IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
NO. CR 93450 & 450A

DAMIEN WAYNE ECHOLS - PETITIONER
vs.
STATE OF ARKANSAS - RESPONDENT

RESPONDENT'S POSTHEARING BRIEF

I. INTRODUCTION

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time...There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.  Strickland v. Washington, 466 U.S. 668, 689 (1984) (citations omitted).

In 1994, petitioner was tried and convicted of capital murder and sentenced to death. In 1997, petitioner's lead attorney, Val Price, went on trial for his alleged inadequacies in defending petitioner. Despite all of the time and energy that Price and cocounsel, Scott Davidson, spent in representing petitioner (including the time that Price spent working pro bono on petitioner's petition for a writ of certiorari to the United States Supreme Court Tr. 17374), Price has now been subjected to hours of blistering examination and endless criticism based solely upon the benefit of hindsight all in an effort to establish that petitioner did not receive a fair trial. Petitioner has failed in his character assassination efforts as well as in his quest to show that Price and Davidson were ineffective.

In order to show that Price was ineffective, petitioner must show that Price's representation fell below an objective reasonable standard and that there is a reasonable probability that, but for his unprofessional error, the result of the proceeding would have been different. Strickland v. Washington, 466 US 668 (1984); Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Judicial scrutiny of Price's performance now, after the fact, must be highly deferential. Strickland; Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Price's conduct must be examined from his perspective at the time of the trial, not with hindsight and not in an outcome determinative manner. Johnson, 321 Ark. at 12627, 900 S.W.2d 94546. Price is presumed competent within a wide range of professional assistance, Wainwright, 307 Ark. At 574, 823 S.W.2d at 451, and this presumption cannot be overcome without factual substantiation of the allegations of ineffectiveness "sufficient to show that counsel[s'] conduct undermined the adversarial process and resulted in actual prejudice to the degree that petitioner was denied a fair trial." Elmore v. State, 285 Ark. 42, 43, 684 S.W.2d 263, 264 (1985); St. John v. Lockhart, 286 Ark. 234, 691 S.W.2d 148 (1985)(Rule 37 requires more than bare allegations and claims must be supported by clear substantiation of fact). Finally, matters of trial strategy do not constitute a basis for postconviction relief. Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994).

Even if Price's conduct is shown to have fallen below an objective standard of reasonableness, petitioner must still establish that the error had a prejudicial effect on the actual outcome of the trial, i.e., a reasonable probability that the outcome would have been different. This reasonable probability contemplates a probability sufficient to undermine confidence in the outcome. Pruett v. State, 287 Ark. 124 697 S.W.2d 872 (1985). However, as the Supreme Court stated in Lockhart v. Fretwell, 506 US 364 (1993), "an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel[s'] error may grant the defendant a windfall to which the law does not entitle him." Id. at 36970 (citation omitted). Therefore, petitioner must establish both deficient conduct and actual prejudice in order to prevail on his claims of ineffective assistance of counsel. Wainwright v. State, 307 Ark. 569, 574, 823 S.W.2d 449, 45152 (1992). Further, the Court may not "peruse the record" to determine what facts exist in support of his allegations. Elmore, 285 Ark. at 44, 684 S.W.2d at 264. In light of these standards, it is clear that petitioner falls far short of establishing his claims of ineffective assistance of counsel.

To assist the Court, respondent will first address petitioner's claim that the Court should have recused. Then, respondent will address each of petitioner's claims as set forth in his Second Amended Petition For Relief, inserting herein excerpts of relevant testimony from the evidentiary hearings that will establish that petitioner is not entitled to relief.

II. JUDICIAL DISQUALIFICATION AND RECUSAL

In his posthearing brief, petitioner has resurrected his claim that this Court should have granted petitioner's motion to recuse. It is well settled that the judge who presided over a 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 the trial judge's rulings are considered in the postconviction proceeding. Id. 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). To establish an abuse of discretion, petitioner must show either bias or prejudice by the judge. Id. Petitioner has failed to carry his burden.

From the outset, this Court has been more than fair in its handling of these proceedings as reflected in various rulings such as allowing multiple amendments to the Rule 37 petition, granting a continuance when one of petitioner's attorneys, Melissa Martin, was unable to attend some of the hearings, granting petitioner's motion to take dental impressions, and granting petitioner's request to submit posthearing briefs (and even a reply brief by petitioner) at the conclusion of the hearings. Thus, it is abundantly clear that petitioner has failed to establish any bias or prejudice by the Court, and petitioner's claim that these proceedings have been fundamentally unfair because the Court refused to recuse is utterly without merit.

III. CLAIMS ADDRESSED

Guilt Phase

Claim 1: Newly discovered evidence of actual innocence.

Petitioner's first claim is that there is newly discovered evidence of his actual innocence under the Supreme Court's holding in Herrera v. Collins, 506 US 853 (1993). Presumably, petitioner is referring to the alleged "bitemark" evidence. As an initial matter, claims of newly discovered evidence are not cognizable in a Rule 37 proceeding. Cigainero v. State, 321 Ark. 533, 906 S.W.2d 282 (1995). However, even if they were, petitioner has hardly established such a claim under the controlling legal standards.

In order to succeed on this claim, petitioner must present new reliable evidence that was not available at trial and establish in light of such evidence "that it is more likely than not that 'no reasonable juror' would have convicted him." Schlup v. Delo, 513 US 298, 324, 329 (1995). 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). Moreover, a reviewing court must evaluate such new evidence along with any other admissible evidence of petitioner's guilt, even if that evidence was not presented during his trial. Bousley v. United States, 118 S. CT 1604, 1612 (1998). In light of these standards, it is clear that petitioner's claim must fail.

First, this bitemark evidence is clearly not "new" because the marks were on the victim's face from the outset. Second, this evidence is not reliable because the bulk of the testimony presented at the evidentiary hearings was that this mark was not a bitemark. Dr. Frank Peretti testified that when he viewed the bodies, he saw no bitemarks, but as a matter of routine, he called Dr. Kevin Dugan. a forensic odontologist who works in conjunction with the State Medical Examiner's Office, to examine the bodies as well. (Tr. 1437). Dr. Dugan testified that he viewed the bodies and concluded that there were no bitemarks. (Tr. 1416). In addition, Dr. William Sturner, Chief Medical Examiner for the State of Arkansas, testified that, in his capacity as an inspector for the National Association of Medical Examiners, he was inspecting the Medical Examiner's Office of Shelby County, Tennessee when he was notified about the arrival of the bodies of the victims in this case. (Tr. 145960). Upon completion of his inspection, Dr. Sturner returned to Little Rock and viewed the bodies but saw no bitemarks. (Tr. 146061). The testimony of Doctors Peretti, Sturner, and Dugan is consistent with the testimony of Val Price and Ron Lax, petitioner's investigator, that there were no bitemarks evident on the photographs of the bodies. (Tr. 59293, 124749). In fact, both Price and Lax were aware at the time of trial that bitemark evidence was potentially useful, (Tr. 58993, 124749), but neither saw any evidence of it in this case. Although he further testified that the identification of bitemarks is not an exact science (Tr. 139798), Dr. Harry Mincer, president of the American Board of Forensic Odontology and an expert in the field of forensic odontology (even according to petitioner's own witness Tr. 107475), concluded that the mark over the eyebrow of Steven Branch was not a bitemark within a reasonable degree of medical certainty. (Tr. 1388). Therefore, based upon all of the testimony presented and the fact that the identification of bitemarks is not an exact science, petitioner can hardly establish that this alleged bitemark constitutes new and reliable evidence demonstrating his actual innocence.

Finally, even if petitioner could establish that the bitemark was new and reliable evidence, he cannot establish that, in light of that evidence, no rational factfinder would have found him guilty. The fact that this might have been a bitemark does not in any way counter the evidence that, according to the Arkansas Supreme Court, was sufficient to support petitioner's conviction: petitioner's statements that he killed the victims; the testimony that petitioner was wearing dirty clothes near the scene of the murders at a time close to the murders; the fibers from one of the victim's clothes that were microscopically similar to fibers found in petitioner's home; the existence of serrated wound patterns on the victims, the discovery of a large knife with a serrated edge discovered in a lake behind codefendant Jason Baldwin's home, and the testimony linking petitioner to that type of knife; petitioner's admission to being familiar with the occult and the trappings of the occult that surrounded the murders; the existence of wounds on the victims that were consistent with the size of sticks that petitioner had been seen carrying; and petitioner's statement about the killings that contained facts not known by the public. 326 Ark. 917, 93841, 936 S.W.2d 509, 51819 (1996)

Therefore this Court should find that petitioner has failed to establish a valid claim of actual innocence.

Claim 2: Ineffective assistance of counsel for failure to investigate the facts.

