        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 19, 2015 Session

          SHAUN ALEXANDER HODGE v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Knox County
                      No. 100532    Mary Beth Leibowitz, Judge


                 No. E2014-01005-CCA-R3-ECN-FILED-JULY 8, 2015


A Knox County Criminal Court Jury convicted the petitioner, Shaun Alexander Hodge, of
first degree premeditated murder, and the trial court imposed a life sentence. Subsequently,
the petitioner filed a petition for a writ of error coram nobis, arguing that he was entitled to
a new trial based upon the recantation of a State witness. After an evidentiary hearing, the
coram nobis court denied the petition, and the petitioner appeals. Based upon our review of
the oral arguments, the record, and the parties’ briefs, 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.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS,
J R., and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Abby Satterfield and Sam Short, University of Tennessee Legal Clinic Student Attorneys,
and Stephen Ross Johnson, Supervising Attorney, Knoxville, Tennessee, for the appellant,
Shaun Alexander Hodge.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                  I. Factual Background

       This case relates to the shooting death of Benny Boling in April 1998. In February
2001, the petitioner was tried for the first degree premeditated murder of the victim. The
facts presented at trial previously have been summarized as follows:
[T]he forensic evidence established that the victim was slain at
a local housing project on April 26, 1998. The victim died after
being shot five times by a nine-millimeter semiautomatic
handgun. While the victim was initially shot from the rear as he
occupied the cab of his pickup truck, he managed to drive
himself a short distance away before running off of the road and
ultimately fled on foot approximately seventy-five feet up a hill
before collapsing near a day care center. There, the victim’s
body was discovered, with the victim still clutching a $100 bill
in his hand. Police recovered a total of seventeen spent shell
cartridges from the scene. During the autopsy, the victim’s
blood tested positive for cocaine.

        The murder weapon was never recovered, and none of
the forensic evidence definitively connected the petitioner to the
victim’s shooting. The prosecution’s case hinged on the
testimony of four eyewitnesses. Debra Turner, who lived in the
community, testified that on the day of the shooting, she was at
home when she heard someone outside threatening to kill
someone if he did not buy drugs. She looked out her back door
and saw the petitioner talking to the victim, who was in his
truck. After she heard the victim refuse to buy the drugs, she
heard a gunshot and saw the victim’s truck moving away. The
petitioner followed the truck, firing into it. When the truck
struck a tree, the victim exited the truck and ran. The petitioner
followed him, still firing at the victim. When the victim
collapsed, the petitioner stood over him and shot him. Patricia
Hamilton, who was visiting Debra Turner at the time of the
shooting, testified to essentially the same version of events.

        A third witness, Lorraine Young, who lived nearby,
testified that she knew the petitioner prior to the shooting. The
day prior to the shooting, she saw the victim drive into the
housing projects and purchase drugs. On the day of the
shooting, Ms. Young was lying in bed when she heard a
commotion and looked out her bedroom window. She saw the
petitioner and three men standing near the victim’s truck having
an argument about drugs and money. She heard the victim
refuse to buy drugs. She left the window for a moment and then
returned to see the victim crash his truck and flee away on foot

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while the petitioner shot him.

       The final eyewitness, Tim Bolden, testified that he had
previously sold the victim crack cocaine and did so on several
occasions the day of the shooting. At the time of the shooting,
Mr. Bolden was gambling with some other men when he saw the
victim drive up, looking to purchase additional drugs. However,
Mr. Bolden testified that he continued to gamble and that the
petitioner approached the victim’s truck. Mr. Bolden testified
that he heard loud voices, saw the victim leaving in his truck,
and saw the petitioner firing at the victim. After the victim’s
truck struck a curb, the victim left the truck and fled on foot.
The petitioner continued to shoot the victim and, afterward,
came back down the hill while the men who were gambling fled
the scene.

        The defense’s theory of the case was that the
prosecution’s four eyewitness identifications were erroneous
and that one of those eyewitnesses, Mr. Tim Bolden, may have
been the actual killer. The defense presented the testimony of
six eyewitnesses in support of this theory. Latroy Askew, a
friend of the petitioner, testified that the two rode around all
night on Saturday night and that the petitioner went home before
the shootings occurred on Sunday. Ms. Glenda Ward, who lived
in a complex near the crime scene, testified that she looked out
her window one day and saw one man chasing another man up
a hill before shooting him. She testified that the shooter was not
the petitioner. Reginald Woodruff, a childhood friend of the
petitioner, testified that the petitioner came to his house the
morning of the shooting and stayed with him, his son, and
another man while they were playing video games. Pierre
Jarrett, who was playing basketball nearby at the time of the
shooting, testified that he heard shots, saw a truck move up a hill
before coming to a stop, and saw a man who was not the
petitioner standing nearby with a gun. Paul Chandler, a retired
army officer who was collecting cans in the area when the
shooting occurred, testified that he saw the murder and that the
petitioner was not the shooter. Malik Hardin, the petitioner’s
cousin, testified that he was with the petitioner at the time of the
shooting and that Mr. Tim Bolden had, in fact, shot the victim

