Petition — CARL A. COLLINS v. ARKANSAS (No. 80-6623)

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

no. SA- L073

CARL ALBERT COLLINS........+- ««..-PETITIONER

Vv.

STATE OF ARKANSAS....-+2-ee+e+s +» « «RESPONDENT

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

PETITION FOR WRIT OF CERTIORARI

LESSENBERRY & CARPENTER

807 West Third Street

| Alexander L. Stevas, Clerk I

Little Rock, Arkansas 72201

(501) 372-4040

COUNSEL FOR PETITIONER,

pro hac vice

TABLE OF CONTENTS

QUESTIONS PRESENTED. .ccccccccsccccccsccecccccesccccooed

OPINIONS ine. 2. cub od csten subas tlecesccensaseeenee

CONSTITUTIONAL PROVISIONS & STATUTES.....--+eeeeeeeeeeid

STATEMENT OF THE an a a og waa eee ae

REASONS FOR GRANTING THE WRIT. ....eeeeeeeeeereccceseeed

I. PETITIONER WAS DENIED HIS SIXTH AND. FOUR-

TEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSIS-

TANCE OF COUNSEL AT THE GUILT PHASE AND PEN-

-ALTY PHASE OF HIS CAPITAL MURDER TRIAL.....---+-++4

Il. THE FAILURE OF THE SUPREME COURT OF

ARKANSAS TO PERMIT COLINS AN EVIDENTIARY

HEARING TO FULLY DEVELOP HIS CLAIM OF

INEFFECTIVE ASSISTANCE OF COUNSEL DENIED

HIM MEANINGFUL REVIEW AS GUARANTEED BY THE

DUE PROCESS CLAUSE OF THE FOURTEENTH AMEND-

MENT... eeneeee A RE ae ane | PRES Oo ee

COLSTON ER ca cinco cause es tesedeweeheneencstteueeesegee

CERTIFICATE OF BOOUEOR. os ccc ccocccGscat ntccuecdoseeeeyee

CERTIFICATE OF MAILING. ...scececececcensecccesccecsee eal

APPENDIX

A. Collins''v. State, Ark. , 611 S.W.2d 182

(February 2, 1981)

B. Collins Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977)

C. Swindler Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977)

D. Swindler v. State, Ark. F S.W.2d

(April 20, 1981)

a ee

TABLE OF AUTHORITIES

CASES:

Beck v. Alabama, e.s. , 65 L.Ed.2d 392 (1980)....+-..8,15

Case Vv. Nebraska, 381 U.S. 336 LUSESY CdSe ccccceupesvccescekapnl

Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975),

judgment vacated, 429 U.S. 966 (1976), aff'd,

261 Ark. 195, 548 S.W.2d 106 (1977), cert.

denied, 434 U.S. 878 (1977), rehearin denied,

434 U.S. 977 (1977), Ark... 611 S.W. 2a

182 (February 2, 1981)..c.ceccccccevscvecccescevesessseddy 2,

9,14,15

Douglas v. Alabama, 380 U.S. HAG. cic s bicnasoUbn be euvenseene

Fay v. Noia, 372 U.S. || eee, Sane ene: my Fann ree A rs

Gardner Ve Florida, 430 U.S. DAD(LGTTD occ ccteccecccdodsesepee

Gideon v. Wainwright, 372 U.S. B3ISAL9E3) co cevocccecsescecss®

Henry v. Mississippi, 379 U.S. O09 s dcdcd 6aass 0 tbeeeeteneae

Hovey v. Superior Court of Alameda County,

Cal.3d ’ P.2d ,168 Cal.Rptr.

128 (August 28, L980} . sews eeeeees ee | ne a hin Sem eee

Mooney v. Holohan, 294 U.S. SODELOIS).. o cccvadsgetescsanusen

Neal v. State, 270 Ark. 442, 605 S.W.2d 421(1980).......-.16

Palmer v. Ashe, 342 U.S. 134 CLOS2) vcccscccstcasesncagetns vem

Powell v. Alabama, 287 U.S. 45 LAGOS). srececceganekeeeaane

miaes ww. Ganeaith 439 0.8. Ub. (LOPODs sss scces asus taneeeee

Sublett Vv. Adams, 362 U.S. 143 (ROBE) 6.06030 008086e%0e8s bee

Swindler v. State, Ark. , S.W.2da

(April 20, TUEb ca vccocseeeeccnebhewbeeshenene¥ees seen

Turner v. Louisiana, 379 U.S. 466 LLOGBL i ceccdesnvictacvee

Voyles v. Watkins, 489 F.Supp. 901(N.D.Miss. 1980) ...+%--10

Westbrook v. State, Ark. ,580 S.W.2d 702(1979)...+-++7

Wilde Vv. Wyoming, 362 U.S. 607 (1960) .cvcececd és seeevecae

In re Winship, 397 U.S. 358 C1970) dc cuieeenecapesdstdenheue

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

Woodard v. State, 261 Ark. 895, 553 S.W.2d 259(1977).....10

STATUTES:

Ark.Stat.Ann. 39-108 (Supp. POTO) ccvcccccdececvesacescooges

Ark.Stat.Ann. 41-2204 (Repl. LOCA) cccccsccngececesccocceel eae

Ark.Stat.Ann. 41-4701 (Supp. SOV) schecccccedocsctenccen gee

--[Act 438 of 1975]

mule 37.1, AcR-Crim.P. (Repl. 1977) .csessccscececesesceeedde ld sé

Rule 37.2, A.R.Crim.P. (Repl. SBOP cs dear bees bieeeteunen

CONSTITUTIONAL PROVISIONS:

Sixth Amendment, United States Constitution...esescceeeeedd

Eighth Amendment, United States Constitution....seseeeeeedd

Fourteeneth Amendment, United States Constitution........-ii

OT ae

22>

Pree Oe Fe ee Le ee

_—- wee SA

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO.

CARL ALBERT COLLINS.....+-+++++++++PETITIONER

Vv.

STATE OF ARKANSAS....++++++ee++0++ RESPONDENT

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

Petitioner, Carl Albert Collins {hereafter Collins],

a prisoner under sentence of death, petitions for a writ

of certiorari to review the denial of post-conviction

relief by the Supreme Court of Arkansas.

QUESTIONS PRESENTED

1. Whether petitioner was denied his Sixth and

Fourteenth Amendment rights to effective assistance of

counsel at the guilt phase, and the penalty phase, of

his capital murder trial.

2. Whether the failure of the Supreme Court of

Arkansas to permit an evidentiary hearing to fully devel-

of petitioner's claim of ineffective assistance of counsel

denied him meaningful review of the sentence as guaranteed

by the Due Process Clause of the Fourteenth Amendment.

OPINIONS BELOW

The opinion of the Supreme Court of Arkansas denying

Collins permission to proceed under Rule 37, A.R.Crim.P.

(Repl. 1977), is reported at Collins v. State, Ark. ’

611 S.W.2d 182 (February 2, 1981). A copy of the original

opinion is attached as an exhibit herewith.

JURISDICTION

The opinion of the Supreme Court of Arkansas denying

Collins permission to proceed under Rule 37, A.R.Crim.P.

(Repl. 1977), was rendered on February 2, 1981. This

Courts jurisdiction is invoked under 28 U.S.C. § 1257 (3),

with Collins asserting here and having asserted below,

a deprivation of rights secured by the Constitution of

the United States. |

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused shall

enjoy the right to a...trial, by an impartial

jury...and to have the assistance of counsel

for his defense.

Eighth Amendment, United States Constitution:

Excessive bail shall not be required, or excess-

ive fine imposed, nor cruel and unusual punish-

ments inflicted.

Fourteeneth Amendment, United States Constitution:

[N]or shall any State deprive any person of life,

liberty, or property, without due process of law....

Arkansas Rules of Criminal Procedure:

Rule 37.1 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

= 4i -

new trial, or to have the original 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

(b) that the court imposing the sentence was without

jurisdiction to do so; or

authorized by law; or

(d) that the sentence is otherwise subject to colla-

teral attack; may file a verified motion at any

time in the court which imposed the sentence, praying

that the sentence be vacated or corrected.

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 jn 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 proceedings that the prisoner may have taken

to secure relief from his conviction or sentence

may not be the basis for subsequent petition.

STATEMENT OF THE CASE

Collins was convicted of capital felony murder on

December 4, 1974, pursuant to an information charging

that he had killed a man, injured his wife, and stolen

a truck and some money. The State alleged that this

was murder during the course of a robbery under Act 438

of 1975. After trial by jury, Collins was sentenced

to death by electrocution. His conviction and sentence

were affirmed by the Supreme Court of Arkansas. Collins

v. State, 259 Ark. 8, 531 S.W.2d 13 (1975), judgment

vacated, Collins v. Arkansas, 429 U.S. 966 (1976), aff'd,

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

cert. denied, 434 U.S. 878 (1977), rehearing denied,

434 U.S. 977 (1977).

Collins was without counsel after this point. Present

counsel was later obtained to begin post-conviction remedies

available to Collins. After having first been denied

by the Supreme Court of Arkansas, Collins was able to

obtain a copy of the transcript of his voir dire examination.

This was provided in October, 1980, and a Petition for

Permission to Proceed Pursuant to Rule 37, A.R.Crim.P.

(Repl. 1977), was filed in December 19, 1980, Under

Rule 37, Collins sought an evidentiary hearing to develop

the issues raised from a review of the record in his

case.

Unless granted permission to proceed to the trial

court for an evidentiary hearing, state post-conviction

remedies are ended with a denial of a petition for per-

mission to proceed. Collins request was denied and it

is from that denial that this petition is being filed.

Collins v. State, Ark. , 611 S.W.2d 182 (February

2, 1981).

In his petition to the Supreme Court of Arkansas,

Collins assigned as error the following grounds that

were not raised during direct appeal because they dealt

with whether he had received effective assistance of

counsel:

Se ee et

2 =

(a) The use of a-law enforcement officer/witness

as a bailiff or security guard during the course of the

trial, and the failure of counsel to object to this pro-

cedure;

(b) The action of the trial court in excusing for

cause certain jurors without having first let Collins

voir dire them to determine if there was a cause basis,

and the failure of counsel to object to this procedure;

an individual, sequestered voir dire in death-qualifying

the jury, and the failure of trial counsel to object

to this procedure;

(d) The failure of the trial court to instruct the

jury on all lesser included offenses, including that

of murder in the first degree, and the failure of trial

counsel to object to this procedure;

(e) The failure of trial counsel to attempt to re-

habilitate a juror excluded because of opposition to

the death penalty;

(f) The failure of trial counsel to put on any evi-

dence in mitigation of the death penalty or to determine

that such evidence was available;

(g) The failure of trial counsel to object to the

instructions during the penalty phase of the trial that

were contrary to Arkansas law, and that placed the burden

of proof on Collins us to mitigation outweighing aggra-

vating circumstances and the death penalty.

In denying the petition the Supreme Court of Arkansas

stated that nothing in the record indicated that the

above constituted error, or that the failings of trial

counsel were legitimate tactics and not ineffectiveness.

- 3-

Since the Supreme Court of Arkansas stated that the factual

questions raised were mere conclusion, and denied Collins

a hearing in order to develop fully the factual bases

presented, Collins was denied meaningful review of his

claim for post-conviction relief. From this denial,

this petition for writ of certiorari follows.

REASONS FOR GRANTING THE WRIT

I. PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH AMEND~-

MENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSET. AT THE

GUILT PHASE AND PENALTY PHASE OF HIS CAPITAL MURDER

TRIAL.

This Court decided the case of Presnell v. Georgia,

439 U.S. 14 (1978). In vacating the judgment there on

procedural grounds, the Court declared that:

...fundamental principles of procedural fair-

ness apply with no less force at the penalty

phase of a trial in a capital case than they

do in the guilt-determining phase of any

criminal trial. Cf. Gardner v. Florida, 430

U.S, 349.

Collins contends that this principle should also apply

in reviewing a death penalty to determine if a defendant

has received effective assistance of counsel at either

the guilt, or the penalty, phase of a capital trial.

This Court has long held that the Sixth Amendment,

through the Due Process Clause of the Fourteenth Amendment,

guarantees a defendant of effective assistance of counsel.

Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v..

Alabama, 287 U.S. 45 (1932). If a defendant is not granted

effective assistance of counsel because counsel did not

appreciate, or failed to make proper objections, to improper

material or evidence being presented to the jury, then

a death penalty rendered under such conditions should

not stand.

_<s

Ss ‘wi

In this case, Collins was denied such assistance

of counsel. Relying solely upon the record of the pro-

ceedings in this matter, and not going outside the record,

Collins pointed out to the Supreme Court of Arkansas

numerous areas where counsel failed to object, failed

to investigate, or permitted improper activity to occur

during the trial. These will be discussed below:

(a) During the trial Sergeant Quimby Johnson, an

investigator with the Arkansas State Police, testified

as a material witness against Collins. After his testi-

mony that he was the first person on the scene of the

crime and that he found information to suggest that a

robbery had been committed, Johnson was used as a security

person or bailiff for the remainder of the trial. As

pointed out in Turner v. Louisiana, 379 U.S. 466 (1965),

this type of activity can so subtley act as a voucher

by the trial court for the integrity of such a witness,

that it denies a defendant due process as guaranteed

by the Fourteenth Amendment.

Despite such holdings by this Court, counsel for @

Collins offered no objection to this procedure. This

was ineffectiveness.

(b) During the voir dire, the trial court excused

certain jurors for cause without giving Collins the oppor-

tunity to voir dire those jurors. Specifically, two

of these jurors were students at the University of Arkansas

at Fayetteville--i.e., the situs of the trial. Their

being excused for cause did not fall within one of the

statutory bases provided in Ark.Stat.Ann, § 39-108 (Supp.

1978). Trial counsel did not object to this procedure

and was therefore ineffective.

The trial court excused another student because

of a pending test, yet did not check, nor did counsel

seek to check, if the test could be postponed until after

the trial. Again, counsel was ineffective at this point

in jury selection.

Finally, a juror was excused for cause because of

an alleged hardship on his business if he served on the

jury. Yet, this same juror had stated that he could

serve on the jury if necessary. Again, counsel did not

object nor voir dire the juror on that point, [R. 364]

the jury in open court without sequestering all potential

jurors except the one being questioned, The jury was

qualified to render a death penalty in accordance with

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

by this Court, it is important that counsel be permitted °

to determine the full implication of the answers of venire-

men concerning the death penalty, and only if it is un-

mistakably clear that the veniremen is opposed to the

death penalty and unwilling to consider its imposition

under any circumstances, should such a juror be excused.

The Supreme Court of California has held that te

sensitive nature of such questioning requires individue’,

sequestered voir dire. Hovey v. Supreme Court of Alameda

County, __Cal.3d__,__P.2d___, 168 Cal. Rptr. 128

(August 28, 1980):

Because jurors would then witness only a

single death-qualifying voir dire--their

own--each individual juror would be exposed

to considerably less discussion and question-

ing about the various aspects of the penalty

phase before hearing any evidence of guilt.

