Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 20, 2017
from the Criminal Court for Sullivan County No. S38912 R.
Jerry Beck, Judge
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.
R. App. P. 3; Judgment of the Criminal Court
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
Curwood Witt, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
CURWOOD WITT, JR., JUDGE
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.
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.
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.
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 " 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.
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.
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 ...