Erik James Bullock v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-823

NOT DESIGNATED FOR PUBLICATION

ERIK JAMES BULLOCK

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered October 6, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 1999-3726, HON. BARRY ALAN SIMS, JUDGE

AFFIRMED

PER CURIAM

Erik James Bullock, who is also sometimes known as Eric Bullock, was convicted at a jury trial of capital murder and first-degree battery and sentenced to life imprisonment without parole on the murder charge and 240 months on the battery charge, to be served concurrently. This court affirmed the judgment. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Bullock then filed a timely petition for relief pursuant to Ark. R. Crim. P. 37.1, which was denied without a hearing. He now brings this appeal from that decision.

This court previously ordered appellant to file a complying brief in response to a motion by the State requesting compliance with Ark. Sup. Ct. R. 4-2. Appellant has now filed his substituted brief, and the State asserts that the substituted brief still does not conform to Ark. Sup. Ct. R. 4-2. We must agree.

Appellant alleges two points of error, that the trial court erred in denying the petition and that the trial court erred by denying the petition without a hearing. In his first point, appellant contends trial counsel was ineffective for failing to move to suppress a statement by appellant, for failing to call certain witnesses, and for failing to have an order entered in response to his motion challenging the constitutionality of Ark. Code Ann. § 5-1-102 (Supp. 2003). Appellant also makes a general claim of ineffective preparation and investigation by trial counsel, without specifying any other particular error by trial counsel. In his second point, appellant argues the trial court should have granted a hearing because "it is normal procedure for the trial courts to grant them."

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). Under the criteria for assessing the effectiveness of counsel as set out in Strickland v. Washington, 466 U.S. 668 (1984), 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).

While the record of the original trial is already on file with this court, the appellant, as appellate counsel should well be aware, must abstract the material portions of the trial record. Taylor v. State, 340 Ark. 654, 12 S.W.3d 238 (2000)(per curiam). The appellant urges us to review the totality of the evidence and evaluate his claims under the Strickland standard, yet he fails to provide more than some disjointed excerpts from the trial testimony. None of the testimony has been converted to an impartial condensation as Ark. Sup. Ct. R. 4-2(a)(5) requires. In addition to numerous and extensive gaps that are neither summarized nor excepted, the testimony that is presented often appears out of context so as to be of little use. For example, excerpts from two witnesses' cross-examinations are presented without providing the direct examination of those witnesses. We have clearly not been provided with all material parts of the testimony as are necessary to an understanding of the questions presented to this court, those that require the evaluation of the evidence presented to the jury to determine any prejudice that may or may not have resulted through any deficiency. As a result, we do not have sufficient material available to address those questions concerning any ineffective assistance, the suppression of the statement, the calling of witnesses, or the adequacy of investigation and preparation by trial counsel. It also follows that, because we do not have a sufficient abstract and addendum for those purposes, we are without sufficient means to evaluate the question of whether a hearing was required by Ark. R. Crim. P. 37.3.

An appellant must provide an abstract and addendum sufficient to conduct a meaningful review. Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002)(per curiam). We base our decision to affirm here on appellant's failure to provide a sufficient abstract. While we do not reach the merits of appellant's argument, we do note that a number of appellant's citations to authority are erroneous, if not actually misleading.

In presenting his second point on appeal, appellant asserts that he should have been granted a hearing because it is normal procedure for the trial courts to grant them. He cites Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989)(per curiam), a case brought during the period of time when a petitioner was required to seek permission from this court in order to proceed in the circuit court. It is true under our current Ark. R. Crim. P. 37.3 that 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). Williams, however, does not stand for the proposition stated by appellant, or appear in any way to us to be relevant to the issue of whether a hearing should have been conducted.

As further example, appellant cites Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988), as authority for his statement that general claims of ineffectiveness are "difficult to show and without prejudice would not warrant relief." As a case in support of his assertion that appellant should fall within an exception to that general rule, he cites Farmer v. State, 321 Ark. 283, 902 S.W.2d 209 (1995)(per curiam). Malone contains no discussion of general, unspecific claims of ineffective assistance; it deals with a very specific claim of conflict due to multiple representation. When a petitioner asserts that his counsel was ineffective, he is responsible for providing factual support for the allegation. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001)(per curiam). A petitioner must provide specific, not general, allegations of error. Farmer does not discuss any exception to that general rule, or the one asserted in appellant's brief; it would appear to have little, if any relevance to the discussion.

Appellant responded to the State's brief and the contention his brief was inadequate by asserting that we should be able to reach the merits of the claim concerning the constitutionality of Ark. Code Ann. § 5-1-102 (13) (Supp. 2003) because there is nothing that must be abstracted from the trial testimony for our evaluation of that issue. Even were we to determine that we could reach the issue, despite a clearly deficient abstract for evaluating the totality of the evidence, we could not find a showing of the prejudice required.

The trial court based the decision to deny relief on this issue on a finding that counsel on direct appeal, also counsel on this appeal, had not provided this court with a transcript of the hearing on trial counsel's motion, and the outcome on direct appeal would not therefore have been any different. We would agree that even had the order been entered denying the motion, the result on direct appeal would not have been different. Even had appellant provided a brief adequate to address issues of ineffective assistance of counsel by trial counsel, he had made no showing of prejudice from trial counsel's errors to support reversal.

Affirmed.