Anderson v. State , 510 S.W.3d 755 ( 2017 )

Cite as 2017 Ark. 44
SUPREME COURT OF ARKANSAS.
No. CR-08-458
MYRON NEWJEAN ANDERSON, JR. Opinion Delivered February 16, 2017
PETITIONER PRO SE PETITION TO REINVEST
JURISDICTION IN THE TRIAL
V. COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR
CORAM NOBIS AND PRO SE
STATE OF ARKANSAS MOTION FOR APPOINTMENT OF
COUNSEL
RESPONDENT [ASHLEY COUNTY CIRCUIT
COURT, NO. 02CR-06-197]
PETITION DENIED; MOTION
MOOT.
PER CURIAM
In 2007, a jury found petitioner Myron Newjean Anderson, Jr., guilty of five counts
of a terroristic act and one count of being a felon in possession of a firearm. The jury
imposed an aggregate sentence of 1320 months’ imprisonment in the Arkansas Department
of Correction. The Arkansas Court of Appeals affirmed. Anderson v. State, CR-08-458
(Ark. App. Jan. 28, 2009) (unpublished) (original docket no. CACR08-458). Anderson
timely filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure
37.1 (2008) that the trial court denied. Anderson lodged an appeal from the denial, and this
court dismissed the appeal. Anderson v. State, 2009 Ark. 493 (per curiam). On December
Cite as 2017 Ark. 44
7, 2016, Anderson filed this pro se petition seeking to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram nobis.1
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, 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. 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 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.
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.
1
For clerical purposes, the motion was assigned the same docket number as the direct
appeal.
2
Cite as 2017 Ark. 44
Anderson seeks leave to proceed in the trial court for a writ of error coram nobis
contending there was prosecutorial misconduct based on the State’s reliance on perjured or
false testimony. He further contends that the State failed to disclose exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963).
During Anderson’s trial, evidence established that he was a felon, that he was in the
nightclub shooting a firearm on the night in question, and that seven people were shot.
Anderson, CR-08-458, slip op. at 1. On appeal, Anderson argued that the “testimony from
the witnesses was so inconsistent that it was unreliable.” Id. Anderson failed to cite to any
authority or advance any argument for the untenable assertion that mere inconsistency in
the testimony of different witnesses, in and of itself, so destructive of the jury’s ability to
discern the truth that it somehow renders otherwise-sufficient evidence insufficient to
support a criminal conviction, and the court of appeals did not address his directed-verdict-
motion argument on appeal. Id.
Here, Anderson makes conclusory claims that the prosecutor permitted false
testimony by Courtney Hampton, Reco Webb, Harold McDade, Scott Williams, and Billy
Ray Brown to go “uncorrected[.]” While arguing that the identity of the perpetrator was
at issue during the investigation and trial, Anderson contends that, because the State’s case
was entirely based on the witnesses’ testimony, it was “more likely than not that no
reasonable [j]uror would have found petitioner guilty beyond a reasonable doubt.” He fails
to argue relief warranted by issuance of the writ.
3
Cite as 2017 Ark. 44
The writ of error coram nobis does not lie to correct an issue of fact that has been
adjudicated, even though wrongly determined, or for alleged false testimony at trial.
Chatmon v. State, 2015 Ark. 417, 473 S.W.3d 542 (per curiam). When an issue could have
been raised at trial or is cognizable in some other legal proceeding, that issue is not
cognizable in a coram nobis proceeding. Id. Allegations of prosecutorial misconduct,
excepting Brady violations, or false testimony are the type that could have been raised at
trial, and the claims are therefore not the type that provide grounds for the writ. Id.
Moreover, to the extent that Anderson’s assertions concerning the allegedly false testimony
could be considered claims that the evidence was insufficient to sustain the judgment, issues
concerning the sufficiency of the evidence or the credibility of the witnesses are not
cognizable in error coram nobis proceedings. Pinder v. State, 2015 Ark. 423, 474 S.W.3d
490 (per curiam).
Anderson contends that the State “suppressed the [t]erroristic [a]ct elements with[-]
holding the true nature of the charges against [him]” resulting in a Brady violation.
Specifically, he contends that the terroristic-act statute’s language is inconsistent. He argues
that section “(A)(1)” states that one commits a terroristic act when he or she “shoots at or
in any manner projects an object, with the purpose to cause injury to another person or
other person or damage to property, at a conveyance which is being operated or which is
occupied by another person or persons” which is inconsistent with section “(A)(1)(a),”
which “requires shoots at or in any manner projects an object with the purpose to cause
injury to another person.”
4
Cite as 2017 Ark. 44
A Brady violation is established when material evidence favorable to the defense is
wrongfully withheld by the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per
curiam). 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.
A person commits a terroristic act when, while not in the commission of a lawful
act, “he or she shoots at or in any manner projects an object, with the purpose to cause
injury to another person or other persons or damage to property, at a conveyance which is
being operated or which is occupied by another person or persons.” Ark. Code Ann. § 5-
13-310(a)(1) (Repl. 2006).2 A person also commits a terroristic act when, while not in the
commission of a lawful act, “he or she shoots, with the purpose to cause injury to a person
or persons or damage to property, at an occupiable structure.” Ark. Code Ann. § 5-13-
2
Anderson committed the terroristic acts on November 23, 2006.
5
Cite as 2017 Ark. 44
310(a)(2) (Repl. 2006). Contrary to Anderson’s claim, there is no subsection “(A)(1)(a)” in
section 5-13-310.
Anderson’s claim is not one seeking relief for a Brady violation. He fails to point to
any evidence—material or exculpatory—that was withheld by the State or that any
prejudice ensued. In fact, Anderson fails to establish the existence of any fact or evidence
extrinsic to the record because any defect in the criminal information could have been
discovered or raised in the trial court.3 Smith v. State, 2016 Ark. 201, 491 S.W.3d 463 (per
curiam). Claims 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. Id. Moreover, to the
extent Anderson raises a claim of statutory interpretation, again, it does not fall within the
purview of a coram nobis proceeding because it is not an error found in one of the four
above-referenced categories of error, i.e., insanity at the time of trial, a coerced guilty plea,
material evidence withheld by the prosecutor, or a third-party confession.4 Howard, 2012
Ark. 177, 403 S.W.3d 38. None of the claims raised by Anderson demonstrate that there
was some fundamental error at trial or that there existed some fact which would have
prevented rendition of the judgment if it had been known to the trial court and which,
through no negligence or fault of his own, was not brought forward before rendition of
3
In his Rule 37.1 appeal, Anderson argued that trial counsel was ineffective for failing
to challenge the criminal information charging him with multiple counts of a terroristic act
in violation of Arkansas Code Annotated section 5-13-310, contending the information
omitted elements of the charged crime. Anderson v. State, 2013 Ark. 332, at 3–4 (per
curiam).
4
Although the four categories are not set in stone, the remedy of coram nobis remains
an extraordinary remedy. See Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716.
6
Cite as 2017 Ark. 44
judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. Because Anderson fails to state
grounds for the writ, his motion for appointment of counsel is moot.
Petition denied; motion moot.
7