Calvin Morris v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-410

NOT DESIGNATED FOR PUBLICATION

CALVIN MORRIS

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered February 9, 2006

PRO SE APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 2000-295, HON. BARRY A. SIMS, JUDGE

AFFIRMED

PER CURIAM

A jury found Calvin Morris guilty of first-degree murder, committing a terroristic act, possession of firearms by a felon and theft by receiving. He was sentenced as a habitual offender to an aggregate term of 480 months' imprisonment. Morris appealed the conviction of first-degree murder and the court of appeals reversed and remanded the matter to the trial court. Morris v. State, CACR 01-1056 (Ark. App. June 5, 2002). Upon review, this court affirmed in part and reversed and remanded in part. Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003). On remand, a jury again convicted Morris of first-degree murder. He received a sentence of 720 months' imprisonment. We affirmed. Morris v. State, __ Ark. __, __ S.W.3d __ (September 23, 2004). Subsequently, Morris filed in the trial court a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. The trial court denied the petition, and Morris, proceeding pro se, has lodged an appeal in this court.

The first-degree murder charge stems from a shooting in 1996. Morris and three friends were leaving a nightclub when they encountered the victim and three other people in the victim's car. After both groups exchanged words when the victim's car nearly hit Morris, the victim drove out of the parking lot. Morris and his friends then left in a friend's car. Shortly thereafter, both vehicles stopped along side each other at an intersection. Another argument ensued and Morris shot and killed the victim, claiming that he thought an occupant of the victim's car was going to shoot him. Morris testified that he panicked and pointed his gun toward the victim's car without aiming, and that shooting the victim was the result of an accident, not an intentional act.

At trial, the prosecutor asked Morris about a tattoo on his shoulder. The tattoo read "death before dishonor." The prosecutor asked Morris whether dishonoring a person equated to disrespecting a person. Morris stated his belief that the victim and his friends disrespected Morris, but disagreed that the words "dishonor" and "disrespect" had the same meaning.

Appellant contended in his Rule 37.1 petition that he had been afforded ineffective assistance of counsel. He also claimed prosecutorial misconduct, actual or constructive "denial of counsel" and that his right against self-incrimination had been violated as he had been forced to show his tattoo at trial.

The trial court entered an order denying appellant's petition for Rule 37.1 relief. The trial court found that appellant's claims of ineffective assistance of counsel, prosecutorial misconduct and denial of counsel amounted to mere conclusory allegations, which cannot provide the basis for a claim of post-conviction relief. Also, the trial court held that appellant should have raised his constitutional issue of violation of his right to self-incrimination related to his tattoo on direct appeal. Further, the trial court concluded that appellant waived his right against self-incrimination when he took the stand in his own defense.

In the instant matter, appellant raises the following issues before this court: (1) appellant should not have been required to be represented by a public defender and the public defender provided ineffective assistance of counsel; (2) the tattoo was inadmissable hearsay; (3) the trial court erred by not conducting a hearing on appellant's Rule 37.1 petition; and (4) the trial court erroneously denied appellant's Rule 37.1 petition.1

We first note that the appellee asserts that appellant's brief does not contain an abstract of the pertinent testimony or pleadings. Although appellant appears to incorporate by reference his brief from his direct appeal, appellant's brief in this matter does not contain an abstract of any sort. We will, however, not require appellant to file a substituted abstract, brief and addendum to cure the deficiencies in conformance with Ark. Sup. Ct. R. 4-2(b), as it is clear on the record before us that appellant could not prevail. See 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).

Appellant initially claims that the public defender should not have been "foisted" upon him for representation at the trial, citing Faretta v. California, 422 U.S. 806 (1975).2 Appellant initially raised this claim in his Rule 37.1 petition which he described as "denial of counsel." Appellant maintains that he objected to being represented by a public defender prior to the trial and the trial court erred in not allowing him the opportunity to obtain counsel of his choosing.

The right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995) (citing Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980)). In Morris v. Slappy, 461 U.S. 1 (1982), the United States Supreme Court made it clear that the Sixth Amendment does not guarantee that an appointed attorney establish an exemplary rapport with the accused, nor does it guarantee an accused a "meaningful attorney-client relationship." Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989). Once competent counsel has been obtained, the delay involved in changing counsel must be balanced against the public's interest in the prompt dispensation of justice. Harrison v. State, 303 Ark. 247, 796 S.W.2d 329 (1990).

If change of counsel would require the postponement of trial because of inadequate time for a new attorney to properly prepare a defendant's case, the court may consider such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant has acted diligently in seeking the change, and whether the denial is likely to result in any prejudice to defendant. Edwards, supra. A change of attorneys close to trial would require the granting of a motion for a continuance. Leggins, supra. The refusal to grant a continuance in order for the defendant to change attorneys rests within the discretion of the trial judge, and the decision will not be overturned absent a showing of abuse of that discretion. Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). The burden of establishing such abuse rests squarely on the shoulders of the appellant. Leggins, supra.

