Howard v. State

• Decision Date: 29 June 2006
• Docket Number: No. CR 05-699.,CR 05-699.
• Parties: Timothy L. HOWARD, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

238 S.W.3d 24

Timothy L. HOWARD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 05-699.

Supreme Court of Arkansas.

June 29, 2006.

Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, Little Rock, AR, for appellant.

Mike Beebe, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., Little Rock, AR, for appellee.

TOM GLAZE, Justice.

Appellant Timothy Howard was convicted of two counts of capital murder for the deaths of Brian and Shannon Day, and one count of attempted capital murder for the attempted killing of the Days' infant son, Trevor. For these convictions, Howard received two death sentences and a sentence of thirty years in prison. In a 4-3 opinion, this court affirmed his convictions and sentences. See Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). Following this court's decision, Howard filed a petition for postconviction relief pursuant to Ark. R.Crim. P. 37.5 on March 21, 2003. Howard subsequently filed an amended Rule 37.5 petition on April 12, 2004, raising eight grounds for relief.¹ The Little River Circuit Court held a hearing on Howard's petition on December 20, 2004, and issued its order on March 17, 2005, denying each of Howard's claims for relief. Howard filed a timely notice of appeal, and now raises seven arguments for reversal.

In appeals of postconviction proceedings, we will not reverse a trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151(2004); Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Johnson, supra; Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).

Howard's first argument on appeal contends that he was denied his due process rights when the State introduced the testimony of trial witnesses Penny Granger and Darby Neaves, who both testified that Shannon Day was pregnant when she was killed, because the State knew that Shannon was not pregnant at the time of her murder.² Howard argues that the State knowingly introduced false testimony in order to bolster its theory of the case, which was that Howard killed the Days because of his intimate relationship with Shannon.³ This alleged prosecutorial misconduct, Howard argues on appeal, violated his rights to due process.

Generally, Rule 37 does not provide a remedy when an issue could have been raised in the trial or argued on appeal. See Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). Stated another way, it is not appropriate to raise trial errors, including constitutional errors, for the first time in a Rule 37 proceeding. See Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000); Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). However, there is an exception to this general rule for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Rowbottom, 341 Ark. at 37, 13 S.W.3d at 906 (double-jeopardy claim was a fundamental claim that appellant could raise for the first time in Rule 37 proceedings); see also Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996) (right to twelve-member jury is such a fundamental right that it could be raised for the first time in a Rule 37 proceeding); Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990) ("[a] ground sufficient to void a conviction must be one so basic that it renders the judgment a complete nullity, [as,] for example, a judgment obtained in a court lacking jurisdiction to try the accused . . .").

Howard argues that his constitutional right to due process was violated by alleged prosecutorial misconduct in the form of knowingly presenting false testimony; thus, the first question to be addressed is whether "prosecutorial misconduct" is a ground "so basic that it renders the judgment a complete nullity," see Jeffers, supra, or whether it is an issue that should have been raised at trial or on direct appeal. This court has held that a claim of prosecutorial misconduct was "an issue that could have been raised at trial." See Burnett v. State, 293 Ark. 300, 737 S.W.2d 631 (1987) (per curiam) (declining to consider an argument, raised for the first time in a Rule 37 proceeding, that the State had engaged in prosecutorial misconduct by failing to disclose a witness's statement until only a few days before trial). Further, in Rowbottom, supra, this court declined to reach appellant's Rowbottom's Rule 37 argument regarding alleged discovery violations by the prosecution in not disclosing its intention to introduce certain evidence, because Rowbottom had not raised the issue either at trial or on direct appeal. Rowbottom, 341 Ark. at 40-41, 13 S.W.3d at 908-09. Therefore, we conclude that the issue of alleged prosecutorial misconduct is an issue that should have been raised on direct appeal, and is not a claim that may be raised for the first time in a Rule 37 petition.

