Broderick Collier v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 20, 2001

BRODERICK COLLIER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 00-348

PRO SE PETITION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF PULASKI COUNTY, CR 97-3468]

PETITION DENIED

Broderick Collier was found guilty of murder in the first degree and sentenced to forty years' imprisonment. The court of appeals affirmed. Collier v. State, CACR 00-348 (Ark. App. February 28, 2001). Collier now asks this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.1 ··²TopOfPage²····²TopOfPage²··-The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission.2 Dansby v. State,

343 Ark. 635, ___S.W.3d___ (2001).

-A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000). 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). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature 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. Pitts, supra, citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. After reviewing the instant petition, we do not find that petitioner has stated good cause to grant leave to proceed with a petition for writ of error coram nobis in the trial court.

Petitioner's conviction arose out of the shooting death of Adam Wilstead in 1996. At trial, evidence indicated that several people, including petitioner, Dixie Hinerman Griffin, Lisa Pike Collier, Duke Hinerman, and Charles Bell, were living on Walker Street in Little Rock. When Ms. Collier observed a car passing the house with its lights out, she called petitioner to come over. Ms. Collier testified that petitioner and a man named Keon arrived in a maroon Oldsmobile. When the two emerged from the car, petitioner was holding a pistol and Keon had a sawed-off shotgun with tape on it. Both Ms. Collier and Duke Hinerman had seen the shotgun before in petitioner's possession. When the suspicious car returned, petitioner and Keon began shooting at the car until it went into a ditch and stopped. Wilstead who was driving the car was

killed by the gunfire. Petitioner and Keon then left the scene in the Oldsmobile, but petitioner returned to the house after the police arrived to investigate the shooting.

Duke Hinerman testified that he came home that evening to find the police escorting Mr. Bell, Ms. Collier, and petitioner to squad cars. As Ms. Collier passed Hinerman, she whispered to him to get the guns from the floorboard of the Oldsmobile. He testified that he found the shotgun on the floorboard covered by a trash bag and hid it under the house. The next day petitioner asked Hinerman where he had hidden the gun and thanked him for concealing it

Petitioner now submits the affidavit of Duke Hinerman in which he states that he was paid $300 for his testimony by the Little Rock Police Department and promised a $10,000 reward in exchange for his cooperation. Petitioner alleges that the State deliberately withheld this information from the defense which could have been used to impeach all the witnesses at trial who had originally told police that petitioner was not involved in the shooting but later testified for the prosecution implicating him.

Petitioner also submits the affidavit of witness Charles Bell in which he recants his trial testimony implicating petitioner. Finally, petitioner submits the affidavit of witness Otis Griffin who avers that Dixie Hinerman coached him and Bell on how to testify against petitioner. Petitioner asserts that Bell's and Griffin`s affidavits support Hinerman's affidavit and also support the physical evidence which tended to exonerated him.

The Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) held that "the suppression by the prosecution of evidence favorable to an accused upon request violates dueprocess where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Id. In Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, (1999) the Court revisited Brady and explained its implications. It noted that since the decision in Brady, the court had held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence. Such 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." Even if Duke Hinerman's account of having been paid $300 and promised a reward for his testimony is truthful, we cannot say that this fact had it been known to the defense at trial would have produced a different result in light of the testimony of other witnesses who saw the shooting.

As for the affidavits petitioner has submitted in which witnesses Bell and Griffin recant their testimony, we held in Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990), and Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940), that a writ of error coram nobis will not lie for recanted testimony. In Taylor, while the judgment was on appeal to this court, the appellant filed a petition for writ of error coram nobis claiming to be entitled to a new trial on the charge of murder of which she had been convicted. The petition was based on the claim that a key prosecution witness at her trial had recanted part of his testimony that implicated her in the murder. We denied the petition, noting that the writ is granted only when there is an error of fact extrinsic to the record such as insanity at the time of trial, a coerced plea of guilty, or materialevidence withheld by the prosecutor. While we noted that there was other evidence of petitioner's guilt besides that which was alleged to have been recanted, we concluded that petitioner's claim did not fit within the remedy sought. Taylor, supra, at 594.

In Smith, the principal witness against the petitioner had recanted his testimony and two other persons had confessed to the offense of which he had been convicted. The writ was denied on the ground that a new trial may not be granted by employment of the writ merely because of the development after the trial of the utter unreliability of the State's witness so that grave doubts of guilt appear. Smith, supra, at 769. We find nothing in our later decisions, including Larrimore, supra, which petitioner cites, that expanded the remedy to allow a claim of recanted testimony to be encompassed by the writ.

The scope of writ of error coram nobis proceedings was reiterated in Brown v. State, 330 Ark. 627, 955 S.W.2d 901 (1997), in which we held that a third-party confession discovered after affirmance of the judgment was untimely. As we indicated in Brown, clemency is the petitioner's remedy when an allegation lies outside the scope of an error coram nobis proceeding. Brown, supra, at 632.

Petition denied.

1 For clerical purposes, the coram nobis petition was assigned the same docket number as the direct appeal of the judgment.

2 Instead of first obtaining this court's permission to proceed in the circuit court with a petition for writ of error coram nobis, petitioner filed the petition in circuit court approximately three months before filing the petition to proceed here and attached the circuit court petition to the petition to proceed. In the interest of judicial economy, we will consider the claims for relief in the appended petition as though they were contained in the main petition.