Collins v. State, CR

• Decision Date: 26 September 1983
• Docket Number: No. CR,CR
• Citation: 280 Ark. 312,657 S.W.2d 546
• Parties: Carl Albert COLLINS, Petitioner, v. STATE of Arkansas, Respondent. 75-110.
• Court: Arkansas Supreme Court

Page 546

657 S.W.2d 546

280 Ark. 312

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

No. CR 75-110.

Supreme Court of Arkansas.

Sept. 26, 1983.

Lessenberry & Carpenter by Thomas M. Carpenter, Little Rock, for petitioner.

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

PER CURIAM.

In 1974 petitioner Carl Albert Collins was employed at the rural home of John and Gertrude Welch. On the morning of August 13, petitioner attacked Mrs. Welch and beat her on the head with some object. Her screams apparently alerted Mr. Welch who had been outside. Mrs. Welch lost consciousness when her husband entered the house. She awakened to find him with a mortal shotgun wound. She saw petitioner running out of the house with a shotgun and a box of shells. Mr. Welch told his wife that petitioner had shot him and taken his wallet. She crawled into the bathroom where she again lost consciousness. After several hours a telephone repairman found the couple. Mr. Welch was dead, but his wife recovered and testified at petitioner's trial. Petitioner was convicted of capital murder and sentenced to death.

Even without Mrs. Welch's testimony, the proof of petitioner's guilt was conclusive. The Welch's truck was found abandoned in Madison County. Nearby were a hacksaw and the sawed-off end of a shotgun. The day of the murder, a Volkswagen was stolen in Madison County. That night a police officer saw petitioner standing by the stolen car in North Little Rock. Petitioner's fingerprints were found in the car and and a sawed-off shotgun was found in the backseat. The shotgun was identified as the one taken from the Welch home. Its barrel matched the sawed-off portion found in the Welch's truck.

We have twice reviewed petitioner's conviction and death sentence on appeal. Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975), vacated in part, 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69 (1976). The second review was ordered specifically for further consideration of the imposition of the death penalty in light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and other cases. Upon reconsideration we again found that the imposition of the death penalty in petitioner's case was constitutional and reinstated the death sentence. Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).

Petitioner then filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37. It was denied on its merits. Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973, 101 S.Ct. 3127, 69 L.Ed.2d 984 (1981). He has now filed a second Rule 37 petition prompted by an order of the United States Court of Appeals for the Eighth Circuit that petitioner present his "unexhausted" claims to this Court. Petitioner has raised the following issues in his petition:

(1) denial of meaningful appellate comparative review of his death sentence to other death sentences, or sentences of life imprisonment without parole;

(2) overbroad application of the "pecuniary gain" aggravating circumstance;

(3) improper restrictions on mitigating circumstances;

(4) misallocation of the burden of proving mitigating versus aggravating circumstances; and

(5) prosecutorial misconduct during argument in the penalty phase of the trial.

A petitioner is not entitled to file a second petition under Rule 37 unless the original petition was specifically denied without prejudice to filing a subsequent petition. Ruiz & Denton v. State, 280 Ark. 190, 655 S.W.2d 441 (1983); Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). Issues which could have been raised on appeal or in the original petition for postconviction relief but were not must be considered waived. Ruiz & Denton, supra. Since petitioner has had one petition decided on its merits, he is not entitled to file a second. Nevertheless, because petitioner's case was unique in that it was the first to reach us since the repeal of the statute which gave juries almost unlimited discretion in deciding whether to impose the death penalty, we will address the issue of comparative appellate review. Even though the case was the first of its kind, after a thorough review of the facts, we found on direct appeal that petitioner had committed a vicious murder for pecuniary gain and that the aggravating circumstances clearly...