Cedric Lamar Terry v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-97

NOT DESIGNATED FOR PUBLICATION

CEDRIC LAMAR TERRY

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered May 19, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 99-4756, HON. TIMOTHY D. FOX, JUDGE

AFFIRMED

PER CURIAM

A jury found Cedric Lamar Terry guilty of second degree murder and committing a terroristic act. He was sentenced to twenty years' imprisonment on the murder charge and fifteen years' imprisonment on the terror charge, with the sentences to be served consecutively, for a total of thirty-five years' imprisonment. Terry filed a motion for a new trial based upon allegations of a witness's change in testimony and information allegedly withheld by the prosecution, which was denied after a hearing. Terry's conviction was affirmed by the Court of Appeals in an unpublished opinion. Terry v. State, CACR 01-300 (Jan. 9, 2002) ("Terry I"). Terry then filed a petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied without a hearing in a written order entered October 14, 2003. The order found the Court of Appeals had addressed the issues raised in the first claim of the petition and that the claim failed to show prejudice. Terry now appeals the denial of postconviction relief, and raises one point for reversal, that the trial court erred in denying relief on the petition.

The evidence presented at trial was that Paul Glass, Caprice Wright, Kenneth Hubbard and the appellant went to a club together on November 12, 1999, with Hubbard driving Glass's car. On leaving the club, Kenneth Hubbard stopped the car within a few blocks to pick up Tony Hubbard. A disagreement ensued, with Tony Hubbard getting into the vehicle, and appellant left on the sideof the road. When the car Hubbard was driving reached Paul Glass's grandmother's house, where the appellant's car was parked, appellant had already arrived. Appellant approached the Glass car and then shot Kenneth Hubbard, who drove the car away and eventually wrecked it within a short distance. Tony Hubbard was still in the car, and was injured during the wreck. Appellant testified that he had shot Hubbard, but claimed self-defense. He admitted he did not know whether Hubbard or any of the others had a gun, but said that he was uncertain what would happen.

Appellant's petition for postconviction relief alleged his trial counsel was ineffective for failure to call two witnesses, Merlin Jerome Parker and Caprice Wright. After the jury had retired for deliberation on appellant's guilt, appellant moved for a mistrial, and later sought a new trial, based in part on information that Wright believed there may have been a weapon in the Glass vehicle. Both Wright and Parker had been subpoenaed, but not called by the State as witnesses at the trial. The deputy prosecuting attorney had released them both the morning of the trial, without notifying defense counsel. Parker had contacted defense counsel and provided the information about Wright's potential testimony. There was also an allegation, which Wright later denied, that she had sought payment from the victim's family to testify.

In Terry I, the Court of Appeals considered appellant's argument that the trial court erred in denying appellant's motion for a new trial because the State had concealed information about Wright's alleged contact with the victim's family and her alleged knowledge of a weapon in Hubbard's vehicle. That court found Wright's testimony would not have been particularly relevant to appellant's defense, and did not support a finding that the alleged discovery violation undermined confidence in the outcome of the trial.

Appellant contends the trial court erred in finding the Court of Appeals had determined the issues because that court had considered a violation of the right to due process as guaranteed by Brady v. Maryland, 373 U.S. 83 (1963), rather than an allegation of ineffective assistance of counsel. Appellant further argues that the standard of proof in considering the allegation of ineffective assistance of counsel differs from that applied by the Court of Appeals. While the Court of Appeals did not consider the same allegation, as set out below, we believe their findings were relevant to the issue before the trial court.

The trial court denied the petition for postconviction relief without a hearing. An evidentiary hearing should be held in a postconviction proceeding unless the files and the records of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). The trial court does have discretion pursuant to Ark. R. Crim. P. 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Id. at 25, 98 S.W.3d at 41. Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Ark. R. Crim. P. 37.3(a) requires the trial court make written findings specifying the parts of the record that form the basis of the trial court's decision. Id. at 26, 98 S.W.3d at 41. We cannot say that the trial court abused its discretion in deciding no hearing was required in this instance, and find its findings and references to the record are adequate for our consideration of this appeal.

The totality of the evidence before the factfinder must be considered in determining a claim of ineffective assistance of counsel. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Id. at 64, 146 S.W.3d at 876. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). When a convicted defendant complains of ineffective assistance of counsel, he must show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced his defense. Judicial review of counsel's performance must be highly deferential, and a fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001)(per curiam).

To prevail on a claim of ineffective assistance of counsel, the claimant must first show that counsel's performance was deficient, with errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and claimant must also show that this deficient performance prejudiced his defense through a showing that petitioner was deprived of a fair trial. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 38, 26 S.W.3d at 125. To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Green at Ark. 64, 146 S.W.3d at 875-876. The claimant must show that counsel's representation fell below an objective standard of reasonableness and, but for counsel's errors, the result of the trial would have been different. Id. The trial court found appellant had failed to establish a reasonable probability that the alleged error affected the outcome of the trial under the second prong of the Strickland test. Whether there may be some differentiation between the standards for considering a motion for new trial and an allegation of ineffective assistance of counsel or not, and regardless of the ultimate issue addressed, the Court of Appeals did determine that Wright's testimony concerning the arguments between the Hubbards and appellant, and her belief that there may have been a gun in Glass's car, were not relevant to appellant's argument for self-defense. Since Parker's testimony was essentially what Wright had told him, we cannot say either witness would have affected the outcome of the trial. There was already testimony that the Hubbards had argued with appellant. Wright did not testify that she saw a gun. The issue for a claim of self-defense goes to the defendant's state of mind, and appellant had testified he did not know that Hubbard or anyone else in the car had a gun. Whether Wright believed there may have been a gun, as the Court of Appeals determined, was not relevant to that issue. In view of the totality of the evidence before the factfinder, the trial court was not clearly erroneous in its determination that appellant failed to show prejudice under the second prong of the Strickland test. It is not therefore necessary to consider appellant's allegations concerning whether appellant made his case as to the first pong of the test, since no prejudice would have resulted.

Affirmed.

Imber, J., not participating.