Slocum v. State , 442 S.W.3d 858 ( 2014 )

Cite as 2014 Ark. 398
SUPREME COURT OF ARKANSAS
No. CR-95-1039
Opinion Delivered September 25, 2014
KENNETH SLOCUM PRO SE PETITION TO REINVEST
PETITIONER JURISDICTION IN THE TRIAL
COURT TO CONSIDER A PETITION
V. FOR WRIT OF ERROR CORAM NOBIS
[PULASKI COUNTY CIRCUIT COURT,
STATE OF ARKANSAS NO. 60CR-93-2979]
RESPONDENT
PETITION DENIED.
PER CURIAM
In 1995, petitioner Kenneth Slocum was found guilty of capital murder and sentenced
to life imprisonment without parole. We affirmed. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237
(1996).1 Appellant subsequently filed a petition for postconviction relief pursuant to Arkansas
Rule of Criminal Procedure 37.1 (1995) on the ground that his counsel was ineffective. The trial
court granted a new trial, and we reversed. State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998).
Now before us is petitioner’s pro se petition to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis. The petition for leave to proceed in the trial
1
Appellant and Elgin King were charged with capital murder of the same victim. Their
cases were severed, and King was convicted of the lesser-included offense of first-degree murder
and sentenced to forty years’ imprisonment. This court reversed the judgment based on the
failure to properly instruct the jury. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996) (King I).
At his second trial, King was again convicted of first-degree murder, and he was sentenced to
sixty years’ imprisonment. We affirmed. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999) (King
II).
Cite as 2014 Ark. 398
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. Dansby v. State, 343
Ark. 635, 37 S.W.3d 599 (2001). A writ of error coram nobis is an extraordinarily rare remedy
more known for its denial than its approval. Cromeans v. State, 2013 Ark. 273 (per curiam).
Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction
is valid. Greene v. State, 2013 Ark. 251 (per curiam). 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. Id. The petitioner has
the burden of demonstrating a fundamental error of fact extrinsic to the record. Burks v. State,
2013 Ark. 188 (per curiam).
The writ is allowed only under compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Cromeans, 2013 Ark. 273. 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. Wright
v. State, 2014 Ark. 25 (per curiam); Greene, 2013 Ark. 251.
In his petition, petitioner contends that he is entitled to issuance of the writ on the
ground that the State withheld material evidence from the defense in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The Supreme Court in Brady held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
2
Cite as 2014 Ark. 398
evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. In Strickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady
and declared that evidence is material “if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.” 373 U.S.
at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In Strickler, the Court also set
out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must
have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have
ensued.
Petitioner first alleges that the prosecution withheld from the defense the correct date
on which the victim was murdered. He states that the murder occurred on September 30, 1993,
but the felony information reflected that the murder occurred on October 4, 1993, which was
actually the date the body was found. A review of the information filed December 29, 1993, that
is contained in the record lodged on direct appeal reveals that the information charged petitioner
and codefendant, Elgin King, with capital murder committed “on or about October 4, 1993.”
Petitioner argues that, had the jury known of the correct date of the offense, it would have
found him innocent. Petitioner has appended to the petition a copy of the coram-nobis petition
that he intends to file in the trial court if he is granted leave by this court to proceed. In that
petition, he alleges that he had an “iron clad alibi” for September 30, 1993. Petitioner has
appended to the petition an exhibit consisting of an affidavit dated April 28, 2014, in which a
woman avers that she was with petitioner on the night of September 30, 1993.
3
Cite as 2014 Ark. 398
Petitioner has not established good cause to reinvest jurisdiction in the trial court because
he offers no proof that the State withheld the date of the offense from the defense. There was
testimony at petitioner’s trial that the body was found on Monday, October 4, 1993, and
testimony by the medical examiner that the victim had been dead for three to six days before his
body was discovered, which would include the date of September 30, 1993. We are not required
to take the claim in the woman’s affidavit, which was submitted almost twenty-one years after
September 30, 1993, at face value. See Burks, 2013 Ark. 188 (A court is not required to accept
allegations in a coram-nobis petition at face value as support for a claim of a Brady violation.)
(citing Goff v. State, 2012 Ark. 68, 398 S.W.3d 896 (per curiam)). But, in any event, the affidavit
does not establish a Brady violation because petitioner would have been aware at the time of trial
of the time-frame for the time of death as reported by the medical examiner and could have
informed his attorney of his whereabouts on the pertinent days prior to the discovery of the
body. Moreover, petitioner has offered nothing to show that the State concealed the
information provided by the woman in the affidavit.
Petitioner has also appended to the petition an exhibit consisting of a copy of an
interview with Vernon Scott conducted by police detectives on October 28, 1993. In the
interview, Scott, who was the principal witness against petitioner, said that he last saw the victim
alive on the night the victim was killed, which was the Wednesday or Thursday before the body
was discovered. Petitioner’s counsel clearly knew of Scott’s statement before trial inasmuch as
counsel used it to cross-examine one of the detectives. Accordingly, counsel knew at the time
of trial that there was evidence that the victim had been alive approximately five or six days
4
Cite as 2014 Ark. 398
before his body was discovered. If there was a misstatement in the information regarding the
victim’s date of death, petitioner has not established that the information concerning the date
of death was withheld by the prosecution in violation of Brady. Rather, it appears to have been
a scrivener’s error that could have been corrected before trial.2
As his second ground for issuance of the writ, petitioner argues that the State wrongfully
withheld from the jury in violation of Brady that Vernon Scott was giving false testimony. He
alleges that Scott was a heavy drug user who was not charged in the murder so that he could
testify for the State without having his testimony corroborated and that Scott should have been
charged as an accomplice.
Petitioner has again failed to establish a Brady violation. Petitioner argued on direct
appeal that Scott was an accomplice as a matter of law because Scott lured the victim to the
scene of his abduction. We noted our holding in the direct appeal lodged by petitioner’s
accomplice, King, that the evidence was insufficient to declare Scott an accomplice as a matter
of law, and we adhered to that decision in petitioner’s case as well. Petitioner’s attempt to couch
the issue now as a Brady violation does not provide him with another opportunity to advance the
issue. Clearly, counsel knew at the time of trial that Scott was a witness for the State who was
not testifying as petitioner’s accomplice. As to Scott’s drug use, Scott testified at trial at length
that he used drugs; therefore, his drug use was a fact that was known at the time of trial.
2
We have consistently held that the proper time to object to the form or sufficiency of
an indictment or information is prior to trial. Davis v. State, 2011 Ark. 88 (per curiam) (citing
Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991)); see also England v. State, 234 Ark. 421, 352
S.W.2d 582 (1962). A deficiency within a felony information does not render a judgment invalid
on its face. See Cook v. Hobbs, 2011 Ark. 382 (per curiam); Hill v. Norris, 2010 Ark. 287 (per
curiam).
5
Cite as 2014 Ark. 398
Petitioner did not demonstrate that the State somehow concealed that information from the
defense.
With respect to both the claim that the information contained an erroneous date of death
and the claims concerning Scott, petitioner has failed to show that the State withheld
information that would have resulted in a different outcome in the proceedings. As stated, 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, and the petitioner has the burden of demonstrating a fundamental error of fact
extrinsic to the record. Petitioner here has not met that burden.
Petition denied.
Kenneth Slocum, pro se petitioner.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for respondent.
6