Larry D. Bellew v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-663

NOT DESIGNATED FOR PUBLICATION

LARRY D. BELLEW

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 16, 2005

APPEAL FROM THE CIRCUIT COURT OF MILLER COUNTY, CR 1999-262-2, HON. JAMES SCOTT HUDSON, JR., JUDGE

AFFIRMED

PER CURIAM

Larry D. Bellew was convicted by a jury of one count of murder in the first degree and one count of murder in the second degree. He was sentenced to four hundred eighty months' imprisonment in the Arkansas Department of Correction on the first degree count and two hundred forty months' imprisonment on the second degree count, to be served consecutively, for a total of seven hundred twenty months' imprisonment. Bellew appealed and the judgment was affirmed by the court of appeals in an unpublished opinion. Bellew v. State, CACR 01-778 (Ark. App. June 5, 20002). Bellew then filed a timely pro se petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied without a hearing by order entered March 12, 2004. Bellew now brings this appeal of the denial of postconviction relief by the trial court.

The State correctly notes in its brief that while appellant has abstracted some portions of testimony from the trial, he has failed to provide an adequate abstract of the trial. Appellant must provided an abstract or addendum sufficient to conduct a meaningful review. Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002). Where an appeal from denial of postconviction relief is based upon a claim of ineffective assistance of counsel, typically a full abstract of the trial proceedings is essential to a meaningful review. In determining a claim of ineffective assistance of counsel, the totality of the evidence before the factfinder must be considered. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). Further, as the State notes, appellant raises challenges involving venue and jurors without abstracting the entire juror selection process. Nor has appellant included a copy of his petition in his addendum. However, this court has consistently held that 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. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam). Since it is clear from the record before us that appellant could not prevail, we do not provide an opportunity for him to supplement his abstract and addendum and affirm the denial of postconviction relief.

Appellant's brief, while not including a copy of his petition, does little more than restate the arguments raised in his petition as points on appeal. He asserts ineffective assistance of counsel in the first five points, for (1) failure to raise an argument concerning a challenge to a waiver of rights form; (2) failure to move to suppress evidence; (3) failure to request a change of venue; (4) failure to challenge or strike three of the jurors; and (5) failure to move for a directed verdict at the close of all evidence. Appellant's last point, or points, are a generalized claim that cumulative or apparent error denied him a fundamentally fair trial.

Briefly, the evidence presented at trial was that appellant made a 911 call where he admitted shooting his wife and son. His son, just before dying and while gasping for breath, told officers that his father had shot him and "shot or got" his mother, that she was dead. There was also physical evidence introduced from the crime scene. In its decision, the court of appeals noted that the evidence of appellant's guilt was overwhelming.

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. Greene v. State, 356 Ark. 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 United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 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.

Appellant's first point concerns admission of his confession and a waiver of rights form introduced as evidence at trial, which was not signed by appellant. As the State notes in its brief, no statement of appellant's was introduced based upon the form. Appellant points to statements made during his competency evaluation, but those statements were introduced prior to introduction of the form and without reliance upon it. Clearly, those statements made during the 911 call, particularly when coupled with the statements made by appellant's son, were adequate to support a conviction. Appellant has failed to allege any facts that would show either error by counsel or prejudice under the Strickland test.

Appellant's second point of error alleges counsel was ineffective for failing to seek suppression of the physical evidence. The State argues that appellant's claims are conclusory, that he fails to specify the evidence and how it would have affected the outcome. Even in his reply brief, appellant does not identify any individual evidence, but simply points to "all physical evidence" as at issue. Nor does he ever indicate how suppression of any of this evidence would have changed the outcome. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, ___ Ark. ___, 105 S.W.3d 352 (2003). As already noted, there was substantial evidence against appellant, even without physical evidence. In the absence of any showing how the physical evidence would have changed the outcome, appellant is not entitled to relief.

Appellant also provides only conclusory claims in his third point. He makes no showing as to how a change in venue would have affected the outcome. Further, whether or not to seek a change in venue is a matter of trial strategy. Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003). To establish failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must allege and prove that the jury was biased and not impartial, with more than mere conclusory allegations. Id. at 560-561, 127 S.W.3d. at 505-506. Here, as in Echols, appellant has not specified any conduct of a juror from which it can be ascertained that the juror was unprepared to afford him an impartial hearing of the evidence.

This same failure to show conduct indicating bias by a juror is also fatal to appellant's arguments on his fourth point of error. Appellant asserts trial counsel was ineffective because he failed to challenge three jurors for cause or use peremptory challenges to strike them. Jurors are presumed unbiased, and the burden of demonstrating actual bias is on the petitioner. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). Appellant must demonstrate that he was prejudiced by the juror being seated. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001).

Appellant next asserts trial counsel was ineffective for failing to renew his motion for a directed verdict at the close of all evidence. Appellant has failed to show he was prejudiced by the error under the second prong of the Strickland test, since there was clearly sufficient evidence to convict him. His son's dying declaration alone was sufficient evidence to support the conviction. See, Wesley v. State, 318 Ark. 83, 883 S.W.2d 478 (1994). Moreover, the court of appeals indicated on direct appeal that the evidence was not simply sufficient, it was overwhelming.

Appellant's remaining points are also without merit. Again, he makes only conclusory allegations concerning the lack of a fundamentally fair trial, without pointing to specific error or prejudice. Further, as to his assertion that ineffective assistance was shown through cumulative error, this court has consistently refused to recognize the doctrine of cumulative error in allegations of ineffective assistance of counsel. Echols, 354 Ark. at 553, 127 S.W.3d at 500.

Affirmed.