Webb v. State
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Cite as 2009 Ark. 550
SUPREME COURT OF ARKANSAS
No.
CR 96-220
Opinion Delivered
WALTER ANTHONY WEBB
Petitioner
v.
STATE OF ARKANSAS
Respondent
November 5, 2009
PRO SE PETITION TO REINVEST
JURISDICTION IN THE TRIAL
COURT TO CONSIDER A PETITION
FOR WRIT OF ERROR CORAM NOBIS
[CIRCUIT COURT OF GREENE
COUNTY, CR 95-30]
PETITION DENIED.
PER CURIAM
In 1995, a jury found petitioner Walter Anthony Webb guilty of two counts of capital murder
for causing the deaths of James Graves and Aurora Carney. Petitioner received sentences of life
imprisonment without parole and, on appeal, this court affirmed the judgment. Webb v. State, 327 Ark.
51, 938 S.W.3d 806 (1997). Petitioner later filed a petition under Arkansas Rule of Criminal Procedure
37.1 in the trial court that was denied, and this court affirmed the order denying postconviction relief.
Webb v. State, CR 98-411 (Ark. Sept. 16, 1999) (per curiam). Petitioner has now filed a petition
requesting this court reinvest jurisdiction in the trial court to consider 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 permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
1
For clerical purposes, the instant petition was assigned the same docket number as the direct appeal.
Cite as 2009 Ark. 550
Petitioner asserts grounds for issuance of the writ as follows: (1) new scientific information
concerning the effects of antidepressants that would have caused petitioner to have acted violently and
to have been legally insane at the time of the commission of the crimes; (2) the trial court made no
inquiry regarding petitioner’s “involuntary intoxication” by the prescribed antidepressant Effexor; (3)
petitioner was not competent to stand trial due to his mental health problems and lack of medication,
and the trial court should have conducted a competency hearing on its own initiative; (4) the trial court
erred by failing to issue an order to conduct a mental health evaluation; (5) petitioner’s actual innocence
based upon new scientific evidence concerning the sleep aid Ambien. To the extent that petitioner may
have stated a cognizable claim, he fails to show either that the claim has merit or that he acted with
diligence to pursue the claim.
The function of the writ of error coram nobis 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). For the writ to issue following the
affirmance of a conviction, the petitioner must show a fundamental error of fact extrinsic to the record.
Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam). 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)). The court is not required to
accept at face value the allegations of the petition. Id.
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
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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.
at 583, 986 S.W.2d at 409.
Only petitioner’s third claim, regarding his competency at trial, clearly falls within one of the
recognized categories of error. Petitioner’s second and fourth claims are based upon allegations of trial
errors by the court that were not extrinsic to the record; while petitioner contends that new evidence
supports the claims, those claims are stated as alleged failures or omissions by the trial court that would
only be demonstrated by the record.
Petitioner’s first and fifth claims, regarding the effects of certain drugs, are based upon
allegations of new evidence. A claim of newly discovered evidence in itself, however, is not a basis for
relief under coram nobis. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998) (per curiam). Here, the
alleged error is not the type upon which the writ may issue. There is a distinction between fundamental
error which requires issuances of the writ and newly discovered information which might have created
an issue to be raised at trial had it been known. Mosley v. State, 333 Ark. 273, 968 S.W.2d 612 (1998) (per
curiam). Even if, as petitioner alleges, the effects of the drugs that he claims he took around the time
of the crimes provided a sufficient basis to call for a jury instruction pursuant to Arkansas Code
Annotated § 5-2-207 (Repl. 2006) (regarding intoxication), the facts that he alleges are not such as to
have precluded the entry of the judgment.
As to petitioner’s remaining claim that he was not competent at the time of trial, the allegations
contained in the petition are neither reasonable nor likely to be truthful. This court will grant
permission to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis
only when it appears the proposed attack on the judgment is meritorious. Echols v. State, 354 Ark. 414,
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125 S.W.3d 153 (2003). In making that determination, we look to the reasonableness of the allegations
and to the existence of the probability of the truth of those allegations. Id.
In petitioner’s third claim, he asserts that his mental state rendered him incapable of properly
assisting counsel in his defense. Throughout the petition, petitioner appears to recant his testimony at
trial in which he stated that Mr. Graves shot Ms. Carney and that he then struggled with Mr. Graves for
the gun before shooting Mr. Graves in self-defense. Instead, petitioner now concedes that he
committed the violent acts leading to both murders. He contends that, during the proceedings, he was
depressed and suffered from a severe mood disorder, and that he did not receive medication while in
jail, despite suicidal behavior and a medical record indicating depression and possible bipolar disorder.
Petitioner alleges that his mood disorder prevented him from assisting his attorney and resulted in a
state of denial from a sense of guilt and shame that prevented him from considering other, potentially
more successful, defenses than his now-admitted perjury.
