Joan Elizabeth Hall v. State of Tennessee ( 2018 )

12/12/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 21, 2018
JOAN ELIZABETH HALL v. STATE OF TENNESSEE
Appeal from the Circuit Court for Lincoln County
No. S9600017 Forest A. Durard, Jr., Judge
___________________________________
No. M2017-01621-CCA-R3-ECN
___________________________________
Petitioner, Joan Elizabeth Hall, appeals the denial of her petition for a writ of error coram
nobis based upon newly discovered evidence. After thoroughly reviewing the record and
applicable authorities, we affirm the error coram nobis court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.
Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Joan Elizabeth Hall.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Robert James Carter, District Attorney General; and Edward Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Background
Petitioner was convicted of criminal responsibility for first degree murder and was
sentenced to life imprisonment. Her conviction was affirmed by this court on direct
appeal. The facts of this case as set forth by this court on direct appeal are as follows:
Stan Golden testified that he was traveling, on August 1, 1995, across
Eldad Bridge at approximately 4:08 p.m. when he was flagged down by
the Defendant. The Defendant told him that “they had shot her
husband,” and her husband was now laying in the river dead.
Danetta Marshall lived in the vicinity of the Eldad Bridge and was
alerted by her next door neighbor, on August 1, 1995, that someone had
been shot. When Marshall came outside, the Defendant was crawling up
her driveway and eventually sat next to Marshall’s car. Defendant
screamed, “[T]hey shot my husband. They’re going to kill me.”
Marshall’s next door neighbor, Michael Key, then went inside
Marshall’s home to call 911.
Michael Key lived next door to Danetta Marshall. Key left work on
August 1, 1995, at 3:30 p.m. and arrived home fifteen (15) to twenty
(20) minutes later. While feeding his dogs, Key heard someone
screaming for help, and he estimated the time he first heard the screams
to be between 4:00 and 4:30 p.m.
Adrian Key, Michael’s Key’s son, was alerted by his brother of the
situation. Adrian Key walked outside and found the Defendant
screaming, “Don’t let them get me. They shot my husband.” Aron Key,
Michael Key’s older son, also observed the Defendant screaming
between 4:00 and 4:30 p.m. that “they” killed her husband and were
going to kill her.
Chad Robinson, the eighteen (18) year old stepson of Michael Key,
drove to his home on the afternoon of August 1, 1995. When he got out
of his car and started walking toward the house, he heard a gunshot. He
went inside for five (5) or ten (10) minutes, then left again to go to an
auto parts store nearby. Robinson spent ten (10) minutes driving to the
store and approximately six (6) minutes inside the store, then returned
home to find his brother and father sitting with the Defendant on the side
of the road. Robinson estimated that the time between hearing the
gunshot until he saw the Defendant to have been about twenty (20) or
twenty-five (25) minutes. Robinson also recalled that Defendant used
the word “they” when describing who had shot her husband.
Johnny Simmons, a deputy with the Lincoln County Sheriff’s
Department, received a call at 4:18 p.m. on August 1, 1995. Simmons
went to the scene at Eldad Bridge, arriving at 5:10 p.m. as one of the first
officers on the scene. Simmons observed the victim’s body lying next to
the river bank.
Andy Cline, the head of Crime Stoppers in Lincoln County, traveled to
Eldad Road to videotape the crime scene on August 1, 1995. His video
of the crime scene was shown to the jury.
-2-
Mac Kidd, paramedic with the Lincoln County Regional EMS,
responded to a call at the Eldad River Bridge on August 1, 1995. The
body of the victim had already been pulled from the river when he
arrived on the scene. Kidd noted that the victim had a gunshot wound to
the back of his head without an exit wound, blood coming from his left
ear, and a possible entrance wound to the upper left quadrant of his body
with a possible exit point in the lower right side of his abdomen. The
body was transported to Lincoln Regional Hospital.
