Roy Tolston v. State of Arkansas

2020 Ark. 14, 592 S.W.3d 626

• Court: Supreme Court of Arkansas
• Decided: January 16, 2020
• Status: Published

Opinion

Digitally signed by Susan P. Cite as 2020 Ark. 14 Williams Reason: I attest to the accuracy SUPREME COURT OF ARKANSAS and integrity of this document No. CR-02-447 Date: 2023.02.14 12:13:43 -06'00'

ROY TOLSTON Opinion Delivered January 16, 2020 PETITIONER

V. PRO SE PETITIONTO REINVEST JURISDICTION IN THE TRIAL STATE OF ARKANSAS COURT TO CONSIDER A RESPONDENT PETITION FOR WRIT OF ERROR CORAM NOBIS AND WRIT OF AUDITA QUERELA [PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION, NO. 60CR-01- 1063]

PETITION DENIED.

KAREN R. BAKER, Associate Justice

Petitioner Roy Tolston brings this petition to reinvest jurisdiction in the trial court

to file a petition for writ of error coram nobis and audita querela1 in his criminal case. In

the petition, Tolston contends that the trial court erroneously failed to apply the criminal

code section that was in effect at the time the crime was committed and that the prosecutor

violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding a medical report pertaining

to an examination of the victim. Because we find that Tolston’s claims do not establish a

ground for the writ, the petition is denied.

1 Audita querela actions as a procedure for obtaining relief from a judgment have been abolished. Petitions for the abolished writs of error like coram vobis and audita querela are treated as petitions for writ of coram nobis relief, with the same grounds for relief and procedural rules applicable. Whitney v. State, 2018 Ark. 138. 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. 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

2 of specific facts relied on and not to merely state conclusions as to the nature of such facts.

McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833.

III. Background

Tolston was convicted of rape in a bench trial and sentenced as a habitual offender

to 480 months’ imprisonment. The Arkansas Court of Appeals affirmed. Tolston v. State,

CACR 02-447 (Ark. App. Feb. 5, 2003) (unpublished). In its opinion, the court of appeals

set out the trial testimony of the victim, J.S., who testified that she lived in an apartment

with another female and that on the evening of January 14, 2001, her roommate’s boyfriend

and Tolston visited the apartment. Id. J.S. testified that soon after the two men arrived, she

went to her bedroom to go to sleep, where she was awakened by Tolston, who had climbed

into bed with her and began rubbing her back. Id. J.S. stated that after an initial

confrontation with Tolston, she eventually returned to her bedroom and fell asleep. Id. J.S.

testified that she woke up later to find that Tolston was naked and lying next to her. Id.

According to J.S.’s testimony, her nightgown was pulled up to her chest, Tolston’s hand

was in her panties, and his fingers were inside her vagina. J.S. testified that she jumped up

and told Tolston to leave. Id. She stated that she left the apartment shortly after the incident

and reported what happened to the police. Id. Based on J.S.’s testimony, the court of appeals

found that there was substantial evidence to support the conviction. Id.

Tolston subsequently filed a timely petition for postconviction relief pursuant to

Rule 37.1 of the Arkansas Rules of Criminal Procedure (2003), which was denied following

a hearing. We affirmed the denial of Tolston’s Rule 37.1 petition. Tolston v. State, CR 04-

480 (Ark. June 16, 2005) (unpublished per curiam).

3 IV. Grounds for Relief

In his first claim for coram nobis relief, Tolston contends that the trial court erred by

applying a definition of “physically helpless” that was not in effect when the offense was

committed. Specifically, Tolston contends that the acts for which he was tried and convicted

did not constitute rape under the law in effect in January 2001. The felony information that

Tolston attached to his petition alleged that Tolston violated Arkansas Code Annotated

section 5-14-103 (Repl. 1997) by unlawfully engaging in deviate sexual activity with J.S.,

who was incapable of consent because she was physically helpless. The definition of

“physically helpless” in effect at the time of Tolston’s offense is found in Arkansas Code

Annotated section 5-14-101(5) (Repl. 1997), which states that a person is physically helpless

when that person is unconscious or physically unable to communicate lack of consent. This

definition was amended by the General Assembly in April 2001 to add that a person is also

physically helpless when he or she is “rendered unaware the sexual act is occurring.” Ark.

Code Ann. § 5-14-101(5)(B) (Supp. 2001). Tolston argues that because the victim was

merely asleep, she was not “physically helpless” as those terms were defined at the time of

the offense.

