Wilbert Jackson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 12, 2002

WILBERT JACKSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 97-79

APPEAL FROM THE CIRCUIT COURT OF LITTLE RIVER COUNTY, NO. CR 89-41, HONORABLE TED CAPEHEART, JUDGE

AFFIRMED

Appellant was convicted of two counts of theft of property and was sentenced as a habitual offender to consecutive terms of twenty and six years' imprisonment. The Arkansas Court of Appeals affirmed. Jackson v. State, CACR 90-45 (Ark. App. Nov. 14, 1990). Appellant filed a petition for writ of habeas corpus in state court, which was denied. Appellant later filed a federal petition for writ of habeas corpus, claiming that trial counsel was ineffective for failing to renew a directed-verdict motion. The petition was denied and subsequently affirmed by the Eighth Circuit Court of Appeals. Jackson v. Lockhart, 992 F.2d 167 (8th Cir. 1993).

In 1996, appellant filed a second habeas petition, alleging that he was denied counsel to represent him on post-trial claims pursuant to former Ark. R. Crim. P. 36.4, the postconviction relief then available. Relief was granted by the federal district court, and an attorney was appointed to represent appellant in the Rule 36.4 proceedings in the circuit court. The circuit court denied relief, and we affirmed based on a deficient abstract. Jackson v. State, CR 97-79 (Ark. Mar. 19, 1998).

Appellant filed a third habeas petition in federal district court, alleging that counsel was ineffective on the Rule 36.4 appeal for failing to properly abstract the record. The United States Magistrate Judge granted relief, and we appointed new counsel to handle the present appeal. Jackson v. State, CR 97-79 (Ark. Feb. 22, 2001) (per curiam).

Appellant's first claim on appeal is that he was denied his Sixth Amendment right to effective assistance of counsel when he failed to renew his motion for directed verdict. Prior to 1995, we had consistently held that the failure to renew a directed-verdict motion was not a proper ground for postconviction relief. See e.g., Mobbs v. State, 307 Ark. 505, 510, 821 S.W.2d 769, 773 (1991) (citing Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987); Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984)). However, our holding in Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995) changed the rule and overruled Mobbs prospectively to the extent that Mobbs held that an allegation of ineffective assistance for failure to raise the issue of sufficiency of the evidence cannot be grounds for relief under Rule 37. Thomas, supra at 671, 911 S.W.2d at 260. However, regardless of our holding in Thomas, appellant's claim fails, as he has not shown prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984). According to Strickland:

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 effecton the defense." Id. at 693.

According to appellant, had counsel renewed the directed-verdict motion, appellant would not have been convicted because the only evidence against him was uncorroborated accomplice testimony. A motion for directed verdict is a challenge to the sufficiency of the evidence. McGehee v. State, 338 Ark. 152, 159, 992 S.W.2d 110, 114 (1999). In reviewing the sufficiency of the evidence, we consider the evidence in the light most favorable to the State. See Williams v. State, 338 Ark. 178, 183, 992 S.W.2d 89, 93 (1999).

On July 9, 1989, the Little River Sheriff's Office received a report that some irrigation pipe had been stolen from a local resident. The next day, Chief Deputy Bobby Freeze received an anonymous telephone tip concerning a stolen irrigation pipe. He drove to his in-laws' house, which was adjacent to the route given by the caller and pulled into their driveway at around midnight. Freeze observed a pickup truck pulling a trailer loaded with an irrigation pipe and followed the truck. The truck then stopped, and two men got out to check the load. Freeze recognized both occupants. The two men returned to the truck and continued down the road. Freeze radioed for backup and performed a traffic stop. Appellant was a passenger in the truck, and Glen Christopher was driving. Both Christopher and appellant were arrested.

The State presented the testimony of Christopher that the theft was all appellant's idea and that he and appellant loaded the trailer the night before, beginning around dark and returned the next morning. According to Christopher, it was their intention to haul the pipe to Texarkana to sell it. Christopher testified that appellant met him at his house the next morning. The two then went to Mattison's farm and hooked up the trailer. He further testified that they drove the trailer to the location where they were stopped by Freeze. Christopher's testimony was sufficient to sustain a conviction for theft of property against appellant. However, because Christopher was anaccomplice, we must determine whether his testimony was sufficiently corroborated by other evidence. See Ark. Code Ann. § 16-89-111(e)(1) (1987).

