                                       Cite as 2014 Ark. 367

                 SUPREME COURT OF ARKANSAS
                                          No.   CR-91-206
                                                     Opinion Delivered September 11, 2014

                                                     PRO SE PETITION TO REINVEST
STEVEN LARON MCARTHUR                                JURISDICTION IN THE TRIAL COURT
                   PETITIONER                        TO CONSIDER A PETITION FOR WRIT
                                                     OF ERROR CORAM NOBIS AND
V.                                                   MOTION FOR APPOINTMENT OF
                                                     COUNSEL [LONOKE COUNTY
STATE OF ARKANSAS                                    CIRCUIT COURT, NO. 43CR-90-22]
                              RESPONDENT

                                                     PETITION AND MOTION DENIED.


                                          PER CURIAM

       In 1991, petitioner Steven Laron McArthur was found guilty by a jury of capital murder

in the death of Rodney Spence in 1990. He was sentenced to life imprisonment without parole.

We affirmed. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

       Petitioner has now filed a pro se petition in this court requesting that jurisdiction be

reinvested in the trial court so that he may proceed with a petition for writ of error coram nobis.

A 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. Hooper v. State, 2014 Ark. 16 (per curiam).

       A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial

than its approval. Cromeans v. State, 2013 Ark. 273 (per curiam). The writ is allowed only under

compelling circumstances to achieve justice and to address errors of the most fundamental

nature. McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that a writ of error coram

nobis is available to address certain errors that are found in one of four categories: insanity at
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the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-

party confession to the crime during the time between conviction and appeal. Charland v. State,

2013 Ark. 452 (per curiam); Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). 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 to the circuit court and which,

through no negligence or fault of the defendant, was not brought forward before rendition of

judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v. State, 2011 Ark. 303 (per

curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic

to the record. Wright v. State, 2014 Ark. 25 (per curiam); Williams v. State, 2011 Ark. 541 (per

curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of

conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771; 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)).

       In his petition, petitioner raises three grounds for the writ. To understand the claims, a

brief summary of the facts of the case is necessary. On January 21, 1990, a hunter discovered

the body of sixteen-year-old Rodney Spence in Lonoke County. Spence had been shot twice in

the head at close range. Spence’s father testified at petitioner’s trial that, on the afternoon of

January 20, 1990, Spence had left his parents’ home with the understanding that he would be

home by 10:00 p.m. that night. Spence was driving a 1986 red Ford Ranger. Spence’s uncle

testified that he saw Spence later that evening, and Spence said he was going to Cabot, Arkansas.

When Spence did not return home by 10:30, his parents reported him missing. His body was

discovered the next day.



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       On January 23, 1990, a patrolman with the Plano Texas Police Department pulled over

a red Ford Ranger with Arkansas plates after hearing a national broadcast to be on the lookout

for the vehicle. Donald Hawley, the driver of the truck, informed the Texas authorities that he

and petitioner had been in Cabot, Arkansas, the past weekend and stayed at petitioner’s

girfriend’s apartment. Hawley stated that petitioner had left the apartment for a while on

Saturday, and, when petitioner returned, he was driving the red truck, which Hawley and

petitioner drove to Texas. The Plano police executed a search warrant on petitioner’s sister’s

apartment where they found a gun in a nightstand drawer. At trial, the parties stipulated that the

gun was the weapon that had been used to shoot Spence.

       Donald Hawley eventually pled guilty to capital murder and testified at petitioner’s trial.

Hawley testified that petitioner had approached Spence in the parking lot of a grocery store in

Cabot. According to Hawley, he and petitioner arranged for Spence to give them a ride to a

liquor store and Spence drove them to two liquor stores and a convenience store. When Spence

went inside the convenience store, petitioner informed Hawley that he was going to ask Spence

to drive them to a friend’s house and instructed Hawley to act sick when petitioner prompted

him to do so. Petitioner then directed Spence to drive to a remote location whereupon

petitioner told Hawley to feign sickness. When Spence stopped the truck, petitioner and Hawley

got out of the truck on the passenger side. Spence also got out of the truck, and petitioner asked

Spence for assistance in getting Hawley back into the truck. Hawley then stepped around to the

rear of the truck, aimed a gun at Spence, and instructed Spence to lie on the ground and empty

his pockets. Hawley testified that petitioner said, “Well, shoot him,” and Hawley shot Spence



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in the head. As the two men carried Spence’s body away, petitioner stated that Spence was still

alive. According to Hawley, petitioner said that he did not want to see Spence suffer, and

petitioner fired a second shot into Spence’s head. After killing Spence, Hawley and petitioner

took Spence’s truck and left for Texas.

          As his first ground for the writ, petitioner asserts that he has two pieces of new evidence.

The first is an undated letter from Hawley to petitioner’s family in which he admits to testifying

falsely that petitioner fired the second shot and explains that he only did so to avoid the death

penalty and to obtain a promise of favorable treatment by the prison authorities. The other new

evidence is a transcript of a pretrial discussion between Hawley and his attorney. In the

statement, Hawley said that he fired both shots and also states that, when he and petitioner got

to the spot where Spence’s body ultimately was found, petitioner told Spence to stop the truck

because Hawley was going to be sick. Hawley said in the statement that the feigned sickness was

planned ahead of time and that petitioner told him to shoot Spence after Spence got out of the

truck because Spence was a witness and could send them to prison. Petitioner contends that this

statement was never disclosed to the defense in violation of Brady v. Maryland, 373 U.S. 83

(1963).