On direct appeal, Tolston made the same allegation that he raises in this petition with

respect to the application of an erroneous code provision. Tolston, CACR 02-447. Even

though the court of appeals found that the issue had not been properly preserved, it noted

that “there is nothing in the record to support Tolston’s contention that the trial court did

4 not apply the statute in effect at the time of his offense.” Id., slip op. at 1.2 In any event,

Tolston’s assertion of trial error is not within the purview of a coram nobis proceeding.

Martinez-Marmol v. State, 2018 Ark. 145, 544 S.W.3d 49.

In his second claim for coram nobis relief, Tolston raises a Brady claim, contending

that the victim’s medical record was withheld by the prosecutor. 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. Henington v. State, 2018 Ark. 279, 556 S.W.3d 518. The mere

fact that a petitioner alleges a Brady violation is not sufficient to provide a basis for error

coram nobis relief. Davis v. State, 2019 Ark. 172, 574 S.W.3d 666. When determining

whether a Brady violation has occurred, it must first be established by the petitioner that the

material was available to the State prior to trial and that the defense did not have it. Jackson

v. State, 2018 Ark. 227, 549 S.W.3d 356. When a petitioner alleges a Brady violation as the

basis for his or her claim of relief in coram nobis proceedings, the facts alleged in the petition

must establish that there was evidence withheld that was both material and prejudicial such

as to have prevented rendition of the judgment had it been known at the time of trial.

Martinez-Marmol, 2018 Ark. 145, 544 S.W.3d 49. Evidence is material if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different. Id.

2 Tolston raised the same issue in the Rule 37.1 proceedings. We affirmed the trial court’s rejection of the claim, finding that Tolston was not prejudiced by his counsel’s failure to preserve the issue on appeal. Tolston, CR 04-480. 5 Tolston has not shown that the prosecutor withheld this evidence and has fallen short

of meeting his burden of establishing that there is a reasonable probability that the judgment

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

prosecutor not withheld specific exculpatory evidence from the defense. Id. According to

Tolston, the prosecutor withheld a medical report generated by the hospital where the

victim was examined shortly after she was raped. Tolston insists that the medical report

contained material and exculpatory evidence in that it would have shown no physical

evidence of rape. However, a transcript attached to Tolston’s petition refutes his claim that

evidence was withheld from the defense. The transcript of the testimony of Tolston’s trial

counsel given during the Rule 37.1 hearing demonstrates that Tolston’s trial counsel was

aware that the victim had been examined by an emergency-room physician and that the

prosecutor had informed counsel that there was no corroborating physical evidence available

from either the medical examination or the crime lab. Therefore, the existence of medical

records that described the absence of corroborating physical evidence was known to defense

counsel.

Moreover, even if the prosecutor had withheld this medical report, there is no

showing that the outcome of the trial would have changed as a result. It is well established

that the uncorroborated testimony of a rape victim is sufficient to support a conviction if

the testimony satisfies the statutory elements of rape. Walters v. State, 358 Ark. 439, 193

S.W.3d 257 (2004). Here, J.S.’s testimony satisfied the statutory elements under Arkansas

Code Annotated section 5-14-103 in that she was physically helpless and unable to consent

6 at the time of the rape.3 A medical examination that revealed no evidence of a sexual assault

would not have changed the outcome of the trial.

HART, J., dissents.

JOSEPHINE LINKER HART, Justice, dissenting. I dissent. Put simply, in a rape case where

the evidence boils down to the victim’s testimony against the defendant’s, the results of a

sexual-assault kit performed hours after the incident occurred is material evidence, and the

State’s suppression of that evidence is a Brady violation.

To establish a Brady violation for evidence withheld from the defense by the

prosecution, 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. Henington v. State, 2018 Ark. 279, 556 S.W.3d 518. Brady

violations are cognizable for relief in error coram nobis proceedings. Howard v. State, 2012

Ark. 177, 403 S.W.3d 38. To establish prejudice, the petitioner must show that the evidence

was material. Martinez-Marmol v. State, 2018 Ark. 145, 544 S.W.3d 49. Evidence is material

if there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. Id. “The question is not whether the

3 The Arkansas Court of Appeals noted in its opinion affirming Tolston’s conviction that the commentary to section 5-14-101(5) states that the term “unconscious” means “any condition from a deep sleep to complete insensibility as a result of illness or the excessive use of an intoxicating substance” and refers to Harvey v. State, 53 Ark. 425, 14 S.W. 645 (1890), in which this court stated that a person who is asleep is incapable of resisting a rape. Tolston, CACR 02-447. 7 defendant would more likely than not have received a different verdict with the evidence,

but whether in its absence he received a fair trial, understood as a trial resulting in a verdict

worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown

when the government's evidentiary suppression undermines confidence in the outcome of

the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).

