Houghton v. State

• Decision Date: 04 June 2015
• Docket Number: No. CR–14–760,CR–14–760
• Citation: 464 S.W.3d 922,2015 Ark. 252
• Parties: Susan Houghton, Appellant, v. State of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2015 Ark. 252

464 S.W.3d 922

Susan Houghton, Appellant

v.State of Arkansas, Appellee.

No. CR–14–760

Supreme Court of Arkansas.

Opinion Delivered June 4, 2015

Ernie Witt, for appellant.

Dustin McDaniel, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

Opinion

KAREN R. BAKER, Associate Justice

A Johnson County Circuit Court jury found appellant Susan Lynn Houghton guilty of possession of drug paraphernalia with intent to manufacture methamphetamine and possession of drug paraphernalia, for which she was sentenced to a total of 144 months' imprisonment in the Arkansas Department of Correction. Houghton v. State, 2014 Ark. App. 32, at 1, 2014 WL 171009. After Houghton's counsel filed a no-merit brief, the court of appeals affirmed her conviction and sentence on January 15, 2014. Id. Subsequently, Houghton filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37. The circuit court denied her petition without a hearing. This court's jurisdiction over Rule 37 appeals is proper pursuant to Arkansas Rule of Criminal Procedure 37.3. Ark. R.Crim. P. 37.3(b) (“If a petition on which the petitioner was represented by counsel is denied, counsel shall continue to represent the petitioner for an appeal to the Supreme Court, unless relieved as counsel by the circuit court or the Supreme Court.”). On appeal, Houghton contends that the circuit court erred in denying her petition without a hearing. We affirm.

In her petition, Houghton alleged that her trial counsel was ineffective for failing to object to five statements—two during the State's opening statement, two during the State's closing argument, and one during sentencing—made by the prosecutor. Houghton challenged the following remarks made by the prosecutor during opening statement:

Now at the root—at the root of this case and frankly the methamphetamine problem up and down the River Valley is the fact—let me back up just a minute and clarify for you what she actually is charged with.

....

Now as I started to say, the root of this case, as well as the root of the entire methamphetamine problem in the River Valley and probably the South, is the fact that methamphetamine, Ladies and Gentlemen, is very, very easy to make. It's very easy to make.

Houghton contended that the prosecutor encouraged the jury to consider irrelevant information by indicating that “the jury should consider the River Valley and the South's problem with methamphetamine during jury deliberation in the guilt phase.” Houghton also contended that her trial counsel was ineffective for failing to object when the prosecutor stated, during opening statement, that “I do not expect you all to make a decision based on what I'm telling you. First off, you haven't heard both sides yet.” Houghton contended that this statement was “a clear violation of the law and [Houghton]'s right to due process,” because she had “no obligation to testify or present any evidence in her own defense.”

Likewise, Houghton contended that her trial counsel was ineffective for failing to object to the following statements made by the prosecutor during closing argument:

Now this morning when I was talking to you I said really the root of the problem in this case, and I say really the root of the problem throughout the River Valley and may even in the South is the fact that methamphetamine is so easy to make.

....

In fact, I care more if you are operating out of Johnson County, Arkansas because I can't do one thing about the guy in Mexico. I can't do a thing. I can do it when he starts distributing on I–40, and we do it. You see interdiction all the time, but as far as the manufacturer, I can't do a thing, but I can sure do something here, and that's why we are here.

Houghton's third point in her Rule 37 petition alleged that trial counsel was ineffective for failing to object when the prosecutor made the following statement during the sentencing phase: “I know I'm getting emotional about this, but I see this stuff time after time after time. If she were a user, she wouldn't be here and I wouldn't be here. I've got fifty of them on the docket. We don't—I don't do this.” According to Houghton, the “record clearly shows the repetative injection by the prosecutor of statements that were not objected to by defense counsel for [Houghton] and which demonstrated a defective representation that influenced the outcome of the trial in the guilt phase as well as the sentencing phase.”

Finally, Houghton alleged that her trial counsel was ineffective for failing to file a motion to suppress an incriminating statement she made to law enforcement. According to Houghton's petition, Officer Johnson saw a black pot on the floorboard of Houghton's black Dodge Charger. He was able to see inside the car because the door was open. As he approached, Houghton attempted to close the door of the car and Officer Johnson told her not to shut the door because he knew what was inside. Houghton then replied, “It's a meth lab. I came up here to burn it.” In her petition, Houghton contended that Officer Johnson “exercised control over her by not permitting her to close the Dodge's door. His failure to immediately advise [Houghton] of her 5th Amendment right should have caused the defense attorney to understand his obligation to file a motion to suppress her statement.”

On May 19, 2014, the circuit court denied Houghton's petition without a hearing. In its order, the circuit court concluded that Houghton failed to establish that she was denied a fair trial as a result of trial counsel's failure to object. The circuit court concluded that Houghton failed to show any prejudice arising from trial counsel's failure to object to the remarks made during opening statement because the jury was instructed that such remarks were not evidence, and the jury was instructed to disregard any argument, statements, or remarks of the attorneys that had no basis in the evidence. The circuit court concluded that the remaining statements were made as a result of testimony given during Houghton's trial and that there was no comment on Houghton's decision not to testify. Finally, the circuit court determined that trial counsel was not ineffective for failing to file a motion to suppress a statement Houghton made to law enforcement officers prior to her arrest because the motion would not have been successful.

On appeal, Houghton challenges the circuit court's conclusion that trial counsel was not ineffective for failing to object during opening statement and closing argument and to the prosecutor's statement made during the sentencing phase. She contends that “in the present case we do not know what the trial strategy of the trial counsel was, because he did not testify at a hearing on the petition.” Houghton contends that the circuit court's conclusion that counsel's decision not to object during opening statement and closing argument was one of trial strategy is “not supported” and is “mere speculation of the court.” Houghton further contends that trial counsel should have objected to the prosecutor's statement that the jury had not “heard both sides yet,” because that statement was a comment on the fact that Houghton would not testify, which violates her rights protected by the Fifth Amendment to the U.S. Constitution. Finally, Houghton asks this court to overrule its previous decisions rejecting the doctrine of cumulative error as it applies to claims of ineffective assistance of counsel.¹

In 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).

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.

“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, 403 S.W.3d 55. 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...