Summers v. State

• Decision Date: 21 November 1978
• Docket Number: 8 Div. 124
• Parties: Oliver Paul SUMMERS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 336

366 So.2d 336

Oliver Paul SUMMERS v. STATE.

8 Div. 124.

Court of Criminal Appeals of Alabama.

Nov. 21, 1978.

Rehearing Denied Dec. 19, 1978.

Fred Blanton, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Ed Carnes, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

The appellant was convicted of robbery and sentenced to fifteen years' imprisonment. This Court affirmed his conviction on appeal and the Alabama Supreme Court denied certiorari without opinion. Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1976). A petition for writ of certiorari to the Alabama Court of Criminal Appeals was denied without opinion by the United States Supreme Court on February 21, 1978. 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773. Petition for rehearing was also denied. 435 U.S. 981, 98 S.Ct. 1633, 56 L.Ed.2d 75.

Having exhausted his procedures for direct appellate review, the appellant filed a petition for writ of error coram nobis before the trial court which issued the judgment of conviction. The petition, as amended, contains six grounds for setting aside the appellant's conviction and ordering a new trial: (A) The use of the perjured testimony of Elaine Campbell McClellan to secure the conviction; (B) the denial of a request for a continuance which denied the appellant the necessary time to complete his interrogatories to witnesses; and (C) also denied him adequate time to prepare his defense; (D) the prejudicial remarks made by the prosecutor in closing argument at trial; (E) the "calculated pattern of prosecutorial misconduct designed to engender bias and prejudice against the petitioner and to impede his right to defend himself" exemplified by the participation of the State in those matters contained in grounds (B), (C), and (D); and (F) ineffective assistance of counsel.

I

The thrust of the appellant's argument is that the "totality of all the proceedings" reveals that his trial was a "travesty of justice" and a denial of equal protection of the law.

While the writ of error coram nobis is available to a prisoner who claims "that his incarceration is due to failure to observe the fundamental fairness essential to every concept of justice, even after a sentence has been duly affirmed by the highest court of the state", Johnson v. Williams, 244 Ala. 391, 394, 13 So.2d 683, 686 (1943), our Supreme Court has "failed to adopt any general rule that the remedy of coram nobis automatically assimilates all rights imposed on state trials by the Fourteenth Amendment". Aaron v. State, 43 Ala.App. 450, 454, 192 So.2d 456, 460 (1966).

The function or office of the writ lies to correct a judgment rendered by the court upon errors of fact not appearing on the record and so important that if the Court had known of them at the trial it would not have rendered the judgment. Smith v. State, 245 Ala. 161, 16 So.2d 315 (1944); Brown v. State, 350 Ala. 444, 35 So.2d 518 (1948); Stephens v. State, 36 Ala.App. 57, 52 So.2d 169 (1951). ¹ The writ is concerned only with errors of fact. Ex parte Powell, 39 Ala.App. 423, 426, 102 So.2d 923 (1952). The error of fact must not be apparent on the record, Ex parte Banks, 42 Ala.App. 669, 672, 178 So.2d 98 (1965), and must have been unknown to the Court and to the defendant at the time of trial. Smith v. Hixon, 149 F.Supp. 283 (S.D.Ala.1957); Edwards v. State, 274 Ala. 569, 150 So.2d 710 (1963); Groce v. State, 48 Ala.App. 709, 267 So.2d 499 (1972). The error must be one which, if presented to the trial court, would have prevented conviction, rather than merely causing a different result. Ex parte Fuller, 40 Ala.App. 197, 198, 116 So.2d 395 (1959); Stephens, 36 Ala.App. at 58. In effect, the writ of error coram nobis serves as a motion for new trial on the ground of newly discovered evidence. Tillis v. State, 349 So.2d 95 (Ala.Cr.App.), cert. denied, 349 So.2d 100 (Ala.1977).

The writ of error coram nobis is not a substitute for other remedies such as an appeal, writ of error, certiorari, or motion for new trial. Redus v. Williams, 244 Ala. 459, 461, 13 So.2d 561 (1943); Groce, supra; Stephens, supra. The writ is not "the wild ass of the law which the courts cannot control." Anderson v. Buchanan, 292 Ky. 810, 823, 168 S.W.2d 48, 55 (1943). Our courts have stated that the writ does not serve as a substitute for an appeal, Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966), Thomas v. State, 280 Ala. 109, 190 So.2d 542 (1966), and is not "an omnium gatherum or catchall of accordion like remedies to solve (or salve) all the supposed wrongs of those once duly convicted", Arledge v. State, 57 Ala.App. 553, 555, 329 So.2d 613, 615, cert. denied, 295 Ala. 390, 329 So.2d 616 (1976), or an "omnium gatherum to right all post conviction discoveries or claims of error". Ex parte Banks, 42 Ala.App. at 672, 178 So.2d at 101. The writ does not serve the purpose of a "probable cause hearing". Seibert v. State, 343 So.2d 788 (Ala.1977), and is not available to retry indictments. Bush v. State, 50 Ala.App. 293, 278 So.2d 741 (1973); Creel v. State, 53 Ala.App. 226, 298 So.2d 647 (1974).

