Echols v. State , 344 Ark. 513 ( 2001 )

DONALD L. Corbin, Justice.

Appellant Damien Wayne Echols was charged, along with Jason Baldwin and Jessie Misskelley, with the murders of three eight-year-old boys, Michael Moore, Steve Branch, and Christopher Byers, that occurred on May 5, 1993, in West Memphis. Misskelley was convicted of one count of first-degree murder and two counts of second-degree murder and was sentenced to life imprisonment and a total of forty years’ imprisonment, respectively. This court affirmed his convictions and sentences in Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898 (1996). Echols and Baldwin were subsequently tried together in the Craighead County Circuit Court and were each convicted of three counts of capital murder. Baldwin received fife imprisonment without parole, while Echols was sentenced to death. This court affirmed their convictions and sentences in Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Thereafter, the United States Supreme Court denied Echols’s petition for writ of certiorari. See Echols v. Arkansas, 520 U.S. 1244 (1997). Echols subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition, and this appeal followed. On appeal, Echols raises ten allegations of error. Our jurisdiction is pursuant to Rule 37 and Ark. Sup. Ct. R. 1-2(a)(8). We affirm the trial court’s judgment in part, and we reverse and remand in part.

Echols initially challenges the sufficiency of the trial court’s findings under Rule 37. The record reflects that Echols filed a total of four petitions for relief under Rule 37. The most recent one, the second amended petition, raised five general grounds for relief and contained forty-six specific claims. Eight days of hearings took place over the period from May 1998 to March 1999. In an order entered on June 17, 1999, the trial court generally denied nineteen of Echols’s claims, specifically denied twelve claims, and completely omitted rulings on fifteen claims. As a result, Echols argues that the trial court’s written findings in this case are insufficient, and that this matter should be remanded. We agree.

Rule 37.5 provides the postconviction procedure to be applied in death-penalty cases in which the defendant became eligible to file a Rule 37 petition on or after March 31, 1997. See Rule 37.5(k). Echols initially became eligible to file a petition on January 13, 1997, the date that this court entered the mandate following his direct appeal. This court subsequently granted Echols’s motion to stay the mandate so that he could petition the Supreme Court for a writ of certiorari. The Court denied certiorari on May 27, 1997. Thereafter, on June 2, 1997, this court reissued the mandate. Accordingly, Echols’s postconviction claims are governed by Rule 37.5.

Rule 37.5(i) provides in part that when a hearing is held on the petition, “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.” This provision was adopted from the “Arkansas Effective Death Penalty Act of 1997.” See Ark. Code Ann. § 16-91-202(h)(1) (Supp. 1999) (requiring that “the judge shall make specific written findings of fact and shall expressly state the judge’s conclusions of law relating to each issue raised in the petition for post-conviction relief’). Although this court has not been squarely presented with the opportunity to apply Rule 37.5(i), it has addressed the spirit and intention of that provision.

In Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999)¹, the appellant had been sentenced to death prior to the effective date of Rule 37.5. Thus, his postconviction proceedings were governed by Rule 37.3. On appeal, he argued that the trial court erred in denying his petition without a hearing. This court did not reach the merits of that issue, as it concluded that the trial court’s order was insufficient under Rule 37.3(a). In reaching its decision, this court reviewed the policy considerations behind Rule 37.5:

Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, “in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing.” Id. at 188-89, 964 S.W.2d at 185. Though Wooten received the death penalty, Rule 37.5 does not govern his postconviction review, as it came into effect after he became eligible to file a petition under Rule 37.2(c). See Rule 37.5(k). Nonetheless, we believe that the intent and purpose of that rule reinforces the responsibility of the trial court to make specific written findings and conclusions of law on each issue raised in the petition.

Id. at 695-96, 1 S.W.3d at 10-11 (emphasis added).

The State contends that Wooten is distinguishable, because the order there was conclusory and contained no factual findings. Here, in contrast, the trial court made written findings and conclusions on some of the issues raised in Echols’s petition. The State contends, therefore, that Wooten does not require a remand in this instance. Rather, the State asserts that it was Echols’s obligation to obtain rulings on the remainder of the issues raised in his petition. The State relies on the cases of Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000), and Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998) (per curiam), in which this court held that where the trial court makes specific findings on some, but not all, of the issues raised in the petition, it is up to the defendant to obtain rulings on any omitted issues. The failure to do so renders those issues procedurally barred from consideration on appeal.