Mamie Ruth Hall, mother of the victim, testified that her son had two
adopted daughters, one biological daughter and twin sons. He had been
married to the Defendant for seven years on July 31, 1995. While the
victim had been employed at Amana Refrigeration, he was laid off in
July 1995. The Defendant’s two daughters lived with the victim and the
Defendant, and following the death of the Defendant’s mother, the
Defendant’s biological son, Richard Romine, also came to live with
them. A year prior to the victim’s death, Richard Romine left to live
with Michael Romine in Ohio. Mamie Hall explained that Michael
Romine was the Defendant’s older brother, and Richard was the
Defendant’s biological son who had been adopted by the Defendant’s
parents.
Mamie Hall stated that her relationship with the victim and the
Defendant was good and they saw each other often. She described an
incident during which the Defendant had threatened to kill her son,
although she perceived that to be said “in jest.” Hall often went fishing
with the Defendant and the victim, and she had fished at the same spot
where the shooting occurred just four (4) days prior to the shooting
incident.
Following the victim’s death and funeral, the Defendant told Hall that
she did not know what happened. However, on the evening of the
shooting, Hall overheard the Defendant tell her daughter that Richard
Romine had shot the victim. Because she was suspicious, Hall hired
Larry Shavers to independently investigate the murder. Their first
meeting was on October 21, 1995.
Joyce McConnell, Investigator for the Lincoln County Sheriff’s
Department, answered a 911 call at 4:15 p.m. on August 1, 1995 by
traveling to the Eldad River Bridge on Eldad Road. After she arrived,
McConnell was directed to Danetta Marshall’s home where she found
the Defendant sitting on the front porch. McConnell described the
Defendant as hysterical, crying and scared. Defendant stated that “they”
-3-
were going to get her, indicating that while she did not witness her
husband’s shooting, she believed more than one (1) person was involved
as she overheard someone say, “[T]here she goes,” when she attempted
to flee the area. Defendant had left the spot where she and the victim
were fishing to use the bathroom, and while she was finishing she heard
her husband yell, “Run Joanie.” While Defendant did not mention
Richard Romine’s presence at the time, she later told McConnell he had
been with them while they were fishing, but she did not know where he
was at the time of the shooting.
Defendant was advised to come by the Sheriff’s Department. When she
did, her Miranda rights were administered to her and a statement was
taken. This statement was recorded and the tape was played to the jury.
McConnell described that during the interview Defendant did not know
who shot her husband. After leaving the area where they were fishing to
go to the bathroom, she heard her husband yell, “Run Joanie,” and then
she heard shots. Defendant indicated that Richard Romine had been
with them earlier, but they dropped him off at the intersection of Eldad
Road and Liberty Road. In Defendant’s handwritten supplement to her
statement to police given on August 1, 1995, the Defendant included the
following: “[A]nother time, Richard told my daughter that he would kill
Olen by shooting him. I asked him how he would get away with it. He
told me that he would blame it on me saying that I had him do it.” Other
investigation in which McConnell was involved included a search of the
Defendant and the victim’s home for weapons, but none of those found
were determined to be the weapon used for the shooting. The Defendant
was tested for gunshot residue, but the result was not positive.
McConnell stated that Richard Romine was charged with the murder of
the victim on the evening of August 1, 1995. The investigation
continued until February or March 1996. The Defendant and David
Michael Romine were subsequently charged.
Kevin Duff, life insurance claims examiner for Principal Financial
Group, testified that the Defendant was paid $84,692.38 in death benefits
for a life insurance policy the victim had in effect at the time of his
death.
Mike Hunter, investigator with the Lewisburg Police, also interviewed
the Defendant who stated that she, Richard Romine and the victim had
gone fishing. After she left the fishing scene to go to the bathroom, she
heard her husband yell, “Run Joanie,” and then heard one (1) or two (2)
shots. After running back to find her husband, she saw him lying
-4-
facedown in the water. The Defendant described that the victim and
Richard Romine had problems, with Richard threatening to kill the
victim if given the chance. Richard had left their home to live with his
brother Michael Romine in Ohio, but he returned to Tennessee in March
1995. Michael Romine eventually moved to the area, then Richard and
Michael moved in together about one-half mile from the victim and the
Defendant’s home.
Richard Romine testified that although he was seventeen (17) years old
at the time of trial, he was sixteen (16) on August 1, 1995. He learned at
the age of twelve (12) that Defendant was his biological mother, though
he had always known her as his adopted sister while he resided with his
adopted mother and grandmother in North Carolina. After his adopted
mother died, Richard went to live with the Defendant and the victim.
