Emmitt Jones v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-491

NOT DESIGNATED FOR PUBLICATION

EMMITT JONES

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered March 3, 2005

APPEAL FROM THE CIRCUIT COURT OF CHICOT COUNTY, NO. CR 97-18-1A, HONORABLE DON E. GLOVER, JUDGE

AFFIRMED

PER CURIAM

Appellant was tried by a jury and found guilty of possession of crack cocaine with intent to deliver, possession of drug paraphernalia, simultaneous possession of drugs and a firearm, and two counts of delivery of a controlled substance. He was sentenced to seventy-three years' imprisonment and fined $50,000. The Arkansas Court of Appeals affirmed in an unpublished decision. Jones v. State, CA CR 98-632 (Ark. App. Jan. 6, 1999). Appellant subsequently filed a petition seeking postconviction relief pursuant to Ark. R. Crim. P. 37 and later, an amended petition, which were denied. William M. Howard, Jr. was appointed by the court to represent appellant in the Rule 37 proceedings. Appellant filed a pro se motion for belated appeal to this court, claiming that, although he desired to appeal the denial of his Rule 37 petition, Howard failed to perfect the appeal.

On April 30, 2003, the Criminal Justice Coordinator for the Supreme Court of the State of Arkansas mailed Howard a letter informing him of appellant's motion for belated appeal and requesting that he submit an affidavit responding to the allegations contained in the motion. Howard filed an affidavit on May 14, 2003. The attorney general was provided a copy of the affidavit, but did not respond.

On September 11, 2003, appellant filed an amended motion for belated appeal. In a per curiam dated October 9, 2003, this court granted the motion for belated appeal and directed that Howard, as attorney of record on appeal, file appellant's brief within forty-five days or submit within that time a petition for writ of certiorari, if the record lodged by appellant was incomplete.

On October 27, 2003, Howard filed a motion to be relieved as counsel, and, on October 21, 2003, appellant filed a pro se motion for change of counsel. Both motions were denied on November 13, 2003. On November 20, 2003, two days after the deadline had passed, Howard, on behalf of appellant, moved to file a belated brief and to supplement the record. In the motion, Howard claims that he found out the brief was due two days earlier when he received a telephone message from the Criminal Justice Coordinator, that he apparently miscalculated the date the brief was due, and that he thought he would be relieved as counsel.

The motion was treated as a motion for rule on clerk, and Howard was ordered to file within thirty days from the date of the opinion, a motion and affidavit accepting full responsibility for not timely filing the transcript and brief. Howard complied, admitting that the record was tendered late due to a mistake on his part. The motion was granted, and a copy of the per curiam was forwarded to the Supreme Court Committee on Professional Conduct.

On appeal, appellant has failed to include in his brief, a proper abstract of his trial and other material parts of the transcript. Even so, we are not ordering rebriefing pursuant to Ark. Sup. Ct. R. 4-2(b)(3) because it is clear from our review of appellant's claims that he could not prevail on appeal. An appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Booth v. State, 353 Ark. 119, 120, 110 S.W.3d 759, 760 (2003).

Appellant makes the following three claims of ineffectiveness: (1) trial counsel, Brad Chambless, was not prepared to go to trial, (2) counsel moved to suppress a tape that could have proved that appellant did not take part in the drug buy, and (3) counsel failed to attach to his motion for continuance an affidavit as required by Ark. Code Ann. § 16-63-402(a) (1987).

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.

As for appellant's claim that counsel was not prepared to go to trial, it is procedurally barred as it was not raised below. It is well settled that we will not address arguments raised for the first time on appeal. Miner v. State, 342 Ark. 283, 288, 28 S.W.3d 280, 283 (2000). Although counsel did testify at the Rule 37 hearing regarding his attempts to meet with appellant prior to trial, it does not appear that the issue was actually raised. Even if it could be argued that the issue was addressed at the hearing, the trial court did not rule on the claim, and we have repeatedly stated that the failure to obtain a ruling on a Rule 37 issue at the trial court level precludes review on appeal. Matthews v. State, 333 Ark. 701, 705, 970 S.W.2d 289, 292 (1998).

Appellant goes on to claim that counsel was ineffective for moving to suppress a tape of a drug buy that allegedly did not contain appellant's voice. According to appellant, this tape was the "best evidence" to show that appellant had not participated in the transaction with the confidential informant, and was exculpatory evidence that should have been admitted. The trial court denied relief, ruling that it was appellant's burden to present evidence during the Rule 37 proceedings to show prejudice. The court noted that the surveillance tape was obviously not produced at trial and that there was no inquiry about the tape or its contents during the Rule 37 proceedings. The trial court found that the record was silent as to the contents of the tape and its existence. Finally, the court found that even if the tape had been produced, that it would have "contradicted" the testimony and evidence presented at trial, including testimony from the officers that witnessed the drug transactions.

