Mosley v. State, CR
| Decision Date | 14 May 1998 |
| Docket Number | No. CR,CR |
| Parties | Tommy Ray MOSLEY, Petitioner, v. STATE of Arkansas, Respondent. 95-872. |
| Court | Arkansas Supreme Court |
In 1995, Tommy Ray Mosley was found guilty of rape and sentenced as a habitual offender to life imprisonment. We affirmed. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996). Mosley subsequently filed in the trial court a petition pursuant to Criminal Procedure Rule 37 which was denied.
Mosley now petitions this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).
A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. 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). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged, Larimore, supra, citing United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954), and the petition must be brought in a timely manner. Penn, supra. Newly discovered evidence in itself is not a basis for relief under coram nobis. Larimore, supra; Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). A claim of newly discovered evidence must be addressed to the trial court in a motion for new trial made within the time in which a notice of appeal must be filed. See A.R.Cr.P. 33.3; Penn, supra.
Petitioner claims that jurisdiction should be reinvested in the trial court to consider an error coram nobis petition on the ground that the United States government failed to disclose that it possessed a videotape of him and the victim made by a satellite during the encounter which led to the rape charge. He states that he became aware of the undisclosed evidence during the trial of the Oklahoma City bombing defendant when such satellite technology was revealed to the public. While petitioner asserts that the entire surface of North America is on tape, he offers nothing to establish that a videotape exists of him and the victim. The allegation is unsubstantiated and merits no further discussion.
Petitioner also asserts that he has conducted research which reflects that "the threat of a life prison sentence for rape removes the potential deterrent effect of the threat of the death penalty to deter murder." He argues that if a writ of error coram nobis is not issued in his case, future rape victims will be subjected to an enhanced risk of being murdered....
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