Rammie Earl Hall v. State of Arkansas

Rammie Earl HALL v. STATE of Arkansas

CR 95-166                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Attorney & client -- claim of ineffective assistance of
     counsel -- proof required. -- To prevail on any claim of
     ineffective assistance of counsel, the petitioner must first
     show that counsel's performance was deficient, this requires
     showing that counsel made errors so serious that counsel was
     not functioning as the "counsel" guaranteed the petitioner by
     the Sixth Amendment; second, the petitioner must show that the
     deficient performance prejudiced the defense as to deprive the
     petitioner of a fair trial; unless a petitioner makes both
     showings, it cannot be said that the conviction resulted from
     a breakdown in the adversarial process that renders the result
     unreliable.  

2.   Attorney & client -- ineffective-assistance claim --
     presumption of reasonable assistance exists. -- When reviewing
     ineffective-counsel claims, a court must indulge in a strong
     presumption that counsel's conduct falls within the wide range
     of reasonable assistance; the petitioner must show there is a
     reasonable probability that, but for counsel's errors, the
     factfinder would have had a reasonable doubt respecting guilt,
     i.e., the decision reached would have been different absent
     the errors; a reasonable probability is a probability
     sufficient to undermine confidence in the outcome of the
     trial.

3.   Criminal law -- appellant's claim without merit -- claimed
     error never occurred. -- Where the appellee's amended
     information charged appellant with one count of capital murder
     but alleged both premeditated and deliberated murder "and"
     capital felony murder while committing robbery and burglary,
     appellant claimed the charges prevented the separation of
     evidentiary objections and rulings during trial; this argument
     was summarily disposed of because appellant failed to point to
     any incidence at trial where he was denied making an objection
     or was unable to obtain a ruling.  

4.   Criminal law -- amended information did not change nature or
     degree of crime charged -- appellant's argument without merit.
     -- Appellant's contention that the appellee's amended
     information increased the nature and degree of his offense was
     without merit; an amended information adding premeditated and
     deliberated capital murder does not change the nature or
     degree of the crime charged; here appellant failed to show how
     the outcome of his trial would have been different had the
     prosecutor been forced to elect between the capital murder
     crimes. 

5.   Criminal law -- information signed by deputy prosecutor valid
     -- first amended information had no effect on three properly
     filed subsequent amendments. -- Appellant's contention that
     the appellee's fourth amended information charging him with
     capital murder was invalid and should have been quashed
     because a deputy prosecutor had previously signed the first
     amended information in the name of the prosecutor but without
     the prosecutor's consent, thereby nullifying the trial court's
     subject-matter jurisdiction, was meritless; subject-matter
     jurisdiction is determined from the pleadings; here, the
     record clearly reflected a properly signed amended information
     giving the trial court jurisdiction; also, aside from his
     jurisdiction argument, appellant gave no citations of
     authority or sound argument why the appellee's first amended
     information should taint the three subsequent amendments
     properly filed in this case.

6.   Jury -- giving of erroneous instruction -- showing of
     prejudice not required. -- In cases involving a trial court's
     giving of an erroneous instruction involving the trial
     mechanism to be used in deciding either a civil or criminal
     case, the appellant is not required to demonstrate prejudice;
     however, an appellee may still demonstrate that the giving of
     an erroneous instruction was harmless. 

7.   Jury -- giving of erroneous instruction -- determination as to
     whether reversible error occurred. -- In determining whether
     reversible error resulted in giving an erroneous instruction
     omitting one element of the government's burden of proof, it
     is important to review an allegedly faulty jury instruction in
     context with the entire jury charge and the entire trial;  
     other proper jury instructions and the context of the whole
     trial may correct any error in the isolated erroneous
     instruction, and thus the jury charge as a whole properly
     conveys the government's burden to the jury. 

8.   Attorney & client -- capital murder instruction not correctly
     given -- counsel's failure to object not reversible error. --
     Appellant's argument that his counsel was ineffective by
     failing to object to defective instructions of capital murder
     failed because he could not show that, but for his counsel's
     failure to object to the trial court's omission when
     instructing the jury on capital felony murder, the jury would
     have reached a different decision; upon review of the trial
     court's other correct instructions, it appeared that the jury
     would have rendered the same verdict.

