Wallace v. State , 2016 Ark. LEXIS 327 ( 2016 )

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SUPREME COURT OF ARKANSAS.
No. CR-03-713
TEREGINALD WALLACE Opinion Delivered November 17, 2016
APPELLANT
PRO SE THIRD PETITION TO
V. REINVEST JURISDICTION IN THE
TRIAL COURT TO CONSIDER A
STATE OF ARKANSAS PETITION FOR WRIT OF ERROR
CORAM NOBIS
APPELLEE [PULASKI COUNTY CIRCUIT COURT,
NO. 60CR-02-1493]
PETITION DISMISSED.
PER CURIAM
In 2002, a jury found petitioner Tereginald Wallace guilty of murder in the first
degree and sentenced him as a habitual offender to 480 months’ imprisonment. The
Arkansas Court of Appeals affirmed. Wallace v. State (Wallace I), CR-03-713 (Ark. App.
May 12, 2004) (unpublished) (original docket no. CACR 03-713).
Now before us is Wallace’s third pro se petition to reinvest jurisdiction in the trial
court in the case to consider a petition for writ of error coram nobis. For an understanding
of Wallace’s claims for the writ in the instant petition, it is necessary to summarize the facts
of the case and the issues already raised by Wallace at trial, on direct appeal, and in his first
and second coram-nobis petitions.
In 2002, the body of Lorenzo Petties was discovered near the Arkansas River. His
hands and feet were bound, and a wire coat hanger was twisted around his neck. At trial,
the State presented an eyewitness, Sam Thomas. Thomas claimed that he had observed
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Wallace, along with Bryan Salley and Kevin Brown, beat and strangle Petties to death. A
tape recording was admitted into evidence at trial that Petties had made prior to his death
in which he stated that Wallace had threatened to kill him and that he was “scared to death.”
The essence of Wallace’s defense was that someone else killed Petties. After the
victim was found, the police questioned Thomas about the murder. Thomas implicated
Wallace, Salley, and Brown, all of whom were subsequently arrested and charged with the
murder. During the interview, Thomas also stated that he had told someone called “Tatum”
about what he had seen and that he had gotten a ride that night from someone called “Big
Six.” Wallace’s defense counsel said that Wallace told him that Tatum was Demetrius
Spencer and that Big Six was Kenneth Jordan. Jordan was located by the defense in the
same cell block as Wallace in the Pulaski County jail. Ultimately, Jordan testified at
Wallace’s trial that Thomas had told him that Thomas and Petties were “getting high in
Salley’s truck and he got to tripping and I grabbed the push-wire and I wrapped it around
his neck.” Jordan said that he immediately told Thomas that he did not want to hear any
further details.
Demetrius Spencer was not located prior to trial. On the first day of Wallace’s trial,
Spencer was shot in the chest. At the hospital, he gave a statement in which he denied that
Thomas ever came to him and told him about the murder. He also claimed that someone
known as “Blue Boy” told him that Thomas had told him where Petties’s body was located.
After the trial ended and the judgment-and-commitment order was entered,
Wallace’s trial counsel learned of Spencer’s statement. Counsel moved for a new trial,
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alleging that the failure to disclose Spencer’s statement constituted a violation of Brady v.
Maryland, 373 U.S. 83 (1963). The motion was denied.
A Brady violation is established when material evidence favorable to the defense is
wrongfully withheld by the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per
curiam). 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 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)).
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. Strickler, 527 U.S. 263; see
Howard, 2012 Ark. 177, 403 S.W.3d 38. Impeachment evidence that is material, as well as
exculpatory evidence, falls within the Brady rule. Bagley, 473 U.S. 667.
On direct appeal, Wallace argued that the trial court erred in denying him an
opportunity to cross-examine Thomas about how Thomas had entered into a plea bargain
in 1994 wherein an attempted-murder charge in a case would be reduced to aggravated
assault. Wallace claimed that cutting off his inquiry into the circumstances surrounding
Thomas’s plea agreement rose to the level of a “denial of confrontation” and prevented him
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from challenging Thomas’s credibility as a witness. He further argued that, if the jury had
heard that Thomas was once believed to have committed attempted murder, the testimony
of prosecution witness Kenneth Jordan that Thomas had admitted the murder to him would
take “on a whole new light.” The court of appeals rejected the arguments, finding that
Thomas could be impeached with his aggravated-assault conviction, but not the attempted-
murder charge. Wallace I, slip op. at 7, 8.
