Court of Criminal Appeals of Tennessee, Nashville
Session Date: January 14, 2015
Appeal from the Criminal Court for Davidson County No. 2002-A-446 Seth W. Norman, Judge
Jeffrey O. Powell, Goodlettsville, Tennessee, for the appellant, Kenneth Deangelo Thomas.
Herbert H. Slatery, III, Attorney General and Reporter; David H. Findley, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
The Petitioner was convicted by a Davidson County jury for the murder of Andrew Lewis Titus during the perpetration of a robbery. By judgment entered October 16, 2003, the trial court sentenced the Petitioner to life. After his motion for new trial was denied, the Petitioner appealed, raising one issue–whether the indictment should be dismissed with prejudice due to a violation of the Interstate Agreement on Detainers. This Court affirmed the conviction on direct appeal. State v. Kenneth Deangelo Thomas, No. M2004-03069-CCA-R3-CD, 2006 WL 521426, at *1 (Tenn. Crim. App. Mar. 3, 2006), perm. to app. denied (Tenn. Oct. 30, 2006).
Paul Talley, an alleged accomplice, testified against the Petitioner at trial. At the time of his testimony, Mr. Talley was serving a 15-year sentence in the Tennessee Department of Correction for facilitation of murder. He testified that he had not been promised a plea agreement in exchange for his testimony.
On December 6, 2012, Mr. Talley recanted his testimony in a sworn, notarized statement, which reads as follows:
I, Paul Eugene Talley, being of sound mind and body, and under no threat of bodily harm, do hereby make and sign the following affidavit under penalty of perjury:
In October of 2003, I falsely testified for the State of TN in the murder trial of Kenneth D. Thomas; specifically, all testimony that Mr. Thomas was in any way involved before, during, or after the fact in the crime in question was untruthful. Having previously testified against Mr. Thomas in an unrelated case (in August of 2000) resulting in Mr. Thomas's acquittal and my going to prison to serve a sentence of 15 years, I was upset and angry. Taking advantage of my anger, the two assistant district attorneys in the unrelated case, Lisa Naylor and Pamela Anderson, soon thereafter offered me a deal in return for my "helping get Mr. Thomas off the streets;" this deal would turn out to be my testimony in the October of 2003 case. As I was also indicted in the October 2003 case that Mr. Thomas was soon to be tried on, in return for my helping to secure Mr. Thomas's conviction I was to receive a 4-year sentence to run concurrently with the 15-year sentence I was already serving; instead of a facilitation of murder charge, my charges would be dropped to attempted robbery. Let me be clear by stating that this deal was offered to me long before Mr. Thomas's trial; however, it was decided best not to put this deal in writing before my testimony and Mr. Thomas's conviction. But this is the deal I was offered, and this was the deal I received. I am willing to testify to this.
Again, I am under no duress whatsoever nor have I been threatened by anyone to sign this affidavit. Nor have I been offered any monetary gains or anything otherwise. This is just the right thing to do. Mr. Thomas is innocent of the crime in which placed [sic] him in prison. I have turned my life over to God and have decided to right the wrongs of my past. I hope and pray this helps. Thank you.
On March 11, 2013, the Petitioner filed a pro se petition for writ of error coram nobis, attaching as exhibits a transcript of the trial testimony of Mr. Talley and a copy of the December 6, 2012, sworn statement. The trial court appointed counsel who filed an amended petition for writ of error coram nobis. An evidentiary hearing was held on February 18, 2014, in which Mr. Talley testified. The trial court took the matter under advisement. By written order filed on April 2, 2014, the trial court found the Petitioner had failed to prove that he was entitled to relief and dismissed the petition. In its detailed and thorough order, the coram nobis court stated:
The facts at trial showed that, on the night of January 31, 1999, the Petitioner, Torrey Glenn, Marquese Woods and Paul Talley were driving in Davidson County, Tennessee when they saw Andrew Titus walking near 9th Avenue North and Buchanan Street. They parked the vehicle, armed themselves and approached Mr. Titus while Mr. Talley stayed behind to act as ...