9.   Attorney & client -- lesser-included instruction not tendered
     as matter of trial strategy -- matters of trial tactics are
     not grounds for postconviction relief. -- Appellant's argument
     that his counsel was ineffective because he did not tender the
     lesser-included instruction on first-degree-felony murder was
     meritless where appellant's defense was that he had nothing to
     do with the victim's death; appellant's trial counsel could
     have foregone arguing any lesser offense to the jury because
     the lower offense was inconsistent with his defense; matters
     of trial tactics and strategy are not grounds for
     postconviction relief, and this reason alone is sufficient to
     affirm.

10.  Appeal & error -- no citation of authority given for argument
     -- no error found. -- Appellant's argument that his trial
     counsel should have objected to the jury's return of a general
     verdict was meritless where he offered no citation of
     authority or convincing argument showing he was entitled to
     such a verdict.  

11.  Attorney & client -- advice of counsel part of trial strategy
     -- no grounds for postconviction relief given. -- Appellant's
     argument that his ineffective counsel improperly advised him
     to plead guilty to the theft of the victim's credit card was
     meritless where appellant conceded that the counsel's advice
     was a matter of strategy; matters of trial tactics and
     strategy are not grounds for postconviction relief. 

12.  Appeal & error -- postconviction relief does not allow
     reargument of points already settled on appeal. --
     Postconviction relief does not provide an opportunity to
     reargue points already settled on appeal.  

13.  Attorney & client -- ineffective assistance of counsel argued
     -- argument without merit. -- Appellant's argument that his
     counsel was ineffective because the counsel never requested
     funds to employ a private investigator to properly investigate
     pretrial discovery in preparation for trial failed because he
     did not cite what specific evidence or testimony favorable to
     appellant that a private investigator would have found had one
     been employed.

14.  Attorney & client -- ineffective counsel argument failed --
     appellant had no standing to claim an expectation of privacy
     in property held by another. -- Appellant's claim that
     property belonging to him was seized without a warrant from a
     third person, and therefore, his counsel should have requested
     suppression of this evidence was meritless; an appellant does
     not have standing to claim an expectation of privacy in
     property held by another, even though that property may be
     his. 


