Gray v. State
| Decision Date | 27 October 2021 |
| Docket Number | No. CR-19-974,CR-19-974 |
| Citation | 636 S.W.3d 102,2021 Ark. App. 406 |
| Parties | William Edward GRAY, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
J. Thomas Sullivan, Little Rock, for appellant.
Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Sr. Ass't Att'y Gen., for appellee.
A jury convicted appellant William Edward Gray of first-degree murder in the shooting death of his ex-girlfriend, Rachel Michelle Chisum. He was sentenced to forty years’ imprisonment with a fifteen-year firearm enhancement. Gray's conviction was affirmed by this court on direct appeal. Gray v. State , 2018 Ark. App. 544, 564 S.W.3d 289 ( Gray I ).1 Gray filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, which was denied without an evidentiary hearing. On appeal from the denial of his petition, we remanded to settle the record with factual findings regarding the verification of Gray's petition. Gray v. State , 2020 Ark. App. 553, 2020 WL 7239533 ( Gray II ). The circuit court found that Gray's petition was properly and timely verified; therefore, we may now address the merits of Gray's appeal. We affirm the circuit court's decision.
On May 25, 2016, law enforcement officers from the Russellville Police Department were dispatched to Gray's residence, a duplex located at 213 James Circle, in response to a disturbance involving a knife. Upon arriving at the scene, officers found a woman, later identified as Chisum, dead inside her car, which was resting against a fence across the street from Gray's duplex. Gray told officers that he had shot Chisum because she "was busting up" his car. Gray was arrested and charged with first-degree murder.
The following is Gray's account of the events on the morning of the fatal shooting. Gray claimed that he had been asleep on his couch when he awoke to find his ex-girlfriend, Chisum, inside his apartment attacking him with a knife and what he thought was a tire iron. He said that he grabbed Chisum's forearms and kicked her in the midriff to get her off of him. The couple's physical altercation moved outside the home when, according to Gray, Chisum threatened to "blow his head off" and ran to retrieve a gun from inside his car. Gray said that he grabbed Chisum by the waist and "slung" her out of his car and that he got the gun and placed it in his waistband.
According to Gray, Chisum then "quickstep[ped]" to her car, "thr[ew] the car in reverse and whip[ped] it back towards [him] and clip[ped] [him] with the front end of the car." This knocked him to the ground and caused the gun to fall out of his waistband. Gray said that Chisum revved her car in neutral and that, because he thought that she was going to run over him, he "got up shooting." Gray testified, "I almost died in my apartment[,] and I almost died out there in that parking lot." None of Gray's neighbors witnessed the actual shooting. In fact, no one heard anything out of the ordinary until the gunshots.
There was evidence that Chisum had been at Gray's duplex multiple times on the night before the fatal shooting, harassing him by beating on his door and bashing his car with an object. One neighbor saw Chisum doing something to the front tire on Gray's car. Police officers found a small paring knife in the cup holder of Chisum's car and a screwdriver on the passenger-side floorboard. Gray could not explain how Chisum, who he said had one weapon in each hand while attacking him, managed to hold on to both items during their extended confrontation.
Gray did not receive any bleeding wounds during the attack on the couch, nor did he sustain any injuries from being clipped by Chisum's car. The medical examiner testified that Chisum, described as smaller than average, suffered numerous injuries associated with a gunshot wound from a single projectile but that she did not have any other injuries, such as blunt-force trauma or bruises associated with a violent struggle. Moreover, photographs taken inside Gray's home did not indicate any type of conflict had occurred there, given that his tennis shoes and other items had not been disturbed.
Gray had testified that he kept the gun with him for protection after Chisum's numerous threats on his life. A neighbor had seen Gray's gun stashed in the console on his couch. According to Gray, on the morning of the shooting, he had forgotten the gun inside his car when he went out for cigarettes. He could not explain how Chisum knew that the gun was in his car. Moreover, Gray did not tell the 911 operator that Chisum had struck him with her car, and the responding officer who had asked Gray what happened, stated that Gray did not mention that Chisum had tried to run over him with her car. Gray's neighbor on the other side of the duplex testified that she heard gunshots, went to the window, and saw Gray standing in her yard beside a car that was slowly moving away.
After the defense had rested its case, the circuit court refused the defense's request to include with the justification instruction language that there is no duty to retreat from the curtilage of one's dwelling. Referencing the model jury instruction, AMI Crim. 2d 705, the circuit court made the following ruling:
Defense counsel objected to the instruction, saying that The circuit court overruled the objection. The jury was instructed on first- and second-degree murder, as well as extreme-emotional-disturbance manslaughter, in addition to the defense of justification without the optional curtilage language. The jury convicted Gray of first-degree murder and found that he had committed the offense using a firearm, subjecting him to an enhanced sentence.
Gray argued on direct appeal that the circuit court had erred in not instructing the jury that there is no duty to retreat from the curtilage of one's dwelling. We affirmed his conviction without addressing the merits of his argument because trial counsel had failed to proffer the entire instruction, including the curtilage language, to the circuit court. Gray I , supra . We cited Robertson v. State , 2009 Ark. 430, 347 S.W.3d 460, and Jackson v. State , 2018 Ark. App. 222, 547 S.W.3d 753, for the proposition that, to preserve an objection to an instruction, the appellant must make a proffer of the proposed instruction, include it in the record, and abstract it to enable the appellate court to consider it.
In his petition for postconviction relief, Gray argued that his trial counsel was ineffective for (1) failing to properly preserve the issue of the circuit court's refusal to instruct the jury that, when considering the defense of justification, he had no duty to retreat from the curtilage of his home; (2) failing to request that jurors be instructed on reckless manslaughter, or "imperfect self-defense"; (3) failing to raise a due-process objection to the circuit court's deletion of the curtilage language because it reduced the State's burden of proof; and (4) failing to preserve error based on deletion of the curtilage language because it prejudiced him in the jury's firearm-enhancement decision. With respect to his fifth point, Gray argued that he was denied due process of law and that his implied right of appeal was violated when the appellate courts used a rule of procedural default not usually and consistently applied to deny review on the merits of an unpreserved claim on direct appeal.
In denying Gray's petition, the circuit court addressed each of Gray's arguments. The circuit court found that the evidence of Gray's guilt was overwhelming. The circuit court pointed out that Gray had not been prohibited from presenting his justification defense to the jury; however, the circuit court found that the evidence did not support instructing the jury that Gray had no duty to retreat from the curtilage of his dwelling "by either the State's or the Petitioner's account of the events." The circuit court noted that the evidence demonstrated that Gray had killed Chisum from the location of the parking lot near the lawn directly in front of his neighbor's residence. The circuit court specifically rejected the notion that Gray had been at his assigned parking spot when Chisum was killed because there was no such evidence—just argument by trial counsel.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to the effective assistance of counsel. Thompson v. State , 2019 Ark. 312, 586 S.W.3d 615. The benchmark for judging any claim of ineffectiveness is "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, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The standard governing ineffective-assistance-of-counsel claims is the familiar...
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Burks v. State
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