 27,
2008). Since the Petitioner has not asserted his claim within the time allowed by the statute
of limitations, we must now consider whether he has demonstrated that he is entitled to a
tolling of the statute of limitations.

        In Workman, our Supreme Court held that due process considerations may require
tolling of the statute of limitations for a writ of error coram nobis. 41 S.W.3d at 101. These
due process considerations are based upon the principle that “before a state may terminate a
claim for failure to comply with procedural requirements such as statutes of limitations, due
process requires that potential litigants be provided an opportunity for the presentation of
claims at a meaningful time and in a meaningful manner.” Burford v. State, 845 S.W.2d 204,
208 (Tenn. 1992). Our Supreme Court has instructed that in determining whether due process
requires the tolling, a court must weigh a petitioner’s interest in presenting a late-arising
ground for relief against the State’s interest in preventing stale and groundless claims. Harris
II, 301 S.W.3d at 145. In balancing these interests, a court should utilize a three-step analysis:

        (1) determine when the limitations period would normally have begun to run;

        (2) determine whether the ground for relief actually arose after the limitations
        period would normally have commenced; and

        (3) if the grounds are “later-arising,” determine if, under the facts of the case,
        a strict application of the limitations period would effectively deny the
        petitioner a reasonable opportunity to present the claim.

Id. (quoting Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)).

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        In the present case, we have already determined that the limitations period would have
begun to run on June 28, 1996, and expired on June 28, 1997, almost eleven years before the
Petitioner filed his 2008 petition for writ of error coram nobis. Next, in determining whether
the Petitioner’s grounds for relief arose after the limitations period normally would have
commenced, we examine the narrative the Petitioner relies upon in his petition. This narrative
contains the police officer’s summary of the Petitioner’s confession as well as his
conversation with the Petitioner that led to the confession. This dialogue between the police
officer and the Petitioner was necessarily known to the Petitioner at the time it occurred as he
was a participant in the dialogue. Therefore, Petitioner’s ground for relief is not “later-
arising” and does not require the tolling of the statute of limitations. Because the claims are
not “later-arising,” we do not reach the third step in the analysis, namely whether the delay
was reasonable. We conclude that the Petitioner failed to demonstrate that he was entitled to
a tolling of the statute of limitations. See Workman, 41 S.W.3d at 101. Thus, we conclude
that the trial court properly dismissed the Petitioner’s untimely petition for a writ of error
coram nobis relief without holding an evidentiary hearing. See Lingerfelt, 687 S.W.2d at 295.
The Petitioner is not entitled to relief.

                                        III. Conclusion

        Based upon the foregoing and the record as a whole, we affirm the judgment of the
trial court.

                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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