Jeffers v. State, CR

• Decision Date: 24 October 1983
• Docket Number: No. CR,CR
• Parties: Cecil Ray JEFFERS, Appellant, v. STATE of Arkansas, Appellee. 79-213.
• Court: Arkansas Supreme Court

Page 869

658 S.W.2d 869

280 Ark. 458

Cecil Ray JEFFERS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 79-213.

Supreme Court of Arkansas.

Oct. 24, 1983.

Henry C. Kinslow, El Dorado, for appellant.

Steve Clark, Atty. Gen. by Matthew Wood Fleming, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

The appellant was found guilty of the crimes of rape, breaking and entering and theft of property. He appealed and the convictions were affirmed. Jeffers v. State, 268 Ark. 329, 595 S.W.2d 687 (1980). We then granted his petition to seek post-conviction relief based on the allegation of ineffective assistance of counsel. The circuit court held a Rule 37 hearing and denied relief. We affirm. Jurisdiction is in this court pursuant to Rule 29(1)(b) and (e).

Appellant argues nine points of appeal. One of them is not related to the allegation of ineffective assistance of counsel, the only ground upon which we granted permission to proceed, and we do not consider that point. Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983).

Counsel is presumed effective and, for a petitioner to prove otherwise, he must: (1) overcome the presumption; (2) demonstrate that he was prejudiced by the conduct of his counsel; and (3) prove by clear and convincing evidence that the prejudice was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).

Appellant first argues that his counsel failed to properly conduct voir dire of the jurors or alternatively failed to move for a new trial on the grounds of juror bias. He does not abstract the record from the original trial and, at his post-conviction hearing, presented no evidence of the alleged failure to conduct voir dire. Our own examination of the original record reveals the following occurred:

THE COURT: Are any of you biased or prejudiced for or against Mr. Jeffers? Do any of you know of any reason why you could not serve in this case on the jury and try these cases as a juror and render a fair and impartial verdict based entirely upon the law and the evidence? If you know of any reason why you cannot, please hold up your hand. I see no hands.

All right. Now, how do you gentlemen--how would you like to arrive at a jury panel?

MR. GIBSON: It makes no difference to the State.

THE COURT: Mr. Cashion, do you have any--

MR. CASHION: I'd rather call them individually

THE COURT: You'd rather call them individually?

MR. CASHION: Yes, sir.

THE COURT: All right. Do you want the jury to go to the other courtroom and examine them one at a time?

MR. CASHION: I would prefer that.

THE COURT: All right. Mr. Sheriff, take all the jury except Mrs. Pamela Ann Smith. She's the first one.

Members of the jury, go with the Sheriff and go into the other courtroom there and you will be called back.

The individual questioning of each juror was not reported but there is no record indicating that it did not occur. We find no merit in the contention that counsel failed to properly conduct voir dire.

Appellant alternatively contends that counsel improperly failed to move for a new trial on the ground of juror bias. He asks that we assume five members of the panel were biased because they also sat as jurors in a trial for the murder of the prosecutrix's sister. The appellant, in his brief, admits "Although asked by the court, the jurors denied knowing Mrs. Stephenson or being biased in any fashion."

Appellant's argument fails because he has not demonstrated bias on the part of any juror. Jurors are assumed to be unbiased and the burden of demonstrating actual bias of any juror is on the petitioner. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Appellant next contends that actual bias need not be proven under the federal standard. He cites the following paragraph from U.S. v. Dean, 667 F.2d 729 (8th Cir.1982):

We conclude that, generally speaking, post-verdict orders for new trials on account of suspected but unproven juror bias are, and should be, granted only where the probability for juror bias is so great that in fairness it cannot be ignored. Thus, we are inclined not to make a distinction between possible prejudice and actual prejudice when addressing the issue of waiver. See [ United States v.] Brumbaugh, supra, 471 F.2d [1128] at 1130-31 [ (6th Cir.1973) ] (McCree, J., concurring.)

We will not now attempt to distinguish between possible prejudice and actual prejudice because there is no great possibility of jury bias in this case.

