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SUPREME COURT OF ARKANSAS.
No. CR-03-944
Opinion Delivered November 3, 2016
MARCUS D. EVANS
PETITIONER
PRO SE PETITION TO REINVEST
V. JURISDICTION IN THE TRIAL
COURT TO CONSIDER A
STATE OF ARKANSAS PETITION FOR WRIT OF ERROR
RESPONDENT CORAM NOBIS AND MOTION TO
SHOW CAUSE FOR SUBPOENA OF
MATERIAL EVIDENCE
[CHICOT COUNTY CIRCUIT
COURT, NO. 09CR-02-178]
PETITION AND MOTION DENIED.
PER CURIAM
In 2003, in a bifurcated proceeding, a jury found petitioner Marcus D. Evans guilty
of aggravated robbery, theft of property, and being a felon in possession of a firearm. He
was sentenced as a habitual offender to an aggregate sentence of 300 months’ imprisonment
and ordered to pay $14,000 in restitution. The Arkansas Court of Appeals affirmed. Evans
v. State, No. CR-03-944 (Ark. App. Apr. 14, 2004) (unpublished) (original docket no.
CACR 03-944).
On August 16, 2016, Evans filed the pro se petition that is now before us in which
he seeks reinvestment of jurisdiction in the trial court to consider a petition for writ of error
coram nobis in the case. He subsequently filed a pro se motion to subpoena evidence to
support his claim that he was misidentified as the perpetrator of the offenses. We find no
ground stated that warrants issuance of the writ and deny the petition and the motion.
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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 v. State, 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.
The writ is allowed only under compelling circumstances to achieve justice and to
address errors of the most fundamental nature. Id. 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 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, 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. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374,
376.
The victim, Charles Savage, Jr., testified at Evans’s trial that on April 2, 2002, he
stopped his SUV at a stop sign, and Evans entered the vehicle and put a gun to Savage’s
head. After having Savage drive down the street, Evans ordered him to stop and get out of
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the vehicle. Evans searched the SUV while holding the gun on Savage, and he told Savage
that if he moved, he would kill him. When Evans began to drive off in the vehicle, Savage
ran after him, and Evans fired two shots at him, causing Savage to jump into a ditch.
According to Savage, the entire episode lasted close to an hour. A police officer testified
that the SUV was later recovered and had been burned.
Evans argued on direct appeal that the convictions for theft of property and
aggravated robbery should be reversed because Savage was not a credible witness and there
was no corroboration of his testimony. The court of appeals held that credibility was a
question for the fact-finder and that the evidence presented by Savage, who identified Evans
at trial as the perpetrator, was sufficient, in and of itself, to sustain the judgment.
Evans now contends that the State and the police concealed evidence that several
witnesses had given “suspect identification” of him to the police and that Savage did not, in
fact, identify Evans as the assailant as was falsely reported before his trial and as was testified
to by the police at trial. Evans asserts that the concealment of the witnesses, none of whom
are specifically identified, prevented him from questioning the witnesses at trial about the
accuracy of the victim’s identification and from subpoenaing the witnesses who could have
cast doubt on his guilt. He alleges that the State’s conduct constituted a violation of Brady
v. Maryland, 373 U.S. 83 (1963), which is a ground for the writ.
A Brady violation is established when material evidence favorable to the defense is
wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler
v. Greene, 527 U.S. 263 (1999), the Supreme Court revisited Brady and declared that when
the petitioner contends that material evidence was not disclosed to the defense, the
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petitioner must show that “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Strickler,
527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). To determine
whether the proposed attack on the judgment is meritorious so as to warrant the granting
of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis,
this court looks to the reasonableness of the allegations in the petition and to the existence
of the probability of the truth to those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662. The
mere fact, however, that a petitioner alleges a Brady violation is not sufficient to provide a
basis for error-coram-nobis relief. Camp v. State, 2010 Ark. 226, 364 S.W.3d 7 (per curiam).
