Larimore v. State

Tom Glaze, Justice, concurring in part and dissenting in part. The majority correctly denies Larimore’s request for Rule 37 relief as untimely; however, it then mistakenly reverses the trial court and grants Larimore leave to request a writ of error coram nobis. Arkansas law clearly reflects that a convicted defendant’s request for error coram nobis relief can only be granted after the trial court has lost jurisdiction and before this court has affirmed the defendant’s case on appeal. Edgemon v. State, 292 Ark. 465 , 730 S.W.2d 898 (1987) (modified on another point by Smith v. State, 301 Ark. 374 , 784 S.W.2d 595 (1990)); Stone v. State, 290 Ark. 203 , 718 S.W.2d 108 (1986); State v. Scott, 289 Ark. 234 , 710 S.W.2d 212 (1986); Williams v. State, 285 Ark. 444 , 688 S.W.2d 285 (1985); Pickens v. State, 284 Ark. 506 , 683 S.W.2d 614 (1985); Penn v. State, 282 Ark. 571 , 670 S.W.2d 426 (1984). In other words, petition for writ of error coram nobis is not available after this court has reviewed the case. The Penn court stated the reason for the limited period for fifing such a petition as follows:

We emphasize that we do not open the door to other petitions [for writ of coram nobis] beyond those that would qualify under the facts in this case, especially the fact that it is presently between trial and. appeal and can easily provide for an early hearing before the court that just heard the case. (Emphasis added.)

In the present case, this court, after denying a petition for rehearing, affirmed Larimore’s conviction on June 27, 1994, but Larimore did not file a petition for postconviction relief, including coram nobis relief, until May of 1995. See Larimore v. State, 317 Ark. 111 , 877 S.W.2d 570 (1994). 1 Larimore’s petition for writ of coram nobis was decidedly late when requested of the trial court below, and is likewise late in his request to this court on appeal.

One last point should be made, and it is that this court has plainly held that a writ of error coram nobis cannot be granted on the basis of newly discovered evidence. Smith v. State, 301 Ark. 374 , 784 S.W.2d 595 (1990); Williams, 285 Ark. 444 , 688 S.W.2d 285 . Here, Larimore’s petition is grounded on new evidence resulting from the deposing of Officer Ralph Hill in a civil wrongful-death case brought by Mrs. Larimore’s family. That new evidence, of course, asserted that Dr. Fahmy Malak had stated an earlier but tentative opinion which was consistent with Larimore’s defense as to the time of Mrs. Larimore’s death. Obviously, Hill’s testimony was newly discovered evidence, and not the type of grounds that would warrant the granting of a writ of coram nobis under our prior holdings. This, too, is another reason why Larimore’s petition should be denied.

In conclusion, I note Larimore’s reliance on some earlier Arkansas cases that have held it was within the power of the trial court to grant the writ of error coram nobis after the expiration of the term in which the judgment was rendered. Hardwick v. State, 220 Ark. 464 , 248 S.W.2d 377 (1952); Hydrick v. State, 104 Ark. 43 , 148 S.W. 541 (1912). Those cases, however, were decided before Arkansas adopted new postconviction procedures. See Rule 1 of Arkansas Rules of Criminal Procedure (1965); now Rule 37 of the Arkansas Rules of Criminal Procedure. 2 Before 1965, convicted defendants were relegated to motions for new trial, in arrest of judgment, and other relief such as petitions for extraordinary writs for habeas corpus or coram nobis. See Case v. Nebraska, 381 U.S. 336, 338 (1964) (Clark, J., concurring).

Since Arkansas has provided an effective postconviction procedure for convicted defendants, this court has correspondingly narrowed the grounds and time needed for petitioning for writs of coram nobis. Accordingly, this court has stated that a petition for writ of error coram nobis is not available after an appellate court reviews a case. Edgemon, 292 Ark. 465 , 730 S.W.2d 898 . The Edgemon court, quoting Williams, 285 Ark. 444 , 688 S.W.2d 285 , also stated, “[I]f a petitioner discovers some ground for relief — after a judgment is affirmed, he may present that ground in a clemency hearing.”

For the reasons stated above, I agree with the majority court’s affirmance of the trial court’s decision holding Larimore’s Rule 37 motion should be dismissed, but disagree with its granting leave to petition for writ of error coram nobis.

Newbern, J., joins this opinion. Larimore’s first conviction was reversed and remanded because the verdict was tainted by the introduction of a mass of materials into the jury room which should not have been there. Larimore v. State, 309 Ark. 414 , 833 S.W.2d 358 (1992).

Larimore further cites Troglin v. State, 257 Ark. 644 , 519 S.W.2d 740 (1975), but there this court denied Troglin’s petition for a writ of error coram nobis because a number of reasons, including Troglin had failed to exercise due diligence in making application for relief. Since Troglin, this court has repeatedly adhered to the rule that a petitioner, in applying for such extraordinary relief must do so before this court affirms petitioner’s case on appeal.