WILLIE GASTER DAVIS, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [DESHA
COUNTY CIRCUIT COURT, NO. 21CR-95-110]
1996, petitioner Willie Gaster Davis, Jr. was found guilty by
a jury of first-degree murder, theft of property, and false
imprisonment. He was sentenced to an aggregate term of life
imprisonment. We affirmed. Davis v. State, 330 Ark.
76, 953 S.W.2d 559 (1997).
2007, Davis filed in this court a pro se petition to reinvest
jurisdiction in the trial court in the case to consider a
petition for writ of error coram nobis. The petition was
denied. Davis v. State, CR-97-401 (Ark. Jan. 31,
2008) (unpublished per curiam), reh'g denied.
(Ark. Apr. 10, 2008).
before us is Davis's second coram-nobis petition filed
October 19, 2016. The petition for leave to proceed in the
trial court is necessary because the trial court can
entertain a petition for writ of error coram nobis after a
judgment has been affirmed on appeal only after we grant
permission. Newman v. State, 2009 Ark. 539, 354
S.W.3d 61. A writ of error coram nobis is an extraordinarily
rare remedy. State v. Larimore, 341 Ark. 397, 17
S.W.3d 87 (2000). 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 trial court and which, through no negligence or fault of
the defendant, was not brought forward before rendition of
the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61.
The petitioner has the burden of demonstrating a fundamental
error of fact extrinsic to the record. Roberts v.
State, 2013 Ark. 56, 425 S.W.3d 771.
writ is allowed only under compelling circumstances to
achieve justice and to address errors of the most fundamental
nature. Id. A writ of error coram nobis is available
for addressing certain errors that are found in one of four
categories: (1) insanity at the time of trial, (2) a coerced
guilty plea, (3) material evidence withheld by the
prosecutor, or (4) a third-party confession to the crime
during the time between conviction and appeal. Howard v.
State, 2012 Ark. 177, 403 S.W.3d 38.
2007 petition, Davis asserted a violation of Brady v.
Maryland, 373 U.S. 83 (1963). A Brady violation
is established when material evidence favorable to the
defense is wrongfully withheld by the State. Pitts v.
State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam).
In Strickler v. Greene, 527 U.S. 263 (1999), the
Supreme Court revisited Brady and declared that when
the petitioner contends that material evidence was not
disclosed to the defense, the petitioner must show that
"there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different."
Strickler, 527 U.S. at 280 (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)).
Strickler, 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) the evidence
must have been suppressed by the State, either willfully or
inadvertently; and (3) prejudice must have ensued.
Strickler, 527 U.S. 263; see Howard, 2012
Ark. 177, 403 S.W.3d 38. Impeachment evidence that is
material, as well as exculpatory evidence, falls within the
Brady rule. Bagley, 473 U.S. 667.
Brady violation alleged by Davis in the 2007
petition was his contention that certain evidence and a
laboratory report had been withheld from the defense at his
trial. The evidence concerned the absence of his hair on the
victim or the lack of a match of hairs found on the victim to
him. The report, by a fingerprint examiner, concerned
fingerprints, or the lack of them, on the victim's keys.
This court held that Davis had not established a
Brady violation in that he had not asserted that the
evidence at issue was withheld from the defense; he argued
only that it had not been presented to the jury at trial or
was never developed through testing. Also, Davis did not
present facts to support his claim to satisfy the second
element of a Brady violation. Moreover, even if
withheld, the evidence that Davis portrayed as exculpatory
would not have prevented the judgment had it been disclosed,
considering the evidence adduced at trial and contained in
Davis's own description of the events pertaining to the
offenses. Davis, CR 97-401, slip op. at 2. We noted
in the opinion declining to grant leave to proceed in the
trial court with a coram-nobis petition that, if testing had
failed to identify Davis's fingerprints or hair, or
testing had shown the hairs or any fingerprints belonged to
another individual, and that evidence had been presented to
the jury, the evidence would not have served to raise a
reasonable probability that the judgment of conviction would
not have been rendered. Davis's having been in the car
with the victim and his proximity to her at the house where
her body was found were well established by the evidence,
regardless of any contact the victim or her keys may have had
with another person. The fact that someone else had handled
the keys or had left hairs on the victim would not have
implicated another person in the murder or cast any doubt on
the inferences to be drawn from Davis's interactions with
the victim as portrayed in the testimony. Davis, CR
97-401, slip op. at 2.
second petition, Davis again contends that the State violated
Brady. He reiterates some of the grounds considered
by this court in the first petition. He also asserts that the
State withheld seventeen cigarette butts collected at the
crime scene and did not submit those cigarette butts for DNA
testing and that the State's action constituted the
withholding of information from the defense that persons
other than he were at the crime scene. Davis points to
testimony at trial that no lighted cigarettes were found at
the scene to suggest that the cigarettes found at the scene
were significant evidence.
further alleges that the State withheld hair-analysis
evidence. Davis concedes that he presented this claim in his
first petition to this court and that it was rejected as a
ground for the writ. He argues that it should be considered
again because he now has proof that the evidence was material
and that he was prejudiced by the actions of the State. Davis
alleges that he discovered the evidence when this court
directed the Arkansas State Crime Laboratory to release
certain information that Davis had requested pursuant to
Arkansas Code Annotated section 12-12-312 (Repl. 2003).
See Davis v. Deen, 2014 Ark. 313, at 3, 437 S.W.3d
response to this second coram-nobis petition, the State
argues that, although Davis may have acquired information as
a result of his requests for written material in recent
litigation, it does not excuse his delay of almost twenty
years in seeking the information. The State further urges
this court to dismiss the petition as an abuse of the writ
because it is dubious that Davis could not have been aware,
by examining the discovery information obtained at trial in
1996, that cigarette butts were collected at the scene at the
same time the hairs were collected. The State contends that
the claim concerning the cigarette butts could have been
raised in Davis's first coram-nobis petition if he had
been more diligent. The State also asserts that the totality
of the evidence demonstrates that the outcome of the trial
would not have been different had there been evidence
introduced at trial that cigarette butts were collected at
the crime scene because there was evidence that many people
had been known to frequent the house where the victim's
body was found.
not find that Davis has established a Brady
violation. Even if Davis had provided facts to show that
there was evidence withheld by the State, and we cannot say
that he has done so, he has not demonstrated with those facts
that there is a reasonable probability that the outcome of
the trial would have been different had that evidence been
available at trial. At most, Davis has suggested that the
presence of multiple cigarette butts at the house would have
shown that many people had been at the residence. As there
was testimony that the house was in disarray, ...