Applying these standards to the case at issue, one cannot reasonably maintain that the

results of the rape kit are not material evidence in this case. Based upon the pre-trial

statements and the testimony at trial, the victim’s and the defendant’s respective versions of

events are actually quite similar. By both accounts, the defendant’s presence at the victim’s

apartment was social, and by both accounts, they were alone in bed together for at least

some portion of the night that was consensual but not sexual. The stories diverge on a few

factual points, the most important of which is as follows:

The victim says that at one point, she “woke up” with her down-to-the- ankles nightgown pulled up “around her chest,” and the defendant’s “fingers” inside of her vagina. The defendant disagrees; he says the most that happened was that he squeezed the victim’s bottom while she lay across his chest, and that any such contact was always through the victim’s nightgown. He denies penetration of any kind.

It should be noted that the victim and the defendant were the only witnesses to the incident

itself.

Shortly after the incident, the victim underwent a sexual-assault evaluation at Baptist

Hospital. The results of this evaluation were taken by the responding police officer and later

submitted to the state crime lab by the detective overseeing the case. However, despite an

all-encompassing discovery motion from the defendant, the results of the sexual-assault

8 evaluation were omitted from the discovery file later provided to the defense by the

prosecution. These facts are explicitly borne out in the record and appear undisputed at this

juncture. The record does include references to the Baptist Hospital visit that would have

been available to the defense at the time of trial, but when Tolston’s trial attorney (who had

just obtained her attorney’s license approximately six months beforehand) inquired about

the sexual-assault examination before trial, the prosecutor told her there was “no evidence.”

In short, the record indicates that the State had the results of the sexual-assault examination

and that Tolston was taken to trial without those results being turned over to the defense.

In his petition, Tolston contends that the results of the sexual-assault examination

would have shown that the examiners found no indication of penetration–– a contention

that the State does not specifically deny in its response. Instead, the State argues that Tolston

is making an “unfounded and improbable assumption” that “the insertion of his fingers into

the vagina of a sleeping victim would necessarily result in physical evidence that would be

documented by the examination,” and that his argument falls to “common sense and a

rudimentary understanding of physiology.” “Thus,” the State concludes, “the medical

report,” which still no one else has seen, “is not exculpatory or impeaching.” Citing Walters

v. State, 358 Ark. 439, 193 S.W.3d 257 (2004), the majority then denies Tolston’s petition,

noting that even if the prosecutor had withheld this medical report, there is no indication

that the outcome of the trial would have been different since “the uncorroborated testimony

of a rape victim is sufficient to support a conviction if the testimony satisfies the statutory

elements of rape.”

9 But that is not the question before the court. Walters was a sufficiency-of-the-

evidence case on direct appeal in which the appellate court considers only the evidence that

supports the guilty verdict and reviews that evidence in the light most favorable to the

prosecution; this is a Brady claim in the postconviction context. The question here is not

whether the victim’s testimony alone could satisfy the statutorily defined elements of rape,

but whether the fact-finder at trial, in considering the victim’s testimony and other evidence

in the case, might have concluded differently had this item of evidence been disclosed with

the rest.

The prosecution’s burden of proof in a criminal case is guilt beyond a reasonable

doubt, and as far as the element of penetration is concerned, it was the victim’s word against

the defendant’s. Without knowing the specific contents of the report or the level of detail

contained therein, perhaps the State is correct in its assertion that the fact-finder at trial still

could have determined that the State had satisfied its burden of proof—even if the

examination results had been disclosed and their impact considered. But one cannot

reasonably maintain that this evidence was not “material” to the case. The disclosure of this

evidence very well could have been the difference in the verdict. It should have been

disclosed and discussed. The fact that this evidence was instead suppressed “undermines

confidence” in the verdict, and in this situation, a new trial is required. See, e.g., Kyles, 514

U.S. 419.

I dissent.

Roy L. Tolston, pro se petitioner.

Leslie Rutledge, Att’y Gen., by: Chris R. Warthen, Ass’t Att’y Gen., for respondent.