Session December 6, 2016
from the Circuit Court for Gibson County No. 13762 Don R.
Ash, Senior Judge.
Cauthern ("the Petitioner") filed a petition for
writ of error coram nobis in the Gibson County Circuit Court,
alleging that he was entitled to a new trial based on newly
discovered evidence. The coram nobis court summarily denied
the petition after concluding that the petition was untimely.
The Petitioner now appeals the denial of coram nobis relief.
Upon review, we affirm the coram nobis court's
determination that the Petitioner's claim regarding an
unedited videotape is time-barred. However, we reverse the
judgment of the coram nobis court as to the Petitioner's
claim regarding lab bench notes and remand for the coram
nobis court to determine whether the Petitioner is entitled
to due process tolling on this claim.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part, Reversed in Part, and Remanded.
Michael R. Working, Memphis, Tennessee, for the appellant,
Ronnie M. Cauthern.
Herbert H. Slatery III, Attorney General and Reporter; James
E. Gaylord, Senior Counsel; John W. Carney, District Attorney
General; and Arthur F. Bieber and Robert J. Nash, Assistant
District Attorneys General, for the appellee, State of
Stephen Ross Johnson, Knoxville, Tennessee; and Dimitrios T.
Drivas, Brendan G. Woodard, and Jayashree Mitra, New York,
New York, for amicus curiae, The Federal Republic of Germany.
L. Holloway, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Alan E. Glenn, JJ., joined.
L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
1988, the Petitioner and co-defendant Brett Patterson were
convicted by a Montgomery County jury of first degree
burglary, aggravated rape, and two counts of felony murder
for their involvement in a 1987 home invasion that occurred
in Clarksville. State v. Cauthern, 778 S.W.2d 39, 40
(Tenn. 1989). Following the penalty phase of the trial, the
jury sentenced co-defendant Patterson to life imprisonment,
and the Petitioner received the death penalty for both
murders. Id. The Tennessee Supreme Court provided
the following facts on the Petitioner's initial direct
The Smiths were both captains in the U.S. Army stationed at
Fort Campbell Kentucky. They lived in a split-level home in
Clarksville, Tennessee, that they had purchased shortly after
assignment to the nearby base. Both were nurses. When neither
of them reported to their duty stations on the morning of 9
January 1987 and telephone calls to their home received no
answer, two persons from the base went to their home,
observed broken glass in the rear door, and both cars in the
garage. A 911 call was made and the police arrived promptly
and discovered the body of Patrick Smith lying face down on
the bed in the master bedroom, facing 90 degrees counter
clockwise from his sleeping position, and wrapped in the top
sheet. He had been strangled to death, apparently with a
length of 880 military cord. The bed was broken and tilted
indicating a violent struggle had taken place. His wife's
nude body was found on the floor. A scarf was tied around her
neck and a small vase had been inserted into the scarf. She
died of strangulation, the vase was obviously used to twist
the scarf and reduce the circumference. Both had massive
hematoma of the neck area. Mrs. Smith's nightgown and
buttons torn from it were found in the room. Semen was
apparent on the gown and a comforter from the bed. Sperm was
found in the vaginal vault. Tests revealed the presence of
PGM Type 1 secretions. The forensic serologist testified that
the PGM Type 1 from the swab "was consistent with [the
Petitioner], as well as Rosemary Smith."
The police found the telephone line had been cut near its
entry into the outside wall of the house. A shoe print was
found on the back door that matched [co-defendant]
Patterson's shoe. In a statement that [co-defendant
Patterson] gave police he admitted kicking the back door once
or twice, but said it would not open so [the Petitioner and
co-defendant Patterson] obtained a hammer and broke the pane
of glass nearest the door knob to gain entry. The house was
ransacked, chest of drawers open, luggage and clothing
scattered about. In the master bedroom, the police found a
piece of paper upon which was written [the Petitioner's]
name, address and telephone number. Rosemary Smith's
sister testified she was familiar with both her sister's
and her brother-in-law's handwriting and the information
about [the Petitioner] was not written by either of them. The
cumulative evidence in this record establishes that [the
Petitioner] and the Smiths had been acquainted for
approximately a year at the time of the murders, that he had
performed some work on Patrick's Mercedes and perhaps
some additional work at their home, although [the Petitioner]
said in one of his statements that he had never been inside
their home until the evening of 8 January 1987.