Defendant’s two daughters, Jenia and Mary Jane Latiolais, were also
living there.
Initially, Richard admitted his first problems with the victim were when
he found a mark on Jania’s [sic] left leg after the victim had hit her with
a belt. Also, there was a dispute over the television during which law
enforcement officers came to the home and advised Richard to spend the
night away from the Hall residence. Shortly after this incident Richard
moved to Ohio to live with Michael Romine. After Richard and Michael
moved back to Lincoln County, the Defendant found a mobile home for
them to live in. Richard and the victim fished on a weekly basis,
although never at the scene of the shooting.
Richard admitted that about two (2) or three (3) weeks prior to the
murder, the Defendant discussed the problems she was having with the
victim. She told Richard she wanted him to kill the victim because that
was the only way to get rid of all the problems. Richard did not take her
seriously until she produced a Derringer two-shot handgun. Defendant
showed Richard how to operate the gun and then placed it back inside
her purse. Four (4) or five (5) days later, the Defendant told him that if
he were going to kill the victim, then it would have to be done prior to
August 1, 1995, because the victim’s insurance was running out on that
date. A third conversation regarding killing the victim occurred a few
days later, and it was then that Richard told the Defendant he would
commit the murder.
Two (2) or three (3) days prior to August 1, 1995, Richard again talked
with the Defendant while Michael Romine was present. The Defendant
then offered to give him the victim’s truck, $10,000.00, and to pay his
-5-
health insurance in return for his killing her husband. The plan was for
Richard to shoot the Defendant in the leg while they were fishing so that
it would appear to be a robbery. The Defendant then advised Richard
that because the victim’s employer had paid to renew his insurance
policies and the policies would not lapse, there was no hurry to commit
the murder prior to August 1, 1995. The day prior to the shooting, the
plans changed slightly such that Richard was not supposed to be present
at the time of the shooting, nor was he supposed to shoot the Defendant
in the leg to make it look like a robbery. Michael Romine showed
Richard how to load the handgun using real bullets, then the Defendant
gave him four (4) hollow point bullets. Two (2) bullets were placed in
the gun, with the remaining two left in Richard’s pocket.
After their meeting, Richard began writing a contract for the Defendant
to sign. He messed up the first version and threw it away in a shoe box.
The second contract provided that Richard was “supposed to off Olen
[victim]” with the Defendant to supply the gun, gloves, and alibi. Also,
the Defendant was to give Richard $10,000.00, the victim’s truck and
pay his health insurance for two (2) years. He met the Defendant later
that same day, but she refused to sign the contract. Richard stated that
Defendant did agree with its contents. He also put this contract into the
shoe box. A plan was made for Michael to pick him up after the
shooting.
On August 1, 1995, after 2:30 p.m., the Defendant picked up Richard
and he got the gun, gloves, and fishing gear. Richard put the gun in his
pocket. When they went to the Defendant’s residence, the victim was
“being quiet.” Richard told Defendant that the victim knew about their
plan, but Defendant denied this. Richard claimed that the plan was for
him to shoot the victim on the path leading to the river, but he could not
get his gloves on so he went to the opposite side of the bridge from the
victim. Defendant stated she had to go to the bathroom, and then
Richard approached the victim from behind and shot him. After the
victim fell into the water, Defendant came up behind him and was
pointing at the victim so he shot him in the head. The gun was thrown
into the river, and he fled the scene to be picked up by Michael.
Richard and Michael drove to Bi-Lo Supermarket to pay their telephone
bill, and Richard told Michael that, “[H]e was shot. He was dead.”
After paying the phone bill, they drove to the Defendant’s residence
where Richard placed his gloves and his shoes in a barrel used for
burning trash. Richard washed off and changed clothes, leaving his
clothes in the laundry. They traveled towards Pulaski, then returned to
-6-
the Defendant’s home to get her daughters. When they arrived, they
“found out” about the victim’s shooting so they went to the hospital.
After leaving the hospital and going to Ruth Hall’s home, law
enforcement officers arrived and took Richard into custody.
