State v Larimore

Decision Date25 May 2000
Docket Number99-618
Citation17 S.W.3d 87
PartiesSTATE of Arkansas v. Gregory LARIMORE CR 99-618 ___ S.W.3d ___ Opinion delivered
CourtArkansas Supreme Court

Appeal from Crittenden Circuit Court; Samuel Turner, Judge; affirmed.

1. Constitutional law -- due process -- duty to disclose evidence favorable to accused. -- The Supreme Court, in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution"; the duty to disclose such evidence is applicable even though there has been no request by the accused, and the duty encompasses impeachment evidence as well as exculpatory evidence; such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; moreover, the rule encompasses evidence "known only to police investigators and not to the prosecutor"; therefore, in order to comply with Brady, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police."

2. Constitutional law -- Brady violation -- elements of. -- The three elements of a true Brady violation include:(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

3. Constitutional law -- Brady violation -- first element present. -- The evidence concealed was favorable to appellee both because it was exculpatory and because it was impeaching, specifically, if the withheld evidence had been known to appellee his alibi would have been supported by the State's expert witness and his testimony as to the time of death would have been contradicted; moreover, the evidence could have been used to impeach the state medical examiner and two police officers, and appellee's theory that the police were targeting him as the perpetrator of the crime without properly investigating the murder would have been bolstered.

4. Criminal procedure -- information imputed to prosecution. -- Information held by the police is imputed to the prosecution

5. Constitutional law -- Brady violation -- second element present. -- Where the evidence withheld was known by the police department since the year of appellant's first conviction, only after two trials was it provided to appellee, and at trial, the judge had issued a discovery order requiring the State to provide appellee with all evidence relevant to the victim's time of death, the exculpatory evidence was willfully suppressed by the State.

6. Constitutional law -- Brady violation -- third element present. -- Appellee was prejudiced by the withheld exculpatory evidence where the suppressed evidence would have shown that the medical examiner's opinion as to the time of death, which had at one time supported appellee's alibi, had been influenced and changed to assist the police and that this was not known by the trial court at the time of trial; the trial court's finding that "if said evidence had been disclosed to the defendant, there is a reasonable probability that the results of the proceedings would have been different" was not erroneous.

7. Constitutional law -- Brady violation occurred -- trial court correct. -- Because the suppression of the evidence by the State met the elements required to exist for a true Brady violation, and because the evidence was material to the outcome of the trial, the trial court correctly found that a Brady violation had occurred.

8. Criminal procedure -- writ of error coram nobis -- when allowed. -- A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval; literally, coram nobis means our court, in our presence, before us; the essence of the writ of error coram nobis is that it is addressed to the very court that renders the judgment where injustice is alleged to have been done, rather than to an appellate or other court; the writ is allowed only under compelling circumstances to achieve justice; a writ of error coram nobis is available to address certain errors of the most fundamental nature 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.

9. Criminal procedure -- writ of error coram nobis -- standard of review. -- The trial court has discretion to grant or deny a petition for a writ of error coram nobis; the petitioner seeking the writ has a heavy burden to meet; on review the supreme court determines whether the lower court abused its discretion in granting the writ and a new trial.

10. Criminal procedure -- writ of error coram nobis -- guidelines for granting. -- The following are guidelines for trial courts to consider when determining whether to grant a writ of error coram nobis:(1) the function of the writ of coram nobis 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 trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;(2) coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid; the court is not required to accept at face value the allegations of the petition;(3) due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and (4) the mere naked allegation that a constitutional right has been invaded will not suffice; the application should make a full disclosure of specific facts relied upon and not merely state conclusions as to the nature of such facts; if it has merit, by all means a writ of error coram nobis should be granted; if the petitioner fails in his burden of proof, then at least a hearing will have resulted.

11. Criminal procedure -- writ of error coram nobis -- standard for determining whether petition should have been granted. -- In the supreme court's review of the granting of a petition for a writ of error coram nobis the court will determine whether there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial.

12. Criminal procedure -- writ of error coram nobis granted -- no abuse of discretion found. -- Where the exculpatory evidence, which had been concealed by the State and was unknown to appellee through no fault or negligence of his own, supported appellee's alibi and contradicted the State's only expert witness, and because the case involved material exculpatory evidence withheld by the prosecutor, a situation that has previously been identified as worthy of error coram nobis relief, and because there was a reasonable probability that the judgment would not have been rendered if the withheld evidence had been known at the time of entry of the judgment, the trial court did not abuse its discretion in granting appellee's petition for a writ of error coram nobis and ordering a new trial; the trial court's order was affirmed.

Mark Pryor, Att'y Gen., by: David R. Raupp, Ass't Att'y Gen., for appellant.

Daniel G. Ritchey; Bill W. Bristoe; and Kent J. Rubens, for appellee.

Ray Thornton, Justice.

Appellee, Gregory Larimore, was convicted of the first-degree murder of June Larimore, his wife, in 1990 and sentenced to life imprisonment. On May 26, 1992, we reversed the conviction and remanded the case for a new trial because the jury was impermissibly allowed to take excluded evidence into the jury room for deliberation. Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). After retrial in 1993, appellee was again convicted and sentenced to twenty-five years' imprisonment. On May 23, 1994, we affirmed the second conviction. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Appellant then filed a petition for post-conviction relief under Ark. R. Crim. P. 37, based on allegations of prosecutorial misconduct in failing to disclose exculpatory evidence to the defense. The State moved to dismiss, and appellee amended his petition to assert, in the alternative, that he was entitled to relief through a writ of error coram nobis. The trial court dismissed the motion, and appellee appealed to this court from that order of dismissal. On February 10, 1997, we affirmed the motion to dismiss the Rule 37 petition, but determined that the time limits of a Rule 37 petition are not applicable to a writ of error coram nobis and granted leave to the circuit court to determine whether a writ of error coram nobis should be issued. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997); see also, Larimore v. State, 339 Ark. 167, 3 S.W.3d 680 (1999). On March 25, 1999, the Crittenden County Circuit Court granted appellee's writ of error coram nobis. The writ set aside appellee's 1993 conviction and ordered a new trial. It is from that order that the State brings this appeal. Because we find no reversible error, we affirm the trial court.

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 in the face, torso, arms, hands, and legs 134 times, apparently with a knife that had been wiped clean and replaced in a cutlery block in the kitchen. The body was nude except for panties rolled down around the hips in a manner which would be consistent with dragging the body by the hands from the bed to the floor. There was a deep stab wound in the pelvic area, but no...

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