          With respect to the undated letter from Hawley to “Mrs. McArthur,” the letter does not

indicate that petitioner was not present when the shooting occurred or otherwise contradict

Hawley’s testimony concerning the plan to trick the victim into going with Hawley and

petitioner. Rather, it is essentially a recantation of Hawley’s testimony that petitioner fired one

of the shots into Spence’s head. As such, the letter is not a ground for granting a writ of error



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coram nobis. A claim of recanted testimony, standing alone, is not cognizable in an error-

coram-nobis proceeding. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam) (citing

Jackson v. State, 2010 Ark. 81 (per curiam)); Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940)

(holding that the writ was not available to afford relief on the ground that the principal witness

against the accused had recanted and that others since the accused’s conviction had confessed

to the crime); see also Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990) (A witness’s recantation

of part of his trial testimony was not a ground for the writ as recantation of testimony did not

fit within the remedy.).

       As to Hawley’s statement to his attorney that petitioner alleges was withheld from the

defense, failure to disclose evidence favorable to the defense in violation of Brady, if established,

is cause to grant the writ. Pitts, 336 Ark. 580, 986 S.W.2d 407. In Strickler v. Greene, 527 U.S. 263

(1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that

material evidence was not disclosed to the defense, the petitioner must show that “there is a

reasonable probability that, had the evidence been 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)). In Strickler, the Court also set out the three elements of a true 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. Strickler, 527 U.S. 263; Buchanan v. State,

2010 Ark. 285 (per curiam).

       Petitioner has not established a Brady violation with respect to Hawley’s statement. First,



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he offers no substantiation for the claim that the prosecution was aware of the statement and

concealed it from the defense. Secondly, even if the prosecution was aware of the statement,

it was not favorable to the defense to the degree that petitioner has demonstrated that the

outcome of the trial would have been different had the defense had the statement at trial. The

law in Arkansas makes no distinction between the criminal liability of a principal and an

accomplice. Ark. Code Ann. § 5-2-402(2) (Repl. 2006). We have held that under the accomplice-

liability statute, a defendant may properly be found guilty not only of his own conduct but also

of the conduct of his accomplice. Winters v. State, 2013 Ark. 193, 427 S.W.3d 597 (citing Purifoy

v. State, 307 Ark. 482, 822 S.W.2d 374 (1991)). When two or more persons assist one another

in the commission of a crime, each is an accomplice and criminally liable for the conduct of

both. Id. An admission by one does not exculpate the other. Branstetter v. State, 346 Ark. 62, 57

S.W.3d 105 (2001). It is the petitioner’s burden to show that the outcome of the proceeding

would have been different had the statement been provided to the defense, and the incriminating

material contained in it supports Hawley’s testimony about petitioner’s role in the crime with the

exception of who fired the second shot. Petitioner’s failure to show that the prosecution was

aware of the statement and his failure to establish that the outcome of the trial would have been

different had the statement been available to the defense defeat petitioner’s claim of a Brady

violation.

       Petitioner further asserts that the State’s withholding of evidence that was exculpatory

and could have been used to impeach the State’s witnesses caused his counsel to be ineffective

and, further, that there were other instances in which counsel was ineffective that did not pertain



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to the allegedly withheld evidence. We do not find that petitioner has established that he was

prejudiced by the State’s withholding of any particular evidence. Moreover, allegations of

ineffective assistance of counsel are outside the purview of a coram-nobis proceeding. Mason

v. State, 2014 Ark. 288, ___ S.W.3d ___; Wright, 2014 Ark. 25 (citing State v. Tejeda-Acosta, 2013

Ark. 217, 427 S.W.3d 673); Watts v. State, 2013 Ark. 485 (per curiam). Such claims are properly

raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal

Procedure 37.1. A petition for writ of error coram nobis is not a substitute for raising an issue

under Rule 37.1. Mason, 2014 Ark. 288, ___ S.W.3d ___; Travis v. State, 2014 Ark. 82 (per

curiam).

       Petitioner next argues that the writ should issue because his conviction was based on

testimony known by the State to be false. The argument is largely based on petitioner’s claim

that Hawley fired both shots and that the State withheld Hawley’s statement admitting to having

done so, thus violating Brady. As stated, the allegation concerning Hawley’s statement does not

rise to a Brady violation. Petitioner has not shown that there was some fundamental flaw in the

proceeding against him that warrants granting the writ. See Evans v. State, 2012 Ark. 161 (per

curiam).

       To the extent that the assertions concerning the allegedly false testimony could be

considered claims that the evidence was insufficient to sustain the judgment, issues concerning

the sufficiency of the evidence or the credibility of witnesses are not cognizable in coram-nobis

proceedings. Philyaw v. State, 2014 Ark. 130 (per curiam). Those issues are to be settled at trial,

and, when appropriate, on the record on direct appeal. Id.; Sims v. State, 2012 Ark. 458 (per



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curiam).

       Finally, petitioner asks that counsel be appointed to represent him in his coram-nobis

proceeding. As we find no merit to the petition, the motion is denied.

       Petition and motion denied.

       Steven Laron McArthur, pro se petitioner.

       Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for respondent.




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