Petitioner vaguely contends that his counsel was ineffective for failing to adequately investigate the facts. Despite the conclusory nature of this claim. the facts and testimony presented at the hearings soundly rebut this assertion. Val Price testified that he spent 922 hours in preparation for and in defending petitioner at trial and that his cocounsel, Scott Davidson, spent approximately 700-800 hours on the case. (Tr. 507). Price also testified that this was the most time he had ever spent on a case. (Tr. At 507). In addition to the efforts of Price and Davidson, petitioner also had the benefit of investigator Ron Lax, who Dan Stidham, petitioner's own witness, described as "the best investigator that I have ever worked with." (Tr. At 144). Stidham also testified that Lax was thoroughly prepared when he entered the courtroom (Tr. 144), that he could not point to anything that Lax could have done better (Tr. 145), and that Lax did outstanding work. (Tr. 146). Incidentally, Stidham also assisted Price and Davidson with motions, research, and witnesses. (Tr. 131).

With respect to the extent of Lax's involvement in the case, Price testified that Lax contacted him within one week of Price's appointment (Price was appointed shortly after petitioner's arrest in June 1993) and offered his assistance. (Tr. 510). After checking out Lax's background, Price determined that Lax's involvement would be beneficial to petitioner based upon Lax's criminal investigation and deathpenalty investigation experience. (Tr. 50910). Lax's experience included his involvement with the National Legal Aid and Public Defender Association, the Tennessee Association of Criminal Defense Lawyers. And the National Capital Murder Death Penalty Resources Organization. (Tr. 509). In addition to Lax, two other people from Lax's office assisted in the investigative efforts on petitioner's behalf. (Tr. 508).

Lax testified that he began working as an investigator in white collar crime in 1971, and that he started doing criminal work in 1989. (Tr. 121820). He testified that he had worked approximately twenty-five (25) capital murder cases prior to getting involved in petitioner's case. (Tr. 1223). Lax stated that he reviewed all of the discovery provided by the State, conducted multiple interviews, and developed any additional witnesses. (Tr. 122627). In addition to his own efforts, Lax testified that he had the assistance of others within his firm, including Glori Shettles and two or three other investigators. (Tr. 1227). In all, Lax's billing records revealed that a total of 1,513.5 hours were expended by his firm in connection with the investigative efforts on petitioner's behalf. (Tr. 1235). Finally, Lax testified that his efforts were not connected to the amount of compensation he later received: "We did the best we could with the experience we had at that time." (Tr. 128384). Indeed, Lax volunteered to give his best efforts on petitioner's behalf, knowing that he might not receive any compensation at all. (Tr. 1233). Further, even Dan Stidham conceded that he did not know what Lax could have done any differently. (Tr. 145). Based upon the incredible amount of time and energy expended by Val Price, Scott Davidson, Ron Lax and the members of Lax's firm, petitioner can hardly establish that Price failed to adequately investigate the facts of his case.

Therefore, this Court should find that petitioner has failed to establish that Price failed to adequately investigate the facts of this case.

Claim 3: Ineffective assistance of counsel for failure to conduct appropriate voir dire.

Petitioner contends that Price failed to conduct an appropriate voir dire examination with respect to death penalty litigation and pretrial publicity. Petitioner attacks Price for not asking during voir dire about the content of the publicity each of the prospective jurors had seen and could remember. Price testified that every juror knew something about the case. (Tr. 286). He also testified that he had read all of the articles and knew what was in the media, thus he knew what the prospective jurors were exposed to. (Tr. 541, 729). In discussing the pretrial publicity, Price stated:

[J]ust because people have heard things through the media or through rumors, if what they've heard does not comport with what they hear at the trial, sometimes it can actually be an advantage to the defendant . . .[W]e knew a lot of our case had not been reported in the press. The fact that we were intending to use an alternate theory of defense about the Bojangles incident that was something that hadn't surfaced much. It may have come up at the Misskelley trial, but there hadn't been a lot of articles about that, a lot of TV reports about that, prior to that.

There was different I think at one time there was a report about sticks being found or clubs being found which turned out that didn't have anything to do with the evidence in this case. So just the fact that people had heard things in the media wasn't necessarily bad for us.

There were other aspects of one of our alternate theories was the gentleman who went to California, Chris Morgan had made a confession. That was something that people were not aware of, and I think it was favorable. That's why we didn't really question jurors about that aspect of it. (Tr. 54142). Price also testified that he believed the public had high expectations concerning the strength of the State's case that diminished as the trial progressed. (Tr. 72930). He further stated that, "the jury thought there would be more evidence of the crime itself and of Satanism and the occult and that type of of evidence, and that evidence didn't come forward." (Tr. 801).

When asked about how he approached voir dire, Price first stated that he initially requested more than twelve strikes. (Tr. 195). He further testified that in conducting voir dire in this case, he used his experience from picking juries in at least sixty (60) previous trials. (Tr. 534). He also testified that he had read a book about jury selection and used ideas from that book as well as ideas from a jury consultant that he had used in a previous case to assist him as well. (Tr. 53435). He also testified that they utilized the services of Jason Baldwin's jury consultant. (Tr. 196, 287, 534). Of principal importance, however, were his own experience and his ability to personally observe each of the prospective jurors in terms of their answers, their demeanor, and their inflections. (Tr. 53536). Price testified that he used all of these things to select what he believed to be a fair and unbiased jury. (Tr. 537). This view was corroborated by the fact that Price did not use all of the peremptory challenges that were available to him. (Tr. 654, 719). Price's belief is further supported and corroborated by excerpts from the voir dire itself.

During voir dire, prospective juror Joan Sprinkle testified that she had heard about the case from the television and newspaper. When asked if she had formed an opinion, she testified as follows:

No, not really because I know over the years and everybody else does, too, that when you read the paper you really have to really read it because it's always made to look bigger than what it really is. At least that's the way I look at it. Everybody may not feel that way, but I do. And I can look at these two boys now and find it hard to believe. I'd have to see the evidence, really, to make me believe that they could do that to someone. (Voir Dire Tr. 22324) When asked whether she believed that petitioner could get a fair trial despite the media coverage, Sprinkle stated, "Yes. Because we read the headlines, but that doesn't necessarily mean we read all the paper. We hear the news, but that doesn't necessarily mean we're going to listen or believe everything we hear." (Voir Dire Tr. 261). Sprinkle was ultimately selected as juror number two. (Voir Dire Tr. 263).

Prospective juror Kent Arnold stated that he did not follow Misskelley's trial and did not know much about this case. (Voir Dire Tr. 292). When asked how the newspaper articles concerning the murders made him feel, Arnold stated that he did not read very many of them, but that the ones he read were very sensational. "I don't think you could have I mean, I mean, not anymore than every other headline says somebody killed somebody or somebody did something to somebody or somebody stabbed somebody or somebody was burned to death or some car crash and, you know, I'm pretty numb actually." (Voir Dire Tr. 297). When asked whether he agreed that not everything in the paper or on television is accurate, Arnold said, "I agree one hundred percent." (Voir Dire Tr. 298). Arnold was selected as juror number four. (Voir Dire Tr. 320).

During her voir dire examination, prospective juror Vicki Stoll was asked about her feelings concerning the case in light of the media attention. She replied, "Well, because I don't watch the news, l mean, there's things that goes on that I never even really realize that's going on, and I have learned things there that everybody has an opinion, but I don't always agree with them. . .I think that these gentlemen deserve to have a fair trial." (Voir Dire Tr. 29798). Stoll was selected as juror number three. (Voir Dire Tr. 320).

Prospective juror Peggy Vanhoozer testified that she was not a "very good political person" and that she did not read the papers or watch the news very often. (Voir Dire Tr. 358). When asked what conclusion she drew from what she had read, Vanhoozer stated, "That there's more to be said than what is in the paper." (Voir Dire Tr. 367). Vanhoozer was selected as juror number seven. (Voir Dire Tr. 391).

Prospective juror Howard McNatt testified that he did not watch much television at all and had only read the Jonesboro Sun. (Voir Dire Tr. 366). When asked how he felt about who committed the murders, McNatt stated, "Well, I don't know. I don't have all the facts so I certainly would not make a judgment on that." (Voir Dire Tr. 367). McNatt was selected as juror number eight. (Voir Dire Tr. 391).

When asked where she learned about the case and how she felt about it, prospective juror Sharon French responded, "From the media, the TV and newspaper and, of course, my friends talked about it. Of course, they felt like they were guilty. I feel like they're innocent until they are proven guilty. That was my opinion to them whenever this was brought up." (Voir Dire Tr. 369). When asked whether she ever verbalized her opinion. French replied, "Well, l just told 'em that was my opinion, that they were innocent until proven guilty." (Voir Dire Tr. 369). French was later selected as juror number six. (Voir Dire Tr. 390).