Such a reduction in the pretrial emphasis

on penalty shuld minmize the tendency of

a death-qualified jury to presume guilt

-6-

and expect conviction. Hovey v. superior

Court of Alameda County, supra, Cal.

Rptr. at 181.

Counsel totally failed to raise this issue for the trial

court, or to object to the trial court's method of con-

ducting voir dire. In a case of this magnitude, this

is not a legitimate trial tactic, but an indication

that counsel was ineffective and did not appreciate the

nature of death penalty litigation.

(4) The trial court instructed the jury only on

the offenses of capital felony murder, and murder in

the second degree. There was no instruction on murder

in the first degree. The relevant statute in effect

at the time of this trial provided:

All murder which shall be perpetrated by

means of poison, or by lying in wait, or

by any other kind of wilful, deliberate,

malicious and premeditated killing, or

which shall be committed in the perpetra-

tion of or in the attempt to perpetrate

arson, rape, robbery, burglary or larceny,

shall be deemed murder in the first degree.

Ark.Stat.Ann. § 41-2204 (Repl. 1964).

The failure of trial counsel to request such an instruction

can only be considered ineffective and-not a legitimate

trial tactic since the maximum punishment for murder

in the first degree was life imprisonment.

Although the Arkansas procedure would have permitted,

and even seemed to mandate, instructions on lesser included

offenses, only an instruction on murder in the second

degree was given. See Westbrook v. State, Ark. ,

580 S.W.2d 702,708 (1979).

However, when the evidence presented shows

the accused might be convicted of a lesser

offense which is necessarily included in

the charged, it is the f ,

to present instructions to ace a e-

grees of a particular offense, and included

offenses, to which the evidence is appli-

cable.

—_

Pp ; ’

The second degree murder instruction was as follows:

Now, the crime of second degree’ murder is

defined as the unlawful killing of a human

being against the laws of the State, with-

out premeditation and without deliberation

but with malice and intention to commit the

act.

Malice may be expressed on implied, and

its existence or lack of existence may be

determined from all of the facts and cir-

cumstances in the evidence. Malice is

implied when no considerable provocation

appears, or where all of the circumstances

of the assault manifest an abandoned and

wicked disposition. [R. 206-207]

It is noted that this instruction in no way mentions

the associated felonies that are outlined in the murder

in the first degree statute. Therefore, Collins had

only one offense that the jury could logically consider

if they believed the testimony as to the robbery.

In this instance, the case is not unlike Beck v.

Alabama, U.S. , 65 L.Ed.2d 392 (1980). There this

Court held that a death penalty may not be imposed under

circumstances that do not permit the jury to consider

a verdict of guilt on a lesser included non-capital offense.

Admittedly, Beck specifically dealt with an Alabama pro-

vision that prohibited lesser offenses from being given

to the jury. Still, the Court held that procedures that

diminish the reliability of the guilt determination would

invalidate a death penalty. 65 L.Ed.2d at 403. Collins

contends that the manner in which his jury was instructed

so diminished the reliability of the guilt determination.

For counsel to fail to seek, and the trial court

to fail to follow its duty and give, an instruction on

the lesser included offense of murder in the first de-

gree is obviously not a legitimate trial tactic. Under

the evidence adduced at this trial, Collins could only

have been convicted of capital murder unless the jury

chose to ignore the evidence concerning the robbery.

As will be pointed out later, at the very least the Supreme

Court of Arkansas should have permitted Collins the opportun-

ity to develop.at an evidentiary hearing the basis for

this instruction not being given.

(e) Trial counsel failed to attempt in any way

to rehabilitate when a juror was excused for cause because

of opposition to the death penalty. Venireman Benton

Wray indicated that he could serve on a criminal ‘ety.

but then stated that he was opposed to the death penalty

and would not consider its imposition under any circum-

stances. [R. 464] Without objection, or without even

attempting to explore his feelings by Collins' counsel,

the venireman was excused for cause.

Collins was the first person tried on capital felony

murder charges under Act 438 of 1975. No longer was

the death penalty mandatory after a finding of guilt.

Therefore, it was important to determine if Wray, when

explained the entire procedure of the bifurcated trial

could consider the imposition of the death penalty. The

failure of the trial counsel to explore this was another

indicia of ineffectiveness for a capital case.

(f£) Trial counsel failed to put on any evidence

whatsoever during the penalty seat of the trial. The

Supreme Court of Arkansas indicated that since none was

specifically offered in the Rule 37 petition, the mere

allegation was insufficient to warrant a hearing. Collins

v. State, 611 S.W.2d at 189. The problem is that a Rule

37 petition, in this instance, is a request for a hearing

to develop factual bases for relief.

a es

In any event, the mere failure to put on any evidence

during the penalty phase of the trial is prima facie

indices of ineffectiveness.

It was pointed out that family members were willing

to testify in Collins behalf as to character traits that

would have been mitigation evidence. As has been noted

The lack of any mitigating evidence re.ilted

from the failure of defense counsel to exer-

cise diligence in locating and presenting

witnesses who were in position to establish

traits of good character. Voyles v. Watkins,

489 F.Supp. 901,909 (N.D.Miss. 1980).

Collins contends that the same situation is present here

particularly in light of the fact that under the Arkansas

statute, the defendant must show that mitigating circum-

stances outweigh any aggravating circumstances found

to exist. in order to avoid a death penalty. Woodard v.

State, 261 Ark. 895, 553 S.W.2d 259 (1977); Ark.Stat.

Ann. § 41-4710(d) (ii) (Supp. 1975). Thus, when having

a burden to prove a death penalty is not justified, and

counsel fails ta put on any evidence, counsel is simply

not providing effective assistance of counsel. This

is especially true since, as pointed out above, there

was evidence available if counsel had only bothered to

properly investigate.

(g) Trial counsel failed to object to the instruc-

tions during the penalty phase of the trial that placed

the burden of proof as to mitigation on the defendant,

and which required Collins to prove that the death pen-

alty was not justified. Although the statute provides

that a death penalty must be shown to be justified beyond

a reasonable doubt, it also requires a showing of

whether sufficient mitigating circumstances

« 16 «

as enumerated in Section 12 of this act exist

to justify a sentence of life imprisonment

without parole. Ark.Stat.Ann. § 41-4701(d)

(ii) (Supp. 1975).

As noted in In re Winship, 397 U.S. 358 (1970), the State

has the burden of proving elements of an offense beyond

a reasonable doubt. Failure to enforce this standard

is a denial of due process of law.

Since aggravating circumstances are what evidently

justifies the imposition of the irreversible death penalty,

then as far as the penalty phase of a capital case is

concerned, these are the elements of the offense. Indeed,

this Court has indicated that a defendant has a right

to notice of the aggravating circumstances. See Presnell

v. Georgia, supra.

Therefore, the placing of a burden on the defendant

to prove that the death penalty is not justified is un-

constitutional. The failure of trial counsel to object

to these instructions can only be an indication of lack

of experience in this area, or ineffectiveness.

x eke

For all of the foregoing reasons, it is clear that

Collins was not provided effective assistance of counsel

during either the voir dire, guilt phase, or penalty

phase of a trial that resulted in his receiving a death

penalty. Since under these circumstances this is an

indication that Collins was virtually without counsel,

this Court should grant certiorari to determine if he

was denied his right to the effective assistance of coun-

sel as guaranteed by the Sixth and Fourteenth Amendments.

= }} «

II. THE FAILURE OF THE SUPREME COURT OF ARKANSAS TO

PERMIT COLLINS AN EVIDENTIARY HEARING TO FULLY

DEVELOP HIS CLAIM OF INEFFECTIVE ASSISTANCE OF

COUNSEL DENIED HIM MEANINGFUL REVIEW AS GUARAN-

TEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT.

The Supreme Court of Arkansas refused to consider

Collins' contention that he had been denied effective

assistance of counsel. Indeed, the court determined

a factual finding based upon the allegations contained

in the petition for permission to proceed to a hearing.

This case squarely presents the question of whether a

state post-conviction remedy comports with the Due Process

Clause of the Fourteenth Amendment when it denies the

petitioner the opportunity to fully develop the issues

for consideration by the reviewing court.

In Case v. Nebraska, 381 U.S. 336 (1965), tnis Court

was asked to determine if the Fourteenth Amendment requires

the States to afford state prisoners some adequate correc-

tive process for hearing and determining claims that

their constitutional guarantees have been violated. Before

the Court could render an opinion, Nebraska's legislature

passed a statute providing such relief. Accordingly,

this Court vacated the judgment in light of the new statute.

In concurring in the result reached by the Court, Mr.

Justice Brennan stated that a post-conviction remedy \

should be sufficiently comprehensive to

embrace all federal constitutional claims.

In light of Fay v. Noia [372 U.S. 391], it

should eschew rigid and technical doctrines

of forfeiture, waiver, or default. See

Douglas v. Alabama, 380 U.S. 415, 422-423;

Henry v. Mississippi, [379 U.S. 443].

Collins contends that the Arkansas procedure does not

meet these guidelines.

= 12 =

First, it should be noted that there is a degree

of discrimination in the Arkansas procedure. If a de-

fendant has forgone an appeal to the Supreme Court of

Arkansas [or now also the Arkansas Court of Appeals],

he may apply to the trial court for his evidentiary hear-

ing. The trial court is then required to make written

findings and, if necessary, the defendant may appeal

to the Supreme Court of Arkansas for review. Rule 37,

A.R.Crim.P, (Repl. 1977).

In such an instance, the factual issues are fully

developed for the reviewing court and a determination

at that point has some indices of reliability. Yet,

in Collins' case, the court not only denied a hearing,

but decided to make factual findings based upon the all-

egations raised in the petition. This is in no way a

meaningful review. Further, it virtually stops any re-

view of such convictions by state courts, where they

should be held, unless the Supreme Court of Arkansas

decides for some reason to grant a hearing.

Even in noncapital cases, this Court has indicated

repeatedly that in order to comply with standards of

due process, a hearing should be held in order to develop

the factual allegations presented by the petitioner.

See, e.g., Wilde v. Wyoming, 362 U.S. 607 (1960); Sub-

lett v. Adams, 362 U.S. 143 (1960); Palmer v. Ashe, 342

U.S. 134 (1952). Indeed, this Court has returned cases

to the state court for a hearing, when one had not been

held, since the state court was the proper forum for

such consideration. Mooney v. Holohan, 294 U.S. 103

(1935).

» 33 «

Here Collins has had not meaningful review of the

claims that he has raised. Since error in a capital

case in which a death penalty is imposed could result

in the state improperly taking a life, a higher degree

of certainty is required.

Death is a different kind of punishment from

any other which may be imposed in this coun~

try... (Citations omitted] From the point

of view of the defendant, it is different

in both its severity and its finality. From

the point of view of society, the action

of the soverign in taking the life of one

of its citizens also differs dramatically

form any other legitimate state action.

Gardner v. Florida, 430 U.S. 349, 357-358

(1977) (Opinion of Stevens, J.)

A review of the opinion in Collins v. State, Ark. ’

611 S.W.2d 182 (February 2, 1981), reveals that this

different kind of punishment has not received the careful

scrutiny that it should have received.

For example, Collins objected that counsel was in-

effective because he failed to request, and the trial

court failed to present, an instruction on the lesser

included offense of murder in the first degree. The

Supreme court! of Arkansas determined that

.It is reasonable to assume that counsel

chose not to request the instruction on

murder in the first degree as 4 matter

of trial tactics and strategy. Collins

v. State, 611 S.W.2d at 189.

The Court further stated that counsel offered no support

for the position that an instruction should have been

offered, and concluded that no prejudice had been shown

since the Court had determined there was sufficient evi-

dence to support a guilty verdict of capital murder.

Collins first points this Court to the appendix

which includes the Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977) (See

Appendix B, @ 9 at Page 5-6; @ 10(e) at Page 9). Not

only did Collins present support based upon prior de-

cisions of the Supreme Court of Arkansas, it was pointed

out that there was a signficant difference between mur-

der in the first degree and capital murder.

It should be again emphasized that the punishment

under the applicable murder in the first degree statute

in Arkansas was life imprisonment, or less. The beginning

penalty for capital murder was life imprisonment without

parole. Avk.Stat.Ann. §§ 41-2204; 4701, et seg (Repl.

1964) (Supp. 1975). Further, the jury would have had

to disregard all evidence of the included robbery in

order to convict Collins of only murder in the second

degree. This Court has condemned a practice that would

require the jury to disregard their oaths in order to

reach a less severe result. Beck v. Alabama, supra,

65 L.Ed.2d at 407.

The key, however, is that the Supreme Court of Arkansas

made an assumption on a critical matter in a death penalty

case. This is fundamentally unfair and a violation of

due process, particularly where, as here, there is a

procedure for permitting an evidentiary hearing to fully

develop what reason, if any, trial counsel had for so

unwisely taking this risk with Collins' life. Further,

the record is also si tent that Collins' agreed to such .

a risk, much less made any kind of intelligent waiver

of his right to such an instruction.

Another point deals with the reason that counsel

did not put on any evidence during the penalty phase

of the trial. The Supreme Court of Arkansas stated that

= 16 «

this was not a grounds for relief because

Petitioner fails, however, to cit any evidence

that was available. Clearly, counsel is not

obligated to manufacture evidence if none

exists. Since petitioner presented no specific

evidence that could have been presented in

mitigation, we cannot say counsel was remiss

in not presenting testimony during the penalty

phase. Collins v. State, 611 S.W.2d at 189.

Again, the Supreme Court of Arkansas made an assumption.

It assumed that since Collins' counsel for the petition

did not go outside the record, then there was nothing

outside the record to present. Yet, a full evidentiary

hearing would have revealed that Collins did have miti-

gation evidence to present.

Further, the Supreme Court of Arkansas apparently

does not care to grant hearings even when specific miti-

gation evidence is presented. As noted in the Rule 37

petition for John Edward Swindler [See Appendix C,

4 9, Pages 12-19], specific mitigation evidence available

at the time of trial, other than that of the defendant

himself, was pointed out to the Supreme Court of Arkansas.

Yet, the Court stated in its opinion denying an evidentiary

hearing

We remain unconvinced from the bare allegations

of the present petition as to what might,

Or conceivably could have been used in the

sentencing phase, that defense counsel was

ineffective. Any error of [sic] omission

by counsel was not of such grave nature

"as to render the judgment void and open

to collateral attack." Swindler v. State,

[Slip Opinion at 4]

Indeed, the Court cited Neal v. State, 270 Ark. 442,

605 S.W.2d 421 (1980), as an indication that it will

grant an evidentiary hearing under appropriate circum-

stances. Since in Neal, supra, the Attorney General

conceded error, it must be concluded that absent such

; - 16 =

a concession the Supreme Court of Arkansas will make

a factual determination based upon a petition.

Collins has pointed out these two examples of the

issues raised and handled by the Supreme Court of Arkansas

to show that there is no meaningful review of post-con-

viction rememdies, nor an opportunity for an evidentiary.

hearing, in such cases. If the Supreme Court of Arkansas

had granted the hearing, and the record of that hearing

afforded no more basis for relief than that contained

in the petition to proceed, then the Court's ruling would

have greater reliability. But this is simply not the

case.

