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                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-04-1207


TISHAUN STENHOUSE                                Opinion Delivered July 21, 2016
                              PETITIONER
                             PRO SE PETITION TO REINVEST
V.                           JURISDICTION IN THE TRIAL COURT
                             TO CONSIDER A PETITION FOR WRIT
STATE OF ARKANSAS            OF ERROR CORAM NOBIS
                  RESPONDENT [PULASKI COUNTY CIRCUIT COURT, NO.
                             60CR-03-2984]


                                                 PETITION DENIED.

                                       PER CURIAM


        Petitioner Tishaun Stenhouse is incarcerated in the Arkansas Department of

 Correction pursuant to a 2004 judgment reflecting his convictions for capital murder and

 committing a felony with a firearm for which he was sentenced to life imprisonment without

 parole plus 15 years’ imprisonment. This court affirmed his convictions and sentences.

 Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005).

        Now before this court is Stenhouse’s application to reinvest jurisdiction in the trial

 court to consider a petition for writ of error coram nobis based on a claim that the prosecutor

 withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83

 (1963). Stenhouse contends that this evidence would have established that Stenhouse had

 acted in self-defense at the time he shot the victim, Braylon Gray. In his response to the

 State’s response to his petition, Stenhouse alternatively alleges that had the evidence been

 disclosed there is a reasonable probability that he would have been convicted of a lesser-
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included offense, or that his sentence for capital murder would have been mitigated.

Stenhouse further contends that the prosecutor withheld evidence of plea deals that could

have been used to impeach the credibility of the State’s eyewitnesses—Tiffany Williams and

Brandon Landers.

       In support of his claim for relief, an affidavit is attached to the petition executed by

Tiffany Williams in March 2016 wherein Williams recants her trial testimony in which she

stated that Gray was unarmed and walking away from Stenhouse at the time Gray was shot

and killed. Instead, Williams avers in the affidavit that Gray was armed, possessed drugs,

and was approaching Stenhouse with a gun in hand when Stenhouse fired the fatal shots

and that Williams removed Gray’s gun as well as the drugs and hid them before the police

arrived. According to the affidavit, Williams informed the prosecutor that she had concealed

Gray’s gun and drugs, and the prosecutor intentionally suppressed this revelation. Williams’s

affidavit further accuses the prosecutor of securing probation for Williams on felony forgery

charges that were pending against her in exchange for Williams’s favorable testimony and

of deliberately concealing the plea deal. Finally, Williams attests in the affidavit that the

prosecutor gave Williams debit cards as well as “Old Navy” gift cards to ensure Williams’s

continuing cooperation.

       Stenhouse further alleges that Brandon Landers was also given a plea deal in exchange

for his testimony, which was, likewise, withheld from the defense. In support of this

allegation, Stenhouse attaches documents demonstrating Landers’s guilty pleas and sentences

to possession of controlled substances in August 2003 and October 2003. According to

Stenhouse, the lenient sentences imposed as a result of Landers’s guilty pleas demonstrate

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that Landers’s testimony was provided in exchange for plea deals that had been concealed

from the defense.

       We first note that a petition filed in this court for leave to proceed in the trial court

where the judgment was entered 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. Roberts v. State, 2013 Ark. 56, at 11, 425 S.W.3d 771, 778. A writ of

error coram nobis is an extraordinarily rare remedy. Howard v. State, 2012 Ark. 177, at 4,

403 S.W.3d 38, 42–43. Coram-nobis proceedings are attended by a strong presumption

that the judgment of conviction is valid. Id. The function of the writ is to secure relief

from a judgment rendered while there existed some fact that would have prevented its

rendition if it had been known and which, through no negligence or fault of the defendant,

was not brought forward before rendition of the judgment. Id. The petitioner has the

burden of demonstrating a fundamental error of fact extrinsic to the record. Id.

       The writ is allowed only under compelling circumstances to achieve justice and to

address errors of the most fundamental nature. Id. We have held that 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. Id.

