Marcyniuk v. State

• Decision Date: 31 July 2014
• Docket Number: No. CR–12–1009.,CR–12–1009.
• Citation: 436 S.W.3d 122,2014 Ark. 268
• Parties: Zachariah Scott MARCYNIUK, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2014 Ark. 268

436 S.W.3d 122

Zachariah Scott MARCYNIUK, Appellant

v.STATE of Arkansas, Appellee.

No. CR–12–1009.

Supreme Court of Arkansas.

June 5, 2014.

Rehearing Denied July 31, 2014.

James Law Firm, Little Rock, by: William O. “Bill” James, Jr., for appellant.

Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., and Kathryn Henry, Ass't Att'y Gen., for appellee.

JOSEPHINE LINKER HART, Associate Justice.

Appellant, Zachariah Marcyniuk, appeals from the Washington County Circuit Court's order denying his petition and amended petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5. For reversal, appellant argues that his trial counsel was ineffective for the following reasons: (1) conceding the defense of mental disease or defect; (2) failing to voir dire the jury on the defense of mental disease or defect; (3) implying to the jury that a verdict of not guilty by reason of mental disease or defect would result in appellant's release; (4) failing to conduct a sufficient death-penalty voir dire; (5) failing to inform the jury that mercy could be given in sentencing regardless of whether aggravating factors outweighed mitigating factors; (6) failing to investigate and call mitigation witnesses. We affirm the circuit court's decision.

In 2008, appellant was charged with capital murder and residential burglary in the stabbing death of his former girlfriend, Katie Wood, who was murdered at her residence. Prior to his trial, appellant entered a plea of not guilty at his arraignment and later added not guilty by reason of mental disease or defect.

Appellant testified at his trial. He testified that he and Wood had broken up three weeks before her death. On the day of her death, around 3:00 a.m., he entered her apartment through an unlocked window, and “look[ed] for signs of infidelity.” He testified that he fell asleep and awoke when Wood opened the door. Wood screamed, and he grabbed her. According to appellant, “We were just kind of wrestling and there was a knife. What I remember was getting up and there was blood everywhere.” He dragged her body into the bathroom, put her in the bathtub, and exited through the window. He put his bloodied clothes and the knife in a bag and discarded them as he drove to Oklahoma. He was stopped by Oklahoma Highway Patrol for speeding, and he was then arrested on a murder warrant. Appellant admitted that he lied to the trooper when he said he was driving to Amarillo and also when he told the trooper about the cause of the scratches on his face.

Appellant also presented the testimony of Dr. Brad Diner, a forensic psychiatrist hired by appellant. Dr. Diner testified that appellant was a “severely psychologically maladjusted individual” who suffered from recurrent and very severe major depression and also exhibited borderline and schizotypal traits. Dr. Diner further testified that appellant suffered from dissociative amnesia, which would explain why appellant could not remember details surrounding Katie's death. Dr. Diner believed that Katie's screaming when she was first confronted by appellant at her residence set off a “cascade of events in which [appellant] ... was faced with this sort of ultimate rejection of him, ... and he literally dissociated and flew into a rage, much of which he could not recall.” According to Dr. Diner's testimony, appellant experienced the murder like a “dream-state,” and he “essentially broke with reality for a short time.” Dr. Diner testified that during this dissociative period, appellant could not control or conform his behavior to the requirements of the law. He further opined that, while appellant could have been aware at some level that his actions would ultimately hurt or kill Katie, he had no control over his actions and did not have the ability to actually form the intent to kill Katie.

The jury was instructed on the affirmative defense of mental disease or defect. Further, the jury was instructed on the elements of capital murder, as well as the lesser-included offenses of first-degree murder and second-degree murder. Appellant was convicted of capital murder and residential burglary, and he was sentenced to death for capital murder and 240 months' imprisonment for the residential burglary. This court affirmed his convictions and sentences. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243.

