TRENCIE OLIVER v. STATE OF ARKANSAS , 2020 Ark. 233 ( 2020 )

Cite as 2020 Ark. 233
SUPREME COURT OF ARKANSAS
No. CR-15-539
TRENCIE OLIVER Opinion Delivered JUNE 11, 2020
PETITIONER
V. PRO SE PETITION TO REINVEST
JURISDICTION IN THE TRIAL COURT
STATE OF ARKANSAS TO CONSIDER A PETITION FOR WRIT
RESPONDENT OF ERROR CORAM NOBIS [PULASKI
COUNTY CIRCUIT COURT, FOURTH
DIVISION, NO. 60CR-14-1889]
PETITION DENIED.
JOHN DAN KEMP, Chief Justice
Petitioner Trencie Oliver brings this petition to reinvest jurisdiction in the trial
court to file a petition for writ of error coram nobis in his criminal case. In the petition,
Oliver contends the State violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding
fingerprint evidence. Because we find that Oliver has not established a Brady violation as
grounds for issuance of the writ, the petition is denied.
I. Facts
The Pulaski County Circuit Court convicted Oliver of second-degree unlawful
discharge of a firearm from a vehicle and possession of firearms by certain persons, and he
was sentenced as a habitual offender to an aggregate term of 360 months’ imprisonment.
Oliver’s conviction and sentence were affirmed by the Arkansas Court of Appeals. Oliver v.
State, 2016 Ark. App. 332, 498 S.W.3d 320. Oliver was arrested and charged with the
crimes for which he was convicted after a police officer observed the driver of a vehicle
discharge a firearm. Id. The arresting officer testified that Oliver was the driver, and
Gregory Oliver was a passenger in the vehicle. Id. On appeal, Oliver argued it was Gregory
who had possessed and discharged the firearm. Oliver further contended that his right to
due process was violated when the police officers acted in bad faith by tainting and
destroying evidence and preventing appropriate fingerprint testing on the gun that was
fired from the vehicle. Id. In its opinion, the court of appeals noted that at trial, there was
testimony that several police officers at the scene had handled the gun, the live rounds, and
the shell casings without wearing gloves and that subsequent fingerprint testing was
inconclusive in that no latent prints could be obtained by the fingerprint examiner. Id.
The court of appeals rejected Oliver’s argument regarding the destruction of the
fingerprint evidence, finding that it had not been sufficiently raised at trial. Id.
Oliver now raises a Brady claim and asserts that the State withheld evidence
regarding the fingerprint testing and the absence of latent prints on the gun, the casings,
and the bullets.
II. 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,
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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.
III. Grounds for the Writ
The writ is allowed only under compelling circumstances to achieve justice and to
address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d
407 (1999). 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. Howard v. State, 2012 Ark. 177, 403
S.W.3d 38. The burden is on the petitioner in the application for coram nobis relief to
make a full disclosure of specific facts relied upon and not to merely state conclusions as to
the nature of such facts. McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833.
While allegations of a Brady violation fall within one of the four categories of
fundamental error that this court has recognized in coram nobis proceedings, the fact that
a petitioner alleges a Brady violation alone is not a sufficient basis for error coram nobis
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relief. Jackson v. State, 2017 Ark. 195, 520 S.W.3d 242. To merit relief on a claim of a
Brady violation, a petitioner must demonstrate that there is a reasonable probability that
the judgment of conviction would not have been rendered, or would have been prevented,
had the information been disclosed at trial. Id. There are three elements of a Brady
violation: (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. Carner v. State,
2018 Ark. 20, 535 S.W.3d 634. Before the court can determine whether a Brady violation
has occurred, the petitioner must first establish that the material was available to the State
prior to trial and that the defense did not have it. Id.
IV. Grounds for Relief
Although Oliver’s allegations are unclear, he appears to claim that photographs of
the fingerprints were taken and withheld from the defense. In support of his contention,
Oliver attaches a document from the crime-scene search unit that described the tests for
fingerprints on the revolver, the spent casings, and the live rounds and concluded that
there were no latent fingerprints on those objects. There is nothing in this document to
indicate that photographs were taken of the nonexistent latent fingerprints.
When a petitioner alleges a Brady violation as the basis for his or her claim of relief
in coram nobis proceedings, the facts alleged in the petition must establish that there was
evidence withheld that was both material and prejudicial such as to have prevented
rendition of the judgment had it been known at the time of trial. Martinez-Marmol, 2018
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Ark. 145, 544 S.W.3d 49. 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. Id.
Oliver has not shown that the fingerprint tests were withheld by the State in that
the issue pertaining to the inadvertent destruction of fingerprint evidence was raised by the
defense at trial and on appeal. Moreover, the forensic examiner’s conclusion that no
latent fingerprints were identified on the revolver and other items was not material
evidence such that it would have changed the outcome of the trial because the arresting
officer testified that he saw the vehicle’s driver put his left arm out of the vehicle and fire
three rounds into the air. The officer further testified that when he pulled the vehicle
over, Oliver—not Gregory—exited from the driver’s side. In sum, Oliver has failed to
demonstrate that the State withheld material evidence.
Petition denied.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. I would grant Trencie Oliver’s
petition to reinvest jurisdiction and grant an evidentiary hearing. Oliver’s case was
sabotaged by the Little Rock Police Department’s mishandling of key physical evidence and
by its misrepresentation of its capability to perform forensic testing.
