VS.                   NO. CR 93-450 & 450A



        Now on this 30th day of July, 2001, comes on for findings of fact and final order of the Rule 37.5 post-conviction petition filed by Damien Wayne Echols, through his attorneys, Edward A. Mallett, Houston, Texas, Alvin Schay, Little Rock, Arkansas, and Barry C. Sheck, 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, including proposed precedents, and makes the following findings and conclusions:



        Damien Wayne Echols was tried and convicted in the Western District of Craighead County 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. The petition for post-conviction relief under Rule 27.2 and 37.5 followed the denial of writ of certiorari before the U.S. Supreme Court alleging among other claims that he was deprived due process of law and right to effective assistance of counsel both at trial and on appeal.

        This Court denied the petitioner post-conviction relief in June, 1999, and he appealed. On direct appeal, the Arkansas Supreme Court reversed and remanded, directing this Court to make further “factual findings and legal conclusions only as to the issues raised by Echols on appeal, as all other claims raised below but not argued on appeal are considered abandoned.” Echols v. State, 344 Ark. 513, 42 S.W.3d 467, 471 (2001) (Echols II (emphasis added); see also id., 2001 WL 630524, *1 (supp. opin. on denial of rehg.) (per curiam) (“We see no benefit to anyone involved to order the trial court to make specific written findings and conclusions on each of the forty-six individual claims raised by Echols in his petition, as he has already chosen which issues to pursue on appeal.”). Thus, having considered the appellate briefs in Echols II and all the pleadings and proceedings from the Rule 37 hearing and the petitioner's trial, the Court makes the following findings of fact and conclusions of law as to those claims raised by the petitioner in Echols II, lettered Although J as are the points in his appellate brief. The Court will refer to the petitioner's abstract from his appellate brief in Echols II as necessary.



A.        Remand for further findings.

        The petitioner prevailed on this point in the Supreme Court, and this order satisfies his request for further findings as required by that court's opinion.

B. & C.        Conflict Claims.

        To the extent that the petitioner's second and third appellate points sought further findings, as noted above, he prevailed, and this order satisfies his request for further findings as required by the Supreme Court's opinion. In order for the petitioner to prevail on a claim that his counsel

labored under a conflict of interest sufficient to have deprived him of his Sixth Amendment right to counsel, the petitioner must show an actual conflict and an adverse impact on his defense. See, e.g., Johnson v. State, 321 Ark. 117, 123-24, 900 S.W.2d 940, 944 (1995). His burden on a claim of financial conflict is no lighter than that required for claims of representation conflict. E.g., Dumond v. State, 294 Ark. 379, 390-91, 743 S.W.2d 779, 785 (1988) (per curiam). While he need not show prejudice under Strickland v. Washington, 466 U.S. 668 (1984), to prevail under Cuyler v. Sullivan, 446 U.S. 335 (1980), he still has the substantial burden to show an actual conflict and an adverse impact on his defense. E.g, Ingle v. State, 294 Ark. 353, 354, 742 S.W.2d 939, 940 (1988). Moreover, while conflict and adverse-impact demonstrations need not also demonstrate the reasonable probability of a different outcome - the prejudice prong of Strickland - such a conflict and an impact must nevertheless be real and demonstrable, not theoretical. See, e.g., Johnson, 321 Ark. at 124, 900 S.W.2d at 944. His burden to show a conflict is perhaps categorically different, but not necessarily lighter than that to show a Strickland ineffective-assistance claim. Cf. United States v. Acty, 77 F.3d 1054, 1057 n.3 (8th Cir.), cert. denied, 519 U.S. 872 (1996) (noting that a potential conflict claim, while inadequate under Cuyler, might state a Strickland claim). For the reasons explained below, the Court finds that the petitioner's conflict claims fail.

