Cloird v. State

• Decision Date: 06 March 2003
• Docket Number: No. CR 93-284.,CR 93-284.
• Citation: 99 S.W.3d 419
• Parties: Gary T. CLOIRD, a/k/a Saba Ka Makkali, a/k/a Simba Kali v. STATE of Arkansas.
• Court: Arkansas Supreme Court

99 S.W.3d 419

Gary T. CLOIRD, a/k/a Saba Ka Makkali, a/k/a Simba Kali v. STATE of Arkansas.

No. CR 93-284.

Supreme Court of Arkansas.

March 6, 2003.

COPYRIGHT MATERIAL OMITTED

Jeff Rosenzweig, for petitioner.

Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for respondent.

DONALD L. CORBIN, Justice.

Petitioner Gary Cloird, also known as Saba Ka Makkali and Simba Kali, was convicted in the Jefferson County Circuit Court of the crimes of rape and theft of property, which occurred on January 25, 1992, and was sentenced to a total of thirty-five years' imprisonment. This court affirmed his convictions and sentence in Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993) (Cloird I). Following our decision, Cloird filed a petition for postconviction relief in the trial court, pursuant to Ark. R.Crim. P. 37. The trial court dismissed the petition on the ground that it was untimely, and this court affirmed the dismissal in an unpublished opinion. See Cloird v. State, CR 95-7, slip op., 1995 WL 93688 (Ark. February 27, 1995) (per curiam) (Cloird II). Cloird subsequently filed a petition for a writ of habeas corpus in the Lincoln County Circuit Court, the county in which he is incarcerated. He asserted in his petition that the Jefferson County Circuit Court lacked jurisdiction to try him on the charge of rape, because the trailer where the rape occurred was actually located in Arkansas County. The trial court dismissed the petition on the ground that Cloird had not met his burden of proof. This court summarily affirmed the trial court's ruling on the ground that Cloird's abstract was flagrantly deficient. See Cloird v. State, 00-166, slip op., 2001 WL 1203449 (Ark. October 11, 2001) (per curiam) (Cloird III).

Four months after our decision, Cloird filed the instant petition in this court, seeking a writ of habeas corpus, as well as permission for leave to file a petition for writ of error coram nobis in the trial court. This court has original jurisdiction to hear petitions for extraordinary writs, pursuant to Ark. Const. Amend. 80, § 2(E). See also Simpson v. Sheriff of Dallas County, 333 Ark. 277, 968 S.W.2d 614 (1998) (per curiam). We remanded the habeas matter to the trial court for a factual determination as to where the trailer in which the rape occurred was actually located. See Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam) (Cloird IV).¹ We stated in that opinion that once the trial court made its factual determination, we would render a final disposition on the habeas matter.

On remand, the parties stipulated that the trailer in question was located at 402-A Levinson Street, in the town of Humphrey, which is situated in both Jefferson and Arkansas Counties. The parties stipulated further that the address of the trailer was in that part of Humphrey that sits in Arkansas County. Based on that stipulation, the trial court entered an order finding that the rape at the trailer occurred in Arkansas County. For the reasons set out below, we now deny the writ.

Before we reach the merits of Cloird's jurisdiction claim, we must address the question raised by the trial court, on remand, as to why this court is entertaining Cloird's second habeas petition after having affirmed the denial of the first habeas petition. Both the trial court and the State felt that the first affirmance was the law of the case on this issue. In Cloird IV, we explained that the doctrine of law of the case was not applicable because the issue raised in the habeas petition was lack of jurisdiction, which, we pointed out, may be raised at any time. On remand, the trial court expressed considerable concern that our holding would effectively allow the jurisdiction issue to be raised repeatedly by the same prisoner in multiple habeas petitions. We now take this opportunity to clarify our position on this issue.

The doctrine of law of the case ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Thus, the doctrine dictates that a decision made in a prior appeal may not be revisited in a subsequent appeal. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). The purpose of the doctrine is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. Id. However, matters that have not been decided, explicitly or implicitly, do not become law of the case merely because they could have been decided. Camargo, 337 Ark. 105, 987 S.W.2d 680. An example of when a matter has not been decided is when it is procedurally barred from appellate review. See Colbert v. State, 346 Ark. 144, 55 S.W.3d 268 (2001); Green, 343 Ark. 244, 33 S.W.3d 485.

