Douglas v. State

• Decision Date: 15 March 2018
• Docket Number: No. CR–17–546,CR–17–546
• Citation: 540 S.W.3d 685
• Parties: Courtney Jerrel DOUGLAS, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

540 S.W.3d 685

Courtney Jerrel DOUGLAS, Appellant

v.STATE of Arkansas, Appellee

No. CR–17–546

Supreme Court of Arkansas.

Opinion Delivered: March 15, 2018

Jeff Resenzweig, for appellant.

Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

A Union County jury found appellant, Courtney Jerrel Douglas, guilty of first-degree murder and possession of a firearm. Douglas was sentenced to a term of life imprisonment for the murder conviction plus an additional fifteen years' imprisonment for the use of a firearm. For his possession-of-a-firearm charge, Douglas was sentenced to forty years' imprisonment and a fine of $15,000. Douglas's probation was also revoked on three controlled-substance offenses, and he was sentenced to a total of fifty years' imprisonment to be served consecutively to his other sentences. We affirmed his convictions and sentences in Douglas v. State , 2017 Ark. 70, 511 S.W.3d 852. Subsequently, Douglas filed a timely petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The circuit court denied Douglas's petition without a hearing and Douglas now brings this appeal.¹ Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1–2(a)(8). We affirm in part and reverse and remand in part.

Douglas's convictions and sentences stem from an altercation between the victim, Terrance Billings, and Douglas. On August 5, 2015, Douglas and Billings got into a verbal altercation at Douglas's home. After the altercation, Billings returned to his home. After Billings had left to go home, Douglas retrieved a firearm and drove to Billings's home. Jennifer Henry, Billings's girlfriend, testified that Douglas came to their home uninvited, and when she answered the door, "[Billings] pushed [Douglas] back outside the door and turned back around. I heard the gunshot. Then [Douglas] came and finished shooting inside the house where [Billings] fell on the floor and died. [Douglas] still stood there and shot when there wasn't no more bullets in the gun ... I kept hearing the gun clicking." D.H., Jennifer's fourteen-year-old son, testified that when Douglas came to their home, he witnessed Billings and Douglas as they "tussled" on the porch. D.H. further testified that Billings was inside the home when Douglas began shooting Billings. John Henry, Jennifer's father, testified that he witnessed Douglas and Billings scuffling on the porch as well. John further testified that it looked like Billings had Douglas in a headlock and Jennifer was standing behind them. Sergeant Jim Sanders with the Union County Sheriff's Office testified that upon arriving at the crime scene, it was his duty to immediately begin taking photographs. Sergeant Sanders testified that there did not appear to be any blood, tissue, or other bodily fluids on the porch or door. However, inside the threshold, but not on the threshold itself, there appeared to be bodily fluid. Further, Sergeant Sanders testified that there was no indication that Billings's body had been moved. Chief Investigator Ricky Roberts, also with the Union County Sheriff's Office, testified that there was no indication of blood on the porch, and based on the evidence, it was apparent that Billings was shot while standing inside the house.

In his petition for postconviction relief, Douglas argued that trial counsel was ineffective in failing to present the proper jury instructions on (1) justification and (2) extreme emotional disturbance manslaughter. Douglas contended that based on these failures, he received ineffective assistance of counsel and was prejudiced. Douglas now appeals, arguing that the circuit court erred in denying relief on these claims without a hearing.

Law & Analysis

"On appeal from a trial court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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. " Prater v. State , 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. "The benchmark for judging a claim of ineffective assistance of counsel must be ‘whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) ]." Henington v. State , 2012 Ark. 181, at 3–4, 403 S.W.3d 55, 58. Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must 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. Williams v. State , 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Springs v. State , 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783.

Turning to the merits, we note that the circuit court did not hold an evidentiary hearing. Rule 37.3 of the Arkansas Rules of Criminal Procedure provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Wooten v. State , 338 Ark. 691, 1 S.W.3d 8 (1999) (citing Bohanan v. State , 327 Ark. 507, 939 S.W.2d 832 (1997) (per curiam)). If the files and the record show that the petitioner is not entitled to relief, the circuit court is required to make written findings to that effect. Ark. R. Crim. P. 37.3(a).

Justification Jury Instruction

For his first point on appeal, Douglas argues that the circuit court erred in denying his claim, without a hearing, that trial counsel was ineffective in failing to present the proper jury instruction on justification. Douglas contends that due to trial counsel's failure, he was prejudiced. At trial, Douglas asserted the defense of justification. However, trial counsel proffered justification instruction AMI Crim. 2d 704, which is the jury instruction for non-deadly force. As Douglas points out, AMI Crim. 2d 704 is inapplicable in a homicide case. Douglas contends that the proper jury instruction would have been AMI Crim. 2d 705, which is the justification jury instruction for the use of deadly force. Douglas argues that there were assertions—based on his own statement and the testimony of John Henry—that Billings physically attacked Douglas first and had him in a headlock. Thus, Douglas argues that he was entitled to AMI Crim. 2d 705, the justification instruction for the use of deadly physical force. Douglas argues that had trial counsel proffered the correct jury instruction, it would have been reversible error for the circuit court to refuse it.

The State responds that trial counsel was not ineffective for failing to proffer AMI Crim. 2d 705 because there was no rational basis for giving the instruction. Notwithstanding trial counsel's failure to submit AMI Crim. 2d 705, the State contends that the circuit court rejected Douglas's request for an instruction on justification, finding that there was no basis for doing so. In its June 21, 2017 order, the circuit court denied Douglas's claim as follows:

The defendant's first contention is that his trial counsel was ineffective in failing to present the proper jury instruction on justification and because of that failure the defendant was prejudiced.

The defendant accurately quotes the colloquy between the Court, Mr. Reed (Trial Counsel) and Mr. Rogers (Chief Deputy Prosecuting Attorney). It is clear from this colloquy that the Court was not of the opinion that the instruction would be given if properly drafted.

"... The instruction as presented is erroneous. It lacks necessary criteria. I submit to you and it is the position of this Court that there is not a reasonable basis to believe that Terrance Billings was about to use deadly physical force on this defendant because there is no evidence of such deadly physical force because the defendant is the one who provoked this incident by going to the residence of Terrence Billings and he is the only one that went to the residence or arrived at that residence with a firearm. I think it is unreasonable to believe that he can provoke this incident and then raise the defense of justification." (Emphasis added[.] )

This colloquy and all other discussion about the jury instructions were held outside the presence of the jury.

As the State accurately points out, the proof in this case is undisputed. The victim had a verbal confrontation with the

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