                                                                                         07/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                   Assigned on Briefs May 16, 2018

             BRETT A. PATTERSON v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                          No. 031496 Jill Ayers, Judge


                           No. M2017-00978-CCA-R3-ECN


The Petitioner, Brett A. Patterson, appeals from the Montgomery County Circuit Court’s
summary dismissal of his petition for a writ of error coram nobis from his 1988
convictions for two counts of first degree murder, first degree burglary, and aggravated
rape and his effective sentence of life imprisonment plus forty years. The Petitioner
contends that the court erred by denying relief. We affirm the judgment of the coram
nobis court relative to the video recording allegations, but we remand for further
consideration of the Petitioner’s motion to continue relative to the laboratory bench notes
allegations.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                     Part; Reversed in Part; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Brett A. Patterson (on appeal), Henning, Tennessee, Pro Se, and Wayne Clemmons (at
hearing), Clarksville, Tennessee, for the appellant, Brett A. Patterson.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; John W. Carney, District Attorney General; and Arthur Bieber,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       This case relates to a 1987 home invasion, during which the Petitioner and his
codefendant, Ronnie Cauthern, entered the home of Patrick and Rosemary Smith for the
purpose of stealing a large sum of money. Mr. and Mrs. Smith were strangled to death
during the incident, and Mrs. Smith was sexually assaulted. See State v. Brett Patterson,
No. 88-245-III, 1989 WL 147404 (Tenn. Crim. App. Dec. 8, 1989), perm. app. denied
(Tenn. Mar. 5, 1990). The Petitioner was convicted after a joint trial with his
codefendant. The Petitioner appealed, and in its opinion affirming the convictions, this
court summarized the facts as follows:

            On the night of January 9, 1987, Brett Patterson and Ronnie
      Cauthern drove to the home of Patrick and Rosemary Smith, who were both
      Captains in the United States Army assigned to Fort Campbell as nurses.
      The defendants wore masks and gloves, and each carried a loaded revolver.
      After severing the telephone line, the defendants broke a door pane,
      unlocked the door, and entered the Smiths’ house. They were after a large
      sum of money thought to be kept in the bedroom.

              Once inside, the defendants discovered that the Smiths were at home
      asleep. They awakened them and pulled them out of bed. Patrick Smith
      tried to fight them off, while Patterson made repeated attempts to subdue
      him by applying a “sleeper,” a wrestling hold designed to cause
      unconsciousness. Failing this, Patterson strangled Mr. Smith with a length
      of “880” military cord. Investigators later recovered similar cord from the
      defendant’s residence when they searched it.

              Mrs. Smith was strangled with a silk scarf into which a narrow vase
      was inserted to form a tourniquet. The medical examiner found that the
      cartilage in her throat had been fractured, an injury which would have
      resulted only from application of great force. Mrs. Smith had also been
      raped.

            When neither of the Smiths reported for duty on the following
      morning, two of their co-workers drove to their home to investigate.
      Finding the door glass broken, they called the police. Investigators arrived
      promptly and discovered Patrick Smith’s body in the master bedroom, and
      Rosemary Smith’s body in a guest bedroom.

              The house had been ransacked and numerous items stolen, including
      articles of clothing, seventy dollars cash, personal checks, credit cards, a
      video cassette recorder, Mrs. Smith’s engagement and wedding rings, her
      watch, and her purse. The keys to their two cars were also taken.

            In the master bedroom, investigators found a piece of paper with
      Cauthern’s name on it. Also written on it was the Smiths’ phone number,
      address, and directions to their residence.

             On the morning of January 12, 1987, an informant contacted the
      police and told them that Patterson and Cauthern, both of whom the

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       informant knew well, had admitted taking the Smiths’ property, sexually
       abusing Mrs. Smith, and killing them both.

               The informant related to investigators how Patterson and Cauthern
       had broken into the house, described the method by which the Smiths had
       been strangled, and told of having seen several of the items stolen from
       their residence. The informant said that Cauthern was confident that he and
       Patterson would not be caught because they had worn masks and gloves.

               Investigators then proceeded to the residence that the defendant
       shared with Cauthern and a third person-Eric Barbee. When they arrived,
       all three men were present and officers saw several of the stolen items in
       the trunk of Cauthern’s car.

              The residence was searched, and a large amount of incriminating
       evidence was seized. Both defendants were arrested; both gave detailed
       and highly inculpatory confessions.

Id. at *1-2.

