Doug King v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-405

NOT DESIGNATED FOR PUBLICATION

October 21, 2004

DOUG KING

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered

APPEAL FROM THE CIRCUIT COURT OF ARKANSAS COUNTY, NO. CR. 1999-43, HONORABLE DAVID G. HENRY, JUDGE

AFFIRMED

PER CURIAM

Appellant Doug King was convicted of simultaneous possession of drugs and firearms, manufacturing methamphetamine, possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia. He was sentenced to 1,440 months' imprisonment. The Arkansas Court of Appeals affirmed. King v. State, CA CR 01-327 (Ark. App. Feb. 20, 2002). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied without a hearing. From that order comes this appeal.

Appellant's first claim is that counsel was ineffective for failing to abstract appellant's confession on direct appeal, thereby precluding review of his claim that his confession was obtained involuntarily. In denying Rule 37 relief, the trial court held that counsel filed a motion to suppress appellant's confession and that the "facts surrounding the admissibility of the confession were fully developed at a pretrial hearing," after which the trial court entered an order denying the motion tosuppress. According to the trial court, appellant made no showing that the appellate court would have reached a different result as to the admissibility of the confession, had the issue been addressed on the merits.

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.

According to appellant, his confession was obtained by "threats, name calling, and the denial of counsel." As noted in the trial court's order, the issue of the admissibility of the confession was developed at a pretrial suppression hearing. Moreover, appellant was allowed to submit a brief following the hearing to further argue for the suppression of his confession, which he did. After considering the evidence presented at the hearing and in the brief, the trial court held that there was nothing improper regarding the circumstances surrounding appellant's confession.

It is not enough for appellant to show that an error by counsel prevented an issue from being addressed on appeals, he must establish prejudice under Strickland. See Huls, 301 Ark. at 576, 785 S.W.2d at 469. Appellant has not shown that had the confession been abstracted, that the trial court's denial of his motion to suppress would have been reversed on appeal. Accordingly, the ruling below is affirmed.

Appellant's second claim is that counsel was ineffective for failing to renew his directed-verdict motion at the close of all evidence, which precluded his challenge on appeal to the sufficiency of the evidence. According to the court's order denying Rule 37 relief, "[a] review of the record reveals absolutely nothing which would have caused the trial judge to have granted the

motion even if it had been renewed. From the record, the totality of the evidence clearly reveals that there was overwhelming evidence to send the case to the jury."

At the close of the State's case, appellant made a motion for a directed verdict, which wasdenied. He then went on to present his defense, calling twelve witnesses. After appellant rested his case, the State called two rebuttal witnesses. Following the testimony of those witnesses, appellant was allowed to testify again.

The premise of appellant's argument is that the police set him up by planting evidence, resulting in insufficient evidence to convict. Appellant contends that had counsel renewed his directed-verdict motion, this issue would have been preserved for appellate review.

The following is the court of appeals' summary of the evidence against appellant:

This case began when a Monroe County Sheriff found a box along the side of a road allegedly addressed to appellant. The box contained ether cans, plastic tubing, a drain opener, and coffee filters with white residue. Investigator Barry Roy of the Arkansas State Police received the box, sealed it, and submitted it to the crime lab on February 24, 1999. A search warrant was issued and executed on March 24, 1999. The municipal judge issued the warrant based on the discovery of the box and a controlled buy from a confidential informant. The police seized items from appellant's home including: a small safe containing a memo book listing names and accounts, one Ziploc bag containing thirty-five lithium batteries, one Ziploc bag containing marijuana, a bank bag containing $24,480, several guns, including shotguns, and rifles, two crossbows, a muzzleloader, assorted ammunition, a pistol, a Ruger .357 revolver with six rounds of ammunition, bottles of Rooto, plastic tubing, glass gallon jars with ether and brown sludge, two Ziploc bags containing 12.4 grams and 20.2 grams, respectively, of methamphetamine, Tanita scales, a Tupperware dish containing approximately 27 grams of methamphetamine, Ziploc bags containing brown sludge, multiple packages of antihistamines, a tank containing anhydrous ammonia, a food processor with white residue, and a mason jar filled with liquid and pills. Investigator Roy testified that the items were sent to the Arkansas State Crime Lab on April 22, 1999. Arkansas State Crime Lab Forensic Chemist Mike Stage testified about the components necessary to make methamphetamine. The drug-related items submitted to the lab tested positive for methamphetamine hydrochloride, pseudoephedrine, and marijuana.

King, slip op. at 1. Moreover, the State also introduced appellant's confession.

Given the amount of evidence against appellant, he has made no showing that had the challenge to the sufficiency of the evidence been preserved for appeal that the appellate court would have ruled in his favor. Without a showing of prejudice, we cannot grant postconviction relief ona claim of ineffective assistance of counsel. The ruling below is affirmed.

Appellant's third claim is that counsel was ineffective for failing to obtain a clear ruling from the trial court on his motion for a mistrial, preventing consideration on appeal of his allegation of witness tampering. Following appellant's motion for a mistrial, a hearing was held on the matter. Specifically, appellant moved for a mistrial after observing two witnesses conferring prior to the opening of court on the second day of trial after Ark. R. Evid. 615 had been invoked. A hearing was

held; however, on appeal, the court of appeals held that counsel did not obtain a clear ruling on the motion, and refused to consider the merits. See King, slip op. at 2.

