Willie Hutcherson v. State of Arkansas

2019 Ark. 318

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

Opinion

Cite as 2019 Ark. 318 SUPREME COURT OF ARKANSAS No. CR-00-645

Opinion Delivered: November 7, 2019

WILLIE HUTCHERSON PRO SE FOURTH PETITION TO PETITIONER REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A V. PETITION FOR WRIT OF ERROR CORAM NOBIS STATE OF ARKANSAS [PULASKI COUNTY CIRCUIT COURT, RESPONDENT NO. 60CR-99-1834]

PETITION DENIED.

ROBIN F. WYNNE, Associate Justice

Petitioner Willie Hutcherson brings this petition to reinvest jurisdiction in the trial

court to file a petition for writ of error coram nobis in his criminal case. 1 In the petition,

Hutcherson contends that the State and his trial attorneys violated Brady v. Maryland, 373

U.S. 83 (1963), by failing to disclose the statements of two police officers and that there

was error in his trial. The petition reasserts an allegation previously raised in this court, as

well as an issue of trial error that is outside the scope of a coram-nobis proceeding. We

deny the petition.

1 Hutcherson asks that the mandate on his direct appeal be recalled so that jurisdiction can be reinvested in the trial court to consider his coram nobis claims, but it is not necessary for this court to recall the mandate issued on direct appeal and reopen that proceeding to grant leave for the trial court to consider such a petition. 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. 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 2 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.

III. Background

In 2000, Hutcherson was found guilty by a jury of four counts of aggravated

robbery, three counts of misdemeanor theft of property, and one count of felony theft of

property. Hutcherson was sentenced as a habitual offender to an aggregate term of 2880

months' imprisonment. The Arkansas Court of Appeals affirmed. Hutcherson v. State, 74

Ark. App. 72, 47 S.W.3d 267 (2001).

In 2008, Hutcherson filed in this court his first petition to reinvest jurisdiction in

the trial court to consider a petition for writ of error coram nobis. The principal claim in

the petition pertained to the statements of two police officers. We declined to grant the

petition because Hutcherson admitted in the petition that the officers’ statements had

been obtained by the defense during the pretrial discovery process. Accordingly, the

statements were not hidden from the defense and extrinsic to the record. Hutcherson v.

State, CR–00–645 (Ark. Jan. 15, 2009) (unpublished per curiam).

In 2015, Hutcherson filed a second coram-nobis petition that also concerned the

officers’ statements. Again, there was no claim that the statements were extrinsic to the

record, and the second petition was also denied. Hutcherson v. State, 2015 Ark. 231 (per

curiam).

In 2016, Hutcherson filed a third coram-nobis petition. As he did in the first two

petitions, he focused his grounds for the writ on the two officers’ statements that were 3 known to him before his trial was conducted. He added the claim that the deputy

prosecutor, his attorney, and the trial judge were part of a “premeditated plan to

intentionally misrepresent” him by not handling the statements properly. He stated that

he obtained the statements from the discovery material and that he passed the statements

along to his attorney, who gave the statements to the deputy prosecutor rather than to the

judge. He contended that the deputy prosecutor failed to abide by the State’s duty to

conduct on-going discovery and that the deputy prosecutor’s misconduct with respect to

the statements amounted to a violation of due process and his civil rights. We dismissed

the third petition as a successive application for coram-nobis relief in this court that

constituted an abuse of the writ.

IV. Grounds for Relief

In this fourth coram-nobis petition, Hutcherson again raises the claims pertaining

to the statements of the two officers that were addressed previously. He again concedes

that the existence of the statements was known at the time of trial, stating that he gave the

statements to his attorney at an omnibus hearing and that both counsel and the State

conspired to withhold the statements from the trial court. 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, at 3, 556 S.W.3d 518, 522. Hutcherson has not

shown that the State withheld evidence at trial in violation of Brady.

4 To the extent that the allegation can be construed as a claim of ineffective assistance

on the part of trial counsel, allegations of ineffective assistance of counsel do not support

issuance of the writ. Davis v. State, 2018 Ark. 290, at 6, 558 S.W.3d 366, 369. Coram-

nobis proceedings are not to be used as a substitute for timely raising claims of ineffective

assistance of counsel under our postconviction rule, Arkansas Rule of Criminal Procedure

37.1 (2017). Griffin v. State, 2018 Ark. 10, at 3, 535 S.W.3d 261, 263 (citing State v. Tejeda-

Acosta, 2013 Ark. 217, 427 S.W.3d 673).

Likewise, Hutcherson’s allegation that the State, as well as his attorneys, knew of the

statements and did not reveal them to the trial judge, does not make a showing of

prosecutorial misconduct within the purview of the writ. Hutcherson has fallen far 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 State not withheld specific exculpatory evidence from the defense. See Martinez-Marmol

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

Finally, Hutcherson argues that the trial court erred in its decisions to deny his

motion to suppress evidence and his request to relieve counsel. Error coram nobis does

not lie to address issues which could have been raised at trial. Munnerlyn v. State, 2018 Ark.

161, at 3, 545 S.W.3d 207, 209. A coram-nobis action does not provide the petitioner

with a means to retry his or her case. Carner v. State, 2018 Ark. 20, 535 S.W.3d 634.

Special Justice JAY T. TAYLOR joins. 5 HART, J., not participating. Willie Hutcherson, pro se petitioner. Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for respondent.