Elvis Aaron THACKER, Appellant v. STATE of Arkansas, Appellee
No. CR-15-1034
Supreme Court of Arkansas.
Opinion Delivered: October 20, 2016
2016 Ark. 350
First, because this case was tried to the bench, the judge was both the fact-finder and, for lack of a better term, the referee. In the latter role, a judge is charged with ensuring that Mr. Doty received a fair trial. Accordingly, in a Rule 37 proceeding, the trial judge is at least indirectly on trial as well as the trial counsel. When the trial judge finds that the asserted grounds for finding ineffective assistance of counsel would not have affected the outcome of the trial, logically speaking, it is both a finding of fact and uncontradicted direct evidence of how the finder of fact would have viewed the trial counsel‘s performance. Without getting into the issue of whether the trial judge was actually biased, I submit that it at least has the appearance of impropriety when the trial judge is effectively giving himself his own report card. Even when a jury is the finder of fact, the trial judge, in presiding over a subsequent Rule 37 proceeding, is still deciding the question of whether a Rule 37 petitioner received a fair trial. In the process, the trial judge is, at least in part, assessing his or her own performance. In my view, this court should consider assigning Rule 37 cases to a judge who did not preside over the trial.
15 The second issue is one unique to this case. Mr. Doty‘s Rule 37 counsel alleges ineffective assistance of counsel for the trial counsel‘s failure to discover the additional 911 tapes that were not played at trial. In my view, the failure by the State to turn over the tapes was a clear Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the postconviction context in Arkansas, Brady violations may be addressed by seeking a writ of error coram nobis, see Howard v. State, 2012 Ark. 177, 403 S.W.3d 38, but they cannot support a Rule 37 petition. Id. Unfortunately, in the case before us, Mr. Doty petitioned for a writ of error coram nobis before his direct appeal had been decided. Because the petition for the writ was filed prematurely, it was summarily dismissed by docket entry and could at least arguably be available as a potential means of securing postconviction relief.
RHONDA K. WOOD, Associate Justice
Elvis Thacker petitions this court to reverse the circuit court‘s denial of a petition for writ of error coram nobis. Thacker argues that the writ should have been granted because video evidence was withheld, his guilty plea was coerced, and he is innocent of the offenses.1 Because we hold that the circuit court‘s denial of the petition was not an abuse of discretion, we affirm.
In 2011, Fort Smith police officers were arresting Thacker for the rape of a woman in Fort Smith. Law enforcement officers from Oklahoma also participated in the arrest because they suspected that Thacker had murdered Briana Ault, whose body had been found in Oklahoma a few days earlier. The officers who were attempting to serve the warrant were dressed in plainclothes. Initially, to gain admittance into the apartment and ensure Thacker was inside, one officer posed as an employee of the electric company checking on electrical issues. The officer attempted to get Thacker and the other occupants to leave, but was unsuccessful. Thereafter, officers kicked in the door and entered the apartment. During the attempted arrest, Thacker stabbed one of the police officers. Thacker was tased, but when the Taser failed to subdue him, a detective shot Thacker twice.
There were two video recordings on the evening of the incident that were not provided to Thacker until years after his plea.2 The first video was recorded by the Taser gun carried by Detective Mike McCoy. The video captures approximately seven seconds of the officers immediately before they entered the apartment where Thacker was staying and another minute and a half following entry. For the seven seconds prior to entry, officers can be heard yelling for Thacker to open the door; however, the video does not include what transpired or was announced prior to these seven seconds. Officer Eric Williams recorded the second video using a halo camera system attached to his body. Officer Williams was not present for the entry into the apartment, but rather arrived after the stabbing of the officer and after Thacker had been tased and ultimately shot. The Williams video primarily depicts Thacker lying on the floor of the apartment waiting for emergency medical care to arrive.
In August 2011, Elvis Thacker pleaded guilty to the attempted capital murder of the Fort Smith police officer who was serving him with the arrest warrant for rape. He also pleaded guilty to kidnapping, amended from the original rape charge, for restraining a woman with a knife against her will. He was sentenced to an aggregate term of thirty years’ imprisonment. Thacker unsuccessfully challenged his convictions in a petition for postconviction relief pursuant to
I. Material Evidence Withheld
Thacker first alleges he is entitled to relief because the prior videos were favorable to his defense and were withheld by the prosecution. He argues that this unconscionable withholding of evidence violates Brady. Suppression of material exculpatory evidence by a prosecutor falls within one of the four categories of coram nobis relief. Grant v. State, 2010 Ark. 286, 365 S.W.3d 894. The Supreme Court clarified Brady in Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), and declared that 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. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The Strickler court also set out the 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; and (3) prejudice must have ensued. See Barker v. State, 2010 Ark. 354, at 8-9, 373 S.W.3d 865, 870.
In Thacker‘s petition to the circuit court, he alleges the videos were material to and would have altered the outcome of his case for two reasons. First, Thacker contends that the videos would support his self-defense argument that he stabbed the officer because he was unaware that the people attempting to gain entry into the apartment were police officers, and they entered without a warrant. Second, he claims that the Williams video provided evidence to suppress incriminating statements he made to police officers after he had been shot by police.
