Russell Berger v. State of Arkansas

cr02-350

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 12, 2004

RUSSELL BERGER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-350

APPEAL FROM THE CIRCUIT COURT OF FAULKNER COUNTY, NO. CR 98-499, HONORABLE DAVID LEE REYNOLDS, JUDGE

PETITION FOR REHEARING GRANTED; SUBSTITUTED OPINION ISSUED; AFFIRMED

Per Curiam

Appellant was convicted of two counts of rape of a five-year old boy and sentenced to two consecutive life sentences. We affirmed on direct appeal. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). Appellant subsequently filed a petition and several amended petitions for postconviction relief pursuant to Ark. R. Crim. P. 37, asserting the following claims: (1) violation of the double-jeopardy clause; (2) ineffective assistance of counsel; (3) prosecutorial misconduct; (4) and cumulative error. The trial court denied the petition following a hearing, and appellant appealed. We affirmed in part the denial of relief but remanded to the trial court for written findings of fact and conclusions of law on appellant's double-jeopardy claim and four claims of ineffective assistance of counsel. Berger v. State, CR 02-350 (Ark. Feb. 28, 2003) (per curiam). The trial court submitted its written findings, finding no merit to appellant's claims of ineffective assistance, but failed to address appellant's claim of double jeopardy as directed by this court. We again remanded to the trial court to comply with our original opinion. Berger v. State, CR 02-350 (Ark. Oct. 2, 2003) (per curiam). The trial court complied and entered an order denying appellant's double-jeopardy claim, and we affirmed. Berger v. State, CR 02-350 (Ark. Jan. 22, 2004) (per curiam). This substituted opinion is being issued in response to appellant's petition for rehearing, requesting that we address his claims of ineffective assistance of counsel. We find no merit and affirm.

Double Jeopardy

The felony information alleged that appellant committed three, separate criminal acts on three, separate occasions: two counts of rape and one count of sexual abuse in the first degree. At the close of the State's case-in-chief, the trial court granted appellant's motion for directed verdict on the count of first-degree sexual abuse, finding that the State had failed to present a prima facie case that appellant engaged in sexual contact with the victim. However, the trial court did find that the State had presented a prima facie case that appellant engaged in deviate sexual activity with the victim on two occasions and denied his directed-verdict motion as to the rape charges.

According to appellant, when the trial court granted his motion for directed verdict on the one count of first-degree sexual abuse, that operated as a bar to his prosecution for rape. Appellant contends that sexual abuse in the first degree is a lesser-included offense of rape; therefore, his continued prosecution for rape after the granting of the motion violated the Double Jeopardy Clause. "The Double Jeopardy Clauses of the United States and Arkansas Constitutions protect criminal defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Cothren v. State, 344 Ark. 697, 704, 42 S.W.3d 543, 548 (2001). A greater offense and its lesser-included offenses are considered the same for purposes of double jeopardy, e.g., Hughes v. State, 347 Ark. 696, 703, 66 S.W.3d 645, 648 (2002); however, that is not the case before us. In denying postconviction relief, the trial court held that appellant's argument must fail because the offense of first-degree sexual abuse was "alleged to be a separate act committed by the defendant unrelated to the two counts of rape and was not a lesser included offense of the separate acts [of rape]." The trial court cited Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986) for the proposition that rape is not defined as a continuing offense. Id. at 195, 710 S.W.2d at 203. According to Tarry, separate impulses are required for the commission of each rape, resulting in multiple offenses. Id. As the trial court noted:

[E]ach penetration constituted separate impulses and consequently separate charges in the relevant felony information. There is no viable double jeopardy claim because twice raping the victim during a short period of time constitutes two separate conscious acts, is not duplicative and does not violate the double jeopardy [clause].

We agree with the trial court that appellant's acts of rape are separate and distinct from the first-degree sexual abuse count for which he was acquitted. The fact that a direct-verdict motion was granted has no bearing on his prosecution for the two rapes, regardless of the fact that all three offenses were committed against the same victim. Because appellant's claim is without merit, we affirm the trial court's denial of relief. Ineffective Assistance of Counsel

As stated, we remanded for findings of fact and conclusions of law on the following four claims of ineffective assistance of counsel: (1) failure to properly argue for the exclusion of evidence under Ark. R. Evid. 404(b); (2) failure to request a cautionary instruction; (3) failure to object during the prosecutor's opening statement and closing argument; and (4) failure to investigate the testimony of Aaron Hoyt. 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 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.

