{ "id": 1257798, "name": "STATE of Arkansas v. Gregory LARIMORE", "name_abbreviation": "State v. Larimore", "decision_date": "2000-05-25", "docket_number": "CR 99-618", "first_page": "397", "last_page": "414", "citations": [ { "type": "official", "cite": "341 Ark. 397" }, { "type": "parallel", "cite": "17 S.W.3d 87" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "332 Ark. 184", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377651 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0184-01" ] }, { "cite": "333 Ark. 273", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703827 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0273-01" ] }, { "cite": "330 Ark. 627", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298644 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0627-01" ] }, { "cite": "335 Ark. 445", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862780 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0445-01" ] }, { "cite": "287 Ark. 430", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876573 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0430-01" ] }, { "cite": "289 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875381 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0385-01" ] }, { "cite": "292 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871158 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0465-01" ] }, { "cite": "303 Ark. 586", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882823 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0586-01" ] }, { "cite": "325 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369141 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0096-01" ] }, { "cite": "519 S.W.2d 740", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8722553 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "741" } ], "opinion_index": 0, "case_paths": [ "/ark/257/0644-01" ] }, { "cite": "251 Ark. 644", "category": "reporters:state", "reporter": "Ark.", "year": 1975, "opinion_index": 0 }, { "cite": "289 Ark. 234", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875361 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0234-01" ] }, { "cite": "336 Ark. 580", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51240 ], "weight": 5, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0580-01" ] }, { "cite": "282 Ark. 571", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740716 ], "weight": 7, "year": 1984, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ark/282/0571-01" ] }, { "cite": "286 Ark. 372", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721029 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0372-01" ] }, { "cite": "527 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248336 ], "weight": 4, "year": 1999, "pin_cites": [ { "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/527/0263-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 4, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "339 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130715 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0167-01" ] }, { "cite": "327 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922623 ], "weight": 6, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0271-01" ] }, { "cite": "317 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443763 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0111-01" ] }, { "cite": "309 Ark. 414", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906118 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0414-01" ] }, { "cite": "18 So. 2d 788", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 1964536 ], "year": 1944, "opinion_index": 1, "case_paths": [ "/fla/154/0769-01" ] }, { "cite": "337 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240967 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/337/0413-01" ] }, { "cite": "316 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907747 ], "weight": 2, "year": 1994, "opinion_index": 1, "case_paths": [ "/ark/316/0225-01" ] }, { "cite": "999 S.W.2d 684", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 243400 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/338/0608-01" ] }, { "cite": "81 S.W. 608", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1904, "opinion_index": 1 }, { "cite": "72 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505549 ], "year": 1904, "opinion_index": 1, "case_paths": [ "/ark/72/0532-01" ] }, { "cite": "24 S.W. 8", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1893, "opinion_index": 1 }, { "cite": "58 Ark. 229", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329191 ], "year": 1893, "opinion_index": 1, "case_paths": [ "/ark/58/0229-01" ] }, { "cite": "519 S.W.2d 740", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8722553 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/ark/257/0644-01" ] }, { "cite": "327 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922623 ], "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "Larimore III" }, { "parenthetical": "Larimore