Frank WILLIAMS v. STATE of Arkansas
CR 99-1221
Supreme Court of Arkansas
September 20, 2001
56 S.W.3d 360
Appellant argues that because he was acquitted of the theft of property charge, he could not have possessed thе intent to commit theft in the K-Mart store. However, this argument runs contrary to our case law. The law is clear that “a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. . . . [T]he jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment.” McVay v. State, 312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993) (quoting United States v. Romano, 879 F.2d 1056 (2d Cir. 1989)).
We hold that there was substantial evidence to support appellant‘s conviction of breaking or entering into the K-Mart store. Accordingly, the trial court‘s denial of appellant‘s motion for directed verdict is affirmed.
Affirmed.
Mark Pryor, Att‘y Gen., by: James R. Gowen, Ass‘t Att‘y Gen., for appellee.
RAY THORNTON, Justice. This is an appeal from a trial court‘s denial of a Rule 37 petition. Appellant, Frank Williams, shot and killed Clyde Spence at his home in Lafayette County. Appellant was charged with breaking or entering, felon in possession of a firearm, theft of property, and capital murder. He was sentenced to death by lethal injection on the capital-murder charge. We affirmed appellant‘s conviction on his direct appeal in Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995), cert. denied, 516 U.S. 1030 (1995). On February 20, 1996, appellant filed a petition for postconviction relief pursuant to
In appellant‘s first point on appeal, he argues that the trial court‘s order denying his petition for postconviction reliеf did not comply with the
The order that appellant challenges is the trial court‘s July 23, 1999, order. In that order, the following findings were made:
On the basis of the pleadings and briefs filed in the casе, the record of the trial, and the evidence introduced at the hearing on this petition, the court hereby denies postconviction relief.
The petitioner, in his original motion for postconviction relief, alleged several factors for the court‘s consideration. In his brief subsequent to the hearing, counsel does not choose to address these factors individually, but considers all points alleged in his original petition to constitute ineffective assistance of counsel.
In denying petitioner‘s motion for postconviction relief, the court finds that to prevail as an instance of ineffective assistance of counsel, the petitioner must establish that trial counsel‘s conduct was outside the range of reasonable professional assistance and that there is a reasonablе probability that, but for counsel‘s errors, the outcome would have been different. Strickland v. Washington, 466 U.S. 668 (1984). The petitioner failed to establish a reasonable probability that, but for counsel‘s errors, the outcome would have been different. Therefore, the petition for Rule 37 relief must bе denied.
We agree with appellant‘s contention that the original order was conclusory and did not meet the requirements of Rule 37. However, on May 25, 2000, the State filed a motion in this court asking us to remand the case to allow the trial court to enter written
If a hearing on the petition is held, 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. If no hearing on the petition is held, the circuit court shall, within one hundred twenty (120) days after the filing of the petition, 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. The time within which the circuit court shall make specific written findings of fact and conclusions of law shall be extended by thirty (30) days if the circuit court requests or permits post-hearing briefs.
Id. (emphasis added).
On June 15, 2000, we granted the State‘s motion and remanded this case back to the circuit court. On September 25, 2000, the trial court entered a supplemental order denying appellant‘s petition. In that order, the trial court made specific factual findings and conclusions of law on each issue rаised by appellant in his petition for postconviction relief. We have carefully considered those specific findings of fact and conclusions of law, and find no reversible error. We also note that appellant has not challenged those specific findings of fact and conclusions of law. We hold that the trial court‘s supplemental order complies with our rules of criminal procedure, and contains no reversible error as to the first point on appeal. We further conclude that appellant‘s allegation of error based upon the defective original order is now moot.
In appellant‘s second point on appeal, he argues that the trial court should have granted his petition for postconviction relief because his attorney at trial was ineffective. Specifically, appellant argues that his trial attorney was ineffective because he failed to call various witnesses such as his mother or his sister to testify during the sentencing phase of the trial. Before addressing the merits of appellant‘s argumеnt, we note that appellant has failed to proffer the substance of either witnesses’ testimony at any stage of the postconviction proceeding. Thus, it is impossible for either the trial court or this court on review to determine whether appellant‘s mother‘s testimony or his sister‘s testimony would have changed the outcome of the trial, thereby rendering trial counsel‘s assistance ineffective.
In appellant‘s final point on appeal, he argues that the Arkansas Death Penalty Statute is unconstitutional. He challenges its constitutionality on several grounds. Specifically, he argues that the statute: (1) has overlapping offenses; (2) limits the jury‘s consideration of mitigating evidence during the sentencing phase of the trial; and (3) requires the imposition of the death penalty under certain circumstancеs.
Before addressing appellant‘s contentions, we note that appellant was required to raise any constitutional claims in his direct appeal. We have held that even constitutional issues must be raised in the trial court and on direct appeal, rathеr than in Rule 37 proceedings. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). We further note that each constitutional challenge raised by appellant in this case was reviewed and rejected in our recent case, Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).
In appellant‘s first constitutional argument, he contends that felony capital murder аnd premeditated and deliberated murder are identical to and overlap with first-degree felony murder and first-degree murder. We have repeatedly rejected this contention. Davis, supra; Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). In Davis, supra, we considered this “overlapping statute” argument and explained:
In Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), we stated simply thаt “[w]e have decided this issue adversely to Lee‘s position on many occasions, and adhere to these previous holdings.” Id. Similarly, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995),
we stated that we have discounted this argument on numerous occasions. See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Similarly, on this occasion, we adhere to our previous dеcisions, and we reject this argument. Therefore, any inference that trial counsel was ineffective for failing to raise this point in the direct appeal is meritless.
Davis, supra. Because appellant‘s argument in the case now before us is identical to that raised in Davis, supra, Lee, supra, and Nooner, supra, and because the statutory language in question has not changed since our disposition of those cases, we once again reject the argument that the death-penalty statute is unconstitutional, and reject any inference that the failure to raise this issue on direсt appeal constituted ineffective assistance of counsel.
Next, appellant argues that the sentencing instructions and the jury verdict forms did not inform the jury that each juror could consider mitigating factors at all times, in violation of Mills v. Maryland, 486 U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433 (1990). Appellant has failed to аbstract the trial court‘s instructions during the sentencing phase of his trial or the verdict forms completed by the jury. We have held that the failure to abstract a critical document precludes us from considering issues concerning it on appeal. Davis, supra. Because appellant has failed to abstract these documents, and because the record on appeal is confined to that which is abstracted, we cannot consider appellant‘s argument on appeal.
Finally, appellant contends that the sentenсing scheme is unconstitutional because the word, “shall,” in
Affirmed.
GLAZE, J., concurs.
In death penalty cases and under
Previously, this court‘s only exception to the rule regarding when an issue could be considered in Rule 37 proceedings when not raised at trial or on direct appeal was where that error is “structural” or so fundamental as to render the judgment of conviction void and subject to collateral attack. See id. at 383-384; Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996) (trial by a jury of fewer than twelve persons where defendant did not waive a twelve-person jury is fundamental error as tо render the judgment of conviction void and subject to collateral attack); Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985) (a judgment obtained in violation of the