Petition — Pickens v. Arkansas

Supreme Court brief1981

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80 - 6299

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No. A-697

EDWARD CHARLES PICKENS, PETITIONER,

Vv.

STATE OF ARKANSAS, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

| E. ALVIN SCHAY

—"

FILED

MAR 3 1981

| Nexander L. Stevas, Clerk |

- ee oe

ARKANSAS APPELLATE PUBLIC DEFENDER

BY: RAY HARTENSTEIN

CHIEF DEPUTY DEFENDER

SUITE 714, 1515

BUILDING

LITTLE ROCK, ARKANSAS 72202

(501) 370-5515

COUNSEL FOR PETITIONER

INDEX

Page

OPINION BELOW 1

JURISDICTION 1

QUESTIONS PRESENTED 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 2

STATEMENT OF THE CASE 6

REASONS FOR GRANTING THE WRIT

PETITIONER WAS DENIED DUE PROCESS OF LAW BY THE

AFFIRMANCE OF HIS CONVICTION AND SENTENCE OF DEATH

WHERE THE JURY MADE TOTALLY INCONSISTENT FINDINGS

WITH REGARD TO AN ESSENTIAL ELEMENT OF THE CRIME

CHARGED BECAUSE:

1. THE DUE PROCESS CLAUSE PROTECTS ANY

ACCUSED AGAINST CONVICTION EXCEPT UPON

EVIDENCE SUFFICIENT TO SUPPORT THE

CONCLUSION THAT EVERY ELEMENT OF THE

CRIME CHARGED HAS BEEN ESTABLISHED BEYOND

A REASONABLE DOUBT; AND

2. ON APPEAL PETITIONER WAS ENTITLED TO HAVE

THE VALIDITY OF HIS CONVICTION AND

SENTENCE APPRAISED ON CONSIDERATION OF

HOW THE ISSUES WERE DETERMINED IN THE

TRIAL COURT; AND

3. AN ESSENTIAL ELEMENT OF THE CRIME FOR

WHICH PETITIONER WAS CONVICTED AND

SENTENCED TO DEATH, MURDER IN THE

FURTHERANCE OF A ROBBERY, WAS THAT A

ROBBERY WAS ATTEMPTED OR COMMITTED; AND

4. THE JURY RETURNED A GENERAL VERDICT OF

GUILTY OF THE CRIME CHARGED BUT AN

INCONSISTENT SPECIAL VERDICT THAT THE

MURDER WAS NOT COMMITTED FOR "PECUNIARY

GAIN", A PHRASE INTERPRETED BY THE

ARKANSAS SUPREME COURT TO MEAN IN THE

PERPETRATION OR ATTEMPTED PERPETRATION OF

A ROBBERY. 9

THE ARKANSAS SUPREME COURT'S FAILURE TO REVIEW

CONSTITUTIONAL ERROR IN THE RECORD DENIED

PETITIONER EQUAL PROTECTION AND HIS RIGHT UNDER THE

EIGHTH AND FOURTEENTH AMENDMENTS TO MEANINGFUL AND

RESPONSIBLE REVIEW OF HIS CONVICTION AND SENTENCE

TO ENSURE THAT THE SENTENCE OF DEATH IS NOT

ARBITRARILY OR CAPRICIOUSLY IMPOSED. 14

CONCLUSION 26

APPENDIX Az

ea | TABLE OF CASES

Page

Bly v. State, 263 Ark. 138, 562 S.W.2a 605 (1978). . . . 10,11,12,13,17 .

Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729

(1978) . . . . . . . . . . > . . . . ° . * . . . . . 12

Case v. Nebraska, 381 U.S. 336 (1965)... - »+ «+ + «+ «+ + « 19

Clark v. State, 264 Ark. 630, 573 S.W.2d 622 (1978). . . 20,22

Clark. v. State, 255 Ark. 13, 498 S.W.24 57 (1973) . . . 22,23,24

Cole v. Arkansas, 333 U.S. TGR TEOSS ds. Ss es es ees eo SES

Collins v. State, 261 Ark. 195, 548 S.W.2d 106... . . 11,13,16,17,

(1977), cert. denied, 434 U.S. 878 (1977). 20,21,22

Davis v. Georgia, 429 U.S. 122 eS). > Pre a ae ee

Douglas v. Alabama, 9300 U.8.. 423 (i96S is 3 oe tt eo ee AS,89

Furman v. Georgia, 408 U.S. 238 [3978s Bowe a a Se ee eee

Gardner v. Florida, 430 U,S. 349 (197) .« « « + «© + « + « 13,16,17

Giles v. State, 261 Ark. 413, 549 S.W.2da 479 (1977),

cert. denied, 434 U.S. 894 (1977). . «= «© «© «© «© © » « iil

Godfrey v. Geor ia, 446 U.S. , 100 S.Ct. 1759,

L.Ed. (1980). . . . . . 7 - 7 . . . . 7 . . 14,15

Gregg v- Georgia, 428 U.S. 153 CID TO Ba: esa ee ae Bee ee

Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463

ti976) . . . . . . . . . . . . . . . . . . . . 7 . . 23

Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73

Tho!) core. denied, 439 U.S. 882 (1978)... .. . 12,18

Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980)

In re Winship, 397 U.S. 358 (1970)... 1... ++ 10

Jackson v. Virginia, 443 U.S. 307 (1979) . . « « «+ « « « Ll

Jurek v. Texas, 428 U.S. 262 $) y | PP rae ee per ee ae ee Se

Leasure v. State, 254 Ark. 961, 487 S.W.2d 1 C3979). «0 BOs

Lewis v. State, 265 Ark. 132, 577 S.W.2d4 415 (1979). . . 24

Leng Ve Iowa, 385 U.S. 290 (1966). . . . . . 7 . . . . . 18, 22

Miller v. State, 270 Ark. 341, i S.W.2d

June 23, 1980), petition for cert. docketed,

No. 80-5969 (December 23, 1980 ). . . . * * ae. . . 7 12, 16

NAACP v. Alabama ex rel. Flowers, 377 U.S. 288

(1964) . . . . . * . . . . . . . . . . . * . . . . . 19

Neal v. State, 259 Ark. 27, 531 S.W.ed 17 (1975),

vacated on other grounds, 429 U.S. 966 (1976). ... 11

Neal v. State, 261 ‘Ark. 336, 548 S.W.24.135 (1977),

cert. denied, 434 U.S. 878 (1978).". . ee ee ee mr

Neal v. State, 270 Ark. 442, = S.W.2d

(September 29, 1980) . o . . . . . . . . 6.6 . . . . 17,18, 24

Pickens v. State, 266 Ark. 486, 586 S.W.2d 1

(1979) . o 7 . . . . 7. > . . . . . . . . . . . o

Pipefitters Local Union No. 562, et al. v- Unites States,

407 (1972).

[¢) U.S. e e e . . . . . . . . . e . .

Presnell v. Georgia, 439 U.S. 14 (1978). - + + ++ +>

Proffitt v. Florida, 428 U.S. 242 (1976) - - + +++ -s

Ruiz & Van Denton v. State, 265 Ark. 875, 582

S.W. 34 915 (1979) . . . . . . . >. . * 7 . .* a . .

Smith v. Bennett, 365 U.S. 708 (1961). . «© «© «© « «© © «

State v. Scarmardo, 263 Ark. 396, 565 S.W.2da 414 (1978).

Thacker v. Urban, 246 Ark. 956, 440 S.W.2da 553 (1969).

Wesley v. State, 265 Ark. 406, 578 S.W.2a 895 (1979) .

Witherspoon v. Illinois, 391 U.S. 510 (1968). . +. +

Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1979),

cert. denied, 439 U.S. Ai (1979) . . . ~ . . .

Woodard v. State, 268 Ark. 358, S.W.2da

(April 14, 1980) . . . . . * . > oe . a . . . . ¢ 7

Wright v. Georgia, 373 U.S. 284 CROSS se 0 OS ee ee

Young v. Ragan, SO ULE, SOE TiSeOss. ve ee Ne ewe

iii

18,22

18,19

11,13,

16,20

21,22

13,19

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

EDWARD CHARLES PICKENS, PETITIONER,

Vv.

STATE OF ARKANSAS, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

The petitioner, Edward Charles Pickens, respectfully prays

that a writ of certiorari issue to review the judgment and opi-

nion of the Supreme Court of Arkansas entered in this proceeding

on November 3, 1980.

