Jonathan Keith Cole v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 18, 2001

JONATHAN KEITH COLE

APPELLANT

VS.

STATE OF ARKANSAS

APPELLEE

CR 00-99

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT,

NO. CR-96-745,

HON. MARK HEWETT,

JUDGE

AFFIRMED.

Appellant Jonathan Keith Cole was convicted by a jury in the Sebastian County Circuit Court of first-degree murder and sentenced to a term of seventy years' imprisonment. Appellant's conviction was affirmed by the Arkansas Court of Appeals, and he subsequently filed a timely 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 the present appeal, Appellant raises three allegations of error. We find no error and affirm.

I. Constitutional Errors

For his first point on appeal, Appellant argues that it was error for the trial court to deny his petition for postconviction relief, because the judge who presided over his jury trial committed reversible constitutional error that deprived him of his right to put on his defense. Appellant sets forth several allegations regarding rulings made by the trial court on matters involving the testimonyof witnesses and the admission of evidence. Appellant, however, failed to raise any constitutional argument during his trial or on direct appeal. This court has held that Rule 37 does not provide a remedy when an issue could have been raised in the trial court or argued on direct appeal, unless the issue represents a question so fundamental that the judgment of conviction is rendered absolutely void. Malone v. State, 294 Ark. 127, 131, 741 S.W.2d 246, 249 (1987). Accordingly, we will not consider the merits of Appellant's argument on this point.

II. Ineffective Assistance of Counsel

Appellant asserts eight points on appeal alleging ineffective assistance of counsel. The standard for assessing the effectiveness of counsel was announced by the Supreme Court 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.

Id. 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 a 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, 26 S.W.3d 123 (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 areasonable 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, this court considers 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, 342 Ark. at 38, 26 S.W.3d at 125.

Appellant first argues that his counsel was ineffective in presenting the issue of the admissibility of Lee Wood's testimony to the trial court. Appellant wanted Wood to testify about an alleged statement made to him by Craig Kruger while the two were incarcerated together. Appellant contended that Wood was going to testify that Kruger admitted to him that he had killed Lisa Teague, the victim in this case. Kruger testified on the State's behalf that Appellant admitted to him that he had committed a murder. The trial court initially ruled that Wood's testimony would be admissible under Ark. R. Evid. 613, for impeachment purposes only. The trial court was then put on notice that Wood was going to invoke his Fifth Amendment right to remain silent if called to testify, because the State intended to question him with regard to an incident he was involved in while incarcerated. The trial court subsequently ruled that Appellant could not call Wood as a witness. Counsel for Appellant then decided not to recall Kruger and ask him if he had made such a statement, because he would have been limited to Kruger's answer, with no way to impeach him. On direct appeal, Appellant argued that the trial court erred in not requiring Wood to testify because his testimony would have been admissible for the purpose of impeaching Kruger. The courtof appeals agreed that Wood's testimony would have been admissible for purposes of impeachment, but refused to consider this argument, because Appellant had failed to ask Kruger, by way of proffer, if he had made the statement to Wood. The court held that absent such a proffer, they were unable to determine if Appellant had been prejudiced by the trial court's ruling.

In the instant appeal, Appellant argues that his counsel was ineffective in failing to argue to the trial court, and on appeal, that Wood's testimony was relevant, and thus admissible. In addition, Appellant argues that his counsel was ineffective in failing to proffer the testimony of Wood. He makes no argument to this court, however, regarding counsel's failure to proffer the testimony of Kruger. We find no merit in this argument.

Appellant's argument that counsel was ineffective for not arguing relevancy is premised on his assertion that the testimony was relevant to the issue of who killed Ms. Teague. Appellant contends that Wood's testimony constituted circumstantial evidence that another person killed Ms. Teague. If Appellant's counsel had tried to offer Wood's testimony as evidence that someone else committed the murder, then he would have been offering it for the truth of the matter asserted. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matters asserted." Ark. R. Evid. 801(c)(2000). Under Ark. R. Evid. 802, hearsay is not admissible, unless it falls within one of the limited exceptions provided for in the Rules of Evidence. Thus, Wood's testimony would have constituted inadmissible hearsay. Counsel is not ineffective for failing to make a meritless argument. Sanford v. State, 342 Ark. 22, 28, 25 S.W.3d 414, 418 (2000).