Prospective juror John Throgmorton testified that he did not keep up with the coverage of the case and that he did not have any "inside information." (Voir Dire Tr. 499, 510). Similarly, prospective juror Jennifer Dacus stated that she had not followed the case at all and that she did not watch much television. (Voir Dire Tr. 50910). She also stated that she only received the Sunday newspaper. (Voir Dire Tr. 510). When asked what he believed to be the general opinion about the case, Throgmorton replied, "Ah, seems to be the general opinion is that everybody thinks that they're guilty. But, you know, my ownself feel like everyone is innocent until proven guilty, and so I've just pretty much taken what everybody else says with a grain of salt." (Voir Dire Tr. 510). Throgmorton and Dacus were selected as jurors ten and eleven. (Voir Dire Tr. 519).

Prospective juror Oma Dooley stated that she had heard about the case from the newspaper and television but that she did not have any "insider information." (Voir Dire Tr. 52829). When asked what her feelings were in light of what she had heard, Dooley replied, "l really had mixed emotions about it. I was upset, too. You know, l felt for everyone involved, the families of everyone involved. But, too, then I go back to that law that we have that everyone is innocent until proven beyond a reasonable doubt and my mind is more at ease." (Voir Dire Tr. 540). When asked whether she could maintain her own opinion and not be swayed by other jurors, Dooley said, "I will not. I have my own opinion. I won't change my mind." (Voir Dire Tr. 545). Dopey was selected as juror number twelve. (Voir Dire Tr. 553). These excerpts firmly establish that the jury selected was fair and impartial. These excerpts also support Price's position that such responses in the presence of other prospective jurors work in a defendant's favor. (Tr. 54445).

Therefore, because jurors are presumed unbiased and fit to serve, Goins v. State, 318 Ark. 689, 830 S.W.2d 602 (1995), a presumption well-supported by the excerpts set forth above, and because the excerpts from the voir dire aptly support Price's conclusion that the jurors could be fair and impartial, this Court should find that Price was not ineffective in the handling of voir dire.

Claim 4: Ineffective assistance of counsel for failing to preserve record of voir dire.

Petitioner contends that Price was ineffective for failing to preserve an adequate record of voir dire. When asked why he did not raise any issues on appeal concerning jury selection, Price stated that he did not use all of his peremptory challenges during voir dire, and thus was precluded from raising any voir dire issues on appeal. (Tr. 654, 719). Price was correct in his assessment of the law. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994). Price did not use all of his peremptory challenges because he exercised trial strategy in determining which jurors to strike and which ones to keep, and that ultimately a fair jury was selected. (Tr. 71920).

Furthermore, even had Price exercised all of his peremptory challenges, thereby preserving any claims with respect to voir dire, he would not have been required to raise any voir dire claims on direct appeal in order to render effective assistance of counsel. Jones v. Barnes, 463 US 745, 75254 (1983). In this case, Price estimated that he raised approximately thirty (30) issues on direct appeal. (Tr. 76263). When asked about his theory on which issues to raise on appeal, Price gave the following testimony:

The general theory is to to focus primarily on your strongest points. In a death penalty case the Supreme Court has ordered we're obligated to abstract every point that's every ruling that's adverse to the defendant and we did that. But as far as arguing those points, you still it's kind of a balance between you put more time and effort into the stronger points that you think you have a better chance at winning on, and less time both pagewise and argument-wise on the what are considered, you know, minor trivial points on an appeal. . .

In this case, I think we had logical reasons to put forth all thirty points. We origin normally, there is a twenty-five page limit on the argument portion on a brief. We filed a hundred page brief, and the Supreme Court came back and cut it to sixty-five pages. So the final brief portion was sixty-five pages of argument as far as we were concerned.

On a couple of points dealing with the search warrant issues, we knew that Mr. Ford and Mr. Wadley would be they they had fewer points to argue and that was was one of the areas that they were gonna emphasize, so we we mentioned it, I think, some, but they made the the major points that way but we and, of course, the Opinion itself was over a hundred pages long was the longest in the history of the Arkansas Supreme Court. (Tr. 76364).

Thus, Price was forced to winnow out the weaker arguments in order to maximize the amount of space available for arguing the stronger claims. (Tr. 76465). In deciding not to include the voir dire as part of the appellate record, Price made the strategic decision not to do so in order not to water down his stronger arguments:

[I]t would have hurt us if we would have raised issues concerning voir dire on the appeal because, you know, we didn't use bottom line, we didn't use all our strikes, and we couldn't argue any of those points on appeal even if we had wanted to, and that would have taken away pages and time and effort that we devoted to the other aspects or the other issues raised on appeal.(Tr. 76566).

These are exactly the type of strategic decisions that attorneys are required to make and that are not to be second-guessed using the benefit of hindsight. Strickland v. Washington, supra.

Therefore, this Court should find that Price was not ineffective for failing to preserve a record of voir dire for appeal.

Claim 5: Counsel was ineffective with respect to the HBO video.

Petitioner makes much of the fact that Price agreed to permit the filming of the HBO video, arguing that the video created a conflict of interest and constituted a threat to petitioner with respect to his future legal proceedings. First, there was absolutely no testimony that established that petitioner was harmed in any way as a result of the video. In fact, the testimony proved just the opposite. Second, it should be remembered that petitioner willingly agreed to the making of the video as indicated by his signature on the contract and that petitioner was eighteen years old at the time he was charged, thereby enabling him to enter into a contract under Arkansas law. (Tr. 553). In fact, petitioner was very receptive to the idea. (Tr. 552), and was "very forthcoming" in answering questions by the makers of the video. (Tr. 484). Not surprisingly, petitioner did not take the stand at the evidentiary hearings to rebut any of this evidence. Price testified that he and Davidson thoroughly discussed the making of the video with petitioner, including the areas that would be covered as well as areas that they would not allow to be covered. (Tr. 553). When asked whether he ever considered the possibility of the video being a conflict of interest and whether the actual making of it compromised his representation of petitioner, Price testified that he never believed that he was not representing petitioner's interests to the fullest. (Tr. 554).

In addition to discussing the video with petitioner, Price and Davidson also discussed it with petitioner's family who were also supportive of the project. (Tr. 47980, 55455). In fact, petitioner's family members also gave interviews to the makers of the video. (Tr. 479, 555).

Like petitioner, none of his family members took the stand to state that they disagreed with the making of the video. With respect to the possibility of disclosing confidential information, Bruce Sinofsky, one of the makers of the video, testified that counsel was present for each of the interviews with petitioner. (Tr. 452). Sinofsky further stated that they deliberately stayed away from any questions concerning the events of the time the murders were committed based upon the insistence of Price and Davidson that such areas not be discussed. (Tr. 481). Sinofsky also testified that. There was never anything incriminatory discussed in the interviews with petitioner. (Tr. 48284).

When asked whether he was willing to sacrifice petitioner's right to a fair trial in order to make the video, Sinofsky stated, "absolutely not," and that he placed a high priority on not doing so in order to produce the video. (Tr. 48586). Sinofsky further testified that he did not want to interfere with counsels' ability to represent petitioner at trial. (Tr. 491). In fact, Sinofsky confirmed that Price and Davidson voiced concerns and sought assurances that steps would be taken to ensure that petitioner would not be harmed as a result of the video. (Tr. 486). When asked whether he observed anything in the video that was in any way detrimental to petitioner, Sinofsky stated that he did not. (Tr. 491). Rather, "[the video] galvanized a small group of people who believe that he was innocent and some support groups and drew attention to this case, and people could then make up their own judgments on a more national basis than just Arkansas. And I think there have been some people that have come to support him based on seeing the film." (Tr. 49091).

Price also confirmed that the video benefited petitioner in two key ways: (1 ) as a source of funds with which to acquire the assistance of experts; and (2) as a means to track the daily events of the trial. First, with respect to the video providing a source of funds, petitioner unfairly attacks Price and Davidson for exploring alternative means for attaining funds without tipping the prosecution off in the process. Indeed, even Dan Stidham, petitioner's own witness, testified that by filing a formal motion for expert fees he would have effectively "laid his cards on the table," thus enabling the prosecution to know which witnesses were being consulted. (Tr. 81, 138). Price also testified that by having access to money from the making of the video, he did not have to file a formal motion requesting expert fees, which would have alerted the prosecution as to which experts he was consulting. (Tr. 166).