A. Exclusion of 404(b) evidence

Appellant claims that counsel was ineffective for failing to argue on appeal that the evidence admitted under the "pedophile exception" to Ark. R. Evid. 404(b) violated appellant's due process rights. The evidence in question is the testimony of two Colorado boys, who claimed appellant molested them in 1996. Trial counsel argued below and on appeal that the boys' testimony should be excluded under Ark. R. Evid. 404(b) as being evidence of other crimes, wrongs, or acts that are inadmissible to prove appellant's character or to show that he acted in conformity therewith. However, according to appellant, counsel should have also made the argument on appeal that the introduction of other instances of molestation under the "pedophile exception" violated his due-process and Sixth Amendment rights. In denying relief, the trial court found that counsel did object to the use of prior convictions in an in camera hearing prior to trial, and a motion in limine was granted. Accordingly, the court found appellant's argument to be contrary to the evidence and without merit.

We reject appellant's claim because he did not make this constitutional argument before the trial court. We will not consider an argument raised for the first time on appeal. B.C. v. State, 344 Ark. 385, 390, 40 S.W.3d 315, 319 (2001). Therefore, had counsel raised the argument on appeal,it would have been rejected. Counsel is not ineffective for failing to make a meritless argument. Camargo v. State, 346 Ark. 118, 128, 55 S.W.3d 255, 262-63 (2001). Accordingly, we affirm the ruling below.

B. Request for Cautionary Instruction:

Next, appellant argues that counsel was ineffective for failing to request a proper cautionary instruction when the trial court allowed testimony under the "pedophile exception" to Rule 404(b). According to appellant, the fact that no instruction was given caused the jury to convict him of two rapes based on the testimony of alleged crimes for which he was not on trial. The trial court ruled

that the evidence was properly admitted to prove the "depraved sexual instinct of the defendant" and that no prejudice was demonstrated.

We look to Strickland to determine whether counsel was ineffective for failing to seek a cautionary instruction. Sasser v. State, 338 Ark. 375, 393, 993 S.W.2d 901, 912 (1999). Appellant must show that but for counsel's failure to request the instruction, the outcome would have been different. Id. at 394, 993 S.W.2d at 912. Appellant can make no such showing as there was ample evidence against appellant, even excluding the testimony admitted under Rule 404(b), to support his conviction.

At trial, the victim testified that appellant orally and anally raped him, took naked pictures of him, and put those pictures on his home computer. The victim's mother and Crystal Rhodes, a family friend, testified that the victim reported the rapes to them and that he was very upset. Aaron Hoyt, a coworker and former friend of appellant, testified that appellant made the statement that he had a fetish for little boys' toes during an on-line chat. Hoyt went on to testify that appellant had talked to him about a vast collection of encrypted photographs on his computer. According to Hoyt, appellant had asked him to delete a number of files off his server. Hoyt did so without looking at the files but testified that the size of the files was half a gigabyte and could contain thousands of files. Hoyt testified that appellant went out of his way to keep certain files encrypted. Shortly before appellant's arrest, he told Hoyt that he was concerned that he might soon be arrested and that he would be in a lot of trouble if the government found the information on the files.

Given the evidence presented, appellant has failed to show how a cautionary instruction would have changed the outcome of his trial. Without a showing of prejudice, appellant's claim of ineffective assistance must fail. Accordingly, we find no merit and affirm.

C. Opening Statement and Closing Argument:

Appellant claims that counsel was ineffective for failing to object during the prosecutor's opening statement and closing argument and that he should have requested a curative instruction. According to appellant, counsel failed to object during opening statement when the prosecutor explained that Crystal Rhodes would testify that when describing an encounter with her daughter, the victim told her that he "didn't ask her to suck it." It should be noted that at trial, counsel successfully objected to such testimony on hearsay grounds.

In denying relief, the trial court found that objections during opening statements are rare and that allowing a prosecutor to make unfulfilled promises to the jury can be an effective trial strategy. The court further found that jurors were instructed that opening statements are not evidence. We have held:

Experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor's comments seem more significant to the jury. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct. Cohen v. United States, 996 F. Supp. 110 (D. Mass.1998).

Sasser, 338 Ark. at 391, 993 S.W.2d at 910. Not only has appellant failed to prove that counsel's performance was deficient, given the amount of evidence against him, he has failed to show that he was prejudiced by the prosecutor's remarks, especially since the testimony was not admitted during trial. Moreover, he has not demonstrated that a curative instruction would have changed the outcome of the trial.

Appellant also claims that counsel should have objected during the State's closing argument because the prosecutor improperly referred to appellant as a "monster," asked the jurors to be "crime fighter[s]," and argued that appellant had no presumption of innocence. In denying relief, the trial court found no basis for an objection.

