Michael Cagle, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 21, 2002

MICHAEL CAGLE, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-723

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, NO. CR 97-902-2-3, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED

Appellant was convicted of murder in the first degree and sentenced to forty years' imprisonment. The Arkansas Court of Appeals affirmed. Cagle v. State, 68 Ark. App. 248, 6 S.W.3d 801 (1999). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied. From that order comes this appeal.

On appeal, appellant makes the following claims: (1) trial counsel was ineffective for failing to object to the wrong jury instruction on justification; (2) trial counsel was ineffective for failing to adequately argue appellant's right to present evidence of the deceased's methamphetamine use; and (3) trial counsel was ineffective for failing to adequately object to improper efforts to influence the jury. Appellant also asserts that the jury instruction and methamphetamine issues are constitutional errors independently cognizable under Rule 37.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel inStrickland 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.

Appellant's first claim is that trial counsel was ineffective for failing to object to a jury instruction on justification/self-defense. According to appellant, the jury was presented with the wrong instruction. In addition, appellant claims that the instruction was constitutionally defective and that this issue may be raised for the first time in a Rule 37 proceeding.

The trial court instructed the jury using AMCI 2d 704, Justification-Use of Physical Force in Defense of a Person. Appellant now asserts that the court should have given AMCI 2d 705, Justification-Use of Deadly Physical Force in Defense of a Person and that counsel was ineffective for not objecting to the use of AMCI 2d 704. Under the deadly force statute, Ark. Code Ann. § 5-2-607:

(a) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is:

(1) Committing or about to commit a felony involving force or violence;

(2) Using or about to use unlawful deadly physical force; or

(3) Imminently endangering his or her life or imminently about to victimize the person as described in § 9-15-103 (a)(2), from the continuation of a pattern of domestic abuse. For the purposes of this section "domestic abuse" shall be that described in § 9-15-103 (a).

(b) A person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety:

(1) By retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor, or if he is a law enforcement officer or a person assisting at the direction of a law enforcement officer; or

(2) By surrendering possession of property to a person claiming a lawful right thereto.

According to the standard set forth in Strickland, appellant has made no showing that trial counsel's failure to object to the use of AMCI 2d 704 prejudiced his defense such that the outcomeof his trial would have been different. In fact, appellant benefitted from the use of AMCI 2d 704 in two ways. First, AMCI 2d 704 only required appellant to show that he "reasonably believed that the victim was using or was about to use unlawful physical force upon him." Whereas, under AMCI 2d 705, appellant would have had a much higher standard of proof, i.e. that he "reasonably believed that [the victim] was committing or was about to commit [a felony], with force or violence," or that he "reasonably believed [the victim] was using or about to use unlawful deadly force." Second, AMCI 2d 705 has a duty to retreat if one is not in his own home, a requirement that is absent from AMCI 2d 704.

Although AMCI 2d 705 specifically authorizes the use of deadly force, AMCI 2d 704 did not prohibit appellant from using any "force which he reasonably believed to be necessary." The language of the instruction given by the trial court allowed for the use of deadly force if the jury found that appellant had such a belief. Not only did appellant benefit from AMCI 2d 704's lesser standards in terms of the required state of mind, the victim's level of force, and the duty to retreat, appellant retained his right to use deadly force. Appellant has made no showing of prejudice such that had his preferred instruction been given, he would have avoided conviction.

Appellant's claim that his case is analogous to Reynolds v. State, 341 Ark. 387, 18 S.W.3d 331 (2000), is flawed. In Reynolds, we found trial counsel ineffective and reversed a conviction for first-degree murder because counsel failed to object to an instruction that allowed the jury to convict the defendant of first-degree murder based on the elements of second-degree murder. Id. at 363, 18 S.W.3d at 336. In the present case, appellant makes no claim that the elements of first-degree murder were improperly given to the jury. The jury was correctly instructed on first-degree murder; appellant simply disagrees with the instruction on justification. Therefore, Reynolds does not apply. Accordingly, we affirm the trial court's denial of postconviction relief on this point.

Appellant goes on to argue that the giving of an incorrect jury instruction on justification was a structural error that may be raised for the first time in a Rule 37 proceeding. There are only three circumstances in which an issue that could have been raised on direct appeal may be raised for the first time in a Rule 37 petition: (1) when a trial is had with less than 12 jurors; (2) when a defendant is convicted in a court that does not have jurisdiction; and (3) when a conviction is the result of a violation of the constitutional protections against double jeopardy. See e.g. Davis v. State, 345 Ark. 161, 168, 44 S.W.3d 726, 730 (2001). The giving of the instruction does not fall into one of these categories. Attacking the conviction in this manner is not appropriate in a Rule 37 proceeding. Therefore, we affirm the trial court's denial of postconviction relief on this point.

Appellant also claims that counsel was ineffective for failing to introduce the fact that the deceased was high on methamphetamine at the time of the altercation. At trial, counsel attempted to introduce into evidence the testimony of Dr. William Sturner of the Arkansas State Crime Lab that at the time of his death, the victim had .24 micrograms of methamphetamine per milliliter of blood in his system. The trial court excluded the evidence, and the court of appeals affirmed. According to the court of appeals, there was no evidence that appellant knew of the victim's drug use or that drug use could have been inferred from the victim's behavior. Therefore, there was no support for appellant's argument that he was afraid for his life because of the victim's drug use.

No evidence was presented at the Rule 37 hearing that appellant knew the victim was taking drugs, that such an inference could have been made based upon the victim's actions, or that appellant informed counsel of any drug use by the victim. Given that the record is void of any such evidence, appellant has failed to demonstrate that counsel's performance was deficient or that appellant was in any way prejudiced. See Strickland, supra. Appellant testified that the victim had thrown a punch at him, put him in a headlock, and choked him, yet the jury still chose to convict. Appellant has failed to show that the introduction of the victim's drug use would have changed the outcome of the trial. Testimony of specific acts unknown to a defendant are not directly probative of defendant's belief that he is about to encounter unlawful deadly force. Britt v. State, 7 Ark. App. 156, 161, 645 S.W.2d 699, 702 (1983). Therefore, we affirm the trial court's ruling on this point.

Appellant goes on to argue that the failure to have this testimony admitted was a structural error because appellant was denied the "right to present a defense." However, this scenario does not fit into any of the three categories deemed appropriate to be raised for the first time in a Rule 37 proceeding. Therefore, we affirm the trial court's ruling on this point.

Finally, appellant argues that counsel was ineffective for failing to adequately object to improper attempts to influence the jury, specifically that he was prejudiced by counsel's failure to include in the appellate record buttons worn by the victim's family during trial. The court of appeals refused to address this issue because there was nothing in the record to demonstrate that any of the jurors saw the buttons or their reactions to the buttons had they been seen. And, no evidence was presented at the Rule 37 hearing to bolster appellant's argument, only speculation that the jurors might have seen the buttons. Appellant has failed to show that he was prejudiced by counsel's performance; therefore, we affirm the ruling below.

Affirmed.