Frazier v. State

• Decision Date: 11 February 2016
• Docket Number: No. CR–15–499,CR–15–499
• Citation: 482 S.W.3d 305
• Parties: Corie Rodrigus Frazier, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

482 S.W.3d 305

Corie Rodrigus Frazier, Appellant

v.State of Arkansas, Appellee

No. CR–15–499

Supreme Court of Arkansas.

Opinion Delivered February 11, 2016

Corie Rodrigus Frazier, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

PER CURIAM

This is an appeal from the denial of appellant Corie Rodrigus Frazier's pro se petition for postconviction relief filed pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure

. For the reasons set forth below, the order of the circuit court is affirmed.

On April 23, 2013, Frazier, was convicted by a jury of attempted first-degree murder, two counts of aggravated assault, and possession of a firearm. He was sentenced to an aggregate term of 852 months' imprisonment. The trial court directed a verdict on two counts of aggravated assault, and the jury acquitted Frazier of one count of committing a terroristic act. The convictions are the end result of an altercation that took place between Frazier and his friend, Mark Watts, which culminated in Frazier shooting Mark Watts five times, while Sharon Watts was in close proximity. Frazier contended at trial that Mark Watts also had a gun, and Frazier, therefore, fired in self-defense. On direct appeal, the sufficiency of the evidence was challenged with respect to Frazier's conviction for the aggravated assault of Sharon Watts. The Arkansas Court of Appeals affirmed the conviction on March 19, 2014. Frazier v. State, 2014 Ark. App. 191, 2014 WL 1092455

. The mandate was issued on April 8, 2014.

Frazier filed a properly verified, timely petition for postconviction relief on May 5, 2014, contending that he was deprived of effective assistance of counsel based on the following allegations of error: (1) counsel failed to conduct a proper pretrial investigation and an effective cross-examination of the State's witnesses; (2) counsel failed to adequately impeach the State's key witness, Sharon Watts, failed to present evidence explaining the trajectory of a certain bullet fragment, and, consequently, failed to file an adequate appeal that challenged the evidence supporting his convictions on all counts; (3) counsel failed to strike a juror for cause who was first cousin to an officer who was a witness for the prosecution. The circuit court denied the petition without conducting an evidentiary hearing and adopted, "in toto," the findings and conclusions encompassed in the State's responsive pleading. In its adopted findings, the circuit court concluded that, in view of the evidence adduced at trial, Frazier's allegations of error were unsubstantiated and failed to meet the two-prong burden of proof outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

.

On appeal, Frazier repeats the allegations of error described in his Rule 37 petition, but also raises two new allegations. Frazier asserts that counsel erred by failing to petition this court for review of the decision rendered by the court of appeals and also raises a new allegation that counsel failed to challenge the prosecution, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

, for withholding evidence that consisted of pretrial statements given to investigators by Sharon Watts.

Our general rule is that specific allegations of ineffectiveness of counsel must be pleaded, and specific issues of ineffectiveness of counsel cannot be raised for the first time on appeal. Tisdale v. State, 311 Ark. 220, 227, 843 S.W.2d 803, 807 (1992)

. This court will not consider new matters not raised in the Rule 37 petition for the first time on appeal, unless they are so fundamental as to void the conviction. Nelson v. State, 344 Ark. 407, 415, 39 S.W.3d 791, 797 (2001) (per curiam).

Frazier contends that counsel failed to raise a Brady

claim when it came to light, at trial, that Sharon Watts had given investigators detailed statements describing the relevant events. According to Frazier, Sharon Watts's prior statements contained information that contradicted her trial testimony, but Frazier does not identify which contradictions he is referencing and does not point to any evidence contained in the trial record that the prosecutor withheld these statements, or that his counsel was unaware that they existed. In fact, Frazier asserted below in his Rule 37 petition that trial counsel was aware Sharon Watts had made inconsistent statements to investigators, but failed to effectively use those inconsistencies to impeach her testimony. Thus, not only did Frazier fail to raise a Brady claim below, he affirmatively represented to the circuit court that counsel was aware of the evidence that he now asserts in his appeal brief was withheld by the prosecution. Where a petitioner offers nothing to show that information was concealed from the defense, and the issue could have been determined with certainty at the time of trial, the petitioner has not demonstrated a Brady violation. McClure v. State, 2013 Ark. 306, at 2, 2013 WL 4774458 (per curiam).

To the extent that an allegation of a Brady

violation may implicate a fundamental error, Frazier's allegations do not. Cf.

Howard v. State , 2012 Ark. 177, at 7, 403 S.W.3d 38, 44

(substantiated Brady claim meets the requirements for the issuance of a writ of error coram nobis). The allegation that the prosecutor failed to disclose evidence that was introduced during the trial is a claim of prosecutorial misconduct that could have been raised at trial or on direct appeal and is therefore, not a claim that can be raised for the first time in a Rule 37 petition. Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 33 (2006)

(allegation of prosecutorial misconduct that includes a failure to disclose evidence was not a fundamental error that rendered the conviction void, but was an issue that should have been raised at trial).

The allegation that counsel failed to file a petition for review of the opinion rendered by the court of appeals was not raised below and will not be reviewed on appeal. Frazier's new allegation that counsel failed to raise a Brady

violation contradicts the allegations contained in his Rule 37 petition, and, otherwise fails to identify sufficient facts warranting review on the basis that it implicates a fundamental error capable of rendering his conviction void.

As to the ineffective-assistance-of-counsel claims raised and ruled on below, this court has held that it will reverse the circuit court's decision granting or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, at 4, 433 S.W.3d 234, 239

. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire record, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, at 3, 400 S.W.3d 694, 697.

When considering an appeal from a circuit court's denial of a Rule 37.1

petition based on 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, 466 U.S. 668, 104 S.Ct. 2052, the trial court clearly erred in holding that counsel's performance was not ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. Under Strickland, the effectiveness of counsel is assessed under a two-pronged standard. First, a petitioner 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, 108, 251 S.W.3d 290, 292–93 (2007). In order to demonstrate counsel's error, a petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59 at 4, 386 S.W.3d 477, 481 (per curiam). Furthermore, there is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Bryant v. State, 2013 Ark. 305, at 2, 429 S.W.3d 193, 196 (per curiam).

The second prong requires petitioner to show that counsel's deficient performance so prejudiced his defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, at 5, 426 S.W.3d 462, 467

. Consequently, a petitioner must show that 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. Breeden v. State, 2014 Ark. 159, at 2, 432 S.W.3d 618, 622 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Conclusory allegations unsupported by facts and which provide no showing of prejudice are insufficient to warrant Rule 37 relief. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001) (per curiam). The burden is on a petitioner to provide facts that affirmatively prove his ineffective-assistance-of-counsel claims, and unsubstantiated allegations cannot form the basis of postconviction relief. Watkins v. State, 2010 Ark. 156 at 10, 362 S.W.3d 910, 917

.

For his first assignment of error, Frazier argues that counsel erroneously failed to strike a juror, Ms. Magee, when it was revealed during voir dire that Magee was related to Officer Griffin, a witness for the prosecution. Frazier cites Arkansas Code Annotated section 16–31–102(b)

, for the proposition that Magee should have been struck as a matter of law. Frazier also cites to and relies upon the concurring opinion of justice O'Connor in Smith v. Phillips, 455 U.S. 209, 234, ...