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Duncan v. State

Court of Criminal Appeals of Tennessee, Nashville

July 19, 2017

DAVID C. DUNCAN
v.
STATE OF TENNESSEE

          Assigned on Briefs June 20, 2017

         Appeal from the Criminal Court for Sumner County No. 2016-CR-802 Dee David Gay, Judge

         Nearly thirty-five years from the date Petitioner, David C. Duncan, burglarized the home of, raped, and then killed a victim in Sumner County, he appeals the summary denial of his petition for writ of error coram nobis. Upon our review of the record, not only is the petition untimely, it also fails to allege any newly discovered evidence that may have affected the outcome of Petitioner's trial. Therefore, we affirm the judgment of the trial court.

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

          David C. Duncan, Nashville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; and Lawrence Ray Whitley, District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE.

         In November 1984, Petitioner was convicted of second degree murder, aggravated rape, and first degree burglary and was sentenced to forty years to be served concurrently with a separate case in which he received the death penalty.[1] On direct appeal, this Court affirmed Petitioner's convictions. State v. David Carl Duncan, No. 85-11-III, 1986 WL 5470 (Tenn. Crim. App. May 13, 1986), perm. app. denied (Tenn. Jul. 28, 1986). Petitioner subsequently filed a petition for post-conviction relief, the denial of which was affirmed by this Court on appeal. David C. Duncan v. State, No. 01C01-9203-CR-00089, 1992 WL 389641 (Tenn. Crim. App. Dec. 31, 1992), perm. app. denied (Tenn. June 1, 1993).

         Petitioner filed the present petition for writ of error coram nobis on December 5, 2016, alleging that the grand jury that issued the indictment in this case was tainted by the fact that the foreman was related to the victim. See Tenn. R. Crim. P. 6(c)(1)(D); T.C.A. § 22-1-104. Petitioner claimed that he discovered this new evidence in January of 2016. On January 4, 2017, Petitioner filed a motion to amend in order to include as exhibits printouts from a website, ancestry.com, purporting to show that the victim and the foreman were second cousins. Petitioner also filed a motion to be appointed counsel.

         On January 17, 2017, the trial court entered an order denying coram nobis relief. In addition to determining that the petition was untimely, the trial court found that the evidence was not "newly discovered" because the names of both the victim and the grand jury foreman, who shared the same last name, were listed on the indictment and were "part of the public record in this case from its inception." The trial court also found that this alleged newly discovered evidence would not have changed the result of the jury verdict in this case because it had no bearing on the evidence presented at trial.

         On January 24, 2017, the trial court filed an addendum to its order denying coram nobis relief. The trial court found that Petitioner was not truthful when he claimed that he only recently became aware of the relationship between the grand jury foreman and the victim. The trial court determined that, as part of his earlier post-conviction proceedings, Petitioner filed a pro se amended petition for post-conviction relief on September 30, 1991, alleging that the indictment was void due to the familial relationship between the foreman and the victim as well as a motion for the production of "genealogical" evidence to support this claim. Because Petitioner had previously raised this claim, the trial court determined that his present petition for writ of error coram nobis was not well-taken.

         Petitioner filed a ...


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