Hill v. State , 516 S.W.3d 249 ( 2017 )

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SUPREME COURT OF ARKANSAS.
No. CR-96-270
Opinion Delivered April 6, 2017
JESSIE E. HILL
PETITIONER PRO SE SECOND PETITION TO
REINVEST JURISDICITON IN THE
V. TRIAL COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR
STATE OF ARKANSAS CORAM NOBIS; MOTION FOR
RESPONDENT WRIT OF AUDITA QUERELA
[GRANT COUNTY CIRCUIT
COURT, NO. 27CR-95-38]
PETITION DENIED; MOTION
DENIED.
PER CURIAM
Petitioner Jessie E. Hill is incarcerated in the Arkansas Department of Correction
pursuant to a judgment entered on September 18, 1995, in Grant County, which reflects a
conviction for capital murder for which he was sentenced to life without parole. This court
affirmed the judgment. Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996). Hill was
subsequently convicted of first-degree murder pursuant to a judgment of conviction entered
in Ouachita County and was sentenced as a habitual offender to 720 months’ imprisonment
to be served consecutively to the life sentence. No appeal was taken from the Ouachita
County judgment, as Hill’s pro se motion to file a belated appeal was denied. Hill v. State,
CR-96-710 (Ark. Nov. 4, 1996) (unpublished per curiam).
Hill subsequently pursued multiple postconviction remedies without success,
including two petitions for a writ of error coram nobis. Hill v. State, CR-96-270 (Ark.
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Mar. 13, 2008) (unpublished per curiam) (denying petition to reinvest jurisdiction in the
Grant County Circuit Court to consider a petition for a writ of error coram nobis); Hill v.
State, 2013 Ark. 383 (per curiam) (affirming denial of petition for a writ of error coram
nobis by the Ouachita County Circuit Court).
Now before this court is Hill’s second petition to reinvest jurisdiction in the trial
court to consider a writ of error coram nobis in the Grant County case. In his latest petition
for the writ, Hill alleges that the prosecutor withheld exculpatory evidence with respect to
the Grant County conviction for capital murder as well as in the Ouachita County
conviction for first-degree murder.1
We first note that a petition filed in this court for leave to proceed in the trial court
where the judgment was entered is necessary after a judgment has been affirmed on appeal
because, in that case, the trial court can entertain a petition for writ of error coram nobis
only after we grant permission. Roberts v. State, 2013 Ark. 56, at 11, 425 S.W.3d 771, 778.
Because there was no appeal from Hill’s conviction in Ouachita County for first-degree
murder, it is not necessary for Hill to obtain permission from this court to file a petition for
a writ of error coram nobis in the Ouachita County Circuit Court. Thus, Hill’s allegations
pertaining to his conviction for first-degree murder in Ouachita County will not be
considered or addressed by this court.
1 On December 29, 2016, Hill tendered a pleading entitled “Concise Statement”
wherein he alleged that “Grant County officials had intentionally removed” certain exhibits
that had been attached to his coram nobis petition. A review of Hill’s petition demonstrates
that thirty-two exhibits were attached to his petition. The petition and all thirty-two
exhibits were filed by the clerk of this court and submitted to this court for review.
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As stated above, this is Hill’s second petition for coram nobis relief with respect to
his conviction for capital murder. In his first petition, Hill alleged that the prosecutor had
withheld evidence and failed to disclose the identification of certain witnesses. We denied
the petition primarily because Hill had failed to specifically identify what evidence had been
allegedly withheld. Hill, CR-96-270, slip. op. at 1. In this second petition, Hill again
alleges entitlement to coram nobis relief based on allegations that the prosecutor withheld
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). In support of
his claim, Hill elaborates on the allegations set forth in his first coram nobis petition and
identifies the evidence that was allegedly withheld by the prosecutor and investigators.
Before addressing Hill’s allegations in support of his Brady claim, it is necessary to set
forth a summary of the testimony and evidence adduced at Hill’s trial that supported his
conviction for capital murder. In so doing, this court takes judicial notice of the testimony
and evidence contained in the record that was lodged in this court in connection with Hill’s
direct appeal. Davis v. State, 2013 Ark. 118, at 3 (per curiam).
