{ "id": 5367542, "name": "Jack Gordon GREENE v. STATE of Arkansas", "name_abbreviation": "Greene v. State", "decision_date": "2004-02-12", "docket_number": "CR 02-736", "first_page": "59", "last_page": "75", "citations": [ { "type": "official", "cite": "356 Ark. 59" }, { "type": "parallel", "cite": "146 S.W.3d 871" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "508 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11581 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/508/0476-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "294 Ark. 127", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895753 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "132" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ark/294/0127-01" ] }, { "cite": "342 Ark. 22", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342385 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "28-29" }, { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/ark/342/0022-01" ] }, { "cite": "308 Ark. 266", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904356 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0266-01" ] }, { "cite": "347 Ark. 441", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683419 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "416" }, { "page": "452" }, { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0441-01" ] }, { "cite": "472 U.S. 320", "category": "reporters:federal", "reporter": "U.S.", "year": 1985, "opinion_index": 0 }, { "cite": "512 U.S. 154", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39205 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/512/0154-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-606", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 0 }, { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "351 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158923 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/351/0241-01" ] }, { "cite": "350 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404487 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0238-01" ] }, { "cite": "331 Ark. 519", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604759 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "524" }, { "page": "582-83" }, { "page": "523" }, { "page": "582" }, { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ark/331/0519-01" ] }, { "cite": "352 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159670 ], "weight": 5, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0359-01" ] }, { "cite": "227 F.3d 1064", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11195318 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/f3d/227/1064-01" ] }, { "cite": "343 Ark. 702", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226564 ], "weight": 5, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/343/0702-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-43-403", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "355 Ark. 294", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2649290 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/355/0294-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-43-401-409", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1999, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-4-616", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1997, "pin_cites": [ { "page": "(a)(4)" }, { "page": "(a)(4)" } ], "opinion_index": 0 }, { "cite": "660 S.W.2d 648", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 3, "year": 1983, "opinion_index": 0 }, { "cite": "280 Ark. 509", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744865 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0509-01" ] }, { "cite": "339 Ark. 192", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130707 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0192-01" ] }, { "cite": "344 Ark. 513", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210165 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "516", "parenthetical": "postconviction claims are governed by Rule 37.5., which provides the postconviction procedure.to be applied in death-penalty cases for defendants who became eligible to file a Rule 37 petition on or after March 31, 1997" }, { "page": "470", "parenthetical": "postconviction claims are governed by Rule 37.5., which provides the postconviction procedure.to be applied in death-penalty cases for defendants who became eligible to file a Rule 37 petition on or after March 31, 1997" } ], "opinion_index": 0, "case_paths": [ "/ark/344/0513-01" ] }, { "cite": "327 Ark. 507", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922682 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0507-01" ] }, { "cite": "338 Ark. 691", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243497 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0691-01" ] }, { "cite": "352 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159723 ], "weight": 10, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0016-01" ] }, { "cite": "355 Ark. 485", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2649879 ], "weight": 4, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/355/0485-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "347 Ark. 52", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683323 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "citing Strickland v. Washington, 466 U.S. 668 (1984)" }, { "parenthetical": "citing Strickland v. Washington, 466 U.S. 668 (1984)" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0052-01" ] }, { "cite": "343 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226509 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0244-01" ] }, { "cite": "341 Ark. 722", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257706 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0722-01" ] }, { "cite": "330 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298569 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0442-01" ] }, { "cite": "348 Ark. 395", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74052 ], "weight": 4, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/348/0395-01" ] }, { "cite": "343 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226578 ], "weight": 4, "year": 2001, "pin_cites": [ { "parenthetical": "Greene III" }, { "parenthetical": "Greene III" }, { "page": "588" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/ark/343/0526-01" ] }, { "cite": "335 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862752 ], "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "Greene II" }, { "parenthetical": "Greene II" } ], "opinion_index": 0, "case_paths": [ "/ark/335/0001-01" ] }, { "cite": "317 Ark. 350", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443815 ], "weight": 6, "year": 1994, "pin_cites": [ { "parenthetical": "Greene I" }, { "parenthetical": "Greene I" }, { "page": "389" }, { "page": "335" }, { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0350-01" ] } ], "analysis": { "cardinality": 1161, "char_count": 29842, "ocr_confidence": 0.707, "pagerank": { "raw": 4.647260684845911e-07, "percentile": 0.927240352622875 }, "sha256": "73152d46f0818061121180a30715b67d4c8ccd98561b9f29b550c11507dd5db7", "simhash": "1:4b4ab5a46ac83770", "word_count": 4878 }, "last_updated": "2023-07-14T17:43:53.781338+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jack Gordon GREENE v. STATE of Arkansas" ], "opinions": [ { "text": "Betty C. Dickey, Chief Justice.\nAppellant Jack Gordon Greene was convicted in Johnson County Circuit Court of the capital murder of Sidney Jethro Burnett and was sentenced to death in 1992. This court affirmed the conviction for capital murder but reversed and remanded for resentencing because the North Carolina Supreme Court had reversed a previous murder conviction, which the Arkansas trial jury had considered as an aggravating circumstance. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994) (Greene I). In 1996, Greene was again sentenced to death and this court again reversed and remanded for resentencing because (1) the State had not offered proof that Greene\u2019s bad act in North Carolina constituted a felony under North Carolina law, and (2) Greene was entitled to a hearing relating to his objections to his mental evaluation. See Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998) (Greene II). On remand, Greene was sentenced to death and this court affirmed. Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001) (Greene III). Appellant then filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition without a hearing. From that order Greene now appeals, asserting seven points on appeal, none of which has merit. We affirm the order of the trial court.\nAppellant alleges two procedural and five substantive errors: (1) the trial court\u2019s order denying postconviction relief fails to comply with the written findings requirement of Rule 37; (2) the trial court erred in failing to conduct a hearing on the petition; (3) trial counsel was ineffective for failing to seek live testimony in the penalty phase instead of submitting transcripts; (4) trial counsel was ineffective for failing to object to State\u2019s closing argument; (5) trial counsel was ineffective for failing to make a proper objection to an improper interpretation of Arkansas law; (6) trial counsel was ineffective for failing to challenge the testimony of the medical examiner; and, (7) trial counsel was ineffective for failing to make a constitutional objection to introduction of a T-shirt inscribed \u201cIf you love someone, set them free. If they don\u2019t come back, hunt them down and shoot them.\u201d\nStandard of Review\nThe standard of review for claims of ineffective assistance of counsel is well settled in Arkansas. This court has recently stated:\nIn reviewing a claim of ineffective assistance of counsel, the reviewing court must indulge in a strong presumption that counsel\u2019s conduct falls within the wide range of reasonable professional assistance. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002); Thomas v State, 330 Ark. 442, 954 S.W.2d 255 (1997). To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel\u2019s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. McGehee, supra. