Appellant was convicted by a jury of second degree murder and sentenced to twenty years imprisonment. The Arkansas Court of Appeals, in an unpublished opinion, Gunn v. State, CA CR 85-29 (August 28, 1985), affirmed the appellant’s conviction. Pursuant to A.R.Cr.P. Rule 37, appellant filed a petition for post-conviction relief in this court, asserting a multitude of allegations regarding ineffective assistance of counsel. We granted appellant permission to petition in circuit court for an evidentiary hearing, limited to the issue of whether the prosecutor had entered the jury room, during the jury’s deliberations, to tell the jury about the parole system; and, if so, whether he suffered prejudice from his counsel’s failure to request a mistrial. Gunn v. State, 291 Ark. 548, 726 S.W.2d 278 (1987).
On September 21, 1987, the trial court held that the testimony elicited at the hearing clearly reflected that neither the prosecuting attorney nor his staff had entered the jury room. In this appeal, appellant does not question the trial court’s finding regarding the prosecutor. Instead, he now argues that error resulted at trial because the trial judge had communicated with the jurors during their deliberations, which violated Ark. Code Ann. § 16-89-125(e) (1987) and contravened this court’s holding in Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). We affirm.
In Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986), we held that all grounds for relief pursuant to Rule 37 must be asserted in the original or amended petition. See A.R.Cr.P. Rule 37.2(b) and (e). Accordingly, we consider only those allegations of ineffective assistance of counsel which the appellant raised in his petition and which we granted permission to consider. Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). Here, appellant alleged in his original petition that his counsel was ineffective because he failed to object or argue at trial and on appeal that the prosecutor entered into the jury room and made remarks to the jurors concerning the parole system. Nowhere in his thirty-five page petition did appellant allege any misconduct by the trial judge. On remand of this matter for an evidentiary hearing concerning the prosecutor’s alleged misconduct, the trial court heard and considered additional testimony regarding what misconduct, if any, the trial judge may have committed during the jury’s deliberations.1
Suffice it to say, based upon the appellant’s original petition, we remanded this matter for an evidentiary hearing regarding the prosecutor’s, not the trial judge’s, alleged misconduct. The appellant may not employ such a hearing to develop other grounds for relief to those originally pled in his Rule 37 petition. In this appeal, appellant alleges and argues for the first time that error obtained as a result of the trial judge’s misconduct, therefore, we do not consider that issue.
Even if we reached the merits of appellant’s new allegation, we still would deny his request for post-conviction relief. A review of the testimony of the jurors reflects that even if the judge had gone into the jury room to answer a question, no information of substance was relayed to the jury. See Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). The three jurors who recollected that the judge came into the jury room said that the judge stated either he could not answer their question concerning possible sentencing or he remarked the choices in sentencing were those given them in the jury instructions. The foreman testified that the judge gave them an answer and stated that he could not deliberate on either side — “He could not deliberate on anything that would be according to the jury to do.” Based upon the record before us, we are unable to hold that the outcome of the appellant’s trial was affected by his counsel’s failure to request a mistrial.
We affirm.
Purtle and Newbern, JJ., dissent.The trial court held a second hearing after some jurors testified at an initial hearing that either the bailiff or trial judge had entered the jury room and had responded to a question posed by the jury regarding what punishment could be given the appellant. The state actually subpoenaed the jurors, and no objection or mention of A.R.E. Rule 606(b) was interposed. We need not detail the sometimes vague testimony given by the jurors in their attempt to recall what had occurred three years ago during jury deliberations except to say that no vagueness or dispute existed concerning the prosecutor. All agreed that neither the prosecutor nor his deputy spoke to the jury during its deliberations.