A review of the trial record reflects that Hill’s accomplice, Demarcus Tatum, testified
and described the events surrounding the crime. According to Tatum’s testimony, Hill and
Tatum went to the home of Donny Ray Moss on the evening of January 17, 1995, and
asked to borrow a Nissan automobile owned by Donald Thrower. Thrower refused to let
them borrow his car but agreed to allow his cousin, Arbrady Moss, to drive Hill and Tatum
to the bus station in Camden. Tatum testified that while on route, Hill demanded that
Moss give him the automobile, and, when Moss refused, Hill struck Moss in the head with
a marble rolling pin that was found on the floorboard of the Nissan. After the initial assault,
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Moss was left in a roadside ditch, and Hill and Tatum drove away. However, after driving
a short distance, Hill and Tatum returned to retrieve Moss and placed Moss in the Nissan’s
trunk. Thereafter, Hill and Tatum stopped to dispose of Moss’s body on Cohen Trial in
Grant County. When Moss was found to be still alive, Hill lifted Moss from the trunk and
beat him with a glass juice bottle. Moss was left on the side of Cohen Trial, and Hill and
Tatum decided to drive the car to Cedar Rapids, Iowa. The Nissan broke down near Adair,
Oklahoma, where Hill and Tatum sold it to a local garage for $150.00. Hill and Tatum
used the proceeds from the sale of the Nissan to buy bus tickets to Kansas City. Upon
arriving in Kansas City, they had no money and no transportation, and they decided to steal
a car. To this end, they assaulted and stabbed a woman near her car in a parking garage and
took her purse and car keys. When a security guard in the parking garage came on the
scene, Hill and Tatum ran back to the bus station, where they were apprehended.
The testimony of Tatum was corroborated by the testimony of Bob Adams, the
Sheriff of Grant County, who stated that Moss’s body was found on January 19, 1995, two
days after Moss was last seen in the company of Hill and Tatum. According to Sheriff
Adams, the Nissan had been impounded in Oklahoma and searched. A considerable amount
of blood was found in the trunk, together with a tooth similar to a tooth missing from
Moss’s body, a rolling pin that was covered with hair and with what appeared to be dried
blood, and an ashtray that was also covered in blood. Crime-lab analysis revealed that blood
on the rolling pin matched the victim’s blood type and the ashtray contained Moss’s bloody
fingerprint. Witnesses employed at the garage in Oklahoma identified Hill and Tatum as
the two men who sold the Nissan. The victim’s brother testified that he last saw the victim
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leaving with Hill and Tatum to drive them to the Camden bus station. The medical
examiner testified that Moss had died as a result of blunt force trauma to the head, and
further stated that blows to the jaw had knocked out teeth from Moss’s upper and lower
jaw.
Hill contends that he is entitled to coram nobis relief because the prosecutor withheld
the following exculpatory evidence: (1) an August 28, 1995 report from the Arkansas Crime
Laboratory that identified a latent fingerprint on the rolling pin, which could not be
connected to either Hill or Tatum; (2) hairs collected from the Nissan, which included two
Caucasian hairs, that did not match the victim’s hair; (3) a handwritten investigative note
dated January 23, 1995, that included a witness statement that Moss was last seen alive on
January 12, 1995, rather than on January 17, 1995. Finally, Hill contends that the State
collected blood, fluid, and fiber evidence that had not been subjected to forensic analysis,
because investigators were determined to convict Hill for the crime and refused to develop
evidence implicating other suspects.
A writ of error coram nobis is an extraordinarily rare remedy. Howard v. State, 2012
Ark. 177, at 4, 403 S.W.3d 38, 42–43. Coram nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid. Id. 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 and which, through no negligence or fault of
the defendant, was not brought forward before rendition of the judgment. Id. The
petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the
record. Id.
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The writ is allowed only under compelling circumstances to achieve justice and to
address errors of the most fundamental nature. Id. We have held that 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.
We are not required to accept the allegations in a petition for writ of error coram
nobis at face value. Goff v. State, 2012 Ark. 68, at 3, 398 S.W.3d 896, 898 (per curiam).
While allegations of a Brady violation fall within one of the four categories of fundamental
error that this court has recognized, the fact that a petitioner alleges a Brady violation alone
is not sufficient to provide a basis for error-coram-nobis relief. Stenhouse v. State, 2016 Ark.
295, at 3–4, 497 S.W.3d 679, 682 (per curiam). To establish a Brady violation, three
elements are required: (1) the evidence at issue must be favorable to the accused, either
because it is exculpatory or because it is impeaching; (2) that evidence must have been
suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued.
State v. Larimore, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000). Furthermore, assuming that
the alleged withheld evidence meets the requirements of a Brady violation and is both
material and prejudicial, in order to justify issuance of the writ, the withheld material
evidence must also be such as to have prevented rendition of the judgment had it been
known at the time of trial. Smith v. State, 2015 Ark. 188, at 4–5, 461 S.W.3d 345, 349 (per
curiam). To merit relief, a petitioner must demonstrate that there is a reasonable probability
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that the judgment of conviction would not have been rendered, or would have been
prevented, had the information been disclosed at trial. Id.
