Gary Brown v. State of Arkansas

2022 Ark. 49, 639 S.W.3d 875

• Court: Supreme Court of Arkansas
• Decided: March 3, 2022
• Status: Published

Opinion

Cite as 2022 Ark. 49 SUPREME COURT OF ARKANSAS No. CR-20-590

Opinion Delivered: March 3, 2022 GARY BROWN PETITIONER PRO SE PETITION TO REINVEST V. JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION STATE OF ARKANSAS FOR WRIT OF ERROR CORAM RESPONDENT NOBIS [PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION, NO. 60CR-19-3302]

PETITION DENIED.

COURTNEY RAE HUDSON, Associate Justice

Petitioner Gary Brown brings this pro se petition to reinvest jurisdiction in the trial

court to consider a petition for writ of error coram nobis. In the petition, Brown alleges

unspecified prosecutorial misconduct and trial court error, that evidence was withheld, and

that his sentence was excessive. He also challenges the sufficiency of the evidence. Because

Brown failed to establish sufficient grounds for issuance of the writ, the petition is denied.

A Pulaski County jury found Brown guilty of theft by receiving and fleeing, and he

was sentenced as a habitual offender to an aggregate term of 420 months’, or thirty-five years’,

imprisonment. His sole argument on appeal was that the trial court erred in permitting him

to represent himself at trial because he did not knowingly and intelligently waive his right to

counsel. The Arkansas Court of Appeals affirmed. Brown v. State, 2021 Ark. App. 369. The evidence adduced at trial demonstrated that in June 2019, Brown stole a courtesy

van from the Guest Inn and Suites in Little Rock. Id. The hotel’s general manager noticed

the van was missing and checked the hotel’s surveillance video, which showed Brown taking

the keys from the hotel counter, getting into the van, and driving away with it. Id. The police

were called, and several days later, a police officer saw Brown in the stolen van and attempted

to stop him. Id. Brown fled and eventually wrecked the van and was arrested. Id.

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. 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 had it 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. 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

2 most commonly 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.

In his petition, Brown raised the following claims for coram nobis relief: (1) the

prosecutor acted inappropriately and did not adhere to his obligations as outlined by the

Arkansas Rules of Criminal Procedure and the Arkansas Rules of Evidence; (2) appellate

counsel was ineffective; (3) the trial court allowed copies of Brown’s credit cards and an

identification card to be admitted at trial despite the fact that the originals had been lost; (4)

the trial court allowed the introduction of an altered videotape that contained unspecified

exculpatory evidence; (5) the arresting officer was not called to testify; (6) the grand-jury

minutes were not made available to the defense; (7) Brown’s identification by a hotel

employee was improper; and (8) his sentence was excessive.

Brown’s claims regarding the validity of the evidence and testimony introduced at

trial are challenges to the sufficiency of the evidence and, as such, are not cognizable in coram

nobis proceedings. Carner v. State, 2018 Ark. 20, 535 S.W.3d 634. Allegations that the

evidence presented at trial was not sufficient to support a finding of guilt are issues to be

addressed at trial and, when appropriate, on the record on direct appeal. Id. Likewise,

assertions of trial error that could have been raised at trial are not within the scope of the

3 limited grounds on which the writ may issue, and a coram nobis action does not provide the

petitioner with a means to retry his case. Id. Brown’s claim that he was denied effective

assistance of counsel on appeal does not demonstrate a fundamental error of fact extrinsic

to the record that warrants issuance of the writ. McKinney v. State, 2021 Ark. 210. Coram

nobis is not the proper remedy to challenge an allegedly illegal sentence, and Brown’s claim

that his sentence was excessive fails. Key v. State, 2019 Ark. 202, 575 S.W.3d 554. Brown’s

allegations of prosecutorial misconduct are conclusory, could have been raised during trial,

and do not fall within the purview of coram nobis proceedings. King v. State, 2021 Ark. 84.

Finally, Brown’s direct-appeal record reveals1 that Brown was indicted by information, not

by a grand jury, and there were no “grand jury minutes” that the defense would have been

entitled to receive.

Brown’s claim––that the video introduced at trial was altered to conceal exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963)––fails to state sufficient facts

that would merit relief. While allegations of a Brady violation fall within one of the categories

of fundamental error recognized by this court in coram nobis proceedings, a petitioner’s

allegation of a Brady violation, alone, is not a sufficient basis for error coram nobis relief.

White v. State, 2021 Ark. 198, 632 S.W.3d 306. To merit relief on a Brady-violation claim, a

petitioner must demonstrate that there is a reasonable probability that the judgment of

1 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.

4 conviction would not have been rendered or would have been prevented had the

information been disclosed at trial. Id. Furthermore, 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. Carner, 2018 Ark.

20, 535 S.W.3d 634. Brown’s allegations in this regard are conclusory, and he fails to

describe the evidence that was allegedly excluded from the video; fails to establish that the

evidence was exculpatory; and fails to show that the State had access to the evidence, and the

defense did not have it. In view of the above, Brown has failed to demonstrate a fundamental

error of fact extrinsic to the record that was unknown at the time of trial and that would

have prevented rendition of the judgment of conviction. Roberts, 2013 Ark. 56, 425 S.W.3d

771.

Gary L. Brown, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.