Michael E. Green v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-899

NOT DESIGNATED FOR PUBLICATION

MICHAEL E. GREEN

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered February 24, 2005

APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, CR 98-191-2, HON. GARY M. ARNOLD, JUDGE

REVERSED AND REMANDED

PER CURIAM

Michael Emit Green was convicted in Saline County Circuit Court of two counts of rape. He was sentenced to thirty years in the Arkansas Department of Correction. The Court of Appeals affirmed that judgment in an unpublished opinion, Green v. State, No. CACR 99-370 (Ark. Ct. App. Jan 12, 2000), and Green subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37.1. The circuit court issued an order denying relief without holding an evidentiary hearing. We reverse and remand.

For purposes of this opinion, a brief recitation of the facts presented at trial should suffice. Z.F., age four at the time of trial, and three at the time of the offense, testified that Green had put his body, which Z.F. indicated referred to his penis, into the mouths of both Z.F. and Z.F.'s then two-year-old brother. Appellant was babysitting Z.F. and his brother when the offenses occurred. The state presented additional testimony describing the events that followed the offenses from Green's wife, the boys' mother, nurses from Children's Hospital who handled the children's clothing, and a forensic biologist with the Arkansas State Crime Laboratory who found sperm cells on the clothing. DNA testing did not rule out Green as the perpetrator.

In his petition for postconviction relief, Green alleged constitutional violations resulting from an in-chambers conference during his jury trial, that his trial counsel perjured himself concerning his advising Green of the in-chamber's conference, and that trial counsel and appellate counsel were ineffective. Appellant's first point on appeal contends the trial court erred in failing to make specific findings in denying his postconviction relief. Ark. R. Cr. P. 37.3(a) requires, "If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." The state argues that we may affirm despite the failure if the record conclusively shows that the petition was without merit, citing Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000)(per curiam). But, as in Carter, we do not find the record conclusively shows under the circumstances of this case that all of appellant's claims are without merit.

Appellant's first point in his petition for postconviction relief and his second point on appeal alleges he was denied due process as a result of the silence of the record concerning the in-chambers conference. The state responds that the constitutional issue could have been raised at trial or on direct appeal, rather than in postconviction proceedings, citing Williams v. State, 346 Ark 54, 56 S.W.3d 360 (2001). However, we do not apply that rule in cases where the errors are so fundamental as to render the judgment of conviction void and subject to collateral attack. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999)(per curiam). The record here does not conclusively show the error alleged was not fundamental.

The abstract included with appellant's brief shows the following notation in the transcript of the trial after the jury retires to deliberate:

(Chambers Conference) The Court: Show for the record that the jury foreman has come into chambers and all counsel are present and we allowed him off record to pose the two questions that the jury has. Mr. Lancaster, myself, and the deputy prosecutors have discussed the Court's response to those questions and have agreed upon the Court's response. Mr. Lancaster then went out to the courtroom and discusses with his client this proceeding and the fact that he had a right to be present and that we could call the entire jury back into the jury room, ect, [sic] and he told Mr. Lancaster that is [sic] was appropriate and fine with him for us to answer that question here in the chambers without his presence?

Mr. Lancaster: That's an accurate statement, Your Honor. I agree, on behalf of the defendant, to waive his presence and any formal presentation before the jury.

It is not clear from the record before us what questions were posed by the jury. The record does contain a supplemental response by the state that sets out anticipated testimony of the jury foreman. No affidavit is attached, however, and we do not accept the state's argument as evidence. See, Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996). With no evidence that addresses what questions were asked, we cannot say this issue is without merit. If the jury's questions concerned a disagreement between them as to any part of the evidence, or if they asked to be informed on a point of law, Ark. Code. Ann. §16-89-125 (e) (1987) requires the entire jury be called into open court. Noncompliance with this statutory provision gives rise to a presumption of prejudice, and the state has the burden of overcoming that presumption. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). Strict compliance may be waived in circumstances where the attorneys were with the judge, everything that happened was reported in the record, and there was no possibility of prejudice. Id. at 523, 953 S.W.2d at 44. The facts available to us on the record in this case do not support such a waiver. We cannot find that everything was reported in the record, and that there was no possibility of prejudice. In addition, the appellant alleges that he was not, in fact, consulted concerning the waiver of his right to be present. While the trial court could have simply found the appellant's allegations in that regard were not credible, there were no findings to so indicate.

The type of error alleged here and not refuted by the evidence before us, a failure to be present when a substantial step, such as the judge's answering questions of law for the jury, results in violation of the defendant's fundamental right to be present at any stage of the criminal proceeding and is critical to the outcome. See, Atkinson v. State, 347 Ark. 336, 351, 64 S.W.3d 259, 269 (2002). Therefore, we cannot conclude from the record that there are no errors so fundamental as to render the judgment of conviction void and subject to collateral attack. We do not address the appellant's remaining allegations at this time, having found that we are unable to affirm on this point.

Because the trial court did not comply with Ark. R. Cr. P. 37.3(a), we are unable to say definitively whether an evidentiary hearing is required. We are cognizant that we do not have the trial record available to us, and therefore cannot say with certainty that the trial court's denial of the petition was not based upon it. If so, the trial court must state its reliance on the trial record in its order with specificity. While the trial court has discretion pursuant to Ark. R. Cr. P. 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing, an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the petitioner is not entitled to relief. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). If the trial court determines upon remand, with benefit of our ruling on this appeal, that no hearing is necessary, then the order must reflect the trial court's findings and those parts of the record upon which the trial court has based its findings. Accordingly, we reverse and remand the case to the trial court for the written findings required by Ark. R. Cr. P. 37.3(a), and if additional evidence is needed to make those findings, an evidentiary hearing pursuant to Ark. R. Cr. P. 37.3.

Reversed and remanded.