Petitioner can hardly fault Price for seeking alternative ways in which to obtain funding for experts without tipping off the prosecution. While he may contend that Price failed to obtain enough money and enough expert assistance, that point is meritless as will be demonstrated infra. Moreover, petitioner cannot fault Price for using such funds to pay for expenses associated with petitioner's own defense. (Tr. 16769, 405, 41115). While petitioner has attempted to establish that Price and Davidson somehow personally benefited from the making of the video, the testimony from the hearings clearly shows that the money was used to pay for expenses incurred on behalf of petitioner. Further, Price testified that they had conversations with petitioner about using this money to pay for trial expenses. (Tr. 413, 419). Petitioner never testified otherwise. Thus, it is clear that the money from the video provided an excellent source for obtaining expert assistance on petitioner's behalf, and Price can hardly be found ineffective in this regard.

Likewise, petitioner has not established that he was harmed in any way by the making of this video. As Sinofsky testified, no privileged communications were disclosed during the filming and nothing incriminatory came forth. Finally, the video was not released until long after the trial. (Tr. 488). However, petitioner benefited in a second way from the making of the video: Price was able to better control the media and obtain footage from the news media to assist in further representing petitioner during the trial. Specifically, Price testified that he was able to view the daily television recordings of each day's proceedings. (Tr. 559). By allowing the cameras into the courtroom, Price was able to review the tapes and the stories on the news in order to gain a different perspective on what was or was not important from a layman's perspective:

There would be things that we thought were real important points, and we'd turn on the news, and the reporters would report something completely different. Because the reporters obviously are looking at it in a different way than we are, we're trying t o relate to 12 nonlawyers in the jury, there are things that because of that we would try to emphasize the next day in dealing with particular witnesses or putting on witnesses or not asking certain areas because of the fact that it was being televised.(Tr. At 560).

Thus, Price was able to use the daily filming of the trial to petitioner's benefit
while the prosecution was completely unaware of it. (Tr. 560). Moreover, petitioner cannot establish prejudice per se as he attempts to do, because Arkansas Supreme Court Administrative Order Number 6 clearly authorises broadcasting in the courtroom, and Ark. R. Crim. P. 33.1 authorizes media coverage of criminal proceedings. Therefore, the rules permitting the media coverage of this case coupled with Price's use of the media to petitioner's benefit undercuts any argument that petitioner was somehow harmed as a result of either the HBO video or the news coverage of his trial.

Therefore, it is clear that petitioner benefited from the making of the HBO video, not only by obtaining funds for the retention of experts without tipping the prosecution off in the process, but also as a result of the daily videotapes and news footage that enabled his counsel to better view the proceedings from the jury s perspective. Thus, petitioner cannot establish any actual prejudice resulting from this video, much less that Price was ineffective for agreeing to it. Furthermore, prejudice will be presumed only if petitioner demonstrates both an actual conflict and that such conflict adversely affected his case. The prejudice must be real and with some actual detrimental impact on his case, not merely an abstract or theoretical effect. Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998).

Accordingly, this Court should hold that Price was not ineffective with respect to the HBO video and that petitioner has failed to demonstrate any prejudice whatsoever as a result of the making of the video.

Claim 6: Counsel was ineffective for failing to obtain funding for experts.

Petitioner contends that Price was ineffective for failing to obtain state funding for various experts, including crimescene analysts, forensic medical experts. and others. Petitioner ignores the fact that Price did have the assistance of multiple experts: Dr. Moneypenny testified regarding petitioner's mental history; Robert Hicks testified regarding the occult; Dr. Chris Sperry reviewed the autopsy reports and pictures regarding time of death and any other factors he deemed helpful to petitioner; James Ranscoe was the jury consultant hired by Baldwin's attorney but who nevertheless provided assistance to Price during jury selection; and Ron Lax provided extensive investigative assistance. (Tr. 17476).

Petitioner now takes Price to task for not seeking the assistance of a criminal profiler, a polygraph expert, a bloodstain pattern expert, a forensic odontologist and a forensic entomologist. The thrust of this contention is that Price should have hired someone like Brent Turvey, petitioner's proffered criminal profiler, who allegedly could have assisted in providing investigative direction. Of course, as the Court will recall, Turvey is the self-proclaimed profiling expert who authored a less than credible analysis concerning who could have actually committed these murders, even surmising that the perpetrator(s) probably used a truck in the commission of the murders. This profound observation was based on nothing more than Turvey's analysis of the socioeconomic factors at play in West Memphis. (Tr. 954). Turvey also surmised that the perpetrator(s) had to be white, although he was quick to disavow that supposition during cross-examination. (Tr. 978). Turvey also
speculated that the perpetrator(s) did not have a college education but again distanced himself from that weak assumption once he was confronted on cross-examination. (Tr. 98081). Indeed, Turvey conceded that such an inference was unreliable and that he no longer includes that factor in his profiles. (Tr. 981). When asked by the Court whether he was really stating that people who live in that area of West Memphis drive pickup trucks and are not well educated, Turvey replied, "In general, in that socioeconomic area, correct." (Tr. 981). When asked about his reference to "offender characteristics," Turvey replied that such a factor is unrelated to what he would do for courtroom purposes and "it's not germane to getting additional experts." (Tr. 982). Turvey also speculated that the offender(s) had an intense interest in knives based upon the area where the murders occurred: "I'm saying that hunting and fishing behavior are very common in Arkansas, and there are many nonhomicidal purposes for owning knives." (Tr. At 98384). Petitioner faults Price for not employing someone such as Turvey. Even though Turvey's suppositions and stereotypes are hardly credible or trustworthy and Even though they do not exclude petitioner as a possible perpetrator. The Court should reject both the validity and the value of Turvey s testimony and instead look at what Price actually did in this case.

As discussed at length previously, Price had the immediate assistance of Ron Lax who, unlike Turvey, was well seasoned and thoroughly experienced. Based upon Lax's credentials, which were far superior to Turvey's, Price relied on Lax and his associates to assist in formulating strategies and in obtaining expert assistance. (Tr. 513). Lax provided such assistance, and petitioner had the assistance of the experts detailed previously. Petitioner, however, makes much of the fact that Price did not obtain the experts that he listed in the motion for experts that he drafted but never filed. That draft motion, however, was a form pleading that Price obtained from another lawyer and modified. (Tr. 531). The fact that Price prepared such a motion but did not file it hardly supports the conclusion that he was ineffective for failing to do so. The reasons for that decision must be considered.

With respect to the services of a forensic pathologist, Price testified that they consulted with Dr. Chris Sperry from Atlanta, Georgia, but did not receive favorable information from him. (Tr. 51617). In fact, Sperry concluded that the time of death of the victims was probably between 6:00 p.m. and 10:00 p.m. on the day of the murders, which was consistent with the State's theory and not helpful to petitioner. (Tr. 51415). Sperry, who was provided with copies of the autopsy reports, the offense reports, the crime scene photographs, autopsy photographs, and Misskelley's tape recorded confession (Tr. 1238), was also asked to look for anything else that might be helpful to petitioner. (Tr. 124142). Sperry found nothing else. Given the fact that Peretti's conclusion concerning the time of death (i.e., approximately 4:30 a.m. on May 6, 1993 Tr. 1239) was more favorable to petitioner than was Sperry's opinion, it is not surprising that Price decided not to pursue additional opinions from other forensic pathologists.

Concerning the potential use of a criminologist, Price stated that a criminologist is one who reviews particular evidence, and that the only harmful trace evidence that could have been reviewed was red cotton fibers that were found on the bodies and that were similar to some of petitioner's clothing. (Tr. 51718). Price further explained his strategy for dealing with that evidence and recounted the fact that, on cross-examination, he had forced the State's expert to concede that the red fiber was very common and lacking any unusual characteristics. (Tr. 51819). Price also testified concerning the assistance of expert Kenneth Hicks who was located by Lax for the purpose of rebutting the testimony of the State's occult expert, Dale Griffin.. (Tr. 51920). In fact, Price testified that Hicks was at the top of his list in terms of experts that they would need and that Hicks not only testified but also provided assistance in cross-examining the State's expert. (Tr. 52021). With respect to the need for a fluid analysis expert, Price testified that there was no evidence of any semen, blood, or other fluids linking petitioner to the crimes, and thus such an expert was not necessary. (Tr. 521).

With regard to the need for obtaining a forensic odontologist, Price testified that he had previously been involved in a case in which a forensic odontologist was used. After that trial, Price talked with some of the jurors about the value of the odontologist's testimony and learned that the jurors "didn't put any stock in his testimony at all." (Tr. 52324). That experience left a bad impression on Price with respect to the value of forensic odontology. (Tr. 524). Moreover, had Price sought the assistance of a nearby forensic odontologist, he would likely have encountered Dr. Harry Mincer, who testified that the wound was not a bitemark. (Tr. 1388). Concerning the need for a polygraph expert, Price testified that polygraph results are not admissible and that they had no plans of having petitioner take a polygraph test; thus, there was no need for a polygraph expert. (Tr. 52526). Price also
testified that there was no blood splatter evidence and, thus, no need for a bloodsplatter expert. (Tr. 526). Similarly, with respect to obtaining the services of a criminal profiler, Price testified that they were able to use the services of Ron Lax to look at the evidence and make determinations of possible avenues for the defense or other potential suspects to consider. (Tr. 52627).