       We are not required to accept the allegations in a petition for writ of error coram

nobis at face value. Goff v. State, 2012 Ark. 68, at 3, 398 S.W.3d 896, 898 (per curiam).

While allegations of a Brady violation fall within one of the four categories of fundamental

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error that this court has recognized, the fact that a petitioner alleges a Brady violation alone

is not sufficient to provide a basis for error-coram-nobis relief. Smith v. State, 2015 Ark.

188, at 4-5, 461 S.W.3d 345, 349 (per curiam). To establish a Brady violation, three

elements are required: (1) the evidence at issue must be favorable to the accused, either

because it is exculpatory or because it is impeaching; (2) that evidence must have been

suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued.

State v. Larimore, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000).

       Assuming that the alleged withheld evidence meets the requirements of a Brady

violation and is both material and prejudicial, in order to justify issuance of the writ, the

withheld material evidence must also be such as to have prevented rendition of the judgment

had it been known at the time of trial. Smith, 2015 Ark. 188, at 4–5, 461 S.W.3d at 349.

To merit relief, a petitioner must demonstrate that there is a reasonable probability that the

judgment of conviction would not have been rendered, or would have been prevented, had

the information been disclosed at trial. Id. Finally, this court has held that recanted

testimony is not cognizable in a claim for error-coram-nobis relief. Jackson v. State, 2010

Ark. 81, at 2 (per curiam). This is so because a writ of error coram nobis may not be used

to contradict any fact already adjudicated. Smith v. State, 200 Ark. 767, 768, 140 S.W.2d

675, 676 (1940). Here, Williams recanted her trial testimony over ten years after Stenhouse

had been convicted and his conviction had been affirmed on direct appeal. 1 Stenhouse, 362

Ark. 480, 209 S.W.3d 352.



       1 In his response, Stenhouse contends that Williams’s affidavit does not recant her
earlier testimony, but merely adds facts that had been intentionally concealed by the
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        Stenhouse contends in his petition that Williams’s affidavit establishes a Brady

violation entitling him to coram-nobis relief because the allegations contained therein attest

to the deliberate suppression of material evidence that was unknown to the defense, which

creates a reasonable probability that, had this evidence been disclosed, the result of his trial

would have been different. To the extent that Williams’s affidavit recanting her testimony

has alleged sufficient facts to meet the requirements of a Brady violation, the remaining

testimony and evidence presented at the trial demonstrates that evidence that Gray was

armed, which Williams alleges had been suppressed, would not have changed the outcome

of the trial.

        The trial record reveals that Williams and Landers were called to testify by the State,

and two additional eyewitnesses, Marvin Porter and Angelo Scott, were called by the

defense. Williams, together with Landers, Porter, and Scott, testified that Gray had not

made verbal threats or behaved aggressively toward Stenhouse, while Williams, Landers,

and Porter testified that Gray was unarmed. Porter, a witness for the defense, testified that

after Stenhouse fired the first shot, Gray fell face-down on the ground as Stenhouse

continued firing his gun. The above-cited testimony was consistent with the physical

evidence described by the medical examiner, in that, the examiner testified that the autopsy

established that Gray had been shot multiple times in the back and that the trajectory of at

least two of the bullets demonstrated that shots had been fired while Gray was lying face-




prosecutor, such as the fact that Williams had concealed Gray’s gun and drugs. However,
that claim directly contradicts Williams’s trial testimony that Gray was unarmed.

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down on the ground. The remaining physical evidence adduced at trial established that six

bullet casings discovered at the scene were fired from the same gun, that the casings matched

bullets removed from Gray’s body and from the crime scene, and that gunshot residue on

Gray’s clothing established that at least two bullets were fired at close range or approximately

twelve inches from the point of impact. Despite evidence that a nearby street lamp

illuminated the area where the shooting occurred, Stenhouse testified that he never saw the

gun that Williams now asserts was in Gray’s hand. Finally, Stenhouse admitted that he

could have retreated during the course of the events that led to Gray’s death.

