John Kail v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
September 25, 2003

JOHN KAIL

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-494

APPEAL FROM THE CIRCUIT COURT OF CROSS COUNTY, CR 97-160, HONORABLE L.T. SIMES II, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of first-degree murder and sentenced to life imprisonment. We affirmed on appeal. See Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37 and an amended petition, alleging ineffective assistance of counsel. A hearing was held, and relief was denied. Appellant appealed; however, upon motion by the State, he was ordered to file a substituted abstract and brief in accordance with Ark. Sup. Ct. R. 4-2(a)(5) (2002). Appellant complied, and we now consider his arguments on appeal.

The Supreme Court enunciated the following standard for assessing the effectiveness of counsel:

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 a 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 v. Washington, 466 U.S. 668, 687 (1984). Thus, a defendant must first show 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 a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant 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 by a mere showing of error by counsel. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must 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 the preponderance of the evidence. Noel, supra.

For his first point, appellant argues that the trial court erred in denying his claim that trial counsel rendered ineffective assistance by failing to move for suppression of appellant's custodial statements. According to appellant, his arrest was illegal because there was no arrest warrant and because appellant was seized in Texas; therefore, the statements obtained by the officers were "fruits of the arrest and subject to the suppression rule."

At trial, Officer J.R. Smith of the Arkansas Highway Police and appellant's half-brother, testified that appellant contacted him following the murder of Larry Chappell, appellant's father-in-law, and told Smith that he was in Irving, Texas, and that he wanted to come home. Smith testified that he and Cross County Sheriff's Deputy Mike Bachand went to Texas to pick up appellant. According to Smith, upon arriving in Texas, Smith and Bachand placed appellant in the backseat of the patrol car, read him an arrest warrant and his rights. The statements at issue occurred during the ride home when appellant stated that he did not realize that he had shot anyone and asked to go to the victim's funeral.

Appellant's argument fails because even if counsel had made a successful motion to suppress, appellant has not satisfied the prejudice prong of Strickland, which is necessary for a finding of ineffective assistance. Under Strickland, appellant must show that had his statements been suppressed, the outcome of his trial would have been different. Appellant fails to make such a showing, as there was ample evidence other than his statements to convict him of first-degree murder, including an eyewitness identification, witness testimony, and a ballistics match of shell casings.

At trial, evidence was presented that on October 2, 1997, appellant went to the home of William Ishmael and asked Ishmael to drive him to a pawn shop to buy a rifle. Ishmael drove appellant to the pawn shop, and appellant purchased the weapon. The two men then purchased shells and beer and drove to an area where they could fire their guns. After shooting for awhile, appellant asked Ishmael to drop him off less than one-half mile from the victim's home. According to Ishmael, appellant told him that a friend would be picking him up to go hunting, although it was not gun season, according to Ishmael.

Valerie Chappell, wife of the victim, testified that sometime between eight and nine o'clock that evening, gunshots were fired into her residence. She testified that her daughter, Kim Chappell Kail, appellant's ex-wife, was staying at her home and had gone to bed when the shooting began. Mrs. Chappell stated that her husband was wounded by one of the shots and that she saw appellant standing inside the patio doors with a rifle in his hand. Mr. Chappell later died as a result of his gunshot wound. There was also testimony that the Arkansas State Crime Laboratory was able to match shell casings found at the crime scene to those collected at the site where Ishmael and appellant were practice shooting. Because of the amount of evidence against appellant, suppression of his statements would not have changed the outcome of the trial; therefore, we affirm the denial of postconviction relief.

Appellant's second point on appeal is that the trial court erred by rejecting his claim that counsel was ineffective for failing to adequately investigate and present a defense. At trial, appellant attempted to offer evidence regarding his alleged marital discord with the victim's daughter in an attempt to prove that appellant was suffering from an extreme emotional disturbance and to justify a lesser-included instruction for manslaughter. The trial court excluded this evidence and any evidence offered to establish an extreme emotional disturbance. The defense then rested without submitting additional evidence. At the Rule 37 hearing, counsel testified that based upon the trial court's exclusion of this evidence, he was unable to pursue the theory of extreme emotional disturbance.

On appeal, appellant appears to disagree with counsel's decision to pursue the theory of extreme emotional disturbance; however, the decision was a matter of trial strategy and not grounds for a finding of ineffective assistance of counsel. See State v. Goff, 349 Ark. 532, 538, 79 S.W.3d 320, 323 (2002). Moreover, "[a]lthough a strategy may be poor or mistaken, that does not make it deficient for purposes of an ineffective-assistance claim." Id. at 538, 79 S.W.3d at 324.

As for appellant's claim that counsel was ineffective for his failure to investigate, we look to our holding in Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001):

As with any other claim of ineffective assistance of counsel, a petitioner cannot succeed merely by alleging that counsel was not prepared or did not spend enough time on his case. Rather, he still must show what evidence or witnesses would have been discovered had counsel properly investigated the case and that, but for counsel's lack of preparation, there is a reasonable probability that the outcome of his trial or sentence would have been different.

Id. at 129, 55 S.W.3d at 263. At the Rule 37 hearing, trial counsel was the only witness called to testify, and appellant offered no evidence of alternative defense theories or witnesses that could have been called on his behalf. Accordingly, we affirm the ruling below.

Affirmed.

Thornton, J., not participating.