Stewart v. State , 2016 Ark. LEXIS 36 ( 2016 )

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SUPREME COURT OF ARKANSAS.
No. CR-74-121
Opinion Delivered February 4, 2016
WAYDE EARL STEWART
a/k/a Wade Earl Stewart
PETITIONER PRO SE PETITION TO REINVEST
JURISDICTION IN THE TRIAL COURT
V. TO CONSIDER A PETITION FOR WRIT
OF ERROR CORAM NOBIS
STATE OF ARKANSAS [PULASKI COUNTY CIRCUIT COURT,
NO. 60CR-74-64]
RESPONDENT
PETITION DENIED.
PER CURIAM
In 1974, petitioner Wayde Earl Stewart, who is also known as Wade Earl Stewart,
and a codefendant, Tommy McGhee, were found guilty by a jury in the Pulaski County
Circuit Court of murder in the first degree committed in the perpetration of an attempted
robbery. Both men were sentenced to life imprisonment.1 We affirmed. Stewart v. State,
257 Ark. 753, 519 S.W.2d 733 (1975).
Now before us is Stewart’s pro se petition to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram nobis in the case. The petition for leave to
proceed in the trial court is necessary because the trial court can entertain a petition for writ
of error coram nobis after a judgment has been affirmed on appeal only after we grant
permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis
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Stewart states that in 2005 his sentence was commuted to a term of 118 years’
imprisonment.
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is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000).
Coram-nobis proceedings are attended by a strong presumption that the judgment of
conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v.
State, 2013 Ark. 56, 425 S.W.3d 771.
The function of the writ is to secure relief from a judgment rendered while there
existed some fact that 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 the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner
has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts,
2013 Ark. 56, 425 S.W.3d 771. The writ is allowed only under compelling circumstances
to achieve justice and to address errors of the most fundamental nature. Id. A writ of error
coram nobis is available for addressing certain errors that are found in one of four categories:
(1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by
the prosecutor, or (4) a third-party confession to the crime during the time between
conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
Evidence adduced at trial reflected that Stewart and McGhee went to the victim’s
apartment to take drugs from him. Stewart was armed with a sawed-off shotgun and
McGhee carried a .38-caliber pistol. A witness testified that he saw McGhee pull his pistol
on the victim, who raised his hands. Stewart then jumped over a porch railing, and the
shotgun discharged, striking the victim in the chest. The witness immediately heard several
small-caliber shots. Another witness, who was living with the victim, testified that she heard
one loud shot and three other shots, and the victim ran into the apartment. The victim
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spontaneously told her that one man had flashed money in his face, then the other had
jumped onto the porch and shot him with a shotgun, and the first man had shot him with
a pistol.
The victim was admitted to the hospital with a shotgun blast to the chest and pistol
wounds to his wrist and knee. Following removal of one lung, the victim was placed in
intensive care. Five days later, additional surgery was performed to remove several ribs to
curtail infection. After five more days in intensive care, the victim died. Without
notification to the state medical examiner, the victim was partially embalmed before an
autopsy was performed by an anatomical pathologist, who had performed over 300 autopsies
in his career. The pathologist testified that the victim died from a blood clot in the
pulmonary artery and that the clot resulted either from the surgery or the gunshot wound
that necessitated the surgery. Needle marks were found on the victim’s legs, which Stewart
and McGhee contended indicated that the victim was a drug user. The doctor testified that
an improper injection of drugs could have caused the death and that the embalming
procedure could have nullified the presence of drugs. The victim’s personal physician
testified that in his opinion, the blood clot that caused the victim’s death was secondary to
the gunshot wound to the chest.
Stewart and McGhee gave separate written statements to the police. Stewart
admitted that he had been armed with a shotgun and that he had gone to the victim’s
residence with McGhee with the intent to rob him. McGhee wrote that he, while armed
with a pistol, went with Stewart and other persons to the apartment, told the victim that
they wanted drugs, that someone in the group said that they would take the drugs if the
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victim would not give the drugs to them, and that a shotgun blast followed. McGhee also
said that the pistol had gone off, but he did not know where the bullets had struck. This
court held on direct appeal that there was sufficient evidence to sustain the judgment that
Stewart and McGhee committed murder in an attempt to perpetrate a robbery. Stewart, 257
Ark. 753, 755, 519 S.W.2d 733, 735.
