Benfordene Butler Smith v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 15, 2001

BENFORDENE BUTLER SMITH

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-589

AN APPEAL FROM THE CIRCUIT COURT OF ARKANSAS COUNTY,

NO. CR 96-9

HONORABLE RUSSELL ROGERS,

CIRCUIT JUDGE

AFFIRMED

Appellant, Benfordene Butler Smith, was convicted of capital-felony murder and sentenced to life imprisonment without the possibility of parole. We affirmed appellant's conviction and sentence in Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. It appears from the record that appellant was granted a hearing on this petition and that the circuit court denied appellant's requested relief. On appeal, appellant argues that the circuit court failed to make specific written findings pursuant to Ark. R. Crim. P. 37.3, thus, the case should be reversed and remanded. Appellant also argues that the circuit court's denial of her petition is clearly erroneous. Despite the circuit court's alleged failure to make specific written findings and in the interest of judicial economy, we find the allegation in appellant's petition is not cognizable under Rule 37, and thus warrants no relief.

Rule 37 was designed as a means to collaterally attack a conviction. McCroskey v. State, 278Ark. 156, 644 S.W.2d 271 (1983). Petitioner is attempting to raise questions about a witness's credibility and recantations surrounding the events of appellant's case which constitutes a direct attack on the judgment. The credibility of witnesses and new evidence are matters for trial since such issues constitute a direct attack on the judgment. See Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981). Clearly, the challenge raised by petitioner constitutes a direct challenge to the conviction. Because it is a direct challenge in the form of new evidence, it is not cognizable under Rule 37. See Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987); McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). Thus, the trial court's decision denying appellant's petition is not clearly erroneous.

Affirmed.