McArthur v. State , 515 S.W.3d 585 ( 2017 )


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  •                                       Cite as 
    2017 Ark. 120
    SUPREME COURT OF ARKANSAS.
    No.   CR-91-206
    Opinion Delivered April   6, 2017
    STEVEN LARON MCARTHUR
    PETITIONER
    PRO SE SECOND PETITION TO
    V.                            REINVEST JURISDICTION IN THE
    TRIAL COURT TO CONSIDER A
    STATE OF ARKANSAS            PETITION FOR WRIT OF ERROR
    RESPONDENT CORAM NOBIS
    [LONOKE COUNTY CIRCUIT COURT,
    NO. 43CR-90-22]
    PETITION DENIED.
    PER CURIAM
    Petitioner Steven Laron McArthur was found guilty in 1991 by a jury of capital
    murder in the death of Rodney Spence. He was sentenced to life imprisonment without
    parole. We affirmed. McArthur v. State, 
    309 Ark. 196
    , 
    830 S.W.2d 842
    (1992).
    McArthur has now filed in this court his second pro se petition to reinvest jurisdiction
    in the trial court to consider a writ of error coram nobis. 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.
    Roberts v. State, 
    2013 Ark. 56
    , at 11, 
    425 S.W.3d 771
    , 778.
    A writ of error coram nobis is an extraordinarily rare remedy. 
    Id. Coram nobis
    proceedings are attended by a strong presumption that the judgment of conviction is valid.
    Id.; Westerman v. State, 
    2015 Ark. 69
    , at 4, 
    456 S.W.3d 374
    , 376. 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
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    negligence or fault of the defendant, was not brought forward before rendition of the
    judgment. 
    Roberts, 2013 Ark. at 11
    , 425 S.W.3d at 778. The petitioner has the burden of
    demonstrating a fundamental error of fact extrinsic to the record. 
    Id. 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. Id.;
    Howard v. State, 
    2012 Ark. 177
    , 
    403 S.W.3d 38
    .
    Before addressing the allegations in McArthur’s petition, a brief summary of the facts
    and evidence adduced at trial is necessary. On January 21, 1990, a hunter discovered the
    body of sixteen-year-old Rodney Spence in a ditch in north Lonoke County. Spence had
    been shot twice in the head at close range. Spence’s father testified that on the afternoon
    of January 20, 1990, his son had left home to go to town, driving a 1986 red Ford Ranger,
    with the understanding that he would be home by 10:00 p.m. that night. Spence’s uncle
    testified that he saw Spence at approximately 6:45 p.m., and Spence told him that he was
    going to Cabot, Arkansas. When Spence did not return home by 10:30 p.m., his parents
    became worried, and they reported him missing at 12:30 a.m. on January 21, 1990. Spence’s
    body was discovered on the same day at approximately 1:00 p.m.
    On January 23, 1990, a Texas patrolman with the Plano Police Department pulled
    over a red Ford Ranger with Arkansas plates after hearing a national broadcast to be on the
    lookout for the vehicle. Donald Hawley, the driver of the truck, initially informed the
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    Texas authorities that he and McArthur had been staying together in Cabot, Arkansas, the
    past weekend. Hawley told authorities that while the two were in Cabot, McArthur showed
    up driving the red truck and that the two of them decided to drive to Dallas and were
    staying with McArthur’s sister, Robin. Hawley also informed police that a pistol was located
    in Robin’s apartment in Dallas. The Plano police obtained and executed a search warrant
    for Robin’s apartment, where they found a gun in a nightstand drawer.           Thereafter,
    McArthur and Hawley were taken into custody.
    Hawley eventually pleaded guilty to capital murder and testified at McArthur’s trial
    that McArthur had approached Spence in the parking lot of a grocery store in Cabot.
    According to Hawley, he and McArthur arranged for Spence to give them a ride to a liquor
    store and that Spence drove them to two liquor stores and a convenience store. When
    Spence went inside the convenience store, McArthur informed Hawley that he was going
    to persuade Spence to take them to a friend’s house, and McArthur instructed Hawley to
    act sick when McArthur prompted him. Hawley further testified that the two planned to
    steal Spence’s truck. McArthur directed Spence to a remote location whereupon McArthur
    told Spence that Hawley “looked sick.” McArthur and Hawley got out of the truck on the
    passenger side and crouched by the truck. Spence also got out of the truck, and McArthur
    asked Spence for assistance in getting Hawley back in the truck. Hawley then stepped
    around the rear of the truck, aimed a gun at Spence, and instructed Spence to lie on the
    ground and empty his pockets. Hawley testified that McArthur said, “Well, shoot him,”
    and Hawley shot Spence in the head. The two men had begun to drag Spence’s body when
    McArthur dropped the upper half of Spence’s body and stated that Spence was still alive.