"Coram nobis is not a plenipotentiary mission to retry indictments: it is a carefully guarded engine to root out egregious fraud or or collusion leading to a judgment. Willis v. State, 42 Ala.App. 85, 152 So.2d 883; Duncan v. State, 42 Ala.App. 111, 154 So.2d 302."

Horsley v. State, 42 Ala.App. 567, 569, 172 So.2d 56, 59 (1965).

Coram nobis does not lie when other remedies are available. A petition for the writ will be dismissed if filed within the time for filing notice of appeal, or if the petitioner can bring a writ of error, motion for new trial, or writ of certiorari. Vincent v. State, 284 Ala. 242, 244 So.2d 601 (1969); Ex parte Gammon, 255 Ala. 502, 52 So.2d 369 (1951); Daniels v. State, 48 Ala.App. 750, 267 So.2d 540 (1972). A petition for writ of error coram nobis will not be granted and is premature if filed while an appeal is pending. Davis v. State, 257 Ala. 520, 60 So.2d 64 (1952); Brown v. State, 250 Ala. 444, 35 So.2d 518 (1948); Lovell v. State, 344 So.2d 826 (Ala.Cr.App.1977).

II

The State's motion to strike grounds (B), (C), (D), and portions of (E) was properly granted.

Grounds (B) and (C) concerning the trial court's refusal to grant a continuance were properly stricken because the issues were fully considered by this Court on direct appeal from the judgment of conviction. Summers,348 So.2d 1135. Coram nobis does not serve the function of an appeal or a delayed appeal. Brown, supra; Mayola v. State, 344 So.2d 818, 822 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977). Petitions for writs of error coram nobis are properly denied where the matters attempted to be raised were fully reviewed on appeal from the judgment of conviction. Ex parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486, cert. denied, 377 U.S. 919, 84 S.Ct. 1185, 12 L.Ed.2d 188 (1964); Impson v. State, 339 So.2d 1098 (Ala.Cr.App.1976). Moreover, the refusal of a motion for a continuance cannot be made the basis for a writ of error coram nobis as the remedy is by a motion for new trial on that ground, the denial of which is reviewable by appeal. Anderson v. State, 41 Ala.App. 620, 621, 147 So.2d 862 (1962); Ex parte Argo, 41 Ala.App. 442, 137 So.2d 755, cert. dismissed, 273 Ala. 201, 137 So.2d 757, cert. denied, 369 U.S. 862, 82 S.Ct. 952, 8 L.Ed.2d 20 (1962).

Ground (D) involving the closing argument of the prosecutor was properly stricken because it was known to the appellant and could have been raised at trial and on direct appeal. We note that three other objectionable portions of the prosecutor's argument were considered in the opinion of this Court affirming the conviction. Summers, 348 So.2d at 1135. Since the facts were known by the appellant and objected to at trial, but not presented as an issue on appeal, they cannot sustain a proceeding for coram nobis relief. The writ is appropriate only when the petitioner's claim is based on facts which were not known and could not have been discovered with the exercise of reasonable diligence at the time of trial. Senn v. State, 43 Ala.App. 323, 189 So.2d 870 (1966); Thornburg v. State, 42 Ala.App. 70, 152 So.2d 442 (1963). "Facts known to the accused debar him from seeking coram nobis." Arledge v. State, 57 Ala.App. 553, 555, 329 So.2d 613, 615, cert. denied, 295 Ala. 390, 329 So.2d 616 (1976). If the petitioner could reasonably have discovered the information in time to prevent the original conviction the remedy of coram nobis is not available. Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964); Isom v. State, 44 Ala.App. 6, 200 So.2d 506 (1966), reversed on other grounds, 281 Ala. 189, 200 So.2d 511 (1967). The writ will not lie where a remedy against the error complained of, though available, was deliberately or negligently not used at the trial that resulted in the judgment of conviction. In such cases the petitioner is generally held to have waived his right to contest the judgment. Johnson v. Williams, 244 Ala. at 395, 13 So.2d 683; Redus v. Williams, 244 Ala. at 459, 13 So.2d 561; Ex parte Taylor, 249 Ala. 667, 670, 32 So.2d 659 (1947).

At trial the appellant's objection to the prosecutor's remark was sustained by the trial judge who then, upon request, instructed the jury to disregard the matter. The appellant requested no further action from the trial court and, having no adverse ruling, has no cause to complain. Mandell v. State, 21 Ala.App. 404, 108 So. 635 (1926); Adkins v. State, 265 Ala. 666, 93 So.2d 522 (1957).

Those portions of ground (E) alleging prosecutorial misconduct as shown in grounds (B), (C), and (D) were properly stricken from consideration for the same reasons grounds (B), (C), and (D) were.

III

Challenges based on the inadequacy of counsel constitute grounds for coram nobis, Browning v. State, 57 Ala.App. 217, 326 So.2d 778 (1975), cert. denied, 295 Ala. 392, 326 So.2d 783 (1976), despite...