Anderson v. State

• Decision Date: 28 October 2010
• Docket Number: No. CR 08–1334.,CR 08–1334.
• Parties: Sedric ANDERSON, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 404

373 S.W.3d 876

Sedric ANDERSON, Appellant

v.STATE of Arkansas, Appellee.

No. CR 08–1334.

Supreme Court of Arkansas.

Oct. 28, 2010.

Teresa Bloodman, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

PER CURIAM.

In [2010 Ark. 1]2005, appellant Sedric Anderson was found guilty by a jury of manufacturing a controlled substance, possession of drug paraphernalia with intent to manufacture a controlled substance, and two counts of possession of a substance used to manufacture a controlled substance with intent to deliver it. He was sentenced to serve a term of 120 months' imprisonment for manufacturing a controlled substance and fines totaling $100.00 were imposed for the other offenses. The Arkansas Court of Appeals affirmed. Anderson v. State, CACR 05–1132, 2007 WL 2782556 (Ark.App. Sept. 26, 2007) (unpublished). On October 31, 2007, the court of appeals denied by per curiam order a petition for rehearing. On January 17, 2008, this court denied by per curiam order a petition for review.

Appellant subsequently filed in the trial court a verified timely pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The petition was denied the day after it was filed on the ground that the court had been informed that appellant was not in custody as required by Rule 37.1(a). After appellant filed a motion for reconsideration with proof of his incarceration, the order of dismissal was set aside by the court. The court subsequently denied the petition without prejudice to filing within ten days an amended petition, on the ground that the allegations contained in the original petition were entirely conclusory in nature. Appellant timely filed an amended petition that was denied after a hearing. Appellant lodged an appeal here from that order. We find no error and affirm the order.

This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam); Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam) (citing Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per curiam)). 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. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918;Jamett, 2010 Ark. 28, 358 S.W.3d 874 (per curiam); Anderson v. State, 2009 Ark. 493, 2009 WL 3235533 (per curiam); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact-finder must be considered. Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam); State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007).

In an appeal from a trial court's denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence, under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Smith, 2010 Ark. 137, 361 S.W.3d 840;French v. State, 2009 Ark. 443, 2009 WL 3047356 (per curiam); Small, 371 Ark. 244, 264 S.W.3d 512. Under the two-pronged Strickland test, a petitioner raising a claim of ineffective assistance 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. Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007); Barrett, 371 Ark. at 95–96, 263 S.W.3d at 546. In doing so, the claimant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Barrett, 371 Ark. at 96, 263 S.W.3d at 546.

With respect to the second prong of the test, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he or she was deprived of a fair trial. Jamett, 2010 Ark. at 28, 358 S.W.3d 874;Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). 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. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

In his Rule 37.1 petition, appellant alleged that he was not afforded effective assistance of counsel at trial.¹ To place the claims in context, testimony at trial reflected that a deputy was driving near a store, the B&L Quick Mart in Jonesboro, when he noticed the strong odor of chemicals typically used in the manufacture of methamphetamine. At the back of the store, the officer found a parked truck that was registered to appellant. Other officers located an air tank in the vicinity of appellant's truck. The tank, which smelled strongly of a chemical, had been converted with odd fittings and plastic pipe. There was testimony that the officers had seen similar air tanks that were converted to hold anhydrous ammonia, a chemical used in the production of methamphetamine. As the officers approached a padlocked shop building adjacent to the store, they noted an even stronger odor of anhydrous ammonia emanating from it. Several other officers arrived to investigate and permission was obtained from the owner of the store to cut the padlock on the shop. A methamphetamine lab was located inside. Assorted paraphernalia used in methamphetamine production was also found in the store to which appellant admitted having a key.

Some hours after the first officer had come to the scene, appellant emerged from the store. After he was advised of his right against self-incrimination, he admitted that he had secured a cover on a large bucket that contained substances undergoing chemical reactions in the early stages of methamphetamine production and poured out a bag of powder and put in lithium strips used in the process of manufacturing methamphetamine. He further answered questions concerning the point at which the chemical reaction was expected to stop, the color of the chemical reaction, and the number of ounces of methamphetamine expected to be derived from the process. He also said that he always wore rubber gloves and a mask during the manufacture of the drug. No one else was inside the store or shop when appellant emerged from the store.

On appeal from the denial of his Rule 37.1 petition, appellant first contends that the trial court erred in denying relief because the evidence at trial demonstrated that the store and shop were owned by William Tippett and E.B. Junior, not appellant, and that the evidence seized was only in appellant's constructive possession. He asserts that counsel could have subpoenaed information concerning the other two men's prior arrests and convictions and introduced it at trial to focus the jury's attention on those two men as the real drug manufacturers. He contends that the men could have been called by the defense to testify as to the reason appellant was at the store and the extent of his relationship with them. Appellant does not explain specifically what the men would have said as to the reason he was at the store or the nature of the relationship between them. Appellant makes much on appeal of the fact that he was not the owner of the property where the methamphetamine lab was found. He failed to demonstrate in the petitions for postconviction relief, however, that the mere fact that other persons may also have had culpability in the matter relieved him of culpability.

Considering the totality of the evidence that established that appellant admittedto taping up the bucket containing a chemical used to make methamphetamine, admitted to handling drug paraphernalia, answered questions concerning the manufacturing process, and was found alone in the midst of drug paraphernalia while methamphetamine was being manufactured in an adjacent shop, whatever reason the men may have had for appellant's presence at the store would have been unlikely to produce a different outcome in the trial. As the court of appeals noted on direct appeal

Neither exclusive nor physical possession is necessary to sustain a charge if the place where the offending substance is found is under the dominion and control of the accused. Put in other terms, the State need not prove that the accused had actual possession of a controlled substance; constructive possession is sufficient. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. (Citations omitted.)

With respect to the men's prior arrests, bad acts, or convictions, appellant does not state under what legal precedent the character and conduct of the men would have been admissible at appellant's trial. He fell far short of establishing that there was some specific admissible evidence concerning the two men that counsel could have presented to the jury. Moreover, there was testimony concerning the close association of the men with appellant and testimony that he was in possession of a key to the store. Under these circumstances, the decision of counsel not to paint the men in a negative light by revealing their nefarious backgrounds may well have been a matter of trial strategy on counsel's part. Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then such a decision is not a proper basis for relief under Rule 37.1. Smith, 2010 Ark. 137, 361 S.W.3d 840...