Billy Welch v. State of Arkansas

cr03-539

ARKANSAS SUPREME COURT

No. CR 03-539

NOT DESIGNATED FOR PUBLICATION

BILLY WELCH

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered May 5, 2005

APPEAL FROM THE CIRCUIT COURT OF DALLAS COUNTY, NO. CR 95-56-4, CV 97-11, HONORABLE CAROL CRAFTON ANTHONY, JUDGE

AFFIRMED

PER CURIAM

Appellant was convicted of possession of a controlled substance with intent to deliver, felon in possession of a firearm, simultaneous possession of a controlled substance and a firearm, and possession of drug paraphernalia. He was sentenced as a habitual offender to two terms of life in prison for the possession-with-intent charge and the simultaneous possession charge, six years for being a felon in possession of a firearm, and ten years for the drug paraphernalia charge. We affirmed on appeal. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37 in Case No. CR 95-56-4 and a motion for a hearing pursuant to Ark. R. Crim. P. 15 in Case No. CV 97-111, both of which were denied following a hearing. From those orders comes this appeal.

We first address appellant's Rule 37 petition. Appellant's first claim is that counsel was ineffective for failing to move for dismissal on speedy-trial grounds. The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (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 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.

Id. at 687. 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 or by revealing that counsel's failure to object prevented an issue from being addressed on appeal. 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.

In denying relief, the trial court held that a motion for dismissal on speedy-trial grounds would not have prevailed. The court noted that appellant was tried more than a year after his arrest; however, according to the court, there was an excludeable period of time from March 25, 1996 to August 26, 1996 due to a motion for continuance2, along with a period of thirty days following a motion for discovery filed on January 29, 1996. The trial court found that if one subtracts these excludeable periods from the 502 days between appellant's arrest and his trial, appellant was brought to trial within the one-year period. Accordingly, the court held that counsel's failure to file a motion for dismissal on speedy-trial grounds was not ineffective as counsel knew such a motion was "unwarranted."

The law governing speedy trials has been stated often by this court. Arkansas Rule of Criminal Procedure 28 governs speedy-trial determinations. The rule requires the State to try a defendant within twelve months, excluding any periods of delay authorized by Rule 28.3. See Miles v. State, 348 Ark. 544, 550, 75 S.W.3d 677, 680 (2002). The time for trial begins to run from the date the charge is filed; however, if prior to that time, the defendant has been continuously held in custody, on bail, or lawfully at liberty, the time shall begin to run from the date of arrest. See Ark. R. Crim. P. 28.2(a); Ferguson v. State, 343 Ark. 159, 167, 33 S.W.3d 115, 120 (2000). Once a defendant demonstrates a prima facie case of a speedy-trial violation, the burden is on the State to show that the delay was the result of the defendant's conduct or was otherwise justified. See Turnerv. State, 349 Ark. 715, 721, 80 S.W.3d 382, 386 (2002); Burmingham v. State, 346 Ark. 78, 83-84, 57 S.W.3d 118, 122 (2001). If a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1 provides the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that discharged offense. See Moody v. Arkansas County Circuit Court, 350 Ark. 176, 181, 85 S.W.3d 534, 537 (2002).

Appellant was arrested on July 28, 1995, and his trial commenced on December 12, 1996, 502 days later. Appellant does not dispute that the calculation for speedy trial began on his date of arrest. On August 16, 1996, counsel filed a motion for continuance because appellant had failed to show up for appointments and because counsel had been unable to locate him. In an order granting the motion, the trial court continued the trial from March 25, 1996 to August 26, 1996, and further ordered that the 154-day period be excluded from speedy-trial calculation. When we subtract the excluded period from the 502 days, we conclude that appellant was brought to trial within the speedy-trial period. Because there was no basis for counsel to move to dismiss on these grounds, we affirm.

Appellant also claimed that counsel was ineffective for failing to challenge certain evidence, failing to investigate, and failing to call witnesses. These claims involve alleged discrepancies in the contraband seized from appellant's vehicle, which included: syringes, bags containing more than thirty-three grams of methamphetamine, a set of scales, and several spoons. Welch, 330 Ark. at 162-63, 955 S.W.2d at 183. Proof of insurance and ownership of the vehicle were also found in an ammunition box located in the bed of appellant's vehicle. Id. at 163, 955 S.W.2d at 183.

In denying appellant's petition, the trial court ruled only on appellant's claim that counsel failed to call certain witnesses from the Arkansas State Crime Lab. The court found that at no point did appellant deny that the contraband seized was methamphetamine, no evidence was presented that would prove that the material was not methamphetamine, and that no request to independently examine the contraband was received by the court. The court ruled that counsel's decision not to call these witnesses was a matter of trial strategy and not grounds for postconviction relief.

That there were witnesses who could have offered beneficial testimony is not in itself proof of counsel's ineffectiveness, and whether to call a witness is generally a matter of trial strategy outside the purview of Rule 37. See State v. Goff, 349 Ark. 532, 541, 79 S.W.3d 320, 326 (2002). We therefore affirm the ruling below.

