Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 14, 2017
from the Criminal Court for Jackson County No. 02-160 John D.
Wootten, Jr., Judge
Jackson County Criminal Court Jury convicted the Petitioner,
Michelle Dawn Shoemaker, of first degree premeditated murder,
conspiracy to commit first degree premeditated murder,
solicitation of first degree premeditated murder, and
tampering with evidence, and she received an effective life
sentence. Subsequently, the Petitioner filed a petition for a
writ of error coram nobis, alleging newly discovered evidence
in the form of an affidavit from a co-conspirator, who was
also the Petitioner's mother, stating that the Petitioner
was not involved in the victim's death. The coram nobis
court summarily denied the petition, and the Petitioner
appeals. Based upon the record and the parties' briefs,
we affirm the judgment of the coram nobis court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Michelle Dawn Shoemaker, Pro Se, Memphis, Tennessee.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Tom P.
Thomspon, Jr., District Attorney General; and Howard L.
Chambers, Assistant District Attorney General, for the
appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.
MCGEE OGLE, JUDGE.
case relates to a conspiracy by the Petitioner; her husband,
Dean Shoemaker; her mother, Carol Kerr; and Robert Foutch,
who lived with the Petitioner and her husband for a period of
time, to kill the Petitioner's stepfather, Jim Kerr, and
share $64, 000 in life insurance proceeds received by Mrs.
Kerr. At trial, the State presented four written statements
given by the Petitioner to the police after the victim's
death. See State v. Michelle Shoemaker, No.
M2005-02652-CCA-R3-CD, 2006 WL 3095446, at *2 (Tenn. Crim.
App. at Nashville, Nov. 2, 2006), perm. to appeal
denied, (Tenn. Mar. 12, 2007). In her first statement,
the Petitioner claimed that on June 29, 2002, she and Mrs.
Kerr went shopping, returned to Mrs. Kerr's home, and
found the victim deceased. Id. In her second
statement, the Petitioner claimed that after she and Mrs.
Kerr returned to the Petitioner's home from shopping,
Dean Shoemaker told them that Mr. Foutch had killed the
victim. Id. She stated that she went with her
husband and Mr. Foutch to dispose of evidence on July 4,
2002, and that Mrs. Kerr claimed to have hired Mr. Foutch to
kill the victim. See id. In her third statement, the
Petitioner said that prior to the victim's death, Mrs.
Kerr had complained about him and had made statements about
hoping he would get hurt at work or run over by a tractor.
See id. at *3. In her final statement, the
Petitioner said that the night before the victim's death,
she, her husband, Mrs. Kerr, and Mr. Foutch decided that Mr.
Shoemaker and Mr. Foutch would go to the victim's home
the next day and kill the victim while the Petitioner and
Mrs. Kerr were shopping. Id. The Petitioner stated
that she "'never thought they would really go
through with it'" and that she did not tell the
truth in her previous statements because she was afraid of
what would happen to her if she did so. Id.
Shoemaker pled guilty to second degree murder in exchange for
a thirty-five-year sentence to be served as a Range II
offender. Id. at *4. He testified at the
Petitioner's trial and implicated her in conspiring to
kill the victim. See id. at *5. Mr. Foutch also pled
guilty to murder in exchange for a thirty-five-year sentence
and testified at the Petitioner's trial. See id.
at *6. During his testimony, he stated that he heard Mrs.
Kerr say she would pay someone to get rid of the victim, that
the Petitioner and Dean Shoemaker approached him about
killing the victim, and that the "plan" was for the
Petitioner and Mrs. Kerr to go shopping while Mr. Shoemaker
and Mr. Foutch went to the Kerr home and killed the victim.
Id. Mr. Foutch said that on the day of the
victim's death, the victim was outside near his truck
when Mr. Foutch hit him on the back of the head and shot him
three or four times. Id. Mr. Shoemaker then shot the
victim one time. Id.
Petitioner testified at trial that prior to the victim's
death, her mother had been saying that she no longer wanted
to be with him and that she wished he would have an accident
or that someone would kill him. Id. at *7. The
Petitioner, her husband, and Mr. Foutch discussed killing the
victim, but the Petitioner never took the discussions
seriously. Id. The night before the victim's
death, the Petitioner heard her husband, her mother, and Mr.
Foutch talking about how to kill the victim, and the
Petitioner told them that she did not want to hear anymore
about it. Id. The next day, the Petitioner and her
mother went on a pre-planned trip to Wal-Mart. Id.
While they were gone, the Petitioner's husband telephoned
her and told her to hurry home. Id. When the
Petitioner and her mother returned to the Petitioner's
residence, the Petitioner's husband told her something
that made her think something might have happened to the
victim. Id. She and her mother went to her
mother's home and found the victim. Id.
6, 2005, a Jackson County Criminal Court Jury convicted the
Petitioner of first degree premeditated murder based upon a
theory of criminal responsibility; conspiracy to commit first
degree premeditated murder; solicitation of first degree
premeditated murder; and tampering with evidence. On June 21,
2005, approximately six weeks after the verdicts, Carol Kerr
entered a best interest plea, also known as an
Alford plea, to second degree murder in exchange for
a fifteen-year sentence to be served at 100%. According to
the facts given by the State during the plea hearing, Mrs.
Kerr was to keep one-half of the insurance proceeds received
from the victim's death, and the Petitioner, Mr.
Shoemaker, and Mr. Foutch were to divide the remaining half.
The State advised the trial court that it spoke with the
Petitioner prior to Mrs. Kerr's plea hearing and made no
promises to the Petitioner about the Petitioner's
sentences. The State also advised the court that the
Petitioner wanted to testify against her mother and planned
to testify at Mrs. Kerr's trial that Mrs. Kerr helped
plan the victim's death, that Mrs. Kerr intended to share
in the insurance money, and that "all of this between
the four of them resulted in Mr. Kerr's death."
25, 2005, the trial court ordered that the Petitioner serve
concurrent sentences of life for first degree premeditated
murder; twenty years for conspiracy to commit first degree
premeditated murder, a Class A felony; eight years for
solicitation of first degree premeditated murder, a Class B
felony; and three years for tampering with evidence, a Class
C felony. Id. at *1. The court merged the
solicitation conviction into the murder conviction.