OPINION BELOW

The opinion of the Supreme Court of Arkansas was unpublished

and thus is an unreported opinion. A copy of the opinion appears

in Appendix A.

JURISDICTION

The initial opinion of the Supreme Court of Arkansas,

affirming petitioner's conviction and sentence, was filed on

June 6, 1977. Petition for writ of certiorari to the Supreme

Court of Arkansas was denied by this Court on February 27, 1978.

Petitioner subsequently sought permission from the Supreme Court

of Arkansas to seek post-conviction relief in the trial court and

to obtain a transcript of the jury selection proceedings.

Petitioner sought permission to seek post-conviction review of

his constitutional contentions that he was denied rights secured

to him by the Fifth, Sixth, Fighth, and Fourteenth Amendments.

In an unpublished opinion delivered November 3, 1980, permission

to seek review in the trial court was denied. A timely petition

for rehearing was denied on December 4, 1980. An application for

order extending the time for filing this petition for writ of

certiorari was filed on February 2, 1981, and an extension

granted until March 4, 1981. This Court's jurisdiction is

invoked under 28 U.S.C. §1257(3), petitioner asserting here and

having asserted below a deprivation of rights secured by the

Constitution of the United States.

QUESTIONS PRESENTED

1. Whether petitioner's conviction and sentence are void

under the Due Process Clause due to a failure to establish every

element of the crime charged where an essential element to be

proved beyond a reasonable doubt is that the murder was committed

during the perpetration of a robbery, or for pecuniary gain, and

the jury returned a special verdict that the murder was not com-

mitted for pecuniary gain, or in the furtherance of a robbery.

2. Whether petitioner was denied his right under the Fighth

and Fourteenth Amendments to meaningful and responsible review of

his conviction and sentence to insure that the sentence of death

was not arbitrarily or capriciously imposed by the failure of the

Supreme Court of Arkansas to meaningfully review petitioner's

consititutional contentions at any stage of the appellate

process, despite its mandatory statutory duty to review all

errors prejudicial to the rights of the petitioner.

CONSTITUTIONAL AND STATUORY PROVISIONS

This case involves the following constitutional and statutory

provisions (quoted in relevant part only).

l. The Fifth, Sixth, Eighth, and Fourteenth Amendments to

the Constitution of the United States.

2. Act 438 of 1973, sections two, ten, eleven and thirteen,

codified as Ark. Stat. Ann. §§41-4702 and 41-4710, et seq.

(Supp. 1973), repealed as of January 1, 1976.

§$41-4702. Capital felonies - Definitions. - The following

crimes shall be capital felonies punishable as provided in

eT ee WINS ee ee PR ewer era a Pr Fr Veet nee

Section 6 [§41-4706] hereof:

(A) the unlawful killing of a human being when committed by

a person engaged in the perpetration of or in the attempt to per-

petrate arson, rape, robbery, burglary, kidnapping, or mass tran-

sit piracy;

§41-4710. Trial Procedure - Verdict in writing. - A person

charged with a capital felony shall be given a jury trial and

sentenced pursuant to the following procedure:

(a) After presententation of all evidence and witnesses to

be offered by the State and/or the defendant as to the guilt or

innocence of the defendant, instructions to the jury, and argu-

ment by counsel, the jury shall retire and consider the case.

(b) If the jury finds the defendant guilty of a capital

felony, the same jury shall sit again to determine whether the

defendant shall be sentenced to death or life imprisonment

without parole.

presented as to any matters relevant to sentence and shall

include matters relating to any of the aggravating or mitigating

circumstances enumerated in Sections 11 [§41-4711] and 12

($41-4712] of this act. The State and the defendant or his coun-

sel shall be permitted to present argument for or against the

sentence of death.

(a4) After hearing all the evidence as to sentence, the jury

shall again retire and render a sentence based upon the

following:

(i) whether beyond a reasonable doubt sufficient aggravating

circumstances, as enumerated in Section 11 [§41-4711] of this

act, exist to justify a sentence of death;

(ii) whether sufficient mitigating circumstances as enu-

merated in Section 12 [§41-4712] of this act exist to justify a

sentence of life imprisonment without parole.

(e) The jury in rendering its verdict shall set forth in

writing its findings as to each of the agcravati-g or mitigating

circumstances enumerated in Sections 11 ($41-47119 ana

. 12 [§$41-4712] hereof and shall set forth in writing its

4 conclusion:

7 (14) That sufficient aggravating circumstances (do or do not)

exist beyond a seasonadle doubt to justify a sentence of death;

(ii) that there are (or are not) sufficient mitigating cir-

cumstances to outweigh the aggravating circumstances.

(f) If the jury does not make the findings requiring the

death sentence by unanimous verdict, the court shall impose sen-

tence of life imprisonment without parole.

§41-4711. Aggravating circumstances. - Aggravating cir- &

cumstances shall be limited to the following:

(a) The capital felony was committed by a person under

sentence of imprisonment;

(b) the defendant was previously convicted of another capi-

tal felony or of a felony involving the use or threat of violence

to the person;

knowingly created a great risk of death to one (1) or more per-

sons in addition to the victim;

(a4) the capital felony was committed for the purpose of

avoiding or preventing a lawful arrest or effecting, an escape

from custody;

(e) the capital felony was committed for pecuniary gain; and

. (f) the capital felony was ciesakehun for the purpose of

disrupting or hindering the lawful exercise of any governmental

function, political function or the enforcement of laws.

§41-4713. Review. - Nothing herein shall be construed to

limit the powers of the Supreme Court to review and reverse the

finding of guilt for error of law, prejudice, insufficient

evidence, or any other reason now permitted on review of convic-

tions and sentences to life imprisonment.

3. Act 333 of 1971, Section eleven, codified as Ark. Stat.

$43-2725. Matters to be considered on appeal. - The Supreme

court need only to review those matters briefed and argued by the

appellant provided that where either a sentence for life impri-

sonment or death, the Supreme Court shall review all errors pre-

judicial to the rights of the appellant.

4. Arkansas Rules of Criminal Procedure, Rule 36.24 (Repl.

1977), set out in Volume 4A of the Arkansas statutes.

Rule 36.24. Matters to Be Considered on Appeal. - The

Supreme court need only review those matters briefed and argued

by the appellant provided that where either a sentence for life

imprisonment or death was imposed, the Supreme Court shall review

the entire record for errors prejudicial to the right of the

appellant.

5. Arkansas Rules of Criminal Procedure, Rule 37.1(a) (Repl.

1977).

Rule 37.1l(a). Scope of Remedy.

A prisoner, in custody under sentence of a circuit court and

whose case was not appealed to the Supreme Court, claiming a

right to be released, or to have a new trial, or to have the ori-

ginal sentence modified on the ground:

(a) that the sentence was imposed in violation of the

Constitution and laws of the United States or this state; or...

6. Arkansas Rules of Criminal Procedure, Rule 37.2

(Repl. 1977).

Rule 37.2 Commencement of Proceedings; Pleadings; Permission

of Supreme Court Following Appeal.

(a) If the conviction in the original case was appealed to

the Supreme Court, then no proceedings under this ‘rule shall be

entertained by the circuit court without prior permission of the

Supreme Court.

(b) All grounds for relief available to a prisoner under

this rule must be raised in his original or amended petition.

Any grounds not so raised or any grounds finally adjudicated or

intelligently and understandingly waived in the proceedings which

resulted in the conviction or sentence or in any other pro-

ceedings that the prisoner may have taken to secure relief from

his conviction or sentence may not be the basis for a subsequent

petition.

STATEMENT OF THE CASE

Petitioner Edward Charles Pickens was charged by amended

information filed December 20, 1975, with capital murder in

violation of Ark. Stat. Ann. §41-4702 (Supp. 1973). The infor-

mation alleged petitioner unlawfully and feloniously murdered

Wesley Noble during the perpetration of a robbery.

Trial by jury ensued on February 4, 1976, petitioner being

represented by court-appointed counsel and over petitioner's

objections, the State was represented by the district's prose-

cuting attorney and two additional special prosecutors. After a

hearing, evidence seized upon petitioner's arrest as well as a

confession and lineup identification were ruled admissible at

trial. Trial by jury concluded on February 5, 1976, the jury

finding petitioner guilty as charged and sentencing him to death

by electrocution.