 1.  The HBO Contract Claim.

        First, no actual conflict existed. The petitioner and his family supported the filmmaking project. The petitioner was 18 years old and could contract for himself. (A. 729) These facts alone are a far cry from the principal case, United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981), to which the petitioner points. There, F.Lee Bailey,

contracted to write a book about Hearst's criminal trial. Id., 638 F.2d at 1192 & n.2. That is not this case by any stretch. While the petitioner points to counsel's decision not to file a motion for funds and to his negotiations with the filmmakers, he neglects to note that counsel did so in service of the petitioner's defense, not to write a book or make a movie. This fact illustrates the chief flaw in the petitioner's conflict theory that pursuit of a contract with HBO created a conflicting loyalty. To the contrary, it was loyalty to the petitioner that drove counsel's efforts as to the contract. That counsel candidly admitted that filmmaking might provide him some “personal long-range pecuniary” gain hardly states a conflict.1

        Second, the film-making agreement benefited the petitioner's defense; it did not adversely affect his counsel's performance. Both the filmmakers and counsel testified to this effect. Moreover, counsel also testified that the filming affirmatively benefited the petitioner in two concrete ways: it provided a source of funds for the defense without exposure of defense strategy to the prosecution, and it provided counsel with tapes of the proceedings that could be viewed daily to asses the progress of the trial. The petitioner at best makes a case of hypothetical conflict that simply did not come to pass.

        In sum, the petitioner's claim depends upon conclusions that the law creates a per se conflict standard and that his counsel were media- and money-hungry lawyers seeking self-aggrandizement. Neither, however, is supported in the law or the record. The law provides no


1While counsel paid himself about $1,900, from the film-contract funds, he did so after the trial concluded for expenses that he already had incurred in the petitioner's defense. (A. 681-83)

per se rule, even against contracts providing for literary rights to counsel's sole benefit, see Dumond, 294 Ark. at 390, 743 S.W.2d at 785, which was not the case here at all. The record shows that counsel acted in the petitioner's interest and his defense was aided, not impeded, by the filmmaking contract. For all these reasons, his claim is rejected. In addition, Echols has continued to receive benefits from the film contract to include pro-bono attorneys of national recognition and mass publicity, with defense funds being raised at the present time for further efforts to reverse his conviction. There is no legal procedure for this Court, that awarded attorneys substantial funds for Echols' defense, to require an accounting for the defense funds that have been and are being raised for Echols' benefit.

 2. Simultaneous and Successive Representation Conflicts

 a. Michael Carson

        Michael Carson testified at the petitioner's trial against the petitioner's co-defendant, Jason Baldwin, saying that Baldwin had admitted the killings to Carson. This Court instructed the jury on accomplice liability, and it required the jury to segregate the evidence against the petitioner from that against Baldwin. See Echols v. State, 326 Ark. 917, 982, 936 S.W.2d 509, 543 (1996), cert denied, 520 U.S. 1244 (1997) (Echols I). This Court noted this fact at the Rule 37 hearing, and the petitioner's trial counsel explained that, because Carson's testimony was not admissible against the petitioner, Carson did not have to be cross-examined by the petitioner's lawyers. (A. 762-63) Thus, the petitioner can have no complaint with Carson's testimony at all, much less with his counsel's decision not to cross-examine him. A conflict in these circumstances was simply not possible.

        There are additional reasons to reject the conflict claim as to Carson. First, the decision not to impeach Carson was strategic because counsel had no reasons to do so, as his testimony was not admitted against the petitioner. Indeed, for petitioner's counsel to have cross-examined Carson after Baldwin's counsel had done so would have suggested a connection between the petitioner and Carson's testimony about Baldwin's role in the crimes that the jury otherwise was instructed not to make. That counsel would avoid doing so is perfectly understandable. Additionally, counsel testified at the Rule 37 hearing that he had no information that would be valuable impeachment and that his co-counsel would have cross-examined Carson if necessary. (A. 762) See also, Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir. 1990) (“The mere fact . . . that one of Simmon's lawyers in the state trial court had previously represented a person later called as a prosecution witness against Simmons, does not suffice to entitle Simmons to relief.”); Johnson, 321 Ark. at 123-26, 900 S.W.2d at 944-45 (petitioner failed to show that counsel acted in favor of former client, who was a potential witness, to petitioner's detriment). It should also be noted that Echols had the services of two court-appointed attorneys. No effort was made to discredit Mr. Scott Davidson or testimony developed at post-trial hearings concerning his representation of Echols.

