        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 23, 2014

          MARK L. PECK v. STATE OF TENNESSEE and
 DISTRICT ATTORNEY GENERAL H. GREELEY WELLS, JR., ex officio

                  Appeal from the Criminal Court for Sullivan County
                         No. 23069    Robert E. Cupp, Judge


                 No. E2013-01760-CCA-R3-ECN - Filed July 28, 2014


The petitioner, Mark L. Peck, appeals the denial of his petition for writ of error coram nobis,
arguing that newly discovered evidence of the unreliability of an FBI agent’s firearms
testimony entitles him to a new trial. Following our review, we affirm the denial of the
petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
R OGER A. P AGE, JJ., joined.

Mark L. Peck, Pro Se (on appeal), and Andrew N. Hall, Wartburg, Tennessee (at hearing),
for the appellant, Mark L. Peck.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and H. Greeley Wells, Jr.,
Retired District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       In April 1989, the petitioner was convicted by a Sullivan County jury of the first
degree premeditated murder of his girlfriend’s estranged husband, Jimmy Strickler, and
sentenced to life imprisonment. See State v. Mark Peck, No. 958, 1991 WL 154534, at *1
(Tenn. Crim. App. Aug. 15, 1991), perm. app. denied (Tenn. Jan. 27, 1992). His conviction
was affirmed by this court on direct appeal, and our supreme court denied his application for
permission to appeal. Id. Our direct appeal opinion provides the following summary of the
evidence introduced at his trial:

              The state presented its case primarily through circumstantial evidence.
       The [petitioner], who dated the victim’s estranged wife, Donna Strickler,
       shared a residence with Robin Johnson and Jim Clark. He had arranged for
       Johnson to awaken him at about 10:00 P.M., February 5, 1988. Shortly
       thereafter, the [petitioner] left the house, driving either his black pickup truck
       or John Talbott’s gray van. The van contained Clark’s twelve gauge shotgun.
       The [petitioner] often drove that vehicle and had regular access to the weapon.

               Earlier that evening, the victim had driven his sister, Debbie Fluharty,
       to an Italian restaurant where they joined other family members for dinner.
       The victim kept a .45 caliber pistol in his car. At about 8:00 P.M., he went
       into the Ramada Inn to meet his wife, Donna, and others for drinks. Three
       hours later, the victim left the motel and went home. At about the same time,
       Donna Strickler departed and went to the Tri-City Lounge.

               The state’s theory, based upon the circumstances established at trial, is
       that the [petitioner], armed with Clark’s shotgun, entered the victim’s house
       by the garage door at about 11:00 P.M; gained entry by the use of a duplicate
       key he had acquired from Sears earlier that day; and then waited in the
       bedroom. The victim apparently entered by a different door and began to walk
       the hallway leading to his bedroom. He was shot twice at close range. The
       perpetrator took the victim’s pistol, a bullet-proof vest he found in the closet,
       and went out the same door he had entered. Thereafter, sometime between
       11:30 P.M. and midnight, the [petitioner] met Donna Strickler and Mary
       Stallard at the Tri-City Lounge. He remained at the lounge until approximately
       2:00 A.M. when he returned to his residence.

              The next morning, the victim’s body was discovered by a relative. The
       door to the garage was open. The house key that opened that door was not
       among the keys that the victim had with him, nor was it found in the house.
       The doctor who did the autopsy established the victim’s time of death at
       shortly after 11:00 P.M.

               On the morning following the shooting, the [petitioner] took his pickup
       truck to Lori Woodall’s house. He gave Woodall a pistol holster containing
       unspent shotgun shells and asked her to hold them for him. He hid the
       victim’s .45 caliber pistol in a bedroom closet at Woodall’s house. A few days
       later the [petitioner] asked another friend, Victoria Toney, to get the pistol and

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       clip. He did not mention that to Woodall. Thereafter, he directed Robin
       Johnson to take the keys to his truck to Woodall. The [petitioner] said he was
       going away for a couple of days. The state proved that Woodall, Toney, and
       Michele Akers, acting individually or in concert, disposed of the [petitioner’s]
       truck, the shotgun shells, and the victim’s gun. They took the [petitioner’s]
       truck to Virginia and hid the victim’s pistol in a pot-bellied stove; they threw
       the shotgun shells into a field near Woodall’s house. All of these items were
       recovered by authorities. The victim’s bullet-proof vest was found in the
       [petitioner’s] shared residence.

Id. at *2-3.

       One of the issues the petitioner raised on direct appeal was whether the testimony of
an FBI agent who was an expert in firearms identification should have been excluded
because he did not provide a probability percentage that the shotgun pellets found in the field
behind Woodall’s house were consistent with those found in the victim’s body. Our direct
appeal opinion contains our analysis of that issue:

               The [petitioner] claims that the expert testimony of FBI Agent Peele
       should have been excluded because he failed to give a probability percentage
       that the shotgun “pellets came from the same shell or box of shells.” The
       [petitioner] argues that the agent was testifying in terms of mere possibilities.
       The same objection is raised in regard to the testimony of Agent Crum.

