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                    SUPREME COURT OF ARKANSAS.
                                         No.   CR-08-514


                                                  Opinion Delivered September   15, 2016
JOSEPH M. BIENEMY
                               PETITIONER
                              PRO SE PETITION TO REINVEST
V.                            JURISDICITON IN THE TRIAL
                              COURT TO CONSIDER A PETITION
 STATE OF ARKANSAS            FOR WRIT OF ERROR CORAM
                   RESPONDENT NOBIS OR ALTERNATIVELY, TO
                              RECALL THE MANDATE, OR
                              OTHER RELIEF
                              [WHITE    COUNTY       CIRCUIT
                              COURT, NO. 73CR-07-211]


                                                  PETITION DENIED.

                                         PER CURIAM

        Petitioner Joseph M. Bienemy was found guilty by a jury of being an accomplice to

 capital murder in the death of Carlos Deadmon, who was shot twenty-two times as he sat

 in his vehicle attempting to leave the Pecan Street Apartments in Searcy, Arkansas.

 Bienemy was sentenced to life imprisonment without parole. On appeal, Bienemy argued

 that the evidence presented at trial was insufficient to support his conviction. This court

 affirmed, finding that the challenge to the sufficiency of the evidence had not been

 preserved. Bienemy v. State, 374 Ark. 232, 287 S.W.3d 551 (2008). Bienemy subsequently

 filed a postconviction petition pursuant to Rule 37.1 (2008) in the trial court, which was

 denied in 2009. We affirmed that denial. Bienemy v. State, 2011 Ark. 320 (per curiam).

        Now before this court is Bienemy’s pro se application to reinvest jurisdiction in the

 trial court to consider a petition for writ of error coram nobis or, alternatively, to recall the

 mandate. Bienemy attached to his petition a supplemental crime-lab report generated in
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2009, following Bienemy’s trial and conviction that identified the presence of DNA on

items recovered from the crime scene from a second individual, Shedric Williams. Bienemy

contends that he is entitled to relief because this supplemental crime-lab report contained

material, exculpatory evidence that had been withheld by investigators and the prosecution.

       Before addressing the merits of Bienemy’s claim for relief, a recitation of the

evidence adduced at his trial is necessary. Although we did not address Bienemy’s challenge

to the sufficiency of the evidence on direct appeal, we thoroughly summarized the evidence

presented at his trial. Bienemy, 374 Ark. at 233–37, 287 S.W.3d at 552–55. The testimony

and evidence as summarized established that the shooting death of Carlos Deadmon

occurred on the morning of November 26, 2006, and that witnesses reported seeing a gray

Jeep parked behind Deadmon’s car in the parking lot of the Pecan Street Apartments prior

to the murder, and that this same Jeep was seen speeding away after the murder had

occurred. A police detective subsequently located a Jeep matching the description provided

by these witnesses at another apartment complex––the Meadow Lake Apartments–– where

it was discovered that the Jeep bore a sticker from Enterprise Rental.       Employees of

Enterprise Rental were subsequently interviewed and confirmed that the Jeep had been

rented by Bienemy on November 25, 2006. Although Bienemy told an investigator that

he had left town on November 25, 2006, and that he was out of town on the date of the

crime, police officers obtained and viewed surveillance footage from a local gas station and

testified that the video showed Bienemy exiting a gray Jeep on the morning of November

26, 2006, and paying for gas, and that it appeared as if a second person was in the vehicle.

Investigators also recovered a partially smoked cigar with a plastic mouthpiece from the

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parking lot of the crime scene. A forensic examiner testified that DNA recovered from this

mouthpiece matched a DNA sample provided by Bienemy. The testimony of Darian

Williams, who lived at the Pecan Street Apartments and regularly bought crack cocaine

from Bienemy as well as from Bienemy’s father, Joe Knight, provided evidence of Bienemy’s

motive, and stated that Deadmon had stolen a substantial amount of money from Bienemy

and Knight. According to Williams, Bienemy appeared at the Pecan Street Apartments the

day before the murder and asked Williams to let him know when Deadmon was in the area.

Williams further testified that on the date of the murder, Williams was at Knight’s apartment

to buy drugs when he saw Bienemy, accompanied by another black male, enter the

apartment carrying an object wrapped in a towel. Finally, Deadmon’s girlfriend witnessed

the shooting and testified that when Deadmon got into his vehicle, the gray Jeep backed up

while the shooter emerged from its passenger side.

