Broderick Collier v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

March 25, 2004

BRODERICK COLLIER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-780

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 97-3468, HONORABLE MARION A. HUMPHREY, JUDGE

APPEAL DISMISSED

Per Curiam

In 1999, appellant was convicted of first-degree murder and was sentenced to forty years' imprisonment. The Court of Appeals affirmed. Collier v. State, CACR00-348 (Ark. App. Feb. 28, 2001)(unpublished). In 2001, appellant, through counsel, filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. Appellant followed by petitioning this court to reinvest jurisdiction in the circuit court to pursue a petition for writ of error coram nobis. After we denied the petition to pursue coram nobis relief, Collier v. State, CACR 00-348 (Ark. Sept. 20, 2001)(unpublished), the circuit court held a hearing on the Rule 37 petition. The circuit court denied the Rule 37 petition in a subsequent order.

The next day, appellant filed a motion asking the circuit court to reconsider its denial of relief, and the circuit court held a hearing on the motion. Prior to any ruling on the motion for reconsideration, appellant timely filed a notice of appeal from the order denying relief which he had asked the court to reconsider. Thereafter, the circuit court issued an amended order again denying Rule 37 relief. Appellant again timely filed a notice of appeal of the amended order. Two weeks later, appellant's counsel filed a motion to be relieved. The circuit court granted the motion. Now before us is appellant's pro se appeal from the amended order denying Rule 37 relief.

Appellant contended in his petition that, following affirmance of his conviction and sentence, he learned that a key State's witness had been paid and promised reward money by the Little Rock Police Department for the statement incriminating him that led to his arrest. He further alleged that the State failed to disclose this information, which could have been used for impeachment, in violation of Brady v. Maryland, 363 U.S. 83 (1963). He also argued that if evidence at a hearing showed that his trial counsel was or should have been aware of the allegedly exculpatory evidence, then his counsel was ineffective in failing to utilize the evidence to impeach a key witness. Finally, he claimed that his counsel was ineffective in impeaching the other State's witnesses, and in failing to present evidence that one of those witnesses fabricated his trial testimony.

In the first order denying relief, the circuit court ruled only that no Brady violation had occurred. The circuit court did not address or rule upon appellant's ineffective assistance of counsel claims. In its amended order, the circuit court again only addressed the Brady issue. The circuit court's amended order in most regards duplicates the original order except that the court issued additional findings of fact and conclusions of law concerning our opinion denying appellant's petition to reinvest jurisdiction in the circuit court to pursue a petition for writ of error coram nobis. Specifically, the circuit court concluded that our opinion established law of the case on certain facts and legal conclusions raised in the Rule 37 proceeding.

Here, appellant contends only that the circuit court's law of the case ruling contained in the amended order denying relief was in error. He requests that the case be remanded to the circuit court to again determine whether he suffered prejudice as a result of a Brady violation. The State contends that appellant's Brady claim is not cognizable under Rule 37, and that this court is without jurisdiction to entertain this appeal because the circuit court was without jurisdiction to enter the amended order from which appellant brings his appeal.

Arkansas Rule of Criminal Procedure 37.2(d) (2002) states that a court's decision in any proceeding under Rule 37 shall be final when judgment is rendered. "No petition for rehearing shall be considered." Ark. R. Cr. P. 37.2(d) (2002). In contrast, we have held that a request to modify an order to include a ruling on an omitted issue is not a request for a rehearing that is prohibited by Rule 37.2(d). Beshears v. State, 340 Ark. 70, 73, 8 S.W.3d 32, 34 (2000)(citing Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998)). It is the appellant's obligation to obtain a ruling on any omitted issues in order to preserve those issues for appeal, and the latter circumstance allows an appellant an opportunity to fulfill that obligation. Id.

After the circuit court entered its first order denying relief, appellant could have asked the court to modify its order to include a ruling on any omitted issues, such as his claims of ineffective assistance of counsel. See Id. As in Beshears, however, appellant's motion for reconsideration did not request a ruling on an omitted issue. Id. Instead, appellant requested that the circuit court reverse itself, an act prohibited by Rule 37.2(d). Thus, the circuit court's amended order was void because it lacked jurisdiction to rehear appellant's petition. Consequently, this Court lacks jurisdiction to entertain this appeal from the amended order, and we dismiss the appeal.

Additionally, we note that it is not appropriate to raise trial errors, including constitutional errors, for the first time in a Rule 37 proceeding. Rowbottom v. State, 341 Ark. 33, 36, 13 S.W.3d 904, 906 (2000). The exception is for errors so fundamental as to render the judgment of conviction void and subject to collateral attack, such as a double jeopardy violation, a denial of a trial by a jury of twelve members, or a judgment obtained in a court lacking jurisdiction to try the accused. Id. at 36-37, 13 S.W.3d at 906 (quoting Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990), and citing Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996)). Moreover, we have held that Rule 37 may not be used as a means to discovery of exculpatory evidence. Weaver v. State, 339 Ark. 97, 103, 3 S.W.3d 323, 328 (1999). It was not appropriate for appellant to raise his Brady claim in his Rule 37 petition.

Appeal dismissed.