Jimmy Housley v. State of Arkansas

cr03-714

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 30, 2004

JIMMY HOUSLEY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-714

APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY, NO. CR 2000-38, HONORABLE GARY ISBELL, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of delivery of methamphetamine, simultaneous possession of drugs and firearms, and possession of drug paraphernalia. He was sentenced to forty years' imprisonment. The Arkansas Court of Appeals affirmed. Housley v. State, CA CR 01-542 (Ark. App. May 8, 2002). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied without an evidentiary hearing. From that order comes this appeal.

Appellant's first claim is that the trial court erred in denying him an evidentiary hearing. Pursuant to Rule 37:

If the petition and files and record of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court's findings. Ark. R. Crim. P. 37.3(a).

In reliance on this rule, this court has held that a court is not required to conduct an evidentiary hearing if it can conclusively determine from the record that the petitioner's contentions are meritless. Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988); see also Brown v. State, 291 Ark. 143, 722 S.W.2d 845 (1987) (trial court must look at entire record when denying a petition without a hearing).

Rowbottom v. State, 341 Ark. 33, 36, 13 S.W.3d 904, 906 (2000). In the instant case, as discussed infra, the record conclusively shows that appellant's allegations do not warrant postconviction relief; thus, we cannot say that the trial court erred in declining to hold a hearing. As for appellant's related claim that the court's order lacks specific references to the parts of the record or files relied upon by the court in denying relief, we also find no merit. Unlike Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (per curiam), the case appellant cites in support of this claim, we have before us the record of appellant's trial. This court can affirm a trial court's order notwithstanding the failure to comply with Rule 37.3(a), if it can be determined from the record that the petition is wholly without merit. Bohanan, 327 Ark. at 510, 939 S.W.2d at 833. Having made that determination, we hold that appellant is not entitled to relief on this point.

Appellant also raises several claims of ineffective assistance of counsel, the first of which is that counsel failed to challenge the sufficiency of the evidence supporting appellant's conviction for simultaneous possession of drugs and firearms. 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.

The record reveals that counsel did move for a directed verdict on the charge of simultaneous possession of drugs and firearms, advancing the same argument appellant now raises. Accordingly, this claim is without merit.

Appellant's second claim of ineffectiveness is that counsel failed to challenge the officers' initial entry onto the curtilage of his property without a warrant. At the suppression hearing, evidence was presented that Linda Uchtman cooperated with police in their investigation of appellant's drug activities. Uchtman wore a wire and went to appellant's residence with money supplied by the police with the intent to pay appellant for methamphetamine. The transaction was monitored electronically while Lieutenant James Moffet surveilled the scene. Once Uchtman left, officers went onto appellant's property and found him outside, standing near a plastic bucket, where he had attempted to dispose of several bags of methamphetamine.

According to our holding in Walley v. State, 353 Ark. 586, 605-06, 112 S.W.3d 349, 360 (2003), neither a driveway nor a yard is per se private, and, for purposes of the Fourth Amendment, areas outside the confines of one's home are ordinarily considered public. Appellant did not have an objectively reasonable expectation of privacy in the curtilage of his home; therefore, no warrant was required. See id. at 605-06, 112 S.W.3d at 360-61. Because there was no basis upon which to challenge the officers' entry onto the property, counsel cannot be found ineffective for failing to make a meritless argument. Sanford v. State, 342 Ark. 22, 28-29, 25 S.W.3d 414, 420 (2000). We therefore affirm the ruling below.

Appellant's third claim is that counsel was ineffective for failing to object to the introduction of a transcript of the electronically monitored conversation between appellant and Uchtman. According to appellant, counsel neither obtained a copy of the transcript prior to the hearing nor reviewed the transcript prior to trial and was unaware of its errors. As mentioned, Uchtman was cooperating with police in their investigation of appellant's drug activities. As part of the investigation, she agreed to wear a wire and go to appellant's home to pay him for methamphetamine he had previously "fronted" her and to obtain more. Their exchange was recorded and a transcript prepared.

However, the record does not reveal that the transcript of the conversation was ever introduced into evidence, only that it was used by both parties during witness examination. Accordingly, counsel cannot be found ineffective for failing to object to the admissibility of an item that was never offered into evidence. Sanford, supra. We affirm the denial of relief.

Appellant's fourth claim is that counsel was ineffective for failing to call certain witnesses. According to appellant, three witnesses, Steve Sanders, Bill Strickland, and Vickey Housely, could have provided exculpatory evidence had they been called to testify.

The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. When assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland.

