Hinton v. State

• Decision Date: 02 May 2019
• Docket Number: No. CR-18-962,CR-18-962
• Parties: Kenneth HINTON, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

2019 Ark. 136

572 S.W.3d 381

Kenneth HINTON, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-962

Supreme Court of Arkansas.

Opinion Delivered: May 2, 2019

Bill Luppen, for appellant.

Leslie Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

Appellant Kenneth Hinton appeals the denial of his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. Hinton was convicted of one count of first-degree battery and one count of second-degree battery and sentenced to thirty years' imprisonment and fifteen years' imprisonment respectively. Hinton's convictions and sentences were affirmed in Hinton v. State , 2017 Ark. 107, 515 S.W.3d 121. Following this court's decision, Hinton timely filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. After a hearing, the circuit court entered its order denying Hinton's petition. We affirm.

Hinton's convictions stem from a disturbance at the Varner Unit of the Arkansas Department of Correction ("ADC") on October 28, 2012, in which Hinton and other inmates were involved. Hinton was charged in the disturbance for injuring Warden Joe Page and shift lieutenant Stephen Simmons. Initially, Hinton was named as a codefendant with Karl Pearce, Demetrius Woods, Desmond Holliman, Charles Jester, and Antonio Smith. On December 15, 2014, a jury trial was held and resulted in a mistrial on December 16. On April 25, 2016, the case proceeded to trial for a second time.

During Hinton's trial, Lieutenant Simmons testified that on the day of the incident, he had been working at the Varner Unit for a little over two years and was familiar with Hinton. Lieutenant Simmons testified that at the time of the incident there was tension in the chow hall because the inmates realized that an illegal phone had been confiscated from one of the barracks. A riot broke out with several inmates assaulting the staff. Lieutenant Simmons testified that Hinton struck him in the back of his head. Lieutenant Simmons testified that he was certain Hinton was the inmate who had struck him because "that's a face I will never, ever forget." Lieutenant Simmons testified that after Hinton struck him, Hinton immediately ran and struck Warden Page. During his testimony, Lieutenant Simmons reviewed videos and still photographs of the incident and identified Hinton as the inmate who had struck him and Warden Page. With regard to Warden Page's condition after he was struck by Hinton, Lieutenant Simmons testified that Warden Page was unresponsive. Lieutenant Simmons testified that as a result of the incident, he prepared an incident report in which he stated that Hinton ran out of the main chow hall and hit him with a closed fist on the left side of his face. On cross-examination, Lieutenant Simmons testified that he did not document Hinton's striking Warden Page in the incident report.

Sergeant Kenneth Ridgell, a field rider with the ADC, testified that he was familiar with Hinton because Hinton previously worked on his utility squad. Sergeant Ridgell testified that on the day of the incident, he witnessed Hinton blindside Warden Page with a closed fist, knocking him unconscious. Sergeant Ridgell testified that as a result of the incident, he prepared an incident report. In Ridgell's incident report, he did not list Hinton as one of the inmates involved in the riot. Sergeant Ridgell testified that while he did not identify Hinton as the inmate who had knocked Warden Page to the ground, this information should have been in his incident report.

Warden Page testified that because of his traumatic brain injury

, he cannot recall any of the events from the day of the incident.

Hinton was convicted and sentenced as set forth above. Following this court's affirmance of his convictions and sentences, Hinton timely filed his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. In his petition, Hinton argued that his trial counsel was ineffective in failing to investigate and call witnesses who would have testified that Hinton did not hit Warden Page or Lieutenant Simmons.¹ On June 12, 2018, a hearing was held on Hinton's Rule 37 petition. During the hearing, Hinton testified that he informed his trial attorney, Jason Files, that he did not participate in the assault on Warden Page and the other officers. Hinton testified that he discussed with Mr. Files the following witnesses that could be called to testify on his behalf: Antonio Smith, Desmond Holliman, Carlos McFerrin, Demetrius Woods, and Eric Ticey.² Hinton testified that he wrote Mr. Files "a letter, an affidavit, letting him know that the way the first trial went, we was on the wrong page because he didn't call none of the witnesses that I asked him to call. So I basically wrote it out in affidavit form to call witness on my behalf and to do a better investigation job." With regard to the affidavit he sent to Mr. Files, Hinton testified that he informed Mr. Files that the witnesses would be able to testify that he was in Barracks 9 when the incident took place, which is two barracks away from the chow hall. Hinton testified the Mr. Files could have easily interviewed the potential witnesses because they were inmates in the ADC.

