Cunningham v. State

2019 Ark. 9, 564 S.W.3d 521
CourtSupreme Court of Arkansas
DecidedJanuary 17, 2019
DocketNo. CR-09-722
StatusPublished
Cited by2 cases

This text of 2019 Ark. 9 (Cunningham v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cunningham v. State, 2019 Ark. 9, 564 S.W.3d 521 (Ark. 2019).

Opinion

SHAWN A. WOMACK, Associate Justice

Petitioner Dellemond Cunningham was convicted of being an accomplice to aggravated robbery, an accomplice to theft of property, and a felon in possession of a firearm, as well as intimidating a witness, for which he was sentenced to an aggregate sentence of 444 months' imprisonment. He appealed only the conviction for witness intimidation, and the Arkansas Court of Appeals affirmed. Cunningham v. State , 2010 Ark. App. 130, 2010 WL 475348. Cunningham subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The petition was denied, and this court affirmed. Cunningham v. State , 2013 Ark. 304, 429 S.W.3d 201 (per curiam). Cunningham now brings this pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in which he contends that the prosecution *523withheld videotape or audiotape evidence of Barving Price's police interview and that Marcus Green, Cunningham's accomplice, gave a third-party confession.1 Because Cunningham fails to demonstrate in the petition that the writ should issue, the petition is denied.

The circuit court cannot entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal unless this court grants permission. Martinez-Marmol v. State , 2018 Ark. 145, at 2, 544 S.W.3d 49, 51. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 406, 17 S.W.3d 87, 92 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, at 2, 502 S.W.3d 524, 526. 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 circuit court and that, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Carner v. State , 2018 Ark. 20, at 2, 535 S.W.3d 634, 636. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, at 11, 425 S.W.3d 771, 777.

The writ is allowed under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Roberts , 2013 Ark. 56, at 11, 425 S.W.3d at 778. 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, at 4, 403 S.W.3d 38, 43. A court is not required to accept the allegations in a petition for writ of error coram nobis at face value. Jackson v. State , 2017 Ark. 195, at 7, 520 S.W.3d 242, 246.

For his first point, Cunningham asserts that the prosecutor withheld material evidence during the trial in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he alleges that the prosecutor withheld videotape and audiotape evidence of Barving Price's police interview and that the interview would have shown that Price was "led and coerced to make certain statements, implying that [ ] Cunningham was an active participant in the planning [and] aiding of Green in the commission of the aggravated robbery of a bank[.]" Cunningham noted his own interrogation and compared that to Price's in an attempt to expose the police in "their conduct during the said interrogation and interview" of Price. Cunningham fails to demonstrate he is entitled to relief.

There are three elements to a Brady violation: (1) the evidence at issue must be favorable to the accused, either because its 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.

*524Jackson v. State , 2018 Ark. 227, at 3, 549 S.W.3d 356, 358-59(citing Carner , 2018 Ark. 20, 535 S.W.3d 634 ).

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2019 Ark. 9, 564 S.W.3d 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-state-ark-2019.