On cross-examination, Richard admitted some inconsistencies in his
testimony and confessions, including that he initially claimed his
confession was not a true story. He recalled telling workers at the
Middle Tennessee Mental Health Institute that he was “messed up in the
head” and that you “have to be a little crazy to do what I did-commit
murder.” He also told investigators that Defendant had pulled the
trigger, but admitted at trial that was a lie. Richard identified a letter
which he wrote to the Defendant dated April 26, 1996, in which he
indicated he “did wrong” and should have taken responsibility for his
acts and never should have tried to “put it off on her.”
Donna Pence, special agent with the TBI, was called in to investigate
with McConnell in October 1995. She received some torn pieces of
paper and a mug from Larry Shavers. Pence first interviewed Michael
Romine on January 19, 1996, and she also participated in the interview
of Natalie Romine on February 1, 1996. Notes were made from both
these interviews, and the Defendant received copies of the notes from
Michael Romine’s interview.
Michael Romine testified that he is the biological uncle and adopted
brother of Richard Romine. During the summer of 1994, Defendant
contacted Michael to ask if Richard could come to live with him because
Richard and the victim were having problems. Michael agreed, but in
February 1995 he sent Richard back to Tennessee. Two (2) weeks later,
Michael moved to Tennessee and he and Richard eventually moved into
a trailer. The relationship between Defendant and her husband was tense
to the point that during the summer of 1995, the Defendant told him that
the victim needed to go. She described a plan she had devised for him to
be shot while they were on a fishing trip.
Two (2) days later, the Defendant showed a .38 caliber weapon to
Michael and offered him $10,000.00 and a truck. The shooting was
supposed to occur that same day. Michael came to the river where the
Defendant and the victim were fishing, but he was unable to pull the gun
out. Afterwards, the Defendant said she was only “playing around” with
Michael and knew he would not shoot her husband, but then stated that
she was in the process of poisoning her husband by putting poison in the
honey he used in his coffee. Michael recalled seeing the Defendant mix
-7-
something in the honey she added to Defendant’s coffee. A week prior
to August 1, 1995, the Defendant mentioned a double indemnity aspect
of the insurance and asked Richard to shoot the victim. Three (3) or four
(4) days later, the Defendant, Michael and Richard were again discussing
shooting the victim. The Defendant told Richard that if he were caught
he would only serve six (6) months incarceration in a juvenile facility
and that she would provide his lawyer and an alibi. The plan was devised
for Richard to shoot the victim, with Michael then picking up Richard,
and the Defendant claiming that three (3) men tried to rob them.
On the evening prior to August 1, 1995, the Defendant stated that the
shooting was to occur the next day. On the morning of August 1, 1995,
the Defendant gave Michael $300.00 to pay his phone bill in order to
provide an alibi for Richard. The Defendant picked up Richard at 2:45
p.m., then Michael went to her home at 3:00 p.m. to start a load of
laundry. Michael then drove to Eldad Bridge, and when he arrived he
saw Richard running towards the highway. Richard got into the back of
Michael’s vehicle, and they drove to Bi-Lo Supermarket to pay
Michael’s phone bill. The bill reflected it was paid at 3:43 p.m. on
August 1, 1995. Then they drove back to the Defendant’s residence
where Richard took a shower while Michael started a fire in the trash
barrel to burn Richard’s shoes. Michael put Richard’s clothes in the
washing machine. Michael later found two (2) bullets in the washing
machine which he threw in a woodshed, but he later retrieved the bullets
and turned them over to personnel in the public defender’s office.
In his initial statements to law enforcement officers, Michael admitted
that he did not tell the “whole truth” in an effort to assist his brother
Richard. He identified a contract found by Natalie Romine in Richard’s
room after the victim’s funeral. It was placed behind a picture in
Richard’s room. He saw it again while he was in North Carolina when
Natalie gave it to him torn into pieces. Following the indictment against
him for criminal responsibility and accessory after the fact, he pled
guilty to being an accessory with an agreement to serve a two (2) year
sentence.
Louis Kuykendall, special agent forensic toxicologist with the TBI,
testified that he tested the victim’s coffee cup for Diazinon or Dursban,
commonly known as insecticides. He found a brown residue on the cup.
While the tests showed no basic or acidic drugs, it did test positively for
cyanide in the residue.