        Second, as the Seventh Circuit has explained in a similar context, to allow defendants to succeed on a Cuyler claim as to one lawyer when multiple lawyers represented them is to permit them “to take two bites at the apple simply by showing that one of the lawyers was somehow conflicted[.]” Stoia v. United States, 190 F.3d 392, 399 (7th Cir. 1997). Finally, Carson did not testify unimpeached. Baldwin's counsel cross-examined him at length. (A. 88-91, 94) For all these reasons, the petitioner's claim as to Carson is rejected.

 b. John Mark Byers

        This claim fails for several reasons as well. First, Cuyler does not apply, because, according to testimony at the Rule 37 hearing, Byers was a co-defendant of counsel's client in a separate civil proceeding and was represented by separate counsel. Thus, the petitioner's counsel had no duty to Byers. (A. 524-25, 765-66) Second, the conflict that the petitioner alleges is dubious at best. Unlike the direct representational claim as to Carson, his claim here is far more tenuous. He posits that because Byers was a witness for counsel's client in a civil proceeding before this Court sitting as fact finder, counsel had an interest in Byers' credibility in the civil proceeding that prevented him from fully pressing a case against Byers in the petitioner's criminal trial. The claim is predicated upon the false assumption that this Court would consider evidence from petitioner's criminal trial in deciding the credibility of a witness in a separate civil proceeding. The law is to the contrary, see, e.g., Harmon v. State, 340 Ark. 18, 28-29, 8 S.W.3d 472, 478-79 (2000) (presumption that judge will consider only competent evidence), and, rest assured, this Court followed the law.

        Moreover, even if this Court were to consider petitioner's would-be Cuyler claim as one alleging Strickland ineffective assistance, it fails. Counsel hardly could have been deficient for failing to act on a presumption that the Court would act contrary to law. Cf. Monts v. State, 312 Ark. 547, 549, 851 S.W.2d 432, 434 (1993) (counsel cannot be found ineffective for failing to make an argument that has no merit). Moreover, counsel provided tactical reasons for his examination of Byers, and tactical decisions such as what witnesses to call and how to question them cannot support claims of ineffective assistance. E.g., Johnson, 321 Ark. at 131, 133, 900

S.W.2d at 948, 949. For all these reason, the petitioner's conflict claim with respect to Byers is rejected.

D.        Byers' Contract Claim

        The petitioner has been foreclosed from reopening the evidence in this proceeding to pursue this claim further. Echols II, 344 Ark. at 519, 42 S.W.3d at 471. Moreover, he could not obtain relief even if he pursued the matter further than he did at the original proceeding. The posture of the issue in this case is collateral, on review of the adequacy of defense counsel's representation vis-à-vis Byers as to impeachment. Even if Byers had a contract with the filmmakers, that would hardly demonstrate that petitioner's counsel suffered from a conflict as to Byers or was otherwise ineffective in examining him about it. For all the reasons the Byers conflict claim cannot prevail explained at point C.2.b., supra, this claim is also rejected.

        Finally, this Court reviewed the contracts in camera and concluded that they were not germane to the petitioner's Byers conflict claim. They say nothing about the petitioner's counsel or his alleged conflict with Byers.

E.        Apparent Conflict Claim

        The petitioner has briefly recast his HBO conflict claim as one allegedly so apparent as to have required a sua sponte resolution at trial in light of Wood v. Georgia, 450 U.S. 261 (1981). This claim apparently was raised by citation to Wood in a string cite along with Cuyler in the petitioner's post-hearing brief in which he asked for a relaxed standard for evaluating his conflict claim; he then briefed the point on appeal in Echols II.

