Orange Edward Brady v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 1, 2003

ORANGE EDWARD BRADY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-929

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 98-2183, HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

Orange Edward Brady was convicted of aggravated robbery, theft of property, and felon in possession of a firearm, and was sentenced to twenty years' imprisonment. The Court of Appeals affirmed. Brady v. State, CACR 99-155 (Ark. App. Oct. 6, 1999)(unpublished). Appellant then filed a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37, raising numerous claims. On April 13, 2000, the circuit court denied relief on each of appellant's claims but one. The circuit court set an evidentiary hearing to consider appellant's remaining claim that his trial counsel was ineffective in failing to present alibi witnesses. Thomas B. Devine, III, was subsequently appointed to represent appellant at the hearing on the remaining claim.

The circuit court conducted the hearing on June 2, 2000, and denied relief in a June 21, 2000, order. Mr. Devine's subsequent motion to the circuit court to be relieved as appellant's counsel was denied. That same day, Mr. Devine filed a notice of appeal from the June 2nd hearingand the circuit court's June 21st order. He timely lodged the record on appeal in this court, and filed a motion to withdraw and an Anders brief stating that there was no merit to any argument arising from the circuit court's denial of postconviction relief. In doing so, Mr. Devine only addressed the single claim of ineffective assistance concerning the alibi witnesses, and did not abstract appellant's Rule 37 petition in its entirety. We ordered rebriefing because the abstract and argument portions of counsel's no-merit brief submitted pursuant to Anders v. California, 386 U.S. 738 (1967), failed to comply with the requirements of Anders and Ark. Sup. Ct. R. 4-3(j)(1). Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001); Brady v. State, CR 00-929 (Ark. April 18, 2002)(unpublished).

Now before us is counsel's second substituted brief asserting that any appeal of the denial of postconviction relief would be wholly without merit and asking that he be allowed to withdraw as counsel. Anders v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court Rule 4-3(j)(1) set requirements for the withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been filed on the basis that an appeal is without merit. Although such a "no-merit" brief is typically filed in a direct appeal from a judgment, we have also allowed the filing of no-merit briefs in postconviction appeals. Matthews v. State, 332 Ark. 661, 664, 966 S.W.2d 888, 889 (1998). Counsel's "no-merit brief" must contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(j)(1). The abstract must also contain each adverse ruling. Id.

Appellant was provided a copy of counsel's brief, and has filed points for reversal for the Court's consideration pursuant to Rule 4-3(j)(2). The State filed a brief in response to appellant's points for reversal. Based on our review of the issues presented, we conclude that there are no errorswith respect to rulings adverse to appellant and that there is no merit to the issues raised by appellant. Accordingly, we grant the motion to withdraw and affirm the denial of postconviction relief.

We will not reverse a circuit court's decision granting or denying post conviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 169, 44 S.W.3d 726, 730 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.

The issues under review include allegations of ineffective assistance of counsel. 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 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.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," and second, that the errors "actually had an adverse effect on the defense." Id. at 688, 693.

In reviewing the 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, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant mustshow 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 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, we 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, 342 Ark. at 38, 26 S.W.3d at 125.

Sufficiency of the Evidence

The first adverse ruling we address is the circuit court's denial of relief on appellant's claim that his victim's identification was inconsistent and insufficient to supporting his conviction. Appellant also alleges in his points for reversal that the evidence presented was circumstantial and insufficient to support his conviction. As the circuit court noted, a challenge to the sufficiency of the evidence cannot be raised in Rule 37 proceedings. Sanford v. State, 342 Ark. 22, 28, 25 S.W.3d 414, 418 (2000). Accordingly, the denial of relief on this claim was proper.

Ineffective Assistance of Counsel

The circuit court denied relief on appellant's claim that his trial counsel was ineffective in failing to properly cross-examine his victim. Appellant contended in his petition that his trial counsel should have attacked the credibility of his victim by cross-examining her regarding allegedly inconsistent statements on her identification of him as her assailant. He also claimed that counsel should have inquired of his victim concerning a black female police officer who did nottestify at trial. Appellant's victim testified that the unknown officer interviewed and recorded her statement. The manner of questioning a witness is by and large a very subjective issue about which different attorneys could have many different approaches. Nelson v. State, 344 Ark. 407, 414, 39 S.W.3d 791, 796 (2001). Even if a decision proves unwise, matters of trial tactics and strategy are not grounds for post-conviction relief. Id. Moreover, it is the sole province of the jury to determine not merely the credibility of the witnesses, but the weight and value of their testimony. Id. With this issue, there is no indication that the trier of fact would have resolved a credibility determination in appellant's favor such that it would have affected the outcome of his trial. Accordingly, the denial of relief on this claim is affirmed.

