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Cradic v. State

Court of Criminal Appeals of Tennessee, Knoxville

May 26, 2017


          Assigned on Briefs January 18, 2017

         Appeal from the Criminal Court for Sullivan County No. S48157 R. Jerry Beck, Judge

         The Petitioner, Kenneth J. Cradic, appeals as of right from the Sullivan County Criminal Court's denial of his petition for writ of error coram nobis relief. The Petitioner contends that the coram nobis court erred in denying his petition because he presented newly discovered evidence of his actual innocence through a new witness who would discredit the victim's trial testimony and evidence that the victim recanted her trial testimony on numerous occasions since the trial. Discerning no error, we affirm the judgment of the coram nobis court.

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

          David S. Barnette, Jr., Kingsport, Tennessee, for the appellant, Kenneth J. Cradic.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Barry Staubus, District Attorney General; and Andrea Black, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.


          D. KELLY THOMAS, JR., JUDGE.


         The Petitioner is currently serving a total effective sentence of forty years' incarceration as a result of his 2006 convictions for three counts of rape of a child and three counts of incest. See State v. Kenneth J. Cradic, No. E2006-01975-CCA-R3-CD, 2008 WL 2937882, at *1 (Tenn. Crim. App. July 31, 2008), perm. app. denied (Tenn. Jan. 20, 2009). The evidence at trial established that the Petitioner admitted to police investigators that he had sex with the victim, his daughter, on at least one occasion. Id. At *1-2. The victim testified that the Petitioner vaginally penetrated her on three occasions at his home and a motel. Id. at *2.

         As pertinent to our review, the victim admitted during cross-examination at trial that she told the Petitioner's wife, "that . . . the [Petitioner] did these things to her because she was afraid of the actual perpetrator." Cradic, 2008 WL 2937882, at *2. The victim also admitted "that she told two other people that the [Petitioner] was not the person who touched her." Id. On redirect examination, the victim testified that her mother's boyfriend, Larry Ritchie, "also touched her but that he did so after the [Petitioner] had touched her." Id. The victim also testified that the Petitioner's wife promised to "buy her gifts if she would tell the authorities that the [Petitioner] did not do anything." Id. One of the victim's cousins testified on the Petitioner's behalf that the victim had said that Larry Ritchie, "not the [Petitioner], 'did it.'" Id.

         The Petitioner filed a motion for new trial alleging newly discovered evidence of his innocence in the form of an affidavit from his stepmother stating that "the victim had informed her that the Petitioner did not commit the alleged offenses and that Larry Ritchie had threatened the victim and forced her to testify that the Petitioner committed the alleged offenses." Kenneth J. Cradic v. State, No. E2010-00140-CCA-R3-PC, 2010 WL 2612736, at *6 (Tenn. Crim. App. June 30, 2010). Specifically, the affidavit alleged that Larry Ritchie had threatened to harm the victim, her grandmother, and her brother if she did not testify that the Petitioner had raped her. The trial court denied the Petitioner's motion for new trial on August 16, 2006. This court affirmed the Petitioner's convictions on direct appeal. Cradic, 2008 WL 2937882, at *8.

         On May 8, 2015, the Petitioner filed a pro se petition for writ of error coram nobis relief. The essence of the petition was that the Petitioner had recently received a copy of a letter his son, Charles Cradic, had written to the governor as part of the Petitioner's application for clemency. A copy of the letter was attached to the petition. Mr. Cradic alleged in the letter that he knew the Petitioner had not raped the victim because he was always with the victim when she visited the Petitioner, that he had actually witnessed Larry Ritchie rape the victim, that Larry Ritchie threatened him and the victim by threating to "kill [their] family, " and that he wanted to testify at trial about these matters, but he was prevented from doing so by his mother and grandmother.

         An attorney was appointed to represent the Petitioner in this matter, and an amended petition was filed along with affidavits from the Petitioner, Mr. Cradic, and Mr. Cradic's ex-girlfriend, Amber Keys. The Petitioner's affidavit alleged that he was unaware of the facts alleged in Mr. Cradic's letter until he received a copy of it in July 2014. Mr. Cradic's affidavit made the same allegations as those raised in his letter and also claimed that the victim had "informed [him] years after the trial that [the Petitioner] did not rape her." Ms. Keys's affidavit alleged that the victim had told her ...

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