                                                                                         11/09/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 25, 2017

               STATE OF TENNESSEE v. LAVELY L. BROWN

                    Appeal from the Criminal Court for Knox County
                       No. 104135    Steven W. Sword, Judge


                            No. E2016-02099-CCA-R3-ECN



The Petitioner, Lavely L. Brown, appeals the denial of his petition for writ of error coram
nobis. Following our review, we affirm the judgment of the coram nobis court denying
the petition.

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

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

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Lavely L. Brown.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Charme P. Allen, District Attorney General; and Philip H. Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

        In January 1989, a Knox County Criminal Court jury convicted the Petitioner of
the first degree murder, armed robbery, and aggravated kidnapping of the victim, Richard
Mashburn. The trial court sentenced the Petitioner to life imprisonment for the murder
conviction and two terms of forty years as a Range II offender for the armed robbery and
aggravated kidnapping convictions, to be served concurrently to the life sentence. The
convictions were affirmed by this court on direct appeal, and our supreme court denied
the Petitioner’s application for permission to appeal. State v. Lavely Brown, No. 1278,
1990 WL 112370, at *1 (Tenn. Crim. App. Aug. 8, 1990), perm. app. denied (Tenn. Dec.
10, 1990).
       Our direct appeal opinion provides the following summary of the evidence
presented at trial:

             A review of the record reveals the following facts. The bound and
       nude body of [the victim] was found in his West Knoxville apartment on
       May 14, 1986. A pathologist, called by the State, testified that [the victim]
       had been killed several days prior to when the body was found.

               ....

               [The Petitioner’s] accomplice, James Robinson, testified in detail as
       to how he and [the Petitioner] entered [the victim’s] apartment with the
       intent to rob him. The men then tied [the victim] up and began searching
       for money. At that point, Robinson went into the bedroom to search it. He
       heard [the victim] beg for mercy and [the Petitioner] answer that God could
       not help him any more. Robinson further testified that he returned from the
       bedroom just in time to see [the Petitioner] stabbing the victim in the neck.
       The [Petitioner] testified he was in no wise involved with the murder.

               ....

              In the case sub judice, several witnesses testified that [the Petitioner]
       had admitted the murder to them. One, Michael Settles, testified that on
       May 8, 1986, the night of the murder, the [Petitioner] came to his house and
       said that he had “stabbed [the victim].” Another, Scott Barker, testified that
       around Thanksgiving of 1986, the [Petitioner] told him that he had killed a
       man at the Sans Souci Apartments in Knoxville earlier that year. The Sans
       Souci Apartments are where [the victim] lived. Other witnesses gave
       similarly corroborative evidence.

Id. at *1-2.

       The Petitioner filed a petition for post-conviction relief on December 10, 1993,
and an evidentiary hearing was held on September 26, 1996. See Lavely Brown v. State,
No. E2004-00886-CCA-R3-PC, 2005 WL 1882453, at *2 (Tenn. Crim. App. Aug. 8,
2005), perm. app. denied (Tenn. Dec. 19, 2005). On May 25, 2001, the Petitioner filed
an amended petition for post-conviction relief, followed by a second amended petition on
June 17, 2003, in which he raised a number of claims, including ineffective assistance of
counsel. Id. This court affirmed the post-conviction court’s denial of the petition, and
our supreme court denied the Petitioner’s application for permission to appeal. Id. at *1.
                                             -2-
       On September 3, 2014, the Petitioner filed a pro se petition for writ of error coram
nobis on the basis of newly discovered evidence of actual innocence. Specifically, he
alleged that in January and February of 2014, a man named Benny Cooper informed him
that one of the State’s key witnesses, Michael Settles, confessed that he had killed the
victim and that he “had assisted law enforcement and the prosecution in fabricating a case
against [the Petitioner.]” The Petitioner alleged that Mr. Cooper told him that Mr. Settles
had been a key informant for law enforcement during that time, which was the reason that
law enforcement officers and the prosecution were motivated to help him pin the murder
on the Petitioner. The Petitioner further alleged that Mr. Cooper also informed him that
another essential State witness, Barbara Brown, was a prostitute who not only gave
“sexual favors to law enforcement” but who was also paid, in “pills,” by Mr. Settles “to
help frame [the Petitioner] for the offenses.” Finally, the Petitioner alleged that Mr.
Cooper also informed him that Mr. Cooper had been coerced into helping frame the
Petitioner by the threat that he would not be released from Juvenile Detention unless he
gave a statement consistent with the story provided by Mr. Settles and the police, which
was that he had seen a black Mustang with four occupants in it around the time of the
victim’s murder. In support of these allegations, the Petitioner attached both a letter and
an affidavit from Mr. Cooper. The affidavit, dated January 29, 2014, reads in pertinent
part:

