Hayes v. State, CR

• Decision Date: 02 November 1983
• Docket Number: No. CR,CR
• Citation: 660 S.W.2d 648,280 Ark. 509
• Parties: T.J. HAYES, Petitioner, v. STATE of Arkansas, Respondent. 82-113.
• Court: Arkansas Supreme Court

Page 648

660 S.W.2d 648

280 Ark. 509

T.J. HAYES, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 82-113.

Supreme Court of Arkansas.

Nov. 2, 1983.

Certiorari Denied Feb. 21, 1984.

See 104 S.Ct. 1331 [280 Ark. 509-B] Jeff Rosenzweig, Little Rock, for petitioner.

Steve Clark, Atty. Gen. by Matthew Wood Fleming, Asst. Atty. Gen., Little Rock, for respondent.

PER CURIAM.

Petitioner T.J. Hayes was convicted by a jury of the capital felony murder of Catherine Carter and J.W. Lunsford. He was sentenced to death. We reversed and remanded the case for a new trial. Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). On retrial, petitioner was found guilty and again sentenced to death. The conviction and sentence were affirmed. Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983). Petitioner then sought a writ of certiorari before the United States Supreme Court. After his petition was denied on October 3, 1983, petitioner filed the petition for stay of execution and petition to proceed pursuant to A.R.Cr.P. Rule 37 which are now before us. Finding no grounds for postconviction relief, both petitions are denied.

Catherine Carter's parents testified at trial that Catherine and petitioner, both of whom were black, got into a cab [280 Ark. 509-C] driven by a white driver at about 2:30 p.m. on July 16, 1979. At approximately that time a security guard at the Arkansas Department of Correction saw petitioner and a black female pass by on Princeton Pike in a Yellow Cab driven by a white male. According to petitioner's statement to police he told the cab driver, J.W. Lunsford, to stop at an unoccupied house on Princeton Pike. When the three got out of the cab, petitioner, who was armed with a .38 caliber pistol, shot Lunsford twice, killing him. Petitioner and Catherine entered the house where petitioner shot her twice. As petitioner was driving the cab to a wooded area to hide it, he was seen by the same security officer who had seen the cab earlier. Later that day, petitioner walked into the Jefferson County Sheriff's Office and announced that he had just killed his girlfriend. He then led officers to the two bodies and showed them where the cab was hidden. After being advised of his rights, he gave a statement describing the two murders.

In his petition for postconviction relief, petitioner first argues that he was denied a speedy trial. This issue was raised in the first appeal and found to be without merit. We declined to consider the question again on the second appeal and will not entertain it now in a petition for postconviction relief. Houser v. United States, 508 F.2d 509 (8th Cir.1974); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Petitioner contends that the issue is not barred from reconsideration, however, because he is couching it in terms of ineffective assistance of counsel; that is, counsel should have raised the issue as a violation of his rights under another rule of procedure, A.R.Cr.P. Rule 28.1(b). The allegation is essentially conclusory. Petitioner merely states that Rule 28.1(b) in effect at the time of his first trial was violated. He asks for a hearing on precisely when petitioner was committed to prison after his parole was revoked on another charge and precisely what were the excludable periods between arrest and the first trial. He does not give any factual support for his claim that a hearing would demonstrate the denial of a speedy trial. Rule 37 is not available to the petitioner who wishes to have a hearing in the hopes of finding some ground for relief.

[280 Ark. 509-D] Petitioner next alleges that he was denied due process of law and effective assistance of counsel by counsel's failure to conduct a meaningful voir dire of the jury panel and counsel's failure to make an adequate appellate record of the voir dire. Petitioner specifically cites counsel's failure (1) to request a sequestered voir dire; (2) to ask death penalty related questions of the last five jurors seated; (3) to make an adequate record in opposition to the death qualification of the jury; (4) to object to the excusal for cause of veniremen Burns, Faulk, Gaither and T. Jones under Witherspoon (5) to object to the veniremen being called in alphabetical order rather than by random selection; (6) to make more than one defense challenge for cause; (7) to conduct meaningful questions about attitudes toward the death penalty and diminished capacity; (8) to ask for a mistrial or admonition after venireman Greenhouse mentioned that he had attended petitioner's first trial; and (9) to seek answers during voir dire on which to develop an intelligent strategy of challenges. Petitioner states that if an evidentiary hearing is held, he will present expert testimony from attorneys to show that the voir dire was inadequate for a capital case.