III" } ], "opinion_index": 1, "case_paths": [ "/ark/327/0271-01" ] }, { "cite": "317 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443763 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "Larimore II" }, { "parenthetical": "Larimore II" } ], "opinion_index": 1, "case_paths": [ "/ark/317/0111-01" ] } ], "analysis": { "cardinality": 1269, "char_count": 35321, "ocr_confidence": 0.748, "pagerank": { "raw": 1.1900327562468932e-06, "percentile": 0.9875048699750448 }, "sha256": "331773332964658b661ee753ab146b25b42491178140e71c0c2f1599a8ae4aa6", "simhash": "1:8d6ef22e15677598", "word_count": 6023 }, "last_updated": "2023-07-14T18:03:19.609022+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Samuel Turner, Judge;", "Glaze and Smith, JJ., dissent.", "Smith, J., joins this dissent." ], "parties": [ "STATE of Arkansas v. Gregory LARIMORE" ], "opinions": [ { "text": "RAY THORNTON, Justice.\nAppellee, Gregory Larimore, stice. first-degree murder of June Larimore, his wife, in 1990 and sentenced to fife imprisonment. On May 26, 1992, we reversed the conviction and remanded the case for a new trial because the jury was impermissibly allowed to take excluded evidence into the jury room for deliberation. Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). After retrial in 1993, appellee was again convicted and sentenced to twenty-five years\u2019 imprisonment. On May 23, 1994, we affirmed the second conviction. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Appellant then filed a petition for postconviction relief under Ark. R. Crim. P. 37, based on allegations of prosecutorial misconduct in faffing to disclose exculpatory evidence to the defense. The State moved to dismiss, and appellee amended his petition to assert, in the alternative, that he was entitled to relief through a writ of error coram nobis. The trial court dismissed the motion, and appellee appealed to this court from that order of dismissal. On February 10, 1997, we affirmed the motion to dismiss the Rule 37 petition, but determined that the time limits of a Rule 37 petition are not applicable to a writ of error coram nobis and granted leave to the circuit court to determine whether a writ of error coram nobis should be issued. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997); see also, Larimore v. State, 339 Ark. 167, 3 S.W.3d 680 (1999). On March 25, 1999, the Crittenden County Circuit Court granted appellee\u2019s writ of error coram nobis. The writ set aside appellee\u2019s 1993 conviction and ordered a new trial. It is from that order that the State brings this appeal. Because we find no reversible error, we affirm the trial court.\nShortly before noon on January 11, 1990, the body of June Larimore was found on the bedroom floor of her Blytheville home. She had been stabbed in the face, torso, arms, hands, and legs 134 times, apparently with a knife that had been wiped clean and replaced in a cutlery block in the kitchen. The body was nude except for panties rolled down around the hips in a manner which would be consistent with dragging the body by the hands from the bed to the floor. There was a deep stab wound in the pelvic area, but no corresponding cut in the panties. Samples from her vagina did not indicate that a sexual attack had occurred. Body temperature was 91.2 degrees at 12:10 p.m.\nWhen the body was found, a nearby outside door was unlocked, the stereo sound system was still on, her watch and rings were still in place, and her open purse containing cash appeared not to have been disturbed. There was evidence that a violent struggle had occurred in the bedroom, and the bathroom sink appeared to have been wiped off, but the rest of the home appeared to be undisturbed except for the telephones. A telephone in the living room and a cordless phone in the hallway were unplugged, and the cord to a phone in the bedroom was severed. The sheets on the bed were soaked with blood, and some of appellee\u2019s clothes were found under the corpse.\nAppellee, June Larimore\u2019s husband of one year, arrived for work at a family business at about 6:45 a.m. on the day June\u2019s body was discovered and worked routinely throughout the morning, showing no signs of stress or emotional upset. When contacted by the Blytheville police, he said that he and June had come home from a wake between nine and ten the previous evening. Appellee told the police that he had fallen asleep on a couch, woke up at 6:00 a.m., and left for work at the family farm supply business at 6:30 a.m. on the morning the body was found. In another statement, he said he awoke around 3:00 a.m. and got into bed with June, where he slept until 6:00 a.m.. Another version was that he woke up at 3:00 a.m., but decided not to disturb June by getting into the bed. He said that when he left home at 6:30 a.m., June was alive and asleep, wearing only a pair of panties. It was undisputed that appellee reported to work at the family business shordy after 6:45 a.m., that he had no blood on him, and that his appearance was normal.