Neal v. State, CR

• Citation: 270 Ark. 442,605 S.W.2d 421
• Decision Date: 29 September 1980
• Docket Number: No. CR,CR
• Parties: Charles Martin NEAL, Petitioner, v. STATE of Arkansas, Respondent. Petition for Permission to Proceed Under Criminal Procedure Rule 37. 75-115.
• Court: Supreme Court of Arkansas

Page 421

605 S.W.2d 421

270 Ark. 442

Charles Martin NEAL, Petitioner, v. STATE of Arkansas, Respondent Petition for Permission to Proceed Under Criminal Procedure Rule 37.

No. CR 75-115.

Supreme Court of Arkansas.

Sept. 29, 1980.

Robert M. Cearley, Jr., Little Rock, Matthew T. Horan, Fayetteville, Latham & Watkins, by Reed E. Hundt, Patrick T. Seaver and Jon D. Demorest, Los Angeles, Cal., for petitioner.

Steve Clark, Atty. Gen., Little Rock, for respondent. FOGLEMAN, Chief Justice.

Petitioner Charles Martin Neal was sentenced to death by electrocution by the Circuit Court of Pulaski County on May 20, 1975, having been found guilty of capital felony murder. He appealed his conviction and sentence to this court. The judgment was affirmed by this court on December 22, 1975, and Neal's petition for rehearing was denied January 26, 1976. Neal v. State, 259 Ark. 27, 531 S.W.2d 17. Our mandate went to the Governor on April 15, 1977. Neal's petition for certiorari was granted by the United States Supreme Court and the judgment was vacated and the cause remanded to this court for reconsideration in the light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffit 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). See Neal v. Arkansas, 429 U.S. 808, 97 S.Ct. 45, 50 L.Ed.2d 69 (1976). We adhered to the views expressed upon our first consideration of the appeal and again affirmed the judgment on March 28, 1977. Neal v. State, 261 Ark. 336, 548 S.W.2d 135. Certiorari was denied by the United States Supreme Court on October 3, 1977, at 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158.

Neal filed his petition for permission to proceed under Criminal Procedure Rule 37 on June 9, 1980. This was more that three years after Neal was committed, and would be too late under Rule 37.2(c), Arkansas Rules of Criminal Procedure, Ark.Stat.Ann. vol. 4A (Supp.1979), unless the ground asserted would be such as to render the judgment against Neal absolutely void, except for the extended period of time necessary for the disposition of the direct appeal in this case.

In his petition, appellant asserts the following grounds for postconviction relief:

1. Ineffective Assistance of Counsel.

Appellant's attorneys at the trial and on direct appeal did not

(a) adequately prepare his defense;

(b) object to the introduction of evidence;

(c) appropriately advise petitioner concerning his plea of not guilty by reason of insanity;

(d) cross-examine vigorously;

(e) present effective opening or closing arguments or otherwise provide petitioner the standard of performance that was his constitutional due.

2. The 1973 death penalty statute as applied "violated" Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, in that it excessively limited consideration of mitigating circumstances.

3. The only aggravating circumstance found to exist "pecuniary motive," was defined arbitrarily, capriciously and vaguely in violation of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

4. There was no explicit jury finding beyond a reasonable doubt that petitioner deliberately or intentionally committed a homicide.

5. The standard for balancing aggravating and mitigating circumstances established by the Arkansas Legislature on March 3, 1975, should have been applied to petitioner's sentencing hearing.

6. Eight jurors were excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, reh. den, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968).

7. Petitioner's confession was permitted to be introduced into evidence despite its being the result of coercion.

Petitioner and his counsel have unduly complicated the consideration of his petition by a misconception of proper procedure under Rule 37. His petition states, for the most part, only generalities and conclusions. This would in the ordinary case result in a summary denial of permission to proceed under the rule on grounds so stated. Petitioner's counsel have proceeded on the misbegotten idea that specific allegations may be withheld from his petition but supplied in a memorandum of points and authorities, filed in support of the petition. Because this is a death penalty case, we will, in this case, but not hereafter, endeavor to consider the facts stated in the petition and memorandum as if they, considered together, constituted the allegations of the petition. We will not consider any grounds for relief not stated in the petition.

