Christopher Newton White v. State of Arkansas

2021 Ark. 198, 632 S.W.3d 306

• Court: Supreme Court of Arkansas
• Decided: October 28, 2021
• Status: Published

Opinion

Cite as 2021 Ark. 198 SUPREME COURT OF ARKANSAS No. CR-05-1407

Opinion Delivered: October 28, 2021

CHRISTOPHER NEWTON WHITE PETITIONER PRO SE SECOND PETITION TO REINVEST JURISDICTION IN THE V. TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR STATE OF ARKANSAS CORAM NOBIS RESPONDENT [BENTON COUNTY CIRCUIT COURT, NO. 04CR-03-1001]

PETITION DENIED.

SHAWN A. WOMACK, Associate Justice

Christopher Newton White brings this pro se second petition to reinvest jurisdiction

in the trial court to consider a petition for writ of error coram nobis. In the petition, White

contends that the State violated Brady v. Maryland, 373 U.S. 83 (1963), primarily with respect

to (1) evidence that was ruled inadmissible by the trial court pursuant to the Arkansas Rules

of Evidence and the rape-shield statute, codified at Arkansas Code Annotated section 16-42-

101 (Supp. 2021); and (2) a discovery violation. White further challenges the evidence

supporting his conviction and alleges trial court error. Because we find that White has failed

to demonstrate a Brady violation or to otherwise establish sufficient grounds for issuance of

the writ, the petition is denied.

I. Background A jury convicted White in 2005 of two counts of the rape of his biological daughters,

AAW and ANW, from 1999 through 2002. White was sentenced to an aggregate term of

420 months’ imprisonment. This court affirmed. White v. State, 367 Ark. 595, 242 S.W.3d

240 (2006). On direct appeal, White challenged the sufficiency of the evidence supporting

his conviction, the trial court’s exclusion of evidence pursuant to the rape-shield statute, the

trial court’s exclusion of the testimony of a defense expert, the exclusion of certain medical

testimony in accordance with Arkansas Rule of Evidence 503, and the admission of witness

testimony under the pedophile exception to Arkansas Rule of Evidence 404. We found that

White’s conviction was supported by sufficient evidence and affirmed the trial court’s

evidentiary rulings. Id. at 599–609, 242 S.W.3d at 245–252.

A medical examiner presented evidence at trial that AAW and ANW had vaginal

injuries consistent with sexual abuse. In addition, both victims made statements to

investigators and testified at trial that White had inappropriately touched their “privates”

with his hand and had engaged in sexual intercourse with them on numerous occasions. Id.

In affirming the trial court’s exclusion of evidence pursuant to the rape-shield statute, we

found that none of the alleged prior sexual acts closely resembled allegations that White had

engaged in sexual intercourse with his two daughters. We concluded that White’s claim that

the alleged prior acts support his defense was meritless in light of the fact that the rape of

the two victims by White took place from 1999 through 2002, and “these allegedly prior acts

were not prior to his rape offenses toward these girls.” Id. at 602, 242 S.W.3d at 247.

2 White then filed a timely petition pursuant to Arkansas Rule of Criminal Procedure

37.1 and again challenged the trial court’s exclusion of evidence of the victims’ alleged prior

sexual conduct under the rape-shield statute and argued that the exclusion of this evidence

deprived him of a defense. We concluded that White’s claim constituted a direct attack on

the judgment and was not cognizable in postconviction proceedings. White v. State, CR-07-

1340 (Ark. Dec. 4, 2008) (unpublished per curiam). White further alleged that trial counsel

was ineffective for failing to move for dismissal based on the destruction of a tape-recorded

interview with one of the victims, which contained an allegation of sexual abuse by a person

other than White. Id. at 10. We found that the videotape at issue did not contain either

admissible or exculpatory information, and White’s argument amounted to an indirect effort

to extract reconsideration of White’s rape-shield motions that had been denied by the trial

court and affirmed by this court on appeal. Id. at 11.

White, with the aid of counsel, subsequently filed a petition to reinvest jurisdiction

in the trial court to consider a petition for a writ of error coram nobis in December 2019,

based on affidavits executed by AAW and ANW that recanted their trial testimony. This

court denied the petition by per curiam order on February 6, 2020. Attached to White’s pro

se second petition for coram nobis relief are the two affidavits previously executed by AAW

and ANW.

II. 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

3 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. 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.

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

4 petitioner alleges a Brady violation alone is not a sufficient basis for error coram nobis 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.

III. Claims for Relief

In addition to raising Brady claims, White’s petition for coram nobis relief generally

recounts the events that led to his rape conviction in an attempt to establish that evidence

supporting his conviction was insufficient. White further contends that the trial court’s

evidentiary rulings prevented him from presenting a defense and deprived him of a fair trial.

These claims for relief appear to be a reassertion of arguments made and rejected both at

trial and on direct appeal.