Second, Appellant argues that his counsel was ineffective for failing to move for a dismissal for a lack of speedy trial. There was an apparent conflict over the exact date Appellant was arrested for the murder of Ms. Teague. Appellant contends that he was arrested on June 2, 1996, while theState's arrest warrant is dated July 25, 1996. Appellant was brought to trial on October 7, 1997. The trial court reviewed the docket sheets, and in his written findings, sets out each excluded period of time, which totaled 144 days, and determined that Appellant was required to be tried within 509 days of his arrest. According to the trial court's findings, even if June 2 is used as the date of arrest, Appellant was tried within 491 days of his arrest, and thus there was no speedy-trial violation. An attorney cannot be ineffective for failing to raise a speedy-trial claim when it has no merit. Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993).

Appellant's third allegation is that counsel was ineffective for failing to object during the State's rebuttal argument when the prosecuting attorney stated that Appellant had raped the victim. Appellant argues that such a comment was not supported by any evidence and only served to inflame the jury, thus depriving him of a fair trial. A review of the closing arguments reveals that Appellant's counsel first raised the specter of rape during his closing argument. Counsel argued to the jury that there was no evidence that Appellant raped and killed Ms. Teague. Only after Appellant's counsel argued that the State had not proved motive did the state respond to the issue during the course of its rebuttal argument. This court has held that the State is allowed to comment on those matters raised by the defense within its closing argument. Biggers v. State, 317 Ark. 414, 426, 878 S.W.2d 717, 723 (1994). Moreover, two witnesses testified during trial that Appellant had told them that he raped Ms. Teague. Thus, the issue of rape was put into evidence during Appellant's trial. It is a well-established rule that closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences which can be drawn therefrom. Leaks v. State, 339 Ark. 348, 357, 5 S.W.3d 448, 454 (1999). Because the issue of rape was introduced into evidence during the trial and also argued by defense counsel during his closingargument, it was not improper for the State to make reference to the issue during its rebuttal argument.

Appellant next argues that his counsel was ineffective during the sentencing phase in failing to object to the State's introduction of his prior judgments of conviction to prove that he was a habitual criminal. Appellant asserts that these convictions were improperly considered during sentencing because the offenses all occurred after the murder of Ms. Teague, and only offenses committed before the murder could be used for the purpose of sentence enhancement. We disagree.

Sentence enhancement for habitual offenders is provided for in Ark. Code Ann. § 5-4-501 (Repl. 1997). This court has recognized that the provisions of the Arkansas Habitual Criminal Statute are not deterrent, but punitive in nature, so that a prior conviction, regardless of the date of the crime, may be used to increase punishment. See Beavers v. State, 345 Ark. 291, 299, 46 S.W.3d 532, 538 (2001); Gillie v. State, 305 Ark. 296, 306-307, 808 S.W.2d 320, 325 (1991). The statute speaks in terms of the conviction date of the offenses, not the date the offenses actually took place. Beavers, 345 Ark. 291, 46 S.W.3d 532. Accordingly, Appellant's convictions were properly introduced for purposes of sentence enhancement.

Finally, Appellant raises the following additional claims of ineffective assistance of counsel: (1) counsel did not seek an instruction that the jury disregard a prejudicial statement made by Hye Teague; (2) counsel incorrectly withdrew a motion for a mistrial when Kruger testified that he had a "drug relationship" with Appellant, nor did counsel ask for an instruction that the jury disregard this statement; (3) counsel failed to object to testimony from Appellant's father that Appellant had gotten into trouble and been sent to a youth shelter; and (4) counsel failed to object to the hearsay testimony of Julie Franks. We decline to reach the merits of these arguments, however, because they are composed only of conclusory statements and contain no supporting legal authority. Conclusory arguments, without supporting authority, will not be considered. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999).

III. Error in Rule 37 Hearing

Appellant's final argument on appeal is that the trial court erred in permitting Lee Wood to invoke his Fifth Amendment right to remain silent, thus refusing to testify for Appellant during the Rule 37 proceeding. Appellant's argument that the trial court's ruling on this matter was improper and prejudicial is a conclusory allegation unsupported by any compelling argument or convincing legal authority. Likewise, Appellant fails to demonstrate how he was prejudiced by this ruling. This court has consistently held that it will not reverse a decision of the trial court absent a showing of prejudice, as prejudice is not presumed. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). We, therefore, decline to address the merits of this argument.

We find no error and affirm.