In support of his claims for relief, Hill attaches to his petition numerous handwritten
and typewritten reports generated by the Arkansas Crime Laboratory that recorded and
listed the evidence submitted and analyzed. Hill first alleges that the prosecution withheld
an August 28, 1995 crime-laboratory report reflecting that a latent fingerprint was recovered
from the rolling pin that did not match either Hill or Tatum. Hill contends that this report
exonerates him.
A review of the trial record demonstrates that discovery matters were addressed at
length in a pretrial hearing conducted on September 13, 1995, to consider a motion for
continuance filed by the defense. During the course of the hearing, it was revealed that
defense counsel had reviewed the investigative file on at least three or four occasions and
had met with the prosecutor and the chief investigator, Sheriff Adams, on September 6,
1995, in a meeting where the entire investigative file was provided to defense counsel for
review. Sheriff Adams testified that all reports submitted by the crime lab were included in
the investigative file and that defense counsel reviewed the file for thirty or forty minutes
and did not request that investigators or the prosecutor provide any further information.
At the pretrial hearing, Sheriff Adams stated that the crime lab had developed latent
fingerprints from various items collected from the Nissan, but the August 28, 1995 report
and its identification of an unidentified latent print was not specifically raised. However,
there is no demonstration that the August 28, 1995 crime-lab report was not included in
the investigative file at the time defense counsel was given the opportunity to review the
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file, nor was there any indication that defense counsel made further inquiry on the matter
following the pretrial hearing.
Even assuming that the August 28, 1995 report was not disclosed to defense counsel,
the existence of an unidentified latent fingerprint on the rolling pin is neither material nor
exculpatory. The United States Supreme Court held in Brady that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady, 373 U.S. at 87. In Strickler v. Greene, 527 U.S. 263, 280 (1999),
the Court revisited Brady and declared that evidence is material “if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Moreover, in order to obtain coram nobis relief, Hill must
demonstrate that the undisclosed information would have prevented the rendition of the
judgment had it been known at the time of trial. Smith, 2015 Ark. 188, at 4–5, 461 S.W.3d
at 349.
As set forth above, the evidence presented at trial included eyewitness testimony
describing the murder, as well as corroborating evidence connecting Hill to the victim
during the relevant time frame and to the Nissan automobile with a trunk that was covered
in blood and in which the rolling pin and a tooth that matched a tooth missing from the
victim’s jaw were found, along with an ashtray bearing the victim’s bloody fingerprint. In
view of the evidence adduced at trial, the presence of an unidentified latent print on the
rolling pin fails to give rise to a reasonable probability that the disclosure of such evidence
would have changed the outcome of the trial or prevented the rendition of the judgment.
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While Hill alleges that the existence of this fingerprint exonerates him as well as
Tatum, Hill fails to explain under what circumstances Moss would have encountered a
third-party who had the opportunity to murder Moss during the time period in which Moss,
Hill, and Tatum were en route to the Camden bus station. The testimony at trial established
that Moss was last seen driving away in the Nissan with Hill and Tatum as the only two
passengers in that car, which was the same car that contained evidence of Moss’s murder.
Finally, while the existence of this latent print was not presented during Hill’s trial,
testimony was elicited that Hill’s fingerprints were not identified on any of the items
recovered from the Nissan and submitted for analysis, including the rolling pin. Hill
contends in his petition that the lack of forensic evidence connecting him to the murder
weapon or to the Nissan establishes his innocence, but the jury found otherwise. Hill’s
allegations that forensic evidence is more reliable than eyewitness testimony amounts to a
challenge to the evidence supporting the guilty verdict. Such allegations are not cognizable
in coram nobis proceedings. Ventress v. State, 2015 Ark. 181, at 6, 461 S.W.3d 313, 317
(per curiam).
Hill further alleges that the prosecutor withheld evidence of unidentified hairs
recovered from the Nissan, including two unidentified Caucasian hairs that are listed in
handwritten notes from the Arkansas Crime Laboratory generated between August 20 and
August 28, 1995. Hill attached these handwritten notes to his petition together with a
typewritten report covering the same subject matter dated August 31, 1995, that listed and
labeled all the hair, fiber, and other items collected from the Nissan. This report stated that,
while some of the collected hairs matched the victim, other hairs could not be associated
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with the victim. The report also explained that “hairs do not possess a sufficient number of
unique microscopic characteristics to be positively identified as having originated from a
particular person to the exclusion of others.”