The circuit court also denied relief on appellant's claim that his counsel was ineffective in failing to object to cumulative testimony given by police officers at his trial, and in failing to object to hearsay testimony with no probative value. In his petition, appellant did not identify the content of the cumulative testimony, did not state the allegedly objectionable hearsay testimony, or explain how a proper objection in either case would have changed the outcome of his trial. An unsupported, conclusory allegation cannot form the basis for Rule 37 relief, and further, without a showing of prejudice, a Rule 37 petitioner cannot overcome the Strickland requirements. Dansby v. State, 350 Ark. 60, 66-67, 84 S.W.3d 857, 861 (2002). We cannot say that the circuit court erred in denying relief on these claims.

Appellant next claimed that his counsel was ineffective for failing to honor his request, via letter, that a motion to suppress his victim's identification of appellant as her assailant should be made. Appellant's argument is without merit because, as the circuit court noted, appellant's counsel did move to suppress the identification and the circuit court denied the motion at a pre-trial hearing. As such, counsel's performance was not deficient in relation to this issue.

Appellant additionally contended that his counsel was ineffective in failing to request that the jury be admonished regarding a statement made by the prosecutor in closing arguments which alluded to absent alibi witnesses. The circuit court denied relief, concluding that while an admonishment would have been given if requested, the failure to make a request did not constitute an error so great as to render appellant's trial unfair. Once again, appellant's claim was conclusory and did not explain how the failure to obtain an admonishment affected the outcome of his trial. Accordingly, the denial of relief was proper. See Dansby, supra.

Appellant also stated in a conclusory fashion that his counsel was ineffective in stipulating that appellant's fingerprints were on an exhibit without letting the jury know that it could not be determined when fingerprints were left on the item. The circuit court's denial of relief was proper because of the conclusory nature of the claim. Id. In any event, a latent fingerprint examiner testified that the fingerprints could have been imprinted up to three months prior to the robbery. And, appellant himself testified that he had left the fingerprints four or five days before the robbery. Therefore, any deficient performance by appellant's counsel regarding the stipulation did not result in the prejudice implied by appellant's conclusory argument. Ineffective assistance of counsel cannot be established absent a showing of prejudice.

Alibi Witnesses

Appellant contended in his petition that his counsel was ineffective for failing to secure the attendance of two cousins, Amy Daniels and Rebecca Daniels, as alibi witnesses. Appellant's counsel has briefed the issue, and appellant has again raised it in his points for reversal.

The circuit court granted an evidentiary hearing on this issue and appointed appellant's current counsel. At the hearing, appellant repeated his allegation that he asked his counsel to subpoena his cousins and present them as alibi witnesses. He stated that his counsel did subpoenathem, but they did not testify at trial. He testified that his counsel did not explain why his cousins did not testify at trial.

Amy Daniels testified that she was subpoenaed and appeared at trial to testify for appellant. After discussing her testimony with counsel, however, she realized that the time at which she was with appellant on the day of the robbery did not match the time the robbery occurred. She further explained that she was not sure if she was with appellant on the day of the robbery. She added that she viewed a video tape of the robbery and recognized that some of the clothing worn by one of the robbers matched clothing worn by appellant two days earlier.

Rebecca Daniels testified that she was subpoenaed and that she appeared to testify at appellant's trial on his behalf as an alibi witness. After informing appellant's counsel that she would testify that she recalled hearing appellant's voice after 10 p.m. one evening in December, she was told she did not need to testify. She further stated that she viewed a video tape of the robbery and recognized appellant as one of the robbers.

Appellant's trial counsel, Tim Blair, testified at the Rule 37 hearing. He explained that he decided not to call Amy Daniels or Rebecca Daniels after talking with them because they could not testify that appellant was with them when the robbery occurred.

The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Nelson v. State, 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Id. When assessing an attorney's decision not to call a particular witness, it must be taken 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 witnesseswho could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. Id. We defer to the circuit court on issues of credibility. State v. Franklin, 351 Ark. 131, 136, 89 S.W.3d 865, 867 (2002).

Counsel's decision not to call the alleged alibi witnesses in this case was a professionally reasonable strategic decision. Neither Amy Daniels or Rebecca Daniels could provide an alibi for appellant, and both indicated that they recognized appellant in the video tape of the robbery. These circumstances fail to establish a reasonable probability that the outcome of appellant's trial would have been different had either of the two alleged alibi witnesses testified at trial. We affirm the circuit court's denial of relief on this claim.

