PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [PULASKI
COUNTY CIRCUIT COURT, FIFTH DIVISION, NO. 60CR-93-1341]
K. WOOD, ASSOCIATE JUSTICE
Everett Foreman asks that this court reinvest jurisdiction in
the trial court so that he may proceed with a petition for
writ of error coram nobis. His basis for the writ is that a
key witness has recanted her testimony. We do not find that
Foreman has established a ground for the writ and deny the
Standards and Grounds for the Writ
petition for leave to proceed in the trial court is necessary
because the judgment in Foreman's case was affirmed, and
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. Faulkens v. State, 2017
Ark. 291. 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 writ is allowed only under compelling
circumstances to achieve justice and to address errors of the
most fundamental nature. Roberts v. State, 2013 Ark.
56, 425 S.W.3d 771. 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. Coram nobis
proceedings are attended by a strong presumption that the
judgment of conviction is valid. Westerman v. State,
2015 Ark. 69, 456 S.W.3d 374. The writ is issued only under
compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Green v.
State, 2016 Ark. 386, 502 S.W.3d 524.
1994, Foreman was convicted of first-degree murder in the
shooting death of an off-duty police officer and sentenced to
life imprisonment. This court reversed the judgment and
remanded the case for a new trial. Foreman v. State,
321 Ark. 167, 901 S.W.2d 802 (1995).
retrial, Foreman's girlfriend, Tracy Brooks, testified
that she had been with Foreman on the night of the shooting
and that she had been questioned by the police after the
incident but she could not remember what she had told them.
She further said that she knew about "the gun" used
to shoot the victim. She explained that she had seen Foreman
and his accomplice to the crime, Durrell Childress, with the
gun and that she had, on occasion, obtained it from Foreman
and carried it in her purse. Brooks was cross-examined
extensively about a statement she had given to the police
shortly after the shooting. She ultimately admitted, however,
that she had told the police that "Pee Wee"
(Foreman's nickname) had shot the police officer. Again,
Foreman was convicted and sentenced to life imprisonment. We
affirmed. Foreman v. State, 328 Ark. 583, 945 S.W.2d
Recantation of Witness Testimony
ground to warrant reinvesting jurisdiction in the trial court
to proceed with a coram nobis petition, is an affidavit in
which he claims Brooks recants her testimony implicating him.
He appended the affidavit to his petition. In it, Brooks
avers that her statement was false that Foreman "shot
and killed the police in question." She swears that she
made the statement under duress from the abusive questioning
by the officers who interrogated her. This is not
inconsistent with the evidence at trial. Brooks'
testimony disputed the veracity of her prior statement and
Foreman had an opportunity to develop that argument. She
testified that the police had been verbally abusive and
threatened her. She further testified that she could not
remember what she had told the police and that anything she
told the police would have been told to her by a third
person, not seen directly.
has not demonstrated that the writ is warranted in his case.
We have explained that recanted testimony, standing alone, is
not cognizable in an error coram nobis proceeding.
Jackson v. State, 2017 Ark. 195, 520 S.W.3d 242;
Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940)
(holding that the writ was not available to afford relief on
the ground that the principal witness against the accused had
recanted and that others since the accused's conviction
had confessed to the crime); see also Taylor v.
State, 303 Ark. 586, 799 S.W.2d 519 (1990) (A
witness's recantation of part of his trial testimony was
not a ground ...