Kemp v. State, CR00-482

• Decision Date: 29 November 2001
• Docket Number: CR00-482
• Citation: 347 Ark. 52,60 S.W.3d 404
• Parties: Kemp v. State
• Court: Arkansas Supreme Court

347 Ark. 52

60 S.W.3d 404

TIMOTHY W. KEMP, APPELLANT, v. STATE OF ARKANSAS, APPELLEE,

CR00-482

SUPREME COURT OF ARKANSAS

November 29, 2001, Decided

RAY THORNTON, Associate Justice. BROWN and IMBER, JJ., concur in part; dissent in part. TOM GLAZE, Justice, dissenting. ROBERT L. BROWN, Justice, concurring in part; dissenting in part.

RAY THORNTON, Associate Justice

This appeal arises from a trial court's denial of the Rule 37 petition. Appellant, Timothy Kemp, was arrested and charged with four counts of capital murder. He was convicted and sentenced to death by lethal injection on each count. In Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied 519 U.S. 982, 136 L. Ed. 2d 334, 117 S. Ct. 436 (1996) ("Kemp I"), we affirmed the conviction and sentence pertaining to one victim, and affirmed the convictions only as to the remaining three counts. We reversed the death sentences as to the three remaining counts and remanded for re-sentencing, as there was insufficient evidence to support the trial court's instruction to the jury with respect to the statutory aggravating circumstance that the murders were committed for the purpose of avoiding arrest. Id. 1 Following resentencing, the trial court again imposed the death sentence as to each of the three counts. In Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998), cert. denied 526 U.S. 1073, 143 L. Ed. 2d 555, 119 S. Ct. 1471 (1999) ("Kemp II"), we affirmed these convictions. Appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging that his counsel, Jeff Rosenzweig, had provided ineffective assistance of counsel. After a hearing on the matter, the trial court denied appellant's Rule 37 petition in its entirety.

From that order, appellant brings his appeal and raises four allegations of error. On appeal, appellant asserts that Mr. Rosenzweig was ineffective for four reasons: (1) failing to investigate the ownership of a gun found at the crime scene; (2) failing to correctly cite a statute when proffering an instruction to the trial court; (3) failing to seek a severance of offenses, and (4) various other grounds. We reverse and remand to the trial court for an entry of a written order in compliance with Rule 37.5(i) and our case law.

I. Standard of review

On appeal from a trial court's ruling on Rule 37 relief, we will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). 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. Id.

The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which provides that when a convicted defendant complains of ineffective assistance of counsel he must show that counsel's representation fell below an objective standard of reasonableness and that but for counsel's errors the result of the trial would have been different. Id. We have adopted the rationale of Strickland and held that:

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial.

Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). With this standard of review in mind, we review the issues of ineffectiveness raised by appellant.

II. Ineffective-assistance claims

For his first allegation of error, appellant argues that Mr. Rosenzweig was ineffective for failing to investigate the ownership of a weapon found at the crime scene. Specifically, he argues that a further investigation into this matter would have had bearing on his "imperfect self-defense" claim.

This point is not raised in appellant's Rule 37 petition, but the petition was orally amended at the Rule 37 hearing, where the following colloquy occurred:

MR. HEUER: I have a motion to add an additional [issue]. After consultation with my client, he wishes for me to pursue an ineffective assistance claim for failure to investigate and pursue leads. I've advised the prosecutor of it. I don't know where it's going. But I could make the motion at the conclusion and ask that the pleadings conform to the proof or I could orally amend at this point.

THE COURT: Are you prepared to argue that today?

MR. HEUER: Yes.

At the hearing, Mr. Rosenzweig testified that the "imperfect self-defense" was the heart of appellant's defense in the mitigation phase of the trial. After hearing the testimony and arguments by counsel, the trial court orally ordered:

I do not find that the representation by Mr. Rosenzweig was ineffective. . . . I also believe that the failure to investigate as to who specifically owned the weapon, the thirty-two, was not evidence of ineffective assistance of the counsel that would meet the definition of that pursuant to Strickland versus Washington since that issue of that weapon was in fact raised at trial and the jury had the opportunity to consider that as part of a self-defense defense. However, in the trial court's written order, under the "Findings of Fact" section, the trial court merely states:

8. (A) That trial counsel for defendant was not ineffective as defined by Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), in any aspect of the trial in this matter, including . . . the investigation of the additional gun found at the crime scene . . . [.] Rule 37.5(i) provides in part that when a hearing is held on the petition, "the circuit court shall, within sixty (60) days of the conclusion of the hearing, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition." Id. (emphasis added). This provision was adopted from the "Arkansas Effective Death Penalty Act of 1997." See Ark. Code Ann. § 16-91-202(h)(1) (Supp. 1999) (requiring that "the judge shall make specific written findings of fact and shall expressly state the judge's conclusions of law relating to each issue raised in the petition for post-conviction relief").

In Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001), we rejected the State's argument, based upon Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000) and Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998) (per curiam), that where the trial court makes specific written findings on some, but not all, of the issues raised in the petition, it is up to the defendant to obtain rulings on any omitted issues. We concluded that those cases were distinguishable because appellants had not been sentenced to death. Id.

In Echols, we remanded the case to the trial court for entry of a written order in compliance with Rule 37.5(i) and our holding in Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (holding that the trial court's order was insufficient under Rule 37.3(a)). Echols, supra. Rule 37.5 reinforces the responsibility of the trial court to make specific written findings of fact and conclusions of law on each issue raised in the petition. McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001).

Here, we note that the trial court allowed appellant to orally amend his Rule 37 petition to include the issue of the ownership of the gun, and ruled on the issue from the bench. In its written order, the trial court made a general finding of fact, but did not make a "specific finding of fact with respect to [the] factual issue[,]" nor did it make any "specific written conclusion[] of law" with respect to the legal issue. Ark. R. Crim. P. 37.5(i). This deficiency requires that we remand for the trial court to address this point as required by our rule.

For his second allegation of error, appellant argues that Mr. Rosenzweig was ineffective for failing to correctly cite Ark. Code Ann. § 5-2-614 (Repl. 1997), the statute regarding the "imperfect self-defense," in the proffered jury instruction. Specifically, he argues that omitting the phrase, ". . . is necessary for any of the purposes justifying that the use of force under this subchapter," from the statute is grounds for an ineffective assistance of counsel claim.

At the conclusion of the guilt phase at trial, Mr. Rosenzweig offered two jury instructions based upon Ark. Code Ann. § 5-2-614, which established appellant's defense of "imperfect self-defense." The first instruction, set forth in his Rule 37 petition and now on appeal, reads as follows:

When a person believes that the use of force is necessary in defense of himself but that person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the defense of justification -use of deadly physical force in self-defense -- is unavailable as a defense to any offense for which recklessness or negligence suffices to establish culpability.

Source: Ark. Code Ann. § 5-2-614.

While citing the statute in this proffered instruction, Mr. Rosenzweig omitted the aforementioned phrase from the statutory language, and the trial court refused both proffered jury instructions. On direct appeal in Kemp I, supra, we held that the trial court did not err in refusing to allow the proffered jury instructions Id. We noted that neither proffered jury instruction was an AMCI instruction, and because appellant's proffered instruction did not correctly state the law, the trial court did not err in refusing to give it. Id. (citing ...