Corinthian McCoy v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-505

NOT DESIGNATED FOR PUBLICATION

CORINTHIAN McCOY

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered November 10, 2005

APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, CR 1994-400-1, HONORABLE GRISHAM A. PHILLIPS, JR. CIRCUIT JUDGE

AFFIRMED

PER CURIAM

Corinthian McCoy was convicted by a jury of first-degree murder and attempted second-degree murder and sentenced to life imprisonment. We affirmed. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). Subsequently, McCoy filed a timely petition for postconviction relief in the trial court pursuant to Ark. R. Crim. P. 37.1 on August 22, 1996. The trial court denied the petition by written order on April 6, 2004.1 From that order comes this appeal.

Appellant raises two arguments on appeal. Appellant first argues that the trial court erred in denying his Rule 37.1 petition that trial counsel was ineffective for failing to object to certain jury instructions. Appellant contends that the jury instructions charged the jury with finding the appellant guilty of transferred intent. We disagree.

The appellant was charged with the crime of capital murder. Capital murder is defined in pertinent part as being committed "[w]ith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person." Ark. Code Ann. § 5-10-101(a)(2)(Repl. 1995). A lesser-included offense of capital murder is first-degree murder. First-degree murder is defined in pertinent part as being committed "[w]ith the purpose of causing the death of another person, he causes the death of another person." Thus, the transferred intent was not charged and need not have been found by the jury in order to convict. The jury instructions in question reflected the standard that the jury needed to find in order to convict on either capital murder or first-degree murder.

Had trial counsel objected to the jury instructions given, the objection would have been overruled and the instructions would have been allowed to go to the jury. Thus, trial counsel was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To be successful in showing ineffective assistance of counsel, the petitioner must show that trial counsel's performance "fell below an objective standard of reasonableness," and that the errors committed by trial counsel "actually had an adverse effect on the defense." Strickland, supra at 688; Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). The court reviewing a claim of ineffective assistance of counsel must indulge in 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). In order to rebut the presumption that counsel's conduct falls within the wide range of reasonable professional assistance, 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. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. When determining if a claim for ineffective assistance of counsel is warranted, the totality of the evidence before the factfinder must be considered. Id.; Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). Applying this standard, we hold that the trial court did not err in denying the appellant's Rule 37.1 petition.

Second, appellant argues that the nearly eight-year delay by the trial court in ruling on his Rule 37.1 petition in itself entitles him to postconviction relief. Appellant provides no authority for the argument. This court has consistently held that it will not consider an argument when the appellant presents no citation to authority or convincing argument in support of it. See Rikard v. State, 354 Ark. 345, 358-59, 123 S.W.3d 114, 122 (2003). The delay in acting on the petition did not somehow give merit to the claims contained in the petition, and we find no basis on which this court should grant the relief on appeal denied by the trial court in its order.

Affirmed.

1 McCoy filed a petition for writ of mandamus in this court in 2004 seeking a writ to compel the trial court to rule on the Rule 37.1 petition. In a response to the petition, the respondent circuit judge averred that he had not been made aware that the petition was pending. McCoy v. Phillips, 357 Ark. 368, ___ S.W.3rd ___(2004).