     Appeal from Randolph Circuit Court; Harold Erwin, Judge;
affirmed.
     Appellant, pro se.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     Tom Glaze, Justice.
     Appellant Rammie Hall was convicted of the capital murder of
George DeClerk and sentenced to life without parole.  Hall
appealed, raising nine points for reversal, and this court found no
merit to his arguments and affirmed.  Hall v. State, 315 Ark. 385,
868 S.W.2d 453 (1993) (Hall I).  Within sixty days after this
court's mandate was issued, Hall filed a post-conviction petition
in Randolph County Circuit Court, alleging his counsel had been
ineffective at his trial.  The trial court denied Hall's petition,
and Hall now raises seven arguments why the trial court should be
reversed.
     To prevail on any claim of ineffective assistance of counsel,
the petitioner must first show that counsel's performance was
deficient.  This requires showing that counsel made errors so
serious that counsel was not functioning as the "counsel"
guaranteed the petitioner by the Sixth Amendment.  Thomas v. State,
322 Ark. 670, 911 S.W.2d 259 (1995).  Second, the petitioner must
show that the deficient performance prejudiced the defense as to
deprive the petitioner of a fair trial.  Id.  Unless a petitioner
makes both showings, it cannot be said that the conviction resulted
from a breakdown in the adversarial process that renders the result
unreliable.  Id.
     Further, when reviewing ineffective-counsel claims, a court
must indulge in a strong presumption that counsel's conduct falls
within the wide range of reasonable assistance.  Strickland v.
Washington, 466 U.S. 668 (1984).  The petitioner must show there is
a reasonable probability that, but for counsel's errors, the
factfinder would have had a reasonable doubt respecting guilt,
i.e., the decision reached would have been different absent the
errors.  Id.  A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the trial.  Id.
     We now address Hall's first point that his counsel was
ineffective because he failed to compel the State to elect between
charging Hall with either premeditated and deliberated capital
murder or capital felony murder.  The State's amended information
charged Hall with one count of capital murder, but alleged both
premeditated and deliberated murder "and" capital felony murder
while committing robbery and burglary.  He claims the amended
information changed the nature and degree of the offense, and he
was prejudiced by the "duplicitous, overbroad and vague charging
instrument."  He also claims the charges prevented the separation
of evidentiary objections and rulings during trial, but we dispose
of this argument summarily because he fails to point to any
incidence at trial where he was denied making an objection or was
unable to obtain a ruling.  
     As to his contentions that the State's amended information
increased the nature and degree of his offense, we point out that
this court answered this argument in Rucker v. State, 320 Ark. 643,
899 S.W.2d 447 (1995).  There, Rucker challenged a pretrial
amendment of an information that charged Rucker with capital murder
on the basis of felony murder and added, as an alternative, the
charge of capital murder based upon premeditated and deliberated
purpose.  This court held that the amended information adding
premeditated and deliberated capital murder did not change the
nature or degree of the crime charged.  See also Nance v. State,
323 Ark. 583, 918 S.W.2d 114 (1996).  In view of our holding in
Rucker, Hall simply fails to show how the outcome of his trial
would have been different had the prosecutor been forced to elect
between the capital murder crimes.  We also note that, in arguing
he was denied a fair trial, Hall never points to the evidence he
was prevented from presenting, or shows how he was prejudiced
because he had been charged with one count of capital murder,
albeit with two types. 
     In his second point, Hall contends that the State's fourth
amended information charging him with capital murder was invalid
and should have been quashed because a deputy prosecutor had
previously signed the first amended information in the name of the
prosecutor, but without the prosecutor's consent.  Hall argues
Amendment 21 to the Arkansas Constitution only allows a deputy
prosecutor to file informations if the prosecutor gave his consent
and authorization to do so.  As a consequence, Hall claims the
trial court had no subject-matter jurisdiction.  In Bingley v.
State, 235 Ark. 982, 363 S.W.2d 530 (1963), the court considered a
similar argument.  There, Bingley argued Amendment 21 required the
information to be signed by the prosecutor, but this court opined
the deputy attorney could sign the information in the name of the
prosecuting attorney and still be in compliance with the
Constitution, as long as the deputy indicates by whom the
prosecutor's name is being signed on the information.  While Hall
argues that a letter signed by the deputy inferred the prosecutor
had no knowledge of the first amended information, we point out
that subject-matter jurisdiction is determined from the pleadings. 
Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992).  Here, the
record clearly reflects a properly signed amended information
giving the trial court jurisdiction.  We also note that, aside from
his jurisdiction argument, Hall gives no citations of authority or
sound argument why the State's first amended information should
taint the three subsequent amendments properly filed in this case.
     Next, Hall argues his counsel was ineffective by failing to
object to defective instructions of capital murder.  Ark. Code Ann.
