Burgie v. State
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ARKANSAS SUPREME COURT
No.
CR 02-90
Opinion Delivered
ERIC BURGIE
Petitioner
v.
STATE OF ARKANSAS
Respondent
June 25, 2009
PRO SE PETITION AND
SUPPLEMENTAL PETITION TO
REINVEST JURISDICTION IN THE
TRIAL COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR
CORAM NOBIS, MOTIONS FOR
APPOINTMENT OF COUNSEL AND
FOR TRANSCRIPTS AND FOR LEAVE
TO AMEND, MOTION FOR
DOCUMENTS UNDER THE
FREEDOM OF INFORMATION ACT,
MOTION FOR COPIES OF MOTION
TO AMEND, AND MOTION “TO
CLARIFY CLAIMS FOR ISSUANCE
OF WRIT” [CIRCUIT COURT OF
GARLAND COUNTY, CR 2000-366]
MOTIONS TO AMEND AND TO
CLARIFY CLAIMS DENIED;
PETITIONS DENIED; MOTION FOR
COUNSEL AND TRANSCRIPTS
MOOT; MOTIONS FOR DOCUMENTS
AND FOR COPIES DENIED.
PER CURIAM
In 2001, a jury found petitioner Eric Burgie guilty of capital murder and aggravated robbery
and sentenced him to life imprisonment without parole. This court affirmed the judgment. Burgie
v. State, CR 02-90 (Ark. Feb. 20, 2003) (per curiam). Petitioner now brings the instant petitions in
which he requests this court to reinvest jurisdiction in the trial court so that he may proceed with 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). Petitioner also filed a motion requesting appointment of
counsel and copies of transcripts, and later filed a motion seeking leave to amend the petitions.
Petitioner also filed, with the petitions, a motion seeking certain documents at public expense under
the Arkansas Freedom of Information Act, Arkansas Code Annotated §§ 25-19-101 – 25-19-109
(Repl. 2002 and Supp. 2007). Subsequently to the State’s responses to the petitions and motion to
amend, petitioner filed additional motions seeking copies at public expense and seeking to clarify
his claims for issuance of the writ.
In his petition and supplemental petition, petitioner alleges as a basis for the writ that both
his and a codefendant’s confessions were obtained in violation of certain constitutional rights.
Petitioner alleges that the codefendant has provided an affidavit in which he avers that the police
officer who obtained the confessions testified during the codefendant’s pretrial hearing that he used
coercive tactics against the defendants. In his supplemental petition, petitioner characterizes the
allegations as prosecutorial misconduct, claiming that the prosecution withheld evidence in the form
of the officer’s testimony at the codefendant’s pretrial hearing. He alleges that the officer’s
testimony in his codefendant’s case conflicted with the officer’s previous testimony in petitioner’s
trial to the effect that he had not violated petitioner’s rights.
In his motion under the Freedom of Information Act, petitioner seeks the transcripts from his
1
For clerical purposes, the instant petition was assigned the same docket number as the direct
appeal.
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trial and his codefendant’s pretrial hearing and a motion for discovery from his trial record at public
expense. In his motion to amend the petition, he seeks to add additional claims concerning the
sufficiency of the probable cause affidavit supporting the warrant for his arrest. In his motion to
clarify claims, petitioner reasserts his previous claims, alleging the prosecution withheld evidence
of the officer’s testimony, and offers additional arguments as to why these allegations should support
a claim for issuance of the writ. In his final motion, petitioner seeks a file-marked copy of his
motion to amend the petition at public expense.
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 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). A writ of error coram nobis is appropriate when an issue was not addressed or
could not have been addressed at trial because it was somehow hidden or unknown. Larimore v.
State, 327 Ark. 271, 938 S.W.2d 818 (1997).
Error 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 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). For the writ to issue following the affirmance of a conviction,
the petitioner must show a fundamental error of fact extrinsic to the record. Thomas v. State, 367
Ark. 478, 241 S.W.3d 247 (2006) (per curiam). It is a petitioner’s burden to show that the writ is
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warranted. Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004).
We have held that the writ is available to address errors 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. Sanders v.