        The Petitioner sought post-conviction relief, alleging the ineffective assistance of
counsel and various errors during the trial proceedings. The post-conviction court denied
relief, and this court affirmed the post-conviction court’s determinations. See Brett Allen
Patterson v. State, No. 01C01-9805-CC-00221, 1999 WL 701455 (Tenn. Crim. App.
Sept. 10, 1999), perm. app. denied (Tenn. Apr. 24, 2000). The Petitioner later sought to
amend his post-conviction petition to include a request for DNA testing. The post-
conviction court denied the Petitioner’s motion, and this court affirmed. See Brett Allen
Patterson v. State, No. M2004-01271-CCA-R3-PC, 2006 WL 3093216 (Tenn. Crim.
App. Oct. 26, 2006), no perm. app. filed.

       On December 13, 2016, the Petitioner filed the instant petition for a writ of error
coram nobis, alleging that the search of his home and his arrest were unlawful, that trial
counsel’s ineffective assistance “allowed the State to suppress the video recordings of the
prior searches by editing the multiple video tapes,” that the State only provided the video
recordings of searches conducted after the search warrants arrived at the scene, and that
the State knowingly presented perjured testimony from multiple police officers at the
suppression hearing relative to the searches. The Petitioner alleged that the perjured
testimony and “the suppression” of the video recordings before the warrant was obtained
resulted in the trial court’s determining his arrest and searches were lawful. The
Petitioner asserted that if all of the unedited recordings had been disclosed to the defense
and to the trial court, trial counsel could have used the recordings to impeach the perjured
testimony. The Petitioner stated that he learned the “long lost video recordings” had been


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discovered in the prosecutor’s file, had been transferred to DVD, and had been provided
to his codefendant’s counsel.

        The State filed an answer, arguing that the one-year statute of limitations had
lapsed and that the Petitioner had failed to state a reason for tolling the statute of
limitations. The State also asserted that the Petitioner had failed to state a claim for
which relief could be granted, denied the allegations of misconduct, and sought a
summary dismissal of the petition for relief. The State submitted a subsequent filing that
included this court’s opinion in the Petitioner’s codefendant’s coram nobis proceedings.
See Ronald Cauthern v. State, No. W2015-01905-CCA-R3-ECN, 2017 WL 1103049
(Tenn. Crim. App. Feb. 24, 2017). In response, the Petitioner sought a motion to
continue in order to investigate potential new evidence referenced in the codefendant’s
coram nobis proceedings related to “laboratory bench notes,” indicating that forensic
evidence had been contaminated during transportation to the laboratory for analysis.

        At the May 1, 2017 hearing, defense counsel told the coram nobis court that the
video recordings presented in the trial court proceedings had been edited by the
prosecution “in order to hide the fact that the police officers had lied and planted
evidence.” The prosecutor stated that the unedited recordings from the search were
“entered” almost thirty years ago during a suppression hearing and that trial counsel had
failed to “[catch] the lies back then.” Defense counsel argued that the State engaged in
prosecutorial misconduct by hiding evidence and by lying about the nature of the
recordings at the time they were introduced in the trial court. Counsel noted this issue
had been litigated in the Petitioner’s codefendant’s coram nobis proceeding and that this
court determined that the codefendant’s claim relative to the unedited video recordings
was time barred and that due process did not require tolling the statute of limitations. See
Ronald Cauthern, 2017 WL 1103049, at *9-10. Counsel stated that the prosecution’s file
was not available to him because the file had been sent to Gibson County as a part of the
codefendant’s coram nobis proceedings and that as a result, he could not view the
relevant recordings.

       Defense counsel told the trial court that the codefendant’s coram nobis petition
also referenced “lab bench notes,” indicating that blood and DNA evidence were
contaminated during transportation to the laboratory for analysis.1 Counsel stated that he

1
  In Ronald Cauthern, the petitioner sought coram nobis relief on the basis of newly discovered evidence
in the form of the same unedited video recordings at issue in the present appeal and the laboratory bench
notes indicating contamination of forensic evidence. The coram nobis court denied relief after
determining that the petition was untimely and that due process did not require tolling of the statute of
limitations, but the coram nobis court’s written order only addressed the allegations relative to the video
recordings. On appeal, this court affirmed the coram nobis court’s determinations relative to the video
recordings but reversed the summary denial of relief relative to the laboratory bench notes and remanded
the case for consideration of whether the allegation was time barred, and if so, whether due process
required tolling the statute of limitations. 2017 WL 1103049, at *5-7, 10-11.

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and the Petitioner had recently learned of the laboratory bench notes and that counsel
intended to amend the petition to include the bench notes as newly discovered evidence.
Counsel requested a continuance for further investigation.