As for the remainder of appellant's claims regarding the inventory search, the trial court did not rule on these issues. It was appellant's obligation to obtain rulings in order to preserve those issues for review. Beshears v. State, 340 Ark. 70, 73, 8 S.W.3d 32, 34 (2000). Accordingly, such claims are procedurally barred.

Appellant goes on to claim that counsel was ineffective for failing to make a specific motion for directed verdict. On direct appeal, appellant challenged the sufficiency of the evidence, and this court ruled that the claim was procedurally barred because counsel failed to state specific grounds for his motion. Welch, 330 Ark. at 163-64, 955 S.W.2d at 183. According to appellant, counsel should have argued the following in his motion: (1) the issue of possession; (2) the conflicting testimony regarding what items were seized; (3) the lack of evidence on intent; and (4) the chemist's lack of qualifications. We find no merit, and affirm.

According to the trial court, appellant was found to be in possession of some thirty-three grams of methamphetamine, syringes, spoons, scales, and a handgun. The court ruled that a fact-specific motion for directed verdict would not have been granted; therefore, there was no basis for relief.

There was sufficient evidence presented at trial that appellant constructively possessed the contraband found in the car. In the case of Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000 ), we held:

It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Possession of drugs can be proved by constructive possession. Id. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Id. There must be some other factor linking the accused to the drugs:

Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused's personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest. Id. at 207, 884 S.W.2d at 600.

Dodson, 341 Ark. at 47, 14 S.W.3d at 493. In the present case, Billy Still, an auxiliary deputy for the Dallas County Sheriff's Department, testified that he stopped Welch and his passenger, Jerl Dean McClellan, for a routine safety check. According to Still, appellant was driving an El Camino. When Still ran the tags on the vehicle, they did not match the El Camino. Still testified that appellant could not produce proof of ownership or insurance. He asked appellant if he had any weapons in the vehicle, and appellant responded that he did not have any weapons. Still also testified that appellant later changed his mind, and told Still that he had a weapon behind the seat. Appellant pulled out from behind the back seat, a nine millimeter pistol. Still testified that he asked appellant if he could search the car, and appellant refused. According to Still, after he asked to search the vehicle, appellant became angry, and began cursing. Still testified that because of previous traffic violations, appellant was taken into custody.

An inventory search was then performed on the vehicle. Still testified that they recovered an ammunition box from the bed of the vehicle. The box contained another bag, which contained a "yellowish-white powdery stuff." Still testified that he also found some scales, razors, syringes, a knife, and proof of insurance, which indicated that the El Camino was in appellant's name.

Kenneth Seale, a Dallas County Deputy Sheriff, testified that after being asked to search the vehicle, appellant "started getting very nervous and seemed like to me he was getting aggravated." Mike Knoedl, an Arkansas Game and Fish officer, testified that he assisted in the inventory search of appellant's vehicle. According to Knoedl, he recovered a syringe with a small amount of blood on it "in the open behind the driver's seat, in plain view," before he began. Knoedl also testified that he found a box for disk brake pads, and inside the box was a loaded syringe containing a clear liquid. According to Knoedl, this was also found behind the driver's seat of the El Camino. Knoedl also testified that an ammunition box was located in the bed of the vehicle, behind the driver's side. He opened the lid on the box and saw three bags of a "white-ish, kinda yellow colored powdery substance." He also found a Bill of Sale showing the sale of a vehicle from John B. Robert to appellant. Finally, Knoedl testified regarding a 1995 document showing proof of insurance for the El Camino in appellant's name.

Moreover, Eva Nell White, appellant's girlfriend, testified that appellant owned an El Camino, and let her use it from time to time. White testified that she had been driving the vehicle prior to appellant's arrest. She testified that on the day of appellant's arrest, she had left a friend's house where she had been staying, and as far as she knew, the El Camino was not running when she left. According to White, she never saw the vehicle leave her residence but testified that appellant had told her later that somebody had called him to come and pick up the car, which he did. White testified that she had nothing to do with placing any narcotics or needles in the vehicle.

Finally, Jerl Dean McClellan, the passenger in appellant's vehicle on the day he was stopped, testified that she and appellant had been riding around prior to his being stopped. She testified that she knew nothing about their being drugs in the back seat but that she was aware of the pistol.

Mike Hall, an officer with the Arkansas State Police and supervisor of the narcotics investigators for Company B, which included Dallas County, testified that he assisted in taking into custody items seized from appellant's vehicle. Hall also testified regarding the test results from the State Crime Lab. According to Hall, one of the syringes came back with "no controlled substance detected." However, the second syringe came back positive for methamphetamine. He also testified that the contents of the three bags found in appellant's car came back positive for methamphetamine, weighing approximately 33 grams. The residue on the scales also came back positive for methamphetamine.

When considering the above evidence, we find that there was sufficient evidence to show that appellant constructively possessed the contraband. As stated, some of the contraband was in plain view, while the rest was found in containers that appeared to belong to appellant. Moreover, the contraband was found behind the driver's seat and in the bed behind the driver's seat in a truck owned and driven by appellant. Finally, according to the officers at the scene, appellant was acting agitated and nervous when asked if they could search the car.

