Stewart v. State, CR

• Decision Date: 14 March 1988
• Docket Number: No. CR,CR
• Citation: 746 S.W.2d 58,295 Ark. 48
• Parties: Theodore Clark STEWART, Appellant, v. STATE of Arkansas, Appellee. 87-159.
• Court: Arkansas Supreme Court

Page 58

746 S.W.2d 58

295 Ark. 48

Theodore Clark STEWART, Appellant, v. STATE of Arkansas, Appellee.

No. CR 87-159.

Supreme Court of Arkansas.

March 14, 1988.

Robert A. Newcomb, Little Rock, for appellant.

Joseph V. Svoboda, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, Theodore Clark Stewart, was convicted of burglary. He petitioned the court for a new trial, pursuant to Ark.R.Crim.P. 37, alleging that his lawyer had been ineffective. The court denied relief, without holding a hearing, on the ground that the petition stated only conclusions rather than facts in support of the allegation. As we believe the petition stated sufficient facts to warrant a hearing, the case is reversed and remanded.

The petition alleged that Stewart's counsel interviewed none of the state's witnesses and did not file a discovery motion to obtain the statements of the state's witnesses from the police. It alleged that counsel also did not interview any of the defense witnesses whose names had been furnished to counsel. Specifically, Stewart contends his brothers would have testified he was with them at the time the burglary was committed. He also claims that had "hospital personnel" been called on his behalf, they, along with his family members, could have testified that injuries he received were "consistent with" a car injury instead of the injury he was alleged by the state to have received in the course of committing the burglary.

If a Rule 37 petition is meritless on its face, no evidentiary hearing need be held. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). No hearing need be held if the trial court can determine conclusively from the record that the petitioner's contentions are meritless. Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986).

Although the petition did not give the names of the "medical personnel" who might have testified on Stewart's behalf, that may well have been because he did not know who they were and had no way to find out without counsel's assistance. We cannot tell from the record before us now. Stewart's description of the testimony they might have given is sufficient to make his allegation more than conclusory. Nor do we deem it fatal to the petition that Stewart did not give the names of his brothers. His statement that they would have given alibi testimony is also more than conclusory.

Although the trial judge entered a number of factual findings about the procedural history of the case, indicating that Stewart's present counsel had filed the petition and had done nothing about it for several years, he made no findings based on the record with respect to Stewart's allegations. It is reversible error for the trial judge to fail to make reference to the parts of the record relied upon to deny the petition, Robinson v. State, 264 Ark. 186, 569 S.W.2d 662 (1978), unless we can conclude from the record as a whole that the petition has no merit. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). We can reach no such conclusion based on the record before us. The denial of the petition is reversed, and the case is remanded for a hearing pursuant to Ark.R.Crim.P. 37.3(c).

HICKMAN and HAYS, JJ., dissent.

HAYS, Justice, dissenting.

This petition asserts that defense counsel did not interview any of the witnesses for the defense or the state and failed to interview Stewart's brothers who would have testified that Stewart was with them at the time of the burglary; that counsel failed to move to suppress an oral confession and failed to file a discovery motion to obtain statements given to the police. The petition alleged that members of Stewart's family and "hospital personnel" could have testified that Stewart's injuries were more consistent with "a car injury" than might have been incurred in a burglary.

The trial court ruled the petition contained only broad conclusory statements alluding to unnamed witnesses, with no attempt to show how the verdict might have been affected by these alleged failures. It held that Stewart had not shown how counsel's representation failed to measure up to an objective standard of reasonableness or that, but for the failures, the results would have been different.

Stewart has provided no facts beyond his own assertions that witnesses, not one of whom is identified, would in some undisclosed fashion, have aided his defense. This will not suffice. We have held repeatedly that allegations which are not supported by facts will not justify an evidentiary hearing on post-conviction relief. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982).

Even the assertions that Stewart's brothers would have testified that he was with them at the time of the burglary, or that hospital personnel could have testified that the injuries were more consistent with an automobile accident, do not suffice to reopen a trial three years after the fact. Such allegations must be established by clear and convincing proof Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981), and, to be even minimally adequate, must provide specific and detailed information from which it can be reasonably inferred that material and credible evidence could have been presented at trial but was not, due to the professional lapses of defense counsel. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986); Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986); Walker v. State, 277 Ark. 284, 641 S.W.2d 19 (1982). Moreover, counsel is presumed to have performed competently, and the petitioner must overcome this presumption in a convincing fashion. Blackmon v. State, supra; Edwards v. United States, 256 F.2d 707 (D.C.Cir.1958), cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958).

The majority opinion observes that Stewart's failure to identify the hospital personnel may be due to his not knowing who they are. It is not just the absence of names, but the absence of any specific information from which to weigh the substance of the allegations. If Stewart's brothers were with him at the time of the burglary, as he alleges, is it too much to ask that he specify where they were and what they were doing and when they were together? Moreover, Stewart knows why he was hospitalized for treatment, and he knows what the state's proof was on that score. He can provide in his petition or by affidavits how the injury for which he was treated was inconsistent with the state's theory. If, as he suggests, his injury was incurred in an automobile accident, he can provide the specifics of that incident as to when and where it occurred and who else was involved. A copy of the police report would at least assure us that there was in fact an accident. He tells us nothing beyond a patently conclusory assertion.

Three cases in which we granted evidentiary hearings under A.R.Cr.P. Rule 37 illustrate the difference between allegations which make a substantial showing of merit and those which are merely conclusory:

1) In Rasmussen...