"The ··²StarPage²····²StarPage²····²citeas((Cite as: 338 Ark. 152, *159, 992 S.W.2d 110, **115)²····²citeas((Cite as: 338 Ark. 152, *159, 992 S.W.2d 110, **115)²··test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission." McGehee, supra at 159, 992 S.W.2d at 115. Moreover, an accomplice's testimony may be corroborated with circumstantial evidence. Id. In such a case, "all the facts and evidence can be considered to constitute a chain sufficient to present a question for resolution by the jury as to the adequacy of the corroboration, and the court will not look to see whether every other reasonable hypothesis but that of guilt has been excluded." Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990). The factfinder may consider "the presence of the accused in proximity to the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation." Raynor v. State, 343 Ark. 575, 578, 36 S.W.3d 315, 317 (2001).

Charles Tyson testified that he was the owner of the trailer that appellant and Christopher were found using to haul the irrigation pipe and that neither appellant nor Christopher had permission to use the trailer. Gordon Mattison also testified that he was the owner of the pipe and that it had been stolen from his farm. In addition, appellant was picked up in close proximity to the stolen pipe. He was a passenger in the truck pulling the pipe. Moreover, appellant's own witnesses testified that he left their house at 5:30 a.m. Freeze did not stop the two men until 6:00 a.m. The opportunity was there for appellant to participate in the crime. Given the above evidence, we find that the accomplice testimony of Christopher was sufficiently corroborated by other evidence. See Ark. Code Ann. § 16-89-111(e)(1). Therefore, we affirm the trial court's denial of relief.

Appellant goes on to claim that counsel was ineffective for failing to call alibi witnesses and that the circuit court erred by denying relief on this ground. When assessing counsel's decision not to call a particular witness, we must take into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Noel v. State, 342 Ark. 35, 43, 26 S.W.3d 123, 128 (2000). Moreover, counsel was not ineffective for failing to locate alibi witnesses, when appellant did not provide the names and addresses of those witnesses. See Halfacre v. State, 269 Ark. 39, 41, 598 S.W.2d 89, 90 (1980).

According to appellant, counsel was ineffective for failing to subpoena Roland Elkins. At the hearing, Elkins testified that he was with appellant one morning when Christopher pulled up in a pickup truck and began talking with them. According to Elkins, Christopher said that he had to take a trailer to Texarkana and refused to give Elkins a ride. However, appellant ignores the fact that Elkins specifically testified that he did not know what day he saw Christopher. There is no indication that his recollection is of the day appellant was arrested. Moreover, the day Elkins saw Christopher drive up, he was not pulling a trailer. Therefore, Elkins's testimony does not exonerate appellant.

Counsel testified that he believed that Elkins was going to appear at trial and that appellant and his family were surprised when he did not appear. Counsel spoke with Elkins prior to trial and was assured that he would testify. It is clear that counsel made an effort to secure Elkins' testimony. However, even if Elkins had appeared, appellant has yet to show how his testimony would have changed the outcome of the trial. Appellant has failed to show that counsel was deficient for not calling this witness or that his defense was prejudiced by the absence of his testimony.

Appellant also alleges that counsel was ineffective for failing to investigate two possible alibi witnesses named William and Tammy. According to appellant, he gave counsel the names of these witnesses, their residence and a description of their vehicle. However, counsel testified that he was never given such information and that appellant told him that "he didn't know who they were." The circuit court found counsel to be more credible. Accordingly, we find no error in the ruling below and affirm.

Finally, appellant claims that he did not receive a fair trial because, as he alleges, a juror had some type of relationship with Gordon Mattison, the owner of the stolen pipe. At the hearing, the circuit court excluded any testimony by the juror and found this allegation to be "based upon groundless hearsay." Appellant's allegation is not one of ineffective assistance of counsel but rather that he was deprived of his right to a trial by an impartial jury under the Arkansas Constitution and that the trial court erred in rejecting this argument on hearsay grounds. However, even if we were to consider this claim as one of ineffective assistance, a finding that counsel was remiss could not be made based solely on appellant's allegations, as there is nothing in the record to indicate the substance of the juror's proposed testimony except appellant's own speculations.

Affirmed.