In his second point on appeal, Howard argues that, under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the information charging him with capital murder was defective because it failed to enumerate any of the four aggravating circumstances upon which the State relied to obtain the death penalty.⁴ The two counts of information charging Howard with capital murder, filed in Little River County Circuit Court on December 19, 1997, stated only that Howard was charged with committing capital murder "with the premeditated and deliberated purpose of causing the death of another person[.]" The information did not enumerate the statutory aggravating factors that the State subsequently submitted to the jury.⁵

As with Howard's first argument, this is a claim that should have been presented on direct appeal. As the State points out, even though Ring was decided mere days before this court denied Howard's petition for rehearing, the direct-review process encompasses certiorari proceedings. See Caspari v. Bohlen, 510 U.S. 383, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). Thus, Howard could have presented his Ring- and Allen-based argument in his petition for writ of certiorari to the United States Supreme Court, but he did not. Accordingly, he is barred from raising it for the first time during the course of his postconviction proceedings. See Williams v. State, 346 Ark. 54, 56 S.W.3d 360 (2001) (even constitutional issues must be raised on direct appeal, rather than in Rule 37 proceedings).

Howard's third point on appeal is that one juror, Larry Crutchfield, gave inaccurate responses during voir dire. In response to questions regarding his feelings about the death penalty, Crutchfield replied to the effect that he "d[id]n't know about the death penalty," "could not consider the death penalty," and "could not go through with the death penalty" because he felt it was "too harsh and bad for society." Juror Crutchfield also stated that he "would vote against capital punishment automatically" and "would vote against it without any consideration of facts or circumstances." However, in an affidavit submitted in support of Howard's Rule 37 petition, Crutchfield averred that he had "always believed that if you intentionally take a life then you should forfeit your life in return," and that his responses during voir dire "do not now, nor did they at the time, reflect [his] philosophy about imposing the death penalty." This inconsistency in Crutchfield's responses, Howard argues, caused Howard to be denied a fair and impartial jury.

This court has held that Rule 37 does not provide a means to challenge the constitutionality of a judgment where the issue could have been raised in the trial court, and a defendant's remedy for alleged juror misconduct is to directly attack a verdict by requesting a new trial pursuant to Ark.Code Ann. § 16-89-130(c)(7) (Repl.2005). See Cigainero v. State, 321 Ark. 533, 906 S.W.2d 282 (1995) (rejecting argument that claims of juror misconduct could be raised for the first time in a Rule 37 proceeding). Accordingly, Howard's claims pertaining to juror Crutchfield's alleged untruthfulness are not cognizable in this postconviction proceeding.

For his fourth point on appeal, Howard argues that the "dual role" of Little River County Sheriff Danny Russell as both bailiff and State's witness was a denial of his due process rights. Sheriff Russell was called as the State's first witness at trial and testified that he was the officer who discovered Brian Day's body inside a padlocked U-Haul trailer; he also discovered Shannon Day's body in a closet in the Days' home. However, Sheriff Russell also served as the bailiff in the circuit court in which the trial was conducted. At the Rule 37 hearing, he testified that, as bailiff, he would escort the jurors between the courtroom and the jury room, and would occasionally serve coffee to all the jurors. He also stated that, even though he was a witness, he was allowed to remain in the courtroom as part of an agreement between the State and defense counsel, whereby the investigators on Howard's defense team were allowed to stay in the courtroom during trial as well.

Thad Bishop, one of Howard's trial attorneys, testified at the Rule 37 hearing that he and the other defense lawyers entered into an agreement with the State to allow both the sheriff and the defense investigators in the courtroom, even though "the Rule" had been invoked. Both Sheriff Russell and Bishop testified that they were unaware of any improper contact with the jury members.

On appeal, Howard cites Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), in support of his argument that this situation was presumptively prejudicial. However, we cannot reach the merits of Howard's argument, as he waived any error that may have arisen from the sheriff's acting as witness and bailiff....