# Petition — CARL A. COLLINS v. ARKANSAS (No. 80-6623) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1873%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text 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) 1 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 (c) that the sentence was in excess of the maximum 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; (c) The action of the trial court in not holding 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. _ wv Carl Albert COLLINS, Petitioner, | y 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 a7 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 Qn 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 © Pee By ee Oe aes 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 " ‘ - 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 y 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 ’ e s wv hd r, Aa Yd , - u | a . ° 4: ? ’ id > 7 ‘? ty 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, v. 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 ee 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 yy een Tee ae 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 ~ « = _ _ * 3 - - ‘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. (c) Counsel did not provide adequate assistance 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