dissenting. The majority opinion reaches an absurd result in construing this court’s own rule, Ark. R. Cr. P. 37.5, in the manner it does. All criminal defendants must be afforded due process of law at trial or Rule 37 proceedings, but even in death-penalty cases, defendants must raise their arguments and obtain a ruling at trial or postconviction hearing. Even on direct appeals, we have held that defendants must raise constitutional issues at trial, rather than waiting to raise them later in Rule 37.5 proceedings. See Nooner v. State, 339 Ark. 253, 4 S.W.3d 997 (1999); see also Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000).
While the majority opinion mentions Act 925 of 1997, codified as Ark. Code Ann. §§ 16-91-201 et seq., the Arkansas Effective Death Penalty Act, as supporting its interpretation of Rule 37.5, the court is clearly wrong. In fact, the court’s interpretation runs directly counter to the ends of justice intended and sought by the General Assembly, as described in Act 925’s emergency clause:
It is found and determined by the General Assembly of the State of Arkansas that the current system for carrying out a sentence of death is hopelessly fraught with endless litigation in state and federal court which undermines the deterrent value of the death penalty and imposes a needless financial burden on the state’s resources, while depriving death row inmates of the right to obtain speedy relief on any meritorious constitutional claims. (Emphasis added.)
Here, where Echols believed the circuit court’s postconviction order was insufficient or conclusory in parts, he had the duty, if dissatisfied with the trial court’s order, to request the trial court to modify its order to provide further evidentiary findings and conclusions of law. See Beshears v. State, 340 Ark. 70, 8 S.W.3d 32; Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998).1 To hold that a defendant-petitioner no longer is required to make such a request only encourages a defendant-petitioner to stand mute at Rule 37 proceedings and to delay raising any objections he or she may have until after filing an appeal. Echols’s counsel was well aware of what objections he-had with the trial court’s findings, but he never mentioned them so the trial judge could address and rule on them. When the defendant-petitioner and the State fully develop a record at a Rule 37 hearing, there is absolutely no reason — except a quest for delay — to allow a party to complain of the trial court’s order being insufficient. Echols’s counsel knew the evidence introduced at the hearing, and, as the petitioner, he knew (or should have known) the trial court could have provided any additional or needed evidence and findings if the petitioner had only objected and asked the trial judge to do so.
This appeal and the record consists of more than 1800 pages. Both the State and Echols presented volumes of evidence that bore in detail on the merits (or lack of merits) of the 46 issues raised by Echols’s Rule 37 petition. Our court on review has ample evidence before it to decide all issues which were properly preserved below. It is an absolute waste of time for this court to send this case back to the trial court to cover the very same evidence bearing on the same issues a second time. The majority opinion recognizes this fact by admonishing Echols’s counsel that this court’s remand is not to be construed as an opportunity to reopen the evidence or to raise new issues. Such an admonition underscores that this court has sufficient evidence now before it to address and rule on Echols’s appeal.
It is important to reemphasize that, when this case is again before the trial court, the trial judge will be left to review the same record we now have before us; he will merely transpose the evidence already in the record and add it to the findings listed in the judge’s final order denying Echols’s petition.2 After doing so, nothing will have been changed, including the judge’s initial decision. Predictably, on remand, Echols will want to open the record to produce additional evidence, even though his case has been fully tried; the record is complete and further evidence is unnecessairy.
Because of today’s majority opinion, Echols, at the conclusion of the hearing on remand, will have no obligation to inform the trial court whether he is satisfied with the judge’s new findings. Thus, this court can expect, yet again, a future request for another appeal and remand based on allegations that the trial court’s “new” findings are insufficient. More delays can be expected, which fails to comport with Arkansas’s Effective Death Penalty Act. Echols has been afforded counsel, a fair hearing and an opportunity to raise any issue he chose, including constitutional ones. In short, he has been afforded constitutional due process. To allow a defendant-petitioner to stand mute at a Rule 37 hearing and to hold the presiding judge erred on issues that he was never asked to address, only fosters needless delays and gamesmanship by counsel. Even death-penalty cases should not permit such an abuse of the judicial system.