Collins contends that in order to reach any finality

in judgments of this type, state courts must take the

responsibility of permitting defendants to fully and

completely develop the r@cord for review. The claim

that there was ineffective assistance of counsel is a

substantial claim that a federally guaranteed constitu-

tional right has been denied. Yet, if states continue,

as has Arkansas, to deny claimants the opportunity to

develop the record in such cases, any assumption that

there is a source of review that comports with due process

is erroneous.

This Court was faced with determining in Case v.

Nebraska, supra, whether state courts had an obligation

to provide meaningful review of claims that defendants’

had been denied federal constitutional guarantees. The

Court did not have to reach the question because an act

of the Nebraska legislature rendered the issue moot.

Arkansas followed the suggestion of the Court by

adopting a procedure for pursuing such claims. Now

- 17} =

the question is whether the mere form can be a substitute

for providing a substantive procedure to criminal defendants.

Collins contends that it cannot.

As pointed out above, and as answered in the opinion

of the Supreme Court of Arkansas in this case, factual

decisions are being made without a record being fully

developed. This, coupled with the fact that defendants

that waive their right to appeal seem to be provided

a hearing merely upon filing a verified petition with

the trial court, is an indication that criminal defendants

are not really being provided due process of law in order

to adjudicate these claims.

The issue takes on more credence when it is remembered

that this is a death penalty case. Collins contends

that the Rule 37 procedure now available is not a clearly

denied method of presenting claims of a denial of federal

rights. Particularly where, as here, claims of ineffective

assistance of counsel could not be raised until after

trial counsel [John Barry Baker and John Linebarger)

had ended their participation in the appeals process

and the case was undertaken by other counsel.

This Court should grant certiorari to consider this

question. Collins contends that the Court should then

remand this case to the Supreme Court of Arkansas with

directions to enter an order allowing Collins to proceed

to the trial court for a full evidentiary hearing on

the claims made in the petition.

- 18 -

CONCLUSION

The petition for a writ of certiorari to the Supreme

Court of Arkansas should be granted and the decision

of that court should be reversed. This Court should

set this matter for oral argument on the issues outlined

above.

Respectfully submitted,

LESSENBERRY & CARPENTER

807 West Third Street

Little Rock, Arkansas 72201

(501) 372-4040

DATED: May 3, 1981

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO. PALA

CARL ALBERT COLLINS...+++eeeeeee08 PETITIONER

V- ‘

STATE OF ARKANSAS...-eeeeeeeeeree? RESPONDENT

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

LESSENBERRY & CARPENTER

807 West Third Street

Little Rock, Arkansas 72201

(S01) 372-4040

COUNSEL FOR PETITIONER,

pro hac vice

182 Ark

officers in their probable cause determi-

nations

There we also recognized that, on appeal,

“all presumptions are favorable to the trial

court's ruling on the legality of the arrest,

and the burden of demonstrating error rests

upon appellant.” When we view the totali-

ty of the facts here from the standpoint of

common sense and with a pragmatic ap-

proach, the evidence is sufficient to consti-

tute probable cause for appellant's initial

arrest

[2] Even though it be said that his ini-

tial was illegal, as contended, we

think there was a sufficient intervening

circumstance which attenuated any taint of

that arrest. As discussed previously, the

appellant's first statement was exculpatory

and Subsequently, a

significant intervening act occurred; i. e.,

appellant's girl fiend, at her request, was

permitted to see him. She reported to him

she had told the officers about their ‘in-

volvement in the alleged offense, after be-

ing led to believe he had admitted his com-

responded that he had not

However, shortly thereafter, he decided to

give the Statement that is

now claimed to be inadmissible because it is

arrest

non-inecriminating

plc ity He

incriminating

tainted by

his asserted illegal arrest and

incarcerauion

In Sanders v. State, supra, we said

The United States Supreme Court

did not hold that the taint of the illegal

arrest, followed by the giving of the Mi-

randa warnings, reached any and every

such statement made by the arrested per-

regardiess of the circumstances

Rather, that court stated that it is entire-

ly possible that persons arrested illegally

frequently may decide to confess as an

act of free will unaffected by the initial

illegality

son

that the question of voluntari

ness must be answered in each case upon

the particular facts of the case

Surely, Brown vy. lilinois, supra, and Duna-

New York, supra, do not require

that, in these circumstances, that evidence

is inadmissible after appellant was twice

Miranda rights and had

had considerable time, approximately 24

way Vv

acquainted with hi

611 SOUTH WESTERN R™PORTER, 2d SERIES

hours, for reflection and deliberation

any statement he should make

(3,4) We next consider appellant's

gument that without the confession t

was insufficient evidence to corroborate ¢

testimony of Weaver, ar accomplice,

detailed appellant's complicity before

after the alleged offense. He a

cites the rule that one cannot be conv

of a felony upon the testimony of an

plice unless it is corroborated by other

dence tending to connect the defend

with the commission of the offense

Stat.Ann. § 43-2116 (Repl. 1977). Seetit

41-803 provides, inter alia, that one is

accomplice to the commission of an offed

if, for the purpose of facilitating it, he

another person in planning or committl

it. When we consider appellant's conf

sion, which we hold voluntary, togeth

with his testimony at trial where he admj

ted the truthfulness of his confession,

cept having knowledge of the criminal

pose of his codefendants, we find no me

in appellant's argument there was insu

cient corroboration of his accomplice's tes

mony. Olles (and Anderson) vy Stat

Ark. 571, 542 S. W.2d 755 (1976)

Affirmed

Carl Albert COLLINS, Petitioner, |

STATE of Arkansas, Reapondent

No. CR 75-110

Supreme Court of Arkansas

Feb. 2, 1981

Defendant, who was convicted of cay

tal felony-murder and sentenced to deat

by electrocution, filed petition for pern

sion to proceed under rule governing poo

COLLINS v. STATE ° Ark. 183

Cite as, Ark, 611 S.W.2d 182

conviction proceedings. The Supreme

Court held that: (1) petition for permission

to proceed under rule governing posteonvic-

tion relief filed on December 19, 1980, more

than three years after United States Su-

preme Court denied rehearing on November

28, 1977, was untimely since rule requires

such petition must be filed within three

years of date of commitment, and (2) peti-

tion contained no grounds which rendered

judgment void.

Petition denied.

1. Criminal Law 998(14)

Petition for permission to proceed un-

der rule governing postconviction proceed-

ings other than appeal, which was filed

more than three years after United States

Supreme Court denied rehearing on consti-

tutionality of death penalty statute and

thus left standing sentence of death for

defendant, and which contained no grounds

which would render Judgment void, was

untimely filed under section of such rule

which provides that such petition must be

filed within three years of date of commit-

ment. Ark.Stats. § 41-4701 et seq. (Re-

pealed), Rules of Criminal Procedure, Rules

87, 37.1, 37.2(¢)

2. Criminal Law #=998(2, 5)

Rule governing postconviction proceed-

ings other than appeal was not intended to

provide method for review of mere error in

conduct of trial or to serve as s ibstitute for

appeal; rather, it affords remedy when sen-

tence was imposed in violation of Constitu-

tion of United States or of State or is

otherwise subject to collateral attack

Rules of Criminal Procedure, Rules 37. 97.1

3. Constitutional Law @=43(1)

Constitutional questions in criminal

proceedings are waived if not raised in ac

cordance with controlling rules of proce-

dure 3

4. Criminal Law ¢=998(1)

It is imperative that judgments in

criminal cases have stability and finality

5. Criminal Law ¢@=998(15)

Petition for permission to proceed un-

der rule governing postconviction proceed-

ings other than appeal offered nothing to

show that relationship between jury and

police officer who was material witness at

trial and who also worked as security offi-

cer in courtroom was improperly close, and

so did not offer sufficient evidence to war-

rant setting aside conviction. Rules of

Criminal Procedure, Rules 87, 37.1

6. Criminal Law ¢ 1035(6)

Where no ubjection was made by coun-

sel for defendant in prosecution for capital

felony-murder to excusal by trial court of

several members of jury venire without af-

fording counsel opportunity to voir dire

them on their reasons for not wishing to

serve, the matter could not be properly

raised on appeal.

7. Jury @75(1)

In prosecution for capital felony-n

der, trial court's excusal of several members

of jury venire after hearing their reason

for’ not wishing to serve was proper, even

though students are not listed in statute as

persons exempt from service Ark

§§ 39-107, 39-108.

8. Criminal Law % 1035(6)

Lack of individual, sequestered voir

dire for jury selection process was not fun

damental error in prosecution for apital

felony-murder where nothing was present

ed to show that defendant was entitled to

individual, sequestered voir dire.

9. Criminal Law @=824(3)

Trial court was under no duty to in-

Struct jury on all possible lesser included

offenses in prosecution for capital felony

murder where such instruction was not re

quested by counsel or defendant; if counsel

concluded that such instruction was wa

ranted, it was incumbent upon counsel to

request that instraction

10, Constitutional Law = 266(7), 270(2)

Criminal Law = 1206(1), 1213

Death penalty statute under which de

fendant was sentenced to death for capital

felony-murder did not violate his Righth

a ee

4 ‘A

tre. ee

- + &-,

OS tee eet Mae I arate

184 Ark.

and Fourteenth Amendment rights by plac-

ing burden on defendant to prove mitigat-

ing circumstances and by unconstitutionally

limiting factors that could be considered in

mitigation, in that statute permitted evi-

dence in sentencing stage as to any matters

relevant to sentencing and state had burden

of proof on issue of punishment. U.S.C.A

Const. Amends. 8, 14; Ark.Stats. §§ 41

4701 et seq., 41--4710(c) (Repealed).

11. Criminal Law %998(8)

Inadequate representation by counsel is

ground for postconviction relief where

there has not been adequate opportunity to

raise question prior to direct appeal. Rules

of Criminal Procedure, Rule 37

12. Criminal Law @=998(19)

Errors, omissions, improvident strategy

or bad tactics on part of counsel do not

require evidentiary hearifg on allegation of

ineffective assistance of counsel or justify

postconviction relief from sentence; peti-

tioner must first show prejudice by alleged

incompetence of counsel. Rules of Criminal

Procedure, Rule 37

13. Criminal Law ¢=998(19)

An evidentiary hearing on allegation of

ineffective assistance of counsel is not re-

quired when allegations of ineffectiveness

relate only to matters ordinarily within

USCA

Const. Amend. 6. Rules of Criminal Proce

dure, Rule 37

realm of counsel's judgment

14. Criminal Law @=641.13(1)

Question presented in evidentiary hear-

ing on allegation of ineffective assistance of

counsel is whether petitioner has shown by

preponderance of evidence that acts or

omissions of attorney resulted in making

proceedings a farce and mockery of justice

shocking lo conscience of court. Rules of

Criminal Procedure, Rule 87

15. Criminal Law &=998(16)

Requirement that petition in hearing

on allegation of ineffective assistance of

counsel show by preponderance of evidence

that acts or omissi of counsel resulted in

making proceedings a “mockery of justice”

ig not to be taken literally; it does, how-

611 SOUTH WESTERN REPORTER, 2d SERIES

_ duty of trial court to be aware of it and

“correct it; thus, assistance of counsel w

Re s

-¥

> a

ever, place substantial burden on petitiongagiiny

in proving that counsel was inadequate

Rules of Criminal Procedure, Rule 37. ,

16. Criminal Law #998(19) ye

In postconviction proceeding, petitioney’

did not meet burden of showing clearly a

convincingly that his attorney was so pate

ently lacking in competence that it becamay

SP aye oe 8 BY RE ON ety Se Qa eee

not ineffective so as to entitle defendant

postconviction hearing. Rules of Crimi

Procedure, Rule 37.

er ee

17. Criminal Law ¢=1134(2)

to postconviction hearing on grounds of i

effectiveness of counsel, review is limited

allegations made in petition for permissigg :

to proceed under rule governing postconvig

tion relief other than appeal. Rules

Criminal Procedure, Rule 37

aera - 8

18. Criminal Law ¢@641.13(2)

In prosecution for capital felony-m

der, failure of defense counsel! to object tae

excusal by trial court of several membe rom

jury venire without affording counsel ony

portunity to voir dire them on their MYM SOND pt

for not wishing to serve was not ineffectiveg Bis

assistance of counsel re

+) Pe OH ct :

ma &

19. Criminal Law @641/13(6)

In prosecution for capital felony m

der, failure of defense counse! to object 0S

police officer, who was material witness [gh $

prosecution, serving as security officer a

trial was not ineffective assistance of «

sel since defendant did not establish that h

suffered any prejudice by counsel's ag

ment that officer should remain in cou

room,

+ 90; 4k Ok pane ogee

20. Criminal Law #641.13(2) Whe

In prosecution for capital felony-wi

der, failure of defense counse! to’ reque!

individual sequestered voir dire for sele

tion of jury was not ineffective assistang

of counsel where defendant was able to citd

only one jurisdiction in country which

quires such voir dire

“= Fe" sate Sea -=

COLLINS v. STATE

Cite as, Ark., 611 S.W.2d 182

21. Criminal Law *= 641.13(2) murder and sentenced to death by electro-

In prosecution for capital felony-mur- ution. The primary issue on appeal was

der, failure of defense counsel to attempt to the constitutionality of Act 438 of 1973,

rehabilitate juror who stated in voir dire Ark.Stat.Ann. § 41-4701 et seq. (Supp.

that he would not consider capital punish- 1973), which reinstated the death penalty.

ment “under any circumstances” was within This Court found the statute constitutional

realm of trial strategy and was not ineffec- and affirmed the conviction on December

tive assistance of counsel 22, 1975. Collins vy. State, 259 Ark. 8, 591

mi . S.W.2d 18 (1975). Motion to Stay mandate

22. Criminal Law = 641.13(2) pending appeal to the United States Su-

Defense counsel is under no duty to preme Court was granted February 2, 1976,

request instruction on lesser included of- Petition for certiorari} for review of this

fense of murder in first degree in capital Court's judgment affirming the judgment

— P of the circuit court was filed in the United

23. Criminal Law = 641.13(2) States Supreme Court and that Court, 429

In prosecution for capital murder, fail. U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69, vacated

ure of defense counsel to request instruc. this Court's judgment insofar as it left un-

tion on lesser included offense of murder in disturbed the death penalty imposed and

first degree was not ineffective assistance ordered the cause remanded for considera-

of counsel where defendant did not show tion in light of Gregg v. Georgia, 428 US

that he was prejudiced by such failure. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976);

ae : Proffitt v. Florida, 423 U S. 242, 96 S.Ct

4. Criminal Law #=641.13(6) 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas

In prosecution for capital felony-mur- 428 U.S. 262, 96 S.Ct 2960, 49 L.Ed 2d 929

der, failure of defense counsel to put on any (1976); Woodson y North

evidence during penalty phase of trial was

not ineffective assistance o

defendant did not indicate

evide

Carolina, 428

U.S. 280, 96 S.Ct 2978, 49 L.Ed.2d 944

(1976); and Roberts , Louisiana, 428 US

325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976)

Mandate vacating judgment was filed in

this Court November 18, 1976. Upon recon-

sideration, the Arkansas Supreme Court

again concluded that the death penalty un-

al felony-mur der Arkansas Statutes was constitutiona!