With the assistance of postconviction counsel, appellant timely filed in the circuit court a verified petition and amended petition for postconviction relief pursuant to Rule 37.5, in which he asserted that his privately retained attorney, W.H. Taylor, rendered ineffective assistance of counsel at trial. Following a hearing, the circuit court denied appellant's petition, and appellant now brings this appeal.

In an appeal from the denial of a Rule 37 petition, this court considers whether, based on the totality of the evidence, the circuit 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Cothren v. State, 344 Ark. 697, 703, 42 S.W.3d 543, 547 (2001). Under Strickland, a petitioner raising a claim of ineffective assistance of counsel must first show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. A petitioner making an ineffective-assistance-of-counsel claim must show that counsel's performance fell below an objective standard of reasonableness. Id. at 687–88, 104 S.Ct. 2052. In doing so, the claimant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. Further, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. at 687, 104 S.Ct. 2052. Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. at 694, 104 S.Ct. 2052.

In his first point on appeal, appellant argues that Taylor was ineffective because during opening and closing argument, he conceded the defense of mental disease or defect. He contends that “[t]hese statements to the jury effectively gave away [appellant's] only defense,” and “[i]nstead of a possible defense, [appellant] was left with a conviction for capital murder, and ultimately, the death penalty.” Appellant asserts that Taylor “conceded that the defense had no merit and [that] the jury should not be so ‘naive’ as to find it applicable.” Appellant further asserts that Taylor “eroded any chance [appellant] had at a not-guilty verdict, did away with the mental disease or defect defense, and devastated the credibility of all of the witnesses that testified to the issues with [appellant's] mental illness.” He observes that the concession “was deficient because it threw away the adversarial nature of the trial, which is the method by which our system produces a just result.”

As both parties point out, appellant failed to specifically plead this particular claim below, and the circuit court did not issue any findings of fact or rulings on the matter. In Jones v. State, 340 Ark. 1, 5, 8 S.W.3d 482, 484–85 (2000), this court quoted from Johnson v. State, 321 Ark. 117, 137, 900 S.W.2d 940, 951 (1995), stating as follows:

This is an appeal from the trial court's denial of the Rule 37 petition, and our general rule is that specific allegations of ineffectiveness of counsel must be pleaded, and specific issues of ineffectivenessof counsel cannot be raised for the first time on appeal. However, in death penalty cases we will consider errors argued for the first time on appeal where prejudice is conclusively shown by the record and this court would unquestionably require the trial court to grant relief under Rule 37. In Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981), we said an error may be argued for the first time on appeal in a death case only when it is “of such magnitude that it would require us to take note of an error which involved a fundamental deprivation of the right to a fair trial.”

Jones, 340 Ark. at 5, 8 S.W.3d at 484–85 (internal citations omitted). Thus, in death-penalty cases, this court may address issues raised for the first time on appeal from the denial of a Rule 37 petition where prejudice is conclusively shown by the record. Jones, at 5–6, 8 S.W.3d at 485. Such prejudice is shown only when there is an error of such magnitude that it deprived the petitioner of the fundamental right to a fair trial. Id. at 6, 8 S.W.3d at 485. Where prejudice is not conclusively shown, the issue is procedurally barred and we may not reach the merits. Id., 8 S.W.3d at 485. Thus, the question before this court is whether the record in this case conclusively shows that appellant was prejudiced by Taylor's purported concession of the defense of mental disease or defect.

Taylor's remarks to the jury in opening and closing arguments indicate that the focus of his remarks was not to seek an acquittal on the defense of mental disease or defect, but to pursue an acquittal on the capital-murder charge by arguing for a conviction on the lesser-included offense of second-degree murder. In opening argument, Taylor addressed the jury as follows:

This case is really about four different things. One, why [Katie Wood's] completely needless death occurred; two, the classification under our system of what type of murder was committed by [appellant]; three, punishment to be levied by you against [appellant]. There will be evidence this is not a capital-murder case. There will be evidence presented that this is not a first-degree murder case. The evidence will point you in the direction that...