Ronald Dee O'Neal v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-953

NOT DESIGNATED FOR PUBLICATION

RONALD DEE O'NEAL

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered September 29, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 2001-2658, HON. BARRY ALAN SIMS, JUDGE

AFFIRMED

PER CURIAM

Ronald Dee O'Neal was found guilty by a jury of capital murder and sentenced to life imprisonment without parole. O'Neal appealed, and this court affirmed. O'Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004). O'Neal filed a timely pro se petition for postconviction relief under Ark. R. Crim. P. 37.1, and later filed motions to supplement his petition. The motions to supplement and the petition were denied without a hearing by separate orders entered August 17, 2004. O'Neal brings this appeal from the denial of the petition.

Appellant O'Neal has not provided a brief that conforms with Ark. Sup. Ct. R. 4-2. While the State has provided a supplemental addendum with a copy of the petition, some reports, and brief excerpts of testimony, appellant has provided no abstract of any of the testimony from his trial. Appellant has asserted ineffective assistance of counsel. 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). Accordingly, an appeal from denial of postconvictionrelief based upon a claim of ineffective assistance of counsel requires a complete abstract of the trial proceedings for a meaningful review. However, in the case at hand, we do not provide appellant an opportunity to submit a complying brief, since it is clear that appellant could not prevail.

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, that he failed to include in his petition any claim that would support postconviction relief, we affirm the denial of postconviction relief.

Although appellant now claims he is actually innocent, at trial, the evidence presented included appellant's admission that he killed the victim, Stacy Ellis. Appellant had described to the police how he would "theoretically" dispose of a body, describing, with details that were not public, how the victim's body had been weighted and placed in the Arkansas River. When confronted with this coincidence in facts, appellant admitted he had caused the victim's death. Appellant indicated in his statement that the death was an accident or mistake, resulting from his application of a "sleeper hold," where he applied pressure to the artery in Ellis's throat to keep her quiet. He also claimed that he then placed duct tape over her mouth and inadvertently covered her nostrils, as well. Appellant went on to say that he panicked when he realized the victim was dead, and disposed of her body in the river, using a concrete weight, a trash can, and cable. Evidence was presented of a sexual motive for his detention of, and assault on, the victim. The facts are set out in more detail in our opinion on appeal.

In his petition, appellant raised only issues of ineffective assistance of counsel, based upon (1) counsel's failure to request assistance for appellant's hearing difficulties; (2) counsel's failure to request voir dire and opening and closing statements be included in the transcript on appeal; (3) counsel's failure to retain an independent forensic examination of the victim and present other witnesses; (4) counsel's failure to challenge the jury as a result of an inadequate database; (5) counsel's failure to move for dismissal on a speedy-trial violation; (6) counsel's failure to present evidence of physical disabilities preventing appellant from lifting as might have been required to dispose of the body; (7) counsel's failure to adequately impeach a witness concerning the victim's quiet nature; and (8) counsel's failure to present evidence concerning carpet fibers that were found on the victim's body and in appellant's van.

In his brief, appellant frames his argument as two points, the second consisting of subpoints that mirror the arguments in his petition. His first point on appeal appears to make a claim that his assertions concerning his hearing difficulties and the jury database are cognizable whether or not counsel was ineffective. The issues in appellant's first point were not presented below. This court has repeatedly stated that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, ___ Ark. ___, ___ S.W.3d ___ (June 23, 2005); see also, Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). Accordingly, we address only those points that were raised. Appellant has also attached materials as exhibits to his brief that are not in the record. This court does not consider matters outside of the record. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). We also note that the trial court did not grant appellant's motions to supplement his petition. A petition may only be amended by leave of the court under Ark. R. Crim. P. 37.2(e). We consider only the materials and arguments presented in appellant's petition and the record here.