Speedy Trial

Appellant alleged at several points in his Rule 37 petition that his trial occurred more than nine months after he was arrested, and as such, he did not receive a speedy trial. His petition could also be read to allege that his counsel was ineffective for not raising the issue. The circuit court denied relief, concluding that appellant received a speedy trial.

The right to a speedy trial is a fundamental constitutional right that may be waived by a defendant. See Eubanks v. Humphrey, 334 Ark. 21, 28-29, 972 S.W.2d 234, 237-38 (1998)(citing Barker v. Wingo, 407 U.S. 514 (1972)). We need not consider whether appellant waived his right to a speedy trial because appellant's claims, on their face, are without merit.

First, his claims erroneously imply that the remedy for a violation of Ark. R. Crim. P. 28.1(a), which mandates that an incarcerated defendant be released on his own recognizance if not brought to trial within nine months following arrest, is an absolute bar to prosecution. We haveconsistently held otherwise. See Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); Bell v. State, 270 Ark. 1, 603 S.W.2d 397 (1980); Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). Second, appellant's trial occurred within twelve months from the date he was arrested. Where a defendant is arrested prior to the filing of a felony information, the time for speedy trial runs from the date of arrest. See Marks v. State, 332 Ark. 374, 965 S.W.2d 764 (1998). Appellant was arrested on January 14, 1998, and charged on June 10, 1998. His trial occurred on October 1, 1998, and he entered a plea of guilty on being a felon in possession of a firearm on October 2, 1998. Thus, no speedy trial violation occurred. See Ark. R. Crim. P. 28.1(b) and 28.2(a).

Appellant's counsel cannot be found ineffective for failing to make an argument that has no merit. Wooten v. State, 351 Ark. 241, 247, 91 S.W.3d 63, 66 (2002). Moreover, while a Rule 37 petitioner may qualify for relief, regardless of trial counsel's performance, if he demonstrates error so fundamental as to render the judgment of conviction void and subject to collateral attack, appellant has not done so here. See Cothern v. State, 344 Ark. 697, 704, 42 S.W.3d 543, 547-48 (2001). An allegation sufficient to void a judgment must be one so fundamental as to render the judgment a complete nullity. E.g. Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990). Issues not sufficient to void the judgment are waived if not raised in a timely manner even if they are of constitutional dimension. Travis v. State, 286 Ark. 26, 28, 688 S.W.2d 935, 937 (1985)(citing Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980)). Appellant waived his speedy trial claims by not raising them at trial or on appeal because they are not so fundamental as to void his conviction. The circuit court's denial of relief on this issue is affirmed.

Illegal Arrest

The circuit court denied relief on appellant's claim that his arrest on an unrelated burglarycharge was illegal, resulting from an unlawful search and seizure. Appellant again raises this claim in his points for reversal. An illegal arrest, alone, is not grounds for Rule 37 relief. Dumond v. State, 294 Ark. 379, 392, 743 S.W.2d 779, 786 (1988). Appellant's claims should have been raised at trial or on direct appeal. Because the challenges to the legality of appellant's search and arrest are not proper grounds for postconviction relief, the circuit court's ruling is affirmed.

Motion for Continuance

On the day of trial, appellant made a pro se motion for continuance, alleging that a conflict of interest existed between him and counsel. The circuit court denied the motion, and a subsequent motion made by counsel, concluding that the motions were made for the purpose of delay. In his Rule 37 petition, appellant contended that he was denied a fair and impartial trial because of the denial of a continuance. In his points for reversal, appellant repeats the claim made below and contends there was an actual conflict of interest between him and counsel.

Rule 37 does not provide an avenue to raise matters that could have been raised on direct appeal, including constitutional claims. Nooner v. State, 339 Ark. 253, 256, 4 S.W.3d 497, 498-99 (1999). We do not consider appellant's challenge to the trial court's denial of a continuance because it could have been raised on direct appeal.

Appellant's conflict of interest claim is not preserved for our review. The circuit court did not address that particular issue in its order, and consequently, we are precluded from addressing that issue on appeal. Beshears v. State, 340 Ark. 70, 73, 8 S.W.3d 32, 34 (2000).

Points for Reversal

Appellant's sole remaining point for reversal alleges that his counsel showed the alleged alibi witnesses, Amy and Rebecca Daniels, a videotape of the robbery in which appellant participated, and that "incurable prejudice" resulted. Such a claim was not raised in appellant's Rule 37 petitionor at his hearing. Thus, we do not consider it on appeal.

Affirmed.