Opinion
CR 00-1382
Opinion Delivered April 8, 2010
Pro Se Petition to Reinvest Jurisdiction in the Trial Court to Consider Petition For Writ of Error Coram Nobis [Circuit Court of Lonoke County, CR 2000-108], Petition Denied.
In 2000, petitioner Gary B. Martin was found guilty by a jury of murder in the first degree and sentenced to life imprisonment. We affirmed. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001).
Now before us is petitioner's pro se petition seeking permission to proceed in the trial court with a petition for writ of error coram nobis. After a judgment has been affirmed on appeal, a petition filed in this court for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis only after we grant permission. Newman v. State, 2009 Ark. 539, ___ S.W3d ___.
For clerical purposes, the instant petition was assigned the same docket number as the direct appeal.
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Newman, 2009 Ark. 539 (citing Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam)). This court will grant permission for a petitioner to proceed in the trial court with a petition for writ of error coram nobis only when it appears the proposed attack on the judgment is meritorious. Flannigan v. State, 2010 Ark. 140 (per curiam). In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Id.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. We have held that a writ of error coram nobis was available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Id.
The sole claim raised by petitioner as a ground for the writ is that the State deliberately failed to disclose "the existence and substance of any promise of immunity, lenience, or preferential treatment in regards to Yolanda Day." Day, who was petitioner's accomplice in the murder, gave several statements that she had witnessed the murder. On direct appeal, petitioner argued that there was insufficient evidence to corroborate Day's statements. This court found on appeal that the evidence was sufficient to corroborate Day's statements and to support the jury's finding of guilt. Petitioner contends that the State's failure to disclose its agreement with Day to nolle pros charges against her in exchange for her testimony at trial constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963).
Suppression of material exculpatory evidence by a prosecutor falls within one of the four categories of coram nobis relief. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). The Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963) held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. In Strickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady and declared that evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 373 U.S. at 280, quoting United States v. Bagley, 473 U.S. 667, 682 (1985). In Stickler, the court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. See Pierce v. State, 2009 Ark. 606 (per curiam).
Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Id. In the absence of a valid excuse for delay, the petition will be denied. Newman, 2009 Ark. 539. Due diligence requires that (1) the defendant be unaware of the fact at the time of the trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) the defendant, after discovering the fact, did not delay bringing the petition. Id. The requirements are a sequence of events, each of which a petitioner must show to prove due diligence. Id. Here, petitioner has not established that he exercised due diligence because the trial record reflects that the existence of the agreement between the prosecution and Day was disclosed to the defense before trial.
In a pretrial hearing contained in the record on direct appeal, counsel for petitioner inquired as to whether there was "any promise of immunity, leniency, or preferential treatment" made by the State to Day in return for her testimony. The deputy prosecutor responded that there was an agreement with Day that she would testify truthfully in exchange for the charges against her being nolle prossed.
Petitioner concedes that the fact of the agreement was known before the trial, but he argues that he was prejudiced because the jury was never informed of the agreement. The fact remains, however, that the existence of the agreement to nolle pros the charges against Day was fully known to the defense before trial. The existence of the agreement was not hidden from the defense prior to trial, and petitioner has not shown that there was some fact that would have prevented the rendition of the judgment that could not have been brought forward at the time of trial. Accordingly, there is no ground stated for issuance of a writ of error coram nobis. See Echols v. State, 354 Ark. 419, 125 S.W.3d 153 (2003).
It should be noted that appellant relies on Giglio v. United States, 405 U.S. 150 (1972). Reliance on Giglio is unfounded in the present case, however, as Giglio was not an error coram nobis proceeding and concerned the deception by the prosecution of a court and jurors as to promises made to the key witness for the prosecution. The prosecution in appellant's case did not hide the fact of the agreement with witness Day from the court or the defense.
Petition denied.