\nNo motive was established for the murder. The State\u2019s case was wholly circumstantial, structured on the theory that she was murdered between 2:00 a.m. and 4:00 a.m. and, hence, was not alive when appellee left for work at 6:30 a.m. Thus, the time of death was a crucial element in the case. The State had to establish that the murder took place before appellee went to work. The State attempted to prove this element with the testimony of a forensic pathologist, Dr. Fahmy Malak, the former state medical examiner, who testified that the victim died as early as 1:00 a.m. or 2:00 a.m. on the morning the body was found. Appellee provided expert testimony which contradicted Dr. Malak\u2019s opinion of the time of death and suggested that death occurred between 7:00 a.m: and 8:00 a.m. The prehminary state medical report of the time of death had shown the time as 7:00 a.m., but that line had been whited-out and the word \u201cunknown\u201d substituted. Copies of this original document showed the word \u201cunknown\u201d but did not reveal the whited-out alteration. Appellee was found guilty of June Larimore\u2019s murder in 1993. We affirmed appellee\u2019s conviction in 1994, and civil litigation ensued. During depositions for that litigation, it was discovered that prosecutorial misconduct had occurred. Specifically, it was discovered that the Blytheville Police Department knew that Dr. Malak had first concluded that the time of death was after appellee had left for work and this evidence was not given to the defense.\nIn 1997, this matter was once again before this court. See Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). In order to test whether a writ of error coram nobis must be filed within the time limits applicable to a Rule 37 petition, the State stipulated that material exculpatory evidence had been withheld and that this prosecutorial misconduct was a violation of the due process requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). The stipulation was conditioned upon the premise that even if the stipulated misconduct had occurred, the petition for relief was untimely; and the stipulation was to be withdrawn if the court decided the petition was not time-barred. On February 10, 1997, we affirmed the dismissal of appellee\u2019s Rule 37 petition, but determined that the time limits for a Rule 37 motion are not applicable to a petition for a writ of error coram nobis.\nWe held that due diligence is required in making application for error coram nobis relief, and that because appellee\u2019s petition for a writ of error coram nobis was not untimely, we granted leave to the circuit court to determine whether a writ should be issued. The trial court conducted a thorough and careful review of appellee\u2019s petition. At the conclusion of this review, the trial court granted appellee\u2019s petition and the State appealed.\nThe State asserts two points for reversal. Because we consider the State\u2019s second point on appeal to be the threshold issue we will address it before determining whether the trial court properly granted appellee\u2019s petition for a writ of error coram nobis. The State argues that the trial court erred when it found that the concealment of exculpatory evidence constituted a Brady violation. As we consider whether the State\u2019s withholding of evidence was a Brady violation, it is useful to identify the evidence that the State is challenging. Specifically the trial court found the following suppressed evidence:\n1. Dr. Fahmy Malak\u2019s opinion given to Captain Hill of the Blythe-ville Police Department on January 12, 1990, that the time of death of June Larimore was \u201csix, six to seven\u201d o\u2019clock.\n2. Captain Hill informing Dr. Malak on January 12, 1990, that if the time of death was \u201csix, six to seven\u201d o\u2019clock then appellee had an iron-clad alibi. Specifically, Dr. Malak told Captain Hill that he needed to look at the husband. In response to this advice, Officer Hill told Dr. Malak that appellee had an iron-clad alibi if the time of death was \u201csix, six to seven\u201d o\u2019clock.\n3. A taped phone conversation between Chief Christie and Dr. Malak on January 12, 1990, concerning the time of June Larimore\u2019s death. Chief Christie of the Blytheville Police Department spoke with Dr. Malak on January 12, 1990, after Dr. Malak had spoken with Captain Hill, and Dr. Malak, without reviewing additional evidence, changed his opinion of June Larimore\u2019s time of death to earlier in the morning, before six o\u2019clock. Specifically, the conversation revealed that Chief Christie knew that Dr. Malak had spoken with Captain Hill earlier in the day. When Chief Christie asked Dr. Malak for his opinion of the time of June Larimore\u2019s death, he gave an opinion of before six, early in the morning. At the time this opinion was given, Dr. Malak had not seen any photographs or the video of the crime scene.