not be held 4nd affirmed the judgment on March 7

to object to intro 1977. Collins y State, 261 Ark 195, 548

duction into evidence of prior conviction of S.W.2d 106 (1977). Certiorari was denied,

defendant under “a First Offenders Act” 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158

where record did not support defendant's Nd the mandate was forwarded to the gov-

allegations that he was s« ntenced as part of ¢rnor of this state October 25, 1977. The

a first offenders program United States Supreme Court denied

rehearing on November 28, 1977, at 434

U.S. 977, 98 S.Ct. 540, 54 L.Ed.2d 471 (1977)

Thomas M

petitioner Warpenter, Little Rock, for {1} Collins filed his petition for permis-

sion to proceed under Rule 37 on December

Steve Clark, Atty. Gen by Victra L. Fe. 19, 1980, more than three years after the

well, Asst Atty. Gen, Little Ro k, for re United States Supreme Court denied

spondent rehearing. Rule 37.%(c), Arkansas Rules of

ie Criminal Procedure, Ark. Stat Ann.V. 4A

PER CURIAM (Supp.1979) provides that such a petition

must be filed within three years of the date

f counsel where

> what specific

nce could have been presented in miti-

Bation. Ark.Stat. §§ 41 4701 et seq., 41

471 Qe) (Repealed),

25. Criminal Law * 641.13(6)

In prosecution for capit

der, defense counsel could

accountable for failure

Petitioner Car! Albert Collins was con-

vieted by a Jury in 1974 of «

apital felony of commitment. The petition is clearly un-

i ef

= “_ a= #

; HAS. ame

OTS Or ret &

Jea=te

Na Poe SBS OH ee

(7 w=-"_ 9.84 455 7S ot od

Soy eee a, Ok

186 Ark.

timely and will be denied unless the

grounds asserted are such as to render the

judgment against Collins void. Since we

find no grounds contained in Collins’ peti-

tion which will render the judgment void,

the petition is denied

{2-4] Rule 37 was not intended to pro-

vide a method for the review of mere error

in the conduct of the trial or to serve as a

substitute for appeal. Clark v. State, 255

Ark. 18, 498 S.W.2d 657 (1973). As the Rule

states, it affords a remedy when the sen-

tence was imposed in violation of the consti-

tution of the United States or of this State

or “is otherwise subject to collateral at-

tack.” Rule 37.1; Swisher v. State, 257

Ark. 24, 514 S.W.2d 218 (1974); Thacker v.

Urban, 246 Ark. 956, 440 S.W.2d 553 (1969);

Clark v. State, 242 Ark. 584, 414 8.W.2d 601

(1967). The present’ petition presents a

number of issues all of which are alleged to

raise issues so fundamental as to render the

sentence and judgment void and open to

collateral attack. The issues, however,

could, and should, have been raised at trial

or on direct appeal. It is well settled that

constitutional questions are waived if not

raised in accordance with controlling rules

of procedure. Moore v. Illinois, 408 U.S

786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972);

Stembridge vy. Georgia, 343 U.S. 541, 72

S.Ct. 834, 96 L.Ed. 1130 (1952); Hulsey v.

State, 268 Ark. 312, 595 S.W.2d 934, reh

denied, 268 Ark. 315, 599 S.W.2d 729 (1980);

Williams v. Edmondson, 257 Ark. 837, 520

S.W.2d 260 (1975); Orman v. Bishop, 245

Ark. 887, 435 S.W.2d 440 (1968). As stated

in Hulsey, supra, in this Court, contentions

not argued by the appellant on first appeal

are waived. Sarkco v. Edwards, 252 Ark

1082, 482 S.W.2d 623 (1972). It is impera-

tive that judgments in criminal cases have

stability and finality. Hulsey, supra

{5] Petitioner first alleges that the

judgment is void pursuant to Turner v

Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13

L.Ed.2d 424 (1965) because a material wit-

ness at the trial, Sgt. Quimby Johnson, also

worked as a “security person and perhaps a

bailiff for the jury.” In Turner two deputy

sheriffs who were the principal prosecution

611 SOUTH WESTERN REPORTER, 2d SERIES

witnesses were in continuous associaty

with the jurors, eating dinner with theg

running errands for them and driving th

to and from the lodgings. The Court foy

that the two had been the “official gu

ans”. of the jury and that the jury

likely to find their testimony more crediby

by virtue of that relationship, Here, |

petitioner has offered nothing to show

such a relationship existed; however,

record does indicate that Sgt. Job

served in some capacity as a security offf

cer. +

MR. GIBSON (Proseguting Attorna}

For purpose of security in the courtros

the State would request that the Rule

waived as to Sheriff's Deputy Snow &

Sgt. Quimby Johnson, Investigator, bot

of which may or may not testify. The

is a possibility they will, but they ag

about the only good security officers}

have.

THE COURT: There might be soy

sort of feeling in the local community,

for the protection ’

MR. LINEBERGER (Defense Counsaj

We have no objections. We have @

cussed that with the prosecutor “a

THE COURT: | think we should hay

adequate protection against any kind g

emotional outburst that might arise.

MR. GIBSON: Pheir testimony wod

be relatively minor fd

THE COURT: Then it's

MR. LINEBERGER: It's ag

your honor

The allegations of the petition are ap oly

ently based on this exchange, but the peg

tion does not offer sufficient evidence

warrant setting the conviction aside. Pe

tioner also alleges, that even if this Couf

does not find merit to the allegation

Sgt. Johnson's presence in the courtroo

renders the judgment void, there remains

question of whether counse! was ineffecti

in failing to object to his presence

allegation shall be addressed later

[6] Petitioner next alleges that “tm

judgment is void because the trial co

excused several members of the jury veni

men SE MER ey pige

ce.

BERNE ON nee &

“7s >"

= =~es6 «

Sue ee

" ‘

< 5 ant =

= ««,

“—— Vee

COLLINS v. STATE Ark. 187

Clte as, Ark., 611 S.W.2d 182

without affording counsel the opportunity

to voir dire them on their reasons for not

wishing to serve. No objection was made

by the trial counsel to the potential jurors’

being excused by the Court and the matter

could not therefore be properly raised on

appeal. Clark v. State, 264 Ark. 630, 573

S.W.2d 622 (1978). Petitioner asserts that

the exclusion of these jurors for cause vio-

lated this Court's ruling in Hall v» State,

259 Ark. 815, 587 S.W.2d 155 (1976). This.

argument is without merit. In Hall, the

trial court excused all farmers (some 25-30

persons) without requiring any of them to

appear and ask to be excused, and this

Court found such a practice to be deliberate

and systematic exclusion of a large class of

eligible jurors, Hall, at 818 819, 587 S.W.2d

155.

[7] In the instant case, the trial court

heard the reasons given by the four poten-

tial jurors for not wishing to serve and

properly exercised its discretion in excusing

them. Furthermore, even though students

are not listed in Ark.Stat.Ann § 39-108

(Supp.1979) as persons exempt from service,

the trial court has the discretion to excuse

any juror “when, for any reason, his own

interests or those of the public will, in the

opinion of the Court be materially injured

by his attendance.” Ark Stat.Ann § 39

107 (Supp.1979)

[8] Petitioner also challenges the judg-

ment on the grounds that the lack of indi-

vidual, sequestered voir dire made the jury

selection process unreliable. In support of

his allegation, petitioner cites only one case,

the 1980 California Supreme Court opinion

in Hovey v. Superior Court on Alameda

County, 28 Cal.3d 1, 616 P.2d 1301, 168

Cal.Rptr. 128, 181 (August 28, 1980), which

we do not consider controjling. Petitioner

has presented nothing to show that peti-

tioner was entitled to an individual, seques-

tered voir dire

[9] Petitioner argues that the judgment

is void because the Court had a duty to

instruct the jury on all possible lesser in-

cluded offenses, including murder in the

first degree. Petitioner alleges that West

brook v. State, 265 Ark. 736, 580 S.W.2d 702

(1979) imposes a duty upon the trial court

to give instructions on all applicable lesser

included offenses even though defense

counsel has not requested such instructions.

There is no such duty imposed on the trial

court by Westbrook. Westbrook presented

a situation quite different from this case

There the case went to the jury with only

one possible conviction—eapital murder, In

petitioner's case the jury was instructed’ as

to second degree murder and clearly had a

choice as to whether either charge was sup-

ported by the evidence. This Court has

recently reiterated that it is reversible error

to refuse to give a requested instruction

where there is the slightest evidence to

warrant such an instruction, Brewer vy.

State, 271 Ark. 254, 599 S.W.2d 141 (1980);

Robinson v. State, 269 Ark. 90, 598 S.W 2d

421 (1980), but no duty was placed on the

trial court to give an instruction not re-

quested by counsel. If counsel concludes

that a particular instruction is warranted, it

is incumbent upon counsel to request that

instruction

{10} Petitioner next contends that the

judgment is void because Act 438 of 1973

unconstitutionally placed a burden on peti-

lioner to prove mitigating circumstances

and unconstitutionally limited the factors

that could be considered in mitigation, a

violation of the “premise” in Lockett y

Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed 2d

973 (1978). In Lockett, a four-judge plural-

ity held that the “Eighth and Fourteenth

Amendments require that the sentencer, in

all but the rarest kind of capital case, not

be precluded from considering as a mitigat-

ing factor, any aspect of a defendant's char

acter or record and any of the cireumstanc

es of the offense that the defendant prof

fers as a basis for a sentence less thart

death.” Lockett, at 605, 98 S.Ct. at 2965

This Court has considered the effect’ of

Lockett, in Neal v. State, 270 Ark 442, 606

S.W.2d 421 (1980). In Neal, as in this case,

where the appellant argued that Ark Stat

Ann. § 41 4701 et seq (Supp.1978), repealed

by Act 280 of 1975 (Crim Supp.1975), uncon-

stitutionally limited the mitigating circum

stances the jury could consider, this Court

found

iQ eas verre = SUS "scot CS

c-—q—e ee 8 By as 7. out

* 2 8 AWS ON cas =

188 Ark.

The Ohio statute considered in Lockett

was quite unlike the Arkansas statute

applied in Neal's trial. That Ohio law

required a trial judge to impose the death

penalty unless he found by a preponder-

ance of the evidence that (1) the victim

has induced or facilitated the offense; (2)

it was unlikely that Lockett would have

committed the offense but for the fact >

that she was under duress, coercion or

strong provocation; or (3) the offense

was primarily the product of the ac-

cused’s psychosis or mental deficiency.

The statute under which appellant was

tried was materially different. It per-

mitted evidence in the sentencing stage

as to any matter relevant to sentencing

Ark.Stat.Ann. § 41-4710(c) (Supp.1978).

Under that Act Ark.Stat.Ann. § 41-4701

et seq, (Supp.1973) the jury was not com-

pelled to impose the death sentence

whenever it found aggravating circum-

stances but no mitigating circumstances

existed beyond a reasonable doubt to jus-

tify sentence to death. Nea/, 270 Ark. at

449-450, 605 S.W.2d 421

As in Neal, this Court finds that the statute

does not unconstitutionally limit the factors

that can be considered in mitigation. Fur-

ther, this argument was addressed by the

Court on first appeal and this Court found

that Act 488 of 1973 was valid

With regard to petitioner's allegations

that Act 4388 of 1973 unconstitutionally

placed a burden on petitioner to prove miti-

gating circumstances, this Court held on

first appeal that the state had the burden

of proof in the issue of punishment. Collins

v. State, 259 Ark. 8 at 15, 581 S.W.2d 13

[i1-16] Finally, petitioner alleges inef-

fective assistance of counsel, Inadequate

representation by counsel is a ground for

postconviction relief where there has not

been an adequate opportunity to raise the

question prior to direct appeal. Hillard v

State, 259 Ark. 81, 531 S.W.2d 468 (1976)

Errors, omissions, improvident strategy or

bad tactics on the part of counsel do not

require an evidentiary hearing on an allega-

tion of ineffective assistance of counsel or

justify postconviction relief from a sen-

‘

611 SOUTH WESTERN REPORTER, 2d SERIES

tence. Clark v. State, 255 Ark, 13)

S.W.2d 657 (1973). The petitioner mj

first show prejudice by the alleged incom

tence of counsel. Leasure v. State;

Ark. 961, 497 S.W.2d 1 (1978). Ane

tiary hearing is not required when the,

gations of ineffectiveness relate only

matters ordinarily within the realm

counsel's judgment. Leasure, supra.

question presented in an evidentiary

ing is whether the petitioner has show,

a preponderance of the evidence tha

acts or omissions of the attorney resulta

making the proceedings a farce and f

ery of justice shocking to the cons

the court. Sheppard v. State, 255

498 S.W.2d 668 (1978). This Court

that “the mockery of justice” standa

the determination of ineffective

counsel is not to be taken literally. It

however, place a substantial burden ¢

petitioner in proving that counsel 4

equate. McDonald vy, State, 257 Ark

520 S.W.2d 292 (1975). Petitioner ij

case had the burden of showing clearly

convincingly that his attorney was sq

ently lacking in competence that it beg

the duty of the trial court to be awa

and to correct it. Petitioner has no

that burden

’

, -

’

‘?

WZ eum « a*; i o4 %

[17,18] In considering petitio

titlement to a postconviction hearing

ground of ineffectiveness of counsel, ¥

limited to the allegations of the p

Petitioner alleges that his counsel did}

1. Object to the exclusion of the

jurors discussed earlier;

2. Object to Sgt. Johnson's serving

security officer at the trial;

8. Request an individual, sequ

voir dire of the jury;

4. Attempt to rehabilitate juror BR

Wray; .

5. Request an instruction on t

included offense of murder

first degree; "4

6. Put on any evidence during the pi

ty phase of the trial and did x

quest that the “instructions on

gation be modified to confo

the law;”

COLLINS y. STATE

Ark. 189

Cite as, Ark., 611 S.W.2d 182

Object to the introductiori into evi-

dence of a prior conviction under a

“First Offenders Act;” and

8. Object to instructions on mitigation

With regard to the first allegation, we

have stated that it was within the discre-

tion of the trial court to excuse the jurors

in question Further, petitioner has not

shown that he was prejudiced by the court's

action or that counsel's failure wo object was

not a legitimate trial tactic

{19} The matter of counsel's failure to

object to Sgt. Johnson's presence in the

courtroom for security would

present a more pressing question if the

petitioner had offered any substantiation

for the allegation that petitioner was preju-

diced by Sgt. Johnson's presence. As peti-

tioner correctly contends, a witness should

not be allowed to interact with the jury to

the extent that his credibility is enhanced in

the eyes of the Jurors, but petitioner has

failed to show that Sgt. Johnson had any

direct contact with the jury during the tri-

purposes

al. The mere allegation, without support,

that Johnson was “perhaps” a bailiff for the

Jury does not establish in itself that peti-

tioner suffered any prejudice by counsel's

agreeing that Johnson should remain in the

courtroom

[20] Counsel’s failure to request an indi-

vidual sequestered

error on counsel's part

to cite only one Jurisdiction in this country

which requires such an

obvious that counsel should not be « xpected

to request what amounts to an extraordina

ry practice

{21) Petitioner alleges that

should have attempted to rehabilitats

ton Wray, a juror who Stated in

that he

ment “under any circumstances.”

er contends that Witherspoon Illinois, 391

510, 88 S.Ct 1770, 20 L.Bd.2d 776

(1968) and Davis y Georgia, 429 U.S 122,

97 S.Ct. 3¢ 9, 50 L.Ed.2d 399 (1976) somehow

place a duty on counsel to examine at

length a witness who States opposition to

the death penalty in hopes of getting him to

voir dire was not an

Petitioner was able

voir dire It ig

counsel

Ben

voir dire

would not consider capital punish

Petition-

equivocate. This argument is without mer-

it. Counsel’s decision not to question a

particular juror is within the realm of trial

Strategy

[22,23] Petitioner next argues that

counsel was obligated to request an instruc-

tion on the lesser included offense of mur-

der in the first degree, or at least, that

counsel was iligated to record the reasons

for not requesting such an instruction. Pe.

