Jason Carter v. State of Arkansas

cr03-131

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

June 10, 2004

JASON CARTER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-131

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 1994-213, HONORABLE MARION A. HUMPHREY, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted as an accomplice of first-degree murder, first-degree battery, and aggravated assault. He was sentenced to concurrent sentences of sixty years, thirty years, and ten years, respectively. This court affirmed. Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996) (Carter I). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging ineffective assistance of counsel, which was denied without a hearing. We reversed and remanded to the trial court for an evidentiary hearing, see Carter v. State, 342 Ark. 535, 29 S.W.3d 716 (2000) (Carter II), and the trial court again denied relief. From that order comes this appeal.

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.

Appellant's first claim on appeal is that counsel was ineffective for failing to move to suppress appellant's statement to police. At trial, evidence was introduced that during an altercation in a grocery store parking lot, Jason Hatcher was fatally wounded, Tim McGarity was shot in the leg, and Derek Hammonds, although escaping injury, was in the line of fire. Carter II, 342 Ark. at 536, 29 S.W.3d at 717. Proof was presented that there was more than one weapon fired, although the State could not prove which one of the weapons fired the fatal shot or the shot that injured McGarity. Id. at 536-37, 29 S.W.3d at 717. Several witnesses testified that they saw the driver of a blue Honda Accord shoot a handgun into the crowd. Id. at 537, 29 S.W.3d at 717. The identity of the driver was established by appellant's custodial statement, in which he told police that he drove a blue Honda Accord into the parking lot and fired a .38 caliber handgun into the air in order to break up the altercation. Id.

According to appellant, his statement was not voluntary because it was given as a result of the promise of leniency. In denying relief, the trial court held that appellant failed to provide any facts to support his assertion that the statement was not freely and voluntarily given. Moreover, the court found that no testimony was presented at the Rule 37 hearing in support of this claim and that conclusory allegations cannot be the basis for postconviction relief. Counsel testified at the hearing that he talked at great length with appellant regarding his statement and that appellant told him that he was not "intimidated" or "threatened" into confessing. According to counsel, he had no "good faith basis" for filing a motion to suppress.

Appellant tries to satisfy the first prong of Strickland by arguing that counsel's recollection at the hearing of the circumstances surrounding appellant's statement was incorrect. However, counsel's faulty recollection does not make deficient his conclusion that, based upon appellant's own assurances that he was not coerced into giving his statement, there was no basis for a motion to suppress. Appellant's statement was given following the reading of his Miranda rights and his waiver of those rights. Moreover, according to police testimony, appellant stated that he wished to make a statement.

At trial, appellant did not deny his presence at the crime scene. He testified that he drove himself and two codefendants to and from the scene in his blue Honda Accord. Carter I, 324 Ark. at 250, 921 S.W.2d at 584. He also testified that one of his codefendants, Michael Ryan Webb, put a rifle in the trunk of appellant's car when he picked him up and that appellant allowed Webb to retrieve the rifle from the trunk and use it. Id. at 250-51, 921 S.W.2d at 584. According to appellant, he had in his possession a .38 caliber handgun, which he fired into the air at the scene. Id. at 251, 921 S.W.2d at 584.

The jury also heard testimony from seven State's witnesses concerning the altercation. Id. Several of these witnesses described appellant's car, that they saw the driver of the Honda Accord fire a gun toward the crowd, and that they observed that Hatcher and McGarity were wounded immediately following the shots. Id. Moreover, McGarity testified that he was involved in a fist fight with one of the codefendants and that gunshots were fired soon after appellant's car arrived at the scene. Id. The jury also heard ballistics experts testify regarding the weapons recovered from the defendants and the conclusion that a handgun had been fired at the scene. Id. A state medical examiner testified that Hatcher had died from a gunshot wound sustained at the scene. Id. at 251, 921 S.W.2d at 584-85.

Codefendant James Gross testified at length about the fist fight with McGarity, appellant's arrival with the other codefendants, Gross's retrieval of the handgun from appellant, and his firing the gun himself. Id. at 251, 921 S.W.2d at 585. Both Gross and appellant testified that they fled the scene and that all four codefendants met later at an apartment. Id. Given the "abundant" amount of evidence of appellant's accomplice liability, we affirmed his conviction. Id.

Aside from appellant's statement to police, there was a significant amount of evidence presented to support his conviction. Appellant has failed to show that had a motion to suppress been

granted, that the outcome of his trial would have been different. Without a showing of prejudice, appellant is not entitled to postconviction relief. We therefore affirm the ruling below.

Appellant's second claim is that counsel was ineffective for failing to object to the jury's being instructed pursuant to Ark. Code. Ann. § 5-74-108 (Repl. 1993), which reads:

a) Any person who violates any provision of Arkansas law which is a crime of violence while acting in concert with two (2) or more other persons shall be subject to enhanced penalties.

(b) Upon conviction of a crime of violence committed while acting in concert with two (2) or more other persons, the classification and penalty range shall be increased by one (1) classification.

(c) The fact that the group was not a criminal gang, organization, or enterprise is not a defense to prosecution under this statute.

Ark. Code Ann. § 5-74-108. The basis for appellant's claim is that because no "gang" evidence was introduced at trial, the use of the instruction was improper. The trial court ruled that an instruction may be given when there is the "slightest evidence" to support it. According to the court, there was "ample evidence" that appellant acted in concert with others at the scene, "such that the instruction was proper and the defense counsel's failure to object to it cannot be deemed an error." Finally, the court ruled that appellant failed to show that but for counsel's performance, the outcome would have been different.

As noted above, "[t]he fact that the group was not a criminal gang ... is not a defense to prosecution under this statute." Ark. Code Ann. § 5-74-108(c). Accordingly, we agree with the trial court that an objection by counsel to the use of this instruction would have been meritless, and counsel cannot be ineffective for failing to make a meritless argument. Sanford v. State, 342 Ark. 22, 28-29, 25 S.W.3d 414, 420 (2000). The fact that no "gang" evidence was presented at trial does not prohibit the application of the statute to appellant's case. There was sufficient evidence presented that appellant acted in concert with two or more persons when he engaged in this violent crime. Because appellant has made no showing of prejudice, we affirm the ruling below.

Appellant's third claim is that he received ineffective assistance because counsel had a conflict of interest. According to appellant, during the time that counsel represented appellant, counsel was engaging in criminal activity that later led to his arrest. Appellant argues that counsel knew he was culpable and that he would be charged by the same entity that was prosecuting appellant; therefore, counsel "pulled his punches" at appellant's expense. The trial court noted that appellant's verdict was pronounced on March 23, 1995; however, according to counsel's testimony at the evidentiary hearing, no client complained of any misappropriation of client funds prior to that date and that it was not until 1996 that counsel was notified that he was under investigation for fraud. The trial court ruled that factually, appellant did not prove his allegation that counsel "labored under a conflict of interest." Aside from appellant's bare allegation that a conflict existed, the only examples he provides in support of this claim are that as a result of this conflict, counsel failed to file a motion to suppress and that he failed to object to the "gang" enhancement jury instruction. We have previously addressed these claims and found no prejudice. Appellant's conclusory allegation that a conflict existed does not provide a basis for postconviction relief. See Camargo v. State, 346 Ark. 118, 129, 55 S.W.3d 255, 263 (2001). Accordingly, we affirm the ruling below.

Affirmed.