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    According to Hawley, McArthur stated that he did not want to see Spence suffer, and
    McArthur fired a second shot into Spence’s head. Hawley and McArthur left Spence’s body
    in the ditch where it was eventually discovered. After killing Spence, Hawley and McArthur
    took Spence’s truck and left for Dallas. 
    McArthur, 309 Ark. at 199
    –200, 830 S.W.2d at 843–
    44.
    At trial, the parties stipulated that the gun found in the nightstand drawer was the
    same weapon that was used to murder Spence, and McArthur testified at trial that the gun
    belonged to his father. McArthur testified on his own behalf and denied taking part in any
    plan to steal Spence’s truck, and he denied taking part in the murder. McArthur testified
    that after murdering Spence, Hawley forced him to exit the truck and assist in moving
    Spence’s body. McArthur’s testimony was corroborated by a county-jail inmate who
    testified that he overheard Hawley admitting being the sole perpetrator of the crime. The
    jury found McArthur guilty of capital murder.
    In his first petition for coram nobis relief filed in this court, McArthur asserted that
    he had discovered new evidence that consisted of an undated letter from Hawley forwarded
    to McArthur’s mother wherein Hawley admitted that he had lied about McArthur’s firing
    the second shot and instead stated that he had been the only shooter. In addition, McArthur
    submitted a pretrial statement that Hawley had given to his attorney admitting that he had
    fired both gunshots. McArthur alleged that the prosecution withheld Hawley’s pretrial
    statement from the defense in violation of Brady v. Maryland, 
    373 U.S. 83
    (1963). We
    denied the petition, concluding that McArthur had not established a Brady violation and
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    otherwise failed to state sufficient grounds to justify coram nobis relief. McArthur v. State,
    
    2014 Ark. 367
    , at 5–6, 
    439 S.W.3d 681
    , 685 (per curiam).
    In this second petition for coram nobis relief, McArthur sets forth eleven grounds for
    relief. McArthur asserts in his first five grounds for relief that new evidence has emerged
    demonstrating his actual innocence; that this new evidence was withheld by investigating
    officers; that Sheriff Isaac conspired to present false testimony; and that the prosecutors, Will
    Feland and Larry Cook, were guilty of prosecutorial misconduct. In support of the grounds
    for relief, McArthur presents an affidavit from his codefendant, Hawley, recanting his trial
    testimony and asserting that Sheriff Isaac and the prosecutors conspired to ensure that
    Hawley provided false testimony implicating McArthur in the murder despite Hawley’s
    statements to the sheriff and the prosecutors that McArthur had not participated in a plan to
    steal Spence’s truck and did not actively participate in Spence’s murder.1 Hawley further
    contradicts McArthur’s own testimony and contends that the gun used in the murder did
    not belong to McArthur’s father, but was a gun that Hawley had stolen from police and that
    the sheriff and the prosecutor manufactured evidence that he and McArthur had used this
    gun for target practice prior to the murder.
    McArthur further contends that he has discovered new evidence consisting of two
    additional affidavits from alleged witnesses to Spence’s murder, Larry Stephens and Jackie
    1 Hawley’s affidavit was executed in August 2007, and according to an affidavit
    executed by McArthur’s mother, Hawley did not forward his affidavit to McArthur’s
    mother until October 30, 2015. There is no other explanation for Hawley’s eight-year
    delay in disclosing this affidavit.
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    Carlin.2 Stephens and Carlin provide identical affidavits which state that they were attending
    a party in “a field located a few miles off highway 31 on Hefner Road” and approached a
    road where they had heard people engaged in an argument. Carlin and Stephens further
    assert that, while they could not clearly see the three individuals involved in this argument,
    they were able to observe one of the three shoot another in the group and then force the
    third person at gunpoint to move the body. According to Stephens and Carlin, they were
    interviewed the following day by Deputy Sheriff Larry Jones and provided statements
    consistent with the facts set forth in their affidavits. Based on the affidavits of Hawley and
    the two alleged witnesses, McArthur contends that investigators, acting in concert with the
    two prosecutors, suppressed exculpatory evidence provided by these witnesses and suborned
    perjury.