During petitioner’s lengthy testimony, he demonstrated that he was cogent and clearly capable
of providing carefully reasoned responses to the questions presented. Petitioner provided detailed
testimony about his relationship with Ms. Carney and the events on the night of the murders. He
explained that Ms. Carney had told him that she was going to be picked up by a friend to attend a
meeting, and that she would call him to let him know where she was staying. Petitioner testified that
when he did not receive a call, he left work and went to her house at about 1:00 a.m. to discover that
her car was missing. He then went to Mr. Graves’s residence in Rector and found her car there.
Petitioner related that he went to the door, and pocketed the keys from the door, after Mr.
Graves let him in. According to petitioner’s testimony, Ms. Carney came out of the bedroom with the
murder weapon and pointed the gun at petitioner. He took the gun away from her, put it down, and
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calmly convinced her to leave with him. As petitioner related at trial, Mr. Graves then picked the gun
up, shot Ms. Carney, and then pointed the gun at petitioner. Petitioner scuffled with Mr. Graves for
the gun, and ultimately shot and killed Mr. Graves.
After the scuffle, petitioner testified that he checked Ms. Carney and determined that she was
dead, started to leave, but went back and got the gun. Petitioner then went back to work, and after
finishing up there, threw the keys into a ditch, the gun into the water under a bridge, and the cartridges
into the mud in a separate location. Petitioner explained to the jury that he did not contact the police
and initially lied about his presence at the murder scene because he was afraid in that he knew there were
no witnesses and the results looked very bad. He indicated that he left shortly after the bodies were
found to go to Florida because he thought that Ms. Carney would be buried there.
On cross-examination, petitioner denied that he was angry with Ms. Carney and related that
although he did not know Mr. Graves, he knew that Ms. Carney sometimes helped Mr. Graves and that
they were in Alcoholics Anonymous together. He explained that Ms. Carney had previously been a
nurse. Petitioner indicated that he did not recall making a statement to a friend that he thought Ms.
Carney’s ex-husband had committed the murders, and said that he did not believe he was “running”
when he left the state for almost three months and made arrangements to turn himself in to law
enforcement through his attorney.
A criminal defendant is presumed to be competent to stand trial and has the burden of proving
otherwise. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006). A circuit court is not required to hold
a hearing on a criminal defendant’s competency sua sponte unless there is reasonable doubt about the
defendant’s competency. Davis v. State, 375 Ark. 368, ___ S.W.3d ___ (2009). The test of competency
to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a
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reasonable degree of rational understanding and whether he has a rational, as well as factual,
understanding of the proceedings against him. Thessing, 365 Ark. at 390, 230 S.W.3d at 532.
During his testimony, petitioner demonstrated more than the requisite ability and he
demonstrated that he had a very good understanding of the proceedings. Even assuming that
petitioner’s alleged mental disorder contributed to certain regrettable decisions made, petitioner is not
likely to carry his burden to show that he was incompetent to stand trial. Petitioner does not point to
evidence presented to the court that he was not fit to proceed, and, as with his fourth claim, the
allegations within petitioner’s third claim as to failure to conduct a hearing are of a type of error that
does not support issuance of the writ.
Furthermore, petitioner has failed to sufficiently demonstrate that he acted with diligence in
pursuing any of his claims. While there is no specific time limit for seeking a writ of error coram nobis,
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. Echols, 354 Ark. at 419, 157 S.W.3d at 153. Due diligence requires
that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in
the exercise of due diligence, presented the fact at trial; and (3) upon discovering the fact, the defendant
did not delay bringing the petition. Id.
Here, as in Echols, the medical records relied upon by petitioner were available since prior to his
trial. The new evidence that petitioner references concerning the drugs that he was taking was available,
according to petitioner’s allegations, since prior to 2005 for Effexor and since 2007 for Ambien.
Petitioner offers in explanation for the delay that he was not aware of the information concerning
antidepressants until 2005 or of the information as to Ambien until June 10, 2009, and that research is
difficult for him due to his limited sight. He indicates that he was hesitant to file his petition because
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Cite as 2009 Ark. 550
new scientific information on the drugs has continued to be published.
Petitioner offers no explanation as to the almost-fourteen-year delay in bringing the claim
concerning his lack of competency to stand trial. Petitioner has not alleged that counsel was unaware
of his previous treatment and diagnosis, or the conditions of which he complains, in order to raise the
issue at trial. While adequate treatment may have been unavailable during petitioner’s incarceration for
trial, he has not alleged that the Arkansas Department of Correction failed to provide appropriate
treatment for his condition.
Petitioner was sufficiently recovered to make inquiries concerning his prior treatment in 2006
and to be aware and admit that he committed the homicides as early as 2003. He acknowledges that he
became aware of the basis for his antidepressant claims in 2005. In spite of limitations concerning his
eyesight, petitioner was able to prepare a document on the topic of antidepressant reactions that
referenced the Virginia Tech shootings, in April 2007, as having recently occurred. Considering these
facts, petitioner has not presented a valid excuse for the delay in making application for error coram
nobis relief.
Petition denied.
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