The evidence presented by the State established that on the

afternoon of October 20, 1975, petitioner and two others held up

Cloud's Grocery store in Casscoe, Arkansas. During the course of

the robbery, numerous persons were shot and Wes Nobles, a

customer in the store, was killed. There was conflicting testi-

mony with regard to which of the three men actually fired the

murder weapon. There was no direct evidence establishing who

actually fired the fatal shots. At the sentencing phase of the

trial, the jury, after deliberation, unanimously found three

aggravating circumstances to exist heyond a reasonable doubt.

The jury also found that the capital felony was not committed for

pecuniary gain. Counsel presented no evidence in mitigation and

no mitigating circumstances were determined by the jury to exist.

After the trial, the court reporter's tapes of the trial were

Le 7 Te ee ee ee ee ee gg Slr ee

J Rs ‘ ¥ ;

destroyed in a fire. Petitioner's trial counsel moved for a new

trial on the ground that the record, as reconstructed from the

court reporter's shorthand notes, failed to present a complete

and accurate record and thereby deprived petitioner of his abso-

lute right to have the entire record and all errors appearing

therein reviewed by the state supreme court. The motion was

denied by the trial court. On appeal, petitioner's conviction

and sentence were affirmed, the Supreme Court of Arkansas

rejecting all of petitioner's contentions including the assertion

that the sentence of death was arbitrarily and freakishly

imposed. Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977),

cert. denied, 435 U.S. 909 (1977).

Subsequently, through present counsel, petitioner sought per-

mission to” seek post-conviction relief of his constitutional con-

tentions that: (1) his conviction and sentence were void under

the Due Process Clause and the laws of the State of Arkansas due

to the inconsistency between the jury's general verdict of quilt

and its special finding which negated an essential element of the

crime charged; (2) he was denied rights secured to him by the

Fifth, Sixth, and Fourteenth Amendments by the wrongful exclusion

from the jury of prospective jurors in violation of the rule laid

down in Witherspoon v. Illinois, 391 U.S. 510 (1968); and (3) he

was denied his Sixth Amendment right to the effective assistance

of counsel at trial and on appeal. Permission to seek review of

these contentions was denied by the Supreme Court of Arkansas.

On rehearing, petitioner asserted he was denied his right under

the Eighth and Fourteenth Amendments and the laws of Arkansas to

full and meaningful appellate review of his conviction and

sentence. Petiticn for rehearing was denied on December 4, 1980,

without opinion.

HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED BELOW

Petitioner's questions arise from his contentions in the

Arkansas Supreme Court that the application of the Arkansas death

penalty statute denied him rights secured by the Fifth, Sixth,

—— ee | hh ~~}. =, ~ rt | ~~ = __ lt ee de lcm, UT —

PETITIONER WAS DENIED DUE PROCESS OF LAW BY THE

APFIRMANCE OF HIS CONVICTION AND SENTENCE OF

WHERE THE JURY MADE TOTALLY INCONSISTENT FINDINGS

WITH REGARD TO AN ESSENTIAL ELEMENT OF THE CRIME

\ CHARGED BECAUSE:

\ l. THE DUE PROCESS CLAUSE PROTECTS AN

\ ACCUSED AGAINST CONVICTION EXCEPT UPON

\ EVIDENCE SUFFICIENT TO SUPPORT THE

| CONCLUSION THAT EVFRY ELEMENT OF THE

CRIME CHARGED HAS BEEN ESTABLISHED REYOND

A REASONABLE DOUBT; AND

2. ON APPEAL PETITIONER WAS ENTITLED TO HAVE

THE VALIDITY OF HIS CONVICTION AND

SENTENCE APPRAISED ON CONSIDERATION OF

HOW THE ISSUES WERE DETERMINED IN THE

TRIAL COURT; AND

3. AN ESSENTIAL ELEMENT OF THE CRIME FOR

WHICH PETITIONER WAS CONVICTED AND

SENTENCED TO DEATH, MURDER IN THE

FURTHERANCE OF A ROBBERY, WAS THAT A

ROBBERY WAS ATTEMPTED OR COMMITTED; AND

4. THE JURY RETURNED A GENERAL VERDICT OF

GUILTY OF THE CRIME CHARGED BUT AN

INCONSISTENT SPECIAL VERDICT THAT THE

MURDER WAS NOT COMMITTED FOR “PECUNIARY

GAIN", A PHRASE INTERPRETED BY THE

ARKANSAS SUPREME COURT TO MEAN IN THE

PERPETRATION OR ATTEMPTED PERPETRATION OF

A ROBBERY.

Petitioner Edward Charles Pickens was charged by information

with capital felony murder in violation of Ark. Stat. Ann.

§41-4702(A) (Supp. 1973), the information alleging that peti-

tioner did murder one Wesley Noble during the perpetration of a

robbery. (T. 27, 28) At the close of the evidence, the trial

court instructed the jury on the presumption of innocence and the

state's burden of proving guilt beyond a reasonable doubt.

(T. 226) With regard to the specific offense charged, the jury

was instructed as follows:

STATE'S INSTRUCTION NO. 2

Capital murder is defined by the Arkansas law as

the unlawful killing of a human being when committed by

a person engaged in the perpetration, or in the attempt

to perpetrate the crime of robbery. The manner of the

killing is not material further than it may show the

disposition of mind or the intent with which the act wes

committed.

STATE'S INSTRUCTION NO. 2A

Robbery is defined by Arkansas law as the felonious

and violent taking of any goods, money or other valuable

thing from the person of another by force or

intimidation. The manner of the force or mode of inti-

midation is not material further than it may show the

intent of the defendant. (T. 227)

After deliberation, the jury found petitioner guilty of capital

murder as charged in the information. (T. 42)

The jury was then instructed with regard to sentencing form

A, which lists the aggravating circumstances set out in Ark.

Stat. Ann. $41-4711 (Supp. 1973), and that its findings on aggra-

vating circumstances must be unanimous and beyond a reasonable

doubt. The jury was directed to check, in the appropriate place

on the form, whether each aggravating circumstance existed. (T.

238, 239) After further deliberation, the jury returned with its

designated findings of fact. The jury found three of the aggra-

vating circumstances to exist beyond a reasonable doubt: (1) the

defendant beyond a reasonable doubt had previously been convicted

of a felony involving the use or threat of violence; (2) the

defendant beyond a reasonable doubt created a great risk of death

to one or more persons in addition to the victim; and (3) the

capital felony murder was beyond a reasonable doubt committed for

the purpose of avoiding a lawful arrest. The jury concluded that

the capital felony murder was not committed for pecuniary gain.

(T. 43, 44)

According to the jury instructions and under Arkansas law, an

essential element of the crime of which petitioner was convicted

is that a robbery was attempted or committed. Ark. Stat. Ann.

$41-4702(A) (Supp. 1973). The Due Process Clause protects a

defendant against conviction “except upon proof beyond a reaso-

nable doubt of every fact necessary to constitute the crime with

which he is charged." In re Winship, 397 U.S. 358, 364 (1970).

Absent proof that a robbery was attempted or committed,

petitioner's conviction of capital murder cannot stand. Bly v.

State, 263 Ark. 138, 562 S.W.2d 605 (1978). On appeal, a

reviewing court, after reviewing the evidence in the light most

favorable to the prosecution, must determine whether any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307 (1979). However, petitioner on appeal was entitled under the

Due Process Clause to have the validity of his conviction,

including the sufficiency of the evidence, appraised on con-

sideration of the case as is was tried, and as the issues were

determined in the trial court. Presnell v. Georgia, 439 U.S. 14

(1978) and Cole v. Arkansas, 333 U.S. 196 (1948). In light of

these principles, petitioner's conviction and sentence of death

for muréer in the furtherance of a robbery cannot stand due to

the jury's special finding or determination that the murder was

not for pecuniary gain, or in the furtherance of the commission

or attempted commission of robbery.

It is firmly established that where there is an inconsistency

between a general verdict and a special verdict or finding, the

latter is controlling. Pipefitters Local Untion No. 562, et al.

v. United States, 407 U.S. 385 (1972); Wesley v. State, 265 Ark.

406, 578 S.W.2d 895 (1979); and Bly v. State, supra. Here the

jury's special finding that the murder was not committed for

pecuniary gain is inconsistent with its general verdict of guilt

of the crime charged and negates an essential element of the

crime which the jury had th find beyond a reasonable doubt,

thereby rendering the conviction void. Id.

