Monroe McGhee v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

April 19, 2001

MONROE McGHEE

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 99-554

APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY, NO. CR 96-269, HONORABLE SAMUEL TURNER, JR., JUDGE

AFFIRMED

In 1996, appellant was convicted by jury in the Mississippi County Circuit Court of possession of a controlled substance with intent to deliver, first-degree battery, simultaneous possession of drugs and firearms, and being a felon in possession of a firearm. The trial court sentenced appellant to a total of forty years' imprisonment. In addition, the trial court revoked appellant's probation in a prior case and sentenced him to a concurrent term of ten years' imprisonment. We affirmed appellant's convictions and sentences in McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The trial court conducted a hearing, and then denied the petition in a lengthy order. In this appeal, appellant submits nine reasons why the trial court erred in denying relief. We find no error and affirm.

Ineffective Assistance of Counsel

Appellant asserts eight points on appeal alleging ineffective assistance of counsel. TheSupreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must 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 defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against thepreponderance of the evidence. Noel, 342 Ark. at 38, 26 S.W.3d at 125. Finally, we have long held that a party appearing pro se receives no special consideration on appeal. Brown v. Arkansas Dep't of Correction, 339 Ark. 458, 460, 6 S.W.3d 102, 103 (1999).

Appellant first claims that his trial counsel was ineffective in failing to secure a specific ruling on his pretrial motion to suppress as to the issue of whether the police had the authority to enter and to search the third-party residence in which he was arrested. We refuse to consider this claim because appellant raises it for the first time in this appeal. Miner v. State, 342 Ark. 283, 288, 28 S.W.3d 280, 283 (2000). While appellant raised similar claims in his petition, parties may not change on appeal the scope and nature of their arguments made below. Hunter v. State, 330 Ark. 198, 203, 952 S.W.2d 145, 148 (1997).

Appellant contends that his trial counsel was ineffective in failing to introduce investigative police reports into evidence to impeach the trial testimony of the police officers involved in appellant's apprehension. The trial court correctly denied relief on this claim. Investigative police reports are inadmissible hearsay. Ark. R. Evid. 806(8). Appellant's trial counsel cannot be ineffective in failing to make an argument which has no merit. Sanford v. State, 342 Ark. 22, 28, 25 S.W.3d 414, 418 (2000). Moreover, the trial court credited the testimony of appellant's trial counsel that he believed appellant was attempting to influence him to offer false evidence at trial via the police reports. As a matter of law, counsel is not ineffective for failing to present false testimony. Noel, 342 Ark. at 39, 26 S.W.3d at 126 (citing Nix v. Whiteside, 475 U.S. 157 (1986)).

Appellant's next claim is that his trial counsel was ineffective in failing to investigate and present the defense theory that he accidentally shot his victim, Clifton Robinson. See McGhee, 330 Ark. at 39, 954 S.W.2d at 207. At trial, appellant's trial counsel presented a defense of complete denial. At the Rule 37 hearing, trial counsel testified that appellant told him prior to trial that hedid not shoot Mr. Robinson and was not in the area of the shooting when it occurred. Trial counsel first became aware that appellant was changing his story when appellant testified at trial in his defense. At that time, appellant stated that he was in the area, but that the shooting was an accident. The trial court credited the testimony of appellant's trial counsel in denying relief on this claim, and rejected appellant's contrary testimony. We defer to the superior position of the trial judge in matters of credibility, and the trial judge is not required to believe the testimony of any witness, especially that of the accused. Rankin v. State, 338 Ark. 723, 729-32, 1 S.W.3d 14, 732-33 (1999). Furthermore, we have held that an attorney cannot be declared ineffective for failing to present a defense theory entirely inconsistent with the defendant's denial of committing the crime. Pyle v. State, 340 Ark. 53, 64, 8 S.W.3d 491, 498 (2000). Appellant's trial counsel was not ineffective in failing to investigate and present the defense that appellant shot his victim when appellant changed his story in the middle of his trial.

Appellant's fourth claim is that his trial counsel was ineffective in failing to argue that his convictions for possession of a controlled substance with intent to deliver, simultaneous possession of drugs and firearms, and being a felon in possession of a firearm violated his protection from double-jeopardy because they arose from the same conduct. We addressed a similar claim in Rowbottom v. State. 341 Ark. 33, 13 S.W.3d 904 (2000). In Rowbottom we held that convictions for possession with intent to deliver a controlled substance and simultaneous possession of drugs and firearms do not violate double-jeopardy because the General Assembly clearly intended for the two offenses to be separate offenses. Id. at 40, 13 S.W.3d at 908. Likewise, possession of a firearm by a person convicted of a felony, Ark. Code Ann. § 5-73-103(a)(1), is clearly a separate offense from simultaneous possession of drugs and firearms, Ark. Code Ann. § 5-74-106(a)(1). Each of those crimes requires proof of a fact the other does not. See Sherman v. State, 326 Ark. 153, 162-65,931 S.W.2d 417, 423-24 (1996)(quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). To wit, the former requires proof that the accused has been convicted of a felony, whereas the latter requires proof that the accused possessed drugs or otherwise violated Ark. Code Ann. § 5-64-401. The trial court did not clearly err in denying relief on this claim.