 5-10-101(a)(1) and (4) defines capital murder in relevant part as
follows:
          (1) [I]f he commits or attempts to commit [burglary]
     and in the course of and in furtherance of the felony, or
     in immediate flight therefrom, he or an accomplice causes
     the death of any person under circumstances manifesting
     extreme indifference to the value of human life; or
          (4) With the premeditated and deliberated purpose of
     causing the death of another person, he causes the death
     of any person.
     Hall correctly asserts that the trial court, in its
instruction defining capital felony murder, omitted the words
"under circumstances manifesting extreme indifference to the value
of human life."  He argues this omission was error because, without
it, a conviction entailing punishment by death could be based on
conduct that would otherwise support, at most, only a conviction of
manslaughter or negligent homicide.  He further argues error ensued
because the jury was allowed to render a guilty verdict without
finding proof beyond a reasonable doubt of every element of the
crime with which he was charged.
     In Skinner v. R.J. Griffen & Co., 313 Ark. 430, 855 S.W.2d 913
(1993), this court held that, henceforth, in cases involving a
trial court's giving of an erroneous instruction involving the
trial mechanism to be used in deciding either a civil or criminal
case, we will not require the appellant to demonstrate prejudice. 
We said that such a requirement is often an impossible burden, and
the requirement of an impossible burden, in effect, renders the
requirement of correct instructions on the law meaningless. 
However, the court cautioned that an appellee may still demonstrate
that the giving of an erroneous instruction was harmless,
mentioning Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983), and
Moore v. State, 252 Ark. 526, 479 S.W.2d 857 (1972), as examples
where the jury demonstrably was not misled because the jury
rejected the theory of the erroneous instruction, and where the
erroneous instruction was obviously cured by other instructions.
     Under the Strickland test, as discussed above, Hall must show
that, but for his counsel's failure to object to the trial court's
omission when instructing the jury on capital felony murder, the
jury would have reached a different decision.  Here, he fails to do
so because when reviewing the trial court's other correct
instructions, we conclude the jury would have rendered the same
verdict.
     In determining whether reversible error resulted in giving an
erroneous instruction omitting one element of the government's
burden of proof, the Eighth Circuit Court of Appeals has stated its
view on how to proceed, and we find it helpful here.  That court,
in U.S. v. West, 28 F.3d 748 (8th Cir. 1994), stated the following:
     This court's precedent . . . highlights the importance of
     reviewing an allegedly faulty jury instruction in context
     with the entire jury charge and the entire trial.  See
     United States v. McMillan, 820 F.2d 251, 256 (8th Cir.),
     cert. denied, 484 U.S. 898, 108 S. Ct. 234, 98 L. Ed. 2d 193
     (1987).  In McMillan, this court examined a criminal jury
     instruction that, if viewed in isolation, appeared to
     remove one element of the government's burden of proof. 
     Id.  Nevertheless, this court determined that two other
     proper jury instructions and the context of the whole
     trial corrected any error in the isolated erroneous
     instruction, and thus the jury charge as a whole properly
     conveyed the government's burden to the jury.  (Emphasis
     added.)  
     In considering the tests set out in Skinner and West, we look
at the trial and at all the instructions given to determine if the
trial court's erroneous omission was cured and whether there was a
likelihood the jury applied the defective capital felony
instruction to lower the government's burden of proof.  Skinner,
313 Ark. at 435; West, 28 F.3d   at 751.
     First, in reviewing other instructions given at Hall's trial,
we find the jury was told that, if it had a reasonable doubt of
Hall's guilt on the charge of capital murder, it was then to
consider second-degree murder.  It said that, to sustain this
charge, the state must prove beyond a reasonable doubt that Hall
knowingly caused the death of George DeClerk "under circumstances
manifesting extreme indifference to the value of human life."  As
is readily seen when reading the trial court's instructions, if the
jury gave any import to evidence which might have fallen within the
element and phrase "under circumstances manifesting extreme
indifference to the value of human life," the jury could have found
Hall guilty of the lesser-included offense of second-degree murder;
it did not.  Also, because the second-degree murder instruction was
given the jury, Hall simply is wrong that, but for the omission of
the "extreme indifference to the value of human life" phrase, only
manslaughter or negligent homicide convictions could be had. 
     Before leaving this point, we also address Hall's reference to
the trial court's having omitted the last sentence from the capital
felony murder instruction.  That instruction sets out the State's
contention that George DeClerk's death occurred during the
commission of the crime of burglary.  Hall submits the trial court
erred by leaving out the ending sentence, "If you do not find
beyond a reasonable doubt that Hall committed or attempted to
commit the crime of burglary, then he is not guilty of capital
felony murder."  Hall claims prejudice resulted because the State