       Based on the above and for the reasons stated below, Bienemy fails to establish

entitlement to coram-nobis relief. At the outset, we note that Bienemy’s alternative request

to recall the mandate is unavailing because such motions are applicable to redress errors in

the appellate process—meaning an error that this court made or overlooked while reviewing

a case where the death penalty was imposed. Ward v. State, 2015 Ark. 61, at 3, 455 S.W.3d

818, 821, cert. denied, __ U.S. __, 136 S. Ct. 326 (2015). The death penalty was not imposed

in Bienemy’s case, and the allegations contained in his petition do not pertain to errors made

in the appellate process.

       With respect to Bienemy’s petition for coram-nobis relief, a petition filed in this

court for leave to proceed in the trial court where the judgment was entered is necessary

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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. Furthermore, a writ of error coram nobis is an extraordinarily

rare remedy and its proceedings are attended by a strong presumption that the judgment of

conviction is valid. Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 42–43.

       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 trial

court 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.

       Here, Bienemy alleges that the prosecutor withheld material evidence in violation of

Brady v. Maryland, 373 U.S. 83 (1963). As stated above, in support of this claim, Bienemy

attached reports generated by the Arkansas State Crime Lab analyzing DNA samples

obtained from evidence recovered from the crime scene. The first report, dated January 9,

2007, identified and labeled this evidence as follows: a cigar with a plastic mouthpiece was

labeled Q1a; a separate cigar piece was labeled Q1b; swabs taken from the parking lot were

labeled Q2; swabs taken from a plastic filter of a cigar were labeled Q3; and cuttings from a

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paper towel from the front passenger seat were labeled Q4. This first report concluded that

Bienemy’s DNA was found on evidence labeled Q1a and that the DNA extracted from

evidence labeled Q1b included a mixture of DNA from more than one individual of which

Bienemy could not be excluded. The supplemental report dated April 6, 2009, provides

the following analysis: the DNA extracted from Q2 and Q4 was consistent with a DNA

sample provided by Shedric Williams and that Shedric Williams, like Bienemy, could not

be excluded as a contributor to the DNA extracted from the cigar piece labeled as Q1b.

       There are three elements necessary to establish 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; (3) prejudice must have ensued. Howard, 2012 Ark. 177, at 8, 403 S.W.3d at

44. 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.” Newman

v. State, 2009 Ark. 539, at 13–14, 354 S.W.3d 61, 69. The rule set out in Brady also pertains

to evidence known only to police investigators and not to the prosecutor. Id. Thus, in

order to comply with the standard set forth in Brady, a prosecutor has a duty to discover any

favorable evidence that is known to individuals who are acting on behalf of the State. Id.

When determining whether a Brady violation has occurred, it must first be established that

the material was available to the State prior to trial and the defense did not have it. Cloird

v. State, 357 Ark. 446, 452, 182 S.W.3d 477, 480 (2004).

       Bienemy was tried as an accomplice to capital murder because evidence discovered

during the investigation and presented at trial established that a second individual had acted

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in concert with Bienemy. The identity of Shedric Williams as a contributor to DNA

recovered from the crime scene was not discovered until 2009, after Bienemy’s trial and

after his conviction had been affirmed on appeal. Bienemy, 374 Ark. 232, 287 S.W.3d 551.

Bienemy fails to establish that the identity of Shedric Williams was known and withheld by

the State prior to Bienemy’s trial.     Cloird, 357 Ark. at 452, 182 S.W.3d at 480.

Furthermore, the evidence contained in the 2009 forensic report is neither material nor

exculpatory and would not have prevented the rendition of the judgment.

      The supplemental crime-lab report relied on by Bienemy merely confirms the

evidence presented at trial that he had an accomplice. Moreover, the supplemental report

does not invalidate the evidence that Bienemy was the sole contributor to the DNA found

on the plastic mouthpiece recovered from the crime scene; the circumstantial evidence

connecting Bienemy to the Jeep identified as the vehicle involved in the shooting; the

evidence and testimony that provided Bienemy with the motive and the opportunity to

commit the crime; or the evidence demonstrating that Bienemy had lied to investigators

regarding his whereabouts on the day the crime was committed. A Brady violation is

established when material evidence favorable to the defense is wrongfully withheld by the

State. Stewart v. State, 2016 Ark. 43, at 4, 481 S.W.3d 760, 763. Bienemy fails to

demonstrate that the identification of Shedric Williams’s DNA on items recovered from the

crime scene was either material or wrongfully withheld by the State. There is no showing

that DNA recovered at the crime scene and subsequently connected to a second individual

would have prevented Bienemy’s conviction as an accomplice to capital murder.

      Petition denied.

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