Pitts v. State

          Rehearing Denied February 20, 2020

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         PRO SE APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-79-471], HONORABLE LEON JOHNSON, JUDGE

         Eugene Issac Pitts, pro se appellant.

         Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

          OPINION

         SHAWN A. WOMACK, Associate Justice

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          This is an appeal from the trial court’s denial of appellant Eugene Issac Pitts’s petition for writ of error coram nobis that he filed after this court gave Pitts permission to proceed with that petition in Pitts v. State, 2016 Ark. 345, 501 S.W.3d 803 (Pitts II ). Pitts’s arguments on appeal turn on his claims that the trial court failed to conduct a proper analysis when it did not treat the admission of certain evidence as structural error and failed to apply the law-of-the-case doctrine. The error here was not structural, and the trial court’s analysis was correct. Pitts failed to show an abuse of discretion, and we affirm.

          I. Background

         Pitts was convicted of capital felony murder in 1979 for killing Dr. Bernard Jones in the course of kidnapping the North Little Rock veterinarian, and this court affirmed the judgment. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981) (Pitts I ). Pitts II concerned testimony of FBI agent Michael Malone on microscopic hair-comparison analysis. The Department of Justice (DOJ) repudiated Malone’s testimony, concluding aspects of Malone’s testimony at Pitts’s trial exceeded the limits of science by overstating the probative value of hair-comparison analysis. 2016 Ark. 345, at 3-4, 501 S.W.3d at 805.

         This court gave leave to proceed in Pitts II, referencing a companion case, Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716, for its reasoning. Appointed counsel representing Pitts filed the error coram nobis petition in the trial court alleging a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that without Malone’s testimony, there was a reasonable probability that Pitts would have been acquitted on the basis of the strengthened proposition of an alternative, white suspect. In the hearing on the petition, Pitts, representing himself, presented no evidence, instead asserting what he contended was the correct method of analysis and the applicable standard to be applied.

         In its order, the trial court first determined that no Brady violation had occurred; then, after specifically referencing an instruction in Strawhacker to consider whether the writ should be granted under the rule of reason or to prevent a miscarriage of justice, it declined to issue the writ. The trial court found that Pitts had not demonstrated that Malone’s testimony was material or, even if the testimony was material, that Pitts had met his burden of showing a reasonable probability that, had the DOJ’s repudiation been disclosed to the defense, the result of the proceeding would have been different. Referencing Pitts’s brief, the trial court also stated that it was not convinced that there was a reasonable probability "on what remains" that Pitts would have been acquitted.

          II. Standard of Review

          The standard of review for an order on a petition for writ of error coram nobis is abuse of discretion in granting or denying the writ. Osburn v. State,2018 Ark. 341, 560 S.W.3d 774. An abuse of discretion occurs when the trial court acts arbitrarily ...