Utioner presents no support for this argu-

ment, and we find no duty to request an

instruction on the lesser included offense of

murder in the first degree in capital cases.

It is reasonable to assume that counsel

chose not to request the instruction on mur-

der in the first degree as a matter of trial

tactics and strategy. This Court found on

appeal that there was sufficient evidence to

Sustain a conviction of capital felony mur-

Collins, 261 Ark. at 223, 548 S.W.2d

106, and petitioner has not shown that he

was prejudiced by counsel's not requesting

an instruction on murder in the first de-

gree

[24-25] Counsel did not put on any evi-

dence during the penalty phase of the tria!

and petitioner alleges that this can only be

deemed ineffective assistance of counsel

Petitioner fails, however, to cite any evi-

dence that was available Clearly, counsel

's not obligated to manufacture ev idence if

none exists. Since petitioner presented no

specific evidence that could have been

presented in mitigation, we cannot say that

counsel was remiss in not presenting testi-

mony during the penalty phase. Petitioner

further alleges that counsel should have

objected to the introduction into evidence of

® prior conviction under “a First Offenders

Act.” The record indicates petitioner was

sentenced in 1973 to seven years in the

Arkansas Department of Correction with

four years Suspended for armed robbery

The commitment order recommends that

petitioner be incarcerated “at Tucker Prison

with first offenders " The record does

not support petitioner's allegations that he

was sentenced as part of a first offenders

program and counsel therefore cannot be

held accountable for failure to object to

der

190 Ark.

introduction of the conviction on that

ground.

Petitioner also stated that counsel should

have objected to “explanations” concerning

the prior offense given by the trial court.

He does not enlarge on this and this Court

cannot search the record seeking to deter-

mine what is behind petitioner's conclusory

allegation.

Finally, petitioner argues that counsel

should have objected to the instruction on

mitigation that allegedly placed a burden

on petitioner to prove mitigating circum-

stances beyond a reasonable doubt. The

record shows that counsel for petitioner did

object to the trial court’s instruction on

mitigating circumstances (T.277) and the

trial court responded by clarifying its re-

marks:

The matter of mitigating circumstanc-

es is an opportunity the defendant has.

There is no burden on him at all. The

burden is on the state in the whole case

(T.278)

Petition denied

Dennis Edward LOANE, Appellant,

STATE of Arkansas, Appellee.

No. CR 80-201,

Supreme Court of Arkansas

Feb. 2, 1981

Rehearing Denied March 2, 1981

Defendant was convicted before the

Cireuit Court, Sebastian County, John G

Holland, J., of aggravated robbery, and he

appealed. The Supreme Court, Adkisson, C

J., held that: (1) defendant intelligently

and knowingly waived his right to counsel

at second postinformation lineup, and (2)

611 SOUTH WESTERN REPORTER, 2d SERIES

trial court did not err in refusing to

defendant to introduce hearsay evide

that his fingerprints were not found

place where alleged robbery occurred u ;

the prosecution was allowed to introduce

hearsay evidence that fingerprints of «

leged accomplice were found at scene b

on asserted ground that finding of alle

accomplice's fingerprints at scene was

evant.

Affirmed. i.

Purtle, J., dissented and filed opinid

1. Criminal Law @339.11(3)

State, during hearing on defends }

motion to suppress identification testimoal

bears burden of showing that waiver @

defendant's constitutional right to cound

at postinformation lineup was given volu

tarily, knowingly, and intelligently and

based upon his receiving adequate warnit

as to his right to counsel. U.S.C_A.Cons

Amend. 6. ‘

2. Criminal Law @=641.2 ‘

Defendant has right to presence

counsel at postinformation lineup absen

Knowing and intelligent waiver of

right ‘y

3. Criminal Law @=339.8(7) ‘ ey

Defendant effectively waived right”

counsel at postinformation lineup where

fendant was on record as having con

ously requested a lineup on both ¢

pending against him, where he knew

witnesses did not view first lineup, "hk

agreed to shave his beard and mustache

second lineup, he discussed with his atte

ney need for attorney's presence at

lineup, and he was informed of his counsel}

absence prior to lineup and was asked if

chose to proceed, despite the fact that :

fendant was mistaken as to the purpose

the second lineup

4. Criminal Law @ 1158(4)

Supreme Court will not set aside

that defendant voluntarily, knowingly,

intelligently waived his right to cou

during lineup confrontation unless it =f

clearly erroneous.

IN THE SUPREME COURT OF ARKANSAS

CARL ALBERT COLLINS meted {x

v. No. CR 75-110 DEC ] 9 1980

STATE OF ARKANSAS RESPOND BO hFa L. WILLIAMS

PETITION FOR PERMISSION TO PROCEED CLERK

PURSUANT TO RULE 37, A.R.Crim.P. (Repl, 1977)

Comes the petitioner, Carl Albert Collins, through

his counsel, Lessenberry & Carpenter, serving pro bono,

and for his petition states:

Le Petitioner was charged with capital felony

murder pursuant to Act 438 of 1973, in the Washington

Civeuit Court. After entering a plea of not guilty,

\ and a trial by jury, petitioner was convicted of capital

murder. The jury then sat again to consider punishment,

and returned a verdict of death by electrocution. Peti-

tioner is presently awaiting execution in the Arkansas

Department of Correction.

2. Petitioner appealed his conviction and sentence

to this Court, and to the United States Supreme Court.

The conviction and sentence were ultimately affirmed.

ry ¢

Coflins v. State, 259 Ark. Se, Ses 8.8.28 135 (2978);

judgment vacated, Collins Vv. Arkansas, 429 U.S. 966

(1976), aff'd, Collins: v. State, 261 Ark. 195, 548 §.W.2a

106 (1977), cert. denied, 434 U.S. 878 (1977), rehearing

Genied, 434 U.6. 977 (1077).

r Petitioner is indigent and counsel is serving

pro bono since there is no provision for appointing

counsel to assist indigent defendants with petitions

- for post-conviction relief. See Neal v. State, APB . »

605 S.W.2d 421 (September 29, 1980).

4. Petitioner eeks relief pursuant to the provisions

of Rule 37.1, A.R.Crim.P. (Repl. 1977), for the reasons

set out below. Petitioner contends thatthese reasons

establish that the judgment in this case is void and

that he is entitled to relief. Pursuant to the Arkansas

a A

Carl Albert Collins v. State of Arkansas: No. CR 75-110

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37: Page 2

Rules of Criminal Procedure, petitioner is asking this

Court to grant permission for him to proceed to the

trial court for an evidentiary hearing on the issues

raised in the petition. Rule 37.2(a), A.R.Crim.P.

(Repl... 1077).

S. For .the reasons set out below, and because

it is clear that “death is a different kind of punishment

from any other which may be imposed in this country,"

petitioner asks that the Court grant him this hearing.

Gardner v. Florida, 430 U.S. 349, 357 (1977).

6. Petitioner's judqment is void because of the

improper use of a law enforcement officer witness as

security personnel in the courtroom. During the course

of the trial Sergeant Quimby Johnson, an investigator

with the Arkansas State Police, was called to testify.

Sgt. Johnson was a material witness in t his case. His

testimony was that he was the first person on the scene

of the crime; that he found certain information that

would suggest that a robbery had been committed--i.e.,

a wallet missing from the deceased's pants, a telephone

pulled from the wall, the trail of blood--and he found

the circumstantial evidence to Suggest that petitioner

had committed this rime--i.e., the truck that was stolen

from the victims, the shotgun, the sawed-off portion

of the shotgun. He alsc was used to introduce a photograph

to the jury of the deceased victim of this offense.

This use of a law enforcement officer working as

a security person in the trial, and perhaps as a bailiff

for the jury, who also served as a witness is a violation

of petitioner's rights to due process of law under the

Fourteenth Amendment to the United States Constitution.

As such, the death penalty that he received cannot be

’ wth

een Tee

Carl Albert Collins V- State of Arkansas: No. CR 75-110 %.

Arkansas Supreme Court: Petition for Permission to Proceed '

Pursuant to Rule 37: Page 3 :

carried out. see Turner v. Louisiana, 379 U.S. 466

(1965). If there is any doubt in the Court's mind about

the propriety of setting asid the conviction on this

basis, this matter should be returned to the Washington

Circuit Court pursuant to Rule 37, A.R.Crim.P. (Repl.

1977), for an evidentiary hearing to determine the basis

of Sergeant Johnson's association with the jury during

its deliberations, or when it was sequestered for purposes

of deliberation in the trial.

vs Petitioner's judgment is void because prior

to the seating of the jury in this matter the trial

court excused certain members of the jury venire without

having given counsel the »pportunity to voir dire these

jury members, and without having the jurors come forth

to determine if their basis for not wanting to serve

on the jury was 4 basis for excusal under Arkansas law.

Specifically, prior t¢ the trial the Court, on its own

motion, excused two students at the University of Arkansas

at Fayetteville. This was an improper exclusion for

cause under Arkansas statutes. Specifically, the bases

for excluding jurcrs for cause without consent of counsel

are set out in Ark.Stat.Ann. § 39-108 (SuppPp- 1979).

These lo not includ: students.

Further, during the course of the voir dire examination,

the Court excluded another student with a4 pending test

without having first dete rmined if the test could be

po stponed. This was done without objection of counsel.

Finally. the tr ail ourt excluded a fourth juror

‘

that indicat i theré nav be a har iship on his business

if he were forced to erve. However, this same juror!

indicated that he suld serve on the jury.

Carl Albert Collins v. State of Arkansas: No. CR 75-110 ‘

Arkansas Supreme Court: Petition for Permission to Proceed ‘

Pursuant to Rule 37: Page 4

The practice of this type of exclusion for cause

has been condemned by this Court in prior opinions.

See Hall v. State, 259 Ark. 815, 537 S.W.2d 155 (1976).

Three of these jurors were excluded without counsel

being given the Opportunity to object. The fourth juror

was excused without the objection of counsel. Still,

these jurors comprised eight percent (8%), of those

jurors that were questioned in this matter. For this

reason, the judgment is void as violative of petitioner's

rights under the Sixth and Fourteenth Amendments to

the United States Constitution, and Article II of the

Arkansas Constitution, and the Arkansas statutes set

out above. For this reason, the Court should set aside

the conviction and sentence received in this case.

8. Petitioner alleges that the method of questioning

the jurors during the voir dire examination in this

case failed to provide for the reliability in jury selection,

and therefore in the jury verdict, because the jury

was not questioned by individual, sequestered voir dire.

As can be seen from the answers of the potential jurors

luring the course of voir dire, many of their answers

were not spontaneous because they related to other answers

that they had heard from other jurors.

It was recently stated by the California Supreme

Court that because of the peculiar nature of the voir

dire in death penalty ases, and the necessity to

- “death qualify" a jury, that the only way to achieve

reliable answers was to have individualized, sequestered

voir dire. Hovey v. uperior Court of Alameda County,

Cal.34d ; P.2d » 168 Cal. Rptr. 128 (August 28,

1980). There the Court stated

The most practical and effective procedure

ivailab) t Minimize the untoward effects

of death-qualification is individualized,

sequestered voir dire. Because juro;s

Carl Albert Collins v. State of Arkansas: No. CR 75-110

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37: Page 5

would then witness only a single death-

qualifying voir dire--their own--each in-

dividual juror would be exposed to consid-

erably less discussion and questioning

about the various aspects of the penalty

phase before hearing any evidence of guilt.

Such a reduction in the pretrial emphasis

on penalty should minimize the tendency

of a death-qualified jury to presume guilt

and expect conviction. Hovey v. Superior

Court of Alameda County, supra, 168 Cal.

Rptr. at 181.

The otherwise potential for bias or unreliable answers

of the jury, and thus the accompanying unreliability

of the penalty imposed, render this judgment void.

9. Petitioner's judgment is void because the

Court did not instruct the jury on all possible lesser

included offenses; specifically, there was no lesser

included offense given for the offense of murder in

the first degree. Ark.Stat.Ann. § 41-2204 (Repl. 1964).

This is a duty that this Court has imposed upon the

trial court. See Westbrook v. State, Ark. » 580

S.W.2d 702,708 (1979)

HNowever, when the evidence presented shows

the a used might be convicted of a lesser

offense which is necessarily included in

the charged, it is the duty of the court

to present instructions to embrace all

1 particular offense, and

included ffenses, to which the evidence

is applicable. [Emphasis added)

Although Westbrook, supra, dealt with a situation in

which appellant had specifically requested instructions

On lesser offenses

s, this Court went further and imposed

a duty on the trial surt to give all applicable lesser

included offense instructions.

The relevant statute on murder in the first degree

provided

All murder which shall be perpetrated by

mean Of poison, or by lying in wait, or

by any other kind f wilful, deliberate,

malicious and premeditated killing, or

which shall be committed in the perpetra-

tion of or in the attempt to perpetrate

arson, rape, robbery, burglary or larcency,

shall be deemed murder in the first degree.

Carl Albert Collins v. State of Arkansas: No. CR 75-110 ‘

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37: Page 6

It could be argued that because of the overlapping

language in this statute and that of Act 438 of 1973,

that this statute was repealed by the 1973 Act. However,

there was no specific repealer of this statute, only

of acts that are inconsistent with this act.

In light of this Court's opinion in Cromwell Vv.

May 27,

State, Ark. »598S.W.2da733(1980), dealing with a

Similar overlap in the present capital murder statute,

Ark.Stat.Ann. § 41-1501 (Repl. 1977), and the statute

on murder in the first degree, Ark.Stat.Ann. § 41-1502

(Repl. 1977), there appears to be no conflict. As stated

by the Court in that opinion

The actual wording of the statute may have

been cl en to lighten the possible punish-

ment that might be imposed for ynduct

falling within the strict definition of

apital murder--a nsequence that might

be } ptable« to both prosecut na ; lefense

Cromwell tat upra, 98 N i

735 :

In other words, the Court was willing to permit t}

jury to make an unfettered determination that a defendant

could be convicted of a lesser charge f first degree

murder for an offense that met the strict definition

of capital murder. By doing so, the Court seems to

imply that the present situation would also be permissibl«

This is particularly true in light of the fact that

ther

‘sent between Act 438

of 1975, and Ark.Stat.Ann § 41-2204 (Repl. 1964)--

i.e, the requirement in the capital felony murder act

that the action be done under circumstances manifesting ‘

extreme indifter t the 1lue of human life, as

opposed to the provisior ‘f the first degree murder

statute that it be mmitted during the perpetration

of the included felonie

It was error, ther for the Court not t¢t properly

instruct the jury. Its failure to do so renders the

verdict and judgment void, and requires that the death

Sentence be set aside.