On direct appeal, appellant raised the issue of the State's non-compliance with discovery requests for the tape. The following is an excerpt from Jones, supra, explaining the circumstances surrounding the motion to suppress:

Jones filed a blanket motion for discovery that included a request to disclose any electronic surveillance "of conversations to which [he] was a party." It also asked for any photographs that the State intended to introduce at trial and any evidence tending to negate his guilt. The State responded that it followed an "open file" policy, but where an audio or video recording was concerned, it would provide a copy if he furnished a blank tape or provide an opportunity to review the tape if he made arrangements at least 72 hours in advance. Jones then filed a supplemental motion for discovery which included a request for "[a]ny video, audio, or surveillance tapes of any form related to this matter." At a pretrial hearing, Jones specifically requested a copy of a surveillance tape that purportedly recorded the confidential informant making two controlled narcotics buys from him. Jones provided the State with a blank tape, and despite assurances from the State that a copy of the tape would be provided, none was ever made.

Citing the State's failure to comply with his discovery request, Jones filed a motion in limine praying that "any and all inculpatory evidence related to the audio surveillance tapes" be suppressed and that all of the State's witnesses be admonished from mentioning the content of or existence of the tapes. In the alternative, he prayed for a continuance and an order compelling disclosure. Jones filed a second motion in limine in which he asked the trial court to suppress photographs of the crime scene that had not been provided to him by the State, and that allegedly would show how difficult it would have been for him to know that a gun was in the residence. The State did not oppose either motion, and the trial court suppressed the evidence.

* * *

For his first argument, Jones asserts that his conviction should not stand because it was had upon the repeated violation of Arkansas Rule of Criminal Procedure 17.1. Citing McNeesev. State, 326 Ark. 787, 935 S.W.2d 246 (1996), for the proposition that "reversible error occurs when a prosecutor's failure to comply with a timely request for discovery results in prejudice to the appellant," he asserts that the "simple fact" that he had to file motions in limine to suppress evidence that he had not been provided demonstrates prejudice. Further, Jones contends that because his defense was that he had not made the narcotics transactions and therefore his voice was not on the tape, not having the tape denied him the opportunity to determine the extent to which it was exculpatory. He also argues that not being able to review the audio tapes made it impossible to structure his defense based on the contents of the tape. Finally, he asserts that not having the tape "limited" him to only one choice: suppressing the information because he did not know what was on it.

* * *

Here there is absolutely no doubt that the State committed discovery violations. However, Jones ultimately did not ask the trial court for a continuance and sanctions, rather, he asked to suppress the evidence that the State denied him in discovery, and the trial court granted his suppression motion. Jones received the relief requested, and accordingly he has no basis for appeal. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Accordingly, this point does not provide a basis for appeal.

At the Rule 37 hearing, counsel testified that he did not want evidence introduced at trial that he had not seen or heard. According to counsel, "[T]here's no way in a criminal trial of a Class Y felony I'm going to allow any piece of evidence in that I've never seen or heard before." He added that "[i]f that happened again today I would make the same motion because I have not seen the tape, I have not heard the tape, and I'm not sure it exists, and it's not going to come up in my trial and bite me."

Counsel is allowed great leeway in making strategic and tactical decisions, and those decisions are a matter of professional judgment. Noel, 342 Ark. at 41, 26 S.W.3d at 127. Matters of trial tactics and strategy are not grounds for postconviction relief on the basis of ineffective assistance of counsel. Lee v. State, 343 Ark. 702, 709, 38 S.W.3d 334, 339 (2001). Because it was

reasonable for counsel to move to suppress evidence that he had never seen nor heard because of the potential damage to the defense, we affirm the denial of relief on this point.

Finally, appellant claims that counsel failed to include, with his motion for continuance, an affidavit pursuant to Ark. Code. Ann. § 16-63-402(a), in order to secure the attendance and testimony of the confidential informant at trial. As a result, the motion for continuance was denied. According to appellant, the confidential informant would have confirmed that appellant was not involved in the drug buys in question. At the hearing, counsel testified that he attempted to locate the informant and that his process server learned from the informant's parents that the informant was out of state. Moreover, counsel testified that it was impossible for him to file an affidavit proffering what the witness would have said because he had never seen that witness, and he only knew what appellant had told him regarding the informant's testimony.

In denying relief, the trial court held that appellant had the burden of producing the testimony of the missing witness or presenting his affidavit, deposition, or proffer in order to show that the outcome of appellant's case would have been different had the witness been called to testify. The court held that appellant had failed to make such a showing as the testimony of the confidential informant was not before the court.

Appellant asserts what he contends would have been the substance of the witness's testimony, but does not provide support for the allegation. An unsupported, conclusory allegation cannot form the basis for postconviction relief. Dansby v. State, 350 Ark. 60, 67, 84 S.W.3d 857, 862 (2002). Even on direct appeal, the court of appeals noted that Jones had not spoken with the informant and that it was "only speculative that he even would tell a different story" than that of the

officers who witnessed the buys. The court noted that the testimony of the officers made the confidential informant's testimony "at best contradictory."

Appellant has not provided the substance of the confidential informant's testimony in order to show that he was prejudiced by counsel's failure to secure the attendance and testimony of the informant through the affidavit. Without a showing of prejudice, we cannot grant postconviction relief. We therefore affirm the ruling below.

Affirmed.