When asked whether there were any other experts listed in the motion that Price felt could have assisted in the defense, Price said no. (Tr. 529). Instead, as the trial approached, Price testified that they determined that they did not need the experts listed in the motion, and, thus, decided not to file the motion. (Tr. 53132). In hindsight, Price testified that perhaps a DNA expert could have been beneficial based upon the blood found on a necklace but that such testimony would not have been necessary because the DNA evidence was not harmful to petitioner. (Tr. 532). Further, Price stated that expert testimony could not have countered the testimony of either Narlene Hollingsworth or the girls at the softball field, all of which implicated petitioner in the murders. (Tr. 53334). Thus, it is clear that none of the experts listed in the draft motion could have provided anything more than what petitioner already had. Price also testified that funding was not an issue when he decided not to employ these experts; rather it was a decision that such testimony was not necessary. (Tr. 58793)

Petitioner has attempted to prove otherwise by calling various experts at the evidentiary hearings. However, none of the testimony offered by any of these experts establishes that Price was ineffective or that the outcome of the trial would have been different had additional experts been employed. Petitioner called Dr. Tom David, a forensic odontologist, who testified that the mark on Steven Branch's forehead was, in fact, a bitemark and that it was not consistent with the dental impressions of either petitioner or his codefendants. However, David acknowledged that forensic pathologists are trained to look for bitemarks (Tr. 1070), a point also conceded by petitioner's forensic pathologist, Dr. Joseph Cohen (Tr. 1156), and that forensic odontology is not an exact science. (Tr. 107576). David also acknowledged that Dr. William Sturner, the Chief Medical Examiner for the State of Arkansas who viewed the bodies during the autopsy. is well recognized in the field of forensic pathology. (Tr. 1071). He also acknowledged the expertise of Dr. Harry Mincer in the field of forensic odontology. (Tr. 1071). He further conceded that if the mark was not, in fact. a bitemark, then the dental impressions of petitioner and his codefendants would not match the mark. (Tr. 1079).

David also acknowledged that the ideal circumstances for viewing a potential bitemark would be on tne body itself where the mark can be viewed up close. (Tr. 107172). In this case, Dr. Sturner and Dr. Dugan both viewed the bodies during the autopsy and both concluded that the mark was not a bitemark. Dr. Joseph Cohen, petitioner's own witness, testified that Even he does not consult a forensic odontologist with respect to every mark he encounters, and that if he did not recognize a mark as a bitemark, he would not consult a forensic odontologist. (Tr. 115354). Therefore, at best, petitioner can only assert that Price should have presented such testimony at trial, but such testimony would most certainly have been rebutted by the experts (i.e., Drs. Sturner and Dugan) who actually viewed the wounds in person. Moreover, any testimony in this regard would not have countered the evidence placing petitioner near the scene of the murders, including his own inculpatory statements made at the softball fields. Thus, this Court should hold that Price was not ineffective for failing to obtain the services of a forensic odontologist.

Petitioner next presented Dr. Joseph Cohen, a forensic pathologist whose testimony pertained to various aspects of the autopsy performed by Dr. Frank Peretti. However, petitioner has failed to establish how such testimony would have changed the outcome of his trial, much less how Price was ineffective. In fact, Cohen conceded that in making determinations concerning the types and causes of injuries. It is preferable to actually examine the bodies rather than rely simply on photographs. (Tr. 1150). Cohen further admitted that if a pathologist must actually render opinions based solely upon pictures, all of the pictures should be reviewed in making a determination as to the types and sources of injuries sustained. Cohen admitted that he had not reviewed all of the autopsy pictures in this case. (Tr. 1 15051). With respect to Dr. Peretti's conclusion regarding drowning, Cohen again conceded that the person who did the internal examination of the bodies is in the best position to state whether drowning was the cause of death. (Tr. 1 17981). Cohen also acknowledged that he had not seen photographs of the internal examination of the victims, (Tr. 1179), and that he had no reason to dispute that Dr. Peretti actually saw what he described in his report. (Tr. 1182). In light of this testimony, petitioner has not established either how Price was ineffective for failing to enlist the assistance of a forensic pathologist or how the outcome of trial would have been different had he done so. Moreover, Cohen's testimony Entered on his own perceptions of Dr. Peretti's findings, and the Court should recall that Dr. Peretti was extensively cross-examined at trial. Thus, the Court should find that Price was not ineffective in this regard.

Finally, petitioner presented the testimony of Neal Haskell, a forensic entomologist. Presumably, the purpose of Haskell's testimony was to establish that the time and locations of the victims' deaths were different than the State s theory of the case based upon the existence of larvae in the bodies. Haskell acknowledged the possibility that some insects in the West Memphis area carry live larvae that they deposit, thus skipping the egg stage. (Tr. 1327). Haskell also acknowledged that mosquito bites could have gone undetected due to multiple lacerations on the bodies. (Tr. 133839). Haskell further conceded that physiological responses to insect bites are different in different people such that some people could be bitten yet exhibit little, if any, signs of a bite. (Tr. 134041). Haskell also conceded that It is not uncommon for an insect bite to disappear in a short period of time, (Tr. 134142), and that It is possible that a bite would disappear after the body was dumped in sixtydegree water. (Tr. 1356). Haskell also admitted that using the absence or presence of mosquito bites is not a common tool in estimating the location of a person at the time of their death. (Tr. 1342). Haskell further acknowledged that he did not know whether there would be visible mosquito bites if the victims had received mosquito bites and then died shortly thereafter. He also stated that that would be important with respect to rendering an opinion regarding the location of death based upon the absence of mosquito bites. (Tr. 1344). Haskell also testified that if eggs were deposited on a human body before the body was submerged in water, then It would be possible that the eggs might be washed off. (Tr. 1347).

When asked what more a defense attorney could have done after the entomological evidence was not preserved, Haskell stated that a forensic entomologist still could have reviewed photographs to make determinations about the time of death. However, Haskell also acknowledged that there was nothing in the photographs he reviewed that showed any eggs, larvae, or entomological evidence sufficient to enable him to determine the type of species involved in this case. (Tr. 134950). Finally, Haskell testified that It is possible to mistake larvae with eggs, thus any conclusion regarding time of death would be dependent upon the coroner's initial determination whether the substance was egg or larvae. (Tr. 135455).

It is clear that Haskell's testimony offered nothing to establish that Price was ineffective for failing to consult a forensic entomologist. At best, Haskell's testimony illustrates that It is merely possible that a time and location of death could have been ascertained based on entomological evidence, but under cross-examination, the value of that testimony would become even less reliable. As with the testimony of petitioner's other proffered experts, Haskell's testimony Entered predominately on what was or was not done by the coroner and during the autopsy by Dr. Peretti. Moreover, Haskell's admission that his conclusions concerning time and location of death necessarily depended upon an accurate differentiation of egg versus larvae by the coroner certainly undercuts the value of his testimony even more. Finally, nothing in Haskell's testimony rebutted either the trial testimony that placed petitioner near the scene of the murders or the testimony concerning petitioner's inculpatory statements. In short, petitioner has failed to establish either that Price was ineffective for failing to pursue the assistance of a forensic entomologist or that the outcome of the trial would likely have been different had he done so.

Therefore, this Court should hold that Price was not ineffective for failing to obtain funding for experts and that the outcome of the trial would have been different had he done otherwise.

Claim 7: Counsel was ineffective for failing to object to leading questions, answers based upon conjecture, hearsay, etc.

Petitioner has painted in broad strokes an allegation that Price was ineffective for failing to object on multiple instances. However, he has failed to specify in which instances Price should have objected and for what reason. This claim is clearly conclusory and is insufficient to overcome the presumption of competence. See Elmore v. State, 285 Ark. 42, 43, 684 S.W.2d 263, 264 (1985). Furthermore, the subject of when to object is a matter of trial strategy and does not offer a basis for postconviction relief. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992); Knappenberqer v. State, 283 Ark. 210, 672 S.W.2d 54 (1984)

Therefore, this Court should hold that this claim is conclusory and that It amounts to nothing more than an attack on trial strategy.

Claim 8: Counsel was ineffective for failing to have blood tested for DNA.