    The wrongful withholding of material exculpatory evidence from the defense is a
    violation of Brady and a ground for granting the writ. Noble v. State, 
    2015 Ark. 215
    , at 4,
    
    462 S.W.3d 341
    , 345 (per curiam). 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. (quoting Strickler
    v. Greene, 
    527 U.S. 263
    , 280 (1999)). 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. 
    Id. However, this
    court is not required to take claims of a Brady violation in a
    2   Carlin is currently incarcerated at Varner Unit where McArthur is also incarcerated.
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    coram nobis petition at face value without substantiation. Ventress v. State, 
    2015 Ark. 181
    ,
    at 5, 
    461 S.W.3d 313
    , 316–17.
    A claim of recanted testimony, standing alone, is not cognizable in an error coram
    nobis proceeding. Wilson v. State, 
    2016 Ark. 327
    , at 5, 
    499 S.W.3d 638
    , 640 (per curiam).
    This is because a coram nobis proceeding is not a means to contradict a fact already
    adjudicated. Carter v. State, 
    2016 Ark. 378
    , at 7, 
    501 S.W.3d 375
    , 381 (per curiam).
    Hawley’s trial testimony and the testimony of other witnesses who observed Hawley and
    McArthur’s behavior immediately after the murder supported the jury’s determination that,
    rather than being coerced, McArthur had been a willing participant in the crime. Moreover,
    a stipulation from the defense and McArthur’s testimony established that the gun belonged
    to McArthur’s father.
    The resulting lack of credibility of the affidavits from the two alleged witnesses to
    the murder therefore means that the affidavits fail to substantiate McArthur’s claim based on
    Hawley’s recanted testimony. The affidavits of these two alleged witnesses are highly
    questionable in that, among other things, there is no explanation why these two individuals
    failed to report the murder in the first instance and waited over fifteen years to come
    forward.   Furthermore, the authorities did not become aware that Spence had been
    murdered until Spence’s body was discovered by a hunter in an isolated area several hours
    after Stephens and Carlin had allegedly witnessed the commission of the crime. Since
    Stephens and Carlin failed to report the crime, they fail to explain how the sheriff was aware
    that they had been near the area where the murder had taken place such that the sheriff
    interviewed them on the following day.
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    Even assuming that Stephens and Carlin witnessed the murder and gave statements
    to the deputy sheriff, there is a distinction between fundamental error, which requires
    issuance of the writ, and newly discovered information, which might have created an issue
    to be raised at trial had it been known. Hooper v. State, 
    2015 Ark. 108
    , at 6, 
    458 S.W.3d 229
    , 233. To merit relief on a claim of a Brady violation, McArthur must demonstrate that
    the alleged withheld evidence would have prevented the rendition of the judgment had it
    been disclosed at trial. Noble v. State, 
    2014 Ark. 332
    , at 4, 
    439 S.W.3d 47
    , 50. McArthur’s
    trial testimony and the testimony of a fellow inmate were consistent with the version of
    events that are set forth in the affidavits of Stephens and Carlin. The jury apparently did
    not believe McArthur’s testimony or the corroborating testimony, and it is unlikely that
    testimony from these two witnesses, who did not take the trouble to report a murder, would
    have changed the outcome of the trial.
    Other than the affidavits of Hawley and the two alleged witnesses, McArthur offers
    no substantiation for his claims that investigators and the prosecutor suppressed material
    exculpatory evidence outside McArthur’s own conclusory claims. Conclusory claims
    concerning evidence omitted from the record are deficient as a basis for coram nobis relief
    and do not establish that there is a reasonable probability that the outcome of the proceeding
    would have been different if the State had disclosed any particular evidence to the defense.
    Carter, 
    2016 Ark. 378
    , at 
    7, 501 S.W.3d at 381
    .
    In his sixth ground for relief, McArthur contends that the presiding judge was biased
    because, according to McArthur, the judge’s son dated the victim’s cousin and was a
    member of the same church as that of the victim’s family. To state a ground for the writ
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    on the basis of judicial bias, a petitioner must show that there was a reasonable probability
    that he or she would not have been convicted if an unbiased judge had served, and an
    allegation of the mere appearance of impropriety is not sufficient. Chatmon v. State, 
    2015 Ark. 417
    , at 3–4, 
    473 S.W.3d 542
    , 545–46 (per curiam). A petitioner does not make the
    necessary showing of fundamental error to support relief when there is no demonstration of
    actual bias. 
