ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
 

OCTOBER 16, 2003

RANDALL THOMAS McARTY

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 93-1071

PRO SE PETITION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF CLARK COUNTY, NO. CR 92-111]

PETITION DENIED

Per Curiam

In 1993, Randall Thomas McArty was found guilty of murder in the first degree in the shooting death of Teresa Chamberlain. A sentence of life imprisonment was imposed. We affirmed. McArty v. State, 316 Ark. 35, 871 S.W.2d 346 (1994).

In 1998, McArty petitioned this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition was denied. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998).

In the instant petition, McArty again asks this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).

A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged, Larimore, supra, citing United States v. Morgan, 346 U.S. 502, 512 (1954), and the petition must be brought in a timely manner. Penn, supra. Newly discovered evidence in itself is not a basis for relief under coram nobis. Larimore, supra; Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). A claim of newly discovered evidence must be addressed to the trial court in a motion for new trial made within the time in which a notice of appeal must be filed. See A.R.Cr.P. 33.3; Penn, supra.

Petitioner claims that jurisdiction should be reinvested in the trial court to consider an error coram nobis petition on the ground that the State withheld exculpatory evidence. The first evidence alleged to have been withheld from the defense pertained to shotgun shells retrieved from the crime scene.

Petitioner states that the original form listing evidence submitted to the State crime laboratory reflected that the officers who investigated the crime scene submitted one expended and three loaded shotgun shells. He also notes that one of the officers reported and a witness stated to the police that petitioner had purchased a box of five shotgun shells. He contends that the State failed to account for the missing shell and that the State withheld two evidence submission forms dated March 22, 1993, and a ballistics report dated May 11, 1993. Petitioner asserts that the failure to disclose these documents resulted in the State's being able to fabricate evidence concerning the missing shell, to solicit perjured testimony from the arresting officers, and to conceal the identity of one officer who claimed to have retrieved the missing shell from petitioner's pocket. Petitioner further contends that the failure of the State to release the evidence submission forms that were received by the lab on March 22, 1993, prevented impeachment of the arresting and investigating officers' testimony. The record does not support petitioner's conclusions. Petitioner's attorney questioned the State's witnesses concerning the ballistic evidence at length, and petitioner offers no support for the claim that there was any evidence withheld by the State which would have been exculpatory to the defense. Petitioner testified at trial that the victim came at him with a knife and that he shot her when he tried to push her away from him using the barrel of the gun. The jury's verdict indicates that it did not accept petitioner's contention that his conduct did not constitute murder in the first degree. Petitioner has fallen far short of showing that any exculpatory evidence was withheld or that there was any undisclosed evidence which would have resulted in a different outcome had it been known to the defense. Before a writ of error coram nobis may issue it must appear that the facts as alleged as grounds for its issuance are such as would have precluded the entry of the judgment had they been available at trial. Larimore, supra.

The second allegation that exculpatory evidence was withheld by the State pertains to the medical examiner's report. Petitioner asserts that the State failed to disclose the full report, including autopsy photographs and diagrams, and gave the defense only a partial report as a ruse. Petitioner has produced no substantiation for the allegation that the defense lacked the full report; moreover, the record on appeal reflects that the medical examiner was examined by the defense at length concerning the forensic evidence adduced that demonstrated that the victim was shot in the chest by a relatively close blast from a shotgun.

Petitioner argues that the full report would have revealed that the victim was killed by two shots rather than one, but he fails to explain how the theory negates his guilt. He has further failed to establish that there was any forensic evidence sufficient to overcome the compelling evidence that he had told a friend that he wanted to kill the victim, that he entered the victim's residence with the loaded shotgun at his side, and that he had admitted to an officer that he shot the victim. Petitioner also testified at trial that he shot the victim as she tried to get at him with a knife. It was a matter for the jury to decide whether petitioner's account of the shooting constituted a criminal offense. The sufficiency of the evidence to sustain a conviction for murder in the first degree was challenged by the defense unsuccessfully at trial and upheld on appeal, and petitioner has failed to establish there was any evidence withheld from the defense that would have resulted in a different outcome. As stated, a writ of error coram nobis will not issue unless it appears that the facts as alleged as grounds for its issuance are such as would have precluded the entry of the judgment had they been available at trial. Larimore, supra. Petitioner has entirely failed to make such a showing.

Petition denied.

Arnold, C.J., not participating.