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In determining a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). This court will not reverse the denial of postconviction relief unless the trial court\u2019s findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). To prevail on a claim of ineffective assistance of counsel, Scott must show that counsel\u2019s representation fell below an objective standard of reasonableness and that but for counsel\u2019s errors, the result of the trial would have been different. McGeHee, supra; Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001) (citing Strickland v. Washington, 466 U.S. 668 (1984)).\nScott v. State, 355 Ark. 485, 139 S.W.3d 511 (2003).\nI. Written Findings under Rule 31\nAppellant claims that the trial court\u2019s order fails to comply with the \u201cwritten findings\u201d requirement of Rule 37, which has two separate provisions that deal with petitions where the trial court does not hold a hearing. These rules state in pertinent part:\n37.3(a) 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\u2019s findings.\n37.5(i) Decision. If no hearing on the petition is held, the circuit court shall, within one hundred twenty (120) days after the filing of the petition, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions oflaw with respect to each legal issue raised by the petition.\nArk. R. Crim. P. 37.3, 37.5 (2003). This court has recently reconciled these two rules and their relative case law. See Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003).\nPrior to the enactment of Rule 37.5, Rule 37.3 covered cases where the death penalty was imposed. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). Under Rule 37.3(a), the trial court is required to make written findings specifying any part of the files or records that are relied upon to sustain the court\u2019s findings. Ark. R. Crim. P. 37.3(a) (2003). This court has held it can affirm a trial court\u2019s order notwithstanding the failure to comply with Rule 37.3(a), if it can be determined from the record that the petition is wholly without merit, or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted, even in death cases. Wooten, supra; see also Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997).\nRule 37.5 mandates that the trial court make \u201cspecific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions oflaw with respect to each legal issue raised by the petition,\u201d but the Rule does not require the trial court to specify any parts of the files or records that are relied upon to sustain the court\u2019s findings. This court has explained that in death cases covered by Rule 37.5, it will remand a case when the trial court fails to make sufficient written findings of fact and conclusions oflaw. Echols v. State, 344 Ark. 513, 516, 42 S.W.3d 467, 470 (2001)(postconviction claims are governed by Rule 37.5., which provides the postconviction procedure.to be applied in death-penalty cases for defendants who became eligible to file a Rule 37 petition on or after March 31, 1997).\nIn Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003), this court said when a trial court makes written findings of fact and conclusions oflaw as required by Rule 37.5, but fails to specify the parts of the record that form the basis of the trial court\u2019s decision under Rule 37.3(a), we will still affirm if the record conclusively shows that the petition is without merit. Id.\nThe appellant contends the trial court\u2019s order is deficient in the following ways:\nThe order (i) does not cite the files or records used to sustain the court\u2019s findings; (ii) does not make specific findings of fact; (iii) omits some conclusions of law; and, (iv) does not assert that the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief.\nThe State contends the order issued by the circuit court complies with the mandates of Rule 37. We agree. The trial court\u2019s order specifically addressed each argument presented by Greene independently with a finding of relevant facts and conclusions of law. The allegations of ineffectiveness were legal in nature, therefore, the trial court had no duty to cite to files or records used in making its findings. Appellant fails to explain which conclusions of law are missing. Finally, Greene seems to assert that the trial court must certify the \u201cpetition and the files and records of the case conclusively that show the petition is entitled to no relief.\u201d Rule 37 makes no requirement of certification. We conclude that the trial court\u2019s order is sufficient for this court to review.\nII. Rule 31 Hearing\nIn his second point, Greene claims that the trial court should have conducted a hearing on his petition. We disagree. This court recently addressed a petitioner\u2019s right to an evidentiary hearing in a death-sentence case, Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003), where we explained that Rule 37.3 clearly grants the trial court discretion to decide whether the files and records are sufficient to address the petition without a hearing. We have previously interpreted Rule 37.3 to \u201cprovide that an evidentiary hearing should be held in a postconviction proceeding unless the files and records of the case conclusively show that the prisoner is entitled to no relief.\u201d Id.