        Wood, however, does not support relief. First, the circumstances under which the United States Supreme Court remanded for a hearing on an apparent-conflict claim in Wood are so

different than the circumstances of his case that any reliance upon that case is misplaced. Wood involved direct review of the jail sentences of the employees of an adult bookstore that resulted from the revocations of their probationary sentences for their failures to pay their fines pursuant to their convictions for distributing obscene materials. The employees were all represented by one lawyer who also represented the bookstore, and the employees and the sentencing court all believed that the bookstore would pay their fines. Wood, 450 U.S. at 266-68. Wood's due-process analysis based on the unique facts of that case, id. at 269-74 (rather than the Sixth Amendment analysis of Cuyler), are inapposite. The Supreme Court rejected Justice White's suggestion in dissent that the opinion exceeded Cuyler. Wood, 450 U.S. 272 n.18. Denying that the due-process decision it reached in Wood was foreclosed by the Sixth Amendment rationale of Cuyler is hardly a holding that every Cuyler claim also presents a due-process, apparent-conflict claim, regardless of the facts or procedural posture of the case.

        Second, no apparent conflict was present in this case that would warrant the extraordinary (and apparently unique) automatic remand resorted to in Wood as a due-process matter. The petitioner's case bears no resemblance to Wood. His effort to suggest comparisons because of counsel's use of experts without state funding and his agreement to the use of cameras in the courtroom misses the mark. The relevant comparison is to who hired the lawyers. While the employees in Wood were hired for employment that would subject them to criminal liability for violating obscenity laws and were provided retained counsel for that very reason by their employer, the petitioner, on the other hand, was not hired by HBO to commit murders, for the prosecution of which HBO would provide him its own counsel for his defense. Whether such an arrangement is even imaginable outside the realm of arguable First Amendment conduct such as

that which was at issue in Wood, such an arrangement did not remotely exist here. The petitioner's counsel was appointed, and HBO came to the case long after the fact of the crimes. Thus, even if the HBO-contract conflict claim had any merit - which for all the reasons explained at point C.1, supra, the Court finds that it does not - it did not rise to a due-process, apparent-conflict claim under Wood. Sorenson v. State, 6 P.3d 656,665-66 (Wyo. 2000), cert. denied, 121 S.Ct. 818 (2001) (Wood remand not necessary although defendant's trial counsel previously represented victim who testified against defendant).

F.        Ineffective-Assistance Claims

1. Introduction

        The petitioner on appeal alleged that his trial counsel, Val Price, provided ineffective assistance in several respects. The Arkansas Supreme Court in Nooner v. State, 339 Ark. 253, 257, 4 S.W.3d 497, 499-500 (1999), reiterated the controlling legal standards.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced his defense. Unless the petitioner makes both showings, it cannot be said that the conviction [or sentence] resulted from a breakdown in the adversarial process that renders the result unreliable. In other words, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the fact finder would have had a reasonable doubt respective guilt [or sentence] in that the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

Id. (internal citation omitted).

        Courts indulge in a strong presumption that counsel's performance fell within the range of “reasonable professional assistance” and reviews ineffective assistance claims making every

effort to avoid “the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. Thomas v. State, 330 Ark. 442, 447, 954 S.W.2d 255, 257 (1997). Trial counsel is presumed competent within a wide range of professional assistance, e.g., Wainwright v. State, 307 Ark. 569, 574, 823 S.W.2d 449, 451 (1992), and that the 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). Matters of trial strategy or tactical decision of trial attorneys, even if later proven to be improvident, do not render trial counsel's performance ineffective. E.g., Dunham v. State, 315 Ark. 580, 583, 868 S.W.2d 496, 498 (1994).

 2. Experts

        The petitioner argues that counsel was ineffective for failing to “select and use appropriate experts” in his defense. He contends that counsel should have hired a criminal profiler, a forensic odontologist, a forensic entomologist, and a forensic pathologist as expert witnesses to corroborate his claim of innocence, in addition to the psychiatrist, the cult expert, the medical expert, and the jury consultant that he used at trial. His claim is meritless.

        Trial counsel must use his own best judgment in making the determination of which witnesses will be beneficial to his client, and counsel's decision not to call particular witnesses is “a matter of professional judgment which experienced advocates could endlessly debate[.]” Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996). “[T]he fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself

proof of counsel's ineffectiveness.” Id. (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). “The defendant is not entitled to have every possible witness testify, and the fact that a petitioner can allude to other potential witnesses is not in itself proof of counsel's incompetence.” Burnett v. State, 293 Ark. 300, 304-05, 737 S.W.2d 631, 634 (1987). That is true even when the witnesses are forensic experts. See Helton v. State, 325 Ark. 140, 924 S.W.2d 239, 243-44 (1996); see also Dumond, 294 Ark. at 387, 743 S.W.2d at 783.

