Griswold v. State ( 1989 )

Darrell Hickman, Justice.

This is an appeal from an order denying the appellant a new trial for ineffective assistance of counsel. We remand the case for further proceedings.

The appellant’s convictions for the rape of three young girls were affirmed by this court. Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986). In 1987 he sought permission, pro se, to proceed with a Rule 37 petition, claiming that his lawyer has failed to call crucial witnesses whom he knew could testify to the victims’ lack of credibility. In an unpublished per curiam dated November 9, 1987, we ordered that a hearing be held limited to the allegation regarding the failure to investigate the potential witnesses named by the petitioner.

The appellant’s attorney, Robert Irwin, testified at the hearing and admitted he was aware that certain witnesses had information relevant to the appellant’s case: Linda Bright, a social worker in Louisiana; Dr. Alan Klein, a psychologist in Louisiana; Homer Griswold, the appellant’s brother, and Homer’s wife, Dr. Beth Griswold, a psychologist.

Irwin telephoned the Griswolds, who lived in Newcastle, Wyoming, and recorded the conversation. They told Irwin that two of the appellant’s alleged victims had wrongly accused them of abuse and had fabricated stories concerning other adults as well.

Dr. Griswold also provided Irwin with written reports prepared by Linda Bright and Dr. Alan Klein. Bright’s report indicated generally that the girls had distorted perceptions of reality. Dr. Klein’s report noted that one of the girls had retracted her claim that she had been abused by the Griswolds.

Irwin did not contact either Klein or Bright. As he testified, he decided to “put all his eggs in one basket” and rely on Homer and Beth Griswold to undermine the credibility of the victims. He admitted that Klein and Bright had knowledge of the victims’ psychological problems, but felt that Dr. Griswold would be his “number one, best witness” and Homer Griswold the second best witness.

The trial was apparently set several times and finally scheduled for October 4. Irwin sent blank subpoenas to the Griswolds in Wyoming so they could clear any absence for trial with their employers. On October 4, the trial was reset for October 18. Additional subpoenas were sent, but they did not reach the Griswolds until just a few days before trial.

Irwin spoke with the witnesses on the phone the Wednesday before the trial on Friday. Dr. Griswold said she informed him that a winter storm had made traveling hazardous in their area and that her husband had injured himself. On the day before trial, she confirmed that it would be impossible for them to attend. She testified that she asked Irwin to try for a continuance, but he said he could not get one. The appellant learned, for the first time, on the day before his trial that his key witnesses would not appear.

Irwin testified that the Griswolds’ testimony was very important. While he did not believe the testimony of either Klein or Bright would be crucial, he stated, “there is no question in my mind that the outcome of the case might have been different had [the Griswolds] appeared.” Irwin did not recall Dr. Griswold mentioning a continuance. Nevertheless, he did not move for a continuance when it was discovered they would not be available. Irwin testified he came to believe the Griswolds did not intend to come to Arkansas because they feared charges would be made against them.

The trial judge denied the appellant’s petition. He decided it was not counsel’s fault that the Griswolds did not appear. He concluded the Griswolds did not want to come to the trial and declined to rule on whether Irwin should have asked for a continuance, saying the only issue before him was whether the witnesses had been properly investigated.

While we do not fault the trial judge for reading our per curiam narrowly, and perhaps its wording was too restrictive, it would indeed make justice an empty vessel to say a lawyer should investigate and prepare for trial but is not required to take all reasonable steps necessary to get critical evidence introduced.

Therefore we remand the case for the trial judge to determine if Griswold was denied effective assistance of counsel because his attorney did not move for a continuance. If the appellant brings another appeal, he should abstract the trial record. Prejudice must be demonstrated.

Remanded.

Hays and Glaze, JJ., dissent.