\n4. A taped conversation between Chief Christie and Captain Hill on January 12, 1990, prior to the completion of the police investigation of June Larimore\u2019s death in which they refer to appellee as \u201ca son of a bitch\u201d and in which Captain Hill states \u201cwe\u2019ve got the son of a bitch.\u201d\n5. A demand made on January 12, 1990, by the Blytheville Police Department for a warrant for appellee\u2019s arrest before the department had completed its investigation. At the time the warrant was requested, Chief Christie and Captain Hill knew that Dr. Malak had given an opinion that June Larimore\u2019s time of death was \u201csix, six to seven\u201d o\u2019clock and that after talking with Captain Hill, without reviewing additional evidence, Dr. Malak had changed his opinion. When the prosecutors refused to provide the arrest warrant the police department accused one of the prosecutors of favoritism.\nThe trial court, after identifying the exculpatory evidence that had been withheld from appellee, explained the ramifications of withholding such evidence. It found that the evidence would have: (1) been beneficial to appellee in framing questions to potential jurors in voir dire; (2) provided powerful ammunition to appellee for use during the cross examination of Captain Hill, Chief Christie, and Dr. Malak; (3) been useful in establishing biases of the Blythe-ville Police Department and Dr. Malak; and (4) provided valuable information for appellee to use during opening statement and closing argument. The trial court concluded that the suppressed evidence was material to the guilt and punishment and that if the evidence had been disclosed, there was a reasonable probability that the result of the proceedings would have been different.\nThe Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963) held that \u201cthe suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.\u201d Id. In Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, (1999) the Court revisited Brady and explained its implications. It noted:\nWe have since [the decision in Brady] held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence. Such evidence is material \u201cif there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.\u201d Moreover, the rule encompasses evidence \u201cknown only to police investigators and not to the prosecutor.\u201d In order to comply with Brady, therefore, \u201cthe individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government\u2019s behalf in this case, including the police.\u201d\nStrickler, supra, (internal citations omitted). The Court, in Strickler, also outlined the three elements of a true Brady violation. These components include:\n(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; and (3) prejudice must have ensued.\nStrickler, supra.\nApplying this analysis to the case before us, we hold that the trial court correctly determined that the concealment of the exculpatory evidence constituted a Brady violation. First, we note that the evidence concealed was favorable to appellee both because it was exculpatory and because it was impeaching. Specifically, if the withheld evidence had been known to appellee his alibi would have been supported by the State\u2019s expert witness and his testimony as to the time of death would have been contradicted. Moreover, the evidence could have been used to impeach Dr. Malak, Captain Hill, and Chief Christie. Additionally, appellee\u2019s theory that the police were targeting him as the perpetrator of the crime without properly investigating the murder would have been bolstered. Accordingly, this evidence was favorable to appellee.\nNext, we address the question whether exculpatory evidence was suppressed by the State willfully. This evidence was known by the Blytheville Police Department since 1990 and only after two trials was it provided to appellee. We note that at trial, the trial judge, Judge Pearson, had issued a discovery order requiring the State to provide appellee with all evidence relevant to June Larimore\u2019s time of death. Although the prosecution may not have been specifically aware of the exculpatory evidence, we have stated that information held by the police is imputed to the prosecution. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). We conclude that the evidence was willfully suppressed by the State.\nFinally, to establish a valid Brady claim it must be shown that appellee was prejudiced by the suppression of the evidence. We agree with the trial court\u2019s findings that appellee was prejudiced by the withheld exculpatory evidence and that the suppressed evidence would have shown that Dr. Malak\u2019s opinion as to the time of death, which had at one time supported appellee\u2019s alibi, had been influenced and changed to assist the police and that this was not known at the time of trial by the trial court. We conclude that the trial court\u2019s finding that \u201cif said evidence had been disclosed to the defendant, there is a reasonable probability that the results of the proceedings would have been different\u201d is not erroneous, and affirm.