        The record indicates that counsel called at least four experts in petitioner's defense. The allegation that counsel was ineffective for choosing not to call others cannot succeed because the decision regarding which witnesses to call is a matter of professional judgment that cannot support an ineffective-assistance claim. Even so, counsel explained his reasons for not calling additional experts in his testimony at the Rule 37 hearing. He noted that he had the assistance and advice of Ron Lax, an experienced investigator, in formulating defense strategy, including the use of experts. (A. 715-17). Counsel also stated that he contacted a forensic pathologist who was asked to review the evidence for anything that might be helpful to the defense. However, counsel chose not to call the pathologist because he could not provide any favorable information. (A. 717) Regarding his decision not to call a forensic odontologist, counsel testified that he had interviewed jurors in a separate case where an odontologist had been called as an expert and found that the jurors “didn't put any stock in his testimony at all.” (A. 742-43) Counsel also testified that although he consulted with Dr. Chris Sperry, he did not receive favorable information from him about the time of death of the victims and that he did not need a criminologist because he believed the fiber evidence in the case could be adequately discounted without a defense expert. (A. 717-19) Counsel ultimately testified that, in hindsight only, a DNA expert might have been helpful,

but that the State's DNA evidence simply did not harm the defense. (A. 720) Counsel's explanations during extensive examination on the use of experts indicate that he used his sound professional judgment in choosing not to call other expert witnesses - judgment that should not be retrospectively deemed outside the wide range of professional assistance. This Court finds that counsel was not deficient in this respect.

        Moreover, the petitioner has failed to carry his burden of proving that there is a reasonable probability that the trial's outcome would have been different had counsel called the experts he proffered at the Rule 37 hearing as defense witnesses. The outcome would not have been different because the value of his proposed experts to his claim was discredited at the Rule 37 hearing. His proposed experts were discredited at the hearing on cross-examination (A. 817-67, 894-902, 920-35, 941-42, 984-92, 993), and the State's own witnesses rebutted much of their testimony. (A. 999-1021) The petitioner's chief expert, Turvey, testified, for example, that his report did not take into account the trial testimony because it was not important to his analysis of the physical evidence. (A. 828)

        This Court, however, must evaluate this claim in light of the trial testimony, which including the petitioner's admissions to third parties. Expert swearing matches that the petitioner lost at the hearing do not support a reasonable probability that the outcome of his trial would have been different had his counsel attempted the same thing there. Because the petitioner has shown neither deficient lawyer nor prejudice his expert claim is rejected.

 3. Voir Dire

        This claim fails because the petitioner did not prove that any juror was actually biased against him. To prevail on his claim that counsel provided ineffective assistance during jury selection,

the petitioner must first overcome the presumption that jurors are unbiased by demonstrating that an actual bias held by the jurors was sufficient to deny him a fair trial. E.g., Tackett v. State, 284 Ark. 211, 214, 680 S.W.2d 696, 698 (1984); see also Isom v. State, 284 Ark. 426, 429, 682 S.W.2d 755, 757 (1985) (per curiam) (petitioner has burden to show juror bias to show prejudice from counsel's failure to object to juror). He cannot prevail on his claim because he has not proven that any juror maintained an actual bias against him. Additionally, courts will not declare as ineffective counsel's strategic decisions, even bad ones, on how to select a jury. See Johnson, 321 Ark. at 131, 900 S.W.2d at 948. Counsel considered pretrial publicity, along with many concerns, in his voir dire strategy, as his hearing testimony demonstrated. (A. 721-29) His approach seated fair and impartial jurors, as excerpts of voir dire illustrate. (A. 498-501)2 Thus, for all of the foregoing reasons, this claim is rejected.