-8-
Natalie Romine is married to James Frederick Romine, the Defendant’s
brother, and she had only met the Defendant on two (2) or three (3)
occasions prior to the victim’s death. After learning of the victim’s
death, she called the Defendant and was told that Richard had killed him.
The Defendant asked Natalie to come for the funeral because she had no
other family. Natalie agreed and flew to Huntsville, Alabama where she
was picked up by the Defendant and her daughters. After arriving, the
Defendant appeared to be “fine,” but told Natalie that if it would have
happened any later, she would not have received any insurance money.
The Defendant advised Natalie that she would receive $250,000.00 from
the victim’s death. Defendant described the victim as the “meanest son
of a bitch that ever lived.” Defendant claimed that she was trying to
protect Richard. After returning to the Defendant’s home, the Defendant
called the insurance company.
At the visitation prior to the victim’s funeral, the Defendant gave various
accounts of how her husband’s shooting occurred, including that Richard
had been smoking marijuana prior to killing the victim. Following the
funeral, Defendant joked all the way to the cemetery, but adjusted her
rearview mirror to prevent people in the car following them from seeing
her amusement. After they returned to the funeral home, Defendant gave
Natalie and Michael money so that they could get food and beer.
That same evening, Natalie found the contract at Michael and Richard’s
home. She stated that the document read, “I want ... $10,000.00, Olen’s
truck, two years’ insurance. You supply me with weapon, alibi and
gloves.” While reading the document, Michael took it from Natalie and
stuck it into his boot. Michael later returned it to her to read. The
following day, they went to visit Richard who was being detained at the
juvenile detention center. Richard tried to tell Natalie what had
happened, but the Defendant warned him not to do so. That evening
they all went drinking, and Natalie returned to North Carolina the
following day.
Michael came to visit Natalie on two (2) or three (3) different occasions
in North Carolina, and the Defendant moved there to live in a trailer on
her brother’s land. While Michael was there, Natalie overheard him tell
the Defendant that she had better get a lawyer for Richard. Later, she
heard Michael talking about how the Defendant tried to poison her
husband, and the Defendant then implied to Natalie that “[i]t should have
worked,” in reference to her attempts to poison the victim. On another
occasion, the Defendant admitted that she asked Michael to kill her
husband.
-9-
While not present when the contract was torn into pieces, Natalie saw the
contract on her kitchen table after it was torn into pieces by the
Defendant. Natalie placed the pieces of the contract into an envelope
which she placed in her bedroom, then later gave to Michael. Natalie
recalled other conversations she had with the Defendant during which
the Defendant advised her that she had Richard kill the victim.
Charles Harlan, forensic pathologist and medical examiner, performed
the autopsy of the victim. The death was determined to have been
caused by two (2) gunshot wounds to the head, chest and abdomen, with
both shots being fatal. The first gunshot wound was a near gunshot
wound to the back, with the muzzle of the gun being from six (6) to
twelve (12) inches from the victim’s body. The victim bled for
somewhere between three (3) to ten (10) minutes from this wound. The
gunshot to the victim’s head caused him to cease being a viable
organism immediately upon being shot, even though it would have taken
several minutes for him to have died. Upon testing the victim’s blood
and urine, no basic drugs were detected. Harlan testified that “the
cyanide test was not tested for by the laboratory.” However, without
further explanation, Harlan stated that there was no indication of the
presence of cyanide during the autopsy because “if cyanide is present, I
can detect it.”
This evidence concluded the State’s case-in-chief.
Jeff Bradford, investigator with the Lincoln County Sheriff’s
Department, testified that he participated in the investigation at the scene
of the shooting and then later questioned the Defendant at the Sheriff’s
Department. He, along with the Defendant and Investigator Mike
Hopson, went to the residence of Michael and Richard Romine where
they searched the home. They found a shoe box in the bedroom
containing drug paraphernalia, but no contract was found.
Jim Cranford, the brother of Ruth Hall, observed that the Defendant and
the victim had an excellent marriage. During the funeral, he never
observed any inappropriate behavior by the Defendant, and thought she
appeared to truly mourn the death of her husband.