In denying postconviction relief, the trial court held that "[i]neffective assistance of counsel cannot be established by simply showing that an error was made by counsel or that a failure to object prevented an issue from being addressed on appeal." See Thomas, supra. According to the court, the totality of the evidence revealed that appellant was not prejudiced by counsel's failure to preserve the issue for appellate review.

We have held that a mistrial is an "extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected." Newman v. State, 353 Ark. 258, 291, 106 S.W.3d 438, 460 (2003). Evidence from the hearing on appellant's motion showed that there was no wrongdoing, and it is obvious from the court's resumption of the trial, that it did not believe that a prejudicial error had occurred. Appellant has failed to show prejudice on this point; therefore, we affirm the ruling below.

Appellant's fourth claim is that counsel was ineffective for failing to argue that the search of his home was illegal. In its order, the trial court noted that counsel did move to suppress evidenceresulting from the search and that those claims were rejected on appeal. The following are the errors alleged by appellant regarding the denial of his motion to suppress: (1) that the affidavit was insufficient to support a nighttime search; (2) that the alleged confidential informant was unreliable; (3) that the identity of the confidential informant was not disclosed; (4) that appellant was not served with the search warrant; and (5) that he was not allowed to be present during the search. See King, slip op. at 2. The court of appeals rejected claims one through three, and found that the affidavit was sufficient to support the issuance of the search warrant. Regarding claims four and five, the court of appeals held that appellant failed to raise these arguments below; therefore, they would not be considered for the first time on appeal. Id. at 2-4. As for these two claims, the trial court ruled that even if these issues had been properly raised on appeal, they would have been rejected.

According to the trial court, the failure to serve a search warrant is not grounds for the suppression of evidence found during the search where the defendant was present when the search was conducted and both the defendant and his attorney later received a copy of the warrant. See Moya v. State, 335 Ark. 193, 205, 981 S.W.2d 521, 527 (1998). According to the court's order, appellant was present when the search began but was later arrested and taken from his residence. The court also noted that Investigator Barry Roy left a copy of the warrant, along with a receipt for the items seized, with appellant at the Arkansas County jail. Given our holding in Moya, appellant has failed to show that had these claims been preserved for appellate review, that he would have prevailed. Without a showing of prejudice, counsel cannot be ineffective under Rule 37. The denial of relief is therefore affirmed.

Appellant's fifth claim is that counsel was ineffective for failing to object to the trial court's ruling that the three Class "Y" felony convictions were to run consecutively. According to appellant,the convictions should have run concurrently as they arose from the same transaction. In addition, appellant claims that the consecutive sentences are "disproportionate, excessive, and cruel and unusual punishment."

In denying Rule 37 relief, the trial court held that appellant did not provide any evidence that an objection by counsel would have been sustained had it been made, given that the trial court exercised its discretion as authorized by Ark. Code Ann. § 5-4-403(a) (2003). Under § 5-4-403(a):

When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, including an offense for which a previous suspension or probation has been revoked, the sentences shall run concurrently unless, upon recommendation of the jury or the court's own motion, the court orders the sentences to run consecutively.

Because the trial court acted within its statutorily prescribed discretion in ordering appellant's sentences to run consecutively, we find no basis upon which counsel could have objected. 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 the issue was precluded from appellate review does not establish ineffectiveness, as appellant has made no showing that the trial court's ruling would have been reversed on appeal. Therefore, we affirm the denial of postconviction relief.

Appellant's sixth claim is that counsel was ineffective for failing to object to the testimony of Tim Crosby. Appellant argues that Crosby's counsel, Dennis Molock, was also appellant's first attorney. According to appellant, the fact that Crosby testified against appellant was a conflict of interest in that Molock was "privy to private communication" with appellant, which allowed Molock to "mold" Crosby's testimony.

The trial court found that Crosby was represented by Molock on charges related to the incident in which appellant was also charged. According to the court, Molock was appointed torepresent appellant by an order entered April 2, 1999, and was relieved by an order entered on May 21, 1999. The trial court held that appellant did not offer any facts to substantiate his claim that a conflict existed. Moreover, according to the court, the record revealed that Crosby was not as strong a witness against appellant as the State might have anticipated, in that he retreated somewhat from his earlier implication of appellant.

Appellant offers no compelling evidence or argument to support this claim, and we have ruled that a conclusory allegation cannot be a basis for postconviction relief. See, e.g., Sanford, 342 Ark. at 27, 25 S.W.3d at 417. As for appellant's claim that he was denied an evidentiary hearing on this point, we hold that under Rule 37.3(a), the trial court has discretion to deny relief without a hearing. Where the court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires that the court make written findings specifying the parts of the record that form the basis of the court's decision. E.g., Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. See id. Conclusory allegations that are unsupported by facts do not provide a basis for an evidentiary hearing. Nance v. State, 339 Ark. 192, 195, 4 S.W.3d 501, 503 (1999). Because we find no merit to this or any claim asserted by appellant, we cannot say that the trial court clearly erred in denying relief without first holding a hearing.

Affirmed.