IN THE
CIRCUIT COURT OF CRAIGHEAD COUNTY WESTERN DISTRICT
NO. CR 93450 & 450A
STATE OF ARKANSAS - PLAINTIFF
VS.
DAMIEN ECHOLS - DEFENDANT
ORDER
Now on this 17th day of June, 1999, comes on for
findings of fact and final order the Rule 37.5 postconviction petition filed by
Damien Wayne Echols, by his attorneys, Edward A. Mallett, Houston, Texas, Alvin
Schay, Little Rock, Arkansas, and Barry C. Scheck, Jonathan Oberman and Louise
Hochberg, all of New York, New York, and Melissa Martin, Houston, Texas. The
Court has considered the numerous and extensive pleadings, briefs and testimony
given in support of the petition and makes the following findings and
conclusions:
1) Damien Wayne Echols was tried and convicted in Craighead County on 3 counts
of capital murder of Michael Moore, Christopher Byers, and Steve Branch. He was
sentenced to death in 1994. On December 23, 1996, the sentenced was affirmed, Echols
and Baldwin v. State, 936 S.W.2d 509 (Ark. 1996), the mandate issued on
January 10, 1997. A petition for writ of certiorari was filed before the U.S.
Supreme Court and hearing was denied.
2) The petition for postconviction relief under Rule 37.2 and 37.5 followed the
denial of writ of certiorari before the U.S. Supreme Court alleging among other
claims that he was deprived of due process of law and right to effective
assistance of counsel at both trial and on appeal.
3) The petitioner has failed to demonstrate that trial and appeal counsel Vat
Price and Scott Davidson, both of Jonesboro, Arkansas, were ineffective. Under
the test recognized by both State and Petitioner in their briefs, Strickland
v. Washington, 466 U.S. 668 (1984) and Wainwright v. State, 307 Ark.
569, 823 S.W.2d 449 (1992), the petitioner has failed to overcome the
presumption of competency by production of evidence to demonstrate a reasonable
probability that, but for unprofessional error, the results of the trial would
have been different. The mere allegation of ineffectiveness is not sufficient
to show that counsels' conduct undermined the adversarial process and resulted
in actual prejudice to the degree that petitioner was denied a "fair
trial."
The petitioner has not established proof of both deficient conduct and actual
prejudice and, therefore, his claim of ineffective assistance of counsel must
fail.
4) It is well settled that the judge who presided over defendant's criminal
trial may also preside over the defendant's postconviction proceeding. Bryant
v. State, 323 Ark. 130, 913 S.W.2d 257 (1996). Recusal is not required
because some of the trial judge's rulings are considered in the postconviction
proceeding. A judge's decision not to recuse is discretionary and will only be
reversed for abuse of discretion. Beshears v. State, 329 Ark. 469, 947
S.W.2d 789 (1997). Petitioner has failed to show either bias or prejudice by
the trial judge and, therefore, fails to carry his burden.
5) Petitioner alleged newly discovered evidence of his actual innocence under
the Supreme Court's holding in Herrera v. Collins, 506 U.S. 853 (1993).
Claims of newly discovered evidence are not normally cognizable in a Rule 37
proceeding, Cigainero v. State, 321 Ark. 533, 906 S.W.2d 282 (1995).
Under this claim, the petitioner attempted to establish a "bite mark"
on the face of one of the victims and argued that failure to recognize and
develop evidence was incompetence on the part of petitioner's counsel Price and
Davidson. Evidence is new only if it was not available at trial and could not
have been discovered earlier through the exercise of reasonable diligence, Amrine
v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997), cert. denied, 118 S.Ct.
1807 (1998).
The "bite mark" evidence is not "new" because the marks
were on the victim's face from the initial discovery of the bodies.
Furthermore, the evidence is not reliable. The bulk of the testimony at the
evidentiary hearing was that no bite mark could be identified to a reasonable
degree of medical certainty.
The testimony of Doctors Peretti, Sturner, and Dugan, and that of Val Price and
defendant's investigator, Ron Lax, established that there are not identifiable
bite marks on the photographs of the bodies. Dr. Harry Mincer testified that
the identification of bite marks is not an exact science. Dr. Mincer, president
of the American Board of Forensic Odontology and an expert in the field of
forensic odontology also concluded that the mark over the eye brow of Steve
Branch was not a bite mark within a degree of reasonable medical certainty.