\nBecause the suppression of the evidence by the State meets the elements outlined in Strickler, and because the evidence was material to the outcome of the trial, we hold that the trial court correctly found that a Brady violation had occurred.\nThe gravamen of the other point on appeal is that even if a Brady violation was shown to exist, that violation did not support the granting of a writ of error coram nobis, and a new trial. The State argues that the standards for error coram nobis are higher than those which must be met to find a Brady violation and that the evidence presented to the trial court did not rise to the level required to grant appellee\u2019s petition for the writ and for a new trial.\nWe recognize that a writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Literally, coram nobis means our court, in our presence, before us. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). The essence of the writ of error coram nobis is that it is addressed to the very court that renders the judgment where injustice is alleged to have been done, rather than to an appellate or other court. Black\u2019s Law Dictionary 337 (6th ed. 1990). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature that are found in one of four categories: insanity at 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. Pitts, supra.\nThe trial court has discretion to grant or deny a petition for a writ of error coram nobis. Penn, supra. The petitioner seeking the writ has a heavy burden to meet. Id. On review we determine whether the lower court abused its discretion in granting the writ and a new trial. State v. Scott, 289 Ark. 234, 710 S.W.2d 212 (1986). We have outlined the following guidelines for trial courts to consider when determining whether to grant a writ of error coram nobis:\n(1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which 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 judgment;\n(2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition;\n(3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and\n(4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts [relied] upon and not merely state conclusions as to the nature of such facts.\nPitts, supra. If it has merit, by all means a writ of error coram nobis should be granted; if the petitioner fails in his burden of proof, then at least a hearing will have resulted. Penn, supra.\nWe note that at different times throughout our jurisprudence we have used different phrases to articulate the standard for determining whether a petition for a writ of error coram nobis should be granted. For example, the language of Pitts, supra, articulated the very stringent standard that a petition for a writ of error coram nobis should be granted when an issue is not 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. Id. For this proposition we cited Penn, supra, and Troglin v. State, 251 Ark. 644, 519 S.W.2d 740 (1975). The language used in those two cases is not identical. In Penn, Justice Hickman explained that a petition for a writ of error coram nobis should be accepted only if there is an error of fact extrinsic to the record \u201cwhich might have resulted in a different verdict.\u201d Id. at 573, 670 S.W.2d at 428. In contrast, according to the language of Troglin, as well as Pitts, the writ of error coram nobis secures relief from a judgment if the error of fact extrinsic to the record \u201cwould have prevented it rendition.\u201d Troglin at 645, 519 S.W.2d at 741. We now conclude that both the \u201cmight have resulted\u201d phrase and the \u201cwould have prevented\u201d phrase turn upon the question of whether there was a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial. We note that the Supreme Court has adopted a similar standard for Brady violations in Strickler. Specifically, we hold that in our review of the granting of a petition for a writ of error coram nobis in this case and all future cases we will determine whether there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial.\nIn the case before us, the trial court held five days of hearings consisting of numerous witnesses on appellee\u2019s petition for a writ of error coram nobis, reviewed briefs submitted by the parties, and reviewed the transcripts of appellee\u2019s two prior trials and pretrials. In its twelve-page opinion which incorporated by reference a 228 page letter opinion, the trial court found that the prosecution suppressed and withheld favorable evidence from appellee. The trial court found that \u201cthe time of death was the sole issue of fact presented by the evidence\u201d and the exculpatory evidence which was withheld related to this issue. The trial court also found that:\nAfter throughly reviewing all of the old evidence in this case, and the new evidence withheld by the prosecution from the petitioner, the court finds the suppressed evidence to be material to the guilt and punishment and that if the said evidence had been disclosed, there was a reasonable probability that the results of the proceedings would have been different. Also judgment in this case was rendered while there existed facts which would have prevented its rendition if they had been known to the trial court.