We disagree with the State’s assertion that the holdings in Beshears and Matthews are controlling in this case. In the first place, neither of those cases involved appellants who had been sentenced to death. This court, like the Supreme Court, has recognized that death-penalty cases are different from other criminal cases, due to the obvious finality of the punishment. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); American Civil Liberties Union v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), modified on other grounds, State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). Consequently, this court’s appellate review of death-penalty cases has always been more comprehensive than in other cases. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. denied, 434 U.S. 878 (1977). Indeed, this court will allow an appellant under a sentence of death to raise issues for the first time on appeal from the denial of postconviction relief, where prejudice is conclusively shown by the record. See Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

In the second place, Beshears and Matthews were decided under Rule 37.3(c), which differs considerably from the language in Rule 37.5(i). Rule 37.3(c) provides in pertinent part that the trial court “shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” (Emphasis added.) Under that rule, the trial court has the ultimate authority to determine what issues must be addressed in a written order. Rule 37.5(i), on the other hand, provides a more exacting duty, mandating that the trial court “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.” (Emphasis added.) Thus, under Rule 37.5(i), the petitioner determines the issues that must be addressed by the trial court in a written order.

Furthermore, as pointed out in Wooten, 338 Ark. 691, 1 S.W.3d 8, the purpose of the exacting requirements of Rule 37.5 is to provide a comprehensive state-court review of a defendant’s claims and, therefore, eliminate the need for multiple postconviction actions in federal court. See also Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001) (holding that Rule 37.5 requires a heightened standard of review of death cases). Thus, to deny review of issues raised in death cases on a purely procedural basis, without first exercising great care to assure that the denial rests on solid footing, would clearly thwart that purpose.

In sum, because Echols has been sentenced to death, we remand this case to the trial court for entry of a written order in compliance with Rule 37.5(i) and this court’s holding in Wooten. We limit, however, the trial court’s duties on remand to making factual findings and legal conclusions only as to the issues raised by Echols on appeal, as all other claims raised below but not argued on appeal are considered abandoned. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). Thus, this remand should not be construed by Echols as an opportunity to reopen the evidence or to raise new issues. Additionally, to avoid any lengthy delay in this matter, the order is to be completed within sixty days from the date the mandate is issued. We will then consider the issues raised on appeal.

Notwithstanding our decision to remand this matter, we may address the merits of Echols’s contention that the trial judge should have recused from the Rule 37 proceedings. See Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997) (per curiam). This court has consistently held that the judge who presides over a defendant’s trial may also preside over that defendant’s postconviction proceeding. See Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996) (per curiam); Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). Furthermore, despite Echols’s argument to the contrary, “recusal is not required when some of the judge’s rulings are considered in the Rule 37 proceedings.” Bryant, 323 Ark. at 133, 913 S.W.2d at 259 (citing Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972)). A trial judge’s decision not to recuse from a case is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Beshears, 329 Ark. 469, 947 S.W.2d 789 (citing Bryant, 323 Ark. 130, 913 S.W.2d 257). To decide whether there has been an abuse of discretion, this court reviews the record to determine if prejudice or bias was exhibited. Id. (citing Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994)). It is the appellant’s burden to demonstrate such bias or prejudice. Id.

Here, the trial court found that Echols failed to show either bias or prejudice and therefore failed to carry his burden. On appeal, Echols does not argue that the trial judge was biased or prejudiced against him. Instead, he contends that the trial judge should have recused because of the alleged conflict between the judge’s role as trial judge and his role as a potential witness at the Rule 37 proceedings. This allegation is insufficient to overcome the presumption that the trial judge is impartial. See, e.g., Walls v. State, 341 Ark. 787, 20 S.W.3d 322 (2000); Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). We thus affirm the trial court’s ruling on this issue.

Affirmed in part; reversed and remanded in part.

Glaze, J., dissents. HANNAH, J., concurs in part; dissents in part.

1 Wooten was decided in October 1999, after the order was entered in this case. Thus, the trial court did not have the benefit of that holding.