In his petition for coram nobis relief, White claims that the State withheld evidence

by invoking the rape-shield statute to exclude evidence from records kept by the Arkansas

Department of Human Services (DHS) as well as testimony from Arkansas State Police

5 investigators and the foster parents of AAW and ANW. White claims that this evidence was

crucial to his defense as it established that the victims had been sexually abused by others

while in the custody of DHS and under the care of various foster parents. This evidence was

excluded by the trial court pursuant to the rape-shield statute. White also contends that the

trial court’s exclusion of a defense expert’s testimony was erroneous and violated his right to

due process and a fair trial. The trial court’s rulings on these evidentiary issues were affirmed

on appeal. White, 367 Ark. 595, 242 S.W.3d 240. The writ is only granted to correct some

error of fact, and it does not lie to correct trial error or to contradict any fact already

adjudicated. Hunt v. State, 2019 Ark. 299, 586 S.W.3d 599. Assertions of trial error that were

raised at trial, or which could have been raised at trial, are not within the purview of a coram

nobis proceeding. Williams v. State, 2019 Ark. 173.

White further challenges the sufficiency of the evidence supporting his conviction,

contending that the State failed to prove beyond a reasonable doubt the essential elements

of the crimes for which he was convicted. White has also attached to his petition affidavits

executed by AAW and ANW stating that their testimony against White was false.1 Claims of

insufficient evidence and alleged false testimony at trial do not support the writ. Id. White is

attempting to relitigate the sufficiency of the evidence supporting his convictions as well as

the evidentiary rulings made by the trial court and affirmed on appeal by this court. A coram

1 We have explained that recanted testimony, standing alone, is not cognizable in an error coram nobis proceeding. Foreman v. State, 2018 Ark. 330.

6 nobis proceeding is not a forum for the petitioner to relitigate issues settled on appeal.

Henington v. State, 2017 Ark. 111, 515 S.W.3d 577 (per curiam).

In support of his Brady claims, White alleges certain taped interviews with ANW were

destroyed by investigators with the Arkansas State Police. Specifically, taped interviews of

ANW conducted and participated in by Katie Friesen, Amber Collins, and Brandy Bruce

regarding allegations of sexual abuse by other children. As stated above, the fact that a

petitioner alleges a Brady violation is not, in itself, sufficient to provide a basis for the writ.

Jackson, 2017 Ark. 195, 520 S.W.3d 242.

A review of the record on appeal reveals that Friesen, Collins, and Bruce testified

during pretrial hearings conducted pursuant to the rape-shield statute. 2 Friesen, who at the

relevant time was employed by the Children’s Advocacy Center, testified that in August

2003, ANW disclosed to Friesen that she had been sexually abused by her stepbrother, Jess.

According to Friesen, ANW revealed that Jess had forced her to perform oral sex when ANW

was four years old and living with her father. Collins, who was with the Arkansas State Police,

was present during Friesen’s interview with ANW. Both witnesses testified that a tape was

made of the interview but was later destroyed because ANW’s allegations were found to be

unsubstantiated.

2 This court may take judicial notice in postconviction proceedings of the record on direct appeal without need to supplement the record. Williams v. State, 2019 Ark. 289, 586 S.W.3d 148.

7 During a supplemental rape-shield hearing, Bruce testified that as an Arkansas State

Police investigator, she interviewed ANW on two occasions in January and February 2003,

wherein ANW disclosed that another boy in foster care had sexually abused her. Bruce stated

that these allegations were also unsubstantiated, and the tapes were destroyed. The

destruction of ANW’s taped interviews was known to the defense at the time of trial, and

Friesen, Collins, and Bruce testified under oath and described the content of ANW’s taped

statements. Claims that a petitioner knew of or could have known of at the time of trial do

not provide grounds for issuance of the writ of error coram nobis. Ashley v. State, 2021 Ark.

89.

White makes conclusory allegations that these taped interviews contained exculpatory

evidence that had not otherwise been revealed by the testimony of Friesen, Collins, and

Bruce. However, White fails to describe such evidence or to demonstrate that the taped

interviews included evidence that had not already been disclosed by the testimony of those

who interviewed, or participated in taking the statements from, ANW. See Everett v. State,

2021 Ark. 113 (A petitioner has the burden to disclose what material evidence establishing

his innocence was withheld from the defense.). In any event, the trial court found that the

testimony and evidence of other instances of sexual abuse presented during the rape-shield

hearings was irrelevant and inadmissible and would not have established White’s innocence.

White alleges additional Brady violations with respect to “investigative” reports

withheld from the defense by the Arkansas State Police and DHS. White’s Brady claims are

entirely conclusory in that White fails to specifically identify which police and DHS records

8 were available to the State and withheld from the defense at the time of trial, and White fails

to reveal how these allegedly withheld investigative reports were exculpatory. The burden is

on the petitioner seeking a writ of error coram nobis to make a full disclosure of specific

facts that substantiate the merit of a Brady claim. Mosley v. State, 2018 Ark. 152, 544 S.W.3d

55. Because White did not identify the alleged investigative reports that had been withheld

or describe what material evidence establishing his innocence was contained in these reports,

he fails to meet the burden of making a full disclosure of the facts supporting his Brady claim.

Id. White does not establish that there was any evidence extrinsic to the record that the State

withheld from the defense or that was unknown at the time of trial; therefore, his Brady

claims do not merit coram nobis relief. Von Holt v. State, 2020 Ark. 205, 600 S.W.3d 103.

Christopher N. White, pro se petitioner.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for respondent.