\nWe have acknowledged that due to the finality of the punishment, death-penalty cases are different than other criminal cases. Id. However, this court has recognized that the trial court is not required to hold an evidentiary hearing, even in death-penalty cases. Id.; Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999). The trial court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Sanders, supra. Moreover, conclusory allegations that are unsupported by the facts do not provide a basis for either an evidentiary hearing or post-conviction relief. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). A Rule 37 hearing is not available to a petitioner in hopes of finding grounds for relief. Id.\nIII. Use of Trial Transcripts\nAfter Greene was initially sentenced to death, we affirmed his guilt but reversed his death penalty for a new hearing. Greene I, supra. After being resentenced to death, we again found error in the proceedings and reversed Greene\u2019s death penalty for a new hearing. See Greene II, supra. At his rehearing, Greene\u2019s counsel submitted transcripts of prior testimony as mitigating evidence pursuant to Ark. Code Ann. \u00a7 5-4-616(a)(4) (Repl. 1997). Greene now argues that counsel\u2019s decision to use the transcripts and failure to seek live mitigating testimony constituted ineffective assistance of counsel. The trial court ruled that counsel\u2019s decision was a matter of trial strategy and that there was no reasonable probability that live testimony would have resulted in a different result. That ruling was not clearly erroneous, and we affirm.\nGreene argues that he was clearly entitled to the physical presence of mitigation witnesses by virtue of his Sixth Amendment right of compulsory process, along with the analogous state guarantees in Article 2, \u00a7 10, of the Arkansas Constitution and the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, codified at Ark. Code Ann. \u00a7 16-43-401-409 (Repl. 1999). Counsel suggests that \u201c[h]ad counsel made the proper request, it would have been granted or the sentence would have been summarily reversed.\u201d Then, Greene explains the substance of the mitigating testimony submitted by transcript and the jury\u2019s conclusions with respect to aggravating and mitigating circumstances. Nevertheless, after trumpeting the constitutional guarantees, Greene concedes that trial counsel was permitted to use the transcripts, but contends that counsel should not have made that choice.\nIt is clear that in Arkansas, matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel\u2019s professional judgment and are not grounds for finding ineffective assistance of counsel. Simpson v. State, 355 Ark. 294, 138 S.W.3d 671 (2003). In Greene\u2019s second punishment hearing, the testimony from his mitigation witnesses was elicited with virtually no cross-examination by the State. In preparing the mitigating evidence for Greene\u2019s third punishment hearing, counsel may have considered the potential that the State would more vigorously cross-examine the mitigation witnesses. Of particular note was the State\u2019s prior inability to cross-examine the witnesses concerning allegations that Greene murdered his brother in North Carolina.\nFurthermore, the record reflects that counsel did attempt to secure live testimony. Specifically, counsel filed a motion to subpoena ten out-of-state witnesses pursuant to Ark. Code Ann. \u00a7 16-43-403. The jury unanimously found that two mitigating circumstances probably existed, and mitigating evidence presented by Greene\u2019s counsel was clearly considered by the jury without the live testimony.\nGreene has failed to meet the first prong of the Strickland test requiring a showing that counsel\u2019s representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668 (1984). Additionally, it cannot be said that, had the jury heard live testimony from the witnesses, the outcome of the hearing would have been different. Furthermore, mere errors, omissions or mistakes, improvident strategy or bad tactics will not suffice to require an evidentiary hearing. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).\nIVFailure to Object During Closing Argument\nIn closing arguments at Greene\u2019s final sentencing hearing, the State asked the jury to send a message. The prosecutor stated:\nIf someone comes into our community from off somewhere and does this to one of our citizens, I think we should tell them, \u201cYou get the maximum penalty here.\u201d Giving the maximum penalty discourages and deters other people from doing things like this to sixty nine year old retired ministers in Johnson County.\nGreene\u2019s counsel did not object to this argument at trial. Now Greene says the prosecutor\u2019s argument was an improper expression of personal opinion, a violation of his due-process and fair-trial rights, and a violation of his constitutional right to travel. In denying postconviction relief, the trial court denied the claim citing trial strategy and noted that \u201c[s]ome lawyers might refrain from objection to prevent additional attention begin [sic] drawn to the argument, while others might feel it necessary to obtain a ruling by the trial court.