Carl Albert Collins v. State of Arkansas: No. CR 75-110

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37: Page 7

8. Petitioner's judgment is void because Act 438

of 1975 unconstitutionally placed a burden on petitioner

to prove mitigating circumstances, as pointed out in

the instructions, and also because the language of the

statute eppeared to unconstitutionally limit the factors

that could be considered in mitigation. As such, the

statute viglates the premise of Lockett v. Ohio, U.S.

__ (1978),

10. Petitioner's judgment is void because of the

above reasons. In addition, and in the alternative,

without waiving any of the above objections, petitioner

states that he was denied effective assistance of counsel

at the trial of this matter in the following ways:

(a) Counsel did not object to the exclusion of

the four jurors mentioned in paragraph 7 above. By

not so objecting, counsel did not provide this Court

with a basis for determining the propriety of the Court's

ex parte action which, under decisions of this Court, -

appears to have been reversible error. This cannot

be deemed to be a trial tactic, but a failure by counsel

to adequately preserve an essential constitutional right

of the petitioner at trial.

(b) Counsel acquiesced in permitting law enforcement

officer/witnesses to remain in the courtroom for security,

and to be involved in that manner with the jury, despite

the fact that the United States Supreme Court has indicated

that that is a practice that cannot be condoned. This

is particularly true in light of the fact that Sergeant

Johnson gave such crucial testimony as to the guilt

determination of petitioner.

to assure the reliability of potential veniremen's answers

by requesting individual, sequestered voir dire of the

jury. In light of the sensitive nature of this questioning,

Carl Albert Collins v. State of Arkansas: No. CR 75-110

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37: Page 8

this cannot be deemed a legitimate trial tactic, and

petitioner should be granted ax evidentiary hearing to

determine if counsel fully appreciated the implications

of this situation.

(d) Counsel did not provide adequate assistance

of counsel when it failed to attempt to rehabilitate

juror Benton Wray. Wray stated on voir dire by the

prosecuting attorney that he could not consider the

death penalty under any circumstances. [R. 464] Counsel

for petitioner, however, did not request the opportunity

to explore these feelings further with Mr. Wray.

It has been shown that despite statements in opposition

to the death penalty, jurors on careful examination

will admit that in the appropriate case they could consider

the imposition of the death penalty. In this matter,

it is unclear if counsel was intimidated by the presence

of other jurors during this voir dire examination--

one other reason to permit individual, sequestered voir

dire--or, if counsel did not understand the meaning

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

cases interpreting it, and understand the duty to try

and rehabilitate jurors such as Mr. Wray.

Since the United States Supreme Court in Witherspoon,

supra, stated that a death penalty could not be carried.

out if jurors opposed to its imposition were excluded

from the jury, then the basis for counsel failing to

attempt this rehabilitation should be explored. This

is particularly true in light of the Court's recent

pronouncement that the Witherspoon principle applies

to the improper exclusion of even a single juror. See

Davis v. Georgia, 429 U.S. 122, 123 (1976). Of course,

Davis, supra, makes this determination even if the

prosecuting attorney had additional peremptory challenges

available at the time of the exclusion.

A <a Ts a A ee ——= EE ED

Carl Albert Collins v. State of Arkansas: No. CR 75-110

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37: Page 9

‘ie evidentiary hearing on this matter would develop

the basis for counsel's failure to attempt the rehabilitation

of this juror. Further, the hearing would allow present

counsel to more fully develop the record as to how this

Process is done, and whether the attempt at rehabilitation

is the type of thing that would be done by defense counsel

trying the capital case--an area of criminal defense

work that has now become highly specialized.

(e) Counsel did not provide adequate assistance

of counsel by failing to request an bial eihielaiieads on the

lesser included offense of murder in the first degree

as defined by Ark.Stat.Ann. § 41-2204 (Repl. 1964).

Since the instruction would have permitted the jury

an alternative to the capital murder® conviction, much

as the present statutes allow, then this instruction

should have been requested. Petitioner makes this argu-

ment without waiving the above argument that it was

the duty of the trial court to give this instruction

on its own motion. Shovld the Court decide, contra

to Westbrook v. State, Supra, that the trial court had

no such duty, then counsel was under an obligation to

request the appropriate instruction, or Place in the

record affirmative reasons for not requesting such an

instruction.

An evidentiary hearing on this point would permit

petitioner the opportunity to explore counsel's reason

for omitting a requested instruction on murder in the

first degree.

(£) Counsel did not provide adequate assistance

of counsel whenthey failed to put on any evidence during

the course of the penalty phase of the trial in this

matter, or to request that the instructions on mitigation

be modified to conform with the law.

= = Se

—— -: == =—S=S=——

Carl Albert Collins v. State of Arkansas: No. CR 75-110

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37: Page 10

The United States Supreme Court mandated in Gregg

v- Georgia, 428 U.S. 153 (1976), that death penalty

trials would have to consist of two parts: a determination

of guilt/innocence; a determination of penalty. In

compliance with the earlier indications of the Court

in Furman v,. Georgia, 408 U.S. 238 (1972), Arkansas

Passed Act 438 of 1973 setting up the bifurcated trial

procedure in capital cases.

The Court further stated, in Gardner v. Florida,

430 U.S. 349 (1977):

Second, it is now clear that the sentencing

process, as well as the trial itself, must

Satisfy the requirements of the Due Process

Clause. Even though the defendant has no

substantive right to a particular sentence

within the range authorized by the statute,

the sentencing is a critical] stage of the

Criminal proceeding at which he is entitled

to the effective assistance of counsel.

Gardner v. Florida, supra, 430 U.S. at 358

(judgment of the Court).

In short, penalty is a critical stage of the proceedings,

and the rights to effective assistance of counsel apply

equally to this stage of the proceedings as to the guilt

determination phase.

The failure to put on any evidence in mitigation

of the charge of capital murder, particularly in light

of the fact that mitigation is not limited to the factors

listed by the statute, can only be deemed ineffective

assistance of counsel at a critical stage of the proceedings.

Argument of counsel is not sufficient to attempt

to show mitigating circumstances. This is true for

two reasons. First, there is a burden of proof placed

on the defendant (which will be discussed later) to

show that a mitigating circumstance exists. Secondly,

arguments of counsel are not evidence and cannot be

considered by the jury as such. In short, there is

no evidence in mitigation to meet a burden on the

- . ~~ —

go SS SS SSS SS

—<—— =

Carl Albert Collins v. State of Arkansas: No. CR 75-110 ct

Arkansas Supreme Court: Petition for Permission to Proceed ,

Pursuant to Rule 37: Page 11

mitigation in a capital case if the attorney does not

put on any evidence. This cannot be deemed a trial

tactic and an evidentiary hearing should be held to

determine if trial counsel fully understood the second

phase of the capital case in preparing petitioner's

defense. Further, it should be determined if, because

of lack of funds, counsel was prevented for fully

satibiiive we penalty phase of the trial for an indigent

defendant.

(f) Counsel did not provide adequate assistance

of counsel whenhe failed to »bject to the introduction

into evidence of a prior conviction under a First Offenders

Act, or to object to explanations concerning that prior

offense given by the trial court to the jury. Since

this prior offense was found to be an aggravating circum-

stance, the error cannot be deemed a legitimate trial

tactic and an evidentiary hearing should be held to

determine the reason for counsel's failure to make this

objection.

(g) Counsel did not provide adequate assistance

of counsel when he failed to object to the instructions

on mitigation that placed a burden on petitioner to

prove a mitigating circumstance, but did not establish

what the burden of proof was to be on such a circumstance.

As given in the instruction [R. 275], it is unclear,

and the jury is given no guidance as to what burden

of proof to give to the existence of a mitigating circumstance.

WHEREFORE, premises considered, petitioner, Carl

Albert Collins, prays that this Court grant his petition

for permission to proceed to the trial court for an

evidentiary hearing on this petition under Rule 37,

| A.R.Crim.P. ,(Repl. 1977).

Carl Albert Collins v. State of Arkansas: No. CR 75-110

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37: Page 12

Respectfully submitted,

LESSENBERRY & CARPENTER

807 West Third Street

Little Rock, Arkansas 72201

(501) 372-4040

By: OY hema, IY. arf O—

Thomas M. Carp@nter

VERIFICATION

I, Thomas M. Carpenter, having been duly sworn

according to law, do hereby state that the allegations

in the above petition for true and correct to the best

of my knowledge and belief.

Khona 7.

Thomas M. Cafpenter

STATE OF ARKANSAS)

)

COUNTY OF PULASKI)

Subscribed and sworn to before me enie/ 7 Gas of

December, 1980.

My commission expires:

A 6, 1782-

CERTIFICATE OF SERVICE

I, Thomas M. Carpenter, serving as counsel pro

bono for petitioner herein, do hereby certify that a

true and correct copy of the foregoing petition has

been seved on opposing counsel this 19th day of December,

1980, by mailing a copy of same to the Honorable Victra

Fewell, Assistant Attorney General, Office of the Attorney

General, Justice Building, Little Rock, Arkansas, 72201,

with sufficient postage attached thereto.

aphewea TY Copt—

Thomas M. Carpénter

ee ET te

THIS IS A CAPITAL CASE

EXECUTION IS IMMINENT

IN THE SUPREME COURT OF ARKANSAS

JOHN EDWARD SWINDLER PETITIONER

Vi No. CR 79-116

STATE OF ARKANSAS : RESPONDENT

PETITION FOR PERMISSION TO PROCEED

PURSUANT TO RULE 37, A.R.CRIM. P. (REPL. 1977)

Comes the petitioner, John Edward Swindler, through

his counsel, serving pro bono publico, and for his peti-

tion states:

1. Petitioner was charged with capital murder in the

Sebastion Circuit Court. After trial by jury, petitioner

was convicted on said charge and sentenced to death by

electrocution. This original conviction and sentence were

reversed by this Court because of the pervasive, prejudicial

pretrial publicity. Swindlenr v. State, 264 Ark. 107, 569

S.W.2d 120 (1978). Upon retrial petitioner was granted

a change of venue to the Scott Circuit Court. Petitioner

was again convicted and sentenced to death by electrocution.

This Court affirmed the second pancenee and conviction.

Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert.

denied, __U.S.__ (December 8, 1980).

On December 21, 1980, Governor Bill Clinton issued

an executive proclamation scheduling petitioner's execution

for Saturday, March 21, 1981. Petitioner filed a petition

for stay of execution on Friday, March 13, 1981, with this

Court, stating inter alia that this petition would be filed

on Monday, March 16, 1981, and asking that this Court stay

the pending execution until considering the merits of this

petition. Action needs to be taken on the petition for

stay of execution forthwith.

2. This Court has approved a procedure for seeking

post-conviction relief. Rule 37, “oe SD

MAR 16 1981

DONA L. WILLIAMS -

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 2

This rule grants this Court jurisdiction over such matters.

Further, this Court has specifically reserved jurisdiction

over Rule 37 petitions as opposed to sending these petitions

to the Arkansas Court of Appeals for consideration. Rule

29.1(e), Rules of the Supreme Court (Repl. 1980).

3. Petitioner must file with this Court a petition

for permission to proceed to the trial court for an evi-

dentiary hearing. Rule 37.2(a), A.R.Crim.P. (Repl, 1977).

This petition must state grounds contained in Rules 37.1,

A.R.Crim.P. (Repl. 1977). Failure to raise all grounds

for available relief in the original, or amended, petition

serves as a waiver of those grounds. Rule 37.2(b), A.R.

Crim.P. (Repl. 1977). This petition must be filed within

three years of the date of commitment unless the grounds

for relief would render the judgment absolutely void. Rule

37.2(c), A.R.Crim.P. (Supp. 1979).

4. Petitioner is filing the required petition and

is alleging grounds that he believes are a basis for re-

manding this matter to the trial court for an evidentiary

hearing. Further, this petition is being filed within three

years of the date of petitioner's commitment on October

26, 1978. Therefore, this petition is timely filed.

5. Petitioner notes that this Court has criticized

counsel in the past for misconstruing the purpose or func-

tion of Rule 37, A.R.Crim.P, (Repl. 1977), and for raising

as grounds for relief matters that this Court feel have

no basis. Hulsey v. State, __ Ark. _, 595 S.W.2d 934 (March

31, 1980), rehearing denied, __ Ark. __, 599 §.W.2d 729

(June 9, 1980), cert. denied, __U.S.__— (October 20, 1980);

Neal v. State, __ Ark. _, 605 S.W.2d 421 (September 29,

1980); Collins v. State, Ark. ’ §.W.2d (February

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 3

2, 1981). Petitioner agrees with this Court that judgments

of conviction need to have a finality to them at some point.

Colkins v. State, supra. Petitioner also notes that should

he be unsuccessful before this Court, it is incumbent upon

his counsel to seek a writ of habeas corpus in federal court.

Before the jurisdiction of the federal court on such a writ

may be granted, however, petitioner must show that there

has been an exhaustion of all available State remedies.

28 U.S.C. § 2254 (b).

Since petitioner is represented by new counsel

at this stage of the appellate proceedings, it is necessary

that all available grounds for consideration be presented

to this Court so there can be no question as to whether

petitioner has exhausted his state remedies. Besides assur-

ing that no waiver of petitioner's constitutional rights

occurs, the procedure followed in this petition should accomo-

date. the finality of a judgment in that it precludes the

return to this Court on a particular point by the federal

court for consideration as to exhaustion. If this Court

misconstrues the intentions of counsel ag to the procedure

followed, counsel apologizes; however, counse] and petitioner

affirmatively assert that this procedure is being followed

in the best interests of petitioner. Further, petitioner

affirmatively states that this petition is being filed in

good faith and not for the purpose of delay and is an attempt

to provide a logical, orderly progression through the various

appellate remedies that may be available.

i‘ Petitioner notes that this petition may seem to

be lengthy. In light of this Court's clarification as to

the procedure to be followed, petitioner states all of his

grounds for relief, with memoranda of law, in the petition.

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 4

Petitioner is not filing a separate statement of points

and memorandum of law previously condemned by this Court.

Neal v. State, supra, 605 S.W.2d at 423-424.

7. Petitioner's conviction and sentence should be

vacated, and a new trial ordered, because he did not re-

ceive a fair trial before an impartial jury. Petitioner's

rights under the Due Process Clause of the Fourteenth Amend-

ment were thereby violated. Further, petitoner's rights

under Article II §§ 8, 10 of the Arkansas Constitution,

and Ark.Stat.Ann. § 43-1919 (Repl. 1977), were also violated.

While this Court has passed on certain aspects of this

question, other parts of the issue have not been reviewed.