Wallace also argued on appeal that the trial court erred in denying his motion for a
continuance to find Demetrius Spencer. He claimed that he worked diligently to find
witnesses to corroborate Jordan’s testimony and to find Spencer, contending that Spencer’s
second statement directly contradicted Thomas’s statement to police that he had talked to
Tatum, which he asserted was “clearly exculpatory” because it undermined Thomas’s
credibility. The court of appeals found no error. Wallace I, slip op. at 5–6.
As his final point on appeal, Wallace argued that the denial of his motion for a new
trial on the grounds of an alleged “Brady/Kyles/Strickler” violation was constitutional error.
Wallace was referring to the duty to disclose exculpatory evidence pursuant to Brady, Kyles
v. Whiley, 514 U.S. 419 (1995), and Strickler. Wallace asserted that Spencer was an important
witness because his statement directly contradicted Thomas’s claim that Thomas told him
about the murder. He further claimed that Spencer gave the name of another person, Blue
Boy, who told him that Thomas knew where the body was. The court of appeals declined
to reverse the judgment, noting that Wallace had the burden of proving a Brady violation
and that he did not establish that he was prejudiced based on the facts as presented in the
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case. That is, Wallace failed to demonstrate, in accordance with Lee v. State, 340 Ark. 504,
11 S.W.3d 553 (2000), that there was a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different. The court of appeals
pointed to the fact that Wallace failed to show that there was any admissible evidence that
Wallace could have gleaned from Spencer’s testimony. Wallace I, slip op. at 8. Prejudice
cannot be proved where the evidence cited as an alleged Brady violation would not have
been admissible to impeach the credibility of a witness for the State. In Wallace’s case, the
court of appeals said that, while it is true that Spencer’s statement seemed to contradict
Thomas’s statement to police that Thomas had told Spencer about the murder, it was clearly,
as presented and argued in the case, a collateral matter, and therefore not admissible for
cross-examination. The court of appeals further noted that retrial is not required where the
newly discovered evidence is not admissible under our rules of evidence. Wallace I, slip op.
at 8–9. Moreover, even if the evidence had been admissible, the evidence would have been
useful only to raise minor defects in a witness’s testimony and would not be sufficient to
create a reasonable probability that the results of the proceeding would have been different.
The court further noted that Wallace’s impeachment evidence, i.e., that Thomas had related
some information about the murder to Blue Boy rather than Spencer, was such a minor
detail that it could not have given rise to a reasonable probability that the result of the trial
would have been different. Wallace I, slip op. at 9.
The balance of Spencer’s potential testimony concerned admissions that Thomas
allegedly made to Blue Boy. The court of appeals acknowledged that, had Blue Boy been
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able to testify as to such admissions, they would have been admissible as a statement against
penal interest. Ark. R. Evid. 804(b)(3) (2015). However, Blue Boy’s alleged statement to
Spencer, which only concerned Thomas, was not subject to the statement-against-interest
exception. Accordingly, the court of appeals could not conclude that Spencer’s testimony
would have had any effect on the outcome of the trial, much less that there was a reasonable
probability that the outcome would have been different. Wallace I, slip op. at 8.
In 2005, Wallace filed in this court his first 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 court was 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
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. Id. 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 v. State, 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
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to address 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.
In the 2005 petition, Wallace contended that the writ should issue because the
prosecution in his case had violated Brady. Wallace based his Brady claim on the assertion
that after his trial was over, the State nolle prossed charges against Sam Thomas, who had
testified against Wallace at Wallace’s trial and who had said that he had made no deal with
the State in exchange for his adverse testimony. Wallace argued that the State had a duty
to disclose to the defense at the time of trial that a deal had been made. Wallace further
contended that the existence of the deal constituted newly discovered evidence and was a
violation of due process. On September 28, 2005, we denied the coram-nobis petition in
a per curiam order. Wallace v. State (Wallace II), CR-03-713 (Ark. Sept. 28, 2005)
(unpublished per curiam).
In 2015, Wallace filed his second coram-nobis petition here, asserting as grounds for
the writ that Kevin Brown had confessed to Wallace’s former attorney, John W. Hall, that
it was actually he (Brown), Bryan Salley, and Sam Thomas who murdered the victim.