Appellant has failed to show that there was a basis to challenge the officers' testimony regarding the inventory search and the contraband seized, especially since the lab tests confirmed that the substance was methamphetamine. Without a showing that a more specific motion for directed verdict would have been successful, there is no basis for relief on a claim of ineffective assistance of counsel. We therefore affirm the denial of relief.

Appellant next claimed that counsel labored under a conflict of interest due to his representation of appellant and appellant's co-defendant, Bill Wright, in a separate federal proceeding. As evidence of such conflict, appellant claimed that counsel received $30,000 from Wright to make sure that appellant was convicted at the state level and also that counsel called no witnesses on appellant's behalf. In its order denying relief, the trial court gave a brief history of the events surrounding the conflict allegation:

Mr. Bill Murphy represented Mr. Welch in Dallas County. During the time the charges were pending in Dallas County, Mr. Welch was also a defendant in United States District Court facing drug conspiracy charges and was represented by Mr. Murphy. Apparently, a Mr. Bill Wright was a co-defendant and was also represented by Mr. Murphy. Mr. Welch alleges this was an inherent conflict of interest that resulted in adequate representation by Mr. Murphy in the Dallas County criminal proceedings. Additional federal criminal charges were filed against Mr. Bill Wright but this time Mr. Bill Murphy was a co-defendant. Mr. Murphy ultimately entered a guilty plea. This conviction resulted in the loss of his license to practice law in the State of Arkansas.

On appeal, appellant changes his argument to allege that counsel received $30,000 from Wright to protect his wife from incarceration. Appellant makes the conclusory claim that this alleged $30,000 payment is evidence of a conflict of interest, and was "detrimental" to his defense. Appellant offers no compelling evidence or argument to support this claim, and a conclusory allegation cannot be a basis for postconviction relief. See, e.g., Sanford v. State, 342 Ark. 22, 27, 25 S.W.3d 414, 417 (2000). We therefore affirm the ruling below.

Appellant goes on to claim that at the Rule 37 hearing, the trial court erred in not allowing into evidence the record of federal proceedings against counsel, which, according to appellant, established a conflict of interest between counsel and appellant. At the hearing, appellant asked to introduce the federal record into evidence for the court's consideration; however, he only had parts of the record, and offered to introduce the rest later. The State objected, arguing that any evidence appellant wished to introduce should be introduced at the hearing and that the State would not agree to the introduction of evidence that it had not seen. The trial court reserved its ruling on the issue.

Appellant later renewed his request to introduce the record of the federal proceedings. The State maintained its objection, which was sustained. Appellant then moved to introduce selected portions of the federal record, and the court denied the motion. The court did permit appellant to proffer the portions for the record. Appellant then withdrew the proffer. Because appellant elected to withdraw his proffer, his claim regarding the federal proceedings is barred.

To obtain appellate review on a claim that the trial court erroneously rejected evidence, a party must proffer such evidence. Arnett v. State, 353 Ark. 165, 173, 122 S.W.3d 484, 489 (2003). The full federal record was not introduced at the Rule 37 hearing, and appellant withdrew his proffer of the selected portions. We note that a proffer is not necessary when the substance of the evidence is apparent from the context, id.; however, that is not the case here. Appellant does not specify how the federal record would have shown a conflict of interest, other than to show that counsel had been indicted. Counsel's legal problems are not sufficient to show that there was in fact a conflict in appellant's case. Accordingly, without the proffer, appellant has failed to preserve his argument regarding the evidence he sought to admit. Appellant's claim is barred.

We now consider the appeal of the order dismissing appellant's motion for hearing on Rule 15. This motion dealt with the return of cash seized at the time of appellant's arrest. In his motion, appellant claimed that a discrepancy existed between two previous orders regarding the amount of money that should be returned. According to appellant, the trial court originally ordered the return of "all property" belonging to appellant except that which was evidence and/or contraband, yet in a later order, the trial court limited the amount to $1,784. Appellant claimed the order should be "amended and corrected" to reflect the sum of $1,865. In April 2002, the trial court heard the matter of the Rule 15 motion, and issued a check for $1,764 to appellant's mother. In the court's subsequent order, it stated that all property had been returned to a representative designated by appellant; therefore, the Rule 15 motion was dismissed.

On appeal, appellant alleges that the trial court erred in not ordering the return of the entire sum of money; however, he provides no evidence or support for this claim, other than his reliance on a previous order stating that "all property" shall be returned. With nothing more than bare allegations, we find no merit and affirm.

Affirmed.

1 The case number on appellant's motion for hearing is CR 95-56; however, the order denying relief shows CV 97-11. It appears from the record that these numbers were used interchangeably, apparently because an unsuccessful petition for forfeiture by the State arose out of the judgment of conviction.

2 The trial court found that this period of time came to 148 days; however, according to this court's calculation, it was 154 days. Regardless, appellant was brought to trial within the speedy-trial period.