The Tonya Hudkins McCartor

Freedom For Tonya Hudkins McCartor (Margo Freshwater)

Update: 10/6/2008

A year ago (as of 10-2-08), the court of appeal heard our case for a new trial. It took until 10-6-08 for them to make their opinion. I thought that they only had two choices: give us a new trial, or not give us a new trial. As it turns out, they had a third choice. That is the one you see below. In short, they said that the judge didn’t rule based on a standard set forth by the appellate court. So they have handed it back to the trial court to do again.

Cases posted the week of 10/6/2008

Margo Freshwater vs. State - W2006-01758-CCA-OT-CO

Shelby County -Petitioner, Margo Freshwater, again seeks relief from the trialcourt’s denial of her petition for writ of error coram nobis. In an earlier appeal, after . determining that Petitioner’s petition for writ of error coram nobis was not barred by the statute of limitations, this Court remanded the matter to the trial courl for an evidentiary hearing on the petition. See Freshwater v. State, 160 S.W.3d 548, 558 (Tenn. Crim. App. 2004). In that hearing on remand, Petitioner was to be given the opportunity to establish that there is a ‘reasonable probability’ that the newly discovered evidence may have resulted in a different judgment if the evidence had been admitted at the previous trial,” Id. Petitioner was also required to establish that she was ~without fault in failing to present the newly discovered evidence at the appropriate time.” Id. After conducting the evidentiary hearing on remand, the trial court denied the petition. The trial court ruled that this Court had already made the determination that Petitioner was without fault in failing to discover and present the evidence at the appropriate time. Further, the trial court determined that Petitioner failed to demonstrate that the presentation of the suppressed exculpatory evidence “would have” led to a different result if presented at Petitioner’s trial. Because this Court’s determination as to Petitionefl fault in the first appeal was applicable solely to whether the statute of limitations for presentation of the writ of error coram nobis should be tolled and because the trial court utilized a “would have” rather than a “may have” standard to determine whether Petitioner was entitled to coram nobis relief, we reverse and remand the matter to the trial court for further proceedings consistent with this opinion.

Update: 9-1-2007

We have an appellate hearing on October 2, 2007 which will determine whether Tonya gets a new trial, or they just drop the whole thing and let her go. This, however, will still take six to nine more months of legal maneuvering. We have been at it now for over five years. You can read about all that has happened on the legal front elsewhere on the website. The state knows they don't have a chance to convict her again in a new trial. That is why they have been fighting us as we go for one. We feel that the appellate court will rule in our favor as they did for us two years ago when we appealed for an evidentiary hearing, but the judge in the lower court ruled against us for a new trial, against the appellate court's guidelines. We will not have that to deal with him anymore.

If this appellate court rules in our favor, the charges and conviction will be dropped. The state then has 30 to 60 days to appeal. If they do, and the state supreme court denies them the appeal, they then will try to give us a plea bargain on a lesser charge and consider time served. If we don't accept it, we will go to trial. The total time for all of this may be up to two more years. The clock starts ticking as of October 2. However, if we don't get a ruling in our favor, we will go to the Supreme Court on appeal. We feel strongly, though, that things will go in our favor.

Hope you all are doing well.

Sincerely,
Daryl, husband of Tonya

Update: 6-17-2007

There has not been much to update the site since our last hearing, due to the long legal process. As of March 5th, Tonya’s attorney filed our brief with the appellate court. The state of Tennessee, as of June 6th, has filed for the third time an extension of 30 days. This is the last time they can file an extension with the court. We expect to give oral arguments by late summer or early fall. We are hopeful that the appellate court will rule in our favor by the end of the year. If so, that means we will get a new trial some time next year. However, the state of Tennessee may try to appeal the court's ruling, dragging the legal process out still longer. As soon as we get the date for the appellate court it will be posted on this web site along with the latest ruling.

The current update on Tonya’s health, after having to start a new medication March of this year for her heart arrhythmia, is such that she is much weaker than with her old medication (Enkaid). It is not being made anymore due to adverse side effects, none of which she suffered from. But still, the new one does keep her heart beating, it just doesn’t let her have the stamina she once had. We are hoping that when she comes home we can find a good cardiologist that can help with the problem. Medical help is not the best when you are incarcerated, as you might expect.

Thanks for your support and please check back and tell others about this site.

Sincerely, Daryl (Husband of Tonya)

Appeal Process News

On May 4, 2004 at 9:30 a.m., Tonya's attorney presented her case to the Tennessee Criminal Court of Appeals in Jackson Tennessee. This hearing is a result of being denied an evidentiary hearing at our first hearing on April 24, 2003.

October 31, 2004

Tennessee supreme court upholds appellate ruling for evidentiary hearing.

October 14, 2005

First scheduled time for hearing. Postponed to December 14th 2005, and again postponed to May 2006.

May 8, 2006
Evidentiary hearing was held, currently awaiting ruling to be issued on July 10.

Past Appeal Process Updates

April 2003

May 2004

November 2004

Court of Criminal Appeals Opinion
8-30-04

State vs. Margo Freshwater

“Because due process requires the tolling of the statute of limitations for filing the petition for writ of error coram nobis with respect to the petitioner's claim of previously withheld exculpatory evidence, we reverse the judgment of the trial court and remand the matter for an evidentiary hearing on the petition.”

The exculpatory evidence was withheld at the time of her first trial. This could not be accessed until 1998 when the laws in the State of Tennessee changed. How ever her first attorney and her never new it existed do to it not being tuned over to her public defender. It became known to us after investigating her case during the first year after acquiring her current attorney and using a x-FBI agent to investigate the states prosecutions files. Again this could not have been done before 1998.

Daryl McCartor’s Opinion

“The obvious assumption here is that she would have spent all of these past years in prison never knowing this evidence existed had she not escaped. She would have never had a family and probably would have died there never knowing this evidence existed.”

Her attorney will now prepare the petition for the evidentiary hearing for later this year. This reverses the hearing that denied us an evidentiary hearing a year ago.

This puts us one step close to getting a new trial for her.

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