Palmeda Taylor, a licensed psychologist, evaluated Richard Romine and
concluded that he was not mentally ill and was competent to stand trial.
Richard admitted to her that, “You have to be a little crazy to do what I
did, that is, commit murder.” Two (2) weeks later, Richard retracted his
- 10 -
confession of killing the victim and named the Defendant as the
murderer. She described his behavior as generally manipulative and
superficially cooperative, having average intelligence and knowing right
from wrong. Richard admitted to a poor frustration tolerance and poor
anger control, stating that he “could not stand too many people. If I
don’t like them, I want to hit them.” Dr. Taylor found Richard as having
the potential for reacting with overt anger when he was upset.
State v. Joan Elizabeth Hall, No. 01C01-9710-CC-00503, 1999 WL 34782, at *1-8
(Tenn. Crim. App. Jan. 28, 1999).
Thereafter, Petitioner filed a timely petition for post-conviction relief that was
denied by the post-conviction court, and this court affirmed the denial. Joan Elizabeth
Hall v. State, Nol. M2000-02707-CCA-R3-PC, 2001 WL 1028819 (Tenn. Crim. App.
Sept. 7, 2001). On February 8, 2016, Petitioner filed a pro se petition for writ of error
coram nobis. Counsel was appointed, and the petition was amended to include a motion
to correct an illegal sentence. Both the petition for writ or error coram nobis and the
motion to correct an illegal sentence were denied by the error coram nobis court. The
court specifically found that the petition for writ of error coram nobis was time-barred.
Error Coram Nobis Hearing
Petitioner’s petition for writ of error coram nobis is based upon two letters
purportedly written by her son and co-defendant, James Romine, in 2005. The first letter
was typed and dated April 26, 2005, responding to an inquiry from the Tennessee
Innocence Project. In the letter, Mr. Romine stated that he decided to kill the victim
because the victim had been beating Mr. Romine’s sister. Mr. Romine also stated in the
letter that he killed the victim during a fishing trip when Petitioner went to use the
restroom. He said that after his arrest, his brother, “David,” later told him to talk to a
private investigator who told him what to say. He closed the letter with the following
statement: “All I want to do is fix things my mother should not be in prison for
something I did and she never knew about it until it was to[o] late.” The second letter
was a handwritten, notarized letter purportedly written by Mr. Romine also stating that he
killed the victim during a fishing trip and that Petitioner had “no idea of his actions until
after th[e]y were accomplished.” Mr. Romine stated that he had planned to also kill
Petitioner but he did not have any bullets left after killing the victim. He said that he
talked to a private investigator after his arrest who told him that he would receive less
time if he said that Petitioner was involved in the murder. Mr. Romine also said that he
lied about Petitioner’s involvement in the murder to get revenge on her. The handwritten
letter was signed and notarized on February 6, 2005.
- 11 -
At the error coram nobis hearing, Petitioner testified that she received the typed
letter from the Tennessee Innocence Project in February 2011 along with a packet of
papers. She said:
They sent me a letter saying they were going through files because they
were coming out of - - they were no longer in business, they could not
afford it. And they were going through files and come through my file
and said that represented - - just sent me a packet of papers and that letter
was in that paper from my son to the Innocence Project.
When asked why she waited until 2016 to file the petition for writ of error coram nobis
Petitioner replied:
To tell you the truth, anything after I had my stroke, I had trouble
remembering when I sent things out. But when I got everything together
I was told that is what I needed to file and send in and that is what I did.
That is when they told me about the Writ of Error, I didn’t know there
was another stage to go through.
The State objected to the typed letter as hearsay, and the error coram nobis court admitted
it as an exhibit “for the restricted purpose of when she received that letter and when she
might have been placed on notice when there might have been a problem in 2011, not for
the truth of the matters contained in the letter because I think it is necessary to establish
she waited from 2011 to 2016 to file anything in response to this letter.”
Petitioner testified that at the time she received the typed letter, she and Mr.
Romine did not have any other communication. She said that they communicated while
he was still incarcerated “through the chapel” when he was in a special needs facility.
Petitioner thought that he was sent there in 2009 for counseling. She also said that Mr.
Romine had sent her a few letters in 2003 and 2004. Petitioner testified that she never
discussed the letter with Mr. Romine, and she did not believe he knew that she had it.
