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Scott v. State

Supreme Court of Arkansas

June 1, 2017

BRODERICK DON SCOTT APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         PRO SE APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT; PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL WITH MEMORANDUM OF LAW AND FOR PRODUCTION OF DOCUMENTS [NO. 60CR-06-1822]

          Broderick Don Scott, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellee.

          COURTNEY HUDSON GOODSON, Associate Justice.

         In 2006, appellant Broderick Don Scott entered a plea of guilty to first-degree battery, two counts of committing a terroristic act, possession of a firearm by certain persons, aggravated assault, and first-degree terroristic threatening, for which he was sentenced to an aggregate term of 360 months' imprisonment. In 2013, Scott filed in the trial court a pro se petition for writ of error coram nobis challenging the judgment, and on November 26, 2013, the petition was denied. Scott did not file a notice of appeal until February 19, 2014, eighty-five days after the order had been entered. This court denied Scott's motion for belated appeal for failure to establish good cause for the untimely filing of the notice of appeal. Scott v. State, 2014 Ark. 199 (per curiam).

         On April 20, 2016, Scott again sought coram nobis relief in the trial court. Scott filed an amended pro se petition on May 5, 2016. The trial court, addressing the May 5, 2016 amended coram nobis petition, denied relief and noted that it had found Scott's first coram nobis petition untimely in 2013 and that Scott's current petition, filed ten years after imposition of sentence, "would be no timelier than the first." Scott has lodged an appeal from the order denying relief. Scott's motion for appointment of counsel and motion for production of documents are also pending before this court.

         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 v. State, 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.

         The 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.

         The standard of review for the denial of a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Nelson v. State, 2014 Ark. 91, at 3-4, 431 S.W.3d 852, 854-55 (citing Newman v. State, 2014 Ark. 7). An abuse of discretion happens when the trial court acts arbitrarily or groundlessly. Id. A hearing is not required if the petition clearly has no merit, either because it fails to state a cause of action to support issuance of the writ, or because it is clear from the petition that the petitioner did not act with due diligence. Id.

         On appeal, Scott contends that (1) he was denied due process when the prosecutor withheld evidence; (2) he is actually innocent of the offense and that the State withheld exculpatory evidence, specifically in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (3) he was denied the right to confront the victim because the exculpatory evidence was withheld. To the extent that Scott argues he is actually innocent of the offenses of which he was convicted, those assertions do not establish a ground for the writ because they constitute a direct attack on the judgment. Wallace v. State, 2016 Ark. 400, at 12-13, 503 S.W.3d 754, 761 (per curiam) (claim of actual innocence amounts to a challenge to the sufficiency of the evidence and is a direct challenge on the judgment below that is not cognizable in a coram nobis proceeding). Regarding his right-to-confront claim, Scott argues that he "could have detailed the nature of the statement during the direct examination of Tamiko Woolford." The nature of this argument is conclusory and unclear and is not cognizable in a coram nobis proceeding because it does not allege insanity at the time of the 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. Green v. State, 2016 Ark. 386, 502 S.W.3d 524. Even if arguably an attack on his guilty plea, Scott does not specifically contend that his plea was not voluntary or that it was coerced, and he waived the right to a trial and to confront witnesses. See Carter v. State, 2012 Ark. 186 (per curiam).

         Regarding his claim of a Brady violation, Scott argued that, unbeknownst to him until 2013, evidence consisting of a statement made by the victim, Tamiko Woolford, was filed on April 3, 2006, in the North Little Rock District Court--the court in which he was initially arraigned. Scott contended that the State, either willfully or inadvertently, withheld the exculpatory statement that would have prevented him from pleading guilty, and the State's failure to disclose it constituted a Brady violation. The statement was file-marked in the North Little Rock District Court; and Scott argues that although the prosecutor may not have specifically been aware of the exculpatory evidence, its existence is imputed to the prosecution in his case. He further contends that, had his trial counsel received the exculpatory evidence, the outcome of the matter would have been different and he would not have entered a plea of guilty in September 2006. Scott argues that the State's failure to disclose the exculpatory evidence entitles him to a hearing on the matter for the trial court to decide the merits of his coram nobis petition.

         The State's response on appeal is twofold. First, the State contends that the trial court's order should be affirmed because Scott was not diligent in pursuing coram nobis relief. Specifically, even assuming that Scott was unaware of the statement until 2013, as he claims, he was not diligent in seeking relief because the petition that forms the basis of this appeal was not filed until three years after he had claimed to discover the fact upon which it is premised and nearly ten years after the judgment had been entered. Second, the State contends that Scott failed to obtain a ruling on his argument regarding the Brady violation, which precludes appellate review. Alternatively, the State contends that Scott's claim is not meritorious. The State argues that Scott has failed to offer specific facts beyond his own assertion to show that the State was aware of the victim's statement or that the defense did not have it. The State further argues that the North Little Rock District Court file-mark stamp does not reflect that the victim's statement was filed in any case and that the record, as presented, "does not support [Scott's] claim that the Pulaski County prosecutor, much less any prosecutor, was, or could have been, aware of the witness's statement, which was file-marked in a separate court in another jurisdiction but unrelated to any particular case."

         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)).

         In 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) ...


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