Carter v. State , 2015 Ark. 397 ( 2015 )

Cite as 2015 Ark. 397
SUPREME COURT OF ARKANSAS
No. CR-08-1385
Opinion Delivered October 29, 2015
EDWARD CARTER
PETITIONER PRO SE PETITION TO REINVEST
JURISDICTION IN THE TRIAL
V. COURT TO CONSIDER A PETITION
FOR WRIT OF ERROR CORAM NOBIS
AND MOTION TO AMEND
STATE OF ARKANSAS PETITION
RESPONDENT [GARLAND COUNTY CIRCUIT
COURT, NO. 26CR-08-142]
MOTION TO AMEND TREATED AS
AMENDED PETITION; PETITION
AND AMENDED PETITION DENIED.
PER CURIAM
In 2008, petitioner Edward Carter was found guilty by a jury of aggravated robbery and
sentenced to 360 months’ imprisonment. The Arkansas Court of Appeals affirmed. Carter v.
State, 2009 Ark. App. 683.
Now before this court is Carter’s pro se petition to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram nobis. Carter has also filed a motion to amend the
petition in which he enlarges on the petition. Because the motion contains grounds for relief,
it is evident that Carter intended it as an amendment to the petition, and we treat it as such.
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
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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. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State,
2013 Ark. 56, 425 S.W.3d 771. 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, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Id. 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.
Evidence adduced at Carter’s trial reflected that he and Jessica Brewer were shopping at
a Wal-Mart store in Hot Springs at the same time Salli Reding1 and Shannon Smith were also
shopping in the store. Both Brewer and Reding observed Carter placing video games inside his
clothing. When Carter left the store without paying for the games, Reding followed him outside
and confronted him about his failure to pay. At that point, Carter pulled a gun from his pocket,
1
Reding’s name is spelled “Redding” in the opinion rendered on direct appeal.
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cocked it, and pointed it at Reding.2 Smith testified that she did not see Carter pull out the gun
but saw a gun in Carter’s hand down at his side after Reding stepped back and called out, “He’s
got a gun.” Brewer also testified to seeing a gun at Carter’s side. Carter then left the parking lot
with Brewer and went to a resale shop where he sold the games as used electronics.
On direct appeal, Carter argued that the State failed to prove that he had actual,
unauthorized possession of merchandise from Wal-Mart, that there was no proof that a security
alarm sounded when he left the store, and that no representative of the store testified to a loss
of the merchandise. He contended that, without proof of the theft, there could be no
aggravated robbery. The court of appeals rejected the arguments, finding that there was
substantial evidence of a theft. Carter, 2009 Ark. App. 683, at 3. Moreover, the court of appeals
held that aggravated robbery occurred when physical force was threatened even if there had been
no actual transfer of property. Id.
As grounds for a writ of error coram nobis, Carter contends that the State violated Brady
v. Maryland, 373 U.S. 83 (1963). A Brady violation is established when material evidence
2
Reding, who once worked as a licensed private detective, testified to carrying a gun for
her work and described Carter’s gun as looking like her “nine-millimeter Glock.” There was
testimony from the police officer who responded to a 911 call from the scene that it was, in fact,
a BB gun that was the “spitting image” of a .45 caliber handgun. Carter questions in his petition
whether a judgment of conviction for aggravated robbery can be sustained if the gun was not
real. A person commits aggravated robbery, however, if, with the purpose of committing a
felony or misdemeanor theft, the person employs or threatens to immediately employ physical
force upon another person and is armed with a deadly weapon or represents by word or conduct
that he or she is armed with a deadly weapon. See Ark. Code Ann. §§ 5-12-102 to -103(a)(1), (2)
(Repl. 2013). Carter’s conduct satisfied the requirement of the statute regardless of whether the
weapon was a BB gun.
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favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462
S.W.3d 662. In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court revisited Brady and
declared that, when the petitioner contends that material evidence was not disclosed to the
defense, the petitioner must show that “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.” Strickler,
527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In Strickler, the Court
also set out the three elements of a true 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; and (3)
prejudice must have ensued. Strickler, 527 U.S. 263; see Howard, 2012 Ark. 177, 403 S.W.3d 38.