As far as this record shows[, ] the investigation of these
murders did not focus on [the Petitioner] and [co-defendant]
Patterson until James Phillip Andrew telephoned the
Clarksville Police and asked to speak to an officer he had
seen on T.V. news in a segment reporting on the double
murder. That call was made at about 11:00 a.m. Monday morning
12 January 1987. A meeting with Andrew was arranged and as a
result of the information he gave police, [the Petitioner]
and [co-defendant] Patterson were arrested that afternoon.
Andrew was in the U.S. Army stationed at Fort Campbell. He
was living in a trailer located in a mobile home park in Oak
Grove, Kentucky, which he shared with Joe Denning and another
man. Joe Denning was acquainted with [the Petitioner] and
[co-defendant] Patterson and Andrew became acquainted with
them through Denning. Andrew testified that [the
Petitioner] and [co-defendant] Patterson came to the trailer
to see Denning about 3:00 or 4:00 a.m. on Friday morning, 9
January, that after being awakened by their arrival he went
back to sleep and neither heard nor saw anything relevant to
the Smith murders. Andrew went to work at the base as usual
that day and saw [the Petitioner] again that night at the
trailer and later at Rockvegas. It was not until Saturday
afternoon at the trailer when they started to get
"high" smoking marijuana that [the Petitioner]
began telling Andrew about his role in the Smith murders.
Andrew did not believe him until [the Petitioner] went to his
car trunk and brought a box into the trailer containing
credit cards, identification cards in the names of Patrick
and Rosemary Smith, clothing and other items of personal
property taken from their home.
[The Petitioner] gave several statements to the police, one
of which was recorded on tape, transcribed and introduced at
trial. Although he admitted participating in a robbery of the
Smith premises, he denied that he "planned"
anything or raped or murdered anyone. He claimed that he had
had sexual relations with Mrs. Smith twice before and that
she invited him to come to the Smith house and knock on the
back door that Thursday evening. His statement to the police
contained numerous contradictions and discrepancies. The
"statement" he gave Andrew on Saturday afternoon
while high on marijuana more closely coincided with proven
events than any version that appears in this record. We quote
from that part of Andrew's testimony, as follows:
A[:] He said that him and [co-defendant] Patterson went to
the Smith's house-see, I didn't know the names then.
Q[:] Was the name at that time not in the murder report in
A[:] They weren't in the newspaper, there were no names
and he said how they broke into the house, they kicked the
door and they broke the window in the door, they opened the
door, went in and they said they were sleeping and they woke
up and Mr. Smith-you know, kept saying-what do you want and
he said-[the Petitioner] said that [co-defendant] Patterson
had jumped Mr. Smith and [the Petitioner] had told Mrs. Smith
to get in the closet. While he was doing that, they were
trying to strangle-said they was trying to strangle Mr. Smith
and [the Petitioner] took Mrs. Smith in another room and said
he had raped her then and went back in to help [co-defendant]
Patterson with Mr. Smith, and they said they couldn't get
him down and they had to use a strap or belt, I don't
know, to strangle him, and when they got him down, they both
went in and then they raped her and then [the Petitioner]
killed Mrs. Smith-
Q[:] [The Petitioner] killed who?
A[:] Mrs. Smith.
Q[:] Did he tell you how he killed Mrs. Smith?
Q[:] Tell the ladies and gentlemen of the jury what he told
you as to how he did that?
A[:] Okay, he first tried to strangle her, he couldn't do
it, and then he grabbed the scarf, wrapped it around her neck
and put a vase in it like a tourniquet and turned it until
Q[:] Did he talk to you about the sexual-
Q[:] What did he tell you about that?
A[:] He says-that she wasn't putting up a fight, she
Q[:] He told you that she was enjoying it?
A[:] She enjoyed it, yes.
Q[:] Anything else he said about the rape?
A[:] Not about the rape, no-after that, do you want me to