Neal and his attorneys also seem to have a total misconception of the purpose and role of Rule 37. It is not meant to function as a substitute for appeal, as a method of review of mere error in the conduct of the trial, or as a second opportunity to petition for a rehearing. Hulsey v. State, 268 Ark. 312, 599 S.W.2d 729 (1980); Austin v. State, 264 Ark. 318, 571 S.W.2d 584; Clark v. State, 255 Ark. 13, 498 S.W.2d 657. It is not intended to permit the petitioner to again present questions which were passed upon on direct appeal. Hulsey v. State, supra. Nor does it permit a petitioner to raise questions which might have been raised at the trial or on the record on direct appeal, unless they are so fundamental as to render the judgment void and open to collateral attack. Hulsey v. State, supra.

One point that was raised and disposed of on the first appeal was that jurors were excused by the trial court in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We considered this question on direct appeal and held against appellant in Neal v. State, 259 Ark. 27, 531 S.W.2d 17, so this point is not a ground for relief under Rule 37. The basic question raised is not different, but petitioner seeks to make the argument that a "death qualified" jury is per se unconstitutional, relying upon Grigsby v. Mabry, 483 F.Supp. 1372 (E.D.Ark., 1980), now pending on appeal in the Eighth Circuit Court of Appeals. With all due respect, we simply do not agree with the theory underlying the federal district court's opinion. If jurors who would not impose the death penalty under any circumstances are not excluded for cause, imposition of the death penalty would be haphazard. We adhere to the views we have expressed in Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 and Venable v. State, 260 Ark. 201, 538 S.W.2d 286. These views are fortified by the decision of the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), where arguments similar to those advanced by petitioner here were rejected.

We also considered and rejected the argument that the aggravating circumstance found to exist by the jury was unconstitutionally vague in appellant's direct appeal. Neal v. State, 259 Ark. 27, 531 S.W.2d 17. It is extremely difficult to understand an argument that the words "pecuniary" or "motive" are vague when considered either separately or in combination. Of course the words were "pecuniary gain" rather than "pecuniary motive." We do not see how the decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), holding that the words "outrageously or wantonly vile, horrible or inhuman" are unconstitutionally vague, has any bearing whatever on the issue here, as petitioner suggests.

The question of admissibility of petitioner's confession was considered on direct appeal. We reviewed the entire record on the question and concluded that we could not say that the trial court's finding that petitioner's confession was voluntary was clearly erroneous or against the preponderance of the evidence. Neal v. State, 259 Ark. 27, 531 S.W.2d 17.

What we have said disposes of petitioner's grounds which we have numbered. We will first consider those grounds alleged which clearly afford no basis for proceeding under Rule 37.

2. Petitioner argues that the jury was limited to consideration of only five mitigating circumstances in the sentencing phase of the trial. He contends that the Eighth and Fourteenth Amendments were violated because the sentencing jury was precluded from considering all aspects of petitioner's character or record or any of the circumstances of the offense that petitioner proffers as a basis for a sentence less than death, relying upon Lockett v. Ohio, supra. In that case, a four-judge plurality of the United States Supreme Court said:

We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. * * *

No other justice joined in that part of the opinion. Two justices rejected it. As Justice White pointed out, only a plurality held that the sentencer may constitutionally impose the death penalty only as an exercise of his unguided discretion after being presented with all circumstances which the defendant might believe to be conceivably relevant to the appropriateness of the penalty for the individual offender. ¹ The judgment for reversal resulted from concurrence in the judgment by Justice White and two other justices. The Ohio statute considered in Lockett was quite unlike the Arkansas statute applied in Neal's trial. That Ohio law required a trial judge to impose the death penalty unless he found by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely that Lockett would have committed the offense but for the fact that she was under duress, coercion or strong provocation or (3) the...