GARY B. MARTIN PETITIONER
STATE OF ARKANSAS RESPONDENT
PETITION TO REINVEST THE CIRCUIT COURT WITH JURISDICTION TO
CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS OR FOR OTHER
Benjet, The Innocence Project; and Tinsley & Youngdahl,
PLLC, by: Jordan B. Tinsley, for petitioner.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for respondent.
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE.
Gary B. Martin was convicted of first-degree murder for the
1998 killing of Kimberly Burris, and he was sentenced to life
imprisonment. Martin has now filed a petition to reinvest the
circuit court with jurisdiction to consider his petition for
writ of error coram nobis or for other relief. Martin argues
that his petition should be granted because expert
hair-comparison testimony at his trial was not meaningfully
different from hair-comparison testimony in other cases
wherein we reinvested jurisdiction in the circuit court. He
contends that we should follow that precedent in this case.
We agree and grant the petition to reinvest jurisdiction in
the circuit court.
Facts and Procedural History
disappeared from North Little Rock in July 1998. Her remains
were discovered in a freezer in an abandoned house in Lonoke
County in November 1998. Martin was charged with Burris's
murder in March 1999. The bases of the charges included
statements given by Yolonda Day. In affirming on direct
appeal, we recounted Day's interaction with authorities
investigating Burris's death:
Lonoke County authorities learned that Day was in the St.
Louis, Missouri area, and contacted the police in St. Louis,
who, in turn, picked up Day on April 26, 1999, and questioned
her about Burris's murder. That same day, St. Louis
Detective Robert Jordan videotaped his interview with Day.
Day stated that she did not remember the exact day of the
events, but said that she and Gary Martin and two other
men-Elton Simms and Lester Perry-were driving in North Little
Rock when they picked up Burris on Main Street. Martin said
that they needed to take a ride, so they drove to an
abandoned house in Lonoke. While in the living room of the
house, the group was smoking crack cocaine, when Martin told
Burris that he needed to talk to her; the two left the room
and went back to a bedroom. About fifteen or twenty minutes
later, Day said she heard a scream. She, along with Simms and
Perry, went to see what had happened, and they discovered
Burris lying in a pool of blood and Martin standing over her
with a knife in his hand. Day related that Martin then took
some duct tape and rope, put the tape on Burris's mouth,
and "hog-tied her and . . . stuffed her in the
In her interview, Day described the route by which the group
drove to the Lonoke house, and provided other details of the
killing, such as the type and size of the freezer into which
Burris's body had been placed. Day also stated that the
men had been saying that they were "going to rough her
up or something," although she did not know that they
meant to kill her. When asked why Martin would want to
"get" Burris, Day said that it was because Burris
had given Martin AIDS.
On April 28, 1999, Arkansas State Police Investigator Scott
Pillow drove to St. Louis to pick up Day and bring her back
to Arkansas. After booking her into the Lonoke County jail,
Pillow informed Day of her Miranda rights and began
an interview with her, which he audiotaped. During the
interview, Day repeated that she joined Martin, Simms, and
Perry, and then the group picked up Burris on Main Street in
North Little Rock. Day said that Burris was wearing a striped
shirt and a pair of shorts at the time. (This fact was later
confirmed by Dr. Charles Kokes, the medical examiner, who
testified that Burris's remains were clothed in a striped
shirt and shorts.) Day essentially repeated to Pillow the
same information she had given to Detective Jordan in St.
Louis, including the directions to the house where the murder
took place, Martin's taking Burris aside to talk to her,
and the fact that Martin hogtied Burris with duct tape after
placing tape over her mouth and then placed her body in a
Martin v. State, 346 Ark. 198, 201-02, 57 S.W.3d
136, 138-39 (2001).
Day told investigators that she was with Martin at the crime
scene, at the trial itself, Day recanted and testified that
she did not know him. However, the State was allowed to
introduce Day's earlier taped statements pursuant to
Arkansas Rule of Evidence 803(24). In affirming Martin's
conviction, we observed that although "the State was
able to offer the testimony of numerous witnesses who
described seeing Martin with Burris, and spoke of
Martin's unusual behavior following her disappearance,
Day was the only witness who set out the details and the
actual circumstances of the murder." Martin,
346 Ark. at 207, 57 S.W.3d at 142. We concluded that
Day's knowledge of the events was highly indicative of
her truthfulness in her statements implicating Martin, and we
also noted that Day's presence at the house was
corroborated by Arkansas State Crime Lab criminalist
Chantelle Bequette's testimony at trial that a hair
matching Day's was found at the crime scene.
has now filed a petition to reinvest the circuit court with
jurisdiction to consider his petition for writ of error coram
nobis or for other relief based on Bequette's
hair-comparison testimony. In Strawhacker v. State, 2016
Ark. 348, 500 S.W.3d 716, and Pitts v. State, 2016
Ark. 345, 501 S.W.3d 803, we concluded that similar testimony
in those cases had been repudiated as overstating the
scientific certainty of hair-comparison identification.
Martin argues that one cannot meaningfully distinguish his
case from Strawhacker and Pitts and that we
should therefore grant his petition as well.
Writ of Error Coram Nobis
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. Green v. State,
2016 Ark. 386, 502 S.W.3d 524. 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. The writ is issued only under compelling circumstances
to achieve justice and to address errors of the most
fundamental nature, and it is available to address only
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. See id.
argues that coram nobis relief is appropriate because
repudiated testimony led to an unjust conviction and that his
petition reasonably alleges facts meeting the
Strawhacker standard. Essentially, Martin argues
that the hair-comparison testimony offered by Bequette at his
trial suffered from the same infirmities as that offered by
Michael Malone, an FBI hair-comparison expert in
Strawhacker and Pitts. The State responds
that Martin's case is not like Strawhacker and
Pitts because Bequette's testimony has not been
specifically repudiated and because there was a "stark
difference" between her testimony and Malone's. The
State also ...