Derek Sales v. State
| Decision Date | 25 September 2014 |
| Docket Number | No. CR–10–53.,CR–10–53. |
| Citation | 441 S.W.3d 883,2014 Ark. 384 |
| Court | Arkansas Supreme Court |
| Parties | Derek SALES, Appellant v. STATE of Arkansas, Appellee. |
Harrelson Law Firm, P.A., by: Jeff Harrelson, for appellant.
Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.
Appellant Derek Sales appeals the order of the Bradley County Circuit Court denying his request for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.5 (2009). On appeal, Sales asserts that the circuit court erred in denying his petition because his trial counsel were ineffective (1) during the sentencing phase of his capital-murder trial by informing the jury that if Sales was sentenced to life imprisonment, there was a possibility that he might be pardoned by the governor; and (2) during opening statements after referring to Sales's escape from jail while he awaited trial. We find no error and affirm.
Sales was convicted in the Bradley County Circuit Court of the capital murder and aggravated robbery of Willie York and was sentenced to death and life imprisonment, respectively. This court affirmed his convictions and sentences in Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008), cert. denied, 556 U.S. 1190, 129 S.Ct. 2000, 173 L.Ed.2d 1098 (2009). The underlying facts surrounding Sales's crime are set forth in detail in that case, and only a brief recitation of the facts is necessary here.
Willie York, whom Sales knew and visited, was found murdered in his home on April 16, 2005. York, who suffered from rheumatoid arthritis
, had very limited use of his hands and could not walk. For this reason, York was mostly confined to a recliner and a bed that was kept in the living room of his home. It was adduced at trial that Sales was aware that York, who sold beer by the can out of his home, used a cigar box as a cash register and as storage for some personal papers. Sales was also aware of the fact that York kept this cigar box near him at all times.
On the day of the murder, Sales was at the York home several times and purchased several beers from York. When York's family left his home at approximately 6:30 that evening, Sales was there, and he was still there later in the evening when York's granddaughters brought him dinner and when York's daughter stopped by for a short visit. Later that night, two of York's granddaughters went to the home to help York get into bed. When they arrived at the house, they could not see York sitting in his recliner and then noticed a shadowy figure, whom they recognized as Sales, moving about the house. Concerned, they called 911. One of the officers at the scene confronted Sales on the front porch of the home, and after Sales tried to flee, he was taken into custody. York was then found inside the home lying in a pool of blood on the floor. He was pronounced dead at the scene, and the medical examiner later determined that there were three possible causes of his death: strangulation, blunt-force trauma to the abdomen, head, and chest, and a stab wound
of the neck. Sales was subsequently charged with residential burglary, aggravated robbery, and capital murder, although the residential burglary charge was later nol-prossed.
Sales filed his initial petition pursuant to Rule 37.5 on August 10, 2009. Thereafter, he sought and received permission from the circuit court to file an amended petition, which he filed on August 17, 2009. In his amended petition, Sales set forth numerous allegations, including allegations of ineffective assistance of counsel, in support of his claim for postconviction relief. The circuit court held an evidentiary hearing on the petition on September 9, 2009, and entered an order on October 8, 2009, denying Sales's Rule 37.5 petition. Sales appealed that decision to this court, asserting only two claims of error, which are the points now raised in the instant appeal. This court reversed the circuit court's order and remanded the matter with instructions that the circuit court enter specific findings of fact and conclusions of law on the two claims raised by Sales in his appeal. Sales v. State, 2013 Ark. 218, 2013 WL 2295436.1
Upon remand, the circuit court entered an order consistent with our opinion but again denied Sales's request for relief. In this order, filed on June 7, 2013, the circuit court first addressed Sales's allegation that counsel's reference to his escape constituted ineffective assistance of counsel and reversed its previous finding that the reference was “probably” strategic in nature. The circuit court noted that the escape reference, made during counsel's opening statement, “was both unnecessary and foolish,” particularly where the court had ordered in a previous pretrial hearing that any evidence related to the escape would be excluded under Arkansas Rule of Evidence 403.2 But, the court went on to note that the reference was merely to the fact that Sales had escaped, and not to any specific conviction for escape and that there was no further mention of any escape. The circuit court then concluded that, because the State had presented overwhelming evidence of Sales's guilt, any reference to the escape could not have had any effect on the outcome in the guilt phase of the proceedings.
The circuit court also considered whether there could have been any “carryover” effect during the sentencing stage. The court began its analysis by noting that the State did not request that Sales's convictions for first-degree escape and second-degree battery be submitted to the jury as aggravators. The circuit court reasoned, however, that had the State so requested, it would have allowed the convictions to be included along with Sales's other prior convictions. Thus, according to the circuit court, Sales suffered no prejudice because the escape and battery convictions could have been properly admitted as aggravators during the sentencing portion of his trial.
The circuit court then addressed the issue of counsel's statement regarding the possibility of a pardon if Sales was sentenced to life without the possibility of parole made during counsel's closing argument in the penalty phase of the trial. The circuit court found that there was no strategic value in such a statement and noted that “[i]f what Colvin said can be called foolish and inept; Potts's remarks were perhaps even more so.” While the circuit court found that Potts's statement fell below “any reasonable attorney performance standard as set out in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),]” it further found that the statement was a correct statement of the law and provided the jury with no knowledge that it did not already possess. Thus, the circuit court concluded that while both statements demonstrated that counsel's representation of Sales fell below an objective standard of reasonableness, it could not conclude that, but for those deficiencies, the result would have been any different. Thus, according to the circuit court, Sales suffered no prejudice within the meaning of Strickland, as neither remark had any effect on the verdict at either stage. From that order comes the instant appeal.
It is well settled 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, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.
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. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. In asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate that counsel's performance was deficient. Id. 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. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 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. 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. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
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. Williams, 2011 Ark. 489, 385 S.W.3d 228. 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 ).
Sales's first point on appeal is that the circuit court erred in denying his Rule 37.5 petition on the ground that he...
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