Because the Due Process Clause requires a higher degree

of certainty in a death penalty case, 4ee, Gardner v. Florida,

430 U.S. 349 (1977), and because of this Court's duty to

review the record in a capital case for any error, whether

argued on appeal on not, it is appropriate for this Court

to now consider this point. Rule 36.24, A.R.Crim.P. (Repl.

1977).

The standard for reviewing this question were set forth

by the United States Supreme Court in Iavin v. Dowd, 366

U.S. 717 (1961). The seating of a juror who has formed

an opinion violates the Due Process guaranty of an impartial

jury. The mere existence of opinion, without more, is in-

sufficient to rebut a presumption of impartiality if the

juror can lay aside that opinion. Review of the voir dine

examination is a mixed question of law and fact. Where

there is a pattern suggesting a settled opinion regarding

guilt, a juror's protestation of impartiality should be

given little weight.

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 5

In Murphy v. Fkorida, 421 U.S. 794 (1975), the Court

confirmed the views expressed in Irvin v. Dowd, supra,

noting that the totality of the circumstances of the case

should be reviewed in determining whether a criminal de-

fendant obtained trial by an impartial jury. The law in

this State is in accord with those decisions. This Court

has added that

-.»-where the juror testifies that he is not one

hundred percent sure that he can lay aside his

previous impressions or opinions, we do not see

how any discretion on the part of the court can

add any assurance that the verdict will be ren-

dered only upon the evidence presented in court.

Swindler v. State, 264 Ark. at 113, 569 S.W.2d

at 124 [Hereafter Swindfler 1}.

The appeal of this cause dealt with the denial of mistrial

and motion for change of venue with created by publicity

problems. Swindler v. State, 267 Ark. 418, 592 §.W.2d 91

(1979) [Hereafter Swindfer 11]. This analysis in the se-

cond case overlooked significant problems which, viewed

in their totality, denied petitioner a fair trial.

A review of the totality of the circumstances reveals

the following:

A. Jury selection at the second trial took five

days. To select a panel of twelve jurors and one alternate,

126 venirepersons were examined. Of the 120 called before

a panel was selected, 113 were asked if they had any knowledge

about the case. 110 answered that yes they did have prior

knowledge.

Of these, nine initially denied that they knew

anything about the case. Some jurors had Slight information.

Others had closely followed the case up to, and through,

voir dine,

B. The trial court, while often exercising great

care in voin dine, made significant errors that require

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 6

this Court, in exercise of its supervisory powers, to vacate

the judgment and order a new trial. Article VII § 4, ARK.

CONST. Cf., In re Rules of Criminak Procedure, 259 Ark.

863, 530 S.W.2d 672 (1975); Murphy v. Florida, supra,

The trial court was extremely inconsistent ii

determining whether a particular venireperson's protest-

ations of impartiality were acceptable. Every juror who

acknowledged familiarity with the petitioner or the case

gave this information without prompting. This Court's atten-

tion is drawn, for illustrative purposes, to the following:

1. Venireperson Oakes, when asked what he knew

about the case, gave answers regarding petitioner's back-

ground, prior trial and reversal. [R. 755].

2. Venireperson Sunderman answered questions

with similar information. [R. 971-980].

3.. Venireperson Crase, after initially trying

to deny any knowledge about vb enka, revealed that he had

information regarding petitioner's capture and prior back-

ground [R. 999-1004].

4. Venireperson Jones, indicated knowledge of

the events prior to and after the first trial, and indicated

that he knew of anticipated defenses from reading about

the case the day before his voin dine [R. 1153-1163].

5. Venireperson Bricksey, knew of petitioner's

background, other charges petitioner was facing, the first

trial petitioner received, and that he would have difficulty

putting this information aside [R. 1295-1319}.

6. Venireperson Holland, after initially denying

any knowledge, stated that he knew about the case from re-

cent news on television. [R. 1355]

——

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 7

7. ‘Venireperson Blythe, noted that everyone knew

about the crime [R. 1392-1395].

8. Venireperson Montgomery, knew about the prior

trial and had been listening to newscasts about the pending

trial [R. 1451-1469].

9. Venireperson Wilson had read about the case

and heard a potential juror discussing the case [R. 1490,

1497-1498].

This is not, by any means, a complete list of the type

‘of information that the venirepersons gave about their prior

knowledge of this case. This situation should be contrasted

with that in Murphy v. Florida, supra, where defense counsel

brought much of the information before the panel by asking 2

leading questions on voir dine, 421 U.S. at 800-801, nn,

$5¢,5.

Despite the familiarity of potential jurors with the

facts of the case, and the large number that were convinced

prior to trial of petitioner's guilt, the trial court did

little to abate the situation.

Voin dine took five days. (R. 684-1241]. The trial

court never admonished jurors or potential jurors not to

read about the case or ss Gee to radio or television news-

casts. This admonition was never given despite the fact

that potential jurors acknowledged that they were obtaining

new and recent information. See, e.g., Venirepeason Neal

(R. 808).

On the second day of jury selection, four venirepersons

noted that they had heard recent information. [R. 908; 961;

1042-1045; 1051).

On the third day of jury selection, six persons advised

that they had recent information. [R. 1120; 1139; 1153;

—,

John Edward Swindler v. State of Arkansas: No. CR 79-116.

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 8

1170; 1187; 1204]. One of these venirepersons, Thurman

Jones, acknowledged reading a complete account of the case

while awaiting voir dine.

On the fourth day of jury selection, six persons ac-

knowledged having read or heard recent news accounts about

the case. [R. 1253; 1261; 1286; 1329; 1362; 1380).

By the fifth day of jury selection, seven persons ac-

knowledged having read or heard recent news accounts. [R.

1413; 1432; 1435; 1443; 1448; 1451; 1470]. Three of the

six persons interviewed as alternates had read or heard

recent news accounts. [R. 1490; 1511; 1518).

Despite these repeated indications that jurors were

receiving, and were interested in receiving, information

about the case from sources outside the courtroom, the trial

court did not admonish them to not read news accounts. He

did "suggest" to the first two jurors seated that they not

read or listen to accounts of the trial. [R. 969; 986].

The trial court did not make this suggestion to the other

persons that were selected as jurors or alternates.

Admonitions that the trial court gave were clearly vio-

lated, but still the trial court took no action, Only the

bare requirements of Ark.Stat.Ann. § 43-2122 (Repl. 1977),

were met. Despite indications that this was insufficient,

the trial court did nothing further.

On the first day of voir dine the trial court instructed

the jurors not to discuss the case among themselves or to

let it be discussed in their presence. Some potential jurors

violated this instruction, ;

1. Venireperson Pica mentioned having heard gossip

in the hall--apparently referring to persons await examination

(R. 1195).

nee Onan a -—y

John Edward Swindler v. State of Arkansas; No. CR 79-116 ~

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 9

2. Venireperson Hunt stated that something was

said to him while he was awaiting examination [R. 1214]. |

3. Venireperson Wilson, who was questioned on

the fifth day, stated that she heard an opinion expressed

by another potential juror [R. 1498].

These comments were being made in front of the trial

court the last three days of jury selection. Potential

jurors were clearly not obeying the trial court's instruc-

tions. The record reflects that the trial court made no

effort to determine the source of these varied comments,

who had heard them, or who had made them. As a minimum,

those selected as jurors should have been questioned. See,

Mosefy v. State, 258 Ark. 485, 527 S.W.2d 616 (1973);

Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977);

Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).

Tt is clear that the record does not reflect a single

instance of any juror, or potential juror, voluntarily noti-

fying the trial court of these comments. It is also clear

than an approach to a juror may have necessitated a mistrial.

Here the lack of inquiry by the trial court is fatal to

the State's claim that petitioner received a fair trial.

This entire situation draws into question the finding

that the jury was impartial. It is a critical question

where, as here, a defendant's life is at stake. IAvin v.

Dowd, supra.

The totality of the circumstances of this jury selection

require this Court to set aside this conviction and sentence

and return this case for a new trial. Speculation that

jurors were not tainted is insufficient where there were

clear violations of the trial court's partial admonitions,

where the admonitions were insufficient in light of the

information available to the trial court, and where no action

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 10

was taken by the trial court, of petitioner's trial counsel,

to explore or minimize the violations of the trial court's

instructions.

C. Petitioner did not receive effective assistance

of counsel as to obtaining a fair trial by an impartial

jury. Because of this ineffectiveness, the judgment should

be vacated and a new trial ordered. In the alternative,

without waiving the above request, permission should be

granted to proceed to the trial court for a hearing to deter-

mine whether counsel was effective in his attempts to obtain

an impartial jury.

The specific reasons petitioner raises to support these

grounds are: |

l. Trial counsel failed to obtain affidavits

or make a record regarding adverse, pervasive, prejudicial

pretrial publicity to support a second change of venue

pursuant to Ark.Stat.Ann. § 43-1502 (Repl. 1977).

2. Trial counsel failed to peremptorily challenge

certain jurors, Specifically, these jurors are: Henry

Sunderman {R. 985]; Thurman Jones [R. 1164]; Milton Skaggs

{(R. 1241].

3. Trial counsel failed to question the pre-

viously mentioned jurors with respect to whether they were

one hundred percent sure that they could set aside prior

knowledge and opinions about the case. This answer to this

question would have supported petitioner's challenge of

these jurors for cuase.: Swindfler I.

4. Trial counsel failed to request an admoni-

tion from the trial court to potential jurors to not read

or listen to news accounts regarding the case both during

jury examination, and after selection for jury service.

Ped

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page ll

5. Trial counsel failed to request an investi-

gation into the nature of opinions being expressed among

potential jurors and whether those selected had been in-

fected by these opinions. Since potential jurors were vio-

lating the trial court's partial admonition to not discuss

the case, there is no reason to believe that jurors pro-

testations that they could, or would, set aside prior opinions

were true.

6. Trial counsel failed to move that petitioner

be granted additional peremptory challenges because of the

widespread prior knowledge of the case expressed by potential

jurors. See, Nebrasks Press AdSoc. v. Stuart, 427 U.S.

539 (1976).

These failures by trial counsel cannot be characterized

as mere omissions or mistakes in strategy. The record re-

flects a misunderstanding of the law on venue by counsel

to the extent that not even basic procedures were followed

in order to effect a second change of venue. [R. 75]; 876;

1071-1074; 1243-1245; 1405-1409; 1528-1559]. Or, as this

Court succintly stated

While Swindler's counsel moved six times for a

mistrial or change of venue during the 5 days'

voir dire examination, no evidence at all was

offered of pretrial publicity. No affidavits

‘Or testimony, showing pretrial publicity of ill

feelings in the community as a result of the

killing, was offered, as they had been in

[Swindler 1] or Ruiz & Van Denton v. State,

Supra,

Our law provides affidavits or sworn testimony

must be offered to support a motion for change

of venue. Ark.Stat.Ann. § 43-1502. Swindlenr 3

267 Ark. at 424; 592 S.W.2d at 94 {Clarification

added].

8. Petitioner was denied trial by a jury selected

from a cross section of the community, and inadequate assist-

ance of counsel because the jury was qualified to render

a death penalty. Trial counsel was inadequate in that it

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 12

failed to request a hearing, or to put on evidence that

juries qualified to render a death penalty were prosecution

prone, and did not represent a fair cross section of the

community. See, Gaigsby v. Mabry, 483 F.Supp. 1372 (E.D.Ark.

1980, aff'd as modified, F.2d __—s(8th Cir. 1981).

9. Petitioner states a a ground for relief that he

was denied effective assistance of counsel at the penalty

phase of the second trial. Specifically, petitioner states

that trial counsel was ineffective in failing to object

to the introduction of a prior conviction for armed robbery

on the basis that the judgment of conviction does not clear-

ly show that petitioner was represented by counsel. Further,

trial counsel was ineffective in failing to use due diligence

to investigate and prepare for presentation to the jury

evidence as to mitigating circumstances. Petitioner states

that this evidence would have’ been readily available if

trial counsel had merely asked petitioner for this information,

or had properly investigated information provided petitioner

by the State through discovery.

In making this argument, petitioner first notes that

the United States Supreme Court has recognized that the

penalty phase of a capital case is to be judged on equal

footing ds the guilt phase in determining if Due Process

rights of the defendant have been protected.

Second, it is now clear that the sentencing pro-

cess, as well as the trial itself, must satisfy

the requirements of the Due Process Clause.

Gandnenr v. Fhonida, 430 U.S. 349, 358 (1977).

The right to counsel, in a state prosecution, is a Due Pro-

cess right. The Sixth Amendment right to counsel has been

applied to the States through the Due Process Clause of

the Fourteenth Amendment of the United States Constitution.

Gideon v. Wainwaight, 372 U.S. 335 (1963); Powell v.

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant. to Rule 37, A.R.Crim.P. (Repl. 1977); Page 13

Alabama, 287 U.S. 45 (1932). Therefore, this right to counsel

attaches to the penalty phase of a Capital case.

To sustain an allegation of ineffective assistance of

counsel at the penalty phase of the trial, petitioner must

demonstrate that counse] was ineffective. McDonakd v. State,

257 Ark. 879,'520 S.W.2d 292 (1975). The showing must be

more than an allegation that because of errors, omissions,

or improvident strategy, counsel was ineffective. (lark

v. State, 255 Ark. 13, 498 S.W.2d 657 (1973).

If the allegation of ineffective counsel is couched

solely in terms of matters of judgment, then a hearing on

the issue is not required. Leasure v. State, 254 Ark. 961,

497 S.W.2d 1 (1973). Further, a hearing is not required

if petitioner has had an adequate Opportunity to raise the

issue in the trial court, or on direct appeal. Hilliard

v. State, 259 Ark. 81, 531 S.W.2d 463 (1976). If, however,

a hearing is ordered on this issue, petitioner must show

by clear and convincing evidence that trial counsel was

SO patently lacking in competence at the penalty phase that

it became the duty of the trial court to be aware of this

incompetence and to correct it. Collins v. State, Ark. ,

___S.W.2d (February 2, 1981).

Petitioner accepts the burden that he must show at a

hearing that trial counsel was ineffective at the penalty

phase. This issue could not have been raised on direct

appeal since trial counsel prepared petitioner's direct

appeal. The request for a hearing is in accordance with

this Court's direction

If the accused did not have adequate opportunity

to raise the question in the trial court before

appeal, he can raise the question by motion, for

post conviction relief. Hilliard v. State, Supra,

259 Ark. at 84, 497 S.W.2d at 2.

’ ca | : *e; Oy

John Edward Swindler.v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 14

Petitioner is requesting the opportunity that this Court

has requested--i.e, to present to the trial court the alle-

gations that trial counsel was ineffective at the penalty

phase of the trial.

A. The first argument is that trial counsel failed

to properly object to the entry into evidence at the penalty

phase of a prior judgment of conviction. The judgment of

conviction was for the offense of armed robbery as‘an accessory

before or after the fact. [R. 2188] The judgment does not

make clear on its face that petitioner was represented by

counsel at trial or plea on this charge.