State v. Goff, 349 Ark. 532, 541, 79 S.W.3d 320, 325-26 (2002) (citations omitted). It is unclear whether appellant advised counsel of these witnesses. Counsel cannot be ineffective for failing to call witnesses of which he was not aware. More significantly, even if counsel's decision could be viewed as erroneous, appellant has failed to show a reasonable probability that the outcome of his trial would have been different had these witnesses been called. We therefore affirm the trial court's denial of relief.

Appellant's fifth claim is that counsel was ineffective for failing to preserve a claim of trial error as to the selection of the jury panel. According to appellant, following the denial of his motion to quash the panel on the ground that it was not properly selected, counsel failed to object at the start of trial, preventing review on appeal.

Pursuant to Ark. Code Ann. § 16-32-103(a) (Repl. 1999), in November or December, the master jury list is chosen, consisting of a statutorily prescribed number of jurors based upon the number of registered voters in the county. The process begins when the trial judge selects a random starting number between one and one hundred. Ark. Code Ann. § 16-32-103(a)(1). The name that holds that numerical position on the list and every one hundredth voter thereafter, is chosen until the list is exhausted. Ark. Code Ann. §§ 16-32-103(a)(1) and (2). Circuit clerks who maintain voter registration lists on computers may use a computerized process. Ark. Code Ann. § 16-32-103(e). Once the master list is compiled, the names and last-known addresses of the prospective jurors are placed into the jury wheel. Ark. Code Ann. § 16-32-104(a) (Repl. 1999). At least fifteen days prior to the first jury trial for which the master list was compiled, the circuit judge orders a sufficient number of jurors to be drawn from the jury wheel. Ark. Code Ann. § 16-32-105 (Repl. 1999).

As stated, prior to appellant's trial, counsel moved to quash the jury panel, arguing that the biographical information on each prospective juror was not provided to him, that a husband and wife were drawn to serve on the same panel, and that the statutes governing jury selection were not followed. At the hearing, Mary Jo Layton, the circuit clerk, testified that the jury list was drawn by computer. According to Layton, the judge drew a random number, and she asked the computer to draw 600 names, the required number based upon the number of registered voters in Madison County at the time. From those 600 names, the prospective jurors for the term in which appellant's case was tried were drawn. Layton admitted that she did not compile the master list in November or December but waited until the spring because the spring panel served from April 1 to September 30. Given the evidence presented, we find that counsel was not ineffective for failing to preserve this issue as appellant has failed to show prejudice.

In the case of Bates v. State, 322 Ark. 738, 912 S.W.2d 417 (1995), the appellant moved to quash the jury panel on the ground that the trial judge was not in the presence of the clerk when the judge selected the random numbers that were to be used by the clerk to comprise the master list of prospective jurors for the following calendar year. Id. at 739, 912 S.W.2d at 417. The trial court denied the motion to quash, and appellant was subsequently found guilty of manslaughter. Id. On appeal, we held that the trial court's ruling was in error, but because the error was harmless, we affirmed. Id. at 740, 912 S.W.2d at 417.

In that case, there was no evidence presented that the judge or clerk did anything other than randomly select the numbers and apply those numbers to the voter registration list nor that the jury panel, which found the defendant guilty, was composed of prospective jurors that were improperly placed on the master jury list. Id. at 740-41, 912 S.W.2d at 418. In the present case, like Bates, there is no evidence that appellant was prejudiced by the clerk's deviation from the statutes. Appellant has failed to show that had this issue been preserved, that the outcome would have been different on appeal. We therefore affirm the denial of relief.

Appellant goes on to assert the following due process claims: (1) that the trial court erred in refusing to allow appellant to recall a witness; (2) that the trial court erred in denying the introduction of a witness's psychiatric records; (3) that the trial court erred in refusing to issue an out-of-state subpoena; (4) juror misconduct; and (5) that the trial court erred by telling appellant to "shut his damn mouth." However, such claims are not cognizable in Rule 37 proceedings. "Rule 37 is a post conviction remedy, and as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal." Sanford, 342 Ark. at 28, 25 S.W.3d at 418.

Included in appellant's petition is the additional claim that counsel knew of the jury misconduct but failed to file a motion for a new trial. As noted above, counsel did file a motion to quash the jury panel arguing that the biographical information on each prospective juror was not provided to him, that a husband and wife were drawn to serve on the same panel, and that the statutes governing jury selection were not followed. Although in his petition, appellant presents this claim as one of ineffective assistance of counsel, on appeal, he abandons this argument and simply asserts the jury misconduct claim as a denial of due process. We have said that claims of juror misconduct are not cognizable in Rule 37 proceedings. Cigainero v. State, 321 Ark. 533, 535, 906 S.W.2d 282, 284 (1995). Id. Accordingly, we affirm the trial court's denial of relief.

Affirmed.