    Id. The mere
    fact that some rulings were adverse to a defendant is not enough
    to demonstrate actual bias. Brown v. State, 
    2012 Ark. 399
    , at 5, 
    424 S.W.3d 288
    , 292.
    Moreover, in coram nobis proceedings, a petitioner must demonstrate that the judge’s bias
    manifested in a manner that was hidden and could not have been challenged at the time of
    trial. See Chatmon, 
    2015 Ark. 417
    , at 
    3–4, 473 S.W.3d at 545
    –46. (noting that to the extent
    that the court’s denial of the motion for new counsel demonstrated bias, the issue was not
    one that was hidden and was addressed by the trial court).
    McArthur’s claim of judicial bias is based on allegations that the trial court made a
    series of adverse rulings, including the denial of a motion for a change of venue; the
    exclusion of the deposition of Dr. Marino, a psychiatrist who evaluated Hawley; the refusal
    to grant a mistrial; and by allegedly providing improper jury instructions. The trial court’s
    rulings on change of venue and the exclusion of Dr. Marino’s deposition were issues raised
    at trial and affirmed on appeal. 
    McArthur, 309 Ark. at 201
    –05, 830 S.W.2d at 844-46. The
    remainder of McArthur’s judicial-bias allegations also consist of matters that were not
    extrinsic to the record. McArthur’s judicial-bias claim is nothing more than a claim of trial
    court error, which is not cognizable in a coram nobis proceeding. Johnson v. State, 
    2015 Ark. 170
    , at 5, 
    460 S.W.3d 790
    , 794 (per curiam). By their very nature, claims of trial error
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    could have been settled at trial and on the record on direct appeal; therefore, allegations of
    trial error, even if of constitutional dimension, are not within the purview of a coram nobis
    petition. 
    Id. McArthur next
    claims ineffective assistance of counsel as grounds for coram nobis
    relief. Claims of ineffective assistance of counsel are not cognizable in a coram nobis
    proceeding. Matthews v. State, 
    2016 Ark. 447
    , at 3–4, 505 S.W.3d. 670, 673 (per curiam).
    Such claims are properly brought pursuant to Arkansas Rule of Criminal Procedure 37.1.
    A petition for writ of error coram nobis is not a substitute for proceeding under Rule 37.1.
    
    Id. This holds
    true even when the deadline for filing for Rule 37 relief has passed, as
    fundamental fairness and due process do not require an unlimited opportunity to proceed
    under Rule 37.1. 
    Id. McArthur’s remaining
    claims include the following: that he was discriminated
    against because a second attorney had not been appointed to represent him in a capital case;
    that he was convicted of capital murder without being found guilty of the underlying
    felony;3 that he has been denied due process because there is no remedy in the State of
    Arkansas for an inmate who discovers new evidence after conviction that is not scientific in
    nature; and that he had been precluded from assisting his attorney in a meaningful way due
    to his being denied access to a law library while in custody.
    The record demonstrates that the jury was instructed in accordance with AMI Crim.
    3
    1501-A, that a finding of capital murder must be based on a determination that McArthur
    had committed the crime of robbery and that if the crime of robbery had not been proved
    then McArthur could not be found guilty of capital murder.
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    These claims for relief are not cognizable in coram nobis proceedings. As stated
    above, the function of the writ of error coram nobis 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. Roberts, 
    2013 Ark. 56
    , at 
    11, 425 S.W.3d at 778
    . McArthur has the burden of demonstrating a fundamental error of fact
    extrinsic to the record. 
    Id. Constitutional issues
    such as due-process and equal-protection
    claims that could have been addressed at trial are not within the purview of the writ. Wallace
    v. State, 
    2015 Ark. 349
    , at 11–12, 
    471 S.W.3d 192
    , 199–200 (per curiam). An issue that
    was known at the time of trial and could have been addressed is not one cognizable in an
    error coram nobis proceeding. Anderson v. State, 
    2012 Ark. 270
    , at 5–6, 
    423 S.W.3d 20
    ,
    25–26 (per curiam). Regarding McArthur’s claim that he has been denied due process with
    respect to presenting new evidence in claims for postconviction relief, we have noted that
    there is no constitutional right to a postconviction proceeding. Roberts v. State, 
    2013 Ark. 57
    , at 12, 
    426 S.W.3d 372
    , 378.
    Petition denied.
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