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               while the petitioner was gambling with others nearby. In
               addition to these eyewitnesses, the defense presented the
               testimony of two witnesses who testified that Debra Turner had
               made statements to them to the effect that she intended to falsely
               implicate the petitioner in the victim’s murder in order to
               retaliate against the petitioner for beating and hospitalizing her
               son.

Shaun Alexander Hodge v. State, No. E2009-02508-CCA-R3-PC, 2011 WL 3793503, at *1-
2 (Tenn. Crim. App. at Knoxville, Aug. 26, 2011).

        The jury convicted the petitioner as charged, and the trial court sentenced him to life.
On direct appeal of his conviction to this court, the petitioner raised six issues, including that
the evidence was insufficient to support the conviction and that he was prejudiced by the
testimony of alleged mental patient Lorraine Young. State v. Shawn Hodge, No.
E2002-01794-CCA-R3-CD, 2003 WL 22888892, at *1 (Tenn. Crim. App. at Knoxville, Dec.
8, 2003). This court found the evidence sufficient. Id. at *11. As to Young, this court
stated, “The record in this case contains no reference to, mention of, or corresponding
objection about Lorraine Young’s mental status. There being no factual support for this
issue, it is rejected and needs no further discussion.” Id. at *14.

        After our supreme court denied the petitioner’s application for permission to appeal,
he filed a timely pro se petition for post-conviction relief. The post-conviction court
appointed counsel, who subpoenaed Young’s medical records from Lakeshore Mental Health
Institute and received “three full volumes of materials pertaining to Ms. Young’s mental
treatment at that facility.” Hodge, No. E2009-02508-CCA-R3-PC, 2011 WL 3793503, at *3.
Post-conviction counsel then filed an amended petition, claiming that trial counsel was
ineffective for failing to obtain the medical records, that the petitioner’s due process rights
had been violated by the State’s failure to turn over the allegedly exculpatory records to the
defense, and that the records constituted newly discovered evidence of the petitioner’s
innocence. Id. This court denied the petition for post-conviction relief, stating as follows:

               There appears to be no reason in the record for trial counsel to
               have suspected that Ms. Young suffered from mental health
               problems. Although the petitioner had known Ms. Young for a
               period of many years, it does not appear from the record that the
               petitioner raised the issue of Ms. Young’s mental health issues
               with his trial counsel. Without something in the record to
               indicate that his trial counsel was placed on notice that Ms.
               Young suffered from any significant mental health problems, we

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              do not believe that trial counsel fell below an objective standard
              of reasonableness in failing to investigate this issue further. Trial
              counsel’s performance here has not been shown to be deficient.

Id. at *5.

        On November 5, 2012, the petitioner filed a petition for a writ of error coram nobis,
alleging newly discovered evidence in that Patricia Hamilton recanted her testimony in April
2012. The petitioner acknowledged that he filed the petition outside the one-year statute of
limitations but argued that, because Hamilton did not recant her testimony until 2012, due
process required tolling the statute of limitations. In support of the petition, the petitioner
attached Hamilton’s sworn affidavit in which she stated that on the day of the shooting, she
heard gunshots and that Debra Turner said the shooter was the petitioner. Hamilton stated
that she went to the window, that she saw a person running toward the victim, that the person
was wearing a dark hoodie, and that “[w]ith regard to my statements at trial, my statements
were based on [Turner’s] account of the facts. I basically agreed with her.”

       At the coram nobis hearing, Hamilton testified for the petitioner that at the time of the
shooting, she was visiting Debra Turner, her first cousin, at Turner’s apartment. Hamilton
said that Turner “went out the back door” and that Hamilton heard gunshots. When Turner
came back inside, Hamilton asked who was shooting, and Turner answered, “DeShaun.”
Hamilton said that she did not see the shooting but saw someone running and that the person
was wearing a black hoodie. She said that she did not see the petitioner “under the hoodie”
and that “I was just going on what Debra said when she entered the house.” She
acknowledged that she “reached out” to counsel and signed the affidavit.

