PRO SE
SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND
MOTION FOR APPOINTMENT OF COUNSEL [CRITTENDEN COUNTY CIRCUIT
COURT, NO. 18CR-92-66]
KAREN
R. BAKER, ASSOCIATE JUSTICE
Petitioner
Jessie Buchanan brings this petition to reinvest jurisdiction
in the trial court to file a petition for writ of error coram
nobis in his criminal case. It is the second such petition
filed by Buchanan. The first petition was brought before this
court in 2010 and denied. Buchanan v. State, 2010
Ark. 285 (per curiam).
In the
petition now before us, Buchanan contends that the State
violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to disclose to the defense a serology
report and the victim's death certificate. Because
Buchanan's claims do not establish a ground for the writ,
the petition is denied. The motion for appointment of counsel
is rendered moot by the denial of the petition.
I.
Nature of the Writ
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. 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 had it 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, supra.
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.
II.
Grounds for the Writ
The
writ is allowed only under compelling circumstances to
achieve justice and to address errors of the most fundamental
nature. Howard v. State, 2012 Ark. 177, 403 S.W.3d
38. 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. Id.
III.
Background
In
1992, a jury found Buchanan guilty of capital murder in the
shooting death of Alfred Tobar during an argument at
Buchanan's home. Buchanan was sentenced to a term of life
imprisonment without parole. We affirmed. Buchanan v.
State, 315 Ark. 227, 866 S.W.2d 395 (1993). At his
trial, Buchanan testified that he shot at Tobar while in fear
for himself, his fiancée, and their two children when
Tobar advanced toward him. Evidence was adduced that Tobar
was shot five times, twice from the front and three times
from the back, with a .22-caliber semiautomatic rifle with a
sawed-off stock that required someone to pull the trigger
each time a shot was fired. Buchanan testified that he
blacked out after the first shot was fired and that he did
not intend to kill Tobar. On direct appeal, this court found
the jury's decision that Buchanan intended to cause the
death of Tobar was supported by the evidence.
IV.
Claim of a Brady Violation
To
establish a Brady violation, the petitioner must
satisfy three elements: (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;
(3) prejudice must have ensued. Howard, 2012 Ark.
177, 403 S.W.3d 38. The mere fact that a petitioner alleges a
Brady violation is not sufficient to provide a basis
for error coram nobis relief. Wallace v. State, 2018
Ark. 164, 545 S.W.3d 767; see also Penn v. State,
282 Ark. 571, 670 S.W.2d 426 (1984) (a mere naked allegation
that a constitutional right has been invaded will not suffice
to warrant coram nobis relief).
The
first Brady violation alleged by Buchanan pertains
to a serology report prepared in 1992. The report stated that
Tobar's blood type was "O." Buchanan states
that in the autopsy report dated one day before the serology
report, Tobar's blood type was given as type "AB, Rh
Positive." He asserts that the discrepancy indicates
that either the crime laboratory or the medical examiner
mixed up the blood samples, the samples were contaminated,
the samples were lost, or the samples were fabricated.
Buchanan argues that the State never proved who had died and
that there was no testimony at trial to confirm that it was
Tobar who had died. As support for the claims, Buchanan notes
that Tobar's death certificate reflects that Tobar's
body was disposed of by means of burial on January 16, 1991,
which was one year before Tobar was alleged to have been
killed by Buchanan on January 10, 1992. Buchanan contends
that if he had that information from the original death
certificate, which he did not obtain until November 2017, he
could have shown at trial that he was actually innocent of
killing Tobar.[1] Buchanan did not deny at trial that he
killed Tobar, and there was no contention at trial that it
was not Tobar who had died. Even if there was an error as to
Tobar's blood type and his date of burial, Buchanan has
made no showing that the State withheld any exculpatory
evidence from the defense in violation of Brady that
prejudiced the defense as it was presented at Buchanan's
trial.
Considering
Buchanan's admission at trial that he shot Tobar, it
appears that the crux of his claim of a Brady
violation is not that the State withheld evidence that would
have created a reasonable probability that the outcome of the
trial would have been different--even though he conceded that
he had shot the victim--but rather that he perjured himself
at trial. That is, he might have asserted a different defense
had he known that there was a discrepancy in the reports
pertaining to the victim's blood type and the date of his
burial. If that is his contention, Buchanan has not met the
criteria for issuance of the writ because the allegations in
a coram nobis petition must pertain to the trial in which the
petitioner was convicted of the offense. Buchanan offered
nothing to show that the State concealed any fact from the
defense that affected Buchanan's core argument at trial
that he acted in self-defense and did not intend to kill
Tobar. The ...