Demetrius Antonio Curtis v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 26, 2004

DEMETRIUS ANTONIO CURTIS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-296

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 2000-91, HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

Per Curiam

Appellant was found guilty of possession of cocaine, simultaneous possession of drugs and a firearm, and misdemeanor possession of marijuana. He was sentenced to ten years' imprisonment. The Court of Appeals affirmed. Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002).

Appellant then filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. Appellant raised several claims in his petition, including allegations of ineffective assistance of counsel, prosecutorial misconduct, denial of due process, and denial of a fair and impartial trial. By written order, the circuit court denied relief without a hearing on all claims except the allegation that counsel failed to inform appellant of a plea offer. The circuit court held a hearing on that claim, but subsequently denied relief in a second written order.

Appellant now contends that the circuit court also should have held a hearing on the allegation that counsel was ineffective for failing to raise a chain-of-custody issue with respect to the drug evidence in his case. In the order denying this claim, the circuit court concluded that the claim was a bare allegation refuted by the trial testimony of the arresting officer.

Under Ark. R. Cr. P. 37.3(a) (2002), the circuit court had discretion to deny relief without a hearing. Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court's decision. E.g., Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. See id. Conclusory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Nance v. State, 339 Ark. 192, 195, 4 S.W.3d 501, 503 (1999).

In this case, the circuit court made written findings and specified that the testimony of the arresting officer, Stacy Payton, refuted the appellant's ineffective assistance of counsel claim. Appellant alleged that Officer Payton maintained personal, overnight possession of the drug evidence in this case, and he suggested that the evidence could have been tampered with.

At trial, Officer Payton testified that she conducted a traffic stop on appellant for littering after witnessing several items of trash fly out of the bed of his truck. During the stop, while checking for warrants on appellant, she saw appellant turn to the side, reach into his pocket, and drop something down the side of his leg. After calling for back-up and placing appellant in custody, she recovered two plastic bags containing what appeared to be, and was subsequently determined to be, marijuana and cocaine. She testified that appellant was two to three feet in front of her car when he dropped the bags, and that she never lost sight of them. She stated that there were no other items on the ground where appellant dropped the bags.

Officer Payton further testified that she was going to do an inventory report before having appellant's truck towed. She asked appellant if there was anything else in his truck that she needed to know about, and he informed her there was a gun under the seat. Officer Payton stated that she transported the gun and drugs to the evidence room, sealed them, and placed them in a locked evidence locker. She also completed a Crime Lab submission sheet for the evidence. She produced the evidence and submission sheet at trial, and testified that the evidence was in the same condition as she found it. The evidence and submission sheet were admitted without objection.

Upon the close of the presentation of the State's case, appellant's counsel moved for a directed verdict, specifying in part that the State failed to show that the items appellant allegedly dropped were in fact the drug evidence introduced at trial. Counsel renewed the motion at the close of all evidence.

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 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.

Thus, a defendant must show first, 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 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 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 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 (1997) (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.

The circuit court did not clearly err in denying appellant relief on this claim without first holding a hearing. As noted by the circuit court, appellant offered no evidence supporting his allegation that Officer Payton kept the drug evidence overnight and could have tampered with it. Indeed, her trial testimony contradicts the allegation as she stated that the evidence was logged, sealed, and placed under lock in the evidence room at the time she transported appellant to jail. Appellant also has not explained his claim further in this appeal, and again offers no evidence supporting his allegation.

Even if counsel had raised a chain-of-custody issue, appellant has failed to show any prejudice. We have consistently stated that the purpose of establishing a chain-of-custody is to prevent the introduction of evidence that is not authentic or that has been tampered with, and to prove authenticity of evidence the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Guydon v. State, 344 Ark. 251, 255, 39 S.W.3d 767, 769-70 (2001). As we stated in Guydon, "it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period." Id. "Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with." Id. We do not reverse a ruling on an evidentiary matter regarding the admissibility of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court. Id.

Appellant's ineffective assistance claim goes to the credibility of Officer Payton's trial testimony and the weight to be accorded to it. This court, however, defers to the superior position of the trial judge in matters of credibility. E.g. Rankin v. State, 338 Ark. 723, 729-32, 1 S.W.3d 14, 732-33 (1999). Officer Payton's trial testimony gave no indication that the drug evidence was not authentic or was tampered with, and we cannot say that the trial court abused its discretion in admitting it into evidence. Furthermore, based on appellant's bare allegation in his petition contradicting Officer Payton's testimony and his failure to further explain his claim on appeal, we cannot say that the trial court clearly erred in denying relief on his ineffective assistance of counsel claim without first holding a hearing.

Affirmed.