             On May 10, 1986, I was admitted to the Juvenile Correctional Center
      in Knoxville[,] Tennessee. Affiant state[s], that on May 19, 1986, without
      my parents or an attorney present, I was pressured by Marie Myers[,] the
      probation counselor at the time, at the Juvenile Court to give a taped
      recorded statement concerning the said murder of [the victim]. I did not
      want to give a statement. However, a detective by the name of Terry Henry
      who was in control of the interview stated that I was ordered by Judge Cary
      E. Garrett, Juvenile Judge of Knoxville, Knox County to do so, and if I
      didn’t talk I would not be let out of detention. The pressure was constantly
      put on me by two detectives and the probation counselor. Before giving the
      statement, I was coached on what to say by the two detective[s,] Terry
      Henry and Gary Moyers. The things that the detectives wanted me to say
      sounded alot [sic] like what Michael “Mousey” Settles told me he wanted
      me to say a few days prior to being picked up, that if I was ever questioned
      by police. During the interview I was very scared. I couldn’t think straight
      and I was willing to say anything. In my statement I stated I saw a black
      [M]ustang with four people in it. That was not the truth. That is what
      “Mousey” wanted me to say, if I was ever questioned. It is also what the
      detectives told me to say also. I never saw any car come up. Mousey also
      made up a story about a bank card. Mousey told me it was important that I
                                            -3-
       stick with the story or he was going down for murder. I told Mousey that I
       didn’t want to be caught in a lie. Mousey said not to worry about it because
       the police liked him for helping them on other crimes. He also said that it
       would not be the first time that he pinned something on somebody else.
       Mousey also told me to never mention the fact that he had blood on his
       clothes. A few years later, I heard that there was going to be a trial and that
       Mousey was going to testify. I contacted the police to tell that Mousey was
       lying. I was told on the phone that it wasn’t my concern. I do not know
       who I spoke with. I then tried to contact the attorney for [the Petitioner] but
       I was unsuccessful. I then gave up until now, because all these years it has
       bothered me that Mousey told me to lie for him and the police knew it
       which resulted in an innocent man going to prison.

       The coram nobis court appointed counsel to represent the Petitioner, and a hearing
was held on June 24, 2016. The Petitioner testified that sometime in 2014, he overheard
a conversation between two fellow inmates, Brandon Boling and “Jimbo,” about how
Michael, or “Mousy,”1 Settles, had “‘lied’ to get them in the penitentiary.” He said he
later asked Jimbo if they had been talking about the same Mousy Settles who lived in
Western Heights in Knoxville. When Jimbo answered in the affirmative, the Petitioner
told him that Mr. Settles had lied to get him in the penitentiary as well. At that point,
Jimbo asked, “Are you Brown?” The Petitioner replied that he was, and Jimbo told him
that he needed to talk to Brandon Boling, because Mr. Boling’s cousin had been
searching for the Petitioner.

      The Petitioner testified that when he spoke with Mr. Boling, Mr. Boling informed
him that his cousin, Benny Joe Cooper, had been searching for the Petitioner for years
because he knew who had murdered the victim. The Petitioner said he made contact with
Mr. Cooper, and Mr. Cooper subsequently sent him a letter detailing what he knew. In
response, the Petitioner obtained a sworn affidavit from Mr. Cooper, which he attached,
along with Mr. Cooper’s letter, to his petition for writ of error coram nobis.

       The Petitioner testified that Michael Settles was not only one of the main
witnesses against him at his trial but also “one of the main suspects.” He said that Mr.
Settles and the victim had been lovers and that Mr. Settles went to the victim’s home
“from time to time to get money.” The Petitioner stated that he had learned from a fellow
inmate at Brushy Mountain State Penitentiary that Mr. Settles had since died.



