Donnalson Duan Brown v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-761

NOT DESIGNATED FOR PUBLICATION

DONNALSON DUAN BROWN

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered September 29, 2005

APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, CR 2001-537-2, HON. GARY M. ARNOLD, JUDGE

AFFIRMED

PER CURIAM

Donnalson Duan Brown was found guilty by a jury of possession of a firearm by certain persons, and sentenced as a habitual offender to 480 months' imprisonment in the Department of Correction. The court of appeals affirmed in an unpublished opinion. Brown v. State, CACR 03-392 (Ark. App. April 7, 2004). Brown filed a timely petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied without a hearing. Brown now brings this appeal of the denial of postconviction relief by the trial court.

Appellant asserts two points on appeal, that the trial court erred by not holding a hearing, and that it erred in denying the petition. In both points, appellant alleges the trial court erred by holding appellant's trial counsel was not ineffective for failing to call his mother, Joyce Brown, as a witness. In his first point, appellant also asserts trial counsel was ineffective for failing to call Antonio Moses Credit's wife in order to challenge Credit's testimony concerning the issue of whether appellant fired the shots at Anthony Wayne McCool.

Arkansas Rule of Criminal Procedure 37.3(a) requires, "If the petition and the files and records 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 parts of the files, or records that are relied upon to sustain the court's findings." The trial court has discretion pursuant to Ark. R. Cr. P. 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). We cannot say that the trial court abused its discretion in deciding no hearing was required in this instance.

In an appeal from a trial 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, ___ Ark. ___, 105 S.W.3d 352 (2003). 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). 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 in that the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. at 612, S.W.3d at 488. Appellant has failed to show that had counsel called either of the witnesses, his mother or Credit's wife, the testimony would have resulted in a different outcome at trial.

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 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 evidence presented at trial is that Anthony Wayne McCool came to appellant's home in Benton looking for his wife and, following an altercation that involved several people there, was shot by a black male approximately six feet tall with his hair in braids. Appellant's appearance at the time was consistent with that description, and one of the witnesses, Antonio Moses Credit, specifically identified appellant as the shooter. There was also evidence that appellant had told a witness he had a particular type of gun. One of the investigating officers testified that shell casings consistent with one version of that type of gun were recovered from the scene of the shooting.

The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice which denied the petitioner a fair trial. Hill v. State, 292 Ark. 144, 728 S.W.2d 510 (1987). In his petition, appellant asserted that his mother could have provided testimony that he was at her home on the day the crime was committed. In his brief, appellant more specifically indicates his mother would have testified he was at her home at the time of the crime. The trial court concluded in its order that counsel did not present the testimony because they did not wish to suborn perjury. Regardless of counsel's reasons, appellant has not shown that, if presented, the testimony would have changed the outcome of the trial.

With the exception of appellant's wife, all of the witnesses present when the shooting occurred placed appellant, or someone unknown to them fitting appellant's description, at the scene. Appellant's wife, having gone there immediately after the shooting, testified that appellant was not at his mother's home by the time she arrived. While appellant contends his mother's testimony would have greater credibility than that of the only witness to specifically place him at the shooting, her relationship to the defendant, when considered along with the evidence that he was not at his mother's home within a short time after the shooting, dilutes the strength of any testimony placing appellant away from his home in Benton during the shooting. The evidence appellant alleges on this point is simply not sufficient to undermine confidence in the outcome of the trial. Appellant has not shown trial counsel was ineffective for failing to call appellant's mother, and the petition and record do conclusively show that the petitioner was entitled to no relief on the issue.

The same is true for any testimony by Antonio Moses Credit's wife. Appellant asserts Credit could have actually fired the gun that shot McCool. However, the trial court found that any testimony Credit's wife may have provided concerning Credit having a gun or appearing nervous would have no merit since Credit firing the shots would have been inconsistent with the evidence at trial concerning the location of the source of those shots. In any case, the jury need only have found that appellant had possession of a gun, not that he actually fired the shots injuring McCool. Appellant has not shown how evidence of Credit shooting McCool would have changed the outcome on this charge. Even without Credit's testimony, the evidence was that appellant had indicated he had a gun, and that someone fitting appellant's description reached as though to pull a gun. Appellant's allegations in his petition, once again, do not support a finding of prejudice. The petition and the files and records of the case do conclusively show that the petitioner is entitled to no relief on these points. We affirm the trial court's decision to deny postconviction relief without a hearing.

Affirmed.