Guy v. State
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Bennie Guy entered a negotiated plea of guilty to rape in circuit court. More than a decade later, Guy filed a petition for writ of habeas corpus in the trial court that asserted his actual innocence, alleged that his attorney had withheld from him DNA test results exculpating him, and sought relief under Ark. Code Ann. 16-112-201 to -208 (Act 1780). The trial court appointed counsel to represent Guy. Defense counsel filed a petition for writ of error coram nobis and, in the alternative, declaratory relief requesting relief under Act 1780. The trial court denied relief. Guy appealed the order and filed a motion that requested permission to file a motion to submit evidence. The Supreme Court denied the motion and, because it was clear that Guy could not prevail, dismissed the appeal. The Court further held that the trial court did not err in declining to issue a writ of error coram nobis or in denying relief or any further proceedings under Act 1780.
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Cite as 2011 Ark. 305
SUPREME COURT OF ARKANSAS
No.
CR 10-727
Opinion Delivered
BENNIE DAVID GUY
Appellant
v.
STATE OF ARKANSAS
Appellee
July 27, 2011
PRO SE MOTION TO REQUEST
PERMISSION TO FILE MOTION TO
SUBMIT EVIDENCE [CRITTENDEN
COUNTY CIRCUIT COURT, CR
95-632, HON. RALPH WILSON, JR.,
JUDGE]
MOTION DENIED; APPEAL
DISMISSED.
PER CURIAM
In 1996, appellant Bennie David Guy entered a negotiated plea of guilty to rape in
Crittenden County Circuit Court. The trial court imposed a sentence of 600 months’
imprisonment. In 2007, appellant filed in the trial court a petition for writ of habeas corpus
that asserted his actual innocence, that alleged that his attorney had withheld from him DNA
test results exculpating him, and that sought relief under Act 1780 of 2001 Acts of Arkansas,
as amended by Act 2250 of 2005 and codified as Arkansas Code Annotated §§ 16-112-201
to -208 (Repl. 2006). The trial court appointed counsel to represent appellant, and counsel
filed a petition for writ of error coram nobis and declaratory relief requesting relief under Act
1780 in the alternative.
Subsequently, the court ordered that some evidence in the case be retested. Following
a hearing, the trial court denied further relief and provided a written order with findings of
Cite as 2011 Ark. 305
fact and conclusions of law on the issues in the second petition. Appellant lodged this appeal
of that order, and he has filed a motion that requests permission to file a motion to submit
evidence. The motion seeks to have this court consider on appeal a document that purports
to be proposed findings of a magistrate in a case that appellant filed in federal district court.
Because appellant would have us include the document in the record on appeal, we treat it
as a motion to supplement the record. We deny the motion, and, because it is clear that
appellant cannot prevail, we dismiss the appeal. An appeal of the denial of postconviction
relief, including an appeal from an order denying a petition for writ of habeas corpus under
Act 1780, will not be permitted to go forward where it is clear that the appellant could not
prevail. Strong v. State, 2010 Ark. 181 ___ S.W.3d ___ (per curiam); see also Williams v. State,
2011 Ark. 203 (per curiam) (an appeal from the denial of a petition for writ of error coram
nobis will be dismissed if the appeal is without merit).
The document that appellant would have this court consider is of dubious relevance
to the proceedings on appeal. Appellant asserts that the document concludes that there was
a violation of the requirements of Brady v. Maryland, 373 U.S. 83 (1963), in a case in another
county in which appellant was also convicted of sexual assault of the same victim in the case
before us. The information is not presented as published, and appellant does not assert that it
was taken into consideration by the court below. This court has long and consistently held
that it cannot, in the exercise of its appellate jurisdiction, receive testimony or consider
anything outside of the record below. Smith v. Brownlee, 2010 Ark. 266 (per curiam).
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A review of the record that was before the trial court makes clear that the court did
not err in denying relief as provided in the appealed order. To some extent, the court did
grant relief because it ordered additional testing of the samples. To the extent that the court
denied appellant’s request that appellant’s conviction be set aside, either under the provisions
of Act 1780 or through a writ of error coram nobis, the court did not err.
Appellant’s claims in his petitions centered on DNA evidence, available at the time of
trial, that he claimed exonerated him. Appellant testified at the hearing on the petition that
trial counsel would not show him copies of the reports on the DNA tests that had been
conducted and that, when appellant asked to see the results, counsel said that he could not
show appellant the results because of court rules. Appellant also testified that counsel had said
that the test results indicated that appellant was the rapist and that appellant should plead
guilty. At the hearing on appellant’s petition, counsel testified that he was hired by appellant’s
family only to assist appellant in entering a plea; that appellant had copies of the DNA test
results that he showed counsel and retained; that counsel advised appellant that the DNA
results did not implicate him, but that the results also did not exonerate him; and that he
would not have advised appellant to plead guilty if appellant maintained his innocence.
