        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 22, 2011

                 RODNEY CORLEY v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                       No. 84-S-1103     Seth Norman, Judge




                   No. M2010-01758-CCA-R3-CO - Filed July 7, 2011


The Petitioner, Rodney Corley, was convicted in 1985 of first degree murder, armed robbery,
and employing a firearm in the commission of a felony, and he was sentenced to life plus five
years. In 2010, the Petitioner filed a petition for a writ of error coram nobis, in which he
alleged the existence of newly discovered evidence, and the trial court dismissed the petition
without a hearing. On appeal, the Petitioner contends that the coram nobis court erred when
it denied his petition without a hearing. After a thorough review of the record and relevant
authorities, we affirm the coram nobis court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

Rodney Corley, Pro se, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Dan Hamm, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION
                                           I. Facts
                                       A. Background

       This case arises from the Petitioner and a co-defendant participating in a fatal shooting
during the commission of an armed robbery. In the opinion on the Petitioner’s direct appeal,
this Court stated that the Petitioner’s fingerprints were found at the scene of the crime, that
he gave a statement implicating himself in the crimes, and that he testified about his
complicity in the crimes. See State v. Rodney Corley, No. 86-68-III, 1986 WL 12475, at *1-2
(Tenn. Crim. App., at Nashville, Nov. 7, 1986). His convictions and sentence were affirmed
on direct appeal. Id. Similarly, a petition for post-conviction relief filed by the petitioner
was denied and its denial was affirmed on appeal. State v. Rodney Corley, No. 01C01-9608-
CR-00336, 1997 WL 535315 (Tenn. Crim. App., at Nashville, Sept. 2, 1997), no Tenn. R.
App. P. 11 application filed.

        On March 25, 2010, the Petitioner filed a petition for a writ of error coram nobis
relief. In his petition, the Petitioner alleged the existence of newly discovered evidence in
the form of his co-defendant’s admission at the co-defendant’s January 2010 parole hearing
that the co-defendant, rather than the Petitioner, fatally shot the victim during the robbery in
this case. The Petitioner asserted that, had the jury heard the statement of his co-defendant
it “more likely than not” would not have convicted him of first degree murder. He claimed
that he was not at fault for failing to present his co-defendant’s admission at trial because he
objected to the exclusion of a detective’s testimony that, in the detective’s opinion, co-
defendant Carpenter was the trigger-man in this case. The petition includes an affidavit filed
by co-defendant Carpenter in which he attests to having shot the victim in this case and to
having admitted this role at his parole hearing on January 14, 2010.

        Without holding an evidentiary hearing, the coram nobis court issued an order denying
the Petitioner’s petition for coram nobis relief. In its order, the coram nobis court concluded
that the evidence the Petitioner attempted to present at trial was already in existence at the
time of trial. The coram nobis court based its conclusion on its finding that at trial the
Petitioner failed to present the testimony of an informant who would have testified that the
co-defendant was the “trigger-man.” The coram nobis court stated that the Petitioner
withdrew his request to call the informant as a witness “because of potentially damaging
testimony [the informant] might offer regarding the Petitioner’s brutal assault of the
[v]ictim.” The coram nobis court concluded that, because the Petitioner did not present the
informant’s testimony at trial, he was at fault for not introducing the substance of the
evidence he now alleged as “newly discovered” and was not eligible for coram nobis relief.

       The coram nobis court further reasoned that, even were the evidence “newly
discovered,” the evidence would not have changed the jury’s verdict because a defendant
need only be present and cooperate in the commission of a felony resulting in a killing in
order to be convicted of felony murder. The coram nobis court denied the Petitioner’s
request for coram nobis relief. It is from this judgment that the Petitioner now appeals.

                                         II. Analysis

       On appeal, the Petitioner contends the coram nobis court erred when it: (1) refused

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to grant him an evidentiary hearing; and (2) concluded that his co-defendant’s admission did
not entitle him to coram nobis relief. The State responds that the coram nobis court properly
refused an evidentiary hearing because the Petitioner’s petition failed to set forth the
threshold requirements for coram nobis relief. It argues that, because the Petitioner already
testified at his trial that his co-defendant was the trigger-man in this case, the co-defendant’s
admission does not constitute “newly discovered evidence.” The State also contends that the
coram nobis court’s denial of relief was proper because co-defendant Carpenter’s admission
did not constitute newly discovered evidence and because the admission would not have
changed the jury’s verdict.

      A writ of error coram nobis is available to a defendant in a criminal prosecution.
T.C.A. § 40-26-105(a) (2009). 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)).

       To establish that he is entitled to a new trial, the Petitioner must show: (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. Id. at 375.