The circuit court, after reviewing the videos, denied relief. The court found the videos were not relevant. First, it concluded that the arrest warrant on the rape charge allowed entry into the apartment and Thacker was identified through a window; second, it found that any incriminating statements depicted on the video concerned solely the murder investigation in Oklahoma and were not relevant to the kidnapping and attempted-murder charges he pled to in Arkansas.
Only the Taser video captured the events surrounding the police officers’ entry into the apartment. It fails to provide material evidence sufficient to support
As to Thacker‘s contention that the Williams video provided evidence to suppress incriminating statements, the circuit court also correctly stated that the only incriminating statements made by Thacker in the Williams video relate to the capital-murder charge against him in Oklahoma, and those statements are not relevant to the charges in this case. The petitioner in a coram-nobis proceeding has the heavy burden of demonstrating with proof that there existed some fact that would have prevented rendition of judgment had it been known to the trial court and that, through no negligence or fault of his, was not brought forward before rendition of judgment. Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374. As Thacker cannot show that either video was material to and would have altered the outcome of the case, we hold that the circuit court‘s denial of the petition was not an abuse of discretion.
II. Coerced Guilty Plea
Likewise, we conclude that the circuit court did not abuse its discretion in denying Thacker‘s petition alleging that his guilty plea was coerced. Thacker‘s petition to the circuit court on this ground was difficult to ascertain and primarily contained allegations concerning the ineffective assistance of his trial counsel and allegations concerning the Oklahoma case. Thacker additionally argues that his guilty plea was coerced by a combination of factors, including the denial of medical treatment during his arrest and the alleged torture by police at the hospital. However, these claims are either unsubstantiated or contradictory to the evidence. The remaining factors, which include being attacked by another inmate, having conflicted counsel, not being able to fire his attorney, having a low IQ, and the withholding of video evidence, are noncognizable in coram nobis relief for a coerced guilty plea. See Noble v. State, 2015 Ark. 141, 460 S.W.3d 774. His allegations concerning ineffective assistance of counsel along with information concerning the Oklahoma case are not appropriate for an error coram nobis petition in Arkansas. Claims of coercion cognizable in error coram nobis proceedings include pleas that are the result of fear, duress, or threats of mob violence. Id. Thacker‘s four-year delay in bringing this claim, coupled with the lack of factual substantiation for his allegations, renders his claims of a coerced guilty plea deficient and unpersuasive. Weekly v. State, 2014 Ark. 365, 440 S.W.3d 341.
III. Actual Innocence
Finally, Thacker argues that his actual innocence of the charges should be a ground under which his writ of error co-
Affirmed.
Danielson and Hart, JJ., dissent.
Josephine Linker Hart, Justice, dissenting.
I respectfully dissent from the majority‘s decision to affirm the circuit court‘s denial of Elvis Aaron Thacker‘s petition for writ of error coram nobis and its decision to do so without a hearing.
The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Such 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. When a petition for writ of error coram nobis is filed directly in the circuit court, a hearing is not required if the petition clearly has no merit. Nelson v. State, 2014 Ark. 91, at 4, 431 S.W.3d 852, 855. Here, the circuit court denied the petition without a hearing.1 In the circumstances presented here, a hearing should have been held.
The State admits that it failed to disclose two videos, one of which was a Taser video made by Detective Mike McCoy. The State further admits that the McCoy video showed the events around the time police entered the residence to arrest Thacker and that the officers admittedly are not heard announcing their identity and purpose immediately before entering. Less than thirty seconds after the police entered the residence, police gunshots that were fired at Thacker can be heard on the video. Also, the State admits that the officers who entered the residence were in plainclothes.
Our criminal statutes provide that a person is justified in using physical force upon another person to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of force that he or she reasonably believes to be necessary.
In affirming the circuit court, the majority finds that the McCoy video fails to provide material evidence sufficient to support Thacker‘s self-defense claim because it is a “limited snapshot” prior to the police officers’ entry. The majority states that the McCoy video “does not include what transpired or was announced” prior to the beginning of the video. The question whether the McCoy video is material, however, is not answered by asserting that it is a “limited snapshot.” The McCoy video directly rebuts the State‘s assertion that the occupants of the residence were verbally informed that it was the police who were trying to enter. Clearly, the McCoy video is material in that it would support Thacker‘s self-defense claim. Thus, a hearing should have been held on Thacker‘s petition because it cannot be said that Thacker‘s petition is clearly without merit.
Furthermore, the State admits that the McCoy video was not disclosed to Thacker before he pleaded guilty. Despite the majority‘s conclusion that it was a “limited snapshot,” the McCoy video would have supported Thacker‘s claim of self-defense because it shows that the police did not identify themselves when they entered the residence in plainclothes. Given that the McCoy video supported the defense and that Thacker was not afforded an opportunity to present evidence at a hearing, I cannot say that there is no reasonable probability that, had the McCoy video been disclosed to Thacker, he would not have pleaded guilty and would instead have gone to trial.
I respectfully dissent.
Danielson, J., joins in this dissent.