The Supreme Court of Arkansas has characterized the aggra-

vating circumstance that the offense was committed for pecuniary

gain as a phrase “of such common understanding and practice that

it cannot be said an ordinary man or juror would have to specu-

late as to its meaning.” Neal v. State, 259 Ark. 27, 32, 531

$.W.2da 17 (1975), vacated on other grounds, 429 U.S. 966 (1976).

(Court's emphasis). In that case as well as by common

understanding and repeated judicial pronouncement, that phrase

has been interpreted to mean that the murder was committed in the

perpetration or attempted perpetration of a robbery. See, e-g-

Neal v. State, 261 Ark. 336, 548 S.W.2d 135 (1977), cert. denied,

434 U.S. 878 (1978); Collins v. State, 261 Ark. 195, 548 S.W.2d

106 (1977), cert. denied, 434 U.S. 878; Ciles v. State, 261 Ark.

413, 549 S.W.2d 479 (1977), cert. denied, 434 U.S. 894; Hulsey v.

State, 261 Ark. 449, 549 S.W.2d 73 (1977), cert. denied, 439 U.S.

915 (1979); Woodard v. State, 261 Ark. 895, 553 S.W.2d 259

(1977), cert. denied, 439 U.S. 1112 (1979); Miller v. State, 270

Ark. 341, __—s«S.W.2d —_s (June 23, 1980), petition for cert.

docketed, No. 80-5969 (December 23, 1980).

In the instant case, the state's opening statements, the

testimony of state's witnesses, the state's closing arguments,

and the trial court's instructions all informed the jury that the

basis for the capital murder charge against petitioner was that

he unlawfully killed another human being while engaged in perpe-

tration of or the attempt to perpetrate a robbery. The jury's

determination of guilt or innocence was necessarily restricted to

the determination of whether the state had proved beyond a reaso-

nable doubt that petitioner did in fact kill Wes Nobles for pecu-

niary gain, or in the perpetration or attempted perpetration of a

robbery. The jury found appellant guilty as charged and pursuant

to the trial court's instructions.

The jury's finding that petitioner killed Wes Nobles in the

perpetration of a robbery at the guilt stage of the trial is

inconsistent with their finding on aggravating circumstances at

the sentencing phase. The jury there found that the murder was

not committed for pecuniary gain or, in other words, in the per-

petration or attempted perpetration of a robbery. The validity

of petitioner's conviction and sentence can only be appraised on,

consideration of the case as it was tried, and the issues deter-

mined in the trial court are conclusive. Presnéll v. Georgia,

supra; Cole v. Arkansas, supra; and Bly v. State, supra.

The jury's findings are inconsistent and ambiguous. Since

penal statutes must be strictly construed with all doubts

resolved in favor of the defendant, any inconsistency or ambi-

guity in the jury's findings must be resolved in petitioner's

favor. State v. Scarmardo, 263 Ark. 396, 565 S.W.2d 414 (1978),

and Breakfield v. State, 263 Ark. 398, 566 S.W.2d4 729 (1978).

ER Re ee I

Certainly, in a case involving imposition of a sentence of death,

inconsistencies in a jury's findings at the guilt phase of the

trial and at the sentencing phase cannot be resolved on the basis

of speculation or conjecture. If the murder was not committed

for pecuniary gain, it cannot constitute murder in the

furtheraftte of a robbery, or capital murder, and reversal is

mandated, Pipefitters Local Union No. 562 v. United States,

supra; Wesley v. State, supra; and Bly v. State, supra.

Although not raised on direct appeal, due to the ineffec-

tiveness of counsel, this error is apparent on the face of the

record. By statute, Ark. Stat. Ann. §43-2725 (Repl. 1977), and

rule, Ark. Rules “rim. Pro., Rule 36.24 (Repl. 1977), the

Arkansas Supreme Court has a mandatory duty to independently

review the entire record for any errors. prejudicial to the rights

of the defendant. As explained in Collins v. State, supra, this

statutorily mandated review requires an examination of the entire

trial record, “even though the objectionable action which might

_be reversible error was no’ argued on appeal in any way." 261

Ark. at 216. The omission of counsel, in these circumstances,

did not absolve the appellate court of its duty to independently

review the record for error. See, Gardner v. Florida, 430 U.S.

349 (1977). The issue was clearly raised by petitioner in his

petition for post-conviction relief, but the Supreme Court of

Arkansas declined to review it. As will be discussed below, the

court's refusal to review this issue was based upon an unprece-

dented and ad lioc procedural rule, not heretofore applied, and is

Enadisguate to bar review of the issue by this Court. Wright v.

Georgia, 373, U.S. 284 (1963) and Douglas v. Alabama, 380 U.S.

415 (1965). The failure of the Supreme Court of Arkansas to

engage in the mandated meaningful appellate review cf

petitioner's conviction and sentence resulted in the affirmance

of a death sentence imposed upon a void conviction.

THE ARKANSAS SUPREME COURT'S FAILURE TO REVIEW

CONSTITUTIONAL ERROR IN THE RECORD DENIED PETITIONER

EQUAL PROTECTION AND HIS RIGHT UNDER THE EIGHTH AND

FOURTEENTH AMENDMENTS TO MEANINGFUL AND RESPONSIBLE

REVIEW OF HIS CONVICTION AND SENTENCE TO ENSURE THAT THE

SENTENCE OF DEATH IS NOT ARBITRARILY OR CAPRICIOUSLY

IMPOSED.

In focusing upon the procedures by which convicted defendants

are selected for the death penalty, this Court, in Furman v.

Georgia, 408 Us8— 298--(1972), expressed great concern over the

possibility of discrimination in the imposition of the sentence

of death, the infrequency of its imposition, and the inherent

problem of arbitrariness or capriciousness in the process by

which a random handful of defendants are sentenced to death. In

subsequent cases, this Court stated that the concerns expressed

in Furman could be met, at least facially, by a carefully and

narrowly drawn statute which provides sufficient standards to

suitably direct and limit the jury's discretion so as to minimize

the risk of wholly arbitrary and capricious jury action. Gregg

v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 J.S.

242 (1976); and Jurek v. Texas, 428 U.S. 262 (1976). However, it

was emphasized in each of the cited cases that there is always a

\possibilty of arbitrariness or capriciousness in a jury's

verdict, thereby necessitating the important additional safeguard

of meaningful appellate review as a check against the arbitrary

imposition, of the death penalty. The review responsibilities of,

state appellate courts must be taken seriously and that function

performed conscientiously. Godfrey v. Georgia, 446 U.S. ss

109 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Where that rev.ew func-

tion is not so performed, the goal of eliminating the concerns

expressed in Furman is doomed to failure.

Despite the existence of facially constitutional statutes and

provisions for state appellate review of death sentences, there

remain increasingly grave problems with the constitutional appli-

cation of death penalty statutes and those problems are not being

rectified by state appellate courts.! The “meaningfulness" of

state appellate review can be and has been seriously questioned.

Indeed, the frequency with which this Court has reversed deci-

sions of state supreme courts wrongfully upholding the imposition

of death sentences led Sustices Marshall and Brennan to suggest

that state appellate courts are incapable of quaranteeing the

degree of objectivity and evenhandedness that was contemplated

and hoped for in Gregg. Godfrey v. Georgia, supra, (Marshall J.,

concurring).

The case at bar presents a distressing but classic example of

the failure of an appellate court not only to responsibly and

conscientiously undertake its review responsibilities, but to

even provide an equal opportunity to obtain review of asserted

constitutional errors. The result is that by merely declining

to even review the asserted errors, a sentence of death has been

affirmed by the Supreme Court of Arkansas, despite the assertion

of constitutional errors and despite the presence on the face of

the record of inconsistent verdicts which render the conviction

and sentence void.

Where a sentence of death or life imprisonment is imposed,

the Arkansas Supreme Court, by statute, Ark. Stat. Ann. §43-2725

(Repl. 1977), and rule, Ark. Rules Crim. Pro., Rule 36.24 (Repl.

1977), has a mandatory duty to independently review the entire

record for errors prejudicial to the rights of the appellant.

Upon reconsideration of the Arkansas death penalty, statute in

light of the 1976 quintuplet offspring of Furman, the court in

1see, e.g-., Miller v. Arkansas, 270 Ark. 341, S.W. 2d

(1980), petition for cert. docketed, No. 80-5969 (Dec. 23, 1980);

Adams v. Texas, U.S. _, 65 L.Ed.2d 581 (June 25, 1980):

Beck v. Alabama, 447 U.S. , 65 L.Ed.24 392 (1980); Godfrey v.