Because I think the record is fully and sufficiendy developed to reach the merits of this case, I would decide this case without further delay.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
June 7, 2001
42 S.W.3d 467
Mandell & Wright, L.L.P., by: Edward A, Mallett, and Alvin Schay, for appellant. Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., and James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.PER CURIAM. The State has filed a petition for rehearing in this case, claiming that this court committed an error of law when it remanded this case for the trial court to make specific findings under Ark. R. Crim. P. 37.5(i), but only as to the issues raised on appeal. The State asserts that it is inconsistent for this court to hold that the issues not raised by Echols on appeal are abandoned on remand, while refusing to hold that the issues raised on appeal, but not specifically ruled on below, are not procedurally barred. In other words, the State claims that Echols’s refusal to obtain rulings on particular issues after the hearing equates to his having abandoned those issues below. We disagree.
The State’s argument fails to recognize whose burden it is to make factual findings in a Rule 37 death case. Clearly, under Rule 37.5(i), the burden is placed squarely on the shoulders of the trial court to make specific written findings of fact and conclusions of law on each issue raised in the petition. As clearly pointed out in our decision, the reason behind the adoption of such an exacting requirement is to enable a meaningful and comprehensive state-court review of postconviction issues in death cases. Under Rule 37.5, the defendant is allowed to raise as many issues as he chooses that may demonstrate that his conviction and death sentence were illegally and unconstitutionally obtained. Once the issues are raised, the trial court then must make a determination whether a hearing is necessary. See Rule 37.5(h). Regardless of whether a hearing is held, however, the trial court’s duty is the same — to make specific written findings of fact and conclusions of law on each issue raised in the petition. The trial court’s duty is not lessened by the defendant’s failure to expand upon or fully develop his claims during the hearing. This would effectively result in placing additional burdens on those defendants who are given a hearing under the rule.
In contrast, the trial court plays no role in deciding which issues the defendant may or will raise on appeal. Instead, the defendant makes a conscious choice as to which issues of alleged error he wants to pursue on appeal. The defendant may raise all issues decided against him below, or he may choose to pursue only some of those issues. When he makes that choice, however, he has effectively waived consideration of the other issues not pursued. But this waiver is not one that is done inadvertently or accidentally; rather, it is a choice that is made deliberately. Thus, it is not so much a procedural bar, as the State asserts.
That being said, there may come a time when this court is presented with a claim that the trial court’s failure to make specific written findings and conclusions on each issue, as required under Rule 37.5(i), interfered with the defendant’s ability to choose which issues he would pursue on appeal. Stated another way, the defendant may argue that without ruHngs on each issue, it is impossible to assess which rulings may be assigned as error on appeal. In such a case, this court would likely have to remand for the trial court to make findings and conclusions on all the issues raised in the petition. That is not necessary here, however, as Echols made no such argument to this court.
Accordingly, we deny the State’s petition. There is nothing inconsistent in this court’s opinion that would require rehearing. In any event, if this court were to grant rehearing, the State would be no better off than it is now. 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. In short, there is no reason to grant the petition and belabor this case any further.
GLAZE, J., dissents.Compare today’s case of Beulah v. State, CR00-144, opinion delivered April 26, 2001, where this court seems to take a somewhat conflicting approach in another capital murder case. There, Beulah argued that, under the terms of Ark. Code Ann. § 9-27-318(g) (Supp. 1999), the trial judge should have provided written findings upon denying the transfer of his case to juvenile court. Our court rejected Beulah’s argument and held it was unnecessary to remand for additional findings. In analogizing § 9-27-318(g) to ARCP Rule 37.5, this court opined that the statute does not contain language Eke that in the Rule, which provides the circuit court shall make specific written findings of fact with respect to each factual issue raised by the petition. While the identical language in Rule 37.5 is not employed in § 9-27-318(g), the statute’s terms require the same duties of the circuit judge, namely, “the court shall make written findings and consider all of the [ten] factors [specifically] listed in the statute.”
The trial judge, in my view, should request counsel for both parties to present him with specific written findings of fact and conclusions of law so the trial judge can comply with the time constraints set out in Rule 37.5(i).