               The grounds for seeking a petition for writ of error coram nobis are not

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       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”). Similar to
habeas corpus hearings, coram nobis evidentiary hearings are not mandated by statute in
every case.” Richard Hale Austin v. State, No. W2005-02591-CCA-R3-CO, 2006 WL
3626332, *6 (Tenn. Crim. App., Jackson, Dec. 13, 2006), no Tenn. R. App. P. 11 application
filed. A petition of either type “‘may be dismissed without a hearing, and without the
appointment of counsel for a hearing’” if the petition does not allege facts showing that the
petitioner is entitled to relief. Id. (quoting State ex rel. Edmondson v. Henderson, 421
S.W.2d 635, 636 (Tenn.1967)).

       First, we address the Petitioner’s claim that the coram nobis court improperly
dismissed his petition without first conducting an evidentiary hearing. Were the Petitioner
to have claimed the existence of material that qualified as “newly discovered evidence” that
would have changed the outcome of his trial, he would have had an evidentiary hearing in
order to establish that the evidence existed as he claimed. See Austin, 2006 WL 3626332,
at *6. As we explain below, however, the allegations contained within the petition in this
case fall short of establishing that the evidence was either newly discovered or that it would
have changed the outcome of his trial. Because the Petitioner failed to allege facts showing
he was entitled to relief, the coram nobis court properly declined to provide the Petitioner
with an evidentiary hearing. See id.

        The Petitioner claims that his co-defendant’s admission that he was the trigger-man
in this case constitutes “newly discovered evidence” within the meaning of the Tennessee
Code provisions regarding coram nobis relief. The State argues Carpenter’s admission is not
“newly discovered” in the sense that evidence of Carpenter being the trigger-man was
presented at trial in the form of the Petitioner’s testimony that Carpenter was the trigger-man.
In our view, the Petitioner’s trial testimony and Carpenter’s admission are distinct items of
evidence that the Petitioner did not shoot the victim. The fact that each could be introduced
to prove the same proposition, however, does not render them the same evidence for
purposes of determining whether evidence is “newly discovered.” Carpenter’s admission is
a separate piece of evidence of which the Petitioner came into possession only after his trial.
In this sense, Carpenter’s admission is an item of newly discovered evidence. However, for
reasons explained below, the admission, though newly discovered, does not require a new

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trial in this case.

       Carpenter’s admission cannot serve as a basis for coram nobis relief because it would
not have affected the outcome of his trial. The Petitioner and co-defendant Carpenter were
convicted of first degree murder for their participation in the felony robbery that resulted in
the victim’s death. In this case, neither the Petitioner nor his co-defendant specifically
admitted to being the shooter, but each issued confessions admitting to his participation in
the commission of the robbery during which the victim was fatally shot.

       As the coram nobis court discussed, the mere “presence, companionship, and conduct
before and after the offense” are circumstances that may support a defendant’s conviction
for felony murder. State v. McBee, 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982).
“When one enters into a scheme with another to commit one of the felonies enumerated [in
the felony murder statute] and death ensues, both defendants are responsible for the death,
regardless of who actually committed the murder and whether the killing was specifically
contemplated by the other.” State v. Brown, 756 S.W.2d 700, 704 (Tenn. Crim. App. 1988).
Given that a conviction for felony murder requires only participation in the felony and not
a direct role in the killing of the victim, a defendant need not be the “trigger-man” in order
to be convicted of felony murder. Id.

        Based on the evidence introduced at the Petitioner’s trial, including his own admission
that he participated in the robbery during which the victim was killed, the jury concluded that
the Petitioner was sufficiently involved in the robbery and found him guilty of first degree
felony murder. Given the strength of the convicting evidence and the inconsequentiality of
co-defendant Carpenter’s admission to being the trigger-man in the killing, even had the jury
heard Carpenter’s admission, overwhelming evidence remained in the record to establish the
Petitioner’s culpability for felony murder beyond a reasonable doubt based upon his admitted
participation in the armed robbery leading to the victim’s death. See Brown, 756 S.W.2d at
704. Thus, the co-defendant’s admission would not have resulted in a different judgment if
the evidence had been admitted at the Petitioner’s trial. See Hart, 911 S.W.2d at 374-75. As
such, the coram nobis court did not abuse its discretion when it denied the Petitioner’s claim
for coram nobis relief. See Harris, 301 S.W.3d at 144. The Petitioner is not entitled to relief
on this issue.

                                       III. Conclusion

       After a thorough review of the record and the applicable law, we conclude the
Petitioner is not entitled to relief pursuant to a writ of error coram nobis. As such, we affirm
the coram nobis court’s judgment.



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      _________________________________
      ROBERT W. WEDEMEYER, JUDGE




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