McArthur v. State , 2014 Ark. LEXIS 471 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CR-91-206
Opinion Delivered September 11, 2014
PRO SE PETITION TO REINVEST
STEVEN LARON MCARTHUR JURISDICTION IN THE TRIAL COURT
PETITIONER TO CONSIDER A PETITION FOR WRIT
OF ERROR CORAM NOBIS AND
V. MOTION FOR APPOINTMENT OF
COUNSEL [LONOKE COUNTY
STATE OF ARKANSAS CIRCUIT COURT, NO. 43CR-90-22]
RESPONDENT
PETITION AND MOTION DENIED.
PER CURIAM
In 1991, petitioner Steven Laron McArthur was found guilty by a jury of capital murder
in the death of Rodney Spence in 1990. He was sentenced to life imprisonment without parole.
We affirmed. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).
Petitioner has now filed a pro se petition in this court requesting that jurisdiction be
reinvested in the trial court so that he may proceed with a petition for writ of error coram nobis.
A 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. Hooper v. State, 2014 Ark. 16 (per curiam).
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). The writ is allowed only under
compelling circumstances to achieve justice and to address errors of the most fundamental
nature. McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that a writ of error coram
nobis is available to address certain errors that are found in one of four categories: insanity at
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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. Charland v. State,
2013 Ark. 452 (per curiam); Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (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 circuit court and which,
through no negligence or fault of the defendant, was not brought forward before rendition of
judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v. State, 2011 Ark. 303 (per
curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic
to the record. Wright v. State, 2014 Ark. 25 (per curiam); Williams v. State, 2011 Ark. 541 (per
curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of
conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771; 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)).
In his petition, petitioner raises three grounds for the writ. To understand the claims, a
brief summary of the facts of the case is necessary. On January 21, 1990, a hunter discovered
the body of sixteen-year-old Rodney Spence in Lonoke County. Spence had been shot twice in
the head at close range. Spence’s father testified at petitioner’s trial that, on the afternoon of
January 20, 1990, Spence had left his parents’ home with the understanding that he would be
home by 10:00 p.m. that night. Spence was driving a 1986 red Ford Ranger. Spence’s uncle
testified that he saw Spence later that evening, and Spence said he was going to Cabot, Arkansas.
When Spence did not return home by 10:30, his parents reported him missing. His body was
discovered the next day.
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On January 23, 1990, a patrolman with the Plano Texas Police Department pulled over
a red Ford Ranger with Arkansas plates after hearing a national broadcast to be on the lookout
for the vehicle. Donald Hawley, the driver of the truck, informed the Texas authorities that he
and petitioner had been in Cabot, Arkansas, the past weekend and stayed at petitioner’s
girfriend’s apartment. Hawley stated that petitioner had left the apartment for a while on
Saturday, and, when petitioner returned, he was driving the red truck, which Hawley and
petitioner drove to Texas. The Plano police executed a search warrant on petitioner’s sister’s
apartment where they found a gun in a nightstand drawer. At trial, the parties stipulated that the
gun was the weapon that had been used to shoot Spence.
Donald Hawley eventually pled guilty to capital murder and testified at petitioner’s trial.
Hawley testified that petitioner had approached Spence in the parking lot of a grocery store in
Cabot. According to Hawley, he and petitioner arranged for Spence to give them a ride to a
liquor store and Spence drove them to two liquor stores and a convenience store. When Spence
went inside the convenience store, petitioner informed Hawley that he was going to ask Spence
to drive them to a friend’s house and instructed Hawley to act sick when petitioner prompted
him to do so. Petitioner then directed Spence to drive to a remote location whereupon
petitioner told Hawley to feign sickness. When Spence stopped the truck, petitioner and Hawley
got out of the truck on the passenger side. Spence also got out of the truck, and petitioner asked
Spence for assistance in getting Hawley back into the truck. Hawley then stepped around to the
rear of the truck, aimed a gun at Spence, and instructed Spence to lie on the ground and empty
his pockets. Hawley testified that petitioner said, “Well, shoot him,” and Hawley shot Spence
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in the head. As the two men carried Spence’s body away, petitioner stated that Spence was still
alive. According to Hawley, petitioner said that he did not want to see Spence suffer, and
petitioner fired a second shot into Spence’s head. After killing Spence, Hawley and petitioner
took Spence’s truck and left for Texas.
As his first ground for the writ, petitioner asserts that he has two pieces of new evidence.