       In view of the testimony and evidence recited above, the presentation of Williams’s

recent account of events would not have changed the outcome of the trial by establishing

that Stenhouse fired in self-defense, especially in light of Stenhouse’s admission that he did

not see a gun in Gray’s possession. See Halfacre v. State, 277 Ark. 168, 171–72, 639 S.W.2d

734, 736, (1982) (in determining the reasonableness of appellant’s plea of self-defense, the

relevant issue was not whether the victims had started fights, but whether appellant was

aware of such incidents). Finally, Stenhouse’s admission that he could have retreated further

negates his assertion of self-defense. See Ark. Code Ann. § 5-2-607(b) (Repl. 2006).

       Stenhouse alternatively contends that disclosure of evidence allegedly suppressed by

the prosecutor created a reasonable probability that he would have been convicted of either

first-degree murder, second-degree murder, or manslaughter—the lesser-included offenses

to capital murder. Again, a review of the testimony and evidence set forth above dispels a

reasonable probability that such evidence would have resulted in a conviction of a lesser-

included offense that did not include premeditation and deliberation. See Ark. Code Ann.

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§ 5-10-101(4) (Repl. 1997). This court has held that premeditation and deliberation may

be inferred from the type and character of the weapon; the manner in which the weapon

was used; the nature, extent, and location of the wounds; and the accused’s conduct.

Thornton v. State, 2014 Ark. 157, at 12, 433 S.W.3d 216, 222–23 (citing Robinson v. State,

363 Ark. 432, 214 S.W.3d 840 (2005)). Evidence of multiple close-range gunshots is

consistent with a conclusion of premeditation and deliberation. See id. (citing Coggin v.

State, 356 Ark. 424, 156 S.W.3d 712 (2004)). Findings of premeditation have been upheld

in cases where the evidence showed that a victim was shot multiple times from behind. See

id. (citing Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992)).

       Williams’s subsequent statement recanting her testimony that Gray was unarmed does

not establish that Gray’s murder was justified, nor does it refute evidence establishing that

Stenhouse acted with premeditation and deliberation when he shot Gray multiple times in

the back and at close range. See Taylor v. State, 303 Ark. 586, 594, 799 S.W.2d 519, 524

(1990) (recanted testimony would not have dispelled evidence of the appellant’s

involvement in the crime and resulted in a different verdict). Moreover, Stenhouse’s

assertion that evidence that Gray was armed would have mitigated his sentence for the crime

of capital murder is without merit because capital murder carries only two possible sentences:

death or life without parole. Ark. Code Ann. § 5-(10)?-101(c) (Repl. 1997); Ark. Code

Ann. § 5-4-601(3) (Repl. 1997).

       Stenhouse’s contention the prosecution concealed plea deals made in exchange for

favorable testimony from Landers and Williams is equally unavailing. To warrant coram-

nobis relief,the defendant must be unaware of the fact at the time of trial and could not have

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discovered the fact in the exercise of due diligence. See Echols v. State, 354 Ark. 414, 419,

125 S.W.3d 153, 157 (2003). The trial record reveals that the defense had been provided

with an opportunity to review the criminal records of the State’s witnesses prior to trial but

had never taken advantage of the offer.       Moreover, the defense was made aware that

Williams had been given probation for the forgery offenses and chose not to recall Williams

and inquire about any plea deals made in exchange for her testimony despite the trial court’s

ruling that it would have allowed Williams to be recalled for this purpose. Defense counsel

could also have questioned Landers about convictions described in his testimony as well as

any plea deals made in connection with those convictions. Furthermore, the circumstances

surrounding Landers’s convictions could have been discovered prior to trial had the defense

reviewed Landers’s criminal history. For the same reasons that are set forth above, Stenhouse

further fails to establish that evidence of these alleged plea deals would have discredited the

testimony of Williams and Landers to the extent that the rendition of the judgment would

have been prevented. Howard, 2012 Ark. 177, at 4, 403 S.W.3d at 42–43; Thomas v. State,

367 Ark. 478, 482, 241 S.W.3d 247, 250 (2006) (per curiam).

       Petition denied.




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