State, 374 Ark. 70, ___ S.W.3d ___ (2008) (per curiam). In his motion to amend, petitioner
contends that the prosecution withheld information concerning the basis for certain statements in the
affidavit of probable cause. In his petition and supplemental petition, he contends that the
prosecution withheld information as to the true nature of the police officer’s interrogation of the
defendants. Petitioner contends that these actions are violations of the requirements of Brady v.
Maryland, 373 U.S. 83 (1963).
There are three elements of a Brady violation, as follows: (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. Petitioner’s allegations do not assert
facts that were hidden or unknown as the result of a Brady violation.
In the motion to amend, petitioner alleges that the prosecution did not disclose details omitted
from statements in the probable cause affidavit as to what specific information led the police to a
particular witness. Petitioner does no more than challenge the sufficiency of the affidavit and does
not explain how the omitted statements might have been used by the defense, if that information had
been available at trial. Petitioner alludes to the use of perjured testimony by the prosecution, but
does not state any facts that would show how the purportedly withheld information might have
prevented the alleged use of perjured testimony. Moreover, the affidavit supporting the warrant is
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a part of the record, was not suppressed by the prosecution, and could have been challenged at trial.
Any missing information could have been uncovered and utilized by defense counsel.
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 v. State, 360 Ark. 332, 201 S.W.3d 890 (2005). Due diligence
requires satisfaction of certain conditions, as follows: (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; (3) upon discovering the fact, the defendant did not delay bringing the petition. Id. With the
exercise of due diligence, petitioner could have presented the fact of any undisclosed details
concerning the statement in the affidavit at trial.
As to the allegations in the petition and supplemental petition claiming that the prosecution
withheld evidence in the form of the officer’s testimony at the codefendant’s pretrial hearing,
petitioner asserts the testimony took place after petitioner’s trial was concluded. Based upon
petitioner’s own assertions, the information could not have been withheld by the prosecution because
the information was not available at the time of petitioner’s suppression hearing or trial. In addition,
the fact of any coercive tactics used against petitioner would have been known by petitioner before
his trial and could have been brought to the trial court’s attention at petitioner’s suppression hearing.
As we noted in our opinion on direct appeal, petitioner presented no such evidence at the suppression
hearing. Any coercive tactics used against petitioner’s codefendant would not have prejudiced
petitioner because the codefendant did not testify at petitioner’s trial.
Petitioner’s motion to clarify adds nothing further of any significance to his claims and
appears to simply attempt to reply to the response to his petition. We therefore deny that motion.
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Because petitioner does not present any basis to reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis, it is not necessary to consider petitioner’s motion for counsel
and transcript. That motion is moot.
As to petitioner’s motions requesting documents under the Freedom of Information Act and
file-marked copies of the motion to amend, in light of our holding as to the petitions, petitioner fails
to identify any specific need for the documents he requests. He simply asserts that he is indigent and
incarcerated. Those two motions are therefore denied.
A petitioner is not entitled to a copy of material on file with this court at public expense
unless he or she demonstrates some compelling need for specific documentary evidence to support
an allegation contained in a petition for postconviction relief. Bradshaw v. State, 372 Ark. 305, 275
S.W.3d 173 (2008) (per curiam). Indigency alone does not entitle a petitioner to free photocopying.
Nooner v. State, 352 Ark. 481, 101 S.W.3d 834 (2003) (per curiam). The Freedom of Information
Act does not require an appellate court to provide photocopying at public expense. Moore v. State,
324 Ark. 453, 921 S.W.2d 606 (1996) (per curiam).
Petitioner only asserts a vague claim that he requires a file-marked copy of the motion to
amend “for his file and use in this court, and other courts of proper jurisdiction.” He does not
identify any specific need as to that motion. As to the additional documents he requests, petitioner
has not demonstrated that even if requested in conjunction with the petitions filed, the documents
would provide any support for his claims in the petitions. Whatever those documents contain,
petitioner failed to allege a basis for error coram nobis relief.
We note that when an original action has been filed in this court, the material pertaining to
it remains permanently on file with the clerk. Unless it is being maintained under seal, persons may
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review the material in the clerk's office and photocopy all or portions of it. An incarcerated person
desiring a photocopy of material on file here may write this court, remit the photocopying fee, and
request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost
of photocopying. Bradshaw, 372 Ark. at 305, 275 S.W.3d at 174.
Motions to amend and to clarify claims denied; petitions denied; motion for counsel and
transcripts moot; motions for documents and for copies denied.
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