Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015
Appeal from the Circuit Court for Rutherford County No. F-34370B David M. Bragg, Judge
Larry Stephen Brumit, Mountain City, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and William Whitesell, 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 Timothy L. Easter, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Factual and Procedural Background
On July 7, 1997, the Petitioner was convicted of two counts of first degree murder and one count of conspiracy to commit first degree murder. This Court affirmed his convictions on direct appeal. State v. Larry S. Brumit, No. M1999-00154-CCA-R3-CD, 2000 WL 502681, at *16 (Tenn. Crim. App. April 28, 2000), perm. to app. denied (Tenn. Dec. 4, 2000). On December 27, 2001, the Petitioner filed a petition for post-conviction relief alleging, among other things, ineffective assistance of counsel. The petition was denied, and this Court affirmed the denial on appeal. Larry Stephen Brumit v. State, No. M2003-00488-CCA-R3-PC, 2004 WL 1064131, at *13 (Tenn. Crim. App. May 12, 2004), perm. to app. denied (Tenn. Sept. 7, 2004).
On March 18, 2014, the Petitioner filed a Petition for Writ of Error Coram Nobis ("the petition"). In that petition, the Petitioner noted that more than one year had passed since the final judgment was entered in this case but averred that less than one year had passed since the disclosure of the newly discovered evidence. The newly discovered evidence was a copy of a recorded interview between himself and trial counsel recorded in the Rutherford County Adult Detention Center shortly after the Petitioner was arrested. The Petitioner discovered this tape in a box he received from the State in response to his public records request.
The Petitioner asserted that such evidence "was gathered in violation of the Fourth Amendment and violated his Sixth Amendment right to effective assistance of counsel . . . Additionally, such communication violates Tennessee Code Annotated §§ 23-3-105, 23-3-107, 41-4-114, and Art. I. §§ 7, 8, and 9 of the Constitution of the State of Tennessee." He further claimed that the newly discovered evidence would have resulted in a different judgment at trial because "the District Attorney's Office had privileged information regarding the underlying facts of the case along with a 'play-book' of the defense strategy that would be used at trial." Additionally, the Petitioner claimed "that the recorded conversations guided the government's trial strategy and produced, directly or indirectly, at least some of the evidence relied upon by the government at trial." In support of these arguments, the Petitioner cited Strickland v. Washington, 466 U.S. 668 (1984), and United States v. Cronic, 466 U.S. 648 (1984).
This Court has listened to the tape recording. It begins with a 911 call made by the wife of one of the victims. After a break in the recording, it switches to a recorded interview between the Petitioner and trial counsel and clearly contains confidential communications. It appears to be an initial meeting between trial counsel and the Petitioner in which they discussed the facts of the case and the Petitioner's involvement in the offense. Additionally, trial counsel explained possible plea deals that he may be able to negotiate on the Petitioner's behalf, as well as the possibility that the Petitioner could take the case to trial. There are three references that indicate both parties knew that trial counsel was recording their conversation. First, at the beginning of the recording, trial counsel said, "Like I was saying, this is the second tape, by the way, of my interview with [the Petitioner], June the 7th." Second, when the Petitioner was speaking, trial counsel told him, "I was going to say, don't talk real loud. Loud enough so that the tape recorder can pick it up." Finally, at the conclusion of the interview, trial counsel asked, "Okay. Anything else before I turn this thing off?" The Petitioner responded in the negative and the recording ends. It is unclear when or from whom the State received a copy of the recording that was provided to the Petitioner.
On April 8, 2014, before the State filed a response, the coram nobis court summarily dismissed the petition. The coram nobis court found that the Petitioner's claims did not relate to newly discovered evidence of matters that could have been litigated at trial but instead asserted a violation of his Sixth Amendment rights. It also summarized trial counsel statements as "the Petitioner's attorney advised him then not to speak loudly as there is a chan[c]e it could be picked up on a tape recorder" and concluded that, if the Petitioner was concerned that the State had a recording of his conversation, he could have addressed it during the trial. Additionally, the coram nobis court noted that the Petitioner had failed to establish how the State's possession of the taped interview would have resulted in a different judgment at trial. Finally, the coram nobis court concluded that the petition was time-barred.
On May 8, 2014, the Petitioner filed a pro se Motion for New Trial. On May 12, 2014, the coram nobis court dismissed the Motion for New Trial, noting that the Petitioner was convicted in September 1996 and the judgments were entered in June 1997. As such, the coram nobis court held that the 2014 Motion for New Trial was "exceedingly past due." To the extent that the Motion for New Trial was a request that the coram nobis court reconsider its ruling on the petition, the coram nobis court declined to do so. Instead, it noted that the proper procedure ...