The five inmate-alibi witnesses, Smith, Holliman, McFerrin, Woods, and Ticey testified that they were either charged criminally or received disciplinary actions in relation to the battery of Warden Page and Lieutenant Simmons. The witnesses testified that Hinton was not present when the incident occurred. Additionally, each witness testified that he had not been contacted by Hinton's trial counsel about what he saw or whether Hinton was present during the incident. However, each witness testified that if he had been contacted, he would have been willing to testify on Hinton's behalf at his trial.

Jason Files testified that based on his case file, Hinton requested that he call only three witnesses—Charles Jester, Desmond Holliman, and Karl Pearce.³ Mr. Files testified that he contacted the attorneys of all three witnesses before trial. Mr. Files was told by all three attorneys that their clients would be willing to testify on behalf of Hinton but that their clients would be committing perjury if they testified that Hinton was not present during the riot. Additionally, Mr. Files testified that he elected not to the call the inmate witnesses because their serious criminal histories would become an issue. Despite Hinton's decision to not testify at his trial, Mr. Files was concerned it would become apparent to the jury that "this was a max unit and anybody in there was there for a serious crime." Mr. Files testified that his defense strategy was to present the riot as a very quick and traumatic incident, which would then allow him to challenge the accuracy of the prison guards' recollection of the events. Mr. Files further explained that "if we then call in inmates to say here's what really happened, we create a dichotomy of these guys know exactly what happened and they are right and they saw everything correctly versus ... if they could see it all correctly ... that means the guards probably saw it all correctly too." Mr. Files testified that the use of the inmates' testimony would have forced the jury to make a credibility determination between convicted inmates and law enforcement officers, which Mr. Files thought would result in an unfavorable outcome for Hinton. Mr. Files testified that by the second trial, the former codefendant witnesses had already pleaded guilty. In Mr. Files's opinion, their guilty pleas would have affirmed the prison guard's testimony.

On August 9, 2018, the circuit court entered its written order denying Hinton's petition. The circuit court found in pertinent part:

All of petitioner's witnesses admitted that since October 2012, until the hearing, they had not told officials that Hinton was not present during the riot. The testimony lacked the factual substantiation necessary to overcome the presumption that trial counsel's investigation fell below the wide range of reasonable professional assistance. The decision to call a witness is a matter of trial strategy. Mr. Files testified that in his professional opinion, presenting to a jury an inmate's testimony that completely contradicts the testimony of the ADC officers, would not benefit his client. Mr. Hinton was identified as one of the inmates who struck Warden Page and Officer Simmons. The jury viewed the video security recording of the incident. The jury was directed to observe Hinton in the recording as he participated in the riot. Mr. Files' trial strategy may have been instrumental in the jury's decision to recommend the minimum 30-year sentence for the petitioner's conviction on battery in the first degree. The punishment options ranged from a minimum of 30 years but not more than 60 years.

....

Petitioner has not met the first prong of the Strickland standard requiring a showing that Mr. Files made errors to serious that he was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Without proof to support the first prong, the second prong need not be addressed.

Hinton now brings this appeal and presents one issue for review: the circuit court erred in denying his Rule 37 petition because Hinton received unconstitutional ineffective assistance of counsel when his counsel failed to investigate and call the inmate-alibi witnesses at his trial.

"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...