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SUPREME COURT OF ARKANSAS.
No. CR-14-1088
FRED L. WILLIAMS Opinion Delivered April 20, 2017
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
[DREW COUNTY CIRCUIT
COURT, NO. 22CR-13-43]
PETITION DENIED.
PER CURIAM
In 2014, petitioner Fred L. Williams was found guilty of murder in the first degree
and abuse of a corpse for which an aggregate sentence of life imprisonment was imposed.
Williams was sentenced as a habitual offender. We affirmed. Williams v. State, 2015 Ark.
316, 468 S.W.3d 776, reh’g denied (Oct. 29, 2015).
Now before us is Williams’s pro se petition to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram nobis in the case. 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
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conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v.
State, 2013 Ark. 56, 425 S.W.3d 771.
The function of the writ is to secure relief from a judgment rendered while there
existed some fact that would have prevented its rendition had it 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,
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.
As grounds for the writ, Williams asserts that the State suppressed exculpatory
evidence. The wrongful withholding of material exculpatory evidence from the defense is
a violation of Brady v. Maryland, 373 U.S. 83 (1963), and a ground for granting the writ.
Hooper v. State, 2015 Ark. 108, 458 S.W.3d 229 (per curiam). The United States Supreme
Court held in Brady 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.” Brady, 373 U.S.
at 87. In Strickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady and declared
that evidence is material “if there is a reasonable probability that, had the evidence been
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disclosed to the defense, the result of the proceeding would have been different.” 527 U.S.
at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). There are three elements
of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because
it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by
the State, either willfully or inadvertently; (3) prejudice must have ensued. Strickler, 527
U.S. 263; Watts v. State, 2013 Ark. 485 (per curiam).
To assess Williams’s assertion of a Brady violation, it is necessary to summarize the
evidence adduced at trial that resulted in Williams’s conviction for first-degree murder and
abuse of a corpse. On April 5, 2013, Tangela Walton was observed in what appeared to be
an argument with someone on her cell phone. Walton was subsequently reported missing,
and police questioned Williams, her sometimes boyfriend, who denied any knowledge of
her whereabouts. After having obtained Walton’s cell-phone records, the police again
questioned Williams, who denied that he had argued with Walton. On April 14, 2013,
Williams appeared with counsel at the police station to give another statement. When the
investigating officer arrived to question Williams, Williams was on the floor; he was
transported to the hospital because it was reported that he had experienced a seizure. While
in the emergency room, Williams admitted that he knew where Walton’s body was buried.
In an interview the next day, Williams stated that Walton had called him on the morning
of April 5, 2013, to ask if he would like to have sex. He agreed, picked her up, and the
two went to Williams’s home where they engaged in “kinky” sex that included tying
Walton up and placing a plastic bag over her head. Williams stated further that the two
were engaging in sex for the second time when he had a seizure and “fell out” on Walton
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and smothered her to death. When he was unable to revive her, Williams threw away the
plastic bag and the necktie that had been used to bind her hands and buried her in a shallow
grave. There was evidence presented at trial that Walton had died of asphyxia by
undetermined means.
On direct appeal, Williams contended that the trial court erred by not granting his
motion for directed verdict because, while the evidence was sufficient to show that Walton
died in his home, the evidence was not sufficient to show that Williams purposely caused
her death. He argued that the evidence adduced was circumstantial and forced the jury to
resort to speculation when it found the requisite intent to convict him of first-degree
murder. He also asserted that his actions when he disposed of Walton’s body did not fall
within the offense of abuse of a corpse. This court concluded that there was evidence
adduced at trial that satisfied the elements of both first-degree murder and abuse of a corpse.
We also noted that it was the jury’s task to determine the credibility of the witnesses and to
resolve any inconsistent evidence. Williams, 2015 Ark. 316, at 10, 468 S.W.3d 776, 781.
Williams enumerates several alleged “Brady omissions” that pertain to State’s Exhibit
3, the victim’s cell phone records. He contends that information contained in the exhibit
was omitted from the affidavit in support of the search warrant of his residence and the arrest
report; the police investigator failed to acknowledge that the police had the records on April
9, 2013, in the “report to the affiant, magistrate,” and the investigating officer failed to
acknowledge a “second party having communication” with Walton on April 5, 2013; the
phone records in State’s Exhibit 3 are “missing or suppressed”; cell-phone records in State’s
Exhibit 3 would have corroborated Williams’s claim that he was not the person in a heated
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argument with Walton on April 5, 2013, and information about the unknown caller was
suppressed in the argument to the jury; the correlation of other evidence that was suppressed
in State’s Exhibit 3 could have supported the medical testimony concerning the time of
death; the assertions of the State concerning the information contained in the exhibit were
misleading because the contents of the exhibit indicated that there were questions raised by
the information that were never made plain to the jury. Williams has not established a Brady
violation.