\nEstablishing the time of death was the key to the State\u2019s case against appellee at trial. The State\u2019s theory was that if the murder occurred prior to 6:30 a.m., appellee was the only person who could have committed the crime and used Dr. Malak\u2019s opinion as to the time of death to establish this theory. The exculpatory evidence, which had been concealed by the State and was unknown to appellee through no fault or negligence of his own, supported appellee\u2019s alibi and contradicted the State\u2019s only expert witness. Dr. Malak\u2019s original opinion as to the time of death was about the time at which appellee was reporting to work. After Dr. Malak was informed by Captain Hill that appellee had an alibi for that time, Dr. Malak, without reviewing additional evidence, changed his opinion. Because this case involves material exculpatory evidence withheld by the prosecutor, a situation in which we have previously identified as worthy of error coram nobis relief, and because there is a reasonable probability that the judgment would not have been rendered if this withheld evidence had been known at the time of entry of the judgment, we conclude that the trial court did not abuse its discretion in granting appellee\u2019s petition for a writ of error coram nobis, and ordering a new trial, and we affirm the trial court\u2019s order.\nWe note that this decision does not impose restrictions on the use of other expert opinions or presentation of other theories relating to the question of guilt or time of death nor does this decision limit the production of additional evidence that may be useful in the development of the issues that may arise in appellee\u2019s new trial.\nAffirmed.\nGlaze and Smith, JJ., dissent.\nWe note that Penn created an additional situation in which a writ of error coram nobis may be proper. In Penn, we held that the writ was available in the limited circumstances in which an exculpatory confession is discovered after an individual has been convicted and before he has completed his appeal. Penn, supra.\nWe note that the \u201cmight have resulted\u201d language and the \u201cwould have prevented\u201d language were both reflected in Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). The \u201cmight have resulted\u201d language was used in Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990); Edgemon v. State, 292 Ark. 465, 730 S.W. 2d 898 (1987); and Williams v. State, 289 Ark. 385, 711 S.W. 2d 479 (1986). The \u201cwould have prevented\u201d language was used in Bell v. State, 287 Ark. 430, 700 S.W. 2d 788 (1985); McCarty v. State, 335 Ark. 445, 983 S.W. 2d 418 (1998); Brown v. State, 330 Ark. 627, 955 S.W. 2d 901 (1997); Mosley v. State, 333 Ark. 273, 968 S.W. 2d 612 (1998) and Pacee v. State, 332 Ark. 184, 962 S.W. 2d 808 (1998).", "type": "majority", "author": "RAY THORNTON, Justice." }, { "text": "Tom Glaze, Justice,\ndissenting. I respectfully dissent. The majority opinion inappropriately utilizes the ancient, extraordinary writ of error coram nobis to allow Gregory Larimore another trial in the stabbing death of June Larimore. First, the writ is inapplicable to the facts in this case, and, second, even if it were, the majority errs by adopting a new liberal standard in granting such writs by stating in \u201call future cases we will determine whether there is a reasonable probability that if the withheld exculpatory evidence had been known at the time of the entry of the judgment, the judgment would not have been rendered.\u201d\nA writ of error coram nobis is used to correct an alleged error of fact not appearing upon the record and is cognizable in the same court in which the cause was originally tried. Arkansas case law is well established that the writ is not used to contradict or put in issue any fact that has already been adjudicated in the action. See Howard v. State, 58 Ark. 229, 24 S.W. 8 (1893); Linton v. State, 72 Ark. 532, 81 S.W. 608 (1904); see also Woods, The Writ of Coram Nobis in Arkansas, 8 Ark. L. Bul. 15 (1940).\nIn Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997) (Larimore III), we returned this case to the circuit court to determine if a writ should be issued and a new trial granted. The Larimore III decision was decided based on Gregory Larimore having learned after the trial in Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994) (Larimore II), that one of the opinions of the State\u2019s witnesses, Dr. Fahmy Malak, was that June\u2019s time of death was between 6:00 and 7:00 a.m. Gregory Larimore testified he was at work at 6:45 a.m. the morning June was stabbed to death. Larimore claims if he had known of Malak\u2019s 6:00 to 7:00 a.m. opinion, rather than the 1:00 to 2:00 a.m. opinion that Malak adhered to at trial, he could have undermined the State\u2019s theory that June was killed at about 1:00 a.m., when Gregory was known to be in the house.