Wallace alleged that Hall did not turn over Brown’s statement to him until after 2010 and
that Kevin Brown was not available to testify at his trial, and the statement could not have
been discovered earlier. Wallace stated that Brown admitted to him that he had given a
false statement against Wallace in exchange for a twenty-five-year sentence in another case
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and that Brown apologized to him for being untruthful. He argued that, if he had known
of Brown’s statement, he would have had a credible defense. He argued that Hall’s conduct
amounted to ineffective assistance of counsel. As support for the assertion that Brown
admitted giving a false statement, Wallace appended Brown’s affidavit to his petition in
which Brown stated that, when “Sambo” Thomas was asked if Thomas knew where the
body was, Thomas said it was down by the river, but that he (Brown) told an investigator
for the public defender that he “didn’t know nothing.”
We denied the petition. Wallace v. State (Wallace III), 2015 Ark. 349, 471 S.W.3d
192 (per curiam). We first noted that Wallace’s claim that he was denied effective assistance
of counsel is not a ground for the writ. Wallace III, 2015 Ark. 349, at 8, 471 S.W.3d 192,
198. This court has repeatedly held that ineffective-assistance-of-counsel claims are not
cognizable in error-coram-nobis proceedings and that such proceedings are not a substitute
for raising ineffective-assistance-of-counsel claims under Arkansas Rule of Criminal
Procedure 37.1. White v. State, 2015 Ark. 151, at 4, 460 S.W.3d 285, 288.
With respect to the affidavits of Johnny Lee Brown (Blue Boy), Kevin X. Williams
(Hakim Malik), and Malik Shakir that Wallace appended to his second petition for coram-
nobis relief, we held that the affidavits, which Wallace contended were either third-party
confessions or demonstrated his innocence, at most, raised questions of credibility
concerning Sam Thomas’s trial testimony. Moreover, this court has limited error-coram-
nobis relief on claims of third-party confessions to those claims made within the period
before affirmance of the judgment of conviction. While there are circumstances in which
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a petition to reinvest the trial court with jurisdiction to hear a petition for writ of error
coram nobis can be considered timely if filed after affirmance of a judgment, such as
prosecutorial misconduct in concealing exculpatory evidence from the defense, the
questions of fact, which invariably accompany an allegation of a third-party confession,
demand prompt scrutiny. Brown v. State, 330 Ark. 627, 630, 955 S.W.2d 901, 902 (1997).
The mere fact that another person has confessed to a crime cannot, alone, be grounds for
relief, for such confessions are not uncommon and must be approached with some
skepticism. Id. The trial court must carefully scrutinize the complete circumstances
surrounding the confession and all the available evidence. Assessing the merits of a third-
party confession requires that all of the evidence be available and unimpaired by the passage
of time so that the trial court’s examination can be exhaustive and decisive. Our
requirement that a claim of a third-party confession must be raised before affirmance serves
to limit such claims to the time frame in which it is most likely that the trial court can
determine with certainty whether the writ should issue. Id. Assertions of a third-party
confession after a judgment is affirmed may be addressed to the executive branch in a
clemency proceeding. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984).
As to Wallace’s allegation that the contents of the affidavits amounted to newly
discovered evidence that constitutes a ground for the writ, this court noted when it denied
the second petition that it is well settled that an allegation of newly discovered evidence in
itself is not a basis for coram-nobis relief. Thompson v. State, 2012 Ark. 339, at 4 (per
curiam). There is a distinction between fundamental error that requires issuance of the writ
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and newly discovered information that 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). Wallace
did not show that there was newly discovered evidence that would somehow have created
an issue sufficient to affect the outcome of the trial and preclude the entry of the judgment.
As a result, he established no ground to issue a writ of error coram nobis. Wallace III, 2015
Ark. 349, at 11, 471 S.W.3d 192, 199.
Intertwined with Wallace’s claims concerning the affidavits was the allegation that
the acts of his accomplices, rather than any act by him that was proven at trial, caused the
victim’s death. This court found that the claim was that the evidence was not sufficient to
sustain the judgment of conviction. We have held that issues concerning the sufficiency of
the evidence are not cognizable in coram-nobis proceedings. Philyaw v. State, 2014 Ark.
130 (per curiam). The question of the sufficiency of the evidence is to be settled at trial and
on the record on direct appeal. Id.; Sims v. State, 2012 Ark. 458 (per curiam).
