Collins v. State, CR

• Decision Date: 02 February 1981
• Docket Number: No. CR,CR
• Citation: 271 Ark. 825,611 S.W.2d 182
• Parties: Carl Albert COLLINS, Petitioner, v. STATE of Arkansas, Respondent. 75-110.
• Court: Arkansas Supreme Court

Page 182

611 S.W.2d 182

271 Ark. 825

Carl Albert COLLINS, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 75-110.

Supreme Court of Arkansas.

Feb. 2, 1981.

Thomas M. Carpenter, Little Rock, for petitioner.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for respondent.

PER CURIAM.

Petitioner Carl Albert Collins was convicted by a jury in 1974 of capital felony murder and sentenced to death by electrocution. The primary issue on appeal was the constitutionality of Act 438 of 1973, Ark.Stat.Ann. § 41-4701 et seq. (Supp.1973), which reinstated the death penalty. This Court found the statute constitutional and affirmed the conviction on December 22, 1975. Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975). Motion to stay mandate pending appeal to the United States Supreme Court was granted February 2, 1976. Petition for certiorari for review of this Court's judgment affirming the judgment of the circuit court was filed in the United States Supreme Court and that Court, 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69, vacated this Court's judgment insofar as it left undisturbed the death penalty imposed and ordered the cause remanded for consideration in light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Mandate vacating judgment was filed in this Court November 18, 1976. Upon reconsideration, the Arkansas Supreme Court again concluded that the death penalty under Arkansas statutes was constitutional and affirmed the judgment on March 7, 1977. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Certiorari was denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158, and the mandate was forwarded to the governor of this state October 25, 1977. The 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).

Collins filed his petition for permission to proceed under Rule 37 on December 19, 1980, more than three years after the United States Supreme Court denied rehearing. Rule 37.2(c), Arkansas Rules of Criminal Procedure, Ark.Stat.Ann.V. 4A (Supp.1979) provides that such a petition must be filed within three years of the date of commitment. The petition is clearly untimely 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' petition which will render the judgment void, the petition is denied.

Rule 37 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. Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973). As the Rule states, it affords a remedy when the sentence was imposed in violation of the constitution of the United States or of this State or "is otherwise subject to collateral attack." 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 S.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 v. 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 imperative that judgments in criminal cases have stability and finality. Hulsey, supra.

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 witness 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 witnesses were in continuous association with the jurors, eating dinner with them, running errands for them and driving them to and from the lodgings. The Court found that the two had been the "official guardians" of the jury and that the jury was likely to find their testimony more credible by virtue of that relationship. Here, the petitioner has offered nothing to show that such a relationship existed; however, the record does indicate that Sgt. Johnson served in some capacity as a security officer.

MR. GIBSON (Prosecuting Attorney): For purpose of security in the courtroom, the State would request that the Rule be waived as to Sheriff's Deputy Snow and Sgt. Quimby Johnson, Investigator, both of which may or may not testify. There is a possibility they will, but they are about the only good security officers we have.

THE COURT : There might be some sort of feeling in the local community, so for the protection...

MR. LINEBERGER (Defense Counsel): We have no objections. We have discussed that with the prosecutor.

THE COURT : I think we should have adequate protection against any kind of emotional outburst that might arise.

MR. GIBSON : Their testimony would be relatively minor.

THE COURT : Then it's agreeable?

MR. LINEBERGER : It's agreeable, your honor.

The allegations of the petition are apparently based on this exchange, but the petition does not offer sufficient evidence to warrant setting the conviction aside. Petitioner also alleges, that even if this Court does not find merit to the allegation that Sgt. Johnson's presence in the courtroom renders the judgment void, there remains a question of whether counsel was ineffective in failing to object to his presence. This allegation shall be addressed later.

Petitioner next alleges that the judgment is void because the trial court excused several members of the jury venire 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 violated this Court's ruling in Hall v. State, 259 Ark. 815, 537 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, 537 S.W.2d 155.

In the instant case, the trial court heard the reasons given by the four potential 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).

Petitioner also challenges the judgment on the grounds that the lack of individual, 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 controlling. Petitioner has presented nothing to show that petitioner was entitled to an individual, sequestered voir dire.

Petitioner argues that the judgment is void because the Court had a duty to instruct the jury on all possible lesser included offenses, including murder in the first degree. Petitioner alleges that Westbrook 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 capital 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 supported 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 v. 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 requested by counsel. If counsel concludes that a particular instruction is warranted, it is incumbent upon counsel to request that instruction.

Petitioner next contends that the judgment is void because Act 438 of 1973 unconstitutionally placed a burden on petitioner to prove mitigating circumstances and unconstitutionally limited the factors that could be considered in mitigation, a violation of the "premise" in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In Lockett, a four-judge plurality held...