She said that she had communicated with Mr. Romine after receiving the letter “once
before he got out in 2012 through the chapel, and then probably once when he was at my
daughter’s house, and when my brother passed away.”
Petitioner testified that she placed the typed letter from Mr. Romine in her “legal
papers.” When asked if she researched any issues relating to the letter, Petitioner said:
“No, sir, I didn’t. I had filed the other letter that was notarized, and he told me it was an
alleged letter and I could not use it. So I didn’t figure that one would do any good.”
Petitioner testified that she was referring to a second notarized, handwritten letter
purportedly written by Mr. Romine in 2005. The State also objected to the admission of
the handwritten letter, and the error coram nobis court ruled that it could be used to
establish a time line of when Petitioner received the letter but not for its content.
- 12 -
Petitioner was again asked why she waited five years to do anything with the letter from
the Innocence Project, and she said:
Well, like I said I didn’t think it was worth anything. And I was going
through it and somebody was talking about filing a Writ of Error Coram
Nobis and told that is what I should file. I did not know that existed and
had no idea what it was. I looked it up and found out it was something
that had some grounds and I figured the letter did. So that is how I filed
it. Why it took so long I never even heard of it until 2015.
Petitioner testified that she took immediate action when she learned about a petition for
writ of error coram nobis.
On cross-examination, Petitioner testified that she had a stroke in 2009. She said
that she received the handwritten letter from Mr. Romine in 2005. Petitioner testified that
she then attempted to file it with the “Lincoln County Court” as a “clerical error.”
However, it was denied by the court. She said that she found out about filing a petition
for writ of error coram nobis in 2014 or the beginning of 2015, and her petition was filed
on “February 2nd or 3rd of 2016.” Petitioner testified that she never discussed either the
handwritten letter or the typed letter with Mr. Romine. She said that the Innocence
Project got involved in her case because she asked them for help in 2004. She never sent
them a copy of the handwritten letter. Petitioner testified that she never told any of her
family members to make contact with the Innocence Project about her case; however, she
said that the Innocence Project asked her for Mr. Romine’s address and she gave it to
them.
Analysis
Petitioner argues that she is entitled to due process tolling of the statute of
limitations for her petition for writ of error coram nobis based on newly discovered
evidence consisting of two letters written by her son and co-defendant Richard Romine
stating that he killed the victim and that Petitioner had no knowledge of it.
A writ of error coram nobis is a very limited remedy which allows a petitioner the
opportunity to present newly discovered evidence “which may have resulted in a different
verdict if heard by the jury at trial.” Workman v. State, 41 S.W.3d 100, 103 (Tenn.
2001); see also State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). The remedy is limited “to
matters that were not and could not be litigated on the trial of the case, on a motion for
new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas
proceeding.” T.C.A. § 40-26-105. Examples of newly discovered evidence include a
victim’s recanted testimony or physical evidence which casts doubts on the guilt of the
Petitioner. Workman, 41 S.W.3d at 101; State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim.
App. 2001); State v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995). The supreme court
- 13 -
has stated the following concerning the standard to be applied when a trial court reviews
a petition for writ of error coram nobis:
[T]he trial judge must first consider the newly discovered 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.
State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). Whether to grant or deny a petition
for writ of error coram nobis rests within the sound discretion of the trial court. Id. at
527-28. Summary dismissal, without discovery or an evidentiary hearing, is permissible
when a petition for writ of error coram nobis is insufficient on its face. Nunley v. State,
552 S.W.3d 800, 826 (Tenn. 2018).
A petition for writ of error coram nobis must be dismissed as untimely filed unless
filed within one (1) year of the date on which the petitioner’s judgment of conviction
became final in the trial court. Mixon, 983 S.W.2d at 670. The only exception to this is
when due process requires a tolling of the statute of limitations. Workman, 41 S.W.3d at
103.