\nThe problem with Larimore\u2019s argument is that the time-of-death issue was otherwise litigated extensively in Larimore II \u2014 so much so that even the defense experts\u2019 testimony supported the State\u2019s case that Gregory Larimore was at home when June was killed. For example, defense medical expert, Dr. Frank Cleveland, testified that June Larimore\u2019s death could have been four and one-half hours to six hours before the rectal temperature was taken from June\u2019s body at 12:10 p.m. (the day of the murder), which would put her death between 6:10 a.m. and 7:40 a.m. Defense medical expert, Dr. 'Werner Spitz, also testified that June\u2019s time of death was from four and one-half to five and one-half hours earlier, plus forty minutes for the struggle with her attacker, which would place June\u2019s death between 6:00 a.m. and 8:10 a.m. Both Cleveland and Spitz strongly disagreed with Dr. Malak\u2019s opinion that June\u2019s death occurred between 1:00 and 2:00 a.m.\nAt trial, the prosecuting attorney argued that Drs. Cleveland\u2019s and Spitz\u2019s opinions offered a time of death that allowed the jury to find Gregory Larimore was in the house and not at work when June was murdered. It is significant to keep in mind that, while June\u2019s time of death was placed at times when Gregory Larimore was at home, the struggle and stabbings took place about forty minutes earlier because it took that much time for her to die. The prosecutor argued to the jurors that, if they found June\u2019s death occurred between the times given by the experts \u2014 12:00 a.m. and 6:00 a.m. or 6:40 a.m., Gregory Larimore was the person who killed June. In short, the jury did not have to rely on Dr. Malak\u2019s testimony concerning June\u2019s time of death when it had the defense experts\u2019 opinions to rely on.\nIt is also significant that Larimore\u2019s counsel vigorously cross examined Dr. Malak about his report, which reflected it had been altered and whited out. Their questioning was directed toward showing Malak was being less than honest in giving his 1:00 a.m. to 2:00 a.m. opinion when Malak had given an earlier opinion that June\u2019s death occurred between 6:00 and 7:00 a.m. Larimore suggests that, given another chance, he could better cross examine Dr. Malak regarding Malak\u2019s different opinions given on the time-of-death issue. However, that issue was addressed repeatedly at the Larimore II trial, and the jury had been made well aware of the shortcomings in Malak\u2019s testimony. In addition, considering the defense medical testimony alone, it justifiably was able to conclude that Gregory Larimore was in the house when June died.\nIt is also important to look at the other evidence that shows Gregory Larimore\u2019s guilt, in addition to his presence in the home when June was murdered. In this respect, this court has held that a defendant\u2019s false or improbable explanation of suspicious circumstances may be admissible as proof of guilt. Stewart v. State, 338 Ark.608, 999 S.W.2d 684 (1999); Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994). Stated in different terms, the court has held that a jury may infer a defendant\u2019s guilt from improbable explanations of incriminating conduct. Byrd v. State, 337 Ark. 413, 992S.W.2d 759 (1999).\nHere, Gregory Larimore gave three different stories, concerning what he did the night before and the morning ofjune\u2019s murder. One, he told an officer he fell asleep on the couch the night before, woke up at 6:00 a.m., and went to work at 6:30 a.m. Two, he explained that he awoke around 3:00 a.m. and got in bed with June, where he slept until 6:00 a.m. Three, he woke up at 3:00 a.m., but decided not to get in bed with June. The testimony showed that June was initially stabbed in her bed and dragged from the bed to the floor. The perpetrator cleaned the knife used in the stabbings, returned it to the butcher block in the kitchen, and then wiped and cleaned the bathroom. The State\u2019s theory was that Gregory Larimore cleaned his fingerprints from the knife, proceeded to wash himself in the bathroom, cleaned the bathroom, and then went to work.\nAlso inconsistent with Gregory Larimore\u2019s story that he fell asleep on his couch and had not left the house that night or morning was the testimony of a neighbor, Donna Banks, that she heard a loud noise at about 11:00 to 11:30 p.m. the night before June\u2019s death. Banks looked out her window and saw the Larimore\u2019s porch light come on and go off, but the carport light remained on. She averred that Gregory Larimore\u2019s truck was not there. The State submits Larimore lied about his whereabouts during the late hours of the night, and a person could reasonably infer that his absence was reason enough to show a quarrel had arisen between him and June. Furthermore, the State urged at trial that a reasonable inference could be drawn that the viciousness of the stabbing attack on June was committed out of passion, and not by a person merely seeking to burglarize the home or to commit a theft. Moreover, there was no evidence that rape or a sexual crime was a motive in the killing.