Fudge v. State

• Decision Date: 25 September 2003
• Docket Number: No. CR 02-826.,CR 02-826.
• Parties: James C. FUDGE v. STATE of Arkansas.
• Court: Arkansas Supreme Court

120 S.W.3d 600

James C. FUDGE v. STATE of Arkansas.

No. CR 02-826.

Supreme Court of Arkansas.

September 25, 2003.

Craig Lambert, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Jeffrey A. Weber, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant James C. Fudge was convicted in the Pulaski County Circuit Court of the capital murder of his wife Kimberly Fudge, for which he was sentenced to death by lethal injection. This court affirmed his conviction and sentence in Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Thereafter, the United States Supreme Court denied Fudge's petition for a writ of certiorari. See Fudge v. Arkansas, 531 U.S. 1020, 121 S.Ct. 585, 148 L.Ed.2d 500 (2000). Following the Supreme Court's ruling, Fudge filed a petition for postconviction relief pursuant to Ark. R.Crim. P. 37. The trial court denied the petition, and this appeal followed. Our jurisdiction is pursuant to Rule 37 and Ark. Sup.Ct. R. 1-2(a)(8). For reversal, Fudge raises six points of error, the first of which is that the trial court's order does not comply with the requirements of Ark. R.Crim. P. 37.5(i). We agree that the order is incomplete, and we reverse and remand.

Rule 37.5 sets out the postconviction procedures for death-penalty cases. Subsection (i) provides in part that the circuit court shall "make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition." In Echols v. State, 344 Ark. 513, 519, 42 S.W.3d 467, 470 (2001), this court held that this provision imposes a "more exacting duty" on the trial court than that found in Ark. R.Crim. P. 37.3, which provides postconviction procedures for non-death-penalty cases. Under Rule 37.5(i), it is the petitioner who determines the issues that must be addressed by the trial court in a written order, while Rule 37.3(c) provides that the trial court is to determine the issues and then make specific written findings of fact and conclusions of law with respect to those issues. Id.

The State concedes that the order entered by the trial court in this case falls short of the exacting requirements of Rule 37.5(i). The State contends, however, that on remand, the trial court need only make specific findings of fact and conclusions of law with respect to those claims raised below and currently being pursued on appeal. We agree that this is a correct statement of law. This court concluded in Echols, 344 Ark. 513, 42 S.W.3d 467, that the trial court's duties on remand are limited to making factual findings and legal conclusions only as to the issues raised on appeal, because all other claims raised below but not argued on appeal are considered abandoned. See also Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001); McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). Nonetheless, we disagree with the State's assertion that only one issue need be addressed on remand in this case.

From our review of the trial court's order, we conclude that there are three issues that the trial court's order does not sufficiently address. The first is Fudge's allegation that trial counsel, Tammy Harris, was ineffective during the penalty phase for failing to object to the introduction of Fudge's purported prior conviction for first-degree battery. During the hearing below, Fudge argued that the documents presented by the State as State's Exhibit 56 fell short of demonstrating that he was actually convicted of the offense of first-degree battery. Ms. Harris admitted at the Rule 37 hearing that she had not objected to the State's proffer of the first-degree-battery conviction. She stated that she had reviewed the documents beforehand, and that it had not crossed her mind that they might not be sufficient.

The trial court's order does not contain any findings of fact or conclusions of law regarding the allegation that trial counsel provided ineffective assistance of counsel for failing to object to the first-degree-battery conviction. However, the order does contain a finding that "[t]he State concedes that the first-degree battery charge was reduced to robbery[.]" The only other factual finding concerning Exhibit 56 is that it was not published to the jurors. Neither of these findings addresses the allegation that trial counsel was ineffective for failing to object to the sufficiency of the exhibit as proof of a prior violent felony conviction. Moreover, the trial court's order contains no conclusion of law on this issue. Accordingly, we remand this issue to the trial court to make specific findings of fact and conclusions of law regarding this claim.

The second area of deficiency in the trial court's order pertains to Fudge's allegation that trial counsel failed to investigate and present evidence in mitigation during the penalty phase of his trial. During the hearing below, Fudge argued that there were six mitigating factors that should have been presented by trial counsel: (1) Fudge's history of alcoholism; (2) the history of alcoholism in Fudge's family; (3) Fudge's abuse as a child at the hands of his mother; (4) Fudge's propensity for violence, particularly toward women, which either resulted from a genetic condition or is behavior that was learned from his male role models; (5) Fudge's positive qualities, namely that he is a talented artist, poet, sculptor, and auto-body repairman and a loving father to his children; and (6) that Fudge had tried to better himself over the years leading up to the murder. The trial court's order only contains the ruling that trial counsel's decision not to present evidence of Fudge's alcoholism was a matter of trial strategy. The order does not address the failure to present evidence of the remaining five mitigating factors offered by Fudge. The State concedes that the trial court did not make any findings of fact or conclusions of law on these five mitigating factors. We thus remand on this claim.

Additionally, the trial court's order does not contain any findings of fact or conclusions of law regarding the allegation that trial counsel failed to conduct an appropriate investigation for mitigating evidence. This point was raised below and is being pursued on appeal. Therefore, the trial court must address this issue on remand.

The third area of deficiency in the trial court's order involves Fudge's allegation that his counsel on direct appeal had a conflict of interest. During the hearing below, Fudge argued that his two trial counsel and appellate counsel had conflicts of interest in representing him. All three counsel were from the Pulaski County Public Defender's Office. Fudge alleged that his trial counsel had a conflict because another attorney from the public defender's office had previously represented one of the State's witnesses, Jerome Jones.¹ On this allegation, the trial court found that the representation of Jones did not create a conflict because it was too remote in time and was unrelated to the case against Fudge. The trial court also found that the issue of conflict was not raised at trial. There is no similar ruling on the conflict claim against appellate counsel.

The State argues that we should infer from this ruling that the trial court must have concluded that there was no conflict with regard to appellate counsel, as all three counsel were from the same office. We are not persuaded by this argument for two reasons. In the first place, Rule 37.5(i) does not permit such an inference. To the contrary, the rule requires the trial court to make specific written findings of fact and specific written conclusions of law. The purpose of the exacting requirements of Rule 37.5 is to provide a comprehensive state-court review of a defendant's claims and, therefore, eliminate the need for multiple postconviction actions in federal court. Echols, 344 Ark. 513, 42 S.W.3d 467. Were we to infer the trial court's ruling on one issue as being sufficient to dispose of another issue, we would be defeating the plain purpose of Rule 37.5(i).

In the second place, it is not entirely clear from the pleadings or the transcript of the hearing that the conflict of interest alleged against appellate counsel is the same as that alleged against trial counsel. Moreover, Fudge alleged below that the issue of appellate counsel's conflict was raised in a timely manner to both the trial court and this court and that, as such, he was entitled to an immediate hearing on the issue under the Supreme Court's holdings in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), and Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). The trial court declined the invitation to rule on this issue, concluding that such a ruling could only come from this court. To better understand this issue, it is necessary to address Fudge's second point on appeal, that the trial...