        The prosecution argued that the coram nobis statute required affidavits regarding
newly discovered evidence to be attached to a coram nobis petition and that none had
been attached. The prosecutor stated, “If [defense counsel] wanted to go down to Gibson
County and obtain a copy of the video, which the State has seen in the Cauthern matter,
bless him, and then he can file an affidavit and file the actual video.” Relative to the
laboratory bench notes addressed in the codefendant’s coram nobis proceeding, the
prosecutor stated that the issue was not litigated because the Petitioner’s codefendant did
not present the laboratory bench notes to the coram nobis court. The prosecutor noted,
“[T]here’s doubt they even exist.” The prosecutor argued that coram nobis petitions were
to address guilt or innocence, not search and seizure issues. He stated that the trial court
held a suppression hearing in the Petitioner’s conviction proceedings, that the issue
related to the searches was litigated before the Petitioner’s trial, that the issue was
litigated again in the post-conviction proceedings, and that the Petitioner was not entitled
to litigate the issue a third time.

        The coram nobis court found that the Petitioner’s judgments became final in 1988,
that the time period to file a petition for a writ of error coram nobis expired in 1989, and
that the present petition was filed after the statute of limitations had lapsed. The court
stated that it had previously reviewed the entire court file, including the video recordings
and “laboratory reports” from the trial proceedings. The court determined that the
allegation regarding the laboratory bench notes was not raised in the initial petition for
coram nobis relief and that no affidavits were presented to the court regarding the video
recordings or the laboratory bench notes. The court found that had the affidavit
requirement been satisfied, “this is not new evidence.” The court found that the
recordings and the laboratory bench notes were not later arising evidence because both
were part of the trial court proceedings and litigated in the numerous appeals and post-
conviction proceedings. The court determined that the evidence would not have resulted
in a different outcome at the trial, and it dismissed the petition. The court did not address
defense counsel’s motion for a continuance to investigate the laboratory bench notes
referenced in the codefendant’s coram nobis proceedings. This appeal followed.

       A writ of error coram nobis lies “for subsequently or newly discovered evidence
relating to matters which were not 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.”
T.C.A. § 40-26-105(b) (2012); State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App.
1995); see Cole v. State, 589 S.W.2d 941 (Tenn. Crim. App. 1979). The purpose of a
coram nobis proceeding “is to bring to the attention of the court some fact unknown to
the court, which if known would have resulted in a different judgment.” State ex rel.
Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1966). The decision to grant or deny such

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a writ rests within the sound discretion of the court. Jones v. State, 519 S.W.2d 398, 400
(Tenn. Crim. App. 1974); see Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App.
1988). A petition for a writ of coram nobis must be filed within one year of the judgment
becoming final in the trial court. State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999). A
judgment becomes final “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 v. State, 301 S.W.3d 141, 144 (Tenn. 2010). A limited exception to the statute of
limitations exists when due process requires tolling. Workman v. State, 41 S.W.3d 100,
103 (Tenn. 2001).

        “When a petitioner seeks a writ of error coram nobis based on newly discovered
evidence of actual innocence, due process considerations may require tolling of the
statute of limitations.” Harris, 301 S.W.3d at 145 (citing Workman, 41 S.W.3d at 101).
“[B]efore 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); see
Workman, 41 S.W.3d at 102. However, a petitioner “must exercise due diligence in
presenting the claim.” Harris, 301 S.W.3d at 144. Whether due process principles
require tolling the statute of limitations is a mixed question of law and fact and is
reviewed de novo with no presumption of correctness. See Vaughn v. State, 202 S.W.3d
106, 115 (Tenn. 2006).

       The parties do not dispute that the coram nobis petition was filed long after the
statute of limitations expired, and we conclude that the record supports the coram nobis
court’s determination that the petition was untimely because it was filed approximately
twenty-seven years after the judgments became final. Relative to due process tolling, the
Tennessee Supreme Court has prescribed a three-part analysis whereby the coram nobis
court must

       (1) determine when the limitations period would normally have begun to
       run; (2) determine whether the grounds 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. In making this final
       determination, courts should carefully weigh the petitioner’s liberty interest
       in “collaterally attacking constitutional violations occurring during the
       conviction process,” Burford, 845 S.W.2d at 207, against the State’s
       interest in preventing the litigation of “stale and fraudulent claims.” Id. at
       208.

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

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        The record reflects that the coram nobis court had previously reviewed the trial
court record and found that the unedited recordings of the search were contained in the
court record. As a result, the coram nobis court determined that the grounds for relief
were not later-arising and that due process did not require tolling the statute of
limitations. The prosecutor stated at the hearing that although edited recordings were
admitted during the trial, unedited recordings were received as evidence during a pretrial
suppression hearing. The Petitioner did not argue that the unedited recordings were not
provided to the defense during the discovery process. The Petitioner states in his
appellate brief that the unedited recordings were discovered by his codefendant’s counsel
in the prosecution’s file or in the trial court clerk’s file. Regardless of whether the
unedited version was found in the prosecution’s or the trial court clerk’s files, the record
does not reflect that the evidence was discovered or emerged after the Petitioner’s trial or
that the prosecution failed to provide the evidence to the defense in the conviction
proceedings. Therefore, the coram nobis court properly determined that the relevant
evidence existed at the time of the trial, that the evidence was not later-arising, and that
due process does not require tolling of the statute of limitations. The Petitioner is not
entitled to relief on this basis.

