Raymond C. Sanders, Jr. v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR91-122
RAYMOND C. SANDERS, JR.,
PETITIONER,
VS.
STATE OF ARKANSAS,
RESPONDENT,
Opinion Delivered June
19, 2008
PETITION TO REINVEST
JURISDICTION IN THE TRIAL
COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR
CORAM NOBIS - (CIRCUIT
COURT OF HOT SPRING
COUNTY,
CR90-58)
PETITION GRANTED IN PART
AND DENIED IN PART.
PER CURIAM
Petitioner Raymond C. Sanders, Jr., was found guilty of two counts of capital murder
in the Circuit of Grant County on change of venue from Hot Spring County. We affirmed
the guilty verdict but remanded the matter for resentencing. Sanders v. State, 308 Ark. 178,
824 S.W.2d 353 (1992). Petitioner was again sentenced to death, and we affirmed. Sanders
v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert denied, 513 U.S. 1162 (1995).
Subsequently, petitioner timely filed in the trial court a petition for postconviction
relief pursuant to Criminal Procedure Rule 37. The petition was denied without a hearing.
We reversed and remanded on the ground that petitioner was entitled to a hearing on claims
arising from the fact that he was represented at trial by attorney William Murphy who was
CR91-122
later indicted, along with the Dan Harmon, the prosecutor in petitioner’s case, on charges of
racketeering and conspiracy. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003), opinion on
rehearing, 352 Ark. 520, 102 S.W.3d 480 (2003).
Petitioner states that in the Rule 37 hearing held April 14-16, 2008, there were two
matters raised that were not cognizable under Rule 37 but which could be raised in a coram
nobis proceeding. The court accelerated the preparation of a partial record so that petitioner
could proceed here with the instant petition to reinvest jurisdiction in the trial court.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) (per
curiam).
The two grounds advanced by petitioner are: (1) that there was material evidence
withheld by the prosecution in that a deal between the prosecution and Eddie Watkins, a
witness at petitioner’s trial, was not disclosed; (2) Eddie Watkins has recanted his testimony
against petitioner and admitted to having perjured himself at petitioner’s trial.
Coram nobis proceedings are attended by a strong presumption that the judgment of
conviction is valid. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), (citing Troglin v.
State, 257 Ark. 644, 519 S.W.2d 740 (1975)).
A writ of error coram nobis is an
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.
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extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State,
341 Ark. 397, 17 S.W.3d 87 (2000). For the writ to issue following the affirmance of a
conviction, the petitioner must show a fundamental error of fact extrinsic to the record.
Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). The function of the writ is to secure
relief from a judgment rendered while there existed some fact which 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 judgment. Cloird v. State, 357
Ark. 446, 182 S.W.3d 477 (2004).
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) (per curiam). 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. Pitts, 336 Ark. at 583, 986 S.W.2d
at 409.
Petitioner’s first claim falls within the category of evidence wrongfully withheld by the
prosecution, which constitutes a violation of his right to due process as guaranteed by Brady
v. Maryland, 373 U.S. 83 (1963). Petitioner also relies on Giglio v. United States, 405 U. S.
150 (1972), on the ground that nondisclosure by the prosecution of a promise to a witness
that the witness would not be prosecuted in exchange for his testimony is a due process
violation that merits a new trial.
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There are three elements of a Brady violation: (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. Larimore, 341 Ark. at 404, 17 S.W.3d at 91. To merit relief, the
petitioner must demonstrate that there is a reasonable probability that the judgment of
conviction would not have been rendered, or would have been prevented, had the
information been disclosed at trial. See Larimore, 341 Ark. at 408, 17 S.W.3d at 94.
Here, petitioner contends that a rape charge pending against Watkins was dismissed
shortly before his testimony and that Watkins asserted under oath in an in camera proceeding
and before the jury that the dismissal of the rape charge had no effect on his testimony.
Petitioner further contends that the prosecution did not contradict Watkins’s assertions. He
avers that in examining the case file on Watkins’s rape charge, a document was located
granting full immunity to Watkins conditioned on his testimony in petitioner’s case and that
this document did not appear in the file for petitioner’s case. Petitioner states that Watkins
testified at the Rule 37 hearing that he had lied when he said petitioner confessed to him, that
he had no deal with prosecutors and that he had been threatened by the prosecution with
being charged as an accomplice to petitioner if he did not testify against him. Harmon
testified at the hearing that there was indeed a deal made with Watkins. As Watkins’s
testimony at petitioner’s trial was significant and the defense could have impeached that
testimony had it known of a deal, we find good cause to grant leave for petitioner to proceed
in circuit court with a petition for writ of error coram nobis on the claim that he was denied
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due process by the prosecution’s failure to reveal a deal between Watkins and the prosecution.
We decline to grant leave to proceed with respect to the second allegation raised by
petitioner that Watkins recanted his testimony. The claim of a recantation of testimony is not
cognizable in an error coram nobis proceeding. Smith v. State, 200 Ark. 767, 140 S.W.2d 675
(1940); see also Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990).
Petition granted in part and denied in part.
IMBER, J., not participating.
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CR91-122
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