Wallace also argued that there was error committed at this trial. We denied relief
because the arguments could have been raised and settled at trial. As such, the issues were
not cognizable as a ground for relief in a coram-nobis proceeding. Howard, 2012 Ark. 177,
403 S.W.3d 38. Even constitutional issues such as due-process and equal-protection claims
that could have been addressed at trial are not within the purview of the writ. See Watts v.
State, 2013 Ark. 485, at 7 (per curiam).
In this third petition, Wallace repeats the claims raised in the first two petitions. As
this court has already considered those claims and denied relief based on them, we decline
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to consider them again and dismiss the petition as an abuse of the writ. When a petitioner
files a successive application for coram nobis relief in this court, it is an abuse of the writ to
argue the same claims that have been addressed if the petitioner does not allege new facts
that are sufficient to distinguish his latest claims from the prior claims. Jackson v. State, 2016
Ark. 294, at 4 (per curiam).
Wallace has again submitted affidavits from Kevin Williams and Malik Shakir, but
there is no fact alleged sufficient to distinguish to any significant degree his claims in the
instant petition from the claims raised in his previous petitions. Wallace did not establish in
his two prior petitions that there was any basis for the writ, and his reassertion of largely the
same claims in the third petition is a misuse of the remedy. See Smith v. State, 2015 Ark.
188, 461 S.W.3d 345 (per curiam). Accordingly, the petition is subject to dismissal. See
Rodgers v. State, 2013 Ark. 294, at 3–4 (per curiam) (“[A] court has the discretion to
determine whether the renewal of a petitioner’s application for the writ, when there are
additional facts presented in support of the same grounds, will be permitted.”). Due process
does not require this court to entertain an unlimited number of petitions to reinvest
jurisdiction in the trial court to consider a petition for writ of error coram nobis in a
particular case. Jackson v. State, 2016 Ark. 294, at 5; see also Swanigan v. State, 2016 Ark.
109, 485 S.W.3d 695 (per curiam).
One of the affidavits appended to this third petition is that of Calvin Sims, who did
not submit an affidavit with the second petition. Sims avers that Demetrius Spencer told
him that he had paid Kevin Brown, Bryan Salley and “Sambo” to kill Lorenzo Petties. He
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further avows that Brown “told me the same thing Demetrious told me that he, Sambo,
and Bryan Salley killed Lorenzo for Demetrious Spencer and he paid them real well.” As
with the other affidavits, Sims’s affidavit does not state a ground for the writ because Sims’s
affidavit merely challenges the credibility of Sam Thomas’s trial testimony. Sims does not
claim that any information he possessed was hidden from the defense, and the affidavit does
not add any new facts to the coram-nobis petition that distinguishes it from the claims in the
earlier two petitions. The fact that Sims states that Spencer was untruthful is not, in and of
itself, cause for issuance of the writ. See Wallace III, 2015 Ark. 349, at 9, 471 S.W.3d at
198. Even when an actual witness recants his testimony after trial, the recantation, standing
alone, is not cognizable in an error-coram-nobis proceeding. Anderson v. State, 2012 Ark.
270, 423 S.W.3d 20 (per curiam) (citing Jackson v. State, 2010 Ark. 81 (per curiam)); Smith
v. State, 200 Ark. 767, 140 S.W.2d 675 (1940) (holding that the writ was not available to
afford relief on the ground that the principal witness against the accused had recanted and
that others since the accused’s conviction had confessed to the crime); see also McArthur v.
State, 2014 Ark. 367, at 5, 439 S.W.3d 681, 684 (per curiam), cert. denied, 135 S. Ct. 1432
(2015); Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990) (A witness’s recantation of
part of his trial testimony was not a ground for the writ as recantation of testimony did not
fit within the remedy.).
As he did in prior coram-nobis petitions, Wallace asserts that, based on the evidence
adduced at trial and based on the affidavits offered in support of his petition, he has
demonstrated that he is innocent of the offense. The claim of actual innocence, as asserted
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by Wallace, amounts to a challenge to the sufficiency of the evidence and is a direct attack
on the judgment below. As such, the claim is not cognizable in a proceeding for a writ of
error coram nobis. Rice v. State, 2016 Ark. 27, at 4, 479 S.W.3d 555, 558 (per curiam).
Petition dismissed.
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