Pickens v. State, CR

• Decision Date: 04 February 1985
• Docket Number: No. CR,CR
• Citation: 683 S.W.2d 614,284 Ark. 506
• Parties: Edward Charles PICKENS, Petitioner, v. STATE of Arkansas, Respondent. 76-186.
• Court: Arkansas Supreme Court

Page 614

683 S.W.2d 614

284 Ark. 506

Edward Charles PICKENS, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 76-186.

Supreme Court of Arkansas.

Feb. 4, 1985.

Jeff Rosenzweig, Little Rock, for petitioner.

Steve Clark, Atty. Gen. by Michael E. Wheeler, and Marci Talbot, Asst. Attys. Gen., Little Rock, for respondent.

PER CURIAM.

Petitioner Edward Charles Pickens was found guilty of capital felony murder in 1976 and sentenced to death. We affirmed the conviction and sentence. Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978). We also denied petitioner's petition for postconviction relief. Pickens v. State, CR 76-186 (November 3, 1981).

Petitioner filed a petition for writ of habeas corpus in federal district court which was denied. Pickens v. Lockhart, 542 F.Supp. 585 (1982). On appeal, the Eighth Circuit Court of Appeals found ineffective assistance of counsel in the penalty phase and remanded to the district court with instructions to vacate the death sentence and either reduce the sentence to life without parole or conduct a new sentencing procedure. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir.1983). On the State's motion, we reinvested the Circuit Court of Prairie County with jurisdiction to resentence the petitioner.

After voir dire of the jury panel had begun, one of the State's witnesses at the original trial, Harold Goacher, informed the prosecutor that what he had said petitioner Pickens had done during the crime, Antonio Clark did, and what he said Clark did, petitioner had done. Petitioner moved for a hearing to place Mr. Goacher under oath to explore the matter but the trial court refused the request.

Petitioner has now filed a petition in this Court for writs of mandamus, certiorari and error coram nobis. We find no ground for granting any of the writs.

Petitioner seeks a writ of mandamus to compel the trial court to conduct a hearing on Mr. Goacher's testimony. Mandamus is an extraordinary writ issued to require an inferior court to act when it has improperly failed or declined to do so. It is never applied to control the discretion of a trial court, nor can it be used to correct an erroneous exercise of discretion. State ex rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969). If petitioner concludes that the resentencing procedure has been rendered unfair by the failure to hold a hearing, his remedy is on appeal, not a mandamus action.

Citing our recent holding in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), wherein we discussed error coram nobis as a remedy where there is newly discovered evidence, petitioner argues that he is entitled to an evidentiary hearing to determine if Goacher's pronouncements warrant the granting of a new trial. Penn, however, concerns evidence discovered between the time for filing a motion for new trial has expired and the time the case is affirmed on appeal. In petitioner's case, the guilt phase of his trial has been affirmed. The Eighth Circuit Court of Appeals ordered...