              Agent Peele, an expert in the area of firearms identification, explained
       how he analyzed the pellets and gave the basis for his opinion that the pellets
       found in the victim and those taken from the shells the [petitioner] disposed of
       were typical of pellets coming from the same shell or box. Agent Crum gave
       probative opinion evidence as to the composition of shot shells.

               The admissibility of expert testimony is largely a matter of discretion
       for the trial judge. Baggett v. State, 220 Tenn. 592, 598, 421 S.W.2d 629, 632
       (1967). Specific margins of error are not necessarily required. We find no
       abuse of discretion here.

Id. at *10.

       On January 10, 1995, the petitioner filed a petition for writ of habeas corpus, which
the court construed as a petition for post-conviction relief. Following the appointment of
counsel and an evidentiary hearing, the post-conviction court denied the petition. This court

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affirmed the judgment of the post-conviction court, and our supreme court denied the
petitioner’s application for permission to appeal. See Mark L. Peck v. State, No. 03C01-
9611-CR-00402, 1998 WL 148292, at *1 (Tenn. Crim. App. Mar. 31, 1998), perm. app.
denied (Tenn. Feb. 16, 1999).

        On May 5, 2009, the petitioner filed a petition for writ of error coram nobis, alleging
newly discovered evidence that would have resulted in a different outcome in his trial had
it been available at the time of trial. Specifically, he cited a May 8, 2008 letter, with
accompanying attachments, that he had received from the district attorney. In the letter, the
district attorney informed him that he had received a letter from the FBI dated April 24, 2008,
stating that the testimony of FBI Agent Peele, which “stated or implied that evidentiary
specimen(s) could be associated to a single box of ammunition, was unreliable and exceeded
the limits of the science.”

        On April 27, 2012, the trial court held a hearing on the petition at which counsel made
arguments and introduced as exhibits a number of different documents, including the
transcript of the trial, the letters exchanged between the district attorney and the FBI, the
letter from the district attorney to the petitioner, and the FBI laboratory report on the
ballistics testing performed for the trial. The May 30, 2008 letter from the Acting Director
of the FBI Laboratory to the Sullivan County District Attorney General states in pertinent
part:

              This letter follows up on our previous communication regarding bullet
       lead analysis conducted by the FBI Laboratory. Thank you for providing the
       information requested from the above-referenced case.

              After reviewing the testimony of the FBI’s examiner, it is the opinion
       of the Federal Bureau of Investigation Laboratory that the examiner stated or
       implied that the evidentiary specimen(s) could be associated to a single box of
       ammunition. This type of testimony exceeds the limits of the science and
       cannot be supported by the FBI.

        On May 28, 2013, the trial court entered an order denying the petition on the grounds
that the challenged testimony of Agent Peele was merely cumulative to other evidence and
would not have resulted in a different judgment had it been excluded at trial. On July 31,
2013, the petitioner filed an untimely notice of appeal to this court. On August 12, 2013, this
court entered an order waiving the timely notice of appeal requirement in the interest of
justice.




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                                        ANALYSIS

      A writ of error coram nobis is an extraordinary remedy by which the court may
provide relief from a judgment under only narrow and limited circumstances. State v.
Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated section 40-26-105
provides this remedy to criminal defendants:

       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. The issue shall be tried by the court without the intervention of a
       jury, and if the decision be in favor of the petitioner, the judgment complained
       of shall be set aside and the defendant shall be granted a new trial in that
       cause.

Tenn. Code Ann. § 40-26-105(b), (c) (2012).

        The decision to grant or deny a petition for writ of error coram nobis based on newly
discovered evidence lies within the sound discretion of the trial court. Tenn. Code Ann. §
40-26-105; State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995). We review this
issue, therefore, under an abuse of discretion standard.

        We find no abuse of discretion in the trial court’s ruling. Agent Peele’s confusing and
arcane testimony, which comprises only a short portion of the voluminous trial transcript,
was, essentially, that the composition analysis of samples of the shotgun pellets recovered
from the victim, the field, and the shotgun showed that the shells were “typical” of having
originated from the same box, or, if not from the same box, from a box in which the shells
were of the same type and manufacture and “packaged on or about the same date.” During
an effective cross-examination, defense counsel was successful in showing the gaps in Agent
Peele’s knowledge of the Winchester manufacturing process. Defense counsel was also
successful in getting Agent Peele to concede that he was unable to say whether it was “more
likely than not” that the pellets from the victim’s body and the pellets from the shotgun and
the field came from the same box of shotgun shells. We agree with the trial court that there
was ample circumstantial evidence of the petitioner’s guilt, completely apart from Agent
Peele’s testimony, and, thus, no reasonable basis for concluding that the result of the
proceeding might have been different were it not for Agent Peele’s testimony.




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                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court denying the petition for writ of error coram nobis.




                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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