Decay v. State

• Decision Date: 25 September 2014
• Docket Number: No. CR–13–992.,CR–13–992.
• Citation: 2014 Ark. 387,441 S.W.3d 899
• Court: Arkansas Supreme Court
• Parties: Gregory DECAY, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. 387

441 S.W.3d 899

Gregory DECAY, Appellant

v.STATE of Arkansas, Appellee.

No. CR–13–992.

Supreme Court of Arkansas.

Sept. 25, 2014.

William A. McLean, Little Rock, AR, for appellant.

Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., and Laura Shue, Ass't Att'y Gen., for appellee.

Opinion

PAUL E. DANIELSON, Justice.

Appellant Gregory Christopher Decay appeals from the order of the Washington County Circuit Court denying and dismissing his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5 (2010). Decay was convicted of two counts of capital murder and was sentenced to death; this court affirmed his convictions and sentence. See Decay v. State, 2009 Ark. 566, 352 S.W.3d 319 (Decay I). Decay then filed a Rule 37.5 petition for postconviction relief. The circuit court denied and dismissed his petition, and Decay appealed. We reversed and remanded for the entry of a written order containing specific findings of fact and conclusions of law as required under Rule 37.5(i). See Decay v. State, 2013 Ark. 185, 2013 WL 1858920 (Decay II). The circuit court entered such an order, and Decay now appeals from that order, asserting five points on appeal: (1) that he was denied effective assistance of counsel when his trial counsel failed to investigate, develop, and present mitigation evidence; (2) that he was denied effective assistance of counsel when his trial counsel failed to object to the prosecutor's comment on his failure to testify; (3) that he was denied effective assistance of counsel when his trial counsel failed to object to the prosecutor's statement that Decay may become eligible for release if sentenced to life imprisonment without parole; (4) that he was denied effective assistance of counsel when his trial counsel failed to advance the defense of his choice; and (5) that the circuit court erred in its denial of relief as it related to his defense-of-choice claim because prejudice should have been presumed. We affirm the order of the circuit court.

In Decay II, this court limited the circuit court's findings of fact and conclusions of law on remand to “only those issues raised on appeal,” which included (1) that he was denied effective assistance of counsel when his trial counsel failed to investigate, develop, and present mitigation evidence during his trial; (2) that he was denied effective assistance of counsel when his trial counsel failed to properly object to the prosecuting attorney's comment on Decay's failure to testify; (3) that he was denied effective assistance of counsel when his trial counsel failed to properly object to the prosecuting attorney's statement to the jury that Decay may become eligible for release if sentenced to life imprisonment without parole; and (4) that he was denied effective assistance of counsel when his trial counsel failed to advance the defense that Decay did not commit the act that resulted in the deaths of the victims. 2013 Ark. 185, at 2. In its order following remand, the circuit court concluded that (1) trial counsel's investigation, development, and presentation of mitigating evidence was not deficient and did not prejudice Decay; (2) that trial counsel's failure to object to the prosecuting attorney's comment on Decay's remorse was not deficient and did not prejudice Decay; (3) that the prosecuting attorney's statement regarding life imprisonment without parole was a correct statement of the law and was not objectionable; and (4) that there was no basis in law or fact that would have supported a defense that Decay did not commit the acts that resulted in the victims' deaths and trial counsel's performance was therefore not deficient and did not result in prejudice to Decay.

This court does not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. See Golden v. State, 2013 Ark. 144, 427 S.W.3d 11. 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 made. See id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. See id. Our standard of review 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. See id.

In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel's performance was deficient. See Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. 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. See id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See id. 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. See id.

In order to satisfy the second prong of the Strickland test, the petitioner must show that counsel's deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. See id. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. See id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See id.

I. Failure to Investigate, Develop, and Present Mitigating Evidence

For his first point on appeal, Decay argues that the circuit court erred in denying his claim that his trial counsel were ineffective in failing to investigate, develop, and present mitigation evidence. He asserts that, despite being assigned a mitigation specialist, the specialist did not perform his job duties, and he therefore did not receive the benefit of having had the specialist. To that end, he contends, his trial counsel were ineffective in failing to “supervise and control” the specialist. Additionally, Decay submits, the minimal testimony by his family members during the sentencing phase was insufficient in its mitigating effect and further demonstrates his trial counsel's deficiencies. Decay maintains that the prejudice is apparent, as none of the mitigating circumstances presented to the jury were found by the jury to exist.

The State responds that Decay failed to show any deficient performance on the part of his trial counsel, when the testimony at the postconviction hearing demonstrated that his trial counsel actively sought mitigating evidence, prepared for the sentencing phase by meeting with each other repeatedly, meeting with Decay, inquiring about his childhood and family history, requesting Decay's records, talking with his family members, and even obtaining a continuance to further develop any mitigation evidence. It states that, to the extent the mitigation specialist failed to investigate, Decay's trial counsel dealt with that failure and completed the investigation. Moreover, the State avers, Decay failed to show in his petition or during the hearing any other mitigation that trial counsel could, and should, have sought or developed. The State contends that Decay has shown neither deficient performance by his trial counsel nor prejudice and therefore urges us to affirm the circuit court's order.

Here, Decay claims that his trial counsel were ineffective in failing to investigate, develop, and present mitigation evidence in the sentencing phase of his trial and that the circuit court erred in denying his petition on this basis. The sum of his argument is that the mitigation evidence presented by his trial counsel “was a weak attempt to show the jury the real picture of Gregory Christopher Decay's life that is worth living.” The circuit court, however, found that “all available mitigation evidence was developed by Petitioner's trial counsel,” and that trial counsel's mitigation efforts were not deficient and did not result in prejudice to Decay. We agree.

It is undisputed that the guarantee of effective assistance of counsel clearly encompasses the penalty phase of a criminal trial, and this court has recognized that the failure to present any testimony during the mitigation phase of the trial fails to pass constitutional muster. See, e.g., Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. Counsel is obligated to conduct an investigation for the purpose of ascertaining mitigating evidence, and the failure to do so is error. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003). Such error, however, does not automatically require reversal unless the petitioner shows that, but for counsel's errors, there is a reasonable probability that the sentence would have been different. See id.; Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). When reviewing a claim of ineffectiveness based on a failure to present adequate mitigating evidence, we must view the totality of the evidence—both that adduced at trial and that adduced in the postconviction hearing. See Coulter, 343 Ark. 22, 31 S.W.3d 826.

To the extent that Decay argues that additional mitigating evidence was not investigated, developed, or presented, our review of the record reveals that Decay wholly failed to identify to the circuit court any additional evidence or witnesses that should have been presented during the sentencing phase of his trial by his trial counsel but were not. In his petition, Decay merely stated that “[t]rial counsel was ineffective for failing to properly investigate and present mitigation evidence...