Petitioner claims that his attorneys should have had blood that was found on a necklace examined to explore the possibility that DNA evidence would have helped petitioner's defense. The Court will recall that the items found on the necklace were discovered toward the end of the trial. The necklace was submitted by the State to the crime lab, where it was determined by the preliminary tests that the "spots" on the necklace were consistent with blood. The necklace was then submitted to the Genetic Design Laboratory in North Carolina where DQ Alpha typing tests were performed, resulting in the conclusion that one spot was consistent with the DQ Alpha profile of both Jason Baldwin and Stevie Branch. Additional attempts at more specific profiling were unsuccessful, and the evidence or samples were consumed in the testing process, thus no additional tests could have been done. Moreover, there were additional reasons for not pursuing this matter further.

When asked if additional tests would have benefited petitioner, Price testified that they would not have helped:

A: No sir. As a matter of fact, that necklace that came up at the end of the trial that necklace at one time had been worn by Jason Baldwin. And the police photographs shows Jason wearing that particular necklace, and the blood the initial I believe that Jason Baldwin's DNA blood typing and, I think, Michael Moore's was consistent.

I know there was because on some of the other areas where they had done some testing about blood found on the tee shirt I don't know if that was admitted at our trial or not but because there was the blood that was on the necklace that Jason was wearing was consistent with Jason's blood, we didn't think that hurt Mr. Echols at all and actually was a good explanation to it (Tr. 52122).

This decision was clearly a matter of trial strategy, and petitioner has failed to establish how Price was ineffective in this regard. Therefore, this Court should hold that petitioner has failed to establish that Price was ineffective for failing to have DNA tests performed.

Claim 9: Counsel was ineffective for failing to protect the record by requesting a mistrial or admonition when objecting to a leading question regarding a weapon.

Petitioner claims that Price failed to protect the record by requesting a mistrial or an admonition when objecting to a leading question about a weapon. Such an objection is a matter of trial strategy. Further, a mistrial is an extreme remedy and should be granted only when the error complained of cannot be cured by any other measure. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). Thus, petitioner can hardly show that the outcome of the trial would have been different had Price requested a mistrial or an admonition. Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990). Furthermore, the Arkansas Supreme Court specifically held in petitioner's direct appeal that Even if this constituted a leading question, it did not constitute reversible error. Echols v. State, 326 Ark. 917, 97071, 936 S.W.2d 509, 536 (1996).

Because petitioner can show neither deficient conduct nor prejudice, this Court should reject petitioner's claim that Price was ineffective for failing to request a mistrial or admonition.

Claim 10: Counsel was ineffective for failing to attempt to impeach Michael Carson.

Petitioner contends that Price should have attempted to impeach Michael Carson. The State's witness who implicated codefendant Jason Baldwin in the murders. This was clearly a matter of trial strategy and does not provide the basis for postconviction relief. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986) Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Further, this claim lacks merit.

At the evidentiary hearings, Price was questioned extensively about his decision not to cross-examine Carson. Price stated that he made a strategic decision not to cross-examine Carson because this Court had already ruled that Carson's testimony was not admissible against petitioner. (Tr. 67577). Price further stated that petitioner was actually able to have "the best of both worlds" because Price gave his cross-examination materials to Baldwin's attorneys who were able to use it to cross-examine Carson while enabling petitioner to continue to rely on this Court's limiting instruction regarding the admissibility of Carson's testimony. (Tr. 67880). Price also stated that attempts to destroy a witness on cross-examination. sometimes fail, thus leaving a client in a worse position. (Tr. 73840). This is exactly the type of strategic decision making that defense attorneys are forced to make everyday and exactly the type of decisions that are protected by the presumption of competence.

Therefore, this Court should hold that Price's decision not to attempt impeachment of Carson was a matter of trial strategy and that petitioner has failed to establish that Price was ineffective in this regard.

Claim 11: Counsel was ineffective for failing to argue that Officer Ridge's reference to Misskelley's confession was not inadvertent.

Petitioner claims that Price was ineffective for failing to argue that Officer Ridge's reference to Misskelley's confession was not inadvertent. Petitioner overlooks the fact that his counsel objected and requested a mistrial because Officer Ridge "blurted out" that Misskelley confessed. The request was denied, and this Court instructed the jury to ignore the statement. On appeal, the Arkansas Supreme Court upheld this Court's refusal to grant a mistrial. 326 Ark. At 981, 936 S.W.2d at 54243. Further, Price testified that he did not believe that Officer Ridge intentionally referred to Misskelley's confession; rather Ridge was simply countering the inference that he overlooked evidence. (Tr. 747).

Because Price did not believe Ridge intentionally defied this Court's order, and because Price preserved his objection and raised It on appeal, petitioner has failed to establish either that Price was ineffective in this regard or that the outcome of the trial would have been different. Therefore, this Court should reject this claim.

Claim 12: Counsel was ineffective with respect to the admission of occult evidence.

Petitioner contends that Price was ineffective for failing to move in limine to bar evidence linking petitioner to the occult and for failing to argue the proper basis for the exclusion of such evidence. While Price did not explicitly join in Baldwin's motion in limine, Price did object to the introduction of Dale Griffis's testimony concerning the trappings of the occult and Even argued on appeal that this Court erred in admitting the evidence. The Arkansas Supreme Court, however, rejected Price's argument, holding that the evidence was admissible for the purpose of establishing motive. "We have said that when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown." 326 Ark. At 957, 936 S.W.2d at 52829. Thus, Price cannot be deemed ineffective in this regard, and petitioner's arguments regarding the admissibility of this evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993) are without merit.

Petitioner also contends that Price's Rule 37 testimony is in conflict with the arguments he advanced at trial concerning the admissibility of occult evidence. Price testified that at the beginning of the trial, he did not know exactly what the State's evidence would be concerning the occult. (Tr. At 666, 67071, 727). In fact, as the Court will likely recall, the State did not even refer to evidence of the occult in its opening statement. (Trial Tr. 146976). However, Price stated that he believed any link between the occult and the murders was ludicrous. (Tr. At 667). In fact, Price testified that the State's evidence was so weak in this regard, that he was content to rebut It with his own expert witness testimony that would show how ludicrous the State's theory was. (Tr. 72728). Nevertheless, Price did object to some evidence being admitted, such as the writings taken from petitioner's room as well as other evidence that was over a year old. (Tr. 668). Thus, it was not inconsistent for Price to seek to bar any evidence regarding the occult while at the same time be prepared to counter that evidence if, indeed, he were not successful in keeping It out. In fact, petitioner would no doubt now be arguing that Price was ineffective had he not been properly prepared to counter such evidence.

Therefore, this Court should hold that Price was not ineffective with respect to his handling of the occult evidence.

Claim 13: Counsel was ineffective for not requesting a change of venue outside the Second Judicial District.

Petitioner contends that Price was ineffective for failing to move for a change of venue outside of the judicial district. Price initially moved for a change of venue from Crittenden County because of pretrial publicity. (Tr. 185). The trial was eventually held in Jonesboro, Price's hometown, which Price stated was an asset in jury selection. (Tr. 19495). However, there were additional advantages to trying the case in Jonesboro:

A: In Craighead County there's a better chance of getting a more liberal jury. There are more jurors selected from the initial pool. There are Even after the first batch that come in and try to be excused the ones left over there's generally a higher educated group. Because of ASU, the college being here, we have a lot of jurors five or ten percent with direct connections with ASU. So there's a more educated group. Because of Jonesboro being larger, you get more jurors coming from not homegrown jurors but moving in from other states and other parts of Arkansas. And there's a lot of advantages from a defense standpoint of a jury makeup based on those factors.

Q: Were all those things considered by you in making a determination not to move for a second change of venue or raise that issue again?

A: Yes, sir. The initial makeup of the Jonesboro jury is something we definitely looked at.

Q: Was that was a decision not to seek a second change of venue was It also as jury selection wore on and you started seeing the people that were selected, did that have an impact on your decision?

A: As far as we did not seek a change of venue during the middle of the trial or jury selection?

Q: Right.

A: Yeah. We didn't see any reason to make any further objection to quash the jury panel and ask for a change of venue after we started selecting the jury.

Q: Did you feel there was an advantage for you as a local attorney went to school here, grew up here, familiar with the people in the community to some extent did you feel that that provided an advantage to you and your client in selecting a jury in this community?

A: That was certainly one factor that I looked at, but I have picked juries in Randolph County. I've picked juries in Lawrence County, Jackson County. I've done 'em in Mississippi County. I've done 'em in Greene County. I've done 'em in Poinsett County. And based on the type of case that we had, l thought of the entire district Jonesboro was the best place for us to have our trial.

Q: And all of those were factors that entered into your decision not to raise a second change of venue motion?

A: Yes, sir. (Tr. 57173).

