Kedrick T. Darrough, Sr. v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CR 08-357
Opinion Delivered
October 23, 2008
PRO SE APPEAL FROM THE CIRCUIT
COURT OF DREW COUNTY, CR 200566, HON. ROBERT B. GIBSON, JR.,
JUDGE
KEDRICK T. DARROUGH, SR.
Appellant
v.
AFFIRMED.
STATE OF ARKANSAS
Appellee
PER CURIAM
In 2006, appellant Kedrick T. Darrough, Sr., was found guilty by a jury of possession of
cocaine with intent to deliver and possession of marijuana with intent to deliver. Under an
enhancement for a subsequent controlled substance conviction, he was sentenced to 840 months’ and
240 months’ imprisonment to be served consecutively. The Arkansas Court of Appeals affirmed.
Darrough v. State, CACR 07-223 (Ark. App. Oct. 24, 2007). He then timely filed in the trial court
a verified pro se petition pursuant to Arkansas Rule of Criminal Procedure 37.1. The trial court
denied the petition without a hearing, and appellant has lodged an appeal here from the order.
We do not reverse a denial of postconviction relief unless the trial court’s findings are clearly
erroneous. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A finding is clearly erroneous
when, although there was 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).
On appeal, appellant contends that the trial court erred in denying the Rule 37.1 petition by
failing to conduct an evidentiary hearing or to make written findings in support of the denial of the
petition. He also contends that the trial court erred in finding that trial counsel was not ineffective
in two instances.1
For his first point, appellant complains that he was entitled to an evidentiary hearing on the
Rule 37.1 petition. A trial court is not required to hold an evidentiary hearing on a Rule 37.1
petition. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). Pursuant to Rule 37.3(a), a court has
discretion to decide whether the files or records are sufficient to sustain the court’s findings without
a hearing. Id. In accordance with this rule, a trial court need not hold an evidentiary hearing where
it can be conclusively shown on the record, or the face of the petition itself, that the allegations have
no merit. Id.
Here, the trial court’s order denying appellant’s Rule 37.1 petition is sufficient to indicate
that the court made its findings from the record and that the record supported its decision to deny
appellant’s petition. There is no merit to appellant’s contentions that the trial court erred by not
holding an evidentiary hearing and by not making written findings that set out the basis for denying
the Rule 37.1 petition.
As the second point on appeal, appellant contends that the trial court erred in finding that trial
counsel was not ineffective. Under the standard for showing ineffective assistance of counsel,
appellant must prove that counsel’s performance was deficient and, as a result, that appellant was
deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Jackson v. State, 352 Ark.
359, 105 S.W.3d 352 (2003). There is a strong presumption that counsel’s conduct falls within the
1
In appellant’s stated points on appeal, he raises an issue regarding his identity being a predicate
requirement for relief. However, the issue of identity relates to a petition for writ of habeas corpus
pursuant to Act 1780 of 2001, and not a claim under Rule 37.1.
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wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).
The burden is on appellant to provide facts to support his claims of prejudice. Nelson v. State, 344
Ark. 407, 39 S.W.3d 791 (2001) (per curiam).
Appellant argued in the Rule 37.1 petition and on appeal that trial counsel was ineffective
for failing to obtain the identity of the confidential informant and for failing to seek suppression of
the drugs seized by the police during the traffic stop. Both of these claims of ineffective assistance
of counsel are related to the traffic stop that led to appellant’s arrest.
The facts adduced at trial were that a confidential informant (“CI”) apprised the police that
the car in which appellant was a passenger would be carrying large amounts of controlled substances.
Based on this information, the police waited for the car and made a traffic stop.
At trial, Officer Ben Hines, who was with the Tenth Judicial District Drug Task Force,
testified that after stopping the vehicle, officers approached the car on both the driver’s side and the
passenger’s side. Upon exiting the car, appellant took a large garbage bag that was between him and
the center console, threw it on the ground and said to the officers, “This is what you’re looking for
anyway.” The garbage bag contained cocaine and eighty-nine bags of marijuana weighing 32 grams.