put on no evidence placing him at the scene of the crime, and
without proof that he entered or remained unlawfully in DeClerk's
residence, he could not be convicted of the capital felony murder
offense.  
     First, we note the trial court, when giving the capital felony
murder instruction, instructed the jury that, as a part of the
charge of capital murder, the state must prove burglary beyond a
reasonable doubt by showing Hall had entered or remained unlawfully
in DeClerk's residence and he did so with the purpose of committing
theft.  And while Hall, by his argument here, fails to accept that
the State made its case that Hall had burglarized DeClerk's
residence and unlawfully converted DeClerk's personal property, we
must disagree.  In Hall I, we held there was more than sufficient
evidence, albeit circumstantial, to show he committed the crime of
burglary and capital murder.  Hall, 315 Ark. at 391.
     Hall makes another instruction argument, asserting his counsel
was ineffective because he did not tender the lesser-included
instruction on first-degree-felony murder.  We reject Hall's
argument because Hall's defense was that he had nothing to do with
the victim's death, and in fact claimed that two other men were
implicated in the beating and killing of the victim.  It would have
made no sense to instruct on first-degree-felony murder when Hall
contended he did not kill the victim, but someone else did.  See
Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).  As a
matter of strategy, Hall's trial counsel could have foregone
tendering or arguing any lesser offense to the jury, especially
since the lower offense was inconsistent with his defense at trial. 
Matters of trial tactics and strategy are not grounds for
postconviction relief, and this reason alone is sufficient to
affirm on this point.  See Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995).  
     Hall's next argument is his trial counsel should have objected
to the jury's return of a general verdict.  He claims counsel's
failure resulted in Hall not knowing which offense he was found
guilty of and whether the jury found all elements of the offense
had been proven beyond a reasonable doubt.  In this argument, Hall
also claims the jury was not instructed to return a unanimous
verdict.  Contrary to Hall's assertion, the record reflects the
jury was told its verdict must be unanimous.  The jury was polled
and all twelve jurors agreed with the verdict.  Regarding Hall's
general verdict argument, he offers no citation of authority or
convincing argument showing he was entitled to such a verdict. 
Therefore, Hall fails to show error on this point.
     Hall also argues that his ineffective counsel improperly
advised Hall to plead guilty to the theft of DeClerk's credit card
which was found in his truck in White County.  He complains that,
because of this bad advice, the White County theft conviction was
later used to enhance the evidence introduced at his capital murder
trial in Randolph County, where DeClerk resided and was killed. 
Hall concedes his counsel's advice was a matter of strategy, but he
argues such advice was unethical.  We have held that matters of
trial tactics and strategy are not grounds for post-conviction
relief.  Hilton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). 
Hall additionally attempts to argue double jeopardy concerning the
convictions rendered in White and Randolph Counties, but we dealt
with that issue in Hall I.  While Hall asserts his counsel failed
to argue the double jeopardy issue correctly, we have held that
post-conviction relief does not provide an opportunity to reargue
points already settled on appeal.  See O'Rourke v. State, 298 Ark.
144, 765 S.W.2d 916 (1989).
     Hall further argues that his counsel was ineffective because
the counsel never requested funds to employ a private investigator
to properly investigate pretrial discovery in preparation for
trial.  Hall fails to cite what specific evidence or testimony
favorable to Hall that a private investigator would have found had
one been employed.  Further, Hall fails to cite specific testimony
favorable to him which would have been elicited if further trial
preparation had occurred.  While Hall cites specific "missing"
reports, he fails to show that these reports, had they been
favorable to him, would have changed the outcome of the trial in
light of the strong evidence against him.  On this point, Hall also
contends that his counsel failed to object to a witness's in-court
identification of him when she had been unable to identify him from
a prior photographic lineup.  However, as the State points out,
Hall's counsel ably cross-examined the witness and elicited
testimony of her prior failure to identify Hall.  Further, the
witness was able to support her in-court identification and
presented testimony which the jury was justified in believing.  
     Finally, Hall claims property belonging to him was seized
without a warrant from a third person in Nevada, and therefore, his
counsel should have requested suppression of this evidence.  Hall
does not inform this court of the specific evidence so seized or of
the specific facts surrounding its seizure.  As the State notes,
Hall does not have standing to claim an expectation of privacy in
property held by another, even though that property may be his. 
U.S. v. Payner, 447 U.S. 727 (1980).
     In sum, because the errors claimed by Hall amount to no error
or to trial strategy, or because Hall failed to show the verdict
would have been different, Hall has failed to meet his burden to
obtain Rule 37 relief based on ineffective assistance of counsel. 
We affirm.  
     Corbin and Roaf, JJ., concur.