\u201d The trial court concluded that counsel\u2019s conduct fell within the range of permissible legal conduct and that Green failed to demonstrate any prejudice by the State\u2019s argument or counsel\u2019s failure to object. Ordinarily, the failure to object during closing argument is within the wide range of permissible professional legal conduct. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). This court has held that experienced counsel in any case could disagree to the influence a particular closing argument had on the jury\u2019s verdict. Id. Before petitioner can prevail on an allegation that counsel was wrong in not objecting during closing argument, he must establish that he was denied a fair trial by the failure to object. Id.\nGreene\u2019s argument that he was denied a fair trial by counsel\u2019s failure to object is followed by an allegation that the State\u2019s closing comments aroused the passion and prejudice of the jury by unconstitutionally characterizing him as \u201can outsider.\u201d For support of this claim, Green cites to United States v. Cruz-Padilla, 227 F.3d 1064 (8th Cir. 2000), where the Eighth Circuit Court of Appeals held that the State improperly tied an allegation that the defendant was a liar to her status as an illegal alien. Id. The court explained that the Constitution prohibits racially biased prosecutorial arguments. Id. Here, the prosecutor did not draw on Greene\u2019s ethnicity. The prosecutor\u2019s statement only identified that Greene was not from Johnson County. However, unlike the prosecutor in Cruz-Padilla, the prosecutor in this case did not link Greene\u2019s place of residence to a propensity to lie or commit a crime.\nBelow is the \u201coverwhelming evidence of guilt\u201d noted in Greene I:\nThe facts show that appellant knew the Burnetts and was familiar with their home. He went to their home with handcuffs, a .25 caliber pistol, and filament tape. He bound Sidney Burnett\u2019s hands, feet, and mouth. Over a period of time, appellant beat Burnett in the head, probably with a can of hominy; bruised his back, probably by stomping him with his heel; brutally stabbed him in the back; committed even more horrible torture when he cut the victim from mouth to ear; and ultimately shot him in the chest and in the head. Even though this description of butchery and torture sounds horrible, it does not fully describe the effect of macabre horror shown in the photographs of the crime scene. Appellant said, \u201cI\u2019m tired of being treated like shit. I was going to take out people that fucked with me. It\u2019s like chaining up a dog and treating it like shit. Sooner or later he goes crazy.\u201d\nThe evidence of a premeditated and deliberated murder is overwhelming, and, under such circumstances, the trial error was harmless. Consequently, we affirm the conviction for capital murder reached in the first phase of the trial.\nGreene I at 357-378, 878 S.W.2d at 389. Given the above evidence, appellant cannot show that he was prejudiced by counsel\u2019s decision not to object. The failure to make a meritless objection is not ground for ineffective assistance of counsel. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).\nThe prosecutor\u2019s comments were nothing more than a call to the jury to enforce the law, which is permissible. See Muldrew v. State, 331 Ark. 519, 524, 963 S.W.2d 580, 582-83 (1998). In Muldrew, appellant argued that the prosecutor appealed to the jury\u2019s passions by improperly including in his closing statement a \u201csend a message\u201d theme. Id. at 523, 963 S.W.2d at 582. This court has continually affirmed the State\u2019s ability to use a \u201csend a message\u201d theme in closing arguments. Muldrew at 524, 963 S.W.2d at 582; See Lee, supra.\nGreene contends that the remarks also violated Rule 3.4(e) of the Model Rules of Professional Conduct which states that a lawyer shall not, in trial, state a personal opinion as to the justness of a cause, the credibility of a witness, or the. guilt or innocence of an accused. However, Greene fails to cite authority that holds a prosecutor\u2019s statement to \u201csend a message\u201d violates the Model Rules of Professional Conduct. Such a holding would be contrary to this court\u2019s approval of such statements. Lee, supra. Furthermore, Greene fails to explain how an alleged violation of the Model Rules of Professional Conduct translates into ineffective assistance of counsel. Without citation to authority or convincing argument, we do not consider claims of error made on appeal. Scott v. State, 355 Ark. 485, 139 S.W.3d 511 (2003); See Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002); Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002).\nVFailure to Object to Comment Regarding Appellant\u2019s Possible Release from Prison\nDuring closing arguments, in pleading for the jury to sentence Greene to life imprisonment, his counsel argued that a life sentence would keep Greene from ever getting out of prison. The State objected, arguing that Greene could be released pursuant to commutation, pardon, or reprieve of the Governor. This court addressed the colloquy in Greene III as follows:\nGreene next contests a comment made by the prosecuting attorney regarding the potential for Greene\u2019s release should he be sentenced to life in prison without the possibility of parole. The sequence of events and the colloquy between the judge and counsel follows:\nDefense Counsel: He\u2019s exhibited remorse for the death of Sydney Burnett I think Mr. Wilson argued that,\u201cWell, he\u2019s in prison over this thing now.