As stated above, discovery issues were developed at length in a pretrial hearing
conducted on September 13, 1995. Testimony from this pretrial hearing revealed that the
August 31, 1995 crime-lab report cited above had been specifically turned over to defense
counsel, and there is no demonstration that defense counsel had not been provided with the
handwritten notes that had preceded it. In view of this, Hill fails to allege sufficient facts to
establish any of the elements required to prove a Brady violation. The presence of
unidentified hairs recovered from the interior of an automobile that was likely occupied by
any number of individuals had no material or exculpatory value; there is no demonstration
that the evidence had been suppressed by the prosecutor; and, even assuming that the
evidence had been suppressed, Hill fails to explain how it could have changed the outcome
of the trial. Larimore, 341 Ark. at 404, 17 S.W.3d at 91. Neither has Hill met the
requirements for coram nobis relief, because the allegations fail to establish the existence of
facts that were not known at the time of Hill’s trial and that would have prevented the
rendition of the judgment. Howard, 2012 Ark. 177, at 4, 403 S.W.3d at 42–43.
Hill further alleges that the prosecutor suppressed a handwritten note signed by Pat
Calhoun, which contains a witness statement indicating that “the victim was last seen on
January 12, 1995.” Assuming that this note was not disclosed to the defense, it is neither
material nor exculpatory. Hill identifies Calhoun as a case coordinator with the Arkansas
State Crime Laboratory. There is no demonstration that Calhoun was directly involved in
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the murder investigation or in the interrogation of witnesses, and Calhoun was not called
to testify at Hill’s trial. More importantly, Calhoun’s note does not identify either the source
of the information or the name of the individual who gave the above-referenced statement.
Second-hand evidence that an unidentified family member or friend last saw the victim on
January 12, 1995, does not discredit statements and testimony provided by family members
who were with Moss on January 17, 1995, when he agreed to drive Hill and Tatum to the
bus station. Hill’s allegations based on Calhoun’s handwritten note fail to provide sufficient
facts to establish that these notes meet the definition of material evidence in support of a
Brady claim. Strickler, 527 U.S. at 280.
Hill finally alleges that the State failed to perform DNA analysis of items that
contained blood, hair, and other fluids. The issue of DNA testing of the blood evidence
was raised in the pretrial hearing cited above. Following that hearing, the trial court found
that the defense had failed to establish that such testing would significantly enhance the case,
and that there had been no request by the defense for either blood typing, blood
comparisons, or DNA. Furthermore, it is clear from a review of the trial record that Hill
was aware that blood, as well as hair and other items, had been collected by investigators
and that no DNA analysis of those items had been made at the time of his trial. Claims
concerning facts that a petitioner either could have known, or knew, at the time of trial do
not provide grounds for issuance of a writ of error coram nobis. Smith v. State, 2016 Ark.
201, at 3–4, 491 S.W.3d 463, 466. For the reasons set forth above, Hill’s allegations fail to
meet his burden of establishing the existence of a fundamental error that was extrinsic to the
record, which would have prevented the rendition of the judgment had it been known at
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the time of trial.2 Howard, 2012 Ark. 177, at 4, 403 S.W.3d at 43. Because Hill has failed
to state sufficient grounds in support of his pro se coram nobis petition, the motion is denied.
Hill has also filed a pro se motion for writ of audita querela. A writ of audita querela
is indistinguishable from a writ of error coram nobis in that it permits a defendant to obtain
relief based on allegations of newly discovered evidence following the rendition of a
judgment. See Pitts v. State, 2016 Ark. 345, at 1, 501 S.W.3d 803, 804; see 7A C.J.S. Audita
Querela section 2 (2016) (the difference between coram nobis and audita querela is largely
one of timing not substance). Citing to Rule 60(k) (2016) of the Arkansas Rules of Civil
Procedure, the State argues that the writ of audita querela has been abolished in both civil
and criminal cases. However, this court has recently recognized the writ as an avenue of
relief available to a petitioner challenging his criminal judgment. Pitts, 2016 Ark. 345, at 1
(stating that the petitioner sought a writ of coram nobis as well as a writ of audita querela
and granted the petition to seek coram nobis relief as well as other relief). Because Hill has
failed to demonstrate entitlement to coram nobis relief, his motion for similar relief in the
form of a writ of audita querela is denied.
Petition denied; motion denied.
2 The argument section of Hill’s petition is titled “Motion for Appointment of
Counsel and Petition to Reinvest Jurisdiction to File Error Coram Nobis.” To the extent
that Hill intended to file a separate motion for appointment of counsel, the motion is moot
because there is clearly no merit to the petition.
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