        Relative to the laboratory bench notes, the coram nobis judge stated at the hearing
that she had reviewed the trial court file previously, which included “laboratory reports.”
The record does not reflect that laboratory bench notes, specifically, were included in the
trial court file. The court determined, based on its review of the file, that the laboratory
bench notes were not new evidence and would not have impacted the outcome of the
trial. The coram nobis court’s written order denying relief states that the “lab bench notes
would have been an issue that counsel in the original trial and multiple appeals could
have pursued.” As a result, the coram nobis court dismissed the petition without
consideration of defense counsel’s motion for a continuance.

       The December 2016 pro se petition only focused on the unedited video recordings
of the search and did not address laboratory bench notes associated with blood and DNA
evidence. The State filed its motion to summarily dismiss the petition on March 15,
2017, which also did not mention any laboratory bench notes. The State submitted a
supplemental filing on April 12, 2017, approximately nineteen days before the hearing.
The supplemental filing included this court’s March 24, 2017 opinion in the Petitioner’s
codefendant’s error coram nobis proceedings. The codefendant’s petition alleged that the
State had provided the defense, for the first time, a copy of a handwritten “forensics
report” containing raw data of blood testing and showing that the standard laboratory
protocols were violated during transportation to the laboratory, resulting in contamination
of blood samples. See Ronald Cauthern, 2017 WL 1103049, at *11. The record in the
present case reflects that the State’s filing the 2017 Ronald Cauthern opinion is the first
mention in this case of the laboratory bench notes and of allegations that the samples
provided to the laboratory for analysis were contaminated.


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       On April 27, 2017, three days before the hearing, defense counsel filed a motion to
continue and to permit inspection of evidence. The motion stated, in relevant part, that
the State’s supplemental filing referenced laboratory bench notes that were potential
newly discovered evidence relevant to the Petitioner’s coram nobis proceeding. The
motion stated that to represent the Petitioner effectively, counsel needed to inquire into
the laboratory bench notes to determine whether they were relevant to the Petitioner’s
coram nobis petition. Counsel requested a continuance for further investigation.

        Although defense counsel generally stated at the hearing that he and the Petitioner
had recently learned of the laboratory bench notes, we glean from the record that counsel
attempted to inform the coram nobis court that he and the Petitioner first learned of the
laboratory bench notes when the State submitted its supplemental filing approximately
two weeks before the scheduled hearing and that counsel needed additional time to
investigate the laboratory bench notes and to determine whether the petition should be
amended. The coram nobis court did not rule on the motion to continue before it
determined that the laboratory bench notes were not newly discovered evidence and
would not have impacted the trial. However, no evidence at the hearing shows the
specific contents of the laboratory bench notes, and the record reflects that neither the
prosecution nor counsel had reviewed the notes before the hearing. Likewise, although
the coram nobis court determined that the laboratory bench notes were part of the joint
trial court proceedings, this court’s opinion in Ronald Cauthern reflects that the bench
notes were first provided to the Petitioner’s codefendant’s counsel in 2014. Therefore,
the record does not support the coram nobis court’s determinations that the laboratory
bench notes were not newly discovered evidence and would not have impacted the
outcome of the trial.

       Although the allegation regarding the laboratory bench notes was not included in
the original petition, the coram nobis court’s consideration of the issue reflects that the
court treated it as though it was before the court without a formal amendment to the
petition and without affidavits. Furthermore, we conclude that the coram nobis court
erred by summarily dismissing the petition relative to the laboratory bench notes because
the record reflects that the counsel and the Petitioner had learned of the laboratory bench
notes approximately two weeks before the May 1, 2017 hearing. Absent a showing that
counsel or the Petitioner learned of the existence of the laboratory bench notes before
2017, the laboratory bench notes may constitute later arising evidence involving a
violation of Brady v. Maryland, 373 U.S. 83 (1963). Therefore, we remand the case to
the coram nobis court for consideration of the Petitioner’s motion to continue for the
purpose of providing the opportunity to investigate and to determine whether the
laboratory bench notes constitute a cognizable claim for coram nobis relief.

       In consideration of the foregoing and the record as a whole, the judgment of the
coram nobis court dismissing the petition relative to the video recording allegation is
affirmed. The judgment of the coram nobis court dismissing the petition relative to the

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bench notes is reversed, and the case is remanded for consideration of the Petitioner’s
motion to continue relative to the laboratory bench notes.




                                        _____________________________________
                                        ROBERT H. MONTGOMERY, JR., JUDGE




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