\u201d Well, he\u2019s in prison. He\u2019s not getting out. He\u2019s never getting out of Tucker Maximum Security Unit at Tucker, Arkansas.\nProsecutor: Judge, I\u2019m going to object to that. That\u2019s misleading to the Jury.\nThe Court: The Jury has heard the evidence. If Counsel misquotes the evidence, they can disregard it.\nProsecutor: I\u2019m talking about the situation about not getting out of the penitentiary. That\u2019s not the law and it\u2019s misleading.\nThe Court: Well, I\u2019ll sustain that.\nProsecutor: Thank you, sir.\nDefense Counsel: Well, I would submit then that the only way he would ever get out would be a Governor\u2019s Pardon, if that helps Mr. Prosecutor Wilson.\nProsecutor: Well, Judge, it doesn\u2019t. The law is clear that he maybe released pursuant to commutation, pardon or reprieve of the Governor.\nThe Court: That\u2019s correct. .\nProsecutor: Thank you, sir.\nGreene III, 343 Ark. at 539, 37 S.W.3d at 588. According to this court:\nGreene\u2019s counsel made no objection to this colloquy but now contests the prosecutor\u2019s summary of the law for the first time on appeal. As authority, counsel cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), and directs our attention to the exception to our contemporaneous rule relating to a trial court\u2019s duty to intervene and correct a serious error. Absent the trial court\u2019s intervention, Greene claims that he was highly prejudiced. We disagree that the trial court had a duty to step in under Wicks, because in our view no serious error was made. Indeed, the prosecutor correctly quoted the law. The apposite statute reads:\nA person sentenced to life imprisonment without parole shall be remanded to the custody of the Department of Correction for imprisonment for the remainder of his life and shall not be released except pursuant to commutation, pardon, or reprieve of the Governor.\nArk. Code Ann. \u00a7 5-4-606 (Repl. 1997). This point has no merit.\nGreene III, 343 Ark. at 539-540, 37 S.W.3d at 588.\nGreene now submits that counsel at the sentencing hearing was ineffective for failing to object, and that appellate counsel was ineffective in failing to properly frame the Wicks exception. Nonetheless, Greene concedes that the court would have to overrule its decision in Greene III that prosecutor\u2019s comments were proper.\nGreene cites two cases to support his contention that the prosecutor\u2019s statements were improper and to persuade this court to overrule its decision in Greene III. In Simmons v. South Carolina, 512 U.S. 154 (1994), the United States Supreme Court found error in the trial court refusing to instruct the jury consistent with the law that a sentence of life imprisonment, as an alternative to the death sentence, did not include the possibility of parole. In Caldwell v. Mississippi, 472 U.S. 320 (1985), the United States Supreme Court held that it was constitutionally impermissible to rest a death-sentence determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant\u2019s death rests on an appellate court. Here, no such assertion was made by the State These cases are inapposite and do not relate to the State seeking to inform the jury of the full status of the law.\nIn ruling that Greene\u2019s claim had no merit, the trial court cited Hill v. State, 347 Ark. 441, 65 S.W.3d 408 (2002). In Hill, appellant claimed that trial counsel was ineffective for failing to appeal the trial court\u2019s denial of a proffered jury instruction informing the jury that Hill would not be eligible for parole if he were sentenced to life imprisonment without the possibility of parole. This court held:\n[T]he trial court was on sound ground in rejecting the proffered parole instruction, which contemplated an absolute prohibition against parole, since the governor could always commute a sentence of life imprisonment without parole. Because this court has held that there is no error in refusing an instruction which may have misled or confused the jury, see Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992), counsel would not have been ineffective for failing to raise such an issue on appeal.\nId. at 452, 65 S.W.3d at 416. Hill also cited Simmons in support of his argument; however, this court found that the circumstances in Simmons were \u201cmanifesdy not the same as what occurred at resentencing [in Hill].\u201d Hill 347 Ark. at 452, 65 S.W.3d at 416.\nIn Simmons, the trial court refused to inform the jury that state law prohibited the defendant\u2019s release on parole, whereas in Hill, the trial court specifically instructed the jury that, if they did not sentence Hill to death, they would sentence him to life imprisonment without parole. According to this court, \u201c[t]he fact that the life imprisonment was without parole was specifically communicated to the jury.