Jackie Breeden, Jr. v. State of Arkansas

2019 Ark. 314

• Court: Supreme Court of Arkansas
• Decided: November 7, 2019
• Status: Published

Opinion

Cite as 2019 Ark. 314 SUPREME COURT OF ARKANSAS No. CR-12-588

Opinion Delivered November 7, 2019 JACKIE BREEDEN, JR. 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 [BENTON COUNTY CIRCUIT COURT, NO. 04CR-10-1326]

PETITION DENIED.

JOHN DAN KEMP, Chief Justice

Petitioner Jackie Breeden, Jr., brings this pro se petition to reinvest jurisdiction in

the trial court to allow him to file a petition for writ of error coram nobis in his criminal

case. In the petition, Breeden contends that the State withheld material evidence from the

defense by not complying with pretrial discovery. Withholding evidence from the defense

can constitute a violation of Brady v. Maryland, 373 U.S. 83 (1963), which is a ground for

coram nobis relief, but Breeden’s claim falls short of establishing that there was a Brady

violation in his case. Accordingly, the petition is denied.

I. Nature of the Writ

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 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.

II. Grounds for the Writ

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.

III. Background

In 2011, a jury found Breeden guilty of the rape of his minor child and sentenced

him to life imprisonment. We affirmed. Breeden v. State, 2013 Ark. 145, 427 S.W.3d 5.

The evidence adduced at trial established that Breeden had engaged in sexual intercourse

with his daughter on multiple occasions before she reached the age of fourteen. When the

child informed her mother of the abuse, the mother contacted authorities. A medical

examination of the child revealed damage to her hymen that was consistent with sexual

2 penetration or trauma. When confronted with the accusations, Breeden admitted engaging

in sexual relations with the child before she reached the age of fourteen.

IV. Claim of a Brady Violation

To establish a Brady violation, the petitioner must satisfy three elements: (1) the

evidence at issue must be favorable to the accused, either because it is exculpatory or because

it is impeaching; (2) that evidence must have been suppressed by the State, either willfully

or inadvertently; (3) prejudice must have ensued. Howard, 2012 Ark. 177, 403 S.W.3d 38.

The mere fact that a petitioner alleges a Brady violation is not sufficient to provide a basis

for error coram nobis relief. Wallace v. State, 2018 Ark. 164, 545 S.W.3d 767; see also Penn

v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (A mere naked allegation that a constitutional

right has been invaded will not suffice to warrant coram nobis relief.).

Breeden alleges that the defense sought access during the pretrial discovery process

to all records and evidence related to the charges, including all records compiled by the

Department of Human Services (“DHS”) during its investigation of the victim’s claim that

she was sexually abused. He contends that the State refused to release the DHS material,

which contained a statement by the victim, and thus his attorney was unable to effectively

cross-examine and impeach the victim’s mother.

Breeden offers no substantiation for the assertion that the DHS material contained a

particular statement by the victim that was favorable to the defense or that the State withheld

the material. Furthermore, Breeden does not state the nature of the information in the

victim’s statement that could have been used to impeach the mother’s testimony, and he

does not address the overwhelming evidence brought out at trial that he engaged in

3 intercourse with the victim two or more times a week for several years, that there was

evidence of vaginal trauma to the victim, and that he admitted the acts. In determining

whether the petitioner was prejudiced, the totality of the evidence to support the judgment

must be considered. Makkali v. State, 2019 Ark. 17, 565 S.W.3d 472. Breeden’s conclusory

allegations fail to demonstrate that the State concealed evidence or that he suffered prejudice

sufficient to establish that a Brady violation occurred. The petitioner seeking to reinvest

jurisdiction in the trial court bears the burden of presenting facts to support the claims for

the writ because an application for the writ must make a full disclosure of specific facts relied

on and not merely state conclusions as to the nature of such facts. Martinez-Marmol v. State,

2018 Ark. 145, 544 S.W.3d 49. Breeden has not met his threshold burden of demonstrating

a fundamental error of fact extrinsic to the record that was concealed from the defense and

that was both material and prejudicial such as to have prevented rendition of the judgment

had it been known at the time of trial. Id.

Finally, Breeden concedes that he cannot support the grounds for relief contained in

his petition with facts and asks that this court reinvest jurisdiction in the trial court so that

it can gather evidence and make the determination as to whether the DHS material

contained information that “probably would have changed the outcome of the trial.” In

short, Breeden seeks to have the trial court conduct an investigation of his allegations. This

court will not reinvest jurisdiction on a petition that is founded on the petitioner’s desire to

search out factual support for a conclusory allegation.

HART, J., dissents.

4 JOSEPHINE LINKER HART, Justice, dissenting. I dissent. Both the Supreme

Court of the United States and this court have already addressed this situation. Due Process

requires that Breeden at least receive an in camera review of the DHS file by the circuit

court. See Taffner v. State, 2018 Ark. 99, at 11, 541 S.W.3d 430, 437 (quoting Pennsylvania

v. Ritchie, 480 U.S. 39, 58 (1987) (“(Defendant) is entitled to have the (DHS) file reviewed

by the trial court to determine whether it contains information that probably would have

changed the outcome of his trial. If it does, he must be given a new trial. If the records

maintained by (DHS) contain no such information, or if the nondisclosure was harmless

beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.”)).

That Taffner and Ritchie were decided on direct appeal is of no moment; Brady violations are

supposedly cognizable in error coram nobis proceedings, as noted in the majority opinion.

Jackie Breeden, Jr., pro se appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.