Impeachment evidence that is material, as well as exculpatory evidence, falls within the Brady
rule. Bagley, 473 U.S. 667. To determine whether the proposed attack on the judgment is
meritorious so as to warrant the granting of permission to reinvest jurisdiction in the trial court
to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations
of the petition and to the existence of the probability of the truth to those claims. Isom, 2015
Ark. 225, 462 S.W.3d 662.
Carter bases his Brady claim on the following assertions: Carter did not take, or manifest
the intention to take, anything of value from Reding; the only crimes that Reding could have
witnessed were shoplifting by Brewer, who stole the video games, and, if Brewer passed those
games to Carter, Reding was a witness only to Carter’s being an accomplice to shoplifting; the
State used a statement from a Wal-Mart customer as evidence that an aggravated robbery had
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occurred; Reding was a witness only to the aggravated robbery of Randall Nichols, a Wal-Mart
employee; the affidavit in support of the arrest warrant for aggravated robbery recited facts that
supported only a showing of shoplifting or accomplice-to-shoplifting; the victim was Wal-Mart,
not Reding; Carter was charged with one crime and convicted of another because there was no
robbery; in her pretrial statement, Reding speaks as though she were a police officer or “some
type of store security” rather than an ordinary shopper, and this constituted a “fabricated
affidavit” that was used to obtain an arrest warrant; Carter’s Fifth Amendment right to remain
silent was violated because the “court stated that [Carter] did not confess to a shoplifting charge
so he cannot rely on it now”; Carter did not know that he was being tried for committing an
aggravated robbery against Reding; the State did not disclose that Reding was testifying as a
witness rather than a victim, and, as a result, she could not be asked if she believed that Carter
had any intention of taking anything of value from her by threat or force; the State allowed
Reding’s perjured testimony to be introduced at trial. It is abundantly clear that the claims raised
by Carter are challenges to the sufficiency of the evidence adduced at trial rather than a violation
of Brady in that he has offered nothing to demonstrate that any material evidence was concealed
from the defense.
We have held that issues concerning the sufficiency of the evidence are not cognizable
in coram-nobis proceedings. Ventress v. State, 2015 Ark. 181, at 6, 461 S.W.3d 313, 317 (per
curiam). The question of the sufficiency of the evidence is to be settled at trial and on the record
on direct appeal. Sims v. State, 2012 Ark. 458 (per curiam); see Taylor v. State, 303 Ark. 586, 799
S.W.2d 519 (1990) (Claims of false or misleading testimony by witnesses at trial did not fit within
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the scope of a coram-nobis proceeding.).
To the degree that any claim raised by Carter can be considered a claim of trial error,
assertions of trial error are also outside the purview of a coram-nobis proceeding. Howard, 2012
Ark. 177, 403 S.W.3d 38. Even constitutional issues that could have been addressed at trial are
not within the purview of the writ. See Watts v. State, 2013 Ark. 485, at 7 (per curiam).
Finally, Carter alleges that the State did not reveal to the defense that the prosecutor had
convinced Reding to provide the affidavit used to obtain an arrest warrant and coached her as
to what to say in the statement and in her testimony at trial. The claim fails to state a ground for
the writ. Carter has not presented facts in support of his contention that the State withheld any
pertinent information from the defense concerning Reding’s pretrial statements or testimony at
trial. The petitioner seeking to reinvest jurisdiction in the trial court to proceed with a coram-
nobis petition bears the burden of presenting facts to support the claims for the writ because an
application for the writ must make a full disclosure of specific facts relied upon and not merely
state conclusions as to the nature of such facts. Howard, 2012 Ark. 177, 403 S.W.3d 38. Bare
allegations will not suffice. See Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004). Carter has
not shown that there was some material evidence withheld that would have prevented rendition
of the judgment had it been known at the time of trial. See Isom, 2015 Ark. 225, 462 S.W.3d 662.
Motion to amend treated as amended petition; petition and amended petition denied.
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