\u201d Id. The same is true in this case. Given this court\u2019s holding in Hill, there was no basis upon which to make an objection. Counsel cannot be ineffective for failing to make a meritless argument. Sandford v. State, 342 Ark. 22, 28-29, 25 S.W.3d 414, 420 (2000). In sum, this court has already ruled on the propriety of the prosecutor\u2019s statements, and Greene now unsuccessfully attempts to have that decision reviewed and overruled.\nVI. Failure to Impeach the State Medical Examiner\nFor his fourth point of substantive error, Greene contends that trial counsel was ineffective in failing to challenge the testimony of Dr. Malak concerning aspects of death. At his third sentencing hearing in 1998, the State used deposition testimony of Dr. Fahmy Malak taken in 1992. In Greene III this court held that Ark. Code Ann. \u00a7 5-4-616(a)(4) entitled the State to use the testimony. The substance of Greene\u2019s Rule 37 argument is that counsel was ineffective for failing to impeach Dr. Malak in light of other evidence that Dr. Malak had a history of controversial and inaccurate determinations. Greene adds that there is a reasonable probability that another examiner would have disagreed with Dr. Malak\u2019s conclusions. Nonetheless, neither Greene\u2019s Rule 37 petition, nor his argument on appeal identify a doctor that would have disagreed with Dr. Malak, or even the evidence that would indicate Dr. Malak\u2019s determinations were faulty and subject to different interpretation. When an allegation rests on whether a witness should have been called, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Malone v. State, 294 Ark. 127, 132, 741 S.W.2d 246, 249 (1987).\nGreene fails to cite one piece of authority for the proposition that counsel was ineffective in this case. Greene merely makes conclusory allegations that there may have been some medical examiner that would have disagreed with Dr. Malak. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). This court will not grant postconviction relief for ineffective assistance of counsel where the petitioner fails to show what the omitted testimony or other evidence was, and how it would have changed the outcome. Id. In the absence of any showing of what the evidence concerning Dr. Malak\u2019s examination might have proven, this court affirms.\nVII. Failure to Make a Constitutional Objection to the Introduction of a T-shirt\nGreene\u2019s final argument is that original trial counsel was ineffective in failing to frame a constitutional objection to the t-shirt having the inscription, \u201cIf you love someone, set them free. If they don\u2019t come back, hunt them down and shoot them.\u201d At trial, Greene\u2019s counsel objected to the admission of the t-shirt arguing that it was irrelevant and unduly prejudicial. The trial court admitted the t-shirt over Greene\u2019s objection. Although the objection was overruled, this court held the trial court\u2019s error to be harmless and refused to reverse appellant\u2019s conviction. Greene I, 317 Ark. at 335, 878 S.W.2d at 387. According to this court, \u201cafter a detailed review of the evidence, we hold that the evidence of guilt of capital murder was overwhelming, and, in view of that evidence, the error was slight.\u201d Id.\nNow Greene argues that counsel should have objected on the grounds that the admission of the t-shirt violated the First and Fourteenth Amendments. According to appellant, even if the trial court had overruled such a constitutional objection, this court would have found constitutional error had occurred, using a \u201cdifferent, stricter standard\u201d pursuant to Chapman v. California, 386 U.S. 18 (1967). In denying postconviction relief, the trial court noted this court\u2019s ruling in Greene I and stated it could not conclude that, had counsel made a constitutional objection, a different result would have been reached by the jury. Greene is correct that the United States Supreme Court held that before a federal constitutional error can be declared harmless the reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt. Id. Greene is also correct that this court did not hold that the admission of the t-shirt was \u201charmless beyond a reasonable doubt.\u201d However, Greene has failed to indicate what federal constitutional error arose out of the admission of the t-shirt.\nGreene now argues that the inscription of this t-shirt was protected under the First Amendment to the United States Constitution. Nonetheless, it is unnecessary to analyze the doctrine of free speech in this context. Greene makes no assertion that the evidence which constitutes free speech is inadmissible at trial. The United States Supreme Court has concluded that the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive of intent. Wisconsin v. Mitchell, 508 U.S. 476 (1993). Therefore, Greene\u2019s argument is meritless. Accordingly, the trial court\u2019s ruling is affirmed.\nAffirmed.", "type": "majority", "author": "Betty C. Dickey, Chief Justice." } ], "attorneys": [ "Jeff Rosenzweig, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jack Gordon GREENE v. STATE of Arkansas\nCR 02-736\n146 S.W.3d 871\nSupreme Court of Arkansas\nOpinion delivered February 12, 2004\n[Rehearing denied March 25, 2004.]\nJeff Rosenzweig, for appellant.\nMike Beebe, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0059-01", "first_page_order": 81, "last_page_order": 97 }