Adams v. State
| Decision Date | 25 April 2013 |
| Docket Number | No. CR 12–375.,CR 12–375. |
| Citation | 2013 Ark. 174,427 S.W.3d 63 |
| Court | Arkansas Supreme Court |
| Parties | Billy Terrell ADAMS, Appellant v. STATE of Arkansas, Appellee. |
OPINION TEXT STARTS HERE
Stuart Vess, North Little Rock, for appellant.
Dustin McDaniel, Att'y Gen., By Eileen W. Harrison, Deputy Att'y Gen., for appellee.
Appellant Billy Terrell Adams appeals the order entered by the White County Circuit Court denying his petition for postconviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. For reversal, he contends that the trial court erred by not allowing him to subpoena a juror from his trial and by limiting his examination of a witness at the hearing; by not permitting him to amend his petition; by not invoking the rule to exclude his trial counsel from hearing the testimony of other witnesses; and by denying his petition for postconviction relief. Because this case involves postconviction relief, our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule l–2(a)(8). We affirm on all issues.
In August 2008, a jury convicted Adams of capital murder in the shooting death of Charles “Chucky” Cunningham and sentenced him to life in prison without parole. In reaching its verdict, the jury rejected Adams's claim of justification and the defense that he was unable to conform his conduct to the requirements of the law as a result of mental disease or defect. This court subsequently affirmed the conviction and sentence. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764. As we noted in the opinion, the evidence at trial disclosed that Adams and Cunningham engaged in a physical altercation in the front yard of Adams's home. When the fight ended, Cunningham got into his vehicle, and Adams went inside the house after briefly speaking with Cunningham through the car window. A few moments later, Adams emerged from the house carrying a shotgun, and from the front porch, he fired the weapon at the vehicle as Cunningham began driving away. Cunningham crashed into a utility pole after travelling a few blocks from Adams's home. According to the medical examiner, Cunningham died as a result of the gunshot wounds that he received. In Adams, one of the issues raised on appeal was that the circuit court erred in questioning a juror after the answer she gave regarding her vote during the jury poll. We declined to address the argument because trial counsel failed to make a contemporaneous objection.
On May 24, 2010, following the issuance of our mandate, Adams filed a timely, pro se petition for postconviction relief, alleging that he had received ineffective assistance of counsel at trial. His allegations included claims that counsel failed to adequately present the defense of mental disease or defect; failed to procure the attendance of witnesses who would have testified that a gun was removed from Cunningham's vehicle by someone at the scene of the accident; and failed to preserve for appeal the issue concerning the circuit court's questioning of the juror. In the petition, Adams requested a hearing, the appointment of counsel, and permission to file an amended petition. On September 2, 2010, he filed a motion to subpoena witnesses, including the juror who was questioned by the court during the polling of the jury.
On September 28, 2010, the circuit court held a preliminary hearing. The court denied Adams's motion to subpoena the juror and his request for the appointment of counsel. The circuit court stated that it would not set the petition for a hearing any sooner than sixty days in order to give Adams time to retain counsel. The court granted Adams's request to file an amended petition, limited, however, to the single issue of trial counsels' failure to object to remarks made by the prosecutor during closing argument.
By letters dated January 24 and May 6, 2011, the circuit court wrote Adams inquiring about whether he had retained counsel or whether he still intended to hire counsel. On August 23, 2011, the court informed Adams by letter that the hearing would take place on October 25, 2011. On September 26, 2011, Adams, still acting pro se, filed a sixteen-page amended petition for postconviction relief that raised issues beyond the claim that counsel were ineffective for not objecting to comments made by the prosecutor in closing argument. In the amended petition, Adams asserted that counsel were ineffective for not objecting to the prosecutor's statement in closing that Adams would be released if found not guilty by reason of mental disease or defect if the court found that he was no longer suffering from the mental disease or defect.1
At the outset of the hearing, the circuit court announced that it would consider only the claim of ineffective assistance of counsel contained in the amended petition concerning the failure to object to the statement made by the prosecutor during closing argument. The court ruled that it would not address the additional issues raised in the amended petition because of its previous ruling allowing amendment only as to that one issue and because the petition exceeded the ten-page limitation found in Rule 37.1(b). Thereafter, Adams invoked “the rule” to exclude both of his trial counsel from the courtroom during the presentation of testimony. The circuit court denied that request but later altered its ruling by excluding counsel during each other's testimony and while Adams testified.