Georgia, 446 U.S. _, 64 L.Ed.2d 398 (1980); Green v. Georgia,

U.S. 95 (1979); Presnell v. Georgia, 439 u.s. 14 (1 ? Bell

(1978); Downs v. Ohio, 438 U.S. 909 (1978); Shelton v. Ohio, 438

U.S. 909 (1978); Woods v. Ohio, 438 U.S. 910 (1978); Roberts v.

Ohio, 438 U.S. 910 (1978); Jordan v. Arizona, 438 U.s. SIL

(1978); Coker v. Georgia’ 433 U.S. Set (1977); Eberhart v.

Georgia, 433 U.S. 1977); Hooks v. Georgia, 433 U.S. 917

71 } Gardner v. Florida, 430 U.S. 34 ); Davis v.

Georgia, 429 U.s. 122 (1976).

Collins v. State, 261 Ark. 195, 216, 548 S.W.2d 106 (1977), cert.

denied, 434 U.S. 878 (1977) stressed the fact that there was

meaningful appellate review in every case of the appropriateness

of the death penalty, pointing out that the statutorily mandated

review required examination of the entire trial record for error,

even though th? objectionable action which might be ~eversible

error “was not argued on appeal in any way." (Emphasis

supplied). Counsel's failure to raise an issue involving rever-

sible error does not constitute an effective waiver of constitu-

tional error appearing on the face of the record, Gardner v.

Florida, 430 U.S. 349 (1977), and does not absolve the appellate

court of its mandatory statutory duty to review the entire record

for error. Whether the type of meaningful appellate review

discussed in Collins v. State, supra, has any continuing viabi-

lity in Arkansas has recently been a subject of doubt. Miller v.

State, 270 Ark. 341, ___ S.W.2ad __ (October 6, 1980) (Fogelman,

C. J., dissenting). Those doubts are confirmed by this case as

the appellate court, having once failed in its independent review

of the record on direct appeal to detect the reversible error in

the inconsistent verdicts, has subsequently refused petitioner

the right to even seek review of that asserted constitutional

error, and others, in a collateral proceeding.

After his direct appeal, petitioner, pursuant to Ark. Rules

Crim. Pro., Rule 37 (Repl. 1977), sought permission to seek post-

conviction review of three constitutional contentions which were

not’ raised on appeal by his trial and appellate counsel.

Specifically, petitioner contended: (1) his conviction and sen-

tence were void due to the inconsistency between the general and

special verdicts which negated an essential element of the crime

charged; (2) he was denied rights secured to him by the Fifth,

Sixth, and Fourteenth Amendments by the wrongful exclusion from

the jury of prospective jurors in violation of the rule laid down

in Witherspoon v. Illinois, 391 U.S. 510 (1968); and (3) he was

denied his right under the Sixth and Fourteenth Amendments to the

effective assistance of counsel at trial and on appeal. Although

all three contentions constituted grounds for relief under Ark.

Rules Crim. Pro., Rule 37.1(a) (Repl. 1977), the Supreme Court of

Arkansas denied petitioner permission to seek review of them. On

rehearing, petitioner asserted the court's denial of permission

to obtain review of his constitutional contentions denied him the

opportunity for the meaningful appellate review mandated by

Arkansas statute, rule, and court decision as well as by the

Eighth and Fourteenth Amendments.

Review of petitioner's contention that the inconsistent ver-

dicts rendered his conviction void was denied because that issue

had not been raised at trial or on direct appeal. (Appendix A,

p- 2). That ruling does not comport with prior precedent in

Arkansas nor with concepts of fundamental fairness. In the first

place, the Supreme Court of Arkansas had a self-declared and man-

datory statutory duty on direct appeal to review all errors on

the record even though not argued in any way on appeal. Collins

v. State, supra. The failure of counsel to raise this issue on

appeal does not constitute a waiver of the constitutional error

any more than does the failure of the Arkansas Supreme Court to

fulfill its mandated review responsibilities. See, Gardner v.

Florida, supra. The refusal of the court to grant permission to

seek collateral review of this issue, simply because not raised

on direct appeal, is fundamentally unfair in that it actually

denied petitioner his right to meaningful review because of the

ineffectiveness of his counsel and the ineffectiveness of the

appellate court in not ‘undertaking its mandated review

responsibilities.

Further, because the inconsistent verdicts render

petitioner's conviction void, Bly v. State, 263 Ark. 138, 562

S.W.2d 605 (1978) and Wesley v. State, 265 Ark. 406, 578 S.W.2d

895 (1979), the issue is one which can be raised for post-

conviction relief even though not raised at trial or on appeal.

Neal v. State, 270 Ark. 442, S.W.24 ___ (September 29, 1980)

and Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980), cert.

denied, No. 80-5204 (October 20, 1990). It is firmly established

ee — er mae

in Arkansas that points raised and disposed of on direct appeal

are not grounds that can be raised again in a petition for post-

conviction relief. Neal v. State, supra, and Ark. Rules Crim:

Pro., Rule 37.2(b) (Repl. 1977). However, the stated purpose and

function of the Arkansas rule regarding post-conviction relief is

to provide a means for determining whether any Congts Cutt onas

requirements or statutory enactments, federal or state, have been

violated, or whether the sentence is otherwise subject to colla-

teral attack. Thacker v. Urban, 246 Ark. 956, 440 S.W.2d 553

(1969). ‘Thus, in Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73

(1977), cert. denied, 439 U.S. 882 (1978), no issue was raised on

direct appeal with regard to the wrongful exclusfon of jurors in.

violation of the Witherspoon rule. Nevertheless, when that issue

was raised for the first time in a petition for Rule 37 relief,

the court deemed the allegation timely and proper, and reviewed

it on the merits. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934

(1980), cert. denied, No. 80-5204 (October 20, 1980). There is

no basis for the court's arbitrary and singular etiam to even

review the issue raised in the instant case, which issue equally

renders petitioner's conviction and sentence void as the issue in

Hulsey would have.

Having established a post-conviction procedure, a state

cannot, consistent with the Equal Protection Clause, arbitrarily

deny access to that review procedure to one person while allowing

access to another on similar claims. Long v. Iowa, 385 U.S. 290

(1966) and Smith v. Bennett, 365 U.S. 708 (1961). The stated

purpose of the Arkansas rule on post-conviction relief, providing

a means for asserting conati tit Loan violations not disposed of

on appeal, has been thwarted with regard to petitioner by the

singular application of a newly announced procedural rule, not

heretofore applied, which treats petitioner differently from

others similarly circumstanced. See, e.g., Hulsey v. State, 268

Ark. 312, 595 S.W.2d 934 (1980), cert. denied, No. 80-5204

(Qctober 20, (1980).

This Court has emphasized the need for and desirability of

et i

the states providing their prisoners some adequate corrective

process for the hearing and determination of claims of violations

of federal constitutional guarantees. See, Case v. Nebraska, 381

U.S. 336 (1965). The method by which prisoners may raise claims

of denials of federal rights must be clearly defined. Young v.

Ragen, 337 U.S. 235 (1949). State procedures which fail to pro-

vide a genuine opportunity for testing constitutional issues in

the state courts burden the federal judiciary and frustrate the

criminal justice process. Case v. Nebraska, supra, (Clark, J.,

concurring). By virtue of Rule 37, the State of Arkansas has

conferred upon its prisoners the right to assert the denial of

federal rights in collateral procedings, and those proceedings,

to be meaningful, should be sufficiently comprehensive to embrace

all constitutional claims, particularly in a capital case when

the appellate court has overlooked those errors in performing its

mandated independent review of the entire trial record on direct

appeal. When a state confers a right to raise constitutional

issues in a collateral proceeding, the assertion of those issues,

when plainly and reasonably made, should not be denied under the

name of local practice, Wright v. Georgia, 373 U.S. 284 (1963),

nor by the pointless and severe application of ad hoc procedural

rules never consistently applied before. NAACP v. Alabama ex

rel. Flowers, 377 U.S. 288 (1964). The adequacy of state proce-

dural bars to the assertion of federal rights is itself a federal

question. Douglas v. Alabama, 380 U.S. 415 (1965).

