Burton v. State

• Decision Date: 30 January 2014
• Docket Number: No. CR-08-1019,CR-08-1019
• Citation: 2014 Ark. 44
• Parties: ROBERT BURTON PETITIONER v. STATE OF ARKANSAS RESPONDENT
• Court: Arkansas Supreme Court

2014 Ark. 44

ROBERT BURTON PETITIONER v. STATE OF ARKANSAS RESPONDENT

No. CR-08-1019

SUPREME COURT OF ARKANSAS

Opinion Delivered January 30, 2014

PRO SE PETITION TO REINVEST

JURISDICTION IN THE CIRCUIT

COURT TO CONSIDER A PETITION

FOR WRIT OF ERROR CORAM NOBIS

[GARLAND COUNTY CIRCUIT

COURT, NO. 26CR-07-144]

PETITION DENIED.

PER CURIAM

In 2008, a jury found petitioner Robert Burton guilty of aggravated robbery and burglary. According to the trial record, Tamara Herrera, her son Anthony Newell, and his girlfriend, Rachael Cummings, as well as several children, were asleep in their residence when petitioner, Michael Canady, and Mary Crow entered the home and stated that they needed all the money. The evidence at trial included the pretrial and in-court identification of petitioner by Cummings as well as the in-court identification of petitioner by Newell. Both Cummings and Newell testified that petitioner held a gun on the family while the woman (Crow) took $1000 from a pair of Newell's jeans. According to the trial record, Herrera identified Canady based on his voice, and she made a pretrial identification of Crow; however, Herrera testified that she did not see the third individual that was in the home. Petitioner was sentenced to serve a total of 360 months' imprisonment. In a motion for new trial, petitioner argued that he was entitled to a new trial based on newly discovered evidence consisting of (1) evidence of Herrera's attempt to extort money from Canady in exchange for the charges against him being dismissed; (2)testimony in the Canady trial that Herrera was unsure as to whether Canady was one of the participants in the charged crimes; and (3) a tape recording of Herrera in which she made admissions contrary to her testimony and statements to the Hot Springs Police Department. At the motion hearing, the trial court heard arguments of counsel with regard to the bases for the motion, and a copy of relevant portions of the trial transcript of the Canady trial was introduced. The partial trial transcript reflects that all the evidence referenced by petitioner in the motion was addressed or introduced in the Canady trial. In its order denying the motion for new trial, the trial court found that (1) the identification of petitioner as a perpetrator of the crime with which he was charged did not depend on the testimony of Herrera, and (2) the petitioner had not demonstrated that the testimony elicited in the Canady trial would have been admissible in his trial, and the court did not view it as admissible in this case. The Arkansas Court of Appeals affirmed the judgment-and-commitment order. Burton v. State, 2009 Ark. App. 328.

Subsequently, petitioner filed in the trial court a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The petition was denied, and we affirmed. Burton v. State, 2011 Ark. 351 (per curiam). Petitioner has now filed in this court a petition requesting that this court reinvest jurisdiction in the trial court in order that he may proceed with a petition for writ of error coram nobis. We deny the petition because petitioner fails to show that the claims he would raise in his proposed attack on the judgment are meritorious.

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 appealonly after we grant permission. Cromeans v. State, 2013 Ark. 273 (per curiam); Burks v. State, 2013 Ark. 188 (per curiam).

As grounds for the writ, petitioner, in an apparent claim of ineffective assistance of counsel, first contends that if trial counsel had conducted a pretrial investigation, he could have shown that the pretrial and in-court identifications of him were "grossly incorrect" as well as "fabricated" or "distorted." Petitioner next claims that a writ is warranted based on newly discovered evidence that questions the credibility of the State's witnesses, primarily Herrera. As in his motion for new trial, petitioner claims that the newly discovered evidence consists of evidence of attempted extortion of Canady by Herrera, testimony in the Canady trial that Herrera was unsure of her identification of Canady, and a tape recording of Herrera in which she contradicted her testimony and statements to the Hot Springs Police Department. Petitioner also argues that the recording of Herrera was withheld by the prosecuting attorney's office in violation of his constitutional rights, as recognized in Brady v. Maryland, 373 U.S. 83 (1963). Finally, petitioner contends that a writ is warranted because the initial investigation into his involvement in the charged crimes was a result of hearsay—Canady's mother telling Herrera that if Canady was involved in the crime, then petitioner was also involved—that questions the credibility of the State's witnesses.

Petitioner seems to urge this court to accept a new standard for determining when a writ of error coram nobis is warranted. We decline to do so. A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cromeans, 2013 Ark. 273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The writ is allowed only under compellingcircumstances 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 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. Cromeans, 2013 Ark. 273; 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...