Petitioner's long list of counsel's shortcomings fails to demonstrate the need for an evidentiary hearing because he does not show that any juror was unqualified to serve. Jurors are presumed to be unbiased and qualified. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Petitioner's bare allegation that he was prejudiced by counsel's conduct during voir dire which is unsupported by any showing of actual prejudice does not establish ineffective assistance of counsel. See Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978). We also note that a death qualified jury is constitutional. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

The prosecutor made references in his opening statement to the victims' inability to be witnesses at the trial and their inability to enjoy life. He also said the jury would have to be the victims' voice at the trial. Petitioner asserts that these remarks were prejudicial and a denial of due process. He further contends that counsel should have requested an admonition from the court.

[280 Ark. 509-E] When an issue is not raised at trial, as the issue of the propriety of the state's opening statement was not, the issue cannot be raised under Rule 37 unless the question is so fundamental as to render the judgment void and open to collateral attack. Neal v. State, supra. Even questions of constitutional dimension waived if not raised in accordance with the controlling rules of procedure. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981). We do not find that the prosecutor's remarks render the judgment here void. We also cannot say that counsel was remiss in not objecting. There is a presumption of effective assistance of counsel. Hill, supra. To overcome that presumption, a petitioner must show by clear and convincing evidence that some prejudice resulted from counsel's representation and that the prejudice was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). Petitioner has not shown prejudice and the denial of a fair trial by counsel's failure to request an admonition.

According to petitioner his attorney called no witnesses in the penalty phase of the trial even though the record contains the report of a doctor which allegedly contained evidence in support of a mitigating circumstance. The failure to call witnesses in the penalty phase is not in itself an indication of ineffective assistance of counsel. Collins, supra. Counsel must use his own best judgment to determine which witnesses, if any, will be beneficial to his client. Hill, supra. (The record indicates that petitioner himself asked that his sister not testify.) Petitioner does not say to what the doctor would have testified had he been called beyond the conclusory allegation that the doctor's report would have supported the mitigating circumstance of diminished capacity. An allegation with no factual support is not grounds to find that counsel should have called a particular witness. Hill, supra.

Petitioner anticipates that the state would argue that he waived his right to present mitigating evidence. He contends that his mental condition was such that he could not competently waive the issue. If this is an attempt to raise the question of petitioner's mental state at the time of trial, it cannot succeed because Rule 37 was not intended to provide [280 Ark. 509-F] a method for raising questions which are properly considered at trial and on appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).

Petitioner also complains that during the penalty phase the state mentioned that his prior conviction for second degree murder had been reduced from a charge of first degree murder. He alleges that counsel should have objected and asked for an admonition or a mistrial. Although petitioner alleges prejudice, he has not established it. Counsel may well have chosen to remain silent to avoid drawing the jury's attention to the remark.

The state referred to the victim Catherine Carter in its closing argument as a loving woman who helped support her parents and who left a teenage son. Petitioner contends that her character was not in issue and that the remark should have elicited an objection from counsel. The victim's mother had already characterized her daughter as a church member who helped support her parents. The mother also testified that the victim had a son. Defense counsel objected to the testimony as irrelevant and the objection was sustained. Some of this same information was reiterated in the state's closing argument but there is no basis to conclude that petitioner was denied a fair trial by counsel's failure to object to it at that point. The jury had already heard about the victim's character. As a matter of trial strategy counsel may have decided to allow the information to be heard again rather than object and appear reluctant for the jury to know about the victim's background. Another attorney may have reacted differently, but in any event, petitioner has not shown that counsel's conduct prejudiced him or amounted to any more than a tactical decision. Matters...