In addition, the police discovered a bag of cocaine in appellant’s jacket during the search incident
to arrest, for a total of 385 grams of cocaine recovered.
As for appellant’s rationale behind his ineffective assistance claims, he maintains that the
police fabricated the existence of the CI as a pretext to legitimize a traffic stop that was made
without probable cause. Appellant’s first claim of ineffectiveness was that trial counsel failed to
obtain the name of the CI, and also failed to reveal that the CI did not exist. In the second claim of
ineffective counsel, he contends that exposure of the non-existence of the CI would have ultimately
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led to suppression of the drugs seized during the traffic stop by showing that no probable cause
existed for the officers’ actions.
As to the confidential informant’s identity, counsel sought the name of the CI in the defense’s
pretrial discovery motion, but the prosecutor did not disclose the CI’s name either before or during
the trial.2 In denying the Rule 37.1 petition on this point, the trial court noted that appellant was not
entitled to that information because the CI did not participate in commission of the crimes at issue.
Here, appellant does not demonstrate that the trial court erred in finding that counsel was not
ineffective. This argument depends solely upon disclosure of the CI’s name. However, appellant
does not present authority to substantiate the defense’s entitlement to the name of the CI. With no
legal basis for disclosure, trial counsel cannot be found to be ineffective for pursing an argument that
has no merit. Noel, supra.
In addition, conclusory statements cannot be the basis of postconviction relief. Jackson,
supra. In the instant matter, appellant’s phantom-CI allegation comprises the linchpin of both
ineffective assistance claims. However, appellant posits no facts substantiating this conclusory
claim.
In appellant’s next allegation of ineffective assistance regarding suppression of the drugs
seized by police, counsel filed a pretrial motion to suppress. In response, the prosecutor argued that
2
The addendum to appellant’s brief on appeal contains a letter from the prosecutor to counsel
stating that the identity of the CI would not be disclosed unless the CI were to be called as a witness at
trial. The addendum also contains a letter from trial counsel to appellant that set out the prosecutor’s
refusal to disclose the CI’s name and the authority upon which the prosecutor based this position.
However, these documents were not contained in the record on appeal and there is no indication that the
trial court considered these documents in making its ruling below. This court does not consider evidence
not included in the record on appeal. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001). Moreover, the
overall purpose of Rule 37 never contemplated providing a means to add evidence to the record. Davis v.
State, 345 Ark. 161, 44 S.W.3d 726 (2001). Even were we to consider these documents, they do not
support appellant’s argument of ineffective assistance.
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appellant lacked standing to challenge the traffic stop as he was a passenger in the car.3 In its order
denying the Rule 37.1 petition, the trial court also noted appellant’s lack of standing under the Fourth
Amendment as a passenger.
Although couched in terms of a claim of ineffective assistance, appellant is asking the trial
court to make an evidentiary ruling as to suppression of the drugs. Evidentiary issues are not the
proper basis for a Rule 37.1 petition. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). As
a result, appellant’s argument, to the extent that it exceeded a claim of ineffective assistance of
counsel, is not cognizable under Rule 37.1. Id.
To the extent that appellant raises actual allegations of ineffective assistance of counsel, he
fails to demonstrate that the trial court erred in finding that counsel was not ineffective on this point.
Appellant did not establish a legal basis to find that he had standing to object to the traffic stop under
the Fourth Amendment, thereby arguably leading to suppression of the drugs. Trial counsel cannot
be found to be ineffective for continuing to argue a position that has no merit. Noel, supra.
Finally, appellant makes an additional argument that counsel was ineffective as shown by the
alleged cumulative errors. The doctrine of cumulative error is not recognized in allegations of
ineffective assistance of counsel. Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).
Affirmed.
3
The record does not contain an order denying the motion, but the drugs were introduced at trial.
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