dissenting. I respectfully dissent. The majority opinion inappropriately utilizes the ancient, extraordinary writ of error coram nobis to allow Gregory Larimore another trial in the stabbing death of June Larimore. First, the writ is inapplicable to the facts in this case, and, second, even if it were, the majority errs by adopting a new liberal standard in granting such writs by stating in “all future cases we will determine whether there is a reasonable probability that if the withheld exculpatory evidence had been known at the time of the entry of the judgment, the judgment would not have been rendered.”
A writ of error coram nobis is used to correct an alleged error of fact not appearing upon the record and is cognizable in the same court in which the cause was originally tried. Arkansas case law is well established that the writ is not used to contradict or put in issue any fact that has already been adjudicated in the action. See Howard v. State, 58 Ark. 229, 24 S.W. 8 (1893); Linton v. State, 72 Ark. 532, 81 S.W. 608 (1904); see also Woods, The Writ of Coram Nobis in Arkansas, 8 Ark. L. Bul. 15 (1940).
In Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997) (Larimore III), we returned this case to the circuit court to determine if a writ should be issued and a new trial granted. The Larimore III decision was decided based on Gregory Larimore having learned after the trial in Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994) (Larimore II), that one of the opinions of the State’s witnesses, Dr. Fahmy Malak, was that June’s time of death was between 6:00 and 7:00 a.m. Gregory Larimore testified he was at work at 6:45 a.m. the morning June was stabbed to death. Larimore claims if he had known of Malak’s 6:00 to 7:00 a.m. opinion, rather than the 1:00 to 2:00 a.m. opinion that Malak adhered to at trial, he could have undermined the State’s theory that June was killed at about 1:00 a.m., when Gregory was known to be in the house.
The problem with Larimore’s argument is that the time-of-death issue was otherwise litigated extensively in Larimore II — so much so that even the defense experts’ testimony supported the State’s case that Gregory Larimore was at home when June was killed. For example, defense medical expert, Dr. Frank Cleveland, testified that June Larimore’s death could have been four and one-half hours to six hours before the rectal temperature was taken from June’s body at 12:10 p.m. (the day of the murder), which would put her death between 6:10 a.m. and 7:40 a.m. Defense medical expert, Dr. 'Werner Spitz, also testified that June’s time of death was from four and one-half to five and one-half hours earlier, plus forty minutes for the struggle with her attacker, which would place June’s death between 6:00 a.m. and 8:10 a.m. Both Cleveland and Spitz strongly disagreed with Dr. Malak’s opinion that June’s death occurred between 1:00 and 2:00 a.m.
At trial, the prosecuting attorney argued that Drs. Cleveland’s and Spitz’s opinions offered a time of death that allowed the jury to find Gregory Larimore was in the house and not at work when June was murdered. It is significant to keep in mind that, while June’s time of death was placed at times when Gregory Larimore was at home, the struggle and stabbings took place about forty minutes earlier because it took that much time for her to die. The prosecutor argued to the jurors that, if they found June’s death occurred between the times given by the experts — 12:00 a.m. and 6:00 a.m. or 6:40 a.m., Gregory Larimore was the person who killed June. In short, the jury did not have to rely on Dr. Malak’s testimony concerning June’s time of death when it had the defense experts’ opinions to rely on.
It is also significant that Larimore’s counsel vigorously cross examined Dr. Malak about his report, which reflected it had been altered and whited out. Their questioning was directed toward showing Malak was being less than honest in giving his 1:00 a.m. to 2:00 a.m. opinion when Malak had given an earlier opinion that June’s death occurred between 6:00 and 7:00 a.m. Larimore suggests that, given another chance, he could better cross examine Dr. Malak regarding Malak’s different opinions given on the time-of-death issue. However, that issue was addressed repeatedly at the Larimore II trial, and the jury had been made well aware of the shortcomings in Malak’s testimony. In addition, considering the defense medical testimony alone, it justifiably was able to conclude that Gregory Larimore was in the house when June died.
It is also important to look at the other evidence that shows Gregory Larimore’s guilt, in addition to his presence in the home when June was murdered. In this respect, this court has held that a defendant’s false or improbable explanation of suspicious circumstances may be admissible as proof of guilt. Stewart v. State, 338 Ark.608, 999 S.W.2d 684 (1999); Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994). Stated in different terms, the court has held that a jury may infer a defendant’s guilt from improbable explanations of incriminating conduct. Byrd v. State, 337 Ark. 413, 992S.W.2d 759 (1999).