Petitioner's contention that his conviction and sentence were

void due to the inconsistent verdicts constituted an assertion of

a denial of both federal and state rights which, on the face of

the applicable rule, Rule 37.1(a), and according to precedent,

Thacker v. Urban, supra, and Hulsey v. State, supra, established

a cognizable claim for post-conviction relief, warranting not

only review but summary reversal of his conviction. In refusing

to consider the asserted error, the Arkansas Supreme Court

fashioned a new, ad hoc procedural rule which, in effect, negates

any possibility of raising claims of the denial of constitutional

rights in a collateral proceeding, rendering post-conviction

relief a virtual nullity in Arkansas. The court's ruling preclu-

des post-conviction review of all issues raised and disposed of

on direct appeal and all constitutional issues not raised on

direct appeal. The court's opinion denying review effectively

limits a defendant to one avenue of review, direct appeal, and

compounds the problem of the court's failure to meaningfully

review the entire record, as mandated by statute and rule, by

denying petitioner access to the state courts for assertion and

review of his constitutional contentions. The combination of the

failure of the Supreme Court of Arkansas to fulfill its mandatory

statutory duty to review the entire record for errors, even if

not raised on appeal, Collins v. State, supra, and the pronoun-

cement that it will not consider in a collateral proceeding errors

not raised on appeal, or which it failed to discover in its inde-

pendent review of the record, has resulted in the affirmance of a

sentence of death despite the presence of constitutional error on

the face of the record which renders the underlying conviction

void.

Petitioner was similarly denied a meaningful opportunity to

be heard on his contention that prospective jurors were impro-

perly excluded under the Witherspoon rule. Although a sentence

of death cannot be carried out if the jury imposing it was

selected by excluding veniremen for cause simply because they

voiced general objections to the death penalty, Witherspoon v.

Illinois, supra, and Davis v. Georgia, 429 U.S. 122 (1976), the

Supreme Court of Arkansas, despite its mandatory duty to review

all possible errors, never even reviewed a transcript of the voir

dire proceedings. The issue was not raised on direct appeal, but

in other death penalty cases where the issue was not raised, the

court, sua sponte, nae ordered a supplemental transcript of the

voir dire proceedings to fulfill its mandatory review

responsibilities. Clark v. State, 264 Ark. 630, 573 S.W.24 622

(1978). There is no apparent reason why this procedure was not

followed in the instant case.

In his petition for collateral review, petitioner contended

jure s were excused in violation of the Witherspoon rule, but

this contention was not reviewed because no record evidence was

pointed to in support of that allegation. Obviously, such error

is impossible to demonstrate without a transcript, and petitioner

requested that upon granting him permission to seek review of his

contentions, that the trial court be ordered to prepare the

required supplemental record.

Petitioner's attempts to obtain a transcript of the voir dire

proceedings were as unsuccessful as his attempt to obtain review

of his contentions. Initially, petitioner filed a pro se motion

for a copy or use of his trial transcript to prepare his petition

for post-conviction relief. That motion was denied, the court

pointing out that such a motion was required to be attached to or

incorporated into the actual petition for post-conviction relief.

Pickens v. State, 266 Ark. 486, 586 S.W.24 1 (1979). Present

counsel subsequently filed a petition for writ of certiorari to

have the record supplemented. The petition was filed pursuant to

Arkansas Supreme Court Rule 26 [Ark. Stat. Ann. Vol. 3A (Repl.

1979)] and Ark. Rules Appellate Pro., Rule 6 [Ark. Stat. Ann.

Vol. 3A (Repl. 1979)], and was the same procedure followed in

other cases to obtain a supplemental transcript.

In the cases of Collins v. State, supra, and Woodard v.

State, 268 Ark. 358, _so S.-W. sss (April 14, 1980), petitions

for writ of certiorari were filed to obtain transcripts of the

jury selection proceedings for preparation of petitions for post-

conviction review. In both cases the petitions were granted and

a per curiam order entered which expressly vested the trial court

with jurisdiction to entertain a motion for a supplemental

transcript. Collins v. State, (unpublished per curiam)

(November 19, 1979) and Woodard v. State, supra. This procedure

was proper because absent an express grant of jurisdiction, a

trial court has no jurisdiction to entertain any proceedings

after a direct appeal has been taken. Ark. Rules Crim. Pro.,

Rule 37.2(a) (Repl. 1977).

In petitioner's case, however, the court deviated from this

procedure. Unlike the action taken in Woodard and Collins, here

the court denied the petition. Additionally, the court did not

enter a per curiam order expressly vesting the trial court with

jurisdiction to entertain a motion for a supplemental transcript,

as it did in the two cited cases. Petitioner is aware of no

reason why he was not afforded the same treatment as the peti-

tioners in Collins and Woodard, but the failure to equally

provide petitioner with a transcript for preparation of his peti-

tion for post-conviction relief denied him the equal protection

of the law. Long v. Iowa, supra, and Smith v. Bennett, supra.

Petitioner nevertheless reiterated his request for a

transcript of the voir dire proceedings, incorporating it in his

petition for post-conviction relief in reliance upon the court's

earlier statement in Pickens v. State, supra. Petitioner did

point out that the supplemental transcript would be unnecessary

if the court reviewed and granted relief due to the inconsistent

verdicts, but has never abandoned his assertion that prospective

jurors were wrongfully excluded under Witherspoon. The actions

of the court on appeal and on petition for post-conviction review

denied petitioner the same opportunity for full and meaningful

review accorded to the appellant in Clark v. State, supra, and

the petitioners in Collins and Woodard.

Finally, petitioner was also denied a meaningful opportunity

for review of his assertion that he was denied the effective

assistance of counsel. The court denied petitioner permission to

proceed on this allegation essentially because there were no spe~

cific facts cited to support the allegations of ineffectiveness.

The court relied upon the cases of Clark v. State, 255 Ark. 13,

498 S.W.2da 57 (1973) and Leasure v. State, 254 Ark. 961, 487

$.W.24 1 (1973) which hold that in order to prevail on a claim of

ineffectiveness of counsel, one has the burden of demonstrating

that the acts oc omissions of counsel resulted ‘in making the pro-

ceedings a farce and mockery and that he was prejudiced thereby.

Petitioner here was denied the opportunity to meet that burden of

proof in an evidentiary hearing.

The Arkansas Supreme Court has repeatedly held that ineffec-

tiveness of counsel cannot be raised for the first time on appeal

for the stated reason that a trial court is in a better position

to assess the quality of representation after an evidentiary

hearing, thereby creating a record in the trial court on that

issue which would enable the appellete court “to examine in

detail the sufficiency of the representation below." Hillard v.

State, 259 Ark. 81, 84, 531 S.W.2d 463 (1976). In fact, in Clark

v. State, supra, and Leasure v. State, supra, relied upon by the

court as support for the proposition that a petitioner must

demonstrate facts to support his allegations of ineffectiveness,

the petitioners were granted permission to seek post-conviction

relief in the trial court and to develop those facts in support

of their allegations. In Clark relief was denied by the trial

court after an evidentiary hearing and on appeal from the record

made in the trial court, the appellate court affirmed because the

evidence presented by the petitioner at that hearing did not

establish facts sufficient to constitute ineffective counsel. In

Leasure relief was denied by the trial court without holding an

evidentiary hearing. On appeal the denial was affirmed, the

appellate court emphasizing:

This order was made by the same circuit judge

who tried the case, and who, as a result,

occupied the best possible vantage point from

which to evaluate the effectiveness of

appointed counsel's assistance to appellant

from a review of! files and records. His

perspective is far better than ours, because

he is not beset by the same difficulties

inherent in retrospective appellate evaluation

of a cold and unfamiliar record.

Here petitioner made numerous allegations of ineffectiveness

which could only be factually developed by the presentation of

evidence at an evidentiary hearing. These allegations could not

be adequately evaluated on a cold and unfamiliar record

(particularly when there is no full transcript of the trial) but

should have at least been presented to the trial judge who

occupied the best possible vantage point to evaluate the clains

of ineffectiveness. In other cases, the Supreme Court of

Arkansas has recognized that until the facts are completely deve-

loped at an evidentiary hearing, it would idle for them to

speculate about what rights may have been violated by counsel's

actions and what relief might there be proved to be appropriate.