The trial court entered the order denying relief without a hearing. 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). The trial court does have discretion pursuant to Ark. R. Crim. P. 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Id. at 25, 98 S.W.3d at 41. Ark. R. Crim. P. 37.3(a) requires the trial court make written findings specifying the parts of the record that form the basis of the trial court's decision. Id. at 26, 98 S.W.3d at 41. We cannot say that the trial court abused its discretion in deciding no hearing was required in this instance, and its findings and references to the record are adequate for our consideration of this appeal.

The criteria for assessing the effectiveness of counsel are set out in Strickland v. Washington, 466 U.S. 668 (1984). The claimant must show first 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. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Greene, 356 Ark. at 64, 146 S.W.3d at 875-876.

On appellant's first point, he alleges, but presented no evidence of, an impairment to his hearing. Appellant points to references in a report from the state hospital that he asked the doctor to speak up since he had a hearing impairment. Yet appellant does not point to any evidence that his impairment was such that he could not assist in his own defense, as he claims. In fact, the report, while focused on appellant's mental condition, specifically found appellant was capable of effectively assisting his attorney. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, 352 Ark.359, 105 S.W.3d 352 (2003). Appellant therefore failed to show counsel was deficient on this point.

Appellant's second point concerned trial counsel's failure to include voir dire and opening and closing statements in the transcript on appeal. As the trial court noted, appellant did not point to any specific errors that may have occurred and which were not preserved for appeal. Appellant has not pleaded facts that show how counsel's conduct was deficient so as to meet the first prong of the Strickland test. 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). Allegations without substantiation are insufficient to overcome the presumption that counsel is effective. Id. at 413, 39 S.W.3d at 795.

Appellant's third point concerns counsel's failure to obtain an expert witness to testify concerning the condition of the victim's body and to present other witnesses. Where, as here, an appellant alleges ineffective assistance for failure to provide expert testimony, this court has held that it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Greene, 356 Ark. at. 74, 146 S.W.3d at 882. Appellant failed to allege any evidence on these issues. He makes some conclusory statements that the expert would refute testimony presented at trial, but does not indicate how the expert would do so. In addition, this court does not grant postconviction relief for ineffective assistance of counsel where the petitioner fails to show what the omitted testimony or other evidence was and how it would have changed the outcome. Camargo v. State, 346 Ark.118, 55 S.W.3d 255 (2001). In the one instance where appellant did name a witness, he did not establish that the testimony would be admissible, or provide an affidavit as to what that testimony would be.

Appellant's fourth point in his petition asserted he was denied a fair and impartial jury and alleges that the voter database used to select the jurors was inaccurate. 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). Here, appellant simply fails to develop the argument. He never alleges a particular bias on the part of the jurors selected, or indicates what specific errors occurred or how the alleged inaccuracies caused counsel to be ineffective. He never indicates in what way the database should be considered inaccurate, or how those inaccuracies affected his jury selection. He seems to argue that the jurors having served on other juries prejudiced them, yet he never explains how this would be so.

Appellant's fifth point asserts counsel was ineffective for failing to move for dismissal because appellant was denied a speedy trial. Yet, as the State points out in its brief, the reason for the delay, as appellant admits, was his need for a satisfactory psychiatric exam in support of his plea of "not guilty by reason of mental disease or defect." The delay appellant complains of was in accord with Ark. R. Crim. P. 28.3 and at appellant's own request.

Appellant's last three points in his petition dealt with his contention counsel was ineffective for failing to present evidence of appellant's physical condition, concerning the victim's nature, and about the presence in appellant's van of fibers also found on the body. Appellant does not show how any of this evidence might have resulted in a different outcome at trial. As set out above, the evidence was quite strong that appellant had committed the murder. He had knowledge of details about the way the body had been hidden that were not public. He admitted causing the victim's death, and there was evidence of a sexual motive. Appellant did not allege facts that would overcome his burden of showing the evidence he contends counsel failed to present would be sufficient to undermine confidence in the outcome of the trial.

We cannot say that the trial court abused its discretion in denying the petition without a hearing. It is clear from the petition that appellant was not entitled to relief under Ark. R. Crim. P. 37.1. We therefore affirm the order denying postconviction relief.

Affirmed.

Brown, J., not participating.