Fudge v. State

• Decision Date: 21 May 2015
• Docket Number: No. CR–99–1102,CR–99–1102
• Citation: 463 S.W.3d 292,2015 Ark. 230
• Parties: James Charles Fudge, Petitioner v. State of Arkansas, Respondent
• Court: Arkansas Supreme Court

2015 Ark. 230

463 S.W.3d 292

James Charles Fudge, Petitioner

v.State of Arkansas, Respondent

No. CR–99–1102

Supreme Court of Arkansas.

Opinion Delivered May 21, 2015

Opinion

PER CURIAM

In 1999, James Charles Fudge was found guilty by a jury in the Pulaski County Circuit Court of capital murder and sentenced to death. We affirmed. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). In subsequent proceedings under Arkansas Rule of Criminal Procedure 37.5 (1999), the trial court granted Fudge a new sentencing hearing based upon trial counsel's failure to object to evidence that was presented as an aggravating circumstance. This court affirmed the order. State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005). On resentencing in 2006, Fudge was sentenced to life imprisonment without parole.

In 2010, Fudge filed a pro se petition asking that this court reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.¹ A petition to reinvest jurisdiction is necessary because a circuit court can entertain a petition for writ of error coram nobis only after this court grants permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam). This court will grant such permission only when it appears the proposed attack on the judgment is meritorious.

Echols v. State, 354 Ark. 414, 418, 125 S.W.3d 153, 156 (2003). In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Id.

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, 2013 WL 3179379 ; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Hooper v. State, 2015 Ark. 108, 458 S.W.3d 229 (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, 2013 WL 3179379 ; 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, 2012 WL 3366058 (per curiam); Cloird v. State, 2011 Ark. 303, 2011 WL 3135958 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541, 2011 WL 6275431 (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 ; Carter v. State, 2012 Ark. 186, 2012 WL 1435672 (per curiam); 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) ).

Fudge raised a number of allegations in the petition filed in 2010, including the claim that the State withheld exculpatory evidence from the defense, which, if proven, would have constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A Brady violation is established when evidence favorable to the defense is wrongfully withheld by the State. Such a violation is cause to grant the writ. Pitts, 336 Ark. 580, 986 S.W.2d 407. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (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, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (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, 119 S.Ct. 1936, 144 L.Ed.2d 286 ; Buchanan v. State, 2010 Ark. 285, 2010 WL 2210923 (per curiam). Fudge did not establish a Brady violation in the 2010 petition. Fudge v. State, 2010 Ark. 426, 2010 WL 4354240 (per curiam).

Now before us is Fudge's second petition to reinvest jurisdiction in the trial court in his case to consider a petition for writ of error coram nobis. He has also filed an amendment to the petition with exhibits.² He again claims that there was other evidence hidden by the State at trial in violation of Brady.

We first note that the allegation in the petition to reinvest jurisdiction in the trial court is itself entirely conclusory. There is no factual substantiation for the claim, and the evidence alleged to have been concealed is not stated. Fudge has, however, included with his petition for leave to proceed in the trial court the petition that he intends to file there if granted permission to do so. Even if that petition is considered in the interest of judicial economy as part of the petition before us,³ we find no ground to warrant the writ. See Slocum v. State, 2014 Ark. 398, 442 S.W.3d 858 (per curiam) (The petition to be filed in trial court, if leave were granted by this court to proceed with coram-nobis petition, was considered in determining whether cause for the writ had been established by the petitioner.)

The evidence alleged by Fudge to have been hidden by the State consisted of impeachment evidence. As with Fudge's first coram-nobis petition, the allegations raised are convoluted and extremely difficult to follow. Fudge goes into minute detail in the forty-seven page petition about his actions beginning December 24, 1997, and ending several days later after he admits to having buried his wife's body. He accuses several persons of giving “exaggerated, fabricated, mendacious” testimony concerning interaction with the victim at a time when the victim was already dead and raises questions about his interrogation by the police. He further asserts that his own attorney withheld exculpatory evidence concerning a sheriff s investigator's interview with a State's witness who admitted “getting tough in jail for lying in court, if caught lying.” He states that the witness's interview was taped, but his attorney refused to play the tape at a pretrial hearing or at trial. Fudge also asserts that his wife's uncles purchased “blood testimonies” of a boot-legger and that the sheriff s investigators used “about, around, and after terms” to influence the boot-legger in some manner. He further questions the credibility of a witness from the Arkansas State Crime Laboratory and that of a doctor whom petitioner accuses of testifying as though he had participated in the victim's autopsy when he had not. In a continuation of his myriad claims, Fudge asserts dozens of similar allegations that ostensibly show that evidence was hidden by the State. We need not enumerate all of the allegations, however, because none of the assertions is supported with facts sufficient to demonstrate a Brady violation.

Clearly, Fudge was aware of his own...