In Colbert, this court rejected the State's assertion that the evidentiary issue raised by the appellant was barred by the law-of-the-case doctrine. This court explained: "Mr. Colbert was procedurally barred in his first appeal from challenging the admission of evidence that supported his simultaneous-possession conviction. Thus, because that issue was not before this court in the first appeal, it was not expressly or implicitly determined in Colbert I." 346 Ark. at 147, 55 S.W.3d at 271 (fn 1).

Similarly, in Green, 343 Ark. 244, 33 S.W.3d 485, this court concluded that the doctrine of law of the case did not apply where, in the previous appeal, this court held that the appellant's challenge to the trial court's comment on a witness's credibility was procedurally barred because the appellant failed to raise an objection at trial. This court explained:

Therefore, this court's holding did not turn on the trial court's comment but upon failure to preserve. The court's decision would have been the same in the absence of the statement characterizing the trial judge's comments. The opinion did not reach the issue of the trial court's comment and hence was not actually decided. No adjudication took place that would bind this court now. Consequently, we hold that the law-of-the-case doctrine does not apply to this appeal.

Id. at 251-52, 33 S.W.3d at 490 (emphasis added).

Here, this court did not reach the merits of Cloird's jurisdiction argument in the first appeal of the habeas petition. We stated that we could not decide the jurisdiction issue because Cloird had failed to supply us with the pleadings, documents, and testimony necessary to review the issue. We explained that due to the flagrantly deficient abstract, we were "unable to determine whether the trial court lacked jurisdiction over the cause of rape." Cloird III, slip op. at 2 (emphasis added). No adjudication took place on the issue of jurisdiction that would prohibit us from considering the issue now. Accordingly, the doctrine of law of the case does not apply.

Before we leave this issue, we must address the holding in McAdams v. Automotive Rentals, Inc., 324 Ark. 332, 924 S.W.2d 464, cert. denied, 519 U.S. 1013, 117 S.Ct. 522, 136 L.Ed.2d 409 (1996), which runs contrary to the holdings in Colbert and Green. In McAdams, this court held that the prior appeal to this court, which was summarily affirmed due to a flagrantly deficient abstract, was the law of the case and barred relitigation of any of the issues that were or could have been addressed in the first appeal. We believe that the more sound reasoning dictates that we apply the principle set out in Colbert and Green, that the doctrine of law of the case does not bar our consideration of an issue unless there has been an adjudication of that issue in the first appeal. Accordingly, we overrule McAdams to the extent that it conflicts with this principle. We turn now to the merits of Cloird's claim.

Cloird argues that because the rape for which he was charged occurred in Arkansas County and because he was not convicted of the charge of kidnapping that occurred at the nightclub in Jefferson County, the Jefferson County Circuit Court lacked jurisdiction to try him. To fully understand the issue, we must examine the facts of the case, which reveal a continuous criminal episode that began in Jefferson County and continued into Arkansas County.

The record reflects that on the evening of January 24, 1992, the Pine Bluff Police Department received a report that a van had been stolen from a local car dealership. Later that same evening, Barbara Smith met Kurt Morris and Roosevelt Burton at a Pine Bluff nightclub called P.J.'s. As they were leaving, Ms. Smith accepted a ride from Morris and Burton to another nightclub, called Bad Bob's. Burton would later tell police that one of the guys he was with told him that they intended "to run a train on her." Morris went to get the car, while Ms. Smith and Burton waited outside the club's front door. When Morris pulled up, Burton opened the door to allow Ms. Smith to get in the backseat. Burton then surprisingly slid into the backseat next to her. Ms. Smith sensed that something was wrong, and she immediately attempted to open the other door and get out of the car. By that time, however, Morris was pulling out of the parking lot. To prevent her from getting out of the car, Burton took hold of Ms. Smith by the hair and pushed her down into the seat. Ms. Smith then began screaming.

Ms. Smith continued to scream and struggle with Burton, as Morris drove the car. At one point, Ms. Smith opened the door and attempted to jump out of the car, but the door slammed shut due to the speed that the car was traveling. Burton again took hold of her hair and pulled her back down into the seat. This time, however, Burton forced her to perform oral sex on him. When Burton became angry because she was not doing it right, Morris pulled the car off onto a dark, dirt road and stopped. The two men then took turns forcing her to have oral, vaginal, and anal sex.

They then drove from Jefferson County into that part of the city of Humphrey that is located in Arkansas...