Conley v. State

• Decision Date: 17 April 2014
• Docket Number: No. CR–13–21.,CR–13–21.
• Citation: 2014 Ark. 172,433 S.W.3d 234
• Court: Arkansas Supreme Court
• Parties: Vernell R. CONLEY, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. 172

433 S.W.3d 234

Vernell R. CONLEY, Appellant

v.STATE of Arkansas, Appellee.

No. CR–13–21.

Supreme Court of Arkansas.

April 17, 2014.

James Law Firm, by: Lee D. Short, for appellant.

Dustin McDaniel, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., for appellee.

COURTNEY HUDSON GOODSON, Justice.

Appellant Vernell R. Conley appeals the order entered by the Washington County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. For reversal, he contends that the circuit court erred in finding that he did not receive ineffective assistance of counsel when his trial attorney (1) failed to produce testimony that was promised in opening statement; (2) neglected to make proper motions for directed verdict; and (3) failed to request a severance of the charges. We affirm on the first point; reverse and remand on the second issue with directions to dismiss the charges for possession of a controlled substance and possession of drug paraphernalia; and we do not reach the third point.

By amended felony information, the prosecuting attorney in Washington County charged Conley with delivery of a controlled substance (crack cocaine); possession of a controlled substance (marijuana) with intent to deliver; and possession of drug paraphernalia (digital scales). The information also alleged that Conley was an habitual offender with more than four previous felony convictions. Conley stood trial before a jury in the circuit court on August 26, 2010. The State's evidence disclosed that Conley delivered 0.5813 grams of crack cocaine to undercover police officers, who were associated with the drug task force in Madison and Washington Counties. According to the testimony, the delivery occurred on the evening of September 15, 2009, at a park in Fayetteville. However, the officers did not arrest Conley until November 6, 2009. On that date, the officers also executed a search warrant at Conley's home, where they discovered 32.5 grams of marijuana in a plastic bag and a set of digital scales. Both the marijuana and the scales were located in the laundry room on top of a cabinet above the washer and dryer. One officer testified that marijuana was also found in the master bedroom of the home, but there was no further testimony indicating where the marijuana was located in that room. Neither Conley nor any of his family members were at home when the officers arrived to execute the warrant, although the police later transported Conley to the home during the search. An officer also testified that additional surveillance was conducted of the home following Conley's arrest and that no further drug activity was observed.

The jury found Conley guilty of delivery of crack cocaine and possession of the digital scales, as drug paraphernalia. The jury acquitted Conley of possession of marijuana with intent to deliver and instead found him guilty of the lesser-included offense of possession of marijuana. At the sentencing phase of trial, the State introduced evidence that Conley had previously been convicted of twelve felonies. As an habitual offender, he received sentences of sixty years for delivery, six years for possession of a controlled substance, and thirty years for possession of drug paraphernalia. The circuit court directed the possession offenses to run concurrently and that those convictions be served consecutively to the delivery conviction. Conley appealed the convictions and sentences to the Arkansas Court of Appeals, which affirmed. Conley v. State, 2011 Ark. App. 597, 385 S.W.3d 875. Notably, the court of appeals refused to reach the merits of Conley's sufficiency-of-the-evidence arguments after determining that his directed-verdict motions were not specific enough to preserve the issues raised on appeal.

Thereafter, Conley filed a timely petition for postconviction relief pursuant to Rule 37.1. The circuit court subsequently granted him leave to file an amended petition. In the amended petition, Conley asserted that he was denied effective assistance of counsel because his attorney failed to present a witness after counsel had informed the jury in opening statement that he would produce a witness to testify that the marijuana and the paraphernalia found in Conley's home did not belong to Conley; because his attorney did not make adequate motions for directed verdict; and because his attorney failed to move for a severance of the possession offenses from the charge of delivery of a controlled substance.¹ After a hearing, the circuit court denied the petition. In its order dated September 18, 2012, the court found that trial counsel's decision not to call the proposed witness was a matter of trial strategy that was in compliance with the provisions of the Arkansas Rules of Professional Conduct. The circuitcourt also ruled that Conley suffered no prejudice from trial counsel's failure to seek a severance of the offenses or to make sufficient motions for directed verdict. Conley filed a timely notice of appeal from the circuit court's order.

At the outset, we note that this court does not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.

Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate that counsel's performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Scott v.State, 2012 Ark. 199, 406 S.W.3d 1. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.

Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231. This requires the petitioner to show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. White v. State, 2013 Ark. 171, 426 S.W.3d 911. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Golden v. State, 2013 Ark. 144, 427 S.W.3d 11.

Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. We also recognize that “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3–4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052).

As his first point on appeal, Conley argues that he was denied effective assistance of counsel when his attorney failed to produce a witness after telling the jury in opening statement “that you're also gonna listen to a witness of ours come up and testify as to why the marijuana was not Mr. Conley's and the drug paraphernalia, okay.” He asserts that counsel's failure to fulfill this promise constitutes deficient performance that diminished counsel's credibility in the eyes of the jury and thus damaged his defense on all charges.

At the postconviction hearing, trial counsel identified the omitted witness as Conley's wife, Monica. Counsel explained that he did not call her as a witness because the prosecutor advised that, if she were to testify that the contraband was hers, he would charge her with the felony offenses of possession with intent to deliver and possession of drug paraphernalia. Counsel also stated that Conley had admitted early on that he was guilty and that counsel could not tender Monica as a witness to give perjured testimony. In his testimony at the hearing, Conley confirmed that he and his counsel discussed the strategy of having Monica testify to take responsibility for the marijuana and the scales and that counsel advised against it because she would be charged if she so testified.

The failure to produce evidence promised in opening statement can be an unreasonable and prejudicial decision that denies a defendant effective assistance of counsel. Dunlap v. People, 173 P.3d 1054 (Colo.2007); see also Ouber v. Guarino, 293 F.3d 19 (1st Cir.2002); Harris v. Reed, 894 F.2d 871 (7th Cir.1990); Anderson v. Butler, 858 F.2d 16 (1st Cir.1988); State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987). The rationale for considering a failure to produce promised evidence as deficient performance is that when counsel primes the jury to hear a different...