Greene v. State

146 S.W.3d 871, 356 Ark. 59, 2004 Ark. LEXIS 88
CourtSupreme Court of Arkansas
DecidedFebruary 12, 2004
DocketCR 02-736
StatusPublished
Cited by58 cases

This text of 146 S.W.3d 871 (Greene v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene v. State, 146 S.W.3d 871, 356 Ark. 59, 2004 Ark. LEXIS 88 (Ark. 2004).

Opinion

Betty C. Dickey, Chief Justice.

Appellant Jack Gordon Greene was convicted in Johnson County Circuit Court of the capital murder of Sidney Jethro Burnett and was sentenced to death in 1992. This court affirmed the conviction for capital murder but reversed and remanded for resentencing because the North Carolina Supreme Court had reversed a previous murder conviction, which the Arkansas trial jury had considered as an aggravating circumstance. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994) (Greene I). In 1996, Greene was again sentenced to death and this court again reversed and remanded for resentencing because (1) the State had not offered proof that Greene’s bad act in North Carolina constituted a felony under North Carolina law, and (2) Greene was entitled to a hearing relating to his objections to his mental evaluation. See Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998) (Greene II). On remand, Greene was sentenced to death and this court affirmed. Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001) (Greene III). Appellant then filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition without a hearing. From that order Greene now appeals, asserting seven points on appeal, none of which has merit. We affirm the order of the trial court.

Appellant alleges two procedural and five substantive errors: (1) the trial court’s order denying postconviction relief fails to comply with the written findings requirement of Rule 37; (2) the trial court erred in failing to conduct a hearing on the petition; (3) trial counsel was ineffective for failing to seek live testimony in the penalty phase instead of submitting transcripts; (4) trial counsel was ineffective for failing to object to State’s closing argument; (5) trial counsel was ineffective for failing to make a proper objection to an improper interpretation of Arkansas law; (6) trial counsel was ineffective for failing to challenge the testimony of the medical examiner; and, (7) trial counsel was ineffective for failing to make a constitutional objection to introduction of a T-shirt inscribed “If you love someone, set them free. If they don’t come back, hunt them down and shoot them.”

Standard of Review

The standard of review for claims of ineffective assistance of counsel is well settled in Arkansas. This court has recently stated:

In reviewing a claim of ineffective assistance of counsel, the reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002); Thomas v State, 330 Ark. 442, 954 S.W.2d 255 (1997). To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. McGehee, supra. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In determining a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). This court will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). To prevail on a claim of ineffective assistance of counsel, Scott 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. McGeHee, supra; Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

Scott v. State, 355 Ark. 485, 139 S.W.3d 511 (2003).

I. Written Findings under Rule 31

Appellant claims that the trial court’s order fails to comply with the “written findings” requirement of Rule 37, which has two separate provisions that deal with petitions where the trial court does not hold a hearing. These rules state in pertinent part:

37.3(a) If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.
37.5(i) Decision. 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 oflaw with respect to each legal issue raised by the petition.

Ark. R. Crim. P. 37.3, 37.5 (2003). This court has recently reconciled these two rules and their relative case law. See Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003).

Prior to the enactment of Rule 37.5, Rule 37.3 covered cases where the death penalty was imposed. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). Under Rule 37.3(a), the trial court is required to make written findings specifying any part of the files or records that are relied upon to sustain the court’s findings. Ark. R. Crim. P. 37.3(a) (2003). This court has held it can affirm a trial court’s order notwithstanding the failure to comply with Rule 37.3(a), if it can be determined from the record that the petition is wholly without merit, or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted, even in death cases. Wooten, supra; see also Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997).

Rule 37.5 mandates that the trial court make “specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions oflaw with respect to each legal issue raised by the petition,” but the Rule does not require the trial court to specify any parts of the files or records that are relied upon to sustain the court’s findings. This court has explained that in death cases covered by Rule 37.5, it will remand a case when the trial court fails to make sufficient written findings of fact and conclusions oflaw. Echols v. State, 344 Ark. 513, 516, 42 S.W.3d 467, 470 (2001)(postconviction claims are governed by Rule 37.5., which provides the postconviction procedure.to be applied in death-penalty cases for defendants who became eligible to file a Rule 37 petition on or after March 31, 1997).

In Sanders v. State, 352 Ark. 16, 98 S.W.3d 35

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Cite This Page — Counsel Stack

Bluebook (online)
146 S.W.3d 871, 356 Ark. 59, 2004 Ark. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-state-ark-2004.