Appellant's next claim arises from our refusal in appellant's direct appeal to consider his claim that the trial court erred in denying his motion to suppress because his abstract failed to reveal that a ruling was obtained on the motion. McGhee, 330 Ark. at 41-42, 954 S.W.2d at 208. Appellant now contends that his appellate counsel was thus ineffective in failing to properly abstract the ruling. The critical issue, then, for purposes of this review, is whether it is reasonably probable that appellant would have prevailed in his direct appeal on his suppression claim. See Noble v. State, 319 Ark. 407, 416, 892 S.W.2d 477, 481 (1995). That review entails consideration of whether the circuit court properly denied the motion to suppress as to appellant's claims on direct appeal that the evidence was gathered as a result of the issuance of an invalid arrest warrant and that the arresting officers lacked the authority to enter the third-party residence in which he was arrested. See McGhee, 330 Ark. at 41, 954 S.W.2d at 208. Nonetheless, we cannot conduct the proper review because appellant's abstract in this appeal is likewise deficient.

It is a fundamental rule that the appellant is required to provide an abstract that contains information from the record necessary to an understanding of the questions presented to the court for decision. Ark. Sup. Ct. R. 4-2(6); Evans v. State, 331 Ark. 240, 241, 959 S.W.2d 745, 746 (1998). Appellant, however, has failed to abstract the documents, pleadings, and testimony essential to the review of his claim. He has not abstracted the allegedly invalid arrest warrant, and he has only partially abstracted the suppression hearing. Moreover, while the appellee has submitted a supplemental abstract, it too only partially abstracts the suppression hearing. We affirm the trialcourt's denial of relief on this claim because of appellant's noncompliance with our abstracting rule. Ark. Sup. Ct. R. 4-2(b)(3).

The sixth claim raised by appellant is that his trial counsel was ineffective in failing to argue at the suppression hearing that appellant possessed standing to challenge the entrance of the police officers into the third-party residence in which he was arrested because it was his temporary residence. The trial court denied relief on this claim, concluding that the arresting officers had the authority to enter the residence and arrest appellant without his consent or a search warrant, even accepting as true appellant's contention that he was staying at the residence with his girlfriend. The essential facts surrounding the officers' entry into the residence and appellant's subsequent arrest are necessary for appellate review of this claim, but again, we are unable to conduct the proper review because appellant failed to abstract the suppression hearing. Ark. Sup. Ct. R. 4-2(a)(6). The denial of relief on this claim in affirmed.

Appellant's next claims that his trial counsel was ineffective in failing to raise an argument alleging a violation of his due process rights. Appellant alleges that the State delayed seven months in filing an information, in serving him with a warrant, or in giving him a probable cause hearing on two charges of aggravated assault based on the factual allegation that appellant pointed a gun at the police and at his girlfriend during a stand-off when he was apprehended. Appellant contends that he suffered extreme prejudice by the revelation to the jury that he pointed a gun to the head of his girlfriend. We cannot review this claim because appellant has failed to abstract the original charging information or the amended information, or the relevant parts of his suppression hearing or his trial. Id. In any event, appellant could not prevail on this claim because he suffered no prejudice from his counsel's failure to raise the issue below. The mere amendment of the information is not prejudicial because the State is entitled to amend an information at any time priorto the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. Stewart v. State, 338 Ark. 608, 612, 999 S.W.2d 684, 680 (1999). Even in cases where it is clear that an amended information has changed the degree of a crime, an appellant must show he was prejudiced by the amendment. See Holloway v. State, 312 Ark. 306, 313, 849 S.W.2d 473, 477 (1993). Appellant admits that one charge of aggravated assault was nol prossed at the suppression hearing, and that the trial court granted a directed verdict on the other. Finally, the State is entitled to show all of the circumstances connected with a particular crime to put the jury in possession of the entire transaction. Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000). Thus, no prejudice resulted from disclosure of appellant's actions to the jury, and the circuit court did not clearly err in denying relief on this claim.

The appellant's final claim is that his trial counsel was ineffective in failing to renew the motion to suppress at the close of the evidence. This claim, and appellant's argument in support, simply mirrors the similar claims discussed above concerning his motion to suppress and admissibility of the police reports. In any event, we are unable to review this claim because of appellant's aforementioned noncompliance with our abstracting rules. The trial court's denial of relief on this claim is affirmed.

Motion for Polygraph Test

Appellant contends that the trial court erred in denying his motion requesting a State funded polygraph examination of himself so as to bolster the credibility of his testimony in anticipation of certain factual disputes expected to arise at the Rule 37 hearing. The trial court did not clearly err in denying relief on this claim because we have long held that, absent a stipulation by both parties, polygraph results are inadmissible. Weaver v. State, 339 Ark. 97, 104, 3 S.W.3d 323, 328 (1999). Thus, appellant is unable to show he was in any way prejudiced by the denial of his motion.

Affirmed.