       1
          We note that Mr. Settles’ nickname is spelled as “Mousy” in the petition for error coram nobis
relief and in the transcript of the error coram nobis hearing, but as “Mousey” in the affidavit of
Benny Cooper, attached to the petition.
                                                  -4-
       The Petitioner testified that he had no previous knowledge of Mr. Cooper or the
information he provided about Michael Settles. However, on cross-examination, he
acknowledged that Mr. Cooper had been interviewed by the police and that his name had
been on the witness list for his trial, although he had not been aware of it at the time. He
explained that the name had not “registered” with him because he never received a copy
of Mr. Cooper’s statement, Mr. Cooper did not testify at his trial, and none of his
attorneys ever mentioned him.

        The Petitioner acknowledged that both Mr. Settles and Scott Barker testified that
the Petitioner confessed the killing to them. He further acknowledged that a third man,
William Wright, had given a recorded statement, which was played at his trial, in which
he also said that the Petitioner confessed the murder to him. The Petitioner remembered
that Billy Graves had testified against him but claimed not to recall his having testified
that, on the day of the murder, the Petitioner and another man ran up to his car to ask for
a ride and that the Petitioner stopped at a store to wash his hands. The Petitioner said he
could not recall Robin Woodside testifying at all, much less her having related the same
story about how he had stopped at a store to wash his hands. When asked if he recalled
Mr. Settles’ girlfriend, Robin Moore, having testified that she overheard part of the
Petitioner’s conversation about how he had stabbed someone, the Petitioner denied that
Ms. Moore ever testified at his trial. He acknowledged that Barbara Brown testified at
his trial but denied that she said he admitted robbing the victim.

       Benny Cooper, who said that his “mind [was] shot” and that he had great difficulty
remembering things from so long ago, testified that he was currently in prison but at the
time of the victim’s murder lived next door to Michael Settles in Western Heights in
Knoxville. He said he used to take Mr. Settles to see the victim, and Mr. Settles would
“get money from the gay [victim].” Afterwards, he and Mr. Settles would use the money
to “get high.”

        Mr. Cooper testified that Mr. Settles told him that if he were questioned by the
police about the victim’s murder, he should say that he saw “three black guys in a
Mustang” visiting the victim. He said he was, in fact, questioned by two police
detectives who came to see him while he was in juvenile detention. He stated that the
police told him that his was the last vehicle that had been seen at the victim’s residence
and that both they and his probation officer urged him to cooperate, with the implied
threat that he would be charged with the victim’s murder if he did not. According to his
vague testimony, the police detectives wanted him to tell the same story that Mr. Settles
had given him about the “three black guys in a Mustang” having visited the victim. He
claimed that the detectives told him they would help get him out of juvenile detention if
he told that false story.

                                            -5-
       Mr. Cooper identified the letter he had sent to the Petitioner, as well as his signed
affidavit, which, he said, a friend had helped him prepare because he did not read or write
well. He initially testified that he was the one who first contacted the Petitioner because
he believed the Petitioner was innocent of the crimes. However, when shown his letter to
the Petitioner, in which he stated that he had received the Petitioner’s letter, he
acknowledged that he was confused and that the Petitioner must have contacted him first.
He testified that the information he had provided in the affidavit was true. However, he
also testified that Mr. Settles never told him anything about his role in the murder.

        Mr. Cooper further testified that he was subpoenaed to testify at the Petitioner’s
trial, but he refused to do so because he “wasn’t going to get on the stand and tell no lie.”
He said his grandmother called someone at the courthouse at some point, either before or
after the trial, to tell about the detectives’ having attempted to get him to lie at the
Petitioner’s trial. He did not know the identity of the person with whom his grandmother
spoke.

