{ "id": 1449573, "name": "Mary Elizabeth CIGAINERO v. STATE of Arkansas", "name_abbreviation": "Cigainero v. State", "decision_date": "1995-09-18", "docket_number": "CR 95-206", "first_page": "533", "last_page": "536", "citations": [ { "type": "official", "cite": "321 Ark. 533" }, { "type": "parallel", "cite": "906 S.W.2d 282" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "293 Ark. 338", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869696 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0338-01" ] }, { "cite": "312 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935069 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0180-01" ] }, { "cite": "298 Ark. 78", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889919 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0078-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-89-130", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(c)(6)" } ], "opinion_index": 0 }, { "cite": "274 Ark. 332", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1755006 ], "weight": 7, "year": 1981, "pin_cites": [ { "page": "333" }, { "page": "449" }, { "page": "334" }, { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/ark/274/0332-01" ] }, { "cite": "838 S.W.2d 361", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1898882 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "363-364" } ], "opinion_index": 0, "case_paths": [ "/ark/310/0504-02" ] }, { "cite": "310 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898882, 1898895 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "507-508" } ], "opinion_index": 0, "case_paths": [ "/ark/310/0504-02", "/ark/310/0504-01" ] } ], "analysis": { "cardinality": 420, "char_count": 7069, "ocr_confidence": 0.879, "pagerank": { "raw": 6.823645209760888e-08, "percentile": 0.41648837441874026 }, "sha256": "2570d41382f5634b0403816154e0e7384168f7b79209b62ea9c151c2f2747a89", "simhash": "1:e6f814257546935a", "word_count": 1161 }, "last_updated": "2023-07-14T20:21:00.559388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mary Elizabeth CIGAINERO v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis is Mary Elizabeth Cigainero\u2019s second appeal. See Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). In Cigainero I, Cigainero challenged her first-degree murder conviction in the shooting death of her husband, Christopher, claiming (1) there was insufficient evidence to support the conviction and (2) the trial court erred in failing to grant her a new trial based on juror bias. This court held the evidence at trial was more than substantial in showing Cigainero had planned and committed her husband\u2019s murder. Concerning Cigainero\u2019s second argument in Cigainero I, she had filed a new trial motion after her conviction, asserting newly discovered evidence showed that two of the twelve jurors had failed to disclose on voir dire that they had previously signed a petition. The petition, containing 2,500 signatures, requested that the Miller County Circuit Court call a grand jury to investigate the prosecuting attorney\u2019s failure to \u201cfile, charge, and prosecute the Christopher Cigainero homicide and many other major crimes in Miller County.\u201d While the trial court agreed that Cigainero\u2019s motion was timely and based upon newly discovered evidence, it denied her a new trial. On appeal, this court affirmed the trial court, but did so on the grounds that Cigainero\u2019s new trial motion had been untimely filed. Id., 310 Ark. at 507-508, 838 S.W.2d at 363-364.\nAfter the Cigainero I decision, Cigainero petitioned for post-conviction relief under Ark. R. Crim. R 37, and essentially alleged the same juror bias allegations previously alleged in her new trial motion in Cigainero I. Citing Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981), the state below argued that Cigainero\u2019s Rule 37 petition raised no new issues from those previously decided on direct appeal in Cigainero I, and therefore, her petition should be dismissed. The trial court apparently agreed with the state\u2019s argument, but did not state its reasons when dismissing Cigainero\u2019s petition.\nThe Chisum decision established that Rule 37 created a method for determining whether the accused\u2019s rights with respect to constitutional or statutory rights had been violated or whether the sentence was otherwise subject to collateral attack. 274 Ark. at 333, 625 S.W.2d at 449. The court explained that there was no reason for this court to create machinery for a direct attack upon judgments in criminal cases, because that remedy had been adequately supplied by statute for a century or more. It further concluded that Rule 37 provides a remedy when the sentence is vulnerable on constitutional grounds or is otherwise subject to collateral attack, Id. at Ark. 334, S.W.2d 449, and stated that a motion asking the trial court to grant a new trial for newly discovered evidence is plainly a direct effort to have the judgment vacated, not a collateral attack. See Ark. Code Ann. \u00a7 16-89-130(c)(6) (1987) (the trial court in which a trial is had upon an issue of fact may grant a new trial when a verdict is rendered against the defendant by which his substantial rights have been prejudiced, upon his motion where the defendant has discovered important evidence in his favor since the verdict). In sum, the court in Chisum held that a motion for a new trial based upon newly discovered evidence is not a proper basis for relief under Arkansas\u2019s postconviction rule.\nIn the present case, Cigainero concedes her new trial motion below was based upon newly discovered evidence, claiming she only learned after her trial commenced that two of her jury members had previously signed the petition asking a grand jury be called to investigate the Christopher Cigainero homicide. While she concedes the Chisum holding appears to preclude new trial motions based upon newly discovered evidence, Cigainero argues Rule 37 relief is still available since the juror misconduct present in her case violated her constitutional right to a fair and impartial jury. See Ark. Const, art. 2, \u00a7 10. She also suggests that, in order for her counsel to exercise his valid judgment in the use of peremptory challenges in obtaining an impartial jury, the answers to questions posed to prospective jurors must be truthful and accurate. Because we conclude such alleged juror misconduct is not a proper subject for Rule 37 proceedings, we need not resolve in this appeal whether the two jurors challenged here answered Cigainero\u2019s questions on voir dire honestly or knowingly failed to respond. See Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).\nThis court has held that Rule 37 does not provide a means to challenge the constitutionality of a judgment where the issue could have been raised in the trial court. Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993). Like it does for newly discovered evidence, \u00a7 16-89-130 also provides a defendant a new trial motion remedy where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial. See \u00a7 16-89-130(c)(7).\nAgain, like the newly discovered evidence point previously discussed, Cigainero\u2019s remedy was to attack directly her verdict by requesting a new trial based upon juror misconduct. Moreover, her motion was required to show the exercise of diligence. Chisum, 274 Ark. at 334, 625 S.W.2d at 449. Cigainero failed to do so.\nCigainero points out that the petition, which sought a grand jury investigation of the Christopher Cigainero homicide and other major crimes at sometime prior to her trial, had been filed in a miscellaneous drawer in the circuit clerk\u2019s office. Because the petition had been filed away, she claims that she was unaware of the petition, at least, until her cross-examination of a state witness at trial. Nonetheless, we find nothing in the abstract of record that reflects why Cigainero was unable to obtain or review that petition for names and signatures once its existence was known. Once discovered, a timely new trial motion based on juror misconduct could have been filed before or shortly after Cigainero\u2019s conviction.\nIn conclusion, this court has consistently stated that a constitutional violation is not in itself enough to trigger application of Rule 37. Cotton v. State, 293 Ark. 338, 738 S.W.2d 90 (1987). Nor is Rule 37 intended to provide a review of mere error in the conduct of the trial or to serve as a substitute for appeal. Id. Here, because Cigainero fails to present proper grounds for postconviction relief, we affirm the trial court\u2019s decision denying Cigainero\u2019s Rule 37 motion.\nThis constitutional provision in relevant part provides that, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "The Law Offices of Damon Young, by: Damon Young, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Mary Elizabeth CIGAINERO v. STATE of Arkansas\nCR 95-206\n906 S.W.2d 282\nSupreme Court of Arkansas\nOpinion delivered September 18, 1995\nThe Law Offices of Damon Young, by: Damon Young, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0533-01", "first_page_order": 583, "last_page_order": 586 }