Here, Gregory Larimore gave three different stories, concerning what he did the night before and the morning ofjune’s murder. One, he told an officer he fell asleep on the couch the night before, woke up at 6:00 a.m., and went to work at 6:30 a.m. Two, he explained that he awoke around 3:00 a.m. and got in bed with June, where he slept until 6:00 a.m. Three, he woke up at 3:00 a.m., but decided not to get in bed with June. The testimony showed that June was initially stabbed in her bed and dragged from the bed to the floor. The perpetrator cleaned the knife used in the stabbings, returned it to the butcher block in the kitchen, and then wiped and cleaned the bathroom. The State’s theory was that Gregory Larimore cleaned his fingerprints from the knife, proceeded to wash himself in the bathroom, cleaned the bathroom, and then went to work.
Also inconsistent with Gregory Larimore’s story that he fell asleep on his couch and had not left the house that night or morning was the testimony of a neighbor, Donna Banks, that she heard a loud noise at about 11:00 to 11:30 p.m. the night before June’s death. Banks looked out her window and saw the Larimore’s porch light come on and go off, but the carport light remained on. She averred that Gregory Larimore’s truck was not there. The State submits Larimore lied about his whereabouts during the late hours of the night, and a person could reasonably infer that his absence was reason enough to show a quarrel had arisen between him and June. Furthermore, the State urged at trial that a reasonable inference could be drawn that the viciousness of the stabbing attack on June was committed out of passion, and not by a person merely seeking to burglarize the home or to commit a theft. Moreover, there was no evidence that rape or a sexual crime was a motive in the killing.
Also consistent with the State’s theory was testimony given by another neighbor, Daniel Mann, who said he heard a disturbance at the Larimore’s house between 2:00 to 4:30 a.m. when the Larimore’s dog was barking. Again, the State’s case was that something was going on in the Larimore household other than Gregory Larimore being fast asleep on the couch or on June’s bed.
Finally, Gregory Larimore’s odd reaction to learning about June is a common-sense factor the jury considered. For instance, when Gregory Larimore’s sister-in-law called him at work and told him to come home immediately because June was hurt, he first called his mother. And when he got home and was told that his wife was dead, he never asked what happened, even though police cars were all around the place.
Because strong circumstantial evidence exists to show that no one other than Gregory Larimore could have or would have committed June’s murder, the jury’s decision in finding him guilty was a proper one. Moreover, Gregory Larimore has not shown that a new trial would do anything but put into issue any facts that have not already been adjudicated. The only real reason on which Larimore seeks a writ calling for a new trial is to question Dr. Malak’s credibility and opinion testimony, and Larimore’s counsel thoroughly did that in Larimore II. At the same time, Larimore’s own medical experts’ testimony reasonably showed that Larimore was at home when June was murdered, making him the murderer.
The majority opinion also errs by adopting an entirely new standard of review in writ of error coram nobis cases. The opinion holds that, in our review of the granting of such writs — in this case and in future cases — “we will determine whether there is a reasonable probability that if the withheld exculpatory evidence had been known at the time of the entry of the judgment, the judgment would not have been rendered.”
First, the majority court ignores the law of the case. This court in Larimore III established that the trial court should follow Arkansas’s long-settled law when considering whether to grant a writ and instructed the circuit judge to follow the guidelines set forth in Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975), which provide in relevant part as follows:
The function of the writ of error coram nobis is to secure relief horn a judgment rendered while there existed some fact which 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. (Emphasis added.)
In Larimore III, the court, citing from Thompson v. State, 18 So. 2d 788 (Fla. 1944), further stated that “before a writ of error coram nobis may issue it must appear that the facts alleged as grounds for its issuance are such as would have precluded the entry of a judgment had they been available at the trial; not that such facts might have produced a different result had they been known to judge and jury.” (Emphasis added.) The majority court commits fundamental error in this case by failing to follow the standard of review set out in Troglin and Larimore III. In sum, the most that a new trial of this case might produce is a different result. Such a possibility falls short of the proof needed to grant a writ under Troglin and Larimore III.
In conclusion, it is my view that, even if I could agree with the majority court’s decision to adopt the broad and more liberal rule of “reasonable probability,’’(which I cannot) the facts here do not permit a new trial. To the contrary, the evidence reflects the reasonable probability that the conviction judgment entered against Gregory Larimore would again be entered, even though Larimore would have an additional statement with which to impeach Dr. Malak’s earlier testimony. Larimore’s counsel thoroughly impeached Malak’s opinion testimony in Larimore II, and questioned his honesty and integrity in altering his autopsy report. Once again, the jury had ample medical testimony from the defense’s medical experts which the prosecutor argued to the jury and which the jury undoubtedly relied on when it decided June’s time of death.
For the reasons above, I believe the trial court erred in granting a new trial.
Smith, J., joins this dissent.