       On cross-examination, Mr. Cooper acknowledged he had been convicted of five
counts of aggravated robbery in 1991, in addition to possession of a sawed-off shotgun
and possession of a controlled substance in a penal facility. He further acknowledged
that he had been convicted of two additional aggravated robberies in 2004 and was in
prison for those offenses at the time the Petitioner contacted him. He testified that he had
always hoped over the years that he would someday run into the Petitioner but that he
never actively sought him out. He appeared unfamiliar with some of the details in his
affidavit and, when pressed, repeated several times that it had all happened so long ago
that he could not remember. Finally, he repeated that he had not testified at the
Petitioner’s trial and said that he would not have “testified, period.”

       The State’s sole witness, retired Knoxville Police Department Detective Terry
Henry, testified that he took statements from a number of witnesses, including Benny
Cooper. He adamantly denied that he told Mr. Cooper what to say or asked Mr. Cooper’s
probation officer to influence his statement.

       On September 12, 2016, the coram nobis court entered a detailed written order
denying the petition. Among other things, the court found that Mr. Cooper’s testimony
was not credible, noting the numerous instances during the hearing in which Mr. Cooper
appeared to have a “faulty memory” and the multiple conflicting answers he gave within
a short period of time. The court found it troubling that Mr. Cooper was allegedly able to
remember events from 1989 when preparing his 2014 affidavit, but was unable to recall
those same details two years later at the hearing. The court also noted that Mr. Cooper
never testified that Mr. Settles admitted to having committed the murder himself and that
Mr. Cooper’s testimony, that Mr. Settles convinced him to concoct a false story about
                                             -6-
seeing three other individuals, would, at best, have served merely to challenge the
credibility of Mr. Settles. Finally, the court observed that Mr. Cooper was a known
witness at the time of trial and that there was no proof that he would have said that Mr.
Settles committed the murder had he testified at trial. Accordingly, the court concluded
that the alleged newly discovered evidence, even if deemed credible, would not have
made a difference in the outcome of the Petitioner’s trial.

                                       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).

       Our supreme court has stated the standard of review as “whether a reasonable
basis exists for concluding that had the evidence been presented at trial, the result of the
proceedings might have been different.” State v. Vasques, 221 S.W.3d 514, 525-28
(Tenn. 2007) (citation omitted).

       Coram nobis claims may be based upon any “newly discovered evidence relating
to matters litigated at the trial” so long as the petitioner establishes that he or she was
“without fault” in failing to present the evidence at the proper time. Harris v. State, 102
S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims are “singularly fact-intensive,” are
not easily resolved on the face of the petition, and often require a hearing. Id. at 592-93.
The decision to grant or deny coram nobis relief rests within the sound discretion of the
coram nobis court. Vasques, 221 S.W.3d at 527-28.

        The Petitioner argues that “the trial court committed legal error by dismissing the
[p]etition for writ of error coram nobis on the grounds that ‘there is no proof that [Benny
                                            -7-
Joe Cooper] would have said that Mr. Settles committed the offense and not the
[P]etitioner.’” In support, the Petitioner asserts that there was testimony from Mr.
Cooper that Mr. Settles was the actual killer and that the reason Mr. Cooper did not
testify at trial was because the police wanted him to testify untruthfully.

        We respectfully disagree with the Petitioner’s characterization of Mr. Cooper’s
testimony at the coram nobis hearing. Mr. Cooper testified, in contrast to his affidavit
and letter, that Mr. Settles did not admit the murder to him. He mentioned nothing about
having seen Mr. Settles with blood on his clothing. In fact, Mr. Cooper exhibited a
suspicious lack of familiarity with the details contained in his affidavit and letter,
repeatedly claiming that he could not remember the events from so long ago and stating
that his mind was “shot.” We agree with the coram nobis court that Mr. Cooper’s claim
that the police and Mr. Settles wanted him to fabricate a story about having seen three
other men visiting the victim would, at best, have served to impeach Mr. Settles’
credibility at trial and that it does not constitute newly discovered evidence establishing
the Petitioner’s innocence of the offenses. We also note that Mr. Settles was not the key
witness against the Petitioner and that there were several other witnesses, in addition to
Mr. Settles, who testified that the Petitioner either admitted the murder to them or that
they saw him running from the crime scene and stopping to wash his hands.
Accordingly, we conclude that the coram nobis court properly denied the petition for writ
of error coram nobis.

                                    CONCLUSION

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


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




                                            -8-