Dealing with the habitual offender trials, this Court

has held that if the judgment of conviction does not make

clear that the defendant was represented by competent counsel,

there is a presumption that the defendant was not represented

and the conviction cannot be introduced into evidence. The

jury is not allowed, in that Situation, to use the conviction

for its consideration of increased penalties. Reeves v.

Mabay, 480 F.Supp. 529 (E.D.Ark. 1979); Wi2buran v. State,

253 Ark. 608, 487 S.W.2d 600 (1972); Klimas v. State, 259

Ark. 301, 534 S.W.2d 202 (1976). Petitioner contends that

this standard Should also apply to the penalty phase of

a capital case. This assertion is particularly true since

this judgment was the only competent evidence that could

show beyond a reasonable doubt that petitioner had, at the

time of the capital murder, previously committed a felony,

an element of which was the use, or threatened use, of force

or violence. Ark.Stat.Ann. § 41-1303(3) (Crim.Code 1976).

[R. 2204)

There are some names that appear on the judgment of

conviction that might be that of defense counsel. However,

PAGE 15 1S “ MISSING IN ORIGINAL” : ;

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 16

of his that could have been used as mitigating evidence.

Petitioner's present counsel have been in contact with mem-

bers of petitioner's family amd have learned of evidence

that related to petitioner's mental condition, his prior

work record when not in the penitentiary, and his ties to

his family. This information was gleaned merely from asking.

petitioner about family members and making telephone calls

to those family members.

2. The fact that a psychiatrist had examined

petitioner prior to the first trial and found him to be

hysterical with evidence of paranoid delusions of grandeur

and persecution. [R. 13] While this evidence may not have

been sufficient to warrant an acquittal by reason of mental

disease or defect, it should have led to further investigation

to show the applicability of the mitigating circumstances

listed in Ark.Stat.Ann. §§ 41-1304(1) (2) (3) (Crim.Code 1976).

In further investigation of this matter, present counsel

have learned that determinations by the Arkansas State Hos-

pital primarily concern whether a defendant suffers from

a psychosis that is so severe as to render him incompetent

to stand trial. The information, from Dan Donahue, Ph.D.,

a clinical psychologist at the Arkansas State Hospital,

was learned merely by making a telephone call. Dr. Donahue

‘urther stated that in making its determination, the staff

does not even consider the possibility that this evidence

may be used to show mitigation during the penalty phase

of a capital trial. When questioned further about this

report concerning petitioner, Dr. Donahue indicated that

a follow up investigation could have provided information

that would make applicable the mitigating circumstances

listed above.

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 17

3. The fact that petitioner was not used as a

witness again during the penalty phase of the trial. This

failure is particularly relevant in light of the prosecuting

attorney's closing argument that petitioner had not shown

any remorse at the fact a human life had been taken, re-

gardless of the claim of justification. [R. 2141].

4. The fact that a correspondent of petitioner's--

Mrs. Francis Nixon--had gleaned insight into petitioner's

character during their communications between the first

and second trials in this matter. This information could

have been used in mitigation to show personality traits

and petitioner that would justify the jury allowing him

to escape the death penalty. This information wgs learned

merely by asking petitioner and making a telephone call

to Mrs. Nixon.

Petitioner contends that these matters were never dis-

cussed with him by counsel in the preparation for the trial

of this matter. In short, except for the proposed testimony

of Mr. Don Reid, there was no preparation for this phase

of the trial. Of course, petitioner again asserts that

the failure of the trial court to permit a brief continuance

so Mr. Reid could appear to give information about rehabili-

tation about death row prisoners was error. This assertion

is particularly true in light of the fact that Mr. Reid

could have evidently been present had the trial not been

previously delayed so a juror could attend a funeral. It

is noted that this delay occurred despite the fact that

alternate jurors had been chosen which could have prevented

the delay.

It has been noted that it is debatable whether to call

the defendant in a capital case as a witness during the

Se a ==

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 18

penalty phase of a capital case after he has served as a

witness during the guilt phase. Voyles v. Watkins, 489

F.Supp. 901 (N.D.Miss. 1980). However, it was further noted

in that case that the presentation of the kind of evidence

petitioner outlined above would have supported the trial

court's instructions as to mitigation.

The lack of any mitigating evidence resulted from

the failure of defense counsel to exercise dili-

gence in locating and presenting witnesses who

were in position to establish traits of good char-

acter. Voyles v. Watkins, Supra, 489 F.Supp. at

909.

Of course, as has been noted by the United States Supreme

Court, evidence as to character traits is certainly ad-

missible during the penalty phase of a capital case. Lockett

v. Ohio, 438 U.S. 586 (1978). This mandate is consistent

with the language of Arkansas' statute concerning mitigating

circumstances. Ark.Stat.Ann. § 41-1304(Crim.Code 1976).

Petitioner admits that he has had to go outside the

record to present the above listed evidence for consid-

eration by this Court: This is evidently the procedure

approved by this Court for Rule 37 petitions. Neaé v, State,

supra. Indeed, the failure of counsel to go outside the

record is evidently a basis for denying a petition to pro-

ceed to the trial court for an evidentiary hearing on the

issue. Collins v. State, Supra.

The failure of trial counsel to investigate and present

this evidence, or to properly object to the admission of

extremely damaging and inadmissible evidence, indicates

that the penalty phase of this trial was rendered a farce

and a mockery of justice. However, this is not the issue

for this Court to determine at this stage. It is an issue

4 for the trial court to determine. Hilliard v. State, supra.

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 19

Therefore, petitioner respectfully requests permission

to proceed to the trial court for an evidentiary hearing

on this issue of ineffective assistance of counsel at the

penalty phase.

WHEREFORE, premises considered, petitioner prays that

this Court: (1) enter a stay of execution forthwith until

this petition can be considered on the merits; (2) that

upon consideration of the petition, this Court vacate the

judgment and sentence and remand this matter for a new trial;

(3) that in the alternative, without waiving the above re-

quests, that this Court remand this matter to the Sebastion

Circuit Court, sitting on change of venue in the Scott Circuit

Court, for an evidentiary hearing on the allegations contained

herein. ;

Respectfully submitted,

CHARLES L. CARPENTER, JR.

1405 Main Street

North Little Rock, Arkansas 72114

(501) 374-1364

and

THOMAS M. CARPENTER

807 West Third Street

Little Rock, Arkansas 72201

(501) 372-4040

wala agonstinf

By: Cheeses 7V). gen

COUNSEL FOR PETITIONER, PA0

Bono Publica

STATE OF ARKANSAS)

COUNTY OF PULASKI)

We, counsel for petitioner herein, do hereby certify

that the above information is true and correct to the best

of our knowledge and belief, and that this petition is

being filed in good faith and not for the purpose of delay.

Chaos & layavile ye Cheney J Cope _

John Edward Swindler v. State of Arkansas: No. CR 79-116

Arkansas Supreme Court: Petition for Permission to Proceed

Pursuant to Rule 37, A.R.Crim.P. (Repl. 1977): Page 20

Subscribed and sworn to before me this /G day of March,

1981.

Ns Z

ig i NOTARY PUBLIC

My commission expires:

CERTIFICATE OF SERVICE

I, Thomas M. Carpenter, one of counsel for petitioner

herein, do hereby certify that a true and correct copy of

the foregoing petition has been served on opposing counsel

this 16th day of March, 1981, by hand delivering a copy of

same to the Honorable Steve Clark, Office of the Attorney

General, Justice Building, Little Rock, Arkansas.

APPENDTIX

Day 1 - Oct. 16, 1978 Nay ? - Oct. 17, 1978 May 3 - Oct. 18, 1978

Day 4 = Oct. 19, 1978 Day % = Oct. 20, 1978

JURORS WHO TNTTTATLLY DENIED KNOWTEDNGE - 9

41. Robert Oliver T. 955, 961 6. aR. Wotiand. %...1955, 1359

?. Shirley timhocker S28 AS 9, Parris Blythe TT. 1387, 1292

4%. Walter Goddard T. 1254, 1°61 8. Cora Owens T. 1414, 1422

4, Oscar Stringer T. 1721, 1422 9. Mickey Austin T. 14277, 1431

6. The De. Casey T. 12324, 1276

JURORS WHO HAD RECENT KNOWLEDGE = 27

1. James Neal, T. 808, Day 1 45. T. D. Casey, T. 1329, Day 4 .

2. Sharon K. Self, T. 908, Day? 46. J.F. Holland, T. 1262, Day "

%. Robert Oliver, T. 961, Day? ° 49. John Robinson, T.1780, Day 4

4, Carolyn Gilbert, T. 1042,1045, Day ? 1%. Cora Owens, T.1%1%, Day 5

%S. Farl Overton, T. 1051, Day ? 19. Jerry Carter, 7. 4442, Day p

6. Billy Pat: Franklin, T. 1120, Day 4 on. Tr. Stokes, T. 1445, Day 5 |

9. Richard Moore, T. 1129, Day 7? 21, Jd. Page, T. 1443, Day 5

8. Thurman Jones, T. 115%, Day P2. K. Cottingham, T. 1448, Day

9. William Hartsill, T. 11770, Day 4 24, J. Montgomery,T.1451,Day 5

10. Tenora Pian, T. 1187, Day 2 on, K, Fdmonson,?.1470,Day 5

41. Robby Wont, T. 17204, Day % 25. M. Wilson, 7.1490, Day 5

12. Glen Male Tull, T. 1254, Day 4 26. FB. Deadman, 7.1511, Day 5

41%. Walter Goddard, T. 1961, Nay 29, W.Robinson, T. 1578, DayS

44. 7. GQ. Warner, T's 4PF6, Da:

SUPREME COURT OF ARKANSAS

No. CR 79-116 ¢fro[s

JOHN EDWARD SWINDLER, Opinion Delivered —

Petitioner PETITION TO PROCEED UNDER

RULE 37

Vv.

STATE OF ARKANSAS,

Respondent Petition Denied.

PER CURIAM

Petitioner, John Edward Swindler, brings this petition seeking

post-conviction relief under Rule 37, A. R. Crim. P. (Repl. 1977)

from his conviction for capital murder, Ark. Stat. Ann., § 41-1501

(Repl. 1977). He was sentenced to death by electrocution in that

conviction, the date for execution being originally set for March 21,

1981. On March 13, 1981, petitioner sought a stay of execution, and

on March 16, 1981, filed this petition for post-conviction relief

under Rule 37. On March 18, 1981, we granted the stay of execution

in order that we might properly consider the present petition to pro-

ceed under Rule 37. The petition has been considered and is now

denied, and we dissolve the stay of execution granted in the order of

= -se

March 18, 1981. ie oe

We see no need to repeat the facts of this case, as they are

fully stated in two previous decisions of this court. We will briefly

summarize the proceedings up to the filing of this petition. John Edwerd

Swindler was originally tried and convicted of capital murder in

the 1977 death of Officer Randy Basnett of the Fort Smith Police

Department. That conviction was appealed, however, and this court was

compelled to reverse the conviction on the grounds that the trial cours

erred in failing to grant a motion for change of venue, and in empanelin

three of the jurors in that case. Swindler v. State, 264 Ark. 107, 5e9

S.W.2d 120 (1978). Following that remand, the petitioner was again

tried, ina different court, and again convicted and sentenced to

death. On direct appeal from this second conviction, we affirmed the

trial court in an opinion more thoroughly discussed hereafter.

Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. den.,

U.S.__, 101 S.Ct. 630, 66 L.Ed. 511 (1980),

Rule 37.1 provides:

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 original

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

_ (ob) that the Court imposing the sentence was

‘ without jurisdiction to do so; or

maximum authorized by law; or

(d) that the sentence is otherwise subject to

collateral attack; may file a verified

motion at any time in the court which

imposed the sentence, praying that the

sentence be vacated or corrected.

Rule 37.2 makes clear that if the petitioner has previously

brought a direct appeal of his conviction to the Supreme Court then no

proceeding may be brought in the trial court without prior consent of

this court, as the present petition seeks. In applying Rule 37, we

have made clear as in Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934

(Opinion delivered March 31, 1980):

This postconviction remedy was not intended to

provide a method for the review of mere error in the

conduct of the trial or to serve as a substitute for

appeal. Hulsey, at 313.

Even questions of consitutional dimension are not preserved beyond

the direct appeal of the conviction unless they are shown to be of such

fundamental nature that the judgment is rendered void,

CR 79-116

re ener 7 ree REE pe es es ee

All these questions, and doubtless scores of others,

might have been raised at the trial and thereafter

on the first appeal, but they were pot, Although

they are argued as constitutional questions, they

do not raise issues so fundamental as to render the

sentence and the judgment void and open to collateral

attack. Such constitutional questions are waived if

not raised in accordance with the controlling rules of

procedure. [Citations omitted.] In this court, con-

tentions not argued by the appellant - in this

instance on the first appeal - are waived.

Hulsey, at 315.

, See also, Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981) and

“Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979).

In the petition for post-conviction relief under Rule 37, the

petitioner argues: 1) that he was denied a feir trial by a fair and

impartial jury; specifically a) the court erred in seating certain

persons who allegedly had formed opinions in the case; b) the trial

judge failed to admonish the jury concerning publicity surrounding the

trial; and c) that there should have been a change of venue; and 2)

that he did not receive effective counsel; specifically a) counsel

failed to make certain objections at voir dire and b) failed to present

certain testimony of mitigating circumstances at the sentencing phase

of trial. ;

First, we note that in our decision on the direct appeal, Swindler

v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), the allegations of the

change of venue request, the voir dire examination, and the seating of

the jury were all reviewed. Therefore, we will not consider the

~ -

- -

petitioner's argument for relief based on issues arising out of those

proceedings,

It (Rule 37) is not intended to permit the petitioner

to again present questions which were passed upon

direct appeal. Hulsey v. State, supra. Nor does it

permit a petitioner to raise questions which might

have been raised at the trial or on the record on

direct appeal....

Neal _v. State, 270 Ark. 442, 605 S.W/2d 421 (1980), at 447. What is

left, then, of the petitioner's request is the broad allegation of

ineffectiveness of counsel at the sentencing phase of the trial. The

allegation of ineffectiveness of counsel at the sentencing phase of

the trial is based on the alleged failure of trial counsel to call

; Pe Se Boe

—eeewrrrrr— ee ——————— ————— —————————————————

certain witnesses and to develop certain testimony as to mitigating

circumstances. However, as we pointed out in Leasure v. State, 254

Ark. 961, 497 S.W.2d 1 (1973);

The calling of bisndeses in a criminal trial is

a matter which is normally within the realm of

judgment of counsel. At 968.

We remain unconvinced from the bare allegations of the present

petition as to what might, or conceivably could have been used in the

* sentencing’ phase, that defense counsel was ineffective. Any error of

omission by counsel was not of such grave nature "as to render the

judgment void and open to collatere! attack." Neal, at 447.

We do not find any merit in the petitioner's request to proceed

under Rule 37 under the requirements set for such proceedings in our

decisions of Neal, Hulsey, Rogers and Collins, above. Petitioner's

petition to proceed under Rule 37 will therefore be denied. Our order

of March 18, 1981, granting petitioner a stay of execution is dissolved,

petitioner having exhausted all remedies recognized by this state.

Petition denied.

CR 79-116

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