Aca Colquitt Murphy, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 14, 2002

ACA COLQUITT MURPHY, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-610

APPEAL FROM THE CIRCUIT COURT OF COLUMBIA COUNTY, NO. CR 98-102, HONORABLE LARRY CHANDLER, JUDGE

AFFIRMED

Appellant was convicted of two counts of possession of a controlled substance, crack cocaine and marijuana. He received concurrent sentences of thirty and fifteen years' imprisonment. The Arkansas Court of Appeals affirmed appellant's convictions in an unpublished opinion. Murphy v. State, CACR 99-375 (Ark. App. Nov. 17, 1999). This court denied appellant's petition for review in an unpublished opinion. Murphy v. State, CR 99-1388 (Ark. Dec. 16, 1999) (per curiam). Subsequently, appellant filed a timely pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Appellant later filed a sixteen-page amended petition. The trial court denied appellant's original petition in toto and rejected the amended petition under Rule 37.1(e). 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, 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 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 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 his trial counsel was ineffective for failing tochallenge the alleged discrepancy between the form and quantity of the cocaine evidence that was admitted versus that which was seized from appellant. According to appellant, Officer Ted Rocole testified that he removed two rocks of cocaine from appellant; however, Nick Dawson, a chemist with the State Crime Lab, testified that he examined two bags of a powder substance, which turned out to be cocaine, and therein lies the discrepancy. However, appellant offers no evidence to support his allegation and ignores the testimony of several witnesses who can account for the discrepancy.

An allegation which is general in nature with no showing of actual prejudice to the defense is not deserving of postconviction relief. Isom v. State, 284 Ark. 426, 430, 682 S.W.2d 755, 758 (1985). Counsel is presumed effective and allegations without substantiation are insufficient to overcome the presumption. Jeffers v. State, 280 Ark. 458, 460, 658 S.W.2d 869, 871-72 (1993).

Officer Rocole testified at trial that while conducting a pat-down search of appellant, he found what appeared to be marijuana, two pieces of rock cocaine and some cocaine residue. He identified State's Exhibit 1 as the residue that was taken from appellant's pocket. Investigator Johnny Hayes testified that he sent the two rocks of cocaine to the Crime Lab, via certified mail. According to Hayes, the cocaine could have easily been "smushed" in the mail.

Chemist Nick Dawson testified that when he received State's Exhibit 1 it was in granular form, like sugar. He also testified that rock cocaine is so dry that it is "crumbly." According to Dawson, it is not unusual to see cocaine in this "crumbled" form notwithstanding the accompanying submission sheet from police that describes the substance as being in rock-like form.

In Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997),1 this court held that wheredescriptions differ concerning an interchangeable substance, merely tracing the route of the envelope containing the substance is not enough to establish authenticity of the drug tested. Although Crisco is distinguishable from the case at bar in that the evidence in Crisco changed from a powder-like substance to a rock-like form and varied in color, the State's burden still applies.

The State clearly met its burden through the testimony of Officer Rocole, Investigator Hayes and Mr. Dawson. Given the amount of evidence presented establishing the authenticity of the cocaine, there was no basis for a challenge by trial counsel. Therefore, appellant has failed to show ineffectiveness according to the standard set forth in Strickland. Accordingly, we find no error and affirm.

Appellant's second claim on appeal is that the trial court committed reversible error by refusing to consider appellant's amended Rule 37 petition because it exceeded ten pages. Rule 37.1(e) states that a petition "shall not exceed ten pages in length" and that "[p]etitions which are not in compliance with this rule will not be filed without leave of the court." A court should not accept a petition exceeding ten pages in length unless the petitioner can demonstrate in a motion that he cannot adequately present his claims in only ten pages. Washington v. State, 308 Ark. 322, 323, 823 S.W.2d 900, 901 (1992). Appellant made no attempt to obtain leave of court prior to filing his amended petition nor did he attempt to demonstrate his need for a lengthier petition. Therefore, we affirm the trial court's decision not to consider appellant's amended petition.

Affirmed.

1 In a supplemental opinion on an issue not pertinent to the case at bar, this court granted the State's petition for rehearing to change the disposition of the case from reversed and dismissed to reversed and remanded, noting that when evidence has been excluded on appeal due to trial error, the proper disposition is a reversal and remand for the possibility of a new trial.