Larimore v. State

• Decision Date: 10 February 1997
• Docket Number: No. CR,CR
• Citation: 938 S.W.2d 818,327 Ark. 271
• Parties: Gregory R. LARIMORE, Appellant, v. STATE of Arkansas, Appellee. 96-219.
• Court: Arkansas Supreme Court

Page 818

938 S.W.2d 818

327 Ark. 271

Gregory R. LARIMORE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-219.

Supreme Court of Arkansas.

Feb. 10, 1997.

Daniel G. Ritchey, Blytheville, Kent J. Rubens, West Memphis, Bill W. Bristow, Jonesboro, for Appellant.

Winston Bryant, Attorney General, Olan W. Reeves, Senior Assistant Attorney General, Little Rock, for Appellee.

THORNTON, Justice.

Petitioner Gregory R. Larimore was convicted in 1990 of first-degree murder in the death of his wife, June Larimore. We reversed that conviction, and he was again convicted in 1993 upon retrial. We affirmed the second conviction, and the mandate was issued on June 29, 1994. On May 3, 1995, Larimore filed a petition for postconviction relief under Ark. R.Crim. P. 37. His Rule 37 petition was based on allegations of prosecutorial misconduct in failing to disclose exculpatory evidence to the defense. Following the State's motion to dismiss, he amended his petition and asserted that relief should alternatively be provided through a writ of error coram nobis. Based on stipulations entered into solely for the purpose of the motion to dismiss, the trial court dismissed the petition, stating it lacked jurisdiction because the petition was untimely filed. Larimore appeals the order of dismissal. We affirm in part, reverse in part, and grant leave to the Crittenden County Circuit Court for consideration of a writ of error coram nobis.

As this is the third time this case has come before us, a review of the facts is appropriate.

MATTERS FROM EARLIER PROCEEDINGS

Shortly before noon on January 11, 1990, the body of June Larimore was found on the bedroom floor of her Blytheville home. She had been stabbed 134 times with a knife that had been cleaned and replaced in a cutlery block in the kitchen. Her husband, petitioner Larimore, arrived at work before 7:00 a.m. According to him, his wife was alive and sleeping in bed when he left their home that morning between 6:30 and 6:45 a.m.

At the first trial, Larimore was convicted of the first degree murder of his wife and sentenced to life imprisonment. The State's case was structured on the theory that she was murdered between 2:00 and 4:00 a.m., and could not have been alive when Larimore left for work. In Larimore v. State (Larimore I), 309 Ark. 414, 833 S.W.2d 358 (1992), this court reversed and remanded because the jury was impermissibly allowed to take excluded evidence into the jury room for deliberation.

Upon retrial, Larimore was again convicted and sentenced to twenty-five years' imprisonment. This court affirmed the second conviction. Larimore v. State (Larimore II), 317 Ark. 111, 877 S.W.2d 570 (1994). Because all of the evidence was circumstantial, time of death was a crucial issue. Mrs. Larimore's body was found at the couple's home by her sister around 11:30 a.m. on January 11, 1990. It was undisputed that Larimore reported to work before 7:00 a.m., that there was no blood on him, and that his appearance was normal. Id. at 116, 877 S.W.2d at 572. Clearly if his wife's death occurred after 6:45 a.m., he could not have killed her. It was undisputed that he was home with her all night, and that no one else was there. If her death occurred before 6:45 a.m., a jury could conclude beyond a reasonable doubt that he was guilty.

Before the second trial commenced, the defense was provided the original report form prepared by an employee of the medical examiner's office on the day of the murder. It appeared that there had been a time of death of "7:00 a.m." entered on the report, but this notation had been whited out and the words "time unknown" written over the Appellant also argues that the original medical examiner's report was altered. The name of the victim on the original document was covered with "white out" and the name "Demetria" was changed to "Laura." The victim's full name was Demetria June Larimore. It also appears that there was once a time of death entered on the report, but someone wrote "time unknown" over white-out. These were factors to be considered by the jury in determining the credibility of Dr. Malak and his reports. Credibility is for a jury, not an appellate court, to determine.

white-out. Larimore cross-examined the state medical examiner, Dr. Fahmy Malak, about this document, and he testified that he had no knowledge about any alteration to the document. Dr. Malak testified that the time of death was between 1:00 a.m. and 2:00 a.m. Medical experts for Larimore testified that the time of death was between 7:00 a.m. and 8:00 a.m. In affirming Larimore's second conviction, we wrote:

Larimore II, 317 Ark. at 118, 877 S.W.2d at 573.

