TRENCIE OLIVER v. STATE OF ARKANSAS

2020 Ark. 233

• Court: Supreme Court of Arkansas
• Decided: June 11, 2020
• Docket: CR-15-539
• Status: Published

Opinion

Cite as 2020 Ark. 233 SUPREME COURT OF ARKANSAS No. CR-15-539

TRENCIE OLIVER Opinion Delivered JUNE 11, 2020 PETITIONER

V. PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT STATE OF ARKANSAS TO CONSIDER A PETITION FOR WRIT RESPONDENT OF ERROR CORAM NOBIS [PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION, NO. 60CR-14-1889]

PETITION DENIED.

JOHN DAN KEMP, Chief Justice

Petitioner Trencie Oliver brings this petition to reinvest jurisdiction in the trial

court to file a petition for writ of error coram nobis in his criminal case. In the petition,

Oliver contends the State violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding

fingerprint evidence. Because we find that Oliver has not established a Brady violation as

grounds for issuance of the writ, the petition is denied.

I. Facts

The Pulaski County Circuit Court convicted Oliver of second-degree unlawful

discharge of a firearm from a vehicle and possession of firearms by certain persons, and he

was sentenced as a habitual offender to an aggregate term of 360 months’ imprisonment.

Oliver’s conviction and sentence were affirmed by the Arkansas Court of Appeals. Oliver v. State, 2016 Ark. App. 332, 498 S.W.3d 320. Oliver was arrested and charged with the

crimes for which he was convicted after a police officer observed the driver of a vehicle

discharge a firearm. Id. The arresting officer testified that Oliver was the driver, and

Gregory Oliver was a passenger in the vehicle. Id. On appeal, Oliver argued it was Gregory

who had possessed and discharged the firearm. Oliver further contended that his right to

due process was violated when the police officers acted in bad faith by tainting and

destroying evidence and preventing appropriate fingerprint testing on the gun that was

fired from the vehicle. Id. In its opinion, the court of appeals noted that at trial, there was

testimony that several police officers at the scene had handled the gun, the live rounds, and

the shell casings without wearing gloves and that subsequent fingerprint testing was

inconclusive in that no latent prints could be obtained by the fingerprint examiner. Id.

The court of appeals rejected Oliver’s argument regarding the destruction of the

fingerprint evidence, finding that it had not been sufficiently raised at trial. Id.

Oliver now raises a Brady claim and asserts that the State withheld evidence

regarding the fingerprint testing and the absence of latent prints on the gun, the casings,

and the bullets.

II. 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, 2 341 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.

III. 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 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 petitioner alleges a Brady violation alone is not a sufficient basis for error coram nobis 3 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.

IV. Grounds for Relief

Although Oliver’s allegations are unclear, he appears to claim that photographs of

the fingerprints were taken and withheld from the defense. In support of his contention,

Oliver attaches a document from the crime-scene search unit that described the tests for

fingerprints on the revolver, the spent casings, and the live rounds and concluded that

there were no latent fingerprints on those objects. There is nothing in this document to

indicate that photographs were taken of the nonexistent latent fingerprints.

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 4 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.

Oliver has not shown that the fingerprint tests were withheld by the State in that

the issue pertaining to the inadvertent destruction of fingerprint evidence was raised by the

defense at trial and on appeal. Moreover, the forensic examiner’s conclusion that no

latent fingerprints were identified on the revolver and other items was not material

evidence such that it would have changed the outcome of the trial because the arresting

officer testified that he saw the vehicle’s driver put his left arm out of the vehicle and fire

three rounds into the air. The officer further testified that when he pulled the vehicle

over, Oliver—not Gregory—exited from the driver’s side. In sum, Oliver has failed to

demonstrate that the State withheld material evidence.

HART, J., dissents.

JOSEPHINE LINKER HART, Justice, dissenting. I would grant Trencie Oliver’s

petition to reinvest jurisdiction and grant an evidentiary hearing. Oliver’s case was

sabotaged by the Little Rock Police Department’s mishandling of key physical evidence and

by its misrepresentation of its capability to perform forensic testing.

While Oliver argues in his petition that there was a Brady violation related to the

handling of the evidence, the legal underpinnings of his case are controlled by our

holdings in Pitts v. State, 2016 Ark. 345, 501 S.W.3d 803, and Strawhacker v. State, 2016

5 Ark. 348, 500 S.W.3d 716. Furthermore, the facts of this case and the sentence imposed

clearly evidence that justice demands that Oliver be appointed counsel in order to assist in

this matter.

I am mindful that the writ of error coram nobis is allowed only under compelling

circumstances to achieve justice to address errors of the most fundamental nature.

Strawhacker, 2016 Ark. 348, at 4 (citing Sanders v. State, 374 Ark. 70, 285 S.W.3d 630

(2008)). “In simple terms, this writ is a legal procedure to fill a gap in the legal system-to

provide relief that was not available at trial because a fact exists which was not known at

that time and relief is not available on appeal because it is not in the record.” Id. (citing

Penn v. State, 282 Ark. 571, 573–74, 670 S.W.2d 426, 428 (1984)).