While Oliver argues in his petition that there was a Brady violation related to the
handling of the evidence, the legal underpinnings of his case are controlled by our
holdings in Pitts v. State, 2016 Ark. 345, 501 S.W.3d 803, and Strawhacker v. State, 2016
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Ark. 348, 500 S.W.3d 716. Furthermore, the facts of this case and the sentence imposed
clearly evidence that justice demands that Oliver be appointed counsel in order to assist in
this matter.
I am mindful that the writ of error coram nobis is allowed only under compelling
circumstances to achieve justice to address errors of the most fundamental nature.
Strawhacker, 2016 Ark. 348, at 4 (citing Sanders v. State, 374 Ark. 70, 285 S.W.3d 630
(2008)). “In simple terms, this writ is a legal procedure to fill a gap in the legal system-to
provide relief that was not available at trial because a fact exists which was not known at
that time and relief is not available on appeal because it is not in the record.” Id. (citing
Penn v. State, 282 Ark. 571, 573–74, 670 S.W.2d 426, 428 (1984)).
Permission will be granted by this court for a petitioner to proceed in the trial court
with a petition for writ of error coram nobis only when it appears that the proposed attack
on the judgment is meritorious. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. In making
such a determination, we look to the reasonableness of the allegations of the petition and
to the existence of the probability of the truth. Id.
Prior to trial, Oliver’s attorney filed a motion for fingerprint testing of the firearm,
empty shell casings, and ammunition. A continuance was requested because it had not
been addressed by the State. The motion specifically stated that the evidence “be submitted
to the Arkansas State Crime Lab to be examined for fingerprints and that if any are found,
that those prints be compared to the Defendant’s fingerprints and to those of George
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Oliver.” The trial court granted the motion. However, it only directed the fingerprints be
sent to the Little Rock Police Department.
As requested, the motion specifically stated that testing was to be completed by the
Arkansas State Crime Lab. However, there is nothing in the record to indicate that any
testing was conducted by the Arkansas State Crime Lab. If we presume that testing
occurred, there is nothing in the record, including the trial transcript, that would indicate
that any results of that testing were provided to Oliver. The record does not include a
report from the state crime lab. The only test results that the State provided to Oliver were
the results of the testing conducted by the Little Rock Crime Scene Search Unit.
The results of the officers’ testing appeared in a document entitled “crime scene
search unit-evidence processed form.”1 It only states “negative results.” This form describes
the chain of custody and only includes the sentence indicating that the testing led to
negative fingerprint results of the weapon, shell casings, and remaining ammunition. Lack
of scientific testing by the Arkansas State Crime Lab establishes the ambiguity of the crime-
scene report, and it can only be assumed that––to the extent that any testing occurred by
the laboratory––the results were negative and excluded Oliver’s fingerprints from the
weapon, ammunition, and spent casings. Furthermore, the report from the officers is not
responsive to the discovery requested by the defendant. Thus, the law presumes that the
State’s evidence, if obtained, would be considered favorable to Oliver. Likewise, if the
1
This form is indicated to be LRPD Form 5480-41. Rev. 7/15/04.
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prosecution failed to obtain crime-lab testing as ordered by the court, such failure, when
viewed in light of its excuse of the gross mishandling, undercuts any claim that fingerprints
were not available on the crime-scene evidence. The State’s failure to disclose the crime
lab’s finding establishes the police officers’ disregard for the court’s order and thus can
support an inference of willful suppression of evidence.
On appeal, the State improperly argues the lack of identifiable fingerprints because
the lack of any fingerprints was due to the mishandling of evidence by the State. While the
State claims that four officers mishandled the evidence, such a claim is self-serving as it is
not supported by the state crime-lab report. Clearly, once again, one could argue that this
failure is evidence of bad faith. Similar to Pitts and Strawhacker, the mishandling and
mischaracterization of evidence violates the principles set forth by this court. The State
cannot avoid a court order and make up an excuse to justify its failure to do so. As we have
established in Pitts and Strawhacker, there are repercussions for such actions.
Likewise, the Little Rock Police Department misrepresents its capability of
performing the gun-shot-residue test. Oliver requested the gun-shot-residue test at the time
of his arrest, and Sgt. Andre Dyer told Oliver that he did not pursue that test because that
is not his field of expertise. At trial, Detective Pasman testified he did not have access to a
gun-shot-residue test and that only a homicide detective would have access to that test. No
request was made to conduct the residue test. Law enforcement had to be acutely aware
that this test could have provided dispositive proof whether it was Oliver, in fact, who fired
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the weapon. Refusing to pursue this forensic testing gives rise to the conclusion that it
would have exonerated Oliver.
Oliver received a presumptive sentence of three and a half years for the unlawful
discharge of a firearm from a vehicle (he fired into space––into the air with no possibility
of any damage to person(s) or property––a Class B felony), the remainder of his sentence
was an enhancement from the Habitual Offenders Act, which added another 20 years, to
run consecutively. Oliver’s last felony conviction was in 2003. The legislative increase of
time to be served for this offense is seven times more than that established by the court. In
1997 Oliver was sentenced to 18 months for felony possession of a controlled substance
with intent to deliver. In 2003, he was sentenced to 8 years for domestic battery and first-
degree terroristic threatening. Oliver served his time and completed those sentences more
than 12 years ago, and now he is being sentenced to an additional 20 years for his past
crimes. This sentence is disproportionate to the offense committed, and it suggests a
systemic and unconstitutional denial of justice of such magnitude as to require a remand
to the trial court for a hearing to develop the facts supporting not only the changed offense
but also the basis for the extraordinary sentence imposed by the trial court. I dissent.
Trencie Oliver, pro se petitioner.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.
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