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State v. Johnson

Court of Criminal Appeals of Tennessee, Knoxville

May 1, 2018


          Assigned on Briefs December 20, 2017

          Appeal from the Criminal Court for Sullivan County No. S38912 R. Jerry Beck, Judge

         The petitioner, Andrew Young Johnson, appeals the denial of his petition for writ of error coram nobis, which petition challenged his 1998 convictions of attempted first degree murder and felony reckless endangerment. Discerning no error, we affirm the denial of coram nobis relief.

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

          David S. Barnett, Jr., Kingsport, Tennessee, for the appellant, Andrew Young Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Emily Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

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



         In 1998, a Sullivan County Criminal Court jury convicted the petitioner of one count of attempted first degree murder and one count of felony reckless endangerment. This court affirmed the convictions and accompanying 25-year sentence on direct appeal. State v. Andrew Young Johnson, No. E1999-00002-CCA-R3-CD, (Tenn. Crim. App., Knoxville, Apr. 18, 2000). The crimes in this case came on the tail end of a night the petitioner spent "drinking and partying with [Andrew] Birdwell, James Felty, and one other young man." Id., slip op. at 2. While at Birdwell's house, "the [petitioner] showed the others a Derringer, a twenty-five millimeter semi-automatic pistol, and a nine millimeter Ruger semi-automatic pistol, all of which were on the [petitioner]'s person at Birdwell's house." Id. The young men traveled to a location on "Weaver Pike to shoot the guns, " where "only the [petitioner] shot the nine millimeter pistol." Id. "After shooting the guns, the group got back into the car, with Felty driving, and . . . . [a]s they were driving along Auburn Street, the [petitioner] told Felty to stop the car, which he did." Id. Once the car stopped, the [petitioner] got out of the car, fired his weapon, and then returned to the car. Mr. Felty drove away after the petitioner demanded that he do so, but when the petitioner asked to return to the scene of the latter shooting, "Felty told the [petitioner] he would have to drive himself, and Felty got in the backseat." Id. "When the [petitioner] got close to the house where he had fired the shots, he and his companions could see that the police were there, so the [petitioner] drove the car down a side street." Id., slip op. at 3. Shortly thereafter, the petitioner crashed the car, and the four young men ran away, with Felty and his companion running in one direction and the petitioner, who was wearing a Michigan Wolverines jacket, and Birdwell, who was wearing a Kansas City Chiefs jacket, running in the other. Id.

         Bristol Police Department Lieutenant Craig Beyer "responded to a call that shots had been fired in the Auburn Street area" and "was directed by neighbors to 101 Auburn Street, the residence of Mike Walling, who was inside the house at the time of the shooting." Id. Bullet holes riddled the house and a car parked in the rear of the house. Officer Gary Privette "received information . . . about the shooting at 101 Auburn and about the car accident on the nearby side street" and "learned that the four suspects included two black males wearing sports jackets." Id. Officer Privette joined in the search for the young men, and, after learning that two of the suspects had been caught, "[h]e reasoned that the two other suspects would have had time to reach Volunteer Parkway, so he drove in that direction." Id. "Soon, he spotted two black males in sports insignia-type jackets walking along the street" but "was unable to use his radio to alert backup because another officer had come on the radio at the same moment, and he could not get through." Officer Privette stopped his car, "'went to the rear of the vehicle, '" and drew his gun into "'a gun ready position'" angled toward the ground. Id. He ordered the men to "'get their hands up.'" The petitioner initially raised his hands, "'[a]nd then he went to say something, he dropped his hands down like this.'" Id., slip op. at 4. The petitioner then "'dropped down behind a wall'" of "'timbers that was reinforcing a-like a flower bed'" and "'immediately came back up.'" Id. When the petitioner came up from behind the wall, he was holding his hands together and appeared to be aiming something at Officer Privette. Officer Privette said that when he "'heard two clicks, " he "presumed it to be a weapon." Id., slip op. at 5. The petitioner then went back behind the wall, and Officer Privette took cover behind the left tire of his patrol car. Before he could get into a position to see the two men, he "'heard the gun rack'" and gunfire started to strike the patrol car, shattering the window and puncturing the tire behind which Officer Privette had positioned himself. Id. Officer Privette testified that "[t]he individual shooting at him was wearing a blue and yellow Michigan State jacket that appeared mostly gray in the light. The other male was wearing a red and yellow jacket." Id.

         Officer Harold Wayne Tucker responded "with Boris, his trained police dog, " to a "location close to the scene of the gunfire to receive instructions." Id., slip op. at 6. He went with the dog to a couple of different locations where the suspects had been spotted, and the "dog quickly picked up a trail that led to a construction trailer behind a red metal building." Id. Officer Tucker saw a "'white tennis shoe'" peak briefly out from under the trailer before he "'start[ed] hearing gunfire.'" Id. Boris came out from underneath the trailer and succumbed to the four gunshot wounds he had received. Id., slip op. at 7. When Officer Tucker went to the ground himself, he saw "'two individuals under it, '" one of whom was holding "'a large frame automatic in his hand'" pointed "'towards where . . . back up officers were'" located. Id. "'[T]he one with the automatic said something about shooting someone'" and then pointed the gun at Officer Tucker. Officer Tucker, who feared for his life, fired a single round, causing the suspect holding the weapon to drop it to the ground. Officer Tucker recalled that the armed suspect wore "'a bluish jacket'" with "'couple of other colors, '" including "'yellow on'" it while the unarmed suspect wore "'a maroon jacket.'" Id., slip op. at 8. He identified the one wearing the blue and yellow jacket as the petitioner. Id.

         Officer Kenneth Smith recovered a 9mm Ruger pistol from underneath the construction trailer and "two other weapons from the [petitioner]'s person at the time of arrest-a Derringer and a twenty-five millimeter pistol.'" Id. Ballistics testing established that "[11] shell casings taken from Auburn Street; six shell casings [taken] from English Street where Officer Privette was fired on, as well as other shell casings taken from Williams Street in Bristol, Virginia; two bullets taken from the police dog at the Williams Street site; . . . and bullets taken from Officer Privette's police car" had all been fired from the 9mm Ruger recovered from underneath the construction trailer. Id.

         On April 2, 2015, the petitioner placed in the prison mailing system a petition for writ of error coram nobis claiming entitlement to relief on grounds that newly discovered evidence cast doubt upon his guilt. He claimed that on April 2, 2014, he had received an audio recording of an interview with Mr. Birdwell and that the revelations in the interview indicated that the petitioner had not acted with premeditation. Specifically, he asserted that Mr. Birdwell told officers that he did not hear the petitioner's weapon click before the petitioner fired the weapon and that the petitioner told Mr. Birdwell that he had shot only at the police cruiser and not at Officer Privette. The trial court appointed counsel, and appointed counsel filed an amended petition for writ of error coram nobis that claimed due process tolling of the one-year statute of limitations for filing a petition for writ of error coram nobis because the State had withheld the Birdwell interview. The State asserted the statute of limitations as an affirmative defense, arguing that even if the recording had not been disclosed prior to trial, the petitioner had been aware of its contents since at least 2005. The State also asserted that the recording did not contain any evidence favorable to the petitioner.

         At the March 9, 2017 hearing on the petition, the petitioner testified that he had been in continuous confinement since his arrest on February 12, 1996, beginning his stint of incarceration in federal custody. While in federal custody, he was transferred to several different facilities. At some point, a friend's wife was able to look through the record in his case, and she alerted him to the presence ...

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