Dashujuahn Danzie v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-381

NOT DESIGNATED FOR PUBLICATION

DASHUJUAHN DANZIE

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered December 8, 2005

APPEAL FROM THE CIRCUIT COURT OF UNION COUNTY, CR 1994-567, HON. CAROL CRAFTON ANTHONY, JUDGE

AFFIRMED

PER CURIAM

Dashujuahn Danzie was found guilty by a jury of capital murder and sentenced to life imprisonment. This court affirmed the judgment. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). Danzie filed a timely pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Danzie was brought before the court, and apparently requested an opportunity to retain counsel. After a more than three year delay, Danzie filed a pro se petition for leave to amend, and the matter was again set for hearing.

The State filed a motion to dismiss the petition for leave to amend. On the new hearing date, an attorney who had been recently retained as counsel for Danzie was present and requested a continuance in order to prepare the case. Numerous continuances followed. At one point, the court ordered appellant file a response to the State's motion to dismiss, although none is shown in the record by the date ordered. The State filed a second motion to dismiss, this time including the petition as well as the amendment. Counsel for Danzie then filed a response to the original motion to dismiss, a response to the new motion to dismiss, and also a motion for leave to amend and file an overlength petition. The court entered an order that denied the motions to dismiss without prejudice, and granted leave to amend, but restricted the page length to that permitted by the rules.

A final date for hearing was set for March 28, 2003. Counsel for Danzie filed an amendment to the petition on March 18, 2003. Then, on March 26, 2003, counsel filed a motion to shorten subpoena time and file a second amended petition, followed by an actual second amendment to the petition filed the following day that alleged the discovery of new evidence. The State responded with another motion to dismiss on the day of the hearing. Following the hearing, in accord with the court's direction, the parties submitted briefs, and on September 9, 2003, the court entered an order denying postconviction relief. In the order, the court determined that it was an abuse of discretion to have granted leave to amend, struck the amendments, and based the decision solely on the original petition. Danzie now brings this appeal of that order.

The evidence presented at trial was described previously in our opinion on appellant's direct appeal. For the purpose of this discussion, a brief summary of those facts should suffice. The victim, L. M. Houser, was found face down in a ditch full of mud and water. His pants pockets were turned inside out and empty. His truck, in gear and still running, was in the ditch near the body. Appellant admitted to being at the scene and looking inside the truck, but denied seeing the victim. There was testimony that Mr. Houser had received money shortly before his body was found, and appellant had a somewhat smaller sum of money on him at the time of his arrest.

Appellant Danzie's first point on appeal is that the court erred in limiting its review to the original petition. The State takes issue with appellant's assertion that he had a right to amend the petition. While Ark. R. Crim. P. 37.2(e) provides that a petition may only be amended with leaveof the court, we do not reach the question of whether the court may withdraw that leave, because there was clearly no prejudicial error here that would warrant reversal on that point.

Appellant was never provided with leave to file the last amendment to the petition, and leave to amend as requested in that motion would have been error. The last amendment alleged the discovery of new evidence. This court has held that newly discovered evidence is a direct effort to have the judgment vacated, and not a proper basis for relief under our postconviction rule. Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981). Appellant's prior amended petition, as appellant concedes in his brief, addressed only one additional point not raised in his original petition. Since that additional point is wholly without merit, appellant would not be prejudiced by the trial court's consideration of only those issues raised in the original petition.

Appellant's additional issue in his amended petition alleged ineffective assistance of counsel because trial counsel pursued inconsistent defenses. But the alternate theories of defense as alleged by appellant were simply not inconsistent. Appellant asserts trial counsel argued the death of the victim was not a murder, and also argued that if the jury found that there was a murder, there was another individual at the scene of the murder who committed the murder. Neither theory in any way contradicted the defendant's assertion of complete denial of the crime. Rather than following lines of defense that would require the defendant to contradict himself, each of trial counsel's theories was completely consistent with his contention he was not present at the victim's death. Inconsistent theories would require an inherent contradiction in the alternate versions of events presented. For example, inconsistent theories would result from asserting a defense of complete denial, that the death was an accident and appellant was not present, or, alternatively, asserting self defense, whereby appellant must admit he was present and caused the death. See, Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999); Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995); Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). We find that the arguments are consistent and were entirely permissible. It was not reversible error to address only the issues in the original petition.