THE NEW EVIDENCE AND PROCEEDINGS

On December 29, 1994, Ralph Hill, Chief of Police of the Blytheville Police Department, was being deposed as a witness in a civil wrongful-death case brought by Mrs. Larimore's family. Chief Hill testified that Dr. Malak had expressed to him that one of his tentative opinions about the time of death was that it occurred between 6:00 and 7:00 a.m. on January 11, 1990.

On May 3, 1995, Larimore filed his petition for Rule 37 relief. This petition did not refer to a writ of error coram nobis, but asked the trial court to either declare the judgment void, or set aside the conviction and order a new trial. On May 22, the State filed a motion to dismiss, asserting that the petition was untimely, and that the trial court lacked jurisdiction to grant the relief requested. Larimore filed a response to the motion to dismiss, contending that if the trial court lacked jurisdiction to set aside a conviction under Rule 37, such an interpretation of the Rule would deny him due process, and that a writ of error coram nobis should issue.

For the purpose of the hearing on the State's motion to dismiss, the parties entered in to a "Stipulation of Undisputed Facts" which conceded that the State had knowledge of exculpatory evidence that it withheld from the defense. The trial court found that the stipulation established a violation of due process. Notwithstanding this finding, the motion to dismiss was granted because the petition was not timely filed. From that order comes this appeal.

THE ISSUES

Larimore lists seven assignments of error, but actually presents two issues: (1) whether the trial court erred in dismissing this claim as a Rule 37 petition for postconviction relief; and (2) whether the trial court erred in determining that a writ of error coram nobis is subject to the same time limits as a Rule 37 petition. We first consider the issues relating to Rule 37.

Rule 37 of the Arkansas Rules of Criminal Procedure provides the avenue for postconviction relief under circumstances set out in the Rule. Subsection (c) provides that petitions entered after the affirmance of an appeal must be filed within sixty days after the mandate was issued by the appellate court. Hamilton v. State, 323 Ark. 614, 615, 918 S.W.2d 113, 113 (1996) (examining Ark. R.Crim. P. 37.2(c)). In Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988), this court stated:

There is no constitutional right to a postconviction proceeding; but when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair.

Id. at 699, 751 S.W.2d at 339 (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). The court then found that Rule 37's requirement that the issue could not have been raised in the trial court or upon appeal was a "fundamentally fair" requirement that passed constitutional muster. Id.

Larimore argues at length that this sixty-day filing requirement is an unconstitutional deprivation of due process; however, he provides no citation of authority that would indicate that the sixty-day deadline is fundamentally unfair. We affirm the trial court's dismissal of the petition for relief under Rule 37 as untimely.

We next consider whether a writ of error coram nobis is subject to the same time limits as a Rule 37 petition. In Williams v. State, 289 Ark. 385, 711 S.W.2d 479 (1986), this court expressly held that "[e]rror coram nobis proceedings are not interchangeable with proceedings under Rule 37." Id. at 387, 711 S.W.2d at 481. In other words, a Rule 37 proceeding is for a mistake at trial while a writ of error coram nobis is appropriate when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown.

Both Larimore and the State confused the postconviction relief provided by Rule 37 with the completely distinct matters for which a party may obtain relief by a writ of error coram nobis. Larimore's revised petition was labelled as "a writ of error coram nobis, Rule 37, and a writ of habeas corpus." The trial court mistakenly adopted with approval the State's assertion: "Call the Petition what you like, a writ of error coram nobis, a writ of habeas corpus, or simply a petition, it still must comply with the limitation of Rule 37 and be filed within 60 days."

The time requirement for seeking a writ of error coram nobis is not limited to sixty days, but due diligence is required in making application for relief. Troglin v. State, 257 Ark. 644, 646, 519 S.W.2d 740, 741 (1975). See also John H. Haley, Comment, Coram Nobis and The Convicted Innocent, 9 Ark. L.Rev. 118 (1954-55). The Haley article, which we cited with approval in Penn v. State, 282 Ark. 571, 576, 670 S.W.2d 426, 429 (1984), noted that due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) he could not have, in the exercise of due diligence, presented the fact at trial; or (3) upon discovering the fact, did not delay bringing the petition. Haley, supra, at 125.

The trial court's error in applying a sixty-day time limit does not settle the question of whether a writ of error coram nobis is appropriate in this case. Where, as here, the record addressed by the writ is lodged in this court, we make the...