Petitioner does not dispute that her petition for writ of error coram nobis was not
timely filed. In this case, Petitioner’s motion for new trial was denied on May 23, 1997,
and her petition for writ of error coram nobis was not filed until February 8, 2016, well
outside of the limitations period. In addition to being untimely filed, the trial court also
found that Petitioner had not alleged any grounds that would toll the statute of
limitations. The error coram nobis court, citing Harris v. State, 301 S.W.3d 141, 144
(Tenn. 2010), concluded:
This petitioner by her own admissions had knowledge of the recanted
testimony by [Richard] Romine (exhibit 3) as early as 2005, some 11
years before the filing of her writ. Additionally, she had the information
found in exhibit 1 some 5 years before the filing of her writ. Petitioner
was anything but diligent and no testimony she provided formed a
reasonable basis for excuse. Just as in Harris this petitioner was in
entire control of the filing of her writ and there was nothing preventing
her from doing the same. see Harris, 301 S.W.3d at 147. Due process
considerations in this case do not warrant tolling of the statute of
limitation[s] nor does it warrant taking additional proof.
- 14 -
We agree with error coram nobis court. Petitioner waited eleven years after
receiving the handwritten letter and five years after receiving the typed letter before filing
her petition for writ of error coram nobis. In Harris v. State, 301 S.W.3d 141 (Tenn.
2010 ), overruled on other grounds by Nunley v. State, 552 S.W.3d 800 (Tenn. 2018), the
supreme court declined to toll the statute of limitations because the petitioner waited too
late between the discovery of the evidence and the filing of his error coram nobis petition.
The petitioner in Harris had two pieces of evidence, which consisted of alibi evidence
and third-party confession evidence, that he had discovered six years and twenty-one
months, respectively, before filing his petition. Since nothing prevented petitioner from
filing his petition earlier within that time period, the supreme court found the delay to be
unreasonable under the circumstances. Therefore, petitioner was not entitled to due
process tolling, and his petition was time-barred. Id. at 145-47; see also Melissa Barnett
v. State, No. E2012-00855-CCA-R3-PC, 2013 WL 709588, at *5 (Tenn. Crim. App. Feb.
26, 2013)(“Nothing in the record explains why the Petitioner waited over three years to
attempt to present her coram nobis claim. The opportunity to assert her claim was within
her control after she learned of her codefendant’s guilty plea in late 2003 or early 2004,
and nothing prevented her from seeking coram nobis relief while the motion to reopen
was pending”); Jerry Kevin Duke v. Sate, No. M2014-01673-CCA-R3-ECN, 2015 WL
7566794, at *9 (Tenn. Crim. App. Nov. 23, 2015)(“Under the facts presented in this case,
the petitioner’s almost sixteen-month delay in filing his claim based on the newly
discovered DHS records was unreasonable”).
Likewise in this case, there is nothing in the record to satisfactorily explain why
Petitioner waited eleven years after receiving the handwritten letter and five years after
receiving the typed letter before filing her petition for writ of error coram nobis.
Although Petitioner said that she suffered a stroke in 2009, she did not allege that it
affected the filing of her petition for writ of error coram nobis. Petitioner still had four
years before her stroke to file her petition on the initial handwritten letter that she
received in 2005. She also received the second letter two years after her stroke, and she
waited an additional five years before filing her petition. Petitioner also indicated that
she waited to file her petition because she was unaware that she could file a petition for
writ of error coram nobis until 2015. However, this does not warrant tolling of the statute
of limitations. Melissa Barnett v. State, No. E2014-02396-CCA-R3-ECN, 2015 WL
5601537, at *4 (Tenn. Crim. App. Sept. 23, 2015)(“[I]gnorance as to the existence of a
claim does not create a “later-arising” claim for due process purposes”); Jacobs v. State,
No. M2009-02265-CCA-R3-PC, 2010 WL 3582493 (Tenn. Crim. App. Sept. 15,
2010)(In a post-conviction case, “lack of knowledge that a claim exists does not toll the
statute of limitations”).
Because the petition for writ of error coram nobis was untimely and tolling of the
statute of limitations is not required, the error coram nobis court properly dismissed the
petition. Additionally, because we have determined that the petition is time-barred, we
- 15 -
will not address the State’s argument that Petitioner did not offer admissible evidence to
support her error coram nobis claim.
CONCLUSION
Accordingly, the judgment of the error coram nobis court is affirmed.
____________________________________________
THOMAS T. WOODALL, JUDGE
- 16 -