Tolston v. State

• Court: Arkansas Supreme Court
• Writing for the Court: KAREN R. BAKER, Associate Justice
• Citation: Tolston v. State, 2020 Ark. 14, 592 S.W.3d 626 (Ark. 2020)
• Decision Date: 16 January 2020
• Docket Number: No. CR-02-447,CR-02-447
• Parties: Roy TOLSTON, Petitioner v. STATE of Arkansas, Respondent

2020 Ark. 14

592 S.W.3d 626

Roy TOLSTON, Petitioner

v.STATE of Arkansas, Respondent

No. CR-02-447

Supreme Court of Arkansas.

Opinion Delivered January 16, 2020

Roy L. Tolston, pro se petitioner.

Leslie Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't Att'y Gen., for respondent.

KAREN R. BAKER, Associate Justice

Petitioner Roy Tolston brings this petition to reinvest jurisdiction in the trial court to file a petition for writ of error coram nobis and audita querela¹ in his criminal case. In the petition, Tolston contends that the trial court erroneously failed to apply the criminal code section that was in effect at the time the crime was committed and that the prosecutor violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding a medical report pertaining to an examination of the victim. Because we find that Tolston's claims do not establish a ground for the writ, the petition is denied.

I. Nature of the Writ

The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State , 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. The function of the writ 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 the judgment. Newman , 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771.

II. Grounds for the Writ

The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State , 336 Ark. 580, 986 S.W.2d 407 (1999). A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. The burden is on the petitioner in the application for coram nobis relief to make a full disclosure of specific facts relied upon and not to merely state conclusions as to the nature of such facts. McCullough v. State , 2017 Ark. 292, 528 S.W.3d 833.

III. Background

Tolston was convicted of rape in a bench trial and sentenced as a habitual offender to 480 months' imprisonment. The Arkansas Court of Appeals affirmed. Tolston v. State , CACR 02-447, 2003 WL 245454 (Ark. App. Feb. 5, 2003) (unpublished). In its opinion, the court of appeals set out the trial testimony of the victim, J.S., who testified that she lived in an apartment with another female, and that on the evening of January 14, 2001, her roommate's boyfriend and Tolston visited the apartment. Id. J.S. testified that soon after the two men arrived, she went to her bedroom to go to sleep, where she was awakened by Tolston, who had climbed in bed with her and began rubbing her back. Id. J.S. stated that after an initial confrontation with Tolston, she eventually returned to her bedroom and fell asleep. Id. J.S. testified that she woke up later to find that Tolston was naked and lying next to her. Id. According to J.S.'s testimony, her nightgown was pulled up to her chest, Tolston's hand was in her panties, and his fingers were inside her vagina. J.S. testified that she jumped up and told Tolston to leave. Id. She stated that she left the apartment shortly after the incident and reported what happened to the police. Id. Based on J.S.'s testimony, the court of appeals found that there was substantial evidence supporting the conviction. Id.

Tolston subsequently filed a timely petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2003), which was denied following a hearing. We affirmed the denial of Tolston's Rule 37.1 petition. Tolston v. State , CR 04-480, 2005 WL 1411894 (Ark. June 16, 2005) (unpublished per curiam).

IV. Grounds for Relief

In his first claim for coram nobis relief, Tolston contends that the trial court erred by applying a definition of "physically helpless" that was not in effect when the offense was committed. Specifically, Tolston contends that the acts for which he was tried and convicted did not constitute rape under the law in effect in January 2001. The felony information that Tolston attached to his petition alleged that Tolston violated Arkansas Code Annotated section 5-14-103 (Repl. 1997) by unlawfully engaging in deviate sexual activity with J.S., who was incapable of consent because she was physically helpless. The definition of "physically helpless" in effect at the time of Tolston's offense is found in Arkansas Code Annotated section 5-14-101(5) (Repl. 1997), which states that a person is physically helpless when that person is unconscious or physically unable to communicate lack of consent. This definition was amended by the General Assembly in April 2001, to add that a person is also physically helpless when they are "rendered unaware the sexual act is occurring." Ark. Code Ann. § 5-14-101(5)(B) (Supp. 2001). Tolston argues that because the victim was merely asleep, she was not "physically helpless" as those terms were defined at the time of the offense.

On direct appeal, Tolston made the same allegation that he raises in this petition with respect to the application of an erroneous code provision. Tolston , CACR 02-447. Even though the court of appeals found that the issue had not been properly preserved, it noted that "there is nothing in the record to support Tolston's contention that the trial court did not apply the statute in effect at the time of his offense." Id. , slip op. at 1.² In any event, Tolston's assertion of trial error is not within the purview of a coram nobis proceeding. Martinez-Marmol v. State , 2018 Ark. 145, 544 S.W.3d 49.

In his second claim for coram nobis relief, Tolston raises a Brady claim, contending that the victim's medical record was withheld by the prosecutor. To establish a Brady violation, the petitioner must satisfy three elements: (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; (3) prejudice must have ensued. Henington v. State , 2018 Ark. 279, 556 S.W.3d 518. The mere fact that a petitioner alleges a Brady violation is not sufficient to provide a basis for error coram nobis relief. Davis v. State , 2019 Ark. 172, 574 S.W.3d 666. When determining whether a Brady violation has occurred, it must first be established by the petitioner that the material was available to the State prior to trial and that the defense did not have it. Jackson v. State , 2018 Ark. 227, 549 S.W.3d 356. When a petitioner alleges a Brady violation as the basis for his or her claim of relief in coram nobis proceedings, the facts alleged in the petition must establish that there was evidence withheld that was both material and prejudicial such as to have prevented rendition of the judgment had it been known at the time of trial. Martinez-Marmol , 2018 Ark. 145, 544 S.W.3d 49. 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. Id.

Tolston has not shown that the prosecutor withheld this evidence and has fallen short of meeting his burden of establishing that there is a reasonable probability that the judgment of conviction would not have been rendered or would have been prevented had the prosecutor not withheld specific exculpatory evidence from the defense. Id. According to Tolston, the prosecutor withheld a medical report generated by the hospital where the victim was examined shortly after she was raped. Tolston insists that the medical report contained material and exculpatory evidence in that it would have shown no physical evidence of rape. However, a transcript attached to Tolston's petition refutes his claim that evidence was withheld from the defense. The transcript of the testimony of Tolston's trial counsel given during the Rule 37.1 hearing demonstrates that Tolston's trial counsel was aware that the victim had been examined by an emergency-room physician and that the prosecutor had informed counsel that there was no corroborating physical evidence available from either the medical examination or the crime lab. Therefore, the existence of medical records that described the absence of corroborating physical evidence was known to defense counsel.

Moreover, even if the prosecutor had withheld this medical report, there is no showing that the outcome of the trial would have changed as a result. It is well established that the uncorroborated testimony of a rape victim is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. Walters v. State , 358 Ark. 439, 193 S.W.3d 257 (2004). Here, J.S.'s testimony satisfied the statutory elements under Arkansas Code Annotated section 5-14-103 in that she was physically helpless and unable to consent at the time of the rape.³ A medical examination that revealed no evidence of a sexual assault would not have changed the outcome of the trial.

Petition denied.

Hart, J., dissents.

Josephine Linker Hart, Justice, dissenting.

I dissent. Put simply, in a rape case where the evidence boils down to the victim's...