Williams has offered no support for the claim that any of the information contained
in State’s Exhibit 3 could not have been known to the defense prior to trial or that it was
somehow concealed from the defense. Moreover, he has offered no factual substantiation
that the State had hidden any specific, particular evidence from the defense at the time of
trial. 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. Carter v. State, 2016 Ark. 378, at 7, 501 S.W.3d 375,
380-81 (per curiam); see also Strickler, 527 U.S. 263, 280; Lacy v. State, 2010 Ark. 388, 377
S.W.3d 227. A coram nobis proceeding is not a means merely to contradict a fact already
adjudicated in the trial court. See Stenhouse v. State, 2016 Ark. 295, 497 S.W.3d 679 (per
curiam), cert. denied, No. 16-7180 (U.S. Jan. 23, 2017).
It appears that Williams’s allegations concerning State’s Exhibit 3 rest primarily on
the contention that the information contained in the exhibit was not utilized in the way
most favorable to the defense. Also, even if the information in the exhibit was not known
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to the defense prior to trial, Williams has not established that there is a reasonable probability
that any of the information he cites in his petition would have resulted in a different
outcome of the trial had it been known. When the petitioner does not demonstrate that
there was information that would somehow have created an issue sufficient to affect the
outcome of the trial and preclude the entry of the judgment, the petitioner has not
established a ground to issue a writ of error coram nobis. Wallace v. State, 2015 Ark. 349,
at 11, 471 S.W.3d 192, 199 (per curiam).
Williams also argues that the writ should issue on the following grounds: that a State’s
witness, Varetta Butcher, reported to the police that she overheard a heated argument
between Walton and a party on the telephone, but the State never produced Butcher’s
statement, which would have aided the defense in pointing out errors in the “affidavit
pretrial”; that Butcher contradicted the police officer’s statement in an affidavit, but
Butcher’s statement never surfaced at trial, and thus her contradictory statements were not
revealed to the jury; that Butcher’s testimony was belied by the information contained in
State’s Exhibit 3, and the police officers embellished their statements to prejudice Williams;
that DNA taken from material under Walton’s fingernails belonged to a second individual
and did not come from Williams; that the autopsy report provided that Walton’s injuries
showed signs of healing, but the point was suppressed at trial even though it could have
provided an alibi for Williams; that the defense story of intimacy was unfairly disclaimed,
and the jury’s verdict was derived from perjury, fabrication, and prosecutorial misconduct.
The assertions do not demonstrate a Brady violation; rather, they amount to claims
of trial error and seek to question the sufficiency of the evidence. To the extent that
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Williams intended the claims to call into question the sufficiency of the evidence, we have
repeatedly held that such a claim is a direct attack on the judgment and is not cognizable in
coram nobis proceedings. Rice v. State, 2016 Ark. 27, at 4, 479 S.W.3d 555, 558 (per
curiam). The question of the sufficiency of the evidence is to be settled at trial and on the
record on direct appeal. Id.; Sims v. State, 2012 Ark. 458 (per curiam). With respect to
allegations of trial error, allegations of trial error are outside the scope of a coram nobis
proceeding. Rhoades v. State, 2015 Ark. 54, at 5, 455 S.W.3d 291, 294 (per curiam). This
court does not consider allegations in a coram nobis action that are an attempt to argue
issues that were, or could have been, addressed at trial or on direct appeal. See Ventress v.
State, 2015 Ark. 181, 461 S.W.3d 313 (per curiam). Allegations of trial error, even those
of constitutional dimension, do not provide a ground to grant a writ of error coram nobis.
Bean v. State, 2015 Ark. 136 (per curiam).
Finally, Williams makes several references to the failure of his attorney to investigate
evidence and counsel’s failure to bring out information that would have been favorable to
the defense. He has not stated a ground for the writ because a coram nobis proceeding does
not provide a means to challenge the effectiveness of counsel. Ineffective-assistance-of-
counsel claims are outside the purview of error coram nobis proceedings and such
proceedings are not a substitute for raising ineffective-assistance-of-counsel claims under our
postconviction rule, Arkansas Rule of Criminal Procedure 37.1. White v. State, 2015 Ark.
151, at 4–5, 460 S.W.3d 285, 288.
Petition denied.
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