Thus, Price clearly exercised trial strategy in deciding not to seek an additional change of venue. Whether to seek a change of venue is a matter of trial strategy and, as such, does not constitute a basis for postconviction
relief. Huls v. State, 301 Ark. 572, 580, 785 S.W.2d 467, 471 (1990). Moreover, to obtain relief, petitioner must offer something to establish that the jury was not impartial. Id. Finally, Arkansas law provides that only one change of venue is permissible. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). Petitioner can cite nothing more than the existence of media coverage in support of his claim that Price should have moved for an additional change of venue.

At the evidentiary hearings, petitioner also relied heavily on the decision in Pruett v. Norris, 959 F. Supp. 1066 (E.D.Ark. 1997). His reliance was misplaced. In Pruett, the district court granted federal habeas relief, holding that Pruett was denied a fair trial based on pretrial publicity. In its opinion, the district court made various statements that petitioner used to attack Price concerning his reasons for not moving for an additional change of venue. However, the district court's granting of habeas relief was subsequently reversed by the Eighth Circuit Court of Appeals. Pruett v. Norris, 153 F.3d 579 (8th Cir. 1998). In its opinion, the Eighth Circuit rejected the district court's notion that a court should not accept at face value a juror's promise to lay aside any impressions or opinions and render a verdict based solely on the evidence. Id. at 587. In fact, the court observed in two separate instances that a defendant is not entitled to a jury that is ignorant of the facts surrounding the case. Id. at 58788. "Instead, the relevant question is whether the jurors actually seated 'had such fixed opinions that they could not judge impartially the guilt of the defendant."' Id. In this case, the record clearly establishes that the jurors were able to set aside their opinions, thus supporting Price's decision that an additional change of venue was unwarranted.

Petitioner contends that Price should have at least sought a continuance in order to allow some of the media coverage to subside. However, Price testified that such a continuance would not have been sufficient to allow the publicity to dissipate. (Tr. 298, 568). Indeed, because over seven months had passed between the time of the murders and the time of petitioner's trial, enough time had passed to allow any hostility to dissipate. See Pruett, 153F.3d at 586 (recognizing benefits of cooling off periods). In addition, Price testified that he talked with petitioner about the possibility of moving for a continuance but that petitioner was ready to go to trial. (Tr. 56769). Petitioner did not rebut this evidence at the hearings in this matter. Further, Price attended the Misskelley trial, took extensive notes in preparation for petitioner's trial, and was prepared to challenge the State's evidence, particularly because he knew that the State's evidence against petitioner was different from the evidence used to convict Misskelley. (Tr. 56869).

Therefore, this Court should hold that Price was not ineffective for failing to move for a change of venue.

Claim 14: Counsel was ineffective for failing to adequately investigate or question John Mark Byers due to a conflict of interest.

At trial, Price called John Mark Byers, the father of one of the victims, for the purpose of insinuating to the jury that Byers may have committed the offense (Tr. 596). Petitioner now contends that Price was ineffective for not questioning Byers about a prior conviction for terroristic threatening. Petitioner has sought to explain Price's failure to do so by insinuating that Price essentially represented Byers in a prior civil proceeding and was thus hampered by a conflict of interest. Petitioner's insinuations are false and unsupported by the record.

Price testified that Byers was a codefendant of clients that Price represented in a civil proceeding, but that Byers was represented by separate counsel. (Tr. 75051). Price had no other contact with Byers apart from that proceeding. (Tr. 752). Thus, there was nothing about the prior civil proceeding that caused Price to be less aggressive in questioning Byers at petitioner's trial. (Tr. 753). Moreover, Price and Lax agreed, as part of their defense strategy on petitioner's behalf, to focus on Byers as a potential suspect. Thus, Lax spent a great deal of time tracking down information that could be used against Byers. (Tr. 755).

Part of their evidence against Byers was the pocket knife that Byers had given HBO and that was later discovered to contain blood. (Tr. 75556). At trial, Price impeached Byers' credibility by attacking his prior inconsistent statements about the knife. (Tr. 756).

When asked why he did not question Byers regarding less helpful points, including Byers' prior misdemeanor conviction several years earlier for terroristic threatening, Price stated his belief that It is possible to take away some of the force of the primary points when lesser points are emphasized. (Tr. 75759). Thus, Price made the strategic decision not to focus on other areas in his examination in order to avoid weakening the stronger points. (Tr. 75859).

Because Price thoroughly cross-examined Byers, and because the questioning of witnesses is clearly a matter of trial strategy, this Court should hold that Price was not ineffective in this regard.

Penalty Phase

Claim 15: Counsel was ineffective for failing to adequately prepare and present the testimony of Dr. Moneypenny.

Petitioner takes aim at Price's handling of the preparation of Dr. Moneypenny and of his presentation of Moneypenny in the penalty phase of the trial. Specifically, petitioner contends that Price failed to review the records relied upon by Moneypenny and failed to adequately interview him in preparation for his trial testimony.

To assist him in preparing for the penalty phase, Price relied on the services of Glori Shettles, one of Lax's associates who had experience that Lax considered to be valuable in preparing mitigation evidence. (Tr. 1229). In fact, according to Lax, Shettles did more investigative work on petitioner's case than anyone else, with the exception of Lax himself. (Tr. 1227). Within two weeks of petitioner's arrest, Lax and Shettles had obtained a signed release by petitioner authorizing the release of petitioner's psychiatric records. (Tr. 123031). Upon Shettles' recommendation, Price contacted Dr. James Moneypenny, a psychologist from Little Rock, based upon the recommendations of other criminal defense attorneys from Little Rock that Moneypenny had experience in the area of mitigation. (Tr. 529). Moneypenny later interviewed petitioner prior to trial and reviewed petitioner's psychiatric records. (Tr. 530). Price reviewed these records as well. (Tr. 597). Price also confirmed that he had had discussions with petitioner about the purpose of mitigation and the evidence contained in his.psychiatric records, specifically informing him that "bad sounding information" could be elicited in order to persuade the jury to find a mitigating circumstance. (Tr. 59798). The strategy was successful because the jury found two mitigating circumstances. (Tr. 59899).

However, petitioner now attacks Price because the psychiatric records contained hearsay references comparing petitioner to Ted Bundy and Charles Manson and because Price failed to object to this information being placed before the jury. However, as Price correctly stated, the purpose of these mental records was to establish petitioner's mental state at the time of the, murders. (Tr. 699700). Thus, It was his belief as a trial lawyer that this evidence was helpful by providing a basis for the jury to find mitigating circumstances. (Tr. 706).

Indeed, this strategy was based on Price's experience as a trial lawyer a trial lawyer who had tried approximately sixty (60) criminal cases, including ten (10) to fifteen (15) murder cases, two of which involved the death penalty, in both of which Price successfully obtained a life sentence for his clients. (Tr. 504).

Furthermore, by this point in the trial, the jury had already seen abundant evidence reflecting the cruel and depraved manner in which the three victims were murdered, thus It was not as if the jury could have been shocked by any damaging evidence in petitioner's psychiatric records as to his capacity for atrocity It had already found him guilty. Price therefore concluded that what little harm might result from the introduction of such records would certainly be outweighed by the hundreds of pages indicating that petitioner had been treated for ongoing mental problems. (Tr. 77071). Price cannot be deemed ineffective in this regard.

Further, the fact that the records contained hearsay would not have barred their admission into evidence as support for Dr. Moneypenny's opinion because such information is the type reasonably relied upon by experts such as Moneypenny, and thus need not themselves be admissible. A.R.E. Rule 703. In addition, had Price elicited some information concerning petitioner's psychiatric problems, the State would most certainly have been entitled to inquire about these statements.

Therefore, this Court should hold that Price was not ineffective with respect to his handling of the testimony of Dr. Moneypenny.

Claim 16: Counsel was ineffective for failing to properly educate the jury on issues involved in capital sentencing.

Petitioner claims that Price failed to properly educate the jury on issues involved in capital sentencing. However, petitioner fails to specify what Price did not do and how the outcome would have been different. Therefore, this claim is conclusory and does not entitle petitioner to relief. Elmore, supra. Furthermore. a review of the record demonstrates that Price did, in fact, educate the jury about issues involved in capital sentencing beginning with the voir dire proceedings.

As this Court will recall, the voir dire portion of this case spanned four (4) days during which prospective jurors were questioned extensively about pretrial publicity and what they could expect if they were selected. Beginning with juror Roebuck, the first juror selected, Price walked through the procedural aspects of the guilt phase and the penalty phase (Voir Dire Tr. 6366). This continued throughout the voir dire proceedings, as did explanations by the Court concerning the trial procedures, as the Court will likely recall.

Therefore petitioner has failed to establish how Price was ineffective in this regard, and this Court should deny relief on this claim.

Claim 17: Counsel failed to develop and present mitigating evidence.