As grounds for a writ of error coram nobis, Stewart alleges that the State withheld
evidence from the defense at trial in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Stewart contends that the following evidence is at issue: (1) opinion evidence, provided by
the doctors, that prejudiced him; (2) inadmissible evidence that was permitted into the
record; (3) evidence that did not “adhere” to the cause of death, that is, evidence that death
resulted from the victim’s own misconduct and not the gunshot wound to his chest; (4)
evidence that the body was quickly and illegally embalmed, which masked the actual cause
of death; (5) evidence that was misleading and confusing; (6) evidence that was insufficient
to prove that a blood clot caused the victim’s death; (7) evidence provided by the victim’s
girlfriend that, at a time when he had been released from the hospital after fully recovering
from the gunshot wound, she injected him with drugs and that the blood clot was the result
of the injection. A review of the Brady claims suggests that Stewart has misconstrued the
nature of a Brady violation and the purpose of a coram-nobis proceeding.
A Brady violation is established when material evidence favorable to the defense is
wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler
v. Greene, 527 U.S. 263 (1999), the Supreme Court revisited Brady and declared that, when
the petitioner contends that material evidence was not disclosed to the defense, the
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petitioner must show that “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Strickler,
527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). To determine
whether the proposed attack on the judgment is meritorious so as to warrant the granting
of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis,
this court looks to the reasonableness of the allegations of the petition and to the existence
of the probability of the truth to those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662.
Here, there was clearly no violation of Brady because Stewart has not shown that
there was any evidence withheld from the defense; rather, the evidence he discusses in his
petition was clearly known at the time of trial. He has fallen far short of establishing there
was some material evidence withheld that would have prevented rendition of the judgment
had it been known at the time of trial. See Isom, 2015 Ark. 225, 462 S.W.3d 662.
Stewart next makes the conclusory statement that he has never been legally
competent. If the allegation can be said to be an assertion of insanity at the time of trial,
Stewart has presented no facts sufficient to demonstrate that there was information not
known at the time of trial, or which could not have been known at the time of trial, that
could have established that he was incompetent to proceed. The application for coram-
nobis relief must make a full disclosure of specific facts relied upon as the basis for the writ
inasmuch as statements that are not supported by facts are not a ground for the writ. Noble
v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam).
Throughout his petition, Stewart argues that the trial court erred by accepting
inadmissible evidence into the record and by committing numerous other errors. Trial
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error, by its very nature, is an issue that could have been settled at trial and on the record
on direct appeal. Johnson v. State, 2015 Ark. 170, at 4, 460 S.W.3d 790, 794 (per curiam).
For that reason, allegations of trial error, even of constitutional dimension, are not within
the purview of a coram-nobis proceeding. Grant v. State, 2015 Ark. 323, at 3, 469 S.W.3d
356, 358 (per curiam). Again, a coram-nobis proceeding is limited to the four categories
set out above. Franklin v. State, 2015 Ark. 455, at 3 (per curiam).
Stewart, who concedes that he shot the victim, also contends repeatedly that the
evidence was insufficient to sustain the judgment of conviction and that it was a violation
of the Eighth Amendment prohibition against cruel and unusual punishment to convict him
on inadmissible, insufficient evidence. He particularly argues that the cause of death was
not proven to be the gunshot wound to the victim’s chest, and he asks this court to appoint
an attorney to represent him and order the victim’s body to be exhumed for further testing
to prove his actual innocence. These assertions do not state a ground for the writ. The
sufficiency of the evidence is not an issue cognizable in coram-nobis proceedings. Ventress
v. State, 2015 Ark. 181, at 6 (per curiam). Whether the evidence supports the judgment is
a question to be addressed at trial, and coram nobis does not provide a second opportunity
to challenge the evidence. See Bond v. State, 2015 Ark. 470 (per curiam).
Finally, Stewart raises numerous claims of ineffective assistance of counsel in his
petition. The allegations are also not within the scope of a coram-nobis proceeding.
Assertions of inadequate counsel are properly brought pursuant to Arkansas Rule of
Criminal Procedure 37.1. Noble v. State, 2015 Ark. 141, at 8, 460 S.W.3d 774, 779. We
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have consistently held that a petition for writ of error coram nobis is not a substitute for
raising claims of ineffective assistance of counsel under Rule 37.1. Id.
Petition denied.
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