In support of the petition, Adams elicited the testimony of his appellate counsel, Bill James. James said, with regard to the juror-polling issue raised on appeal, that an objection would have preserved the point for appeal but that he could not say whether the appellate court would have deemed the argument meritorious.
Adams also presented the testimony of Dr. Bob Gale, who was Adams's expert witness at trial with respect to the defense of mental disease or defect. Gale said that he testified at trial that Adams suffered from a mental disease that rendered him unable to conform his conduct to the requirements of the law. Gale did not recall trial counsel mentioning the term “irresistible impulse,” and he could not remember whether trial counsel discussed the benefit of having Adams's psychiatrist from UAMS testify to corroborate Gale's testimony. He stated, however, that he reviewed Adams's medical records prior to trial.
In addition, Adams called Herbert Gardner as a witness. Gardner had provided an affidavit for Cunningham's arrest, dated four months prior to Cunningham's murder, stating that Cunningham had beaten and pulled a gun on him in a jealous rage over Gardner's supposed relationship with Holly Cowan, the mother of Cunningham's child. When Adams began questioning Gardner about the incident, the circuit court ruled that the affidavit, which had been made a part of the trial record, spoke for itself and that it was not proper for Adams to inquire about what Gardner remembered about the altercation with Cunningham. The court instructed Adams to limit his inquiry to the issue of whether trial counsel were ineffective for not securing Gardner's presence at trial. In this regard, the circuit court noted that counsel had subpoenaed Gardner for trial but that the sheriff had not been able to serve Gardner with the subpoena at the given address after two attempts. Gardner testified that he did not know that he was a named witness for the trial and that the address and phone number listed on the subpoena were old. He explained that he worked in the oil field and that his address had changed because he was in and out of town all of the time.
Brian Joe Cowan testified that Adams's counsel spoke with him in advance of trial and that she had asked him about disagreements that he had with Cunningham. Mr. Cowan stated that he told counsel that he did not get along with Cunningham, that they had argued and fought, and that he knew Cunningham to be violent. He stated, however, that because his sister, Holly Cowan, was upset about Cunningham's murder, he told counsel that he would not be a good witness because he did not “know if I could say what I needed to whether it was the truth or not.”
In her testimony, Holly Cowan stated that she saw Cunningham beat up Gardner and that it was the first time that she had seen Cunningham beat anyone. She said that she did not see Cunningham with a gun that day; that she had never seen him with a gun; and that she did not know him as a person who beat people or carried a weapon. Ms. Cowan stated that she was not contacted by counsel about testifying at Adams's trial.
Anthony Turner, Adams's uncle, testified that he saw the fight between Adams and Cunningham as he was mowing his sister's yard. He did not see who struck the first blow, but he said that Cunningham had Adams down on the ground beating him. Turner testified that Adams's attorneys did not contact him about testifying.
Roger Johnson testified that he was at the scene of the accident where Cunningham's vehicle struck the pole. He said that he arrived at the accident late, that he only heard from other onlookers that a gun was removed from Cunningham's vehicle, and that he had no knowledge of who might have taken a weapon. Johnson stated that he was not contacted by Adams's counsel about testifying.
Jim Petty, one of Adams's trial lawyers, testified that he began his representation three months before trial. He recalled discussing Holly Cowan as a witness with co-counsel, Ellen Reif, but he said that they did not feel that she would be a good witness. Petty testified that he and Reif met with six or seven members of Adams's family one day and that they were told that Anthony Turner was not at the meeting because he was inside the house either drinking or drunk. He did not recall Herbert Gardner being mentioned as a witness or discussing calling Adams's personal psychiatrist as a witness. Petty remembered Adams advising them that Cunningham normally carried a gun...
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