The petitioner has failed to prove a valid claim of actual innocence or to
demonstrate incompetence of counsel. The alleged bite mark can neither be said
to constitute new or reliable evidence of innocence or evidence that a rational
fact finder would have considered seriously.
6) The petitioner has failed to establish ineffective assistance of counsel for
failure to adequately investigate the facts. The facts and testimony presented
at the evidentiary hearing indicate that both Price and Davidson spent
substantial time in preparation for and in defending petitioner at trial and
that attorney Dan Stidham also provided research on motions and production of
witnesses. Ron Lax who was referred to as "the best investigator I have
ever worked with" testified that he had worked on 25 capital murder cases
prior to petitioner's case. Lax stated that he conducted multiple interviews
and developed witnesses and that he had the assistance of additional staff.
This court finds that petitioner has failed to establish Price or Davidson
failed to adequately investigate the facts of their case.
7) Jurors are presumed unbiased and fit to serve, Goins v. State, 318
Ark. 689, 890 S.W.2d 602 (1995). The petitioner did not exercise all of its
preemptory challenges of jurors and, therefore, cannot now raise defects in
voir dire. Furthermore, the actual response of those jurors selected to hear
the case support Price's contention that the jury selection was fair and
impartial.
8) Val Price was not ineffective for failing to preserve a record of voir dire
for appeal. The decision of Price, as indicated by his testimony, in the
evidentiary hearing, was that he exercised sound principles of strategy in
electing not to designate voir dire record for appeal because he had not
utilized all preemptory challenges having acquired a jury he believed to be fair
and impartial and not wishing to clutter the appeal with weak or insupportable
grounds decided not to include voir dire.
9) Price was not ineffective with respect to the HBO video and petitioner has
failed to demonstrate any prejudice whatsoever as a result of the making of
this video.
10) Price was not ineffective for failing to obtain funding for experts and the
outcome of the trial would not have been different had he done otherwise. The
witnesses called by petitioner in the evidentiary hearing produced no evidence
to establish that Price was ineffective or that the outcome of the trial would
have been different had additional experts been employed.
11) The failure to object to leading questions and hearsay by Price as alleged
by petitioner is mere second guessing the trial strategy and does not establish
ineffectiveness of counsel.
12) Price was not ineffective by failing to have DNA test performed. As a
practical reason no material remained that could be tested a second time and
the results at hand were not harmful to petitioner, in fact, were beneficial.
13) The decision not to impeach Michael Carson was a matter of trial strategy.
14) The petitioner's claim that Price was ineffective for failing to move for
another change of venue or alternatively a continuance is not supported by law
or by facts.
15) The crossexamination of Mark Byers by Val Price at trial was both complete
and clearly a matter of trial strategy and Price was not ineffective.
Petitioner has asserted a number of claims at the conclusion of his petition.
It is well established that Rule 37 proceedings are not a substitute for direct
appeal and cannot be used as a vehicle to challenge mere errors that occurred
during trial or to raise claims that could have been raised at trial or on
appeal. Coplen v. State, 298 Ark. 272, 766 S.W.2d 612 (1989); Neal v.
State, 270 Ark. 442, 605 S.W.2d 421 (1980). Simply put, a Rule 37
proceeding is not designed to take the place of a direct appeal. Robinson v.
State, 295 Ark. 693, 751 S.W.2d 335 (1988). Thus, any claims that should
have been raised either at trial or on appeal are not cognizable in this
proceeding and cannot form the basis for postconviction relief. Further,
postconviction relief is not warranted based upon claims already adjudicated in
a petitioner's direct appeal. Dunham v. State, 315 Ark. 580, 868 S.W.2d
49G (1994).
CONCLUSION
WHEREFORE, for all of the reasons stated herein, petitioner's petition for post
conviction relief is hereby denied
IT IS SO ORDERED.
Date of Entry:6/17/99
[signed]
CIRCUIT JUDGE DAVID BURNETT