Lewis v. State, 265 Ark. 132, 577 S.W.2d 415 (1979). In fact,

under similar allegations of ineffectiveness as here, the peti-

tioner in Neal v. State, 270 Ark. 442, __—ss S.W.2d

(September 29, 1980) was granted permission to develop his alle-

gations of ineffectivenss in the trial court. |

That opportunity was arbitrarily denied petitioner and there

is no rational basis for the different treatment afforded peti- |

tioner than was afforded the petitioners in Clark, Leasure, Lewis,

and Neal, to name but a few cases. The circuity of the court's

reasoning and arbitrariness of its refusal to consider the alle-

gations of error is best exemplified by the court's finding coun-

sel was not ineffective in failing to raise the issue of the

jury's inconsistent findings on appeal. That conclusion was based

upon the court's failure to find constitutional error in the

inconsistent verdicts. Yet, the absence of a finding of consti-

tutional error was due to the court's declining to review that

issue since it was not’raised by counsel at trial or on appeal.

In effect, the court avoided consideration of the issue of incon-

sistent verdicts because of the omissions of counsel, and by

bootstrapping the two issues, also avoided the issue of ineffec-

tive counsel. .

The inconsistent use of newly adopted procedural rules to bar

review in this case of petitioner's assertion of constitutional

errors denied the petitioner any genuine opportunity or adequate

corrective process for the hearing and determination of his

claims of violations of constitutional rights. The court's

insensitivity to the allegations of constitutional error poses a

greater concern than the suggestion of Justices Marshall and

Brennan that appellate courts are incapable of guaranteeing the

objective and evenhanded review contemplated and hoped for in

Gregg. The court's inaction here reflects not only an inabilty

of the court to take its appellate review responsibilities

seriously, but an actual avoidance of those review

responsibilities. The spector of an appellate court allowing the

execution of a human being, in the presence of constitutional

error on the face of the record, simply because of the ineffec-

tiveness of counsel in failing to raise the issue on appeal and

the court's failure to adequately review the entire record on

appeal as mandated, coupled with the refusal to even consider

other constitutional claims or allow them to be developed in the

trial court, is alarming and dispels any motion of meaningful

appellate review or even the opportunity therefor.

CONCLUSION

For the reasons set forth, a writ of certiorari should issué

to review the judgment and opinion of the Supreme Court of

Arkansas.

E. ALVIN SCHAY

APPELLATE PUBLIC DEFENDER

BY: RAY HARTENSTEIN

CHIEF DEPUTY DEFENDER

SUITE 714, 1515 BUILDING

LITTLE ROCK, ARKANSAS 72202

COUNSEL FOR PETITIONER

er ae er

80 - 6299

Mexender L. Stevas, Clerk

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

EDWARD CHARLES PICKENS, PETITIONER,

Vv.

ce STATE OF ARKANSAS, RESPONDENT.

APPENDIX A

Pay

NOT DESTO"* T= PN? PMETTCATION..

SEB Ron. sons Vevatss RILE 21.

‘SUPREME COURT OF ARKANSAS

Ne. CR 76-186

NOV 3 - 980

Tad

FDWARD CHARLES PICKENS PETITION TO PROCEED UNDER CRIMINAL

Petitioner PROCEDURE RULE 37

Vv.

) STATE OF ARKANSAS PETITION DENIED

: Respondent

uae PER CURIAM

Petitioner Edward Charles Pickens was found guilty of capital

. felony murder and was sentenced to death by a jury on February 5,

1976. On June 6, 1977, we affirmed the judgment on appeal. Pickens

v. State, 261 Ark. 756, 551 S.W. 2d 212 (1977), cert. denied, 435

U.S. 999 (1978). |

On September 2, 1980, petitioner filed a petition for permission ,

to proceed under Arkansas Criminal Procedure Rule 37 for postconviction

relief. Since the petition was not filea within 3 years of the

date of commitment as required by Rule 37.2(c), the petition is

untimely unless the grounds for relief would render the judgment

of conviction absolutely void. }

Rule 37 affords relief when a sentence was imposed in violation

of the Constitution or laws of the United States or this State or

"is otherwise subject to collateral attack." The rule does not serve

as a substitute for direct appeal or as a method for review of mere

error in the conduct of the trial. Neal v. State, 270 Ark _

(September 29, 1980); Hulsey v. State, 268 Ark__s, 595 S.W. 24 934

rehearing denied 599 S.W. 24 729 (1980); Clark v. State, 255 Ark

13, 498 S.W. 2d 657 (1973). It does not serve as a rehearing on

issues that were decided on direct appeal. Neal _v. State, supra;

Hulsey v. State, supra. It also does not permit matters which might

have been raised at trial or on appeal to be the basis for a post-

conviction petition unless issues so fundamental as to render the

| judgment void’ and open to collateral attack are raised. Neal vy.

State, supra; Hulsey v. State, supra. |

Vex

3 ‘Petitioner was charged with the capital felony murder of

3 Wes Noble during the perpetration of a robbery. Petitioner alleges that

although he was found guilty as charged, the jury during sentencing

did not find that the murder had been committed for pecuniary gain.

He Gidtenie that without element of pecuniary gain there was no

robbery and, this, no capital felony murder under Bly v. State,

263 Ark. 138, 562 S.W. 2d 605 (1978). He asks for a new trial or

a Haduaeion in sentence to the minimum punishment for first degree

murder.

No objection was made at rial when the allegedly inconsistent

and ambigvous verdicts were returned, nor was this issue raised

in petitioner's motion for a new trial. Moreover, this allegation

could have been raised on direct appeal, but was not. Thus, this

petition for postconviction relief is not the proper place to raise

this matter for the first time. Neal v. State, supra; Hulsey v.

State, supra.

Petitioner also alleges ineffective assistance of counsel at

both the trial and appellate levels. Counsel is presumed to be

competent intil a petitioner demonstrate facts to undermine that

assumption and shows that he was prejudiced by that ineffectiveness.

Clark v. State, supra. Counsel is ineffective when the “acts or

omissions of counsel result in making the proceedings a farce and a

mockery of justice, shocking the conscience of the Court, or the

representationrepresentation is so patently lacking in competence

or adequacy that it becomes the duty of the Court to be aware of and

correct it." Leasure v. State, 254 Ark 961, 964, 497 S.W. 24 1 (1973).

However, mere errors, Omissions or mistakes, improvident strategy or

bad tactics will not justify postconviction relief. Leasure v. State,

-Supra. Petitioner lists nine numbered allegations to demonstrate

counsel's ineffectiveness.

First, he alleges trial counsel failed to request individual voir dire

of veniremen and sequestration of veniremen during voir dire.

CR 76-186 P. 2

ee Soe 7 1 mes « FOO ee ee oh eemmeneintter mm e hmm meee meat

It is alleged that these failures lea ‘to a "superficial jury selection

process." Petitioner has not supported this conclusory allegation

with specific facts nor has he cited any authority to show that

these alleged failures were error. We cannot find any prejudice to

petitioner.

Petitioner also alleges that counsel failed to make proper inquiry

during voir dire on the veniremen's possible bias due to pretrial

publicity and on their views on capital punishment. This failure

allegedly led to exclusion of jurors in violation of Witherspoon v.

Tllinois, 391 U.S. 510 (1968). This allegation suffers the sane defect

as the previous one. Petitioner has not presented any facts to

demonstrate prejudicial pretrial publicity or improper exclusion of

veniremen. He has not shown how the veniremen were improperly excluded

or even which ones were improperly excluded. He has made no

showing that prejudicial pretrial publicity was present in Prairie -

County or that any of the veniremen were aware of it.

Petitioner's third allegation attacks counsel's adoption of a

co-defendant's pleadings instead of. filing motions for individual

and sequestered voir dire; to suppress evidence seized from the

vehicle in which petitioner was an occupant; to suppress petitioner's

confession; for expert witnesses at the penalty phase; to suppressthe

line-up identification and for eppeintnent of co-counsel to assist

in the trial. The adopted pleadings were motions for a bill of

particulars and for a change of venue. The State furnished a 9 page:

response on the bill of particulars. The trial court granted both

petitioner and that co-defendant a change of venue, but to different

places. Neither change was to the place requested in the co-defendant's

motion. Petitioner has failed to show prejudice in the adoption

of the co-defendant's motions.

Regarding the other alleged failures listed above, the failure

to file a motion for individual and sequestered voir dire has already

been discussed. An in-depth hearing was held before trial at the

request of the State on the confession, line-up and seizure of evidence

from the car. Since these matters were raised, petitioner was not

wi gin niin i Te oS

‘prejudiced. Furthermore, on appeal, we found no error in the trial

court's ruling on the confession, lineup and seizure. Pickens v.