 4. Occult Evidence

        The petitioner contends that counsel was ineffective for failing to object to the State's introduction of expert witness testimony regarding the occult based on Daubert v. Merrell-Dow Pharmaceuticals, Inc., 590 U.S. 579 (1993). He apparently contends that this Court would have excluded the State's expert testimony regarding the occult if counsel had objected on the basis of Daubert. He is mistaken. Indeed, whether such an objection could have succeeded at trial is doubtful at all, considering the Supreme Court's determination on direct appeal that the occult


        2This reference is to the State's post-hearing brief as abstracted in Echols II because that brief details several voir dire responses and there is no abstract of voir dire in the petitioner's appellate brief, although he filed a 10-page supplemental abstract of voir dire.

evidence went to show motive, which is broadly admissible. See Echols I, 326 Ark. at 957, 936 S.W.2d at 528-29.
3 Moreover, even if a Daubert objection would have succeeded at trial (and making one could not be said to be a tactical decision) that only takes the petitioner to the prejudice prong of Strickland - whether it is likely that the exclusion of expert occult evidence probably would have changed the outcome of the trial. The Court finds that, even had a Daubert objection been made and sustained, there is not a reasonable probability that the jury would have acquitted him due to his admission of the crimes. See Echols, 326 Ark. at 938, 936 S.W.2d 518. Thus, the petitioner has not shown that counsel was constitutionally ineffective, see generally Nooner, 339 Ark. at 257, 4 S.W.2d at 499-500, and this claim is rejected.

 5. Venue

        Prior to trial, counsel requested and received a change of venue from Crittenden County to Craighead County. (A. 835-36) The petitioner contends that counsel was ineffective for failing to move for a second change of venue to a location outside of the Second Judicial District due to pretrial publicity. The trial was eventually held in Jonesboro, counsel's hometown, which he stated was an asset in jury selection. (A. 835-36) Counsel also made the following statements at the Rule 37 hearing regarding the advantages of conducting the trial in Jonesboro:


        3While the Arkansas Supreme Court has only recently expressly adopted Daubert, see Farm Bureau Mutual Ins. Co. v. Foote, 341 Ark. 105, 115, 14 S.W.3d 512, 519 (2000), the Court had noted, even before the petitioner's trial, that Daubert supported the same conclusions it had reached in its own seminal case in this area, Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). See Jones v. State, 314 Ark. 289, 294, 862 S.W.2d 242, 245 (1993).

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 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 ether states and other parts of Arkansas. And there's a lot of advantages from a defense standpoint of a jury makeup based on these 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, I 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.

(A. 736, Rule 27 hearing T. 641-43)

        The foregoing excerpt from the Rule 37 hearing shows that counsel 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 post-conviction relief. E.g., Huls v. State, 301 Ark 572, 580, 785 S.W.2d 467, 471 (1990. Moreover, to obtain relief, the petitioner must prove that the jury was not impartial. See id. Because the decision whether to seek a change of venue is a matter of trial strategy and the petition has failed to show that his jury was not impartial, this claim is rejected.

        Additionally, Arkansas law provides that only one change of venue is permissible. See Ford v. Wilson, 327 Ark. 243, 248, 939 S.W.2d 258, 260 (1997). As noted above, counsel requested and received a change of venue. Thus, had he asked for another, his requested would have been denied. Counsel cannot be deemed ineffective for failing to make a motion that is without merit. Cf. Monts, 312 Ark. 1t 549, 851 S.W.2d at 434 (counsel cannot be found ineffective for failing to make an argument that has no merit).
 6. DNA Testing

        The petitioner contends that counsel was ineffective for failing to have independent DNA tests performed on blood found on several items. As to the necklace, this Court found in its first order that counsel could not have sought independent DNA testing because no material remained that could be tested a second time and the results at hand were not harmful to petitioner: in fact, they were beneficial to him. Because counsel could not have had independent DNA testing conducted even had he wanted to, he cannot be deemed ineffective for not seeking to have the tests performed.

        Moreover, the decision not to have independent DNA tests conducted cannot support reversal unless it is shown that any competent attorney would have sought to have the tests conducted under the same circumstances. E.g., Helton, 325 Ark. at 151, 924 S.W.2d at 246. The petitioner has not offered that proof, and given the facts of this case, he could not do so. To the contrary, counsel testified at the Rule 37 hearing that, had the states blood-DNA evidence showing a match between a victim and Jason Baldwin been admitted, that would have been favorable to the petitioner and, therefore, counsel did pursue a DNA expert at that point. (A. 720) The petitioner has filed to show that the outcome of the trial would have been different had the tests been performed. Thus, the petitioner has satisfied neither prong of the Strickland test, and his claim is rejected.