Permission will be granted by this court for a petitioner to proceed in the trial court

with a petition for writ of error coram nobis only when it appears that the proposed attack

on the judgment is meritorious. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. In making

such a determination, we look to the reasonableness of the allegations of the petition and

to the existence of the probability of the truth. Id.

Prior to trial, Oliver’s attorney filed a motion for fingerprint testing of the firearm,

empty shell casings, and ammunition. A continuance was requested because it had not

been addressed by the State. The motion specifically stated that the evidence “be submitted

to the Arkansas State Crime Lab to be examined for fingerprints and that if any are found,

that those prints be compared to the Defendant’s fingerprints and to those of George

6 Oliver.” The trial court granted the motion. However, it only directed the fingerprints be

sent to the Little Rock Police Department.

As requested, the motion specifically stated that testing was to be completed by the

Arkansas State Crime Lab. However, there is nothing in the record to indicate that any

testing was conducted by the Arkansas State Crime Lab. If we presume that testing

occurred, there is nothing in the record, including the trial transcript, that would indicate

that any results of that testing were provided to Oliver. The record does not include a

report from the state crime lab. The only test results that the State provided to Oliver were

the results of the testing conducted by the Little Rock Crime Scene Search Unit.

The results of the officers’ testing appeared in a document entitled “crime scene

search unit-evidence processed form.”1 It only states “negative results.” This form describes

the chain of custody and only includes the sentence indicating that the testing led to

negative fingerprint results of the weapon, shell casings, and remaining ammunition. Lack

of scientific testing by the Arkansas State Crime Lab establishes the ambiguity of the crime-

scene report, and it can only be assumed that––to the extent that any testing occurred by

the laboratory––the results were negative and excluded Oliver’s fingerprints from the

weapon, ammunition, and spent casings. Furthermore, the report from the officers is not

responsive to the discovery requested by the defendant. Thus, the law presumes that the

State’s evidence, if obtained, would be considered favorable to Oliver. Likewise, if the

1 This form is indicated to be LRPD Form 5480-41. Rev. 7/15/04.

7 prosecution failed to obtain crime-lab testing as ordered by the court, such failure, when

viewed in light of its excuse of the gross mishandling, undercuts any claim that fingerprints

were not available on the crime-scene evidence. The State’s failure to disclose the crime

lab’s finding establishes the police officers’ disregard for the court’s order and thus can

support an inference of willful suppression of evidence.

On appeal, the State improperly argues the lack of identifiable fingerprints because

the lack of any fingerprints was due to the mishandling of evidence by the State. While the

State claims that four officers mishandled the evidence, such a claim is self-serving as it is

not supported by the state crime-lab report. Clearly, once again, one could argue that this

failure is evidence of bad faith. Similar to Pitts and Strawhacker, the mishandling and

mischaracterization of evidence violates the principles set forth by this court. The State

cannot avoid a court order and make up an excuse to justify its failure to do so. As we have

established in Pitts and Strawhacker, there are repercussions for such actions.

Likewise, the Little Rock Police Department misrepresents its capability of

performing the gun-shot-residue test. Oliver requested the gun-shot-residue test at the time

of his arrest, and Sgt. Andre Dyer told Oliver that he did not pursue that test because that

is not his field of expertise. At trial, Detective Pasman testified he did not have access to a

gun-shot-residue test and that only a homicide detective would have access to that test. No

request was made to conduct the residue test. Law enforcement had to be acutely aware

that this test could have provided dispositive proof whether it was Oliver, in fact, who fired

8 the weapon. Refusing to pursue this forensic testing gives rise to the conclusion that it

would have exonerated Oliver.

Oliver received a presumptive sentence of three and a half years for the unlawful

discharge of a firearm from a vehicle (he fired into space––into the air with no possibility

of any damage to person(s) or property––a Class B felony), the remainder of his sentence

was an enhancement from the Habitual Offenders Act, which added another 20 years, to

run consecutively. Oliver’s last felony conviction was in 2003. The legislative increase of

time to be served for this offense is seven times more than that established by the court. In

1997 Oliver was sentenced to 18 months for felony possession of a controlled substance

with intent to deliver. In 2003, he was sentenced to 8 years for domestic battery and first-

degree terroristic threatening. Oliver served his time and completed those sentences more

than 12 years ago, and now he is being sentenced to an additional 20 years for his past

crimes. This sentence is disproportionate to the offense committed, and it suggests a

systemic and unconstitutional denial of justice of such magnitude as to require a remand

to the trial court for a hearing to develop the facts supporting not only the changed offense

but also the basis for the extraordinary sentence imposed by the trial court. I dissent.

Trencie Oliver, pro se petitioner.

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