State, supra. Nor did we find error in the admission into evidence

of one of the victim's ring and the gun found the next day near where

the car had been abandoned. Petitioner has failed eo demonstrate why .

expert witnesses were needed at the penalty phase or even specify

in what fields the witnesses should have been experts. We also find

the alleged failure to move for appointment of co-counsel to be concluso

Petitioner has completely failed to present any facts to support

these allegations and we cannot speculate on any prejudice..:

The fourth allegation of ineffectiveness argues that counsel

failed to request a hearing on the motion for change of venue and

so denied petitioner the opportunity to demonstrate his inability

to receive a fair trial in the Southern District of Prairie County.

It is also argued that counsel failed to object to venue being

changed to that district. Petitioner has not shown that the people

of the Southern District were hostile or biased or’ that petitioner

did not receive a fair trial. Since petitioner has failed to

show that he was prejudiced by trial in the Southern District, the

failure to request a hearing on change of venue would not rise

to the level of demonstrating ineffectiveness.

Fifth, petitioner contends that counsel failed to sufficiently

cross-examine the state's witnesses at the pretrial hearing on petitioner

confession. This allegation is without merit. Ineffectiveness is not

measured by counsel's success in obtaining a desired ruling. On appeal.

_we found the confession to have been voluntarily given. Pickens v.

State, supra. Petitioner has failed to show how he was prejudiced

and has even failed to present any facts that allegedly would

have been presented by a more vigorous cross-examination.

We also find no merit to petitioner's sixth allegation that

counsel failed to cross-examine witnesses, to object to the introduction

of photographs and to object to “the introduction of tangible

evidence which was not specifically connected to petitioner."

COD FWK~IRK DW &

. Te ae A

Petitioner has failea to specify which witnesses or what beneficial

' facts would have been elicited by their cross-examination. He has

failed to demonstrate why the photographs were objectionable. We will

not speculate on the "tangible evidence." However, we do note

that the pretrial hearing involved the bank bags, stereo and the money

recovered from the car abandoned in Memphis, one of the victim's rings

removed from petitioner's hand as he was being processed after

the arrest and the .22 pistol recovered near the scene of the

abandoned car. We found no error in their admission inte evidence.

Pickens v. State, supra:

It is argued in the seventh point that counsel failed to

properly argue to the jury at the guilt phase that the evidence

did not clearly establish which of the three assailants did the

actual shooting. Since the arguments were not included in the

record before us, we cannot determine whether counsel did or

did not argue that matter. ning rabucnraessir points out the jury was

properly instructed that he was ‘not the only participant in the

crime and it would be an affirmative defense’ if he did not aid "

or participate in the homicide. The record shows counsel cross-

examined all the relevant witnesses on the identity of the person

who had actually fired the shots. Prejudice is not shown by an

unfavorable verdict. Neal v. State, supra.

The eighth point contends counsel failed to argue at the

sentencing stage of the trial that petitioner had not actually

committed the homicide and instead presented absolutely

nothing in mitigation. It is alleged that there was available "a

Plethora of relevant information regarding petitioner's background"

which should have been offered as mitigation. Leasure v. State, supra.

Moreover, we can readily see why such an omission would have been

a deliberate tactic since the information is not favorable.

Petitioner's final allegation of ineffectiveness involves the

appeal. The tape recordings of the trial were destroyed by fire and

the record had to be reconstructed from the reporter's shorthand

notes. Counsel's failure to object to the reconstructed record and

we lt _ GR 76-186 ?- 5

its omission of voir dire when given an opportunity allegedly deprived

petitioner of a meaningful appellate review. The burden is on

petitioner to show error in the reconstructed record and this burden

is not met by showing the possibility of error. Butler v. State,

264 Ark. 24%; 520 S.W. 2d 272 (1978}. Petitioner has not demonstrated

prejudice. Since we have previously found there to be no

violation of any fundamental constitutional right, we also find

that counsel was not ineffective in failing to raise the allegedly

inconsistent findings of the jury on appeal.

We do not find that any of Pie aliesdtions of ineffective

assistance of counsel, considered together or separately,

justify vacation of the sentence. Petitioner appears to have been

competently represented by counsel and to have received a fair

trial. Counsel was not incompetent in failing to achieve success

by his strategy and ‘tactics. |

Finally, on June 23, 1980, we denied petitioner's petition for

writ of certiorari without prejudice to his right to apply to

“the trial court for a supplemental transcript. He now asks us to

Clearly specify that the trial court has jurisdiction te entertain

a motion for supplementation of the record. By our gone 23rd order,

we vested the trial court with the jurisdiction to entertain

such a motion. Petitioner apparently chose to proceed with this

petition without applying to the trial court or even to us for

clarification. Under Rule 37.2(b), all grounds for relief under

this Rule must be raised in the original or amended petition

and any grounds not so raised may not be the basis for a subsequent

petition.

Petition denied.

CR 76-186 P.6

80 - 6299 RECEIVED

IN THE

SUPREME COUR’ OF THE UNITED STATES MAR 7 1981

Otrive OF THE CLERK

OCTOBER TERM, 1980 SUPREME COURT, U.S.

NO. A-697

EDWARD CHARLES PICKENS, PETITIONER,

Vv.

STATE OF ARKANSAS, RESPONDENT.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The petitioner, Edward Charles Pickens, who is now held in

the Cummins Unit of the Arkansas Department of Correction, asks

leave to file the attached petition for a Writ of Certiorari to

the Supreme Court of Arkansas without prepayment of costs and to

proceed in forma pauperis pursuant to Rule 46.

The petitioner's affidavit in support of this motion is

attached hereto.

E. ALVIN SCHAY

APPELLATE PUBLIC DEFENDER

RAY HARTENSTEIN

CHIEF DEPUTY DEFENDER

SUITE 714, 1515 BUILDING

LITTLE ROCK, ARKANSAS 72202

Counsel for Petitioner

“ft, IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

EDWARD CHARLES PICKENS, Petitioner,

; Vv.

STATE OF ARKANSAS, Respondent.

? . Wh

AFFIDAVIT IN SUPPORT OF MOTION TO

PROCEED IN FORMA PAUPERIS

I, Edward Charles Pickens, being first duly sworn according

to law, depose and say, in support of my motion for leave to

proceed without being required to prepay costs or fees:

I am the petitioner in the above-captioned case,

Because of my poverty I am unable to pay the cost of said

cause,

I am unable to give security for the same.

I believe that I am entitled to the tedress I seek in

this case,

Leave to proceed in forma pauperis was granted in both

the trial court and Supreme Court of Arkansas.

The nature of this cause is briefly stated as follows:

I was convicted of capital murder and sentenced to death in

the Circuit Court of Prairie County, State of Arkansas. The

judgment and sentence were apealed to the Supreme Court of

Arkansas. The grounds of the appeal were, inter alia, that the

sentence of death under the ‘laws of Arkansas violates the Sixth,

Fifth, Eighth, and Fourteenth Amendments to the Constitution of

the United States.

;

I further swear that the responses which I have made to the

questions and instructions’ below relating to my ability to pay the

tin Y

cost of prosecuting the appeal are true.

1. Are you presently employed? **

a. If the answer is yes, state the amount of your

salary or wages per month and give the name and

address of your employer.

b. If the answer is no, state the date of your last

employment and the amount of the salary and wages

per month which you received. Cer, (175

L,a# .

Olde O0 GAA,

2. Have you received within the past twelve months any

income from a business, profession or other form of

self-employment, or in the form of rent payments,

interest, dividends, or other source? /ji)

a. If the answer is yes, describe each source of

income, and state the amount received from each

during the past twelve months.

3. Do you own any cash or checking or savings account? /\

a. If the answer is yes, state the total value of

the items owned.

4. Do you own any real estate, stocks, bonds, notes,

‘estoncbiles, or other valuable property (excluding

ordinary household furnishings and clothing)? «°

5. List the persons who are dependent upon you for support

and state your relationship to those persons. 3

I understand that a false statement or answer to any questions

in this affidavit will subject me to penalties for perjury.

Executed on February “2 3 _, 1981, at Grady, Arkansas.

Kes hoclea, Glee ——

Edward Charles ckens

SUBSCRIBED and SWORN to before me this ial 3 day of

a ae =

a ff 4 oe. ;

rd A$ Ati

( Lg >

No wry 9 3 | omens

MY COMMISSION EXPIRES: , is

MY COMMISSION EXPIRES: 10-14-81 ~—-—-- -—

February, 19€1.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.