       On cross-examination, Hamilton testified that she changed her story about the
petitioner being the shooter after another first cousin, Marvin Turner, contacted her. She said
that Mr. Turner “practically raised” the petitioner but denied that Mr. Turner influenced her
to change her testimony. She said that “I had already talked about it with Debra before I ever
talked to my other cousin, Marvin.” She stated that “the real situation” involved the
petitioner and one of Debra Turner’s sons prior to the shooting and that “I’m, you know, just
here to really tell the truth like it really happened.”

        Hamilton testified that in 1998, she was in a car accident and spent time in a trauma
unit in Mobile, Alabama. She said that “I forget a lot of things now” but that any memory
problems were due to her “gettin’ old,” not the car accident. She acknowledged that at the
petitioner’s trial, she stated that she saw the victim get out of the truck and run up the hill.
She also acknowledged testifying, “‘I saw Little Shaun; he was right behind [the victim] just,
you know, shootin’ him.” She said that she was not lying at trial but that she was telling the

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truth “based on what Debra said.” She said she did not remember testifying at trial that the
shooter had the hood on his head as he chased the victim up the hill or that the shooter took
off the hood after the shooting. The following exchange then occurred:

              Q      Okay. Well, do you remember seeing that?

              A      No, I don’t remember seeing the hoodie off the head.

              ....

              Q      I’m trying to figure out what you testified falsely about.
                     Is this part of it?

              A      No, I just--I don’t remember.

              Q      Well, are you telling the Court then that it’s possible that
                     you did see, uh, the person come back down the hill and
                     take the hood off his--his head? Is it possible that that--
                     what you said there is true?

              A      It’s possible.

              Q      Okay.

              A      But I can’t remember.

              Q      And then you were asked, “Who was it? When you
                     could see his face, who was it?” And your response was,
                     “Well, I know him as little Shaun.” Is that true or did
                     you commit perjury when you said that?

              A      I--I don’t remember. I see it. I--but I don’t remember.

              Q      Okay.

              A      I don’t remember saying that, you know.

              Q      Okay. Well --

              A      It’s there so I said it, but I--I’ve forgotten a lot of stuff.

                                              -6-
                       I don’t remember.

               Q       Okay. Well, uh, so you’re not sure if when you said that
                       you were telling the truth or not?

               A       I remember but I--I--I forgot.

The State read Hamilton’s trial testimony to her, line by line, and she acknowledged that
most of it was true.

        On redirect examination, Hamilton testified that she did not think the petitioner was
the man wearing the hoodie and that her identification of him was “based on his name bein’
called.” Hamilton said that she and Debra Turner continued to have a close relationship, that
they still talked about the shooting, and that “I still just want her to tell the truth, but it’s still
based on her sons.” Hamilton stated, “I saw the shooting; I just don’t know who was doing
the shooting.”

        On recross-examination, Hamilton testified that she had heard a lot about the case
over the years. She acknowledged that she thought the petitioner had spent enough time in
prison.

        At the conclusion of Hamilton’s testimony, counsel for the petitioner argued that her
recanted testimony constituted newly discovered evidence and that, in considering whether
her testimony warranted coram nobis relief, the court should consider the entire record,
including the evidence discovered by post-conviction counsel regarding Young’s mental
illness. The State argued that the petition for a writ of error coram nobis was time-barred and
that, regardless, Hamilton’s testimony did not constitute newly discovered evidence.

        In a written order, the coram nobis court first addressed the timeliness of the petition
and concluded that although the petitioner filed his petition well-outside the one-year statute
of limitations, the statute should be tolled because he filed his petition just seven months after
Hamilton signed the affidavit recanting her testimony. The court then addressed whether
coram nobis relief was warranted based upon Hamilton’s recantation. The trial court noted
that Hamilton’s evidentiary hearing testimony was inconsistent with her trial testimony. The
court said that it did not think Hamilton “was purposefully trying to be inconsistent” but
concluded that “her recollection of events has faded and/or changed over time and has been
affected by talking with others about the events in question and her sympathies toward
everyone involved.” The court said that it was “not reasonably well satisfied that the prior
testimony was false” and that it “need not reach the issue of whether the ‘new evidence’ may
have resulted in a different judgment had it been presented at trial.” The court denied the

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petition.

                                        II. Analysis

       The petitioner contends that he is entitled to a new trial based upon Hamilton’s
recanted testimony and that the coram nois court was required to evaluate the newly
discovered evidence in light of the entire record, which also consisted of Young’s psychiatric
records. The State concedes that pursuant to Burford v. State, 845 S.W.2d 204, 208 (Tenn.
1992), the coram nobis court properly tolled the statute of limitations. However, the State
argues that the court did not abuse its discretion when it denied coram nobis relief. We agree
with the State.

