Jackson v. State

• Decision Date: 24 January 2013
• Docket Number: No. CR 11-1016,CR 11-1016
• Citation: 2013 Ark. 19
• Parties: MICHAEL DESHAUN JACKSON APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Supreme Court

2013 Ark. 19

MICHAEL DESHAUN JACKSON APPELLANT

v.STATE OF ARKANSAS APPELLEE

No. CR 11-1016

SUPREME COURT OF ARKANSAS

Opinion Delivered January 24, 2013

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT AND APPELLANT'S PRO SE MOTION TO

FILE SUPPLEMENTAL BRIEF [PULASKI COUNTY CIRCUIT COURT, 60CR 08-474, HON. HERBERT WRIGHT, JUDGE]

ORDER AFFIRMED; MOTION DENIED.

PER CURIAM

In 2009, appellant Michael Deshaun Jackson was found guilty by a jury of capital murder, criminal attempt to commit capital murder, and aggravated robbery, with a firearm enhancement. He was sentenced to an aggregate sentence of life imprisonment without parole. We affirmed. Jackson v. State, 2011 Ark. 9, ___ S.W.3d ___.

In 2011, appellant filed in the trial court a timely, verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The petition was denied, and appellant brings this appeal.

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. Charland v. State, 2012 Ark. 246; Springs v. State, 2012 Ark. 87, ___ S.W.3d ___ ; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007); Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). We have said, "A finding is clearly erroneous when, although there is evidence to support it, the appellate court, afterreviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed." Williams, 369 Ark. at 107, 251 S.W.3d at 292 (quoting Howard, 367 Ark. at 26, 238 S.W.3d at 31).

In his brief on appeal, appellant first argues that the trial court erred in not holding a hearing on his Rule 37.1 petition. He does not explain why a hearing was needed for a ruling on any specific issue. Arkansas Rule of Criminal Procedure 37.3(c) 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. Charland, 2012 Ark. 246. A court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Ark. R. Crim. P. 37.3(a); Hayes v. State, 2011 Ark. 327, ___ S.W.3d ___ (per curiam); see also Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). Here, the court issued an order that relied extensively on the record to address appellant's allegations. As appellant has not pointed out any particular claim that required a hearing, he has not met his burden of demonstrating that the court was obligated to hold a hearing. Without some showing of prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984), the petition was conclusive on its face that no relief was warranted, and the circuit court did not err in not holding an evidentiary hearing. See Charland, 2012 Ark. 246 (citing Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918).

Appellant next contends that it was a violation of the provisions against double jeopardy contained in the United States Constitution and the Arkansas Constitution for him to be convicted of both capital murder and aggravated robbery because the aggravated-robbery chargewas the underlying offense to the charge of capital murder. The claim is one that may be raised under Rule 37.1. Collateral attacks on a judgment are cognizable in a postconviction challenge to determine whether a judgment was void because it violated fundamental constitutional rights. See Tornavacca v. State, 2012 Ark. 224, ___ S.W.3d ___ (citing Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002)); see also Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001) (holding that Rule 37.1 does not permit a petitioner to raise an issue that might have been raised at trial or on the record on direct appeal, unless the issue is so fundamental as to render the judgment void and, thus, open to collateral attack). In Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000), this court held that double-jeopardy claims, if proven, are sufficient to render a judgment void.

As the trial court found in its order, there is no merit to appellant's argument that he was subjected to double jeopardy. Separate convictions and sentences are authorized for capital murder and the felony underlying the capital-murder charge, pursuant to Arkansas Code Annotated section 5-10-110(d)(1)(A) (Supp. 2009). Circuit courts have specific authority to sentence a defendant for the underlying felony of the capital murder, as well as the murder itself. See Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008) (citing Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003)).

As his second ground for reversal of the order, appellant asserts that he was denied due process of law when the prosecutor knowingly used the false testimony of Tina Jefferson to obtain his conviction. He alleges that Jefferson was threatened with revocation of her probation if she did not testify that she had heard appellant talk about his involvement in the crime. Appellant contends that Jefferson recanted her testimony after he was convicted, and, in themotion to supplement his brief in this appeal, appellant asks that he be permitted to add Jefferson's affidavit to the brief in which she attests that she was coerced into testifying.

At trial, Jefferson was questioned vigorously by counsel for appellant. The circumstances surrounding her reluctance to testify, including her fear that her probation would be revoked if she declined to testify and her attempts to avoid testifying, were brought out both in direct and cross-examination. As raised by appellant, the allegation of Jefferson's recanted testimony amounted to an attempt to refute whatever evidence was adduced at trial by means of Jefferson's testimony. Rule 37.1 is not a means to challenge evidence. Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987); see also Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).

With respect to appellant's desire to add Jefferson's affidavit to the addendum to his brief, this court does not consider any item that was not before the trial court when it entered its order on the petition for postconviction relief. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). Accordingly, the motion is denied.

The remainder of appellant's points for reversal of the order are concerned with the effectiveness of his attorney. We first note that appellant urged the trial court to consider that counsel's errors, taken as a whole, amounted to ineffective assistance of counsel. We have repeatedly held, however, that the concept of cumulative error is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was afforded effective assistance of counsel. Williams, 369 Ark. 104, 251 S.W.3d 290; Howard, 367 Ark. 18, 238 S.W.3d 24; Weatherford v. State, 363 Ark. 579, 215 S.W.3d 642 (2005); Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999); see also State v. Franklin, 351 Ark. 131, 89 S.W.3d 865 (2002) (holding that it was reversible error forthe trial court to consider cumulative error in assessing claims of effective assistance of counsel).

When considering an appeal from a circuit court's denial of a Rule 37.1 petition on allegations of 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 the circuit court clearly erred in holding that counsel's performance was not ineffective. Anderson v. State, 2011 Ark. 488, ___ S.W.3d ___ ; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Howard, 367 Ark. 18, 238 S.W.3d 24.

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, 466 U.S. at 686. 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, 369 Ark. 104, 251 S.W.3d 290. 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. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, ___ S.W.3d ___ (per curiam).Petitioner must identify specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Isom v. State, 2010 Ark. 495, 370 S.W.3d 491. Conclusory statements that counsel was ineffective cannot be the basis of postconviction relief. Anderson, 2011 Ark. 488, ___ S.W.3d ___ . The petitioner must show 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. Howard, 367 Ark. 18, 238 S.W.3d 24. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language "the outcome of the trial" refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result...