Rehearing Denied February 20, 2020
[Copyrighted Material Omitted]
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION
[NO. 60CR-79-471], HONORABLE LEON JOHNSON, JUDGE
Issac Pitts, pro se appellant.
Rutledge, Atty Gen., by: Jason Michael Johnson, Asst Atty
Gen., for appellee.
A. WOMACK, Associate Justice
is an appeal from the trial courts denial of appellant
Eugene Issac Pittss 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 ). Pittss
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 courts analysis was correct. Pitts
failed to show an abuse of discretion, and we affirm.
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 Malones testimony, concluding aspects of Malones
testimony at Pittss 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.
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 Malones 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.
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 Malones testimony
was material or, even if the testimony was material, that
Pitts had met his burden of showing a reasonable probability
that, had the DOJs repudiation been disclosed to the
defense, the result of the proceeding would have been
different. Referencing Pittss brief, the trial court also
stated that it was not convinced that there was a reasonable
probability "on what remains" that Pitts would have
Standard of Review
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 ...