Before appellant can prevail on an allegation that counsel was ineffective for failing to object during closing argument, he must establish that he was denied a fair trial by the failure to object. Lee v. State, 343 Ark. 702, 723, 38 S.W.3d 334, 348 (2001). Again, counsel's decision not to object is one of trial strategy and outside the purview of Rule 37. See Noel, supra. Moreover, appellant has not shown that he was prejudiced by counsel's performance. We have found that similar comments, such as referring to appellant as a "hunter," did not warrant a mistrial. Lee, 343 Ark. at 723-24, 38 S.W.3d at 347-48. In Lee, we held that given the nature and strong evidence of guilt before the jury, it was unlikely that the additional comment--albeit an objectionable comment--was the determining factor in the jury's verdict. Id. at 723-24, 38 S.W.3d at 348. Like Lee, it was not likely that the prosecutor's comment was the determining factor in finding appellant guilty, considering the jury had before them the victim's own testimony regarding the rapes. We have held that the testimony of a child rape victim alone "constitutes substantial evidence to support the conviction." See, e.g., Miller v. State, 318 Ark. 673, 676, 887 S.W.2d 280, 282 (1994).

The prosecutor's reference to the jurors as "crime fighter[s]" was nothing more than a call to the jury to enforce the law, which is permissible. See Muldrew v. State, 331 Ark. 519, 524, 963 S.W.2d 580, 582-83 (1998). Accordingly, an objection to this comment would have been unsuccessful. Counsel is not ineffective for failing to make a meritless argument. Camargo, supra. Finally, appellant argues that counsel was ineffective for failing to object to the prosecutor's comment during closing argument that appellant no longer had a presumption of innocence.

The presumption of innocence is so strong that it serves an accused as evidence in his favor throughout the trial and entitles him to an acquittal unless the state adduces evidence which convinces the jury beyond a reasonable doubt that he is guilty of the crime charged. It is a fundamental right in the American system antedating any constitution and an essential of due process of law. It alone puts in issue the truth and credibility of all of the evidence offered against an accused.

Anderson v. State, 353 Ark. 384, 399-400, 108 S.W.3d 592, 602 (2003) (quoting Williams v. State, 259 Ark. 667, 672-73, 535 S.W.2d 842, 846 (1976)). In the case of Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), we addressed a similar issue. During closing arguments in that case, the prosecutor commented that the presumption of innocence no longer applied to the defendant due to the strong evidence of guilt. Counsel did not object. Id. at. 508, 911 S.W.2d at 567. While considering whether to address the issue on direct appeal, we found that while improper, the comment did not "rise to that flagrant or highly prejudicial level," warranting the trial court's intervention absent an objection. Id. at 507-08, 911 S.W.2d at 567. We find that in the instant case, the prosecutor's comment was improper; however, we do not find that appellant suffered prejudice as a result of counsel's failure to object. It is unlikely that the comment, in light of the victim's testimony and that of other witnesses, had an adverse effect on the defense. Moreover, prior to closing arguments, the court gave instructions to the jury that included an instruction on appellant's presumption of innocence. As both a showing of deficiency and prejudice are required for a claim of ineffective assistance of counsel, appellant's claim must fail. Therefore, we affirm the trial court's denial of relief.

D. Testimony of Aaron Hoyt:

Appellant's fourth claim of ineffectiveness is that counsel failed to properly investigate and object to the testimony of Aaron Hoyt, who testified that appellant told him that he had a fetish for young boys' toes. Appellant claims that with adequate investigation, counsel would have discovered that the conversation in question occurred during an internet chat session and therefore, was not attributable to appellant. In denying relief, the trial court found that appellant presented no testimony or evidence in support of this allegation. The trial court also noted that counsel did object to the testimony and that appellant's allegations were not supported by evidence.

The trial record reflects that counsel objected to Hoyt's testimony on the grounds of relevance and unfair prejudice and that the objection was overruled. However, appellant argues that Hoyt had no knowledge that he was in fact conversing with appellant and given this information, counsel failed to make a proper hearsay objection.

Appellant's claim has no merit because there was no basis for such an objection. Hoyt testified that his conversation with appellant took place during an on-line chat session and that he and appellant spoke regularly in this manner. According to Hoyt, he was so familiar with appellant's tone that he was able to discern that appellant had been drinking on the night of the conversation. According to Ark. R. Evid. 801(d)(2), a statement offered against a party, which is his own statement, in either his individual or a representative capacity, is an admission by a party-opponent and is an exception to the hearsay rule. Because appellant's statement during this conversation falls under this exception, any attempt by counsel to make such an objection would have been overruled. Again, counsel is not ineffective for failing to make a meritless argument. Camargo, supra.

It is obvious from Hoyt's testimony that he had established a relationship with appellant. He was appellant's friend and co-worker and had regular conversations with him in these chat rooms. Appellant's argument that the conversation was not face-to-face goes to the weight of the statement, not the admissibility. Finally, assuming arguendo, that counsel's performance was deficient, appellant has failed to demonstrate prejudice, as Hoyt's testimony was not the only incriminating evidence against appellant. The testimony of the victim alone was sufficient to support the conviction. See Miller, supra. Accordingly, we affirm the ruling below.

Petition granted; affirmed.