\nAlso consistent with the State\u2019s theory was testimony given by another neighbor, Daniel Mann, who said he heard a disturbance at the Larimore\u2019s house between 2:00 to 4:30 a.m. when the Larimore\u2019s dog was barking. Again, the State\u2019s case was that something was going on in the Larimore household other than Gregory Larimore being fast asleep on the couch or on June\u2019s bed.\nFinally, Gregory Larimore\u2019s odd reaction to learning about June is a common-sense factor the jury considered. For instance, when Gregory Larimore\u2019s sister-in-law called him at work and told him to come home immediately because June was hurt, he first called his mother. And when he got home and was told that his wife was dead, he never asked what happened, even though police cars were all around the place.\nBecause strong circumstantial evidence exists to show that no one other than Gregory Larimore could have or would have committed June\u2019s murder, the jury\u2019s decision in finding him guilty was a proper one. Moreover, Gregory Larimore has not shown that a new trial would do anything but put into issue any facts that have not already been adjudicated. The only real reason on which Larimore seeks a writ calling for a new trial is to question Dr. Malak\u2019s credibility and opinion testimony, and Larimore\u2019s counsel thoroughly did that in Larimore II. At the same time, Larimore\u2019s own medical experts\u2019 testimony reasonably showed that Larimore was at home when June was murdered, making him the murderer.\nThe majority opinion also errs by adopting an entirely new standard of review in writ of error coram nobis cases. The opinion holds that, in our review of the granting of such writs \u2014 in this case and in future cases \u2014 \u201cwe will determine whether there is a reasonable probability that if the withheld exculpatory evidence had been known at the time of the entry of the judgment, the judgment would not have been rendered.\u201d\nFirst, the majority court ignores the law of the case. This court in Larimore III established that the trial court should follow Arkansas\u2019s long-settled law when considering whether to grant a writ and instructed the circuit judge to follow the guidelines set forth in Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975), which provide in relevant part as follows:\nThe function of the writ of error coram nobis is to secure relief horn a judgment rendered while there existed some fact which 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 judgment. (Emphasis added.)\nIn Larimore III, the court, citing from Thompson v. State, 18 So. 2d 788 (Fla. 1944), further stated that \u201cbefore a writ of error coram nobis may issue it must appear that the facts alleged as grounds for its issuance are such as would have precluded the entry of a judgment had they been available at the trial; not that such facts might have produced a different result had they been known to judge and jury.\u201d (Emphasis added.) The majority court commits fundamental error in this case by failing to follow the standard of review set out in Troglin and Larimore III. In sum, the most that a new trial of this case might produce is a different result. Such a possibility falls short of the proof needed to grant a writ under Troglin and Larimore III.\nIn conclusion, it is my view that, even if I could agree with the majority court\u2019s decision to adopt the broad and more liberal rule of \u201creasonable probability,\u2019\u2019(which I cannot) the facts here do not permit a new trial. To the contrary, the evidence reflects the reasonable probability that the conviction judgment entered against Gregory Larimore would again be entered, even though Larimore would have an additional statement with which to impeach Dr. Malak\u2019s earlier testimony. Larimore\u2019s counsel thoroughly impeached Malak\u2019s opinion testimony in Larimore II, and questioned his honesty and integrity in altering his autopsy report. Once again, the jury had ample medical testimony from the defense\u2019s medical experts which the prosecutor argued to the jury and which the jury undoubtedly relied on when it decided June\u2019s time of death.\nFor the reasons above, I believe the trial court erred in granting a new trial.\nSmith, J., joins this dissent.", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Mark Pryor, Att\u2019y Gen., by: David R. Raupp, Ass\u2019t Att\u2019y Gen., for appellant.", "Daniel G. Ritchey; Bill W. Bristoe; and Kent J Rubens, for appellee." ], "corrections": "", "head_matter": "STATE of Arkansas v. Gregory LARIMORE\nCR 99-618\n17 S.W.3d 87\nSupreme Court of Arkansas\nOpinion delivered May 25, 2000\nSamuel Turner, Judge;\nMark Pryor, Att\u2019y Gen., by: David R. Raupp, Ass\u2019t Att\u2019y Gen., for appellant.\nDaniel G. Ritchey; Bill W. Bristoe; and Kent J Rubens, for appellee." }, "file_name": "0397-01", "first_page_order": 423, "last_page_order": 440 }