The petitioner must show that the evidence alleged to have been withheld was both material
and prejudicial and of such significance that it would have prevented rendition of the
judgment had it been known at the time of trial. Id. It is a petitioner’s burden to show that
the writ is warranted. Scott v. State, 2009 Ark. 437 (per curiam). This court will grant
permission for a petitioner to proceed with a petition for writ of error coram nobis only
when it appears that the proposed attack on the judgment is meritorious. Hogue v. State,
2011 Ark. 496 (per curiam). We are not required to accept the allegations in a petition for
writ of error coram nobis at face value. Charland v. State, 2013 Ark. 452 (per curiam).
Evans has not established a Brady violation; nor has he stated a ground within any of
the other categories under which a writ of error coram nobis is proper. As stated, 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
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rendition of the judgment. The petitioner has the burden of demonstrating a fundamental
error of fact extrinsic to the record. Evans’s allegations that the State concealed evidence
are conclusory in nature. He offers no factual substantiation that any specific, particular
evidence was hidden from the defense at the time of trial. Rather, his claims seem to be
based on his belief that the victim was not credible and that there might have been other
persons who could have bolstered his defense that he was actually innocent of the offenses.
Such conclusory claims concerning evidence omitted from the record are deficient as a basis
for coram-nobis relief and do not establish that there is a reasonable probability that the
outcome of the proceeding would have been different if the State had disclosed any
particular evidence to the defense. For that reason, Evans has not stated a ground for the
writ. See Strickler, 527 U.S. at 280; see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227.
A coram-nobis proceeding is not a means to contradict any fact already adjudicated in the
trial court. See Stenhouse v. State, 2016 Ark. 295, at 4 (per curiam).
Evans devotes much of his petition to arguments concerning the physical description
of the perpetrator, i.e., whether the man had dreadlocks or “low curl” hair, and his “street
name.” He points to contradictory trial testimony about the physical description and the
street name and alleges that the contradictions indicate deception by the State. Evans argues
at length that his actual description did not match the description originally provided by
Savage to the police after the robbery. Evans contends that police officers were untruthful
about the description and that the State falsified police reports to deceive the defense. Again,
Evans provides no proof that the State falsified records or suborned perjury or otherwise
acted to hide information from the defense concerning the issues.
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In a related claim, Evans further alleges that the State withheld the names of the
persons who provided his name to the State as a suspect in the investigation. As support of
the claim, Evans asserts that the State informed the court at a November 3, 2002 probation-
revocation hearing pertaining to prior convictions for other offenses that there was a police
officer who had identified witnesses who could name Evans as “the suspect’s match,” but
that the police officer, in contradiction, testified at Evans’s trial in 2003 that it was Savage
who had identified Evans as the assailant. It is clear from Evans’s own allegation that Evans
was aware in 2002 that there were persons who had identified him as a suspect or as the
perpetrator, or may have offered information about him during the police investigation,
indicating that those potential witnesses were not hidden from the defense prior to the 2003
trial. Further, his allegations do not establish that there was evidence withheld that meets
the threshold requirements of a Brady violation that was both material and prejudicial such
as to have prevented rendition of the judgment had it been known at the time of trial. See
Johnson v. State, 2015 Ark. 170, at 5, 460 S.W.3d 790, 794 (per curiam).
With respect to Evans’s allegations that witnesses at trial gave false testimony and
withheld exculpatory evidence when they testified and that the State was aware of the
witnesses’ conduct, he has again provided no proof that the State knowingly utilized false
testimony. Furthermore, we have held that a petitioner’s allegation that a witness gave false
testimony at trial does not give rise to a showing of fundamental error that requires issuance
of the writ. Pinder v. State, 2015 Ark. 423, at 4, 474 S.W.3d 490, 493 (per curiam).
To the extent that the allegations could be considered claims that the evidence was
insufficient to sustain the judgment, issues concerning the sufficiency of the evidence or the
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credibility of witnesses are issues to be addressed at trial, and, when appropriate, on the
record on direct appeal. McArthur v. State, 2014 Ark. 367, at 7, 439 S.W.3d 681, 686 (per
curiam). The issues are not a basis for coram-nobis relief. Philyaw v. State, 2014 Ark. 130
(per curiam).
Petition and motion denied.
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