Appellant next argues that his attorney should have moved for a change in venue. He cites no pretrial publicity necessitating a change of venue but, with no record whatsoever, argues, "It is well known that the populace justly sympathized with" the prosecutrix. Appellant's attorney at the original trial testified at the post-conviction hearing that he considered the motion but decided against it. It was a matter of trial strategy and within the realm of counsel's professional judgment and is precluded as a matter of relief. Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981). Further, the trial court's finding that the jury was impartial and no prejudice was presented is not clearly erroneous.

The appellant insists that counsel improperly failed to raise the affirmative defense of self-induced intoxication. Appellant admitted that, while normally he was a "business man," he did break into the prosecutrix's home and take the property as charged.

A. 'Cause I've never really broke into any houses before. Mainly I was a business.

Q. Business burglar?

A. Yes, sir. I'm a safe burglar.

Q. You're a safe burglar?

A. Yes, sir. And just business.

However, he consistently stated that he had completed the burglary and was just outside of prosecutrix's home when someone else committed the crime of rape. Under this set of facts, it is hard for us to imagine a worse strategy than the one appellant now proposes--that appellant, whose business was admitted to be burglary, wasn't in the residence when the rape took place and he did not commit the rape, but, if he was in the house when the rape took place and if he was the one who committed the rape, he was too drunk to have formed the specific intent to commit the crime. The failure to defend the charge of rape on the basis of inconsistent defenses normally is not evidence of ineffective counsel. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). Similarly, we cannot say that the decision not to use the same defense to the charge of breaking and entering or theft was ineffective assistance, even if it is a valid defense to those crimes. See Liebman, Voluntary Intoxication as a Defense to Crime, 1983 Ark. Law Notes 29.

Appellant next argues that counsel failed to object to a highly improper closing argument by the prosecuting attorney. Appellant offers no factual evidence in his abstract to support the claim. We are offered only conclusory allegations and they will not warrant post-conviction relief. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). However, of our own volition, we have examined the original record on redirect examination by the prosecuting attorney; the victim answered as follows:

Q. No, you have testified in this case and you remember what happened that night; you have seen the defendant here today; you have heard him testify. Is he the one that raped you?

A. I think he is.

Q. Are you sure of that?

MR. CASHION:

She answered your question, Mr. Gibson.

A. There is no doubt in my mind that it is Cecil Ray.

Q. I want to make sure that you know what you are saying.

A. Yes, sir.

Q. There is no doubt in your mind?

A. No, sir.

Later, after the state had rested a juror asked: "I would like to ask Mrs. Stephenson if it was the same voice."

The court and counsel conferred and the jury was advised that the case had been developed by both the state and defendant and they would have to base their verdict upon the evidence which had been submitted. In the prosecutor's closing argument, he stated:

Ladies and gentlemen of the jury, I am pleased to see that we have each completed the testimony necessary to decide this case today. I will try to go back over the facts as I recall them and give you the State's version of this case.

I wish that I was in a position to know all the questions that you might have in your minds. There's never been a case, I guess, that we ever did put on everything that would answer every single question.

But we did here, one of two questions--that one of the jurors had. And that's the reason I put Brenda Stephenson back on the stand at the close of the defendant's testimony.

Rather than ask her a point blank question and try to lead her and tell her what to say, I asked her the question, "Now, Brenda, you have heard the testimony of the defendant, you have seen him here today; you've seen his size." She's heard his voice here today.

Then I asked her, "Are you convinced or did Cecil Jeffers rape you? Is he the one?" She has been in here listening to his testimony, seen his demeanor on the stand, seen how he acts, just like you have, and she heard his voice before. I feel like that if there was any doubt in her mind that that was his voice she heard that night, she would have told you.

She told you that it was Cecil Jeffers. This is the only and first time she's had a real good opportunity to listen to him talk under normal conditions.

The prosecutor never did state, as appellant urges, that the victim had identified the appellant as her attacker by recognizing and identifying his voice. He merely went over much of the testimony of the victim and said that "she heard his voice before" and that she heard "his voice here today."

The closing argument of the prosecution did not go beyond the reasonable inferences and deductions to be drawn from the testimony.

Further, the original record reveals that the jury was instructed that "opening statements, remarks during trial, and closing arguments of the attorneys are not...