Perry v. State, CR

• Decision Date: 09 May 1983
• Docket Number: No. CR,CR
• Citation: 279 Ark. 213,650 S.W.2d 240
• Parties: Eugene Wallace PERRY, Petitioner, v. STATE of Arkansas, Respondent. 82-19.
• Court: Arkansas Supreme Court

Page 240

650 S.W.2d 240

279 Ark. 213

Eugene Wallace PERRY, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 82-19.

Supreme Court of Arkansas.

May 9, 1983.

James E. Davis, Texarkana, for petitioner.

Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for respondent.

PER CURIAM.

Petitioner Eugene Wallace Perry was convicted by a jury of capital felony murder and sentenced to death. We affirmed. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Petitioner now seeks a further stay of mandate and permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.

Petitioner first argues that he is entitled to postconviction relief because the sentence imposed on him was in violation of the Constitution and laws of the United States and this State. He has enumerated twenty-two allegations of constitutional error: (1) the trial court erred in refusing a request for a second change of venue; (2) the trial court erred in denying a request for a handwriting expert at state expense; (3) the trial court erred in refusing to suppress identification testimony by witnesses participating in pretrial photographic and physical line-ups; (4) the trial court erred in denying a motion for directed verdict since the evidence was all circumstantial; (5) the trial court erred in sustaining an objection to a hypothetical question by the defense to witness Linda Godwin; (6) the trial court erred in excluding the testimony of Dr. Stevens regarding identification witness testimony; (7) the trial court erred in not allowing expenses for out-of-state defense witnesses and subpoena power; (8) the prosecuting attorney in three instances made improper comments during closing argument; (9) the trial court erred in admitting State's Exhibit No. 64, a fingerprint card; (10) the trial court erred in failing to grant a mistrial because of a prejudicial television news account shown on July 16, 1981; (11) the trial court erred in overruling a defense objection to the testimony of Chantina Ginn regarding statements by co-defendant Anderson; (12) the trial court erred in refusing a request to sequester the jury; (13) through comparative appellate review this Court should reduce the death sentence; (14) the trial court erred in denying a motion to acquit based on petitioner's indictment by information rather than by grand jury; (15) the trial court erred in admitting State's Exhibit Nos. 1, 2, 3 and 4, photographs of the victims' bodies; (16) the trial court erred in refusing to grant a mistrial based on the jury's observation of a newspaper headline; (17) the trial court erred in failing to declare Chantina Ginn an accomplice; (18) the evidence was insufficient to convict because Ginn was an accomplice whose testimony was not corroborated; (19) death by electrocution is cruel and unusual punishment; (20) the trial court erred in establishing the juror's qualifications through prejudicial voir dire examination; (21) the trial court erred in permitting the State to empanel a death qualified jury; and (22) Ark.Stat.Ann. § 43-1507 and 43-1518 (Repl.1977) are unconstitutional.

All twenty-two issues were raised on direct appeal and decided adversely to petitioner. Rule 37 was not intended to permit a petitioner to again present questions addressed on appeal. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980); Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied, 268 Ark. 315, 599 S.W.2d 729 (1980). Furthermore, no factual support is provided for the allegations. Conclusory statements without substantiation do not justify postconviction relief. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Cooper v. State, 249 Ark. 812, 461 S.W.2d 933 (1971).

Petitioner also makes five conclusory allegations of ineffective assistance of counsel. He initially contends that counsel failed to request a second change of venue; but since an impartial jury was empaneled, petitioner has demonstrated no prejudice. Counsel cannot be found ineffective absent some showing of prejudice. Hill, supra; Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).

Petitioner next alleges that counsel should have requested funds to employ a handwriting expert. Again, petitioner fails to allege any prejudice resulting from counsel's failure to act. As we said on appeal, the State did not use expert testimony to establish the author of any writing. Petitioner has given no reason to support his claim that counsel erred in failing to ask for his own expert.

The trial court sustained the State's objection to a defense question asked of witness Linda Godwin. Petitioner alleges that counsel should have made a proffer. Petitioner does not specify where in the record the specific objection can be found as he should have done. See Hill, supra. We assume that he is referring to the objection raised on appeal wherein the defense asked a hypothetical question of Godwin which was disapproved as assuming a fact not in evidence. If so, he has not alleged or shown that a proffer was called for under the circumstances. Defense counsel asked the witness:

If it were developed in the course of this trial that seven (7) people will testify under oath that Gene Perry was in Alabama at the time this occurred, would that change your testimony in any way?

As the trial court said, the question assumed facts not in evidence. The question was not proper and we cannot agree with petitioner that counsel was remiss in not making a proffer on it.

Petitioner alleges that counsel failed to object to an unspecified jury argument by the State which amounted to a comment on petitioner's decision not to testify. We must again assume that petitioner has reference to a point also raised on appeal since he does not quote the...