Golden v. State

• Decision Date: 16 May 2013
• Docket Number: No. CR 12–129.,CR 12–129.
• Parties: Jeffrey GOLDEN, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2013 Ark. 144

427 S.W.3d 11

Jeffrey GOLDEN, Appellant

v.STATE of Arkansas, Appellee.

No. CR 12–129.

Supreme Court of Arkansas.

April 11, 2013.

Rehearing Denied May 16, 2013.

Jeff Rosenzweig, for appellant.

Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant, Jeffrey Golden, appeals the order of the Faulkner County Circuit Court denying his petition for postconviction relief filed pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure (2012). Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1–2(a)(8) (2012). We cannot say the circuit court's findings are clearly erroneous, and we affirm the order denying postconviction relief.

Golden was tried and convicted by a jury of two counts of aggravated robbery, one count of possession of firearms by a felon, and two counts of misdemeanor theft. These convictions were the result of two robberies in Faulkner County. The first was the robbery of a Subway restaurant on August 11, 2006, and the second was a robbery three days later of a Playworld Family Fun Center restaurant and arcade. Golden appealed, contending that the circuit court erred by refusing to admit into evidence a receipt from a movie theater supporting his alibi testimony and by denying his motion for a new trial that was made on the basis that the original video recording of the Subway robbery had not been made available to him. The Arkansas Court of Appeals found no merit to either argument on direct appeal and affirmed. Golden v. State, 2009 Ark. App. 632, 2009 WL 3153262.

Golden then filed a petition for postconviction relief pursuant to Rule 37, alleging that his trial counsel was ineffective for failing to subpoena witnesses from the movie theater that could authenticate the receipt for movie tickets to support his alibi as to the Subway robbery. The circuit court held a hearing on the petition, and then entered an order denying postconviction relief on the basis that Golden had failed to establish that trial counsel's representation fell below the standards set in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the circuit court's order stated that, considering the State's proof at trial and at the hearing that “anyone with access to Golden's debit card could have generated the receipt and bank transactions, this court cannot find that there is a reasonable probability the jury would have reached a different verdict had counsel subpoenaed the witnesses who testified at the evidentiary hearing.” This appeal followed, where the sole issue being advanced for reversal is that the circuit court's ruling as to Golden's demonstration of prejudice on his claim for ineffective assistance of counsel was clearly erroneous.

Prior to reaching the merits of this appeal, we first address Golden's request to clear up a matter of procedural history. The Playworld robbery was charged, tried, and appealed under the circuit court's docket number CR 2006–2512. The Subway robbery was charged, tried, and appealed under the circuit court's docket number CR 2006–2508. Both cases were tried and appealed together. Accordingly, Golden's petition for postconviction relief was filed with respect to both lower-court docket numbers. Soon after the petition was filed, the circuit court entered an order in the Playworld case, CR 2006–2512, denying relief without a hearing. Much later, the circuit court held a hearing in which the only issue discussed was trial counsel's failure to authenticate the Rave receipt as corroboration of Golden's alibi to the Subway robbery, case number CR 2006–2508. According to the bar-code sticker appearing on the face of the order, the circuit court then entered the order appealed in the instant appeal in case number CR 2006–2508. Golden's counsel assertsthat he never received notice of the order denying relief in case number CR 2006–2512, and in fact did not know it existed until he discovered it in the record while preparing the brief in this appeal. We acknowledge that there is nothing in that order to indicate it was ever communicated to Golden or his counsel. We also acknowledge that the circuit court's docket entries, as well as the court reporter's notation on the front of the transcript, indicate that the postconviction hearing was held with respect to both case numbers. However, as noted, the only issue discussed at the hearing related to the Subway robbery, case number CR 2006–2508. Moreover, there is nothing in the record to indicate that the order denying relief in case number CR 2006–2512 was ever set aside. We therefore deny counsel's request to set aside in this appeal the circuit court's order entered in case number CR 2006–2512.

Turning now to our standard of review for this appeal, we note that this court does not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. 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. 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 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, 466 U.S. 668, 104 S.Ct. 2052.Id.

In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel's performance was deficient. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. 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 petitioner 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. 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. 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. 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. Id. “[T]here 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 sole point for reversal, Golden contends that the circuit court's finding of no prejudice was clearly erroneous and “missed the whole point of the evidence” he offered at the hearing—which he contends was to corroborate the testimony of Golden and his children as to his alibi and to thereby challenge the credibility of the identification and eyewitness testimony against him.

At trial, the State presented a theory that the same person committed three robberies in a very similar manner—the Playworld and Subway robberies in Faulkner County, as well as the robbery of a Dollar General store in Gravel Ridge located in Pulaski County, of which the State introduced evidence under Rule 404(b) of the Arkansas Rules of Evidence. At trial, Golden defended the charges by testifying that he was innocent of all three robberies and by offering alibi testimony and evidence as to the Subway robbery and the Pulaski County robbery. With regard to the Subway robbery, Golden and his two children testified that at the time of the robbery they were attending the movie Talledega Nights at the Rave Theater in Little Rock. Golden testified that through an online promotion he had obtained a voucher for one ticket, and that he used his debit card to purchase two tickets to the 8:15 p.m. showing of the movie. Golden explained that they arrived at the theater in time to attend the 7:45 p.m. showing, that the show ended around 9:30 p.m. or 9:45 p.m., and that they went home after that. Both of Golden's children testified that they left their home around seven or seven-thirty in the evening, that their father attended the movie with them, and that their father drove them home after the movie. During Golden's testimony, his trial counsel attempted to introduce a receipt showing that Golden's debit card was used to purchase two movie tickets and refreshments from the Rave Theater. The circuit court sustained the State's objection that the receipt was not self-authenticating and that the custodian of the records was not present to authenticate it. As noted, the court of appeals affirmed that ruling on direct appeal. Golden, 2009 Ark. App. 632, 2009 WL 3153262.

In his petition for postconviction relief, Golden alleged that it was ineffective assistance for trial counsel to have failed to call a witness to properly authenticate the receipt and that this failure satisfied the prejudice prong of the Strickland test. At the hearing on Golden's petition, Golden presented testimony from Cody O'Brien, general manager and keeper of the records of the Rave Theater, who stated that the receipt proffered at...