SUPREME COURT OF ARKANSAS No. CR 93-714 Opinion Delivered June 3, 2010 JESSIE LEE BUCHANAN Petitioner v. STATE OF ARKANSAS Respondent PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS, MOTION TO DISMISS RESPONDENT S RESPONSE TO PETITION, MOTION TO AMEND PETITION [CIRCUIT COURT OF CRITTENDEN COUNTY, CR 92-66] PETITION AND MOTIONS DENIED. PER CURIAM In 1992, petitioner Jessie Lee Buchanan was found guilty by a jury of capital murder and sentenced to life imprisonment without parole. We affirmed. Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993). Now before us is petitioner s pro se petition seeking permission to proceed in the trial court with a petition for writ of error coram nobis. 1 After a judgment has been affirmed on appeal, a petition filed in this court for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis only after we grant direct appeal. 1 For clerical purposes, the instant petition was assigned the same docket number as the
permission. Martin v. State, 2010 Ark. 164 (per curiam) (citing Newman v. State, 2009 Ark. 539, S.W.3d ). A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. 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 circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Newman, 2009 Ark. 539 (citing Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam)). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. We have held that a writ of error coram nobis was available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Id. This court will grant permission 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. Flannigan v. State, 2010 Ark. 140 (per curiam) (citing Newman, 2009 Ark. 539). 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 thereof. Id. -2-
As grounds for the writ, petitioner alleges that the prosecutor deliberately failed to release to the defense the entire medical examiner s file, which petitioner contends he received in March 2009. He alleges that the State Crime Laboratory made the medical examiner s file available to the prosecution, including the victim s death certificate and the coroner s report, but never disclosed the file to the defense in the discovery process. He contends that, upon examining the death certificate, he discovered that it lacks the signature of Dr. David DeJong, the doctor who performed the postmortem examination, and that the coroner s report also is unsigned. He asserts that the death certificate and report were essential and favorable and could have been used to impeach the State s case and undermine the testimony of Dr. DeJong. Finally, he states that no medical examiner, coroner, or qualified physician testified at trial about the cause of the victim s death, nor was there testimony about the coroner s report. He alleges that there is a reasonable probability that the outcome of the trial would have been different had the defense had access to the death certificate and coroner s report. Suppression of material exculpatory evidence by a prosecutor falls within one of the four categories of coram nobis relief. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). The Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87. In Stickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady and declared that 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 -3-
different. 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In Stickler, the court also set out the three elements of a true 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; and (3) prejudice must have ensued. See Pierce v. State, 2009 Ark. 606 (per curiam). Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Id. In the absence of a valid excuse for delay, the petition will be denied. Newman, 2009 Ark. 539. Due diligence requires that (1) the defendant be unaware of the fact at the time of the trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) the defendant, after discovering the fact, did not delay bringing the petition. Id. The requirements are a sequence of events, each of which a petitioner must show to prove due diligence. Id. Here, petitioner has not established that he exercised due diligence in bringing forth his claims. More importantly, he has failed to show that the information concerning the death certificate and coroner s report were significant to the outcome of the trial. Petitioner did not deny at trial that he shot the victim. Rather, he testified that he blacked out after he fired the first shot and had no intention of killing the victim but shot him out of fear because the victim was advancing on him. He contended at trial and on direct appeal that the evidence did not establish that he acted with premeditation and deliberation. -4-
The autopsy report prepared by Dr. DeJong was read into evidence at petitioner s trial without objection. The report said that the victim was shot five times with two bullets striking him in the front and three in the back. Ronald Andrejack, a firearms and tool-mark examiner with the State Crime Laboratory, testified that the rifle used in the shooting required that the trigger be pulled each time a shot was fired. This court found on appeal that, given the evidence, there was no cause to overturn the jury s decision that petitioner acted with premeditation and deliberation when he shot the victim. Petitioner does not establish that the death certificate and coroner s report were indeed withheld from the defense. Moreover, he does not explain how the defense could have been unaware of the existence of the death certificate, which would have been routinely filed with the State. As to the coroner s report, there was testimony concerning it at trial. 2 Even if signatures were omitted from some document, petitioner has not shown that the document could not have been acquired by the defense at trial some seventeen years ago. He has further failed to show that having access to any particular document at trial would have produced evidence that differed from that adduced at trial. He clearly has not shown that the outcome of the trial was affected by any wrongful conduct on the part of the prosecution. After the State filed a response to petitioner s petition, petitioner filed a motion to dismiss the State s response. In the motion, petitioner reiterates his claims in the petition. 2 The transcript lodged in this court on direct appeal contains the following exhibit introduced at trial: Arkansas Crime Laboratory, Medical Examiner Division, Autopsy Report signed by David DeJong, M.D., Associated Medical Examiner, and Jim Clark, Executive Director, Arkansas Crime Laboratory. -5-
Petitioner later filed a motion to amend the petition that reiterates much of the information contained in the motion to dismiss the State s response. As there is no ground stated in either the original petition or either motion to warrant a writ of error coram nobis, both the petition and motions are denied. Petition and motions denied. CORBIN, J., not participating. -6-