      The writ of error coram nobis is codified in Tennessee Code Annotated section 40-26-
105, which provides as follows:

              There is hereby made available to convicted defendants in
              criminal cases a proceeding in the nature of a writ of error
              coram nobis, to be governed by the same rules and procedure
              applicable to the writ of error coram nobis in civil cases, except
              insofar as inconsistent herewith. . . . 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.

Generally, a decision whether to grant a writ of error coram nobis rests within the sound
discretion of the trial court. See State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App.
1995).

        The writ of error coram nobis is a post-conviction mechanism that has a long history
in the common law and the State of Tennessee. See, e.g., State v. Vasques, 221 S.W.3d 514,
524-26 (Tenn. 2007). The writ “is an extraordinary procedural remedy . . . [that] fills only
a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999).

       Our supreme court has outlined the procedure that a court considering a petition for
a writ of error coram nobis is to follow:

              [T]he trial judge must first consider the newly discovered

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              evidence and be “reasonably well satisfied” with its veracity. If
              the defendant is “without fault” in the sense that the exercise of
              reasonable diligence would not have led to a timely discovery of
              the new information, the trial judge must then consider both the
              evidence at trial and that offered at the coram nobis proceeding
              in order to determine whether the new evidence may have led to
              a different result.

Vasques, 221 S.W.3d at 527. In determining whether the new information may have led to
a different result, the question before the court is “‘whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceeding might
have been different.’”            Id. (quoting State v. Roberto Vasques, No.
M2004-00166-CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn. Crim. App. at Nashville, Oct.
7, 2005)).

       The petitioner’s petition for coram nobis relief is based on a claim of recanted
testimony. Recanted testimony may be considered newly discovered evidence under certain
circumstances. See Mixon, 983 S.W.2d at 672. This court has concluded that a trial court
should only grant a writ of error coram nobis upon the basis of newly discovered recanted
testimony if:

              (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 the
              trial; and (3) the jury might have reached a different conclusion
              had the truth been told.

State v. Ratliff, 71 S.W.3d 291, 298 (Tenn. Crim. App. 2001) (citing Mixon, 983 S.W.2d at
673 n.17).

       Here, the coram nobis court was not reasonably well satisfied that Hamilton’s trial
testimony was false and that her new testimony was true. The court said that it did not think
Hamilton was being intentionally dishonest at the coram nobis hearing but concluded that
“her recollection of events has faded and/or changed over time and has been affected by
talking with others about the events in question and her sympathies toward everyone
involved.” At the hearing, Hamilton acknowledged that she had trouble remembering the
shooting; that she had talked with others, namely Debra and Marvin Turner, about the event;
and that she was sympathetic to the petitioner’s being in prison. Moreover, when the State

                                              -9-
cross-examined her about her trial testimony, she acknowledged that she could not remember
much of her testimony and that it was possible she saw the shooter take the hood off his head
as she had testified. We note that in her affidavit and during her direct testimony at the
hearing, Hamilton stated that she did not see the shooting. However, on redirect
examination, she stated, “I saw the shooting; I just don’t know who was doing the shooting.”
The coram nobis court was able to see and hear Hamilton’s testimony at the trial and the
evidentiary hearing and was in the best position to judge her credibility. “[A]ppellate courts
do not reassess credibility determinations.” Dellinger v State, 279 S.W.3d 282, 292 (Tenn.
2009). In our view, the coram nobis court based its conclusion on a reasonable assessment
of the evidence, and the petitioner is not entitled to relief.

        As to the petitioner’s claim that the coram nobis court was required to consider
Young’s mental health records, consideration of such additional evidence only comes into
play when the coram nobis court is considering whether the jury might have reached a
different conclusion had the truth been told. See Johnson v. State, 370 S.W.3d 694, 701
(Tenn. Crim. App. 2011). Given that the coram nobis court was not reasonably well satisfied
that Hamilton’s prior testimony was false, it did not need to consider, in light of the entire
record, whether Hamilton’s new testimony might have caused the jury to reach a different
result. In any event, we note that neither Young nor a mental health expert testified at the
post-conviction or coram nobis hearings as to how her mental health affected her trial
testimony and that the petitioner has not explained how Young’s condition affected her
testimony. Therefore, nothing indicates that such evidence would have affected the coram
nobis court’s decision whether to grant relief.

                                      III. Conclusion

      Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the coram nobis court.


                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE




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