Appellant's second point on appeal is that the court erred in denying postconviction relief, asserting the court should have found trial counsel was ineffective. In addition to the allegation that trial counsel argued inconsistent theories at trial, appellant alleges on appeal four other errors by trial counsel, out of the eight asserted in the petition. In an appeal from a court's denial of a petition pursuant to Ark. R. Crim. P. 37.1, the question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel's performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).

Under the criteria for assessing the effectiveness of counsel as set out in Strickland, when a convicted defendant complains of ineffective assistance of counsel, he must show first that counsel's performance was deficient through a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Additionally, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). 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. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). 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, 344 Ark. at 611, 42 S.W.3d at 487.

Appellant first alleges error by trial counsel in that she failed to obtain a ruling on her renewed motion for directed verdict at the close of evidence. As this court held in our opinion on the direct appeal of appellant's conviction, the question of sufficiency of the evidence was not preserved for direct review because the trial court did not announce a ruling. However, we agree with the three justices who concurred in that opinion, and who reached the question, that there was sufficient evidence to prove appellant guilty. On this point of error, appellant has failed to show prejudice under the second prong of the Strickland test.

Appellant's next point on appeal alleges error by trial counsel for failure to request a jury instruction on the elements of the underlying felony of robbery. Jury instructions must be considered in context, including the entire jury charge and the entire trial. Reynolds v. State, 341 Ark. 387, 18 S.W.3d 331 (2000). Appellant argues error as to the jury instructions, but has not abstracted all of the jury instruction, only that part that provides the charge concerning capital murder.

We twice previously ordered rebriefing and instructed appellant to comply with Ark. Sup. Ct. R. 4-2. Danzie v. State, CR 04-381 (Ark. June 2, 2005) (per curiam); Danzie v. State, CR 04-381 (Ark. September 29, 2005) (per curiam). In our last order, we cited our standard requiring review of the entire jury charge and appellant was specifically instructed to provide an abstract of proposed jury instructions, transcripts of any discussions with the court on jury instructions, the transcript of the instruction of the jury, and any other transcripts appellant believed would help this court understand the jury instructions. Yet, appellant has once again failed to provide a complete abstract of the instruction to the jury. Because our standard requires that we review the entire instruction to the jury, not just that portion that appellant considers pertinent, we cannot conduct a meaningful review without the entire instruction to the jury. This court must be provided with an abstract or addendum sufficient to conduct a meaningful review. Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002). Appellant has for the third time failed to file a complying brief. Accordingly, we do not reach the issue raised and must affirm on this point, affirming for noncompliance in accordance with Ark. Sup. Ct. R. 4-2(b)(3).

Appellant's next point of error is that the jury was instructed with a different underlying felony from that charged. Appellant contends he was charged with capital felony murder and that the underlying felony was listed as aggravated robbery in the information and amended information charging him. The jury was instructed on a charge of capital felony murder with the underlying charge of robbery. We note, however, that the information and amended information now included in appellant's addendum show the underlying felony to be robbery, rather than aggravated robbery as appellant asserts. There is, therefore, no inconsistency between the charge on which the jury was instructed and that listed in the informations.

Appellant's last point on appeal asserts ineffective assistance because trial counsel failed to request an instruction on first degree murder as a lesser included offense. The court found the decision not to request lesser included offense instructions was a matter of trial strategy and not grounds for postconviction relief. We agree. At the postconviction hearing, trial counsel testified that the decision not to request instructions was made after consultation with appellant, and was consistent with his defense of complete denial. This court has held that as a matter of trial strategy, competent counsel may elect not to request an instruction on lesser included offenses. Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984) (per curiam). We cannot say that the trial court's findings were clearly erroneous on this point.

Affirmed.