The first is an undated letter from Hawley to petitioner’s family in which he admits to testifying
falsely that petitioner fired the second shot and explains that he only did so to avoid the death
penalty and to obtain a promise of favorable treatment by the prison authorities. The other new
evidence is a transcript of a pretrial discussion between Hawley and his attorney. In the
statement, Hawley said that he fired both shots and also states that, when he and petitioner got
to the spot where Spence’s body ultimately was found, petitioner told Spence to stop the truck
because Hawley was going to be sick. Hawley said in the statement that the feigned sickness was
planned ahead of time and that petitioner told him to shoot Spence after Spence got out of the
truck because Spence was a witness and could send them to prison. Petitioner contends that this
statement was never disclosed to the defense in violation of Brady v. Maryland, 373 U.S. 83
(1963).
With respect to the undated letter from Hawley to “Mrs. McArthur,” the letter does not
indicate that petitioner was not present when the shooting occurred or otherwise contradict
Hawley’s testimony concerning the plan to trick the victim into going with Hawley and
petitioner. Rather, it is essentially a recantation of Hawley’s testimony that petitioner fired one
of the shots into Spence’s head. As such, the letter is not a ground for granting a writ of error
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coram nobis. A claim of recanted testimony, 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 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 to Hawley’s statement to his attorney that petitioner alleges was withheld from the
defense, failure to disclose evidence favorable to the defense in violation of Brady, if established,
is cause to grant the writ. Pitts, 336 Ark. 580, 986 S.W.2d 407. 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.” 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; Buchanan v. State,
2010 Ark. 285 (per curiam).
Petitioner has not established a Brady violation with respect to Hawley’s statement. First,
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he offers no substantiation for the claim that the prosecution was aware of the statement and
concealed it from the defense. Secondly, even if the prosecution was aware of the statement,
it was not favorable to the defense to the degree that petitioner has demonstrated that the
outcome of the trial would have been different had the defense had the statement at trial. The
law in Arkansas makes no distinction between the criminal liability of a principal and an
accomplice. Ark. Code Ann. § 5-2-402(2) (Repl. 2006). We have held that under the accomplice-
liability statute, a defendant may properly be found guilty not only of his own conduct but also
of the conduct of his accomplice. Winters v. State, 2013 Ark. 193, 427 S.W.3d 597 (citing Purifoy
v. State, 307 Ark. 482, 822 S.W.2d 374 (1991)). When two or more persons assist one another
in the commission of a crime, each is an accomplice and criminally liable for the conduct of
both. Id. An admission by one does not exculpate the other. Branstetter v. State, 346 Ark. 62, 57
S.W.3d 105 (2001). It is the petitioner’s burden to show that the outcome of the proceeding
would have been different had the statement been provided to the defense, and the incriminating
material contained in it supports Hawley’s testimony about petitioner’s role in the crime with the
exception of who fired the second shot. Petitioner’s failure to show that the prosecution was
aware of the statement and his failure to establish that the outcome of the trial would have been
different had the statement been available to the defense defeat petitioner’s claim of a Brady
violation.
Petitioner further asserts that the State’s withholding of evidence that was exculpatory
and could have been used to impeach the State’s witnesses caused his counsel to be ineffective
and, further, that there were other instances in which counsel was ineffective that did not pertain
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to the allegedly withheld evidence. We do not find that petitioner has established that he was
prejudiced by the State’s withholding of any particular evidence. Moreover, allegations of
ineffective assistance of counsel are outside the purview of a coram-nobis proceeding. Mason
v. State, 2014 Ark. 288, ___ S.W.3d ___; Wright, 2014 Ark. 25 (citing State v. Tejeda-Acosta, 2013
Ark. 217, 427 S.W.3d 673); Watts v. State, 2013 Ark. 485 (per curiam). Such claims are properly
raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1. A petition for writ of error coram nobis is not a substitute for raising an issue
under Rule 37.1. Mason, 2014 Ark. 288, ___ S.W.3d ___; Travis v. State, 2014 Ark. 82 (per
curiam).
Petitioner next argues that the writ should issue because his conviction was based on
testimony known by the State to be false. The argument is largely based on petitioner’s claim
that Hawley fired both shots and that the State withheld Hawley’s statement admitting to having
done so, thus violating Brady. As stated, the allegation concerning Hawley’s statement does not
rise to a Brady violation. Petitioner has not shown that there was some fundamental flaw in the
proceeding against him that warrants granting the writ. See Evans v. State, 2012 Ark. 161 (per
curiam).
To the extent that the assertions concerning the allegedly false testimony could be
considered claims that the evidence was insufficient to sustain the judgment, issues concerning
the sufficiency of the evidence or the credibility of witnesses are not cognizable in coram-nobis
proceedings. Philyaw v. State, 2014 Ark. 130 (per curiam). Those issues are to be settled at trial,
and, when appropriate, on the record on direct appeal. Id.; Sims v. State, 2012 Ark. 458 (per
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curiam).
Finally, petitioner asks that counsel be appointed to represent him in his coram-nobis
proceeding. As we find no merit to the petition, the motion is denied.
Petition and motion denied.
Steven Laron McArthur, pro se petitioner.
Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for respondent.
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