 7. Punishment

        For his final allegation of ineffective assistance, the petitioner contends that counsel was ineffective for allowing his own witness to testify in the punishment phase that the petitioner could be compared to Ted Bundy and Charles Mansion. Counsel testified at the Rule 37 hearing, however, that the purpose of the petitioner's mental-health records was to establish his mental state at the time of the murders. (A. 771-72) Thus, it was counsel's belief as a trial lawyer that this evidence was helpful by provided a basis for the jury to find mitigating circumstances. (A. 773-74) Indeed, this strategy was based on counsel's experience as a trial lawyer in many cases, two of which involved the death penalty and in both of which he successfully obtained life sentences for his clients. (A. 714) 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 the

petitioner's psychiatric records as to his capacity for atrocity it had already found him guilty. Counsel 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 the petitioner had been treated for ongoing mental problems. (A. 791-92) Counsel was not ineffective in this regard.

        Additionally, 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. See A.R.E. Rule 703 (2000). Moreover, had counsel elicited some information concerning the petitioner's psychiatric problems, the State would most certainly have been entitled to inquire about these statements. Current counsel's dispute with the efforts of trial counsel reflect only hindsight criticism, not Strickland error. The claim is rejected.

G.        Recusal

        On direct appeal, the Supreme Court rejected the petitioner's claim that this Court needed to recuse from hearing and deciding his petition. See Echols II, 344 Ark. at 519-20, 42 S.W.3d at 471-72.

H.        Jury Threat Claim

        The petitioner seeks to develop a record and, no doubt, some claim for relief, based on allegations of a threat or threats to a juror or jurors. Although this matter was addressed on direct appeal as to his co-defendant, see Echols I, 326 Ark. at 990-91, 936 S.W.2d at 547-48, he complains that this Court indicated that an inquiry of the jurors would be prohibited and faults the Court for being mistaken about the law of such inquiries. To the contrary, this Court said only

that it had “some question about a lawyer after the fact going out and interviewing jurors[,]” but added that, “I guess you can, but it might be a[n] ethical problem involved.” (A. 776) The petitioner's counsel responded, “[t]hat's not a point I am raising in this conversation[,]” and went on with further examination. (A. 776) Thus, this claim is foreclosed either by the opinion on direct appeal or by the petitioner's failure to develop it at the first round of hearings in this matter. As previously noted in this order, the petitioner has been foreclosed from further expeditions to prove his claim or make new ones in this remand. See Echols II, 344 Ark. at 519, 42 S.W.3d at 471.

I.        Aggravating Circumstances Claim

        A defendant may not raise a direct challenge to his conviction in a Rule 37 proceeding. See, e.g., Dunham, 315 Ark. at 581, 868 S.W.2d at 497; O'Rourke v. State, 298 Ark. 144, 153, 765 S.W.2d 916, 921 (1989) (per curiam). The petitioner's challenge to the constitutionality of the cruel-and-depraved aggravating circumstance is no more than that, and, thus, it is foreclosed from review in this Court in a Rule 37 proceeding. Additionally, this claim was resolved against the petitioner in his direct appeal, see Echols I, 326 Ark. at 985-86, 936 S.W.2d at 544-546, and has become the law of the case. See, e.g., Camargo v. State, 337 Ark. 105, 110, 987 S.W.2d 680, 683-84 (1999). This claim is rejected.

J.        Remaining Claims

        The petitioner's appellate brief purported to adopt remaining claims without making specific arguments. According to Echols II, those claims are abandoned and may not be reopened in this remand. Id., 344 Ark. at 519, 42 S.W.3d 471; id., 2001 WL 630544, *1 (supp. opin. on denial of rehg.) (per curiam).


        WHEREFORE, for all of the reasons stated herein, the petitioner's claims were either abandoned on direct or appeal or are rejected as detailed above and his petition for post-conviction relief is hereby denied.


                S/David Burnett