Here, appellant filed a pro se motion for continuance on July 31, 2003, requesting additional time for appellant's family to raise the funds necessary to hire a private attorney.3 The trial began on August 12, 2003, and a private attorney had not been hired by that time. Appellant did not inform his public defender that he filed the motion for continuance, and the trial court addressed the matter the morning of the trial. Appellant claimed that he required a private attorney because he felt the public defender appointed to represent him was not properly prepared to defend appellant. The trial court denied the motion for continuance.

Appellant failed to demonstrate that the trial court abused its discretion by denying the motion for continuance to allow appellant to obtain a private attorney. Appellant relies strictly on the holding of Faretta, which has no application to the present matter. We find no abuse of discretion by the trial court under these facts.

Appellant next maintains that the trial court erred in requiring him to proceed to trial with an attorney whom he claimed rendered ineffective assistance. Strickland v. Washington, 466 U.S. 668 (1984), sets out appellant's burden when claiming ineffective assistance of counsel. Appellant must demonstrate two components: first, appellant must show that trial counsel's performance was deficient; and second, appellant must show that the deficient performance prejudiced the defense. Strickland, supra; Andrews v. State, 344 Ark. 606, 612, 42 S.W.3d 484, 488 (2001) (per curiam). The first component requires a showing that trial counsel's errors were so serious that counsel was not functioning as the "counsel" guaranteed the appellant by the Sixth Amendment. Trial counsel's performance must fall below an objective standard of reasonableness. The second component requires a showing that trial counsel's errors were so serious as to deprive the defendant of a fair trial. The errors must have actually had an adverse effect on the defense. Strickland, supra; Andrews, supra.

Unless appellant makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

There is 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). To rebut this presumption, the petitioner must show that there is a reasonable probability that the decision reached would have been different absent the errors. Greene v. State, 356 Ark. 59, 64, 146 S.W.3d 871, 876 (2004). 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. Because of this standard, the burden is on the petitioner to provide facts to support his claims of prejudice. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam). Allegations without factual substantiation are insufficient to overcome the presumption that counsel is effective. Id. at 413, 39 S.W.3d at 795. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).

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, supra. 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).

Here, appellant failed to show that his trial attorney provided ineffective assistance of counsel in accordance with Strickland, supra. Appellant's mere conclusory statements without factual substantiation did not demonstrate he suffered prejudice by representation of trial counsel. Nelson, supra, Jackson, supra. The trial court's findings were not clearly erroneous on this point.

Appellant also argues that his tattoo amounted to inadmissable hearsay.4 Appellant did not make this argument in his original Rule 37.1 petition. It is well-settled that the we will not consider an argument raised for the first time on appeal. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).

Had appellant wished to raise this specific issue, he should have done so on appeal where we extensively discussed appellant's tattoo. Morris v. State, __ Ark. __, __ S.W.3d __ (September 23, 2004). This court has consistently held that Rule 37 does not provide a remedy when an issue could have been raised in the trial or argued on appeal. See Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001); Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001). The only exception is where the questions raised are so fundamental as to render the judgment void and open to collateral attack. Davis, supra. A ground sufficient to render a judgment void is a ground so fundamental that the judgment is a complete nullity, such as a judgment obtained in a court without jurisdiction. Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990). That exception does not apply here.

Appellant claims that the trial court erred by not conducting a hearing on appellant's Rule 37.1 petition. It is well-settled that the trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). In accordance with this rule, this court has held that a court is not required to conduct an evidentiary hearing if it can conclusively determine from the record that the petitioner's contentions are meritless. Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988). After a thorough review of the instant case, we conclude that the record clearly reflects that appellant's allegations in his Rule 37.1 petition were without merit, and thus he was not entitled to an evidentiary hearing.

Finally, appellant alleges that the trial court erroneously denied appellant's Rule 37.1 petition. The trial court found that appellant's claims for ineffective assistance of counsel and "denial of counsel" failed to state facts and made only conclusory allegations. The trial court also held that appellant's argument that showing his tattoo amounted to self-incrimination should have been addressed on direct appeal. Our review of the record supports those findings. Greene, supra. Accordingly, we hold that the trial court's findings were not clearly erroneous.

Affirmed.

1 Issues raised below but not argued on appeal are considered abandoned. Jordan v. State, 356 Ark. 248, 256, 147 S.W.3d 691, 696 (2004). It appears that appellant abandoned his claim of prosecutorial misconduct.

2 The facts of Faretta are not analogous to the present case. In Faretta, the defendant therein was in the process of preparing to represent himself at trial after approval by the trial court. However, prior to trial, the judge reversed his approval and appointed a public defender to handle the trial. The United States Supreme Court held that a defendant has the constitutional right to represent himself at trial so long as he voluntarily and intelligently waives his right to counsel. Further, when a defendant insists upon conducting his own defense, the state cannot ignore that request and force the defendant to allow an attorney to conduct his defense.

Here, appellant did not seek to represent himself at his trial. Thus, Faretta has no application in the instant matter.

3 Appellant stated he also orally requested a continuance in May 2003 on the same grounds.

4 Appellant argues that the words "death before dishonor" reflect the opinion of the person who applied the tattoo on appellant, not appellant himself. However, appellant also noted in his brief before this court that he simply liked the tattoo and got it.