The trial court’s findings of fact make clear that counsel’s testimony was more credible
and that the court accepted counsel’s account. This court does not assess the credibility of the
witnesses. Loggins v. State, 2010 Ark. 414, ___ S.W.3d ___; Lacy v. State, 2010 Ark. 388, ___
S.W3d ___; Fernandez v. State, 2010 Ark. 148, ___ S.W.3d ___. Conflicts in testimony are
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for the fact-finder, that is the trial judge in this case, to resolve, and the judge is not required
to believe the testimony of any witness, especially that of the accused, since he or she is the
person most interested in the outcome of the proceedings. Mitchem v. State, 2011 Ark. 148
(per curiam).
In addition to counsel’s testimony, during the hearing on the petition, the trial court
received evidence and testimony concerning new tests performed on samples taken from the
victim and her clothing. The testimony was that, although there was DNA found on the
samples and appellant was excluded as the source of that DNA, the samples were not sufficient
for the testing to have tied the perpetrator to the crime. Although semen was found on the
vaginal swabs, neither the swabs nor the underwear cuttings contained Y-chromosomal DNA.
The experts testified that there were reasonable explanations for a lack of sperm in the
samples, and that the exclusion of appellant as a contributor of the DNA did not necessarily
exclude him as the offender.1
Appellant first sought a writ of error coram nobis. The standard of review of a denial
of a petition for writ of error coram nobis is whether the circuit court abused its discretion
in denying the writ. Benton v. State, 2011 Ark. 211 (per curiam); Williams, 2011 Ark. 203;
Pierce v. State, 2009 Ark. 606 (per curiam). An abuse of discretion occurs when the circuit
court acts arbitrarily or groundlessly. McCoy v. State, 2011 Ark. 13 (per curiam).
1
The victim claimed to have gone swimming after the rapes occurred and before she
was examined. Crime laboratory personnel testified that swimming after sexual penetration
may diffuse semen but not remove it completely. A serologist testified that no sperm cells
would be present if the rapist had undergone a vasectomy and that vaginal fluid may have
overcome seminal fluid.
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A writ of error coram nobis is an extraordinarily rare remedy, more known for its
denial than its approval. Williams, 2011 Ark. 203. The remedy is exceedingly narrow and is
appropriate only when an issue was not addressed or could not have been addressed at trial
because it was somehow hidden or unknown and would have prevented the rendition of the
judgment had it been known to the trial court. McCoy, 2011 Ark. 13 (citing Clark v. State,
358 Ark. 469, 192 S.W.3d 248 (2004)). This court has previously recognized that a writ of
error coram nobis was available to address errors found in four categories: insanity at the time
of trial; a coerced guilty plea; material evidence withheld by the prosecutor; a third-party
confession to the crime during the time between conviction and appeal. Benton, 2011 Ark.
211.
Appellant’s claim for the writ was based on his assertion that his plea was coerced. To
the extent that he alleged that information was withheld, he did not allege that the
information was withheld from the defense by the prosecution. Instead, he alleged that the
information was withheld by trial counsel as a part of the effort to coerce him into a guilty
plea. The trial court found that appellant’s testimony concerning what transpired in his
meetings with counsel was not credible and specifically accepted counsel’s version of events
in its findings of fact. As a consequence, the facts supported a basis for denial of the writ, and
the court did not abuse its discretion in finding that appellant was not coerced into entering
a guilty plea.
As for appellant’s claim under Act 1780, the court found that identity was not at issue
and that appellant therefore failed to file a petition upon which relief could be granted. This
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court will not reverse a denial of postconviction relief unless the circuit court’s findings are
clearly erroneous, although issues concerning statutory interpretation are reviewed de novo.
Echols v. State, 2010 Ark. 417, ___ S.W.3d ___. The court’s ruling is somewhat at odds with
its previous order for additional testing prior to the hearing. Whether or not the court
correctly determined identity was not at issue as required to grant a motion for testing under
§ 16-112-202, appellant was not entitled to relief under the act. More fundamentally,
appellant failed to show a basis to commence a proceeding for the writ under either basis set
out in § 16-112-201(a).
Appellant asserted that his claim fell within § 16-112-201(a)(2) and that the scientific
predicate for the claim could not have been previously discovered through the exercise of due
diligence. He alleged that the DNA evidence was sufficient to establish by clear and
convincing evidence that no reasonable fact-finder would find the petitioner guilty of the
rape. As already discussed, considering the trial court’s assessment of the credibility of the
witnesses, the scientific predicate for the claim here had been previously discovered and was
well-known to appellant personally. In addition, the facts underlying the claim, viewed in
light of the evidence as a whole as presented at the hearing on the petition, simply did not
establish evidence to potentially exonerate appellant. Because the samples did not contain Ychromosomal DNA that would have connected any potential suspect to the crime, the
absence of appellant’s DNA in the samples did not eliminate him as a suspect.
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The trial court did not err in declining to issue a writ of error coram nobis or in
denying relief or any further proceedings under Act 1780. It is therefore clear that appellant
cannot prevail, and we dismiss the appeal.
Motion denied; appeal dismissed.
7
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