Corey Sanders v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

November 11, 2004

COREY SANDERS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 99-628

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF COLUMBIA COUNTY, NO. CR 97-148]

PETITION DENIED

Per Curiam

In 1998, Corey Sanders was found guilty by a jury of two counts of capital murder and sentenced to two concurrent terms of life imprisonment without parole. We affirmed. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000).

Sanders subsequently filed in the trial court a petition pursuant to Criminal Procedure Rule 37.1 challenging the judgment. The petition was denied, and the order was affirmed. Sanders v. State, CR 02-1116 (October 16, 2003) (per curiam). Sander's petition for rehearing was denied. Sanders v. State, CR 02-1116 (December 4, 2003) (per curiam).

Sanders now asks that this court reinvest jurisdiction in the trial court to consider a petitionfor writ of error coram nobis.1

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 Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (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. Newly discovered evidence in itself is not a basis for relief under coram nobis. Larimore, supra; Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).

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 contends that during an evidentiary hearing on a petition for writ of habeas corpuspursuant to Act 1780 of 2001 that he filed in the trial court he learned that material evidence had been withheld by the prosecution at his trial. The Supreme Court in Brady, supra, 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." Id. at 87. In Strickler v. Greene, 527 U.S. 263, 280 (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 different." In Stickler, the Court also set out the three elements of a true Brady violation: (1) that the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) that prejudice must have ensued.

The evidence that petitioner contends was not disclosed consists of articles found in the area where the victims' bodies were located. Petitioner, however, readily admits that the failure to disclose in discovery some of the articles (a shoe, a white sack, and a container of air freshener) would not now give rise in itself to a claim cognizable in a coram nobis proceeding because he was not diligent in raising the issue earlier inasmuch as he was made aware at trial that the items had been collected at the crime scene but lost before scientific testing could be done on them. He correctly concedes that due diligence is required in making an application for relief; and in the absence of a valid excuse for delay, the petition will be denied. Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). Nevertheless, he argues that as he only recently learned of the exculpatory and impeaching value of the evidence, he should be permitted to assert that he was denied a fair trial bythe prosecution's loss or destruction of the evidence.

Petitioner further asserts that one item found at the crime scene, a Dairy Queen restaurant bag with hamburger wrapping paper inside it and a "substance" on the outside, was not disclosed to the defense at any time. He argues that if scientific testing had shown that his DNA and fingerprints were not on the bag, it would have supported his claim that he was not present at the murder scene.

Petitioner's assertion of a Brady violation with respect to any of the items of evidence he cites in the petition fall far short of demonstrating that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Petitioner offers no documentation or factual substantiation to establish that any of the articles even if subjected to extensive forensic testing would have had any exculpatory or impeachment value. At best, the testing might have bolstered the defense claim that there was no scientific evidence to place him at the scene. This alone, however, does not rise to a Brady violation.

As we noted on direct appeal in concluding that there was substantial evidence to sustain petitioner's conviction, three persons testified at petitioner's trial that they heard him confess to killing one of the victims. One of the three witnesses also heard him confess to killing the other victim as well. Additional testimony was adduced that petitioner owed one of the victims money from a drug deal and that he had been overheard discussing murdering the victim to avoid paying the debt. There was also substantial circumstantial evidence that established petitioner's guilt. It is clear that petitioner's assertions in light of the evidence supporting the verdict do not demonstrate that he suffered prejudice to his defense such that the outcome of the proceeding would have been different had the evidence he cites been available to him. There is no basis for an errorcoram nobis proceeding in the trial court in this case.

Petition denied.

1 For clerical purposes, the instant petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis was assigned the same docket number as the direct appeal of the judgment.