Petitioner vaguely asserts that Price did not know the meaning of mitigation and failed to prepare and present available mitigating evidence. Petitioner fails, however, to state what that evidence was or how It would have changed the outcome of his trial. He further forgets that Price put on testimony by Dr. Moneypenny, Joe Hutchinson (petitioner's natural father), and Jack Echols (petitioner's adoptive father). This strategy was successful because the jury found two mitigating circumstances: (1) that the murders were committed while petitioner was acting under extreme mental or emotional disturbance; and (2) that the murders were committed while petitioner was acting under unusual pressures or influences or under the domination of another person. The fact that the jury still chose to impose the death penalty does not render Price ineffective. Moreover, Price pursued the mitigation issue on appeal, but the supreme court rejected It 326 Ark. At 94143, 936 S.W.2d at 52021. In short. Petitioner has failed to point to any additional mitigating evidence that Price should have presented, and thus this claim is conclusory and without merit.

Further, petitioner's assertion that Price did not know the meaning of mitigation" and believed that mitigation is "any evidence bad about the Defendant" (Petitioner's brief, at 27) is false. When asked by petitioner's counsel how he would define "mitigation," Price responded, "Mitigation evidence is any evidence pertaining to support the saving the life of your client . . .[S]sometimes it's good and sometimes it's bad. In connection with this issue, yes, sir, the mental health or the mental state aggravator mitigator, sometimes It comes across as bad information, certainly." (Tr. At 70102). Thus, It is clear that Price knew very well the meaning of "mitigation" and properly presented testimony to that effect.

Therefore, this Court should find that Price properly presented mitigating evidence on petitioner's behalf and that this claim is meritless.

Claim 18: Counsel was ineffective for failing to object to the jury instruction that constituted a comment on the evidence and an instruction to return the death penalty.

Petitioner next contends that Price failed to object to a jury instruction that he contends constituted a comment on the evidence and resulted in a mandatory death sentence. This Court instructed the jury in accordance with Ark. Code Ann. § 54603(a), and Price contended on appeal that the instruction essentially resulted in a mandatory death penalty. Price's argument was rejected by the Arkansas Supreme Court. See Echols, 326 Ark. At 985, 936 S.W.2d at 544. Counsel cannot be considered ineffective for failing to make a meritless objection at trial. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988)(counsel not ineffective for failing to make objection where no basis for objection existed).

Therefore, this Court should hold that Price was not ineffective for failing to object to this instruction.

Claim 19: Counsel was ineffective for failing to request a change of venue outside the Second Judicial District.

Petitioner again asserts that Price failed to request a change of venue during the penalty phase. Respondent will not repeat the arguments presented previously on this point but instead urges this Court to reject this contention for the reasons set forth above.

Appeal

Claim 20: Counsel was ineffective for failing to preserve a cumulative error argument.

Petitioner alleges that Price was ineffective for failing to preserve a cumulative error argument for appeal. A cumulative error argument is successful only in rare and egregious cases. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993). Petitioner has failed to establish how his case constitutes one of those rare and egregious cases.

Therefore, this Court should hold that Petitioner is not entitled to relief on this claim.

Claim 21: Counsel was ineffective for failing to request transcription of the voir dire process.

Petitioner contends Price was ineffective for failing to request that the jury selection process be transcribed so It could have been reviewed on appeal. Respondent will not repeat the arguments previously presented with respect to this issue but urges this Court to reject this claim for all of the reasons set forth above.

Claim 22: Counsel was ineffective for failing to conduct post-trial interviews of jurors regarding potential threats.

Petitioner contends that Price should have conducted post-trial interviews of jurors to determine whether they were somehow tainted by threats and impermissible contacts. When questioned about the juror contacts and the method by which this Court handled the situation, Price testified that there was nothing from either the responses of the jurors or with the way in which the inquiry was conducted that made him feel that the contacts affected or prejudiced the jury one way or the other. (Tr. 773). Thus, Price stated that he believed that there was nothing to be gained from attempting to interview the jurors after trial. (Tr. 775). Petitioner has failed to establish how Price was ineffective for not pursuing something that he did not believe, based upon his perceptions of the events as they occurred, would be fruitful. Nor has Petitioner established how the outcome would have been different had Price done so. Significantly. Petitioner has not presented testimony from any of the jurors in support of this claim. His assertion that he has been forbidden by this Court to do so is utterly without merit.(Tr. 713).

Therefore, this Court should hold that Petitioner has failed to establish that Price was ineffective for failing to interview the jurors after the conclusion of the trial.

Claim 23: Counsel was ineffective for failing to preserve for appeal a claim concerning the admissibility of excerpts from a treatise.

Petitioner contends that Price was ineffective for failing to lay a foundation for a particular treatise to which Robert Hicks, petitioner's occult expert, could refer in seeking admission of the writings of Ken Lanning, an FBI expert, and by not arguing that more than one quotation in the publication contradicted the State's theory of the case. As the Arkansas Supreme Court held in petitioner's direct appeal, Petitioner could not have been prejudiced because the information that he sought to elicit was later given to the jury. 326 Ark. At 959, 936 S.W.2d at 53031. Thus, Petitioner is not entitled to relief on this claim.

Claim 24: Counsel was ineffective for failing to raise on appeal the alleged inadequacy of this Court's questioning of jurors concerning threats.

Petitioner contends that Price was ineffective on appeal for failing to raise the alleged inadequacy of this Court's questioning of the jurors concerning the content of threats received during the trial. Petitioner can show neither defective conduct nor prejudice with respect to this claim.

First. Price raised approximately thirty (30) points on appeal in an effort to have petitioner's conviction and sentence reversed. Price did not have a duty to raise every conceivable argument on appeal in order to render effective representation. Jones v. Barnes, 463 US 745, 75254 (1983). Thus, Petitioner can hardly claim that Price's decision not to raise this claim was constitutionally deficient. Second, Petitioner can hardly argue prejudice because the Arkansas Supreme Court rejected on appeal Baldwin's contention that this Court should have granted a mistrial with respect to the existence of the threats. 326 Ark. At 99091, 936 S.W.2d at 54748. The supreme court's ruling clearly establishes that petitioner's claim could not have been successful if raised on appeal.

Thus, this Court should hold that Petitioner has failed to state a basis for relief on this claim.

Claim 25: The aggravating circumstance found in this case is unconstitutional.

Petitioner contends that the aggravating circumstance found in this case, i.e., especially cruel and depraved, is unconstitutional. It is well settled that Rule 37 does not provide a basis for rearguing points already settled on direct appeal. Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994). This issue was raised and rejected in petitioner's direct appeal. 326 Ark. At 98588, 936 S.W.2d at 54446.

Therefore, this Court should hold that Petitioner is not entitled to relief on this claim.

Claim 26: The sheriff's office discouraged a favorable witness from testifying.

Petitioner contends that the sheriff's department discouraged a favorable witness from testifying, allegedly in violation of Brady v. Maryland, 373 US 83 (1963). This claim is not cognizable in a Rule 37 proceeding and is also conclusory. Thus entitling Petitioner to no relief.

First, an alleged Brady violation is not cognizable under Rule 37 because Rule 37 does not ‘provide a method for the review of mere error in the conduct of the trial or serve as a substitute for raising issues at trial or on appeal.' Taster v. State, 297 Ark. 627. 630, 764 S.W.2d 447. 449 (1989); Burnett v. State, 293 Ark. 300. 737 S.W.2d 631 (1987)(allegation of prosecutorial misconduct for failure to disclose evidence not sufficient to render conviction void for purposes of Rule 37 proceeding).

Second, a conclusory claim does not entitle Petitioner to postconviction relief. As Rule 37.1(e) provides, Lithe petition will state in concise, nonrepetitive. Factually specific language, the grounds upon which It is based ...." (emphasis added). Petitioner's claim, Even if cognizable, is entirely conclusory, is unsupported by any facts, and should therefore be dismissed. At the evidentiary hearings. Petitioner presented no evidence that the sheriff's office discouraged anyone from testifying. Such an unsubstantiated claim does not Even provide a proper basis for a hearing, much less for postconviction relief. Bryant v. State. 323 Ark. 130, 132, 913 S.W.2d 257, 258 (1996); Tavior, 297 Ark. At 630, 764 S.W.2d at 449; Smith v. State, 290 Ark. 90, 92, 717 S.W.2d 193, 194 (1986).

Therefore, this Court should hold that Petitioner is not entitled to relief on this claim.

Remaining Grounds

Petitioner has asserted a number of claims at the conclusion of his petition. It is well established that a Rule 37 proceeding is 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, supra.

Therefore, this Court should hold that Petitioner is not entitled to relief on the remaining grounds.

CONCLUSION

WHEREFORE, for all of the reasons stated herein and in respondent's previous responses, petitioner's petition for postconviction relief should be denied.