Johnson v. State

• Decision Date: 01 October 2009
• Docket Number: No. CR 08–561.,CR 08–561.
• Parties: Tyrone Lanell JOHNSON, Appellant,v.STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2009 Ark. 460

344 S.W.3d 74

Tyrone Lanell JOHNSON, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 08–561.

Supreme Court of Arkansas.

Oct. 1, 2009.

Appellant, pro se.Danny R. Williams, North Little Rock, for appellant.Dustin McDaniel, Att'y Gen., by Karen Virginia Wallace, Ass't Att'y Gen., for appellee.PER CURIAM.

In 2005, the prosecuting attorney filed an information charging appellant Tyrone Lanell Johnson with possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia with the intent to use that paraphernalia in the course and furtherance of a felony, i.e., possession of cocaine or possession of marijuana with the intent to deliver. At trial, the court granted a request for directed verdict as to the possession of marijuana with intent to deliver, and reduced the charge to misdemeanor possession. At the close of evidence, the jury was instructed on that charge, possession of cocaine, and possession of drug paraphernalia during the commission of possession of the controlled substance, cocaine. The jury was unable to reach a verdict on the possession of cocaine and marijuana charges, but found appellant guilty of felony possession of drug paraphernalia. Appellant received a sentence of 240 months' imprisonment and a $10,000 fine on the felony possession-of-drug-paraphernalia charge.

The Arkansas Court of Appeals affirmed the judgment. Johnson v. State, CACR 07–260, 2007 WL 3358489 (Ark.App. Nov. 14, 2007). Appellant, through counsel, timely filed in the trial court a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 that was denied following a hearing. Appellant appeals the denial of postconviction relief, raising four points of error by the trial court. We affirm.

In his petition for relief under Rule 37.1, appellant raised six allegations of ineffective assistance of counsel, including allegations that trial counsel failed to request or proffer jury instructions on misdemeanor possession of drug paraphernalia. The trial court found that trial counsel requested all appropriate instructions, that, as a matter of trial strategy, trial counsel did not object to the State's withdrawing a request for a separate misdemeanor drug paraphernalia instruction, that any illegal sentence appellant received had already been corrected, and that appellant had not produced facts to support appellant's assertion that the outcome of the trial would have been different had counsel proceeded differently.

The trial court did not specifically identify in the written order a basis for the finding that counsel had requested all appropriate instructions. There was, however, discussion during the postconviction relief hearing indicating the court understood that no misdemeanor violation for possession of cocaine existed, and the only appropriate possession-of-paraphernalia charge in relation to that charge would have been felony possession, as well.

In his first point on appeal, appellant contends that the trial court erred in finding that appellant was barred as a matter of law from requesting a misdemeanor instruction. In his second point, appellant contends that the trial court erred in finding that all appropriate jury instructions were given. In his third point, appellant contends that the trial court erred in finding that trial counsel's failure to request an instruction on misdemeanor possession of paraphernalia was a reasonable strategic decision. In his fourth and last point on appeal, appellant asserts that the combination of the failure to instruct the jury on misdemeanor possession of paraphernalia and the use of a general verdict form was fundamental error resulting in an unreliable verdict. Appellant's first three points of error are interdependent, in that all three allege that counsel was ineffective for failing to request instructions on the misdemeanor paraphernalia charge.

In an appeal from a trial court's denial of postconviction relief on a claim of ineffective assistance of counsel, the question presented is whether, under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and based on the totality of the evidence, the trial court clearly erred in holding that counsel's performance was not ineffective. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam). 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. Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that this deficient performance prejudiced his defense through a showing that petitioner was deprived of a fair trial. Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam).

Appellant asserts that trial counsel was ineffective for failing to request that the jury be instructed on possession of paraphernalia in relation to the marijuana charge, which would have been a misdemeanor charge, in addition to the instruction on the cocaine charge. He contends in his first point that the State could not, during trial, limit the paraphernalia charge to apply only to use in furtherance of the cocaine charge, when the information reflected both the cocaine and marijuana charges as alternative bases for the paraphernalia charge. Appellant asserts that the trial court could not refuse to give an instruction on a lesser-included offense when there was evidence to support it. Appellant alleges that because possession of marijuana was a lesser-included offense of the charge of possession with intent to sell, appellant was entitled to an instruction on that lesser-included offense as to the paraphernalia charge.

In order to request an instruction on what appellant contends was a lesser-included offense, trial counsel would have had to object to the State's limitation of the paraphernalia charge to the possession of cocaine. Trial counsel testified that he believed it was the State's prerogative to make the decision to limit the paraphernalia instruction and that once it elected to do so, the jury could not find appellant guilty of the misdemeanor paraphernalia charge. At the time of trial, the law was not clear as to whether the State must prove the possession-of-cocaine charge in order to convict on the possession-of-paraphernalia charge. The court of appeals resolved that issue on direct appeal, basing the analysis for the decision on a case that it handed down shortly before rendering its decision on appellant's appeal, and found that the paraphernalia charge was not dependent upon a conviction as to a specific felony possession charge. See White v. State, 98 Ark.App. 366, 255 S.W.3d 881 (2007).

Counsel's testimony indicated that he believed that the chances of success on the paraphernalia charge were good with the instruction limited to the cocaine, that the chances were better than if the instruction included the marijuana offense as an alternative. Counsel testified that he thought the withdrawal of the jury instructions as to the marijuana alternative had the same effect as a nolle prosequi as to the alternative charge. Counsel would not have increased the charges and appeared to be unwilling to sacrifice a chance for acquittal for the possibility of a reduced sentence.

On appeal, appellant argues that the law does not permit the State to limit instruction on a lesser-included offense in the situation presented here, that appellant was entitled to instruction on the paraphernalia charge with the inclusion of the misdemeanor marijuana-possession offense alternative. Appellant asserts that the only evidence submitted at trial concerned the use of the paraphernalia with marijuana, not cocaine, and that the appropriate jury instruction would therefore have used the marijuana alternative as to the paraphernalia charge. He alleges that counsel's trial strategy was not reasonable because counsel incorrectly believed that the felony paraphernalia charge would be reduced to a misdemeanor if the State did not prove the felony possession-of-cocaine charge, and because it placed appellant...