Johnson v. State, CR

• Decision Date: 19 June 1995
• Docket Number: No. CR,CR
• Citation: 321 Ark. 117,900 S.W.2d 940
• Parties: David Wayne JOHNSON, Appellant, v. STATE of Arkansas, Appellee. 94-960.
• Court: Arkansas Supreme Court

Page 940

900 S.W.2d 940

321 Ark. 117

David Wayne JOHNSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-960.

Supreme Court of Arkansas.

June 19, 1995.

Gerald A. Coleman, West Memphis, Didi H. Sallings, Ark. Pub. Def. Comm. and Jeff Rosenzweig, Little Rock, for appellant.

Olan W. Reeves, Senior Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

David Johnson was convicted of capital murder and was sentenced to death by lethal injection. Both his conviction and sentence were affirmed on direct appeal. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). We stayed our mandate in order for Johnson to petition the Supreme Court of the United States for a writ of certiorari. The Supreme Court denied the writ. Johnson v. Arkansas 505 U.S. 1225, 112 S.Ct. 3043, 120 L.Ed.2d 911 (1992). Johnson filed a petition for relief under A.R.Cr.P. Rule 37 and for a writ of error coram nobis. The circuit court denied relief. Johnson appeals. We affirm the denial of postconviction relief.

I.

Appellant's first assignment is that the trial court erred in denying relief because his attorney had a conflict of interest. Appellant's attorney, Robert Smith, represented Derrick Gilbert on an unrelated charge, and Gilbert did not testify as a witness for appellant. Appellant contends that Smith did not force Gilbert to testify because he was protecting Gilbert. The facts do not support this argument, and the trial court correctly ruled that appellant did not prove ineffective assistance of counsel as a result of a conflict of counsel's interest. See Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988).

Prejudice will be presumed from a conflict of counsel's interest only when the defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected his lawyer's performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Petitioner had the burden of proving a conflict of interest and showing its adverse effects. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). A petitioner is not entitled to relief under the Cuyler test unless he satisfies both prongs of the test. Salam v. Lockhart, 874 F.2d 525, 527-28 (8th Cir.1989) (citing Lightborne v. Dugger, 829 F.2d 1012, 1023 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988)). The prejudice must be real and have a demonstrable detrimental effect and not merely have some abstract or theoretical effect. Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir.1990).

At the trial on the merits, appellant proffered the testimony of Derrick Gilbert, which was that he would testify that Bobby Jewell Ford told him that he sold some property to appellant that was stolen from the crime scene on the night of the murder. The trial judge advised appellant's attorney, Smith, that he would sustain a hearsay objection to such testimony. A deputy prosecutor stated that, since Gilbert had told her earlier that he knew nothing about the crime, he would be committing perjury if he gave such testimony, and, consequently, he might need an attorney. Appellant's attorney, Smith, stated that he had a "problem" because he represented Gilbert in a different case. The trial judge advised Gilbert to "get out of here before you get yourself in trouble."

At the postconviction hearing, Gilbert testified that Ford had told him that he thought he had killed someone and that he had obtained drugs from appellant in exchange for some items that were stolen from the crime scene. Gilbert further testified that Smith had initially represented him on an unrelated charge, but had failed to appear at his trial, and another attorney ultimately represented him. Gilbert admitted that he told the deputy prosecutor he did not know anything about the stolen items, but said that the reason he said that was because the deputy prosecutor indicated that he was a suspect in the murder case and he was afraid he might be charged with capital murder. Finally, Gilbert testified that he told a falsehood when he told the prosecutors he knew nothing about appellant's case.

Smith's representation of Gilbert would include a duty to protect Gilbert from perjuring himself or from implicating himself in the murder. Arguably, this is what Smith meant when he stated at trial that he had a problem because he also represented Gilbert. However, even assuming this shows an actual conflict, it does not prove that the conflict had a real and demonstrable effect on Smith's performance. See Ford, 296 Ark. at 16, 753 S.W.2d at 262. Appellant did not show the conflict had an adverse effect because: (1) Smith did try to get Gilbert to testify for appellant, and (2) the trial judge ruled that the testimony would be inadmissible hearsay. A.R.E. Rule 801.

In the postconviction proceeding, appellant contended that the testimony was admissible under A.R.E. Rules 804(a)(2) and 804(b)(3), and under Chambers v. Mississippi, 410 U.S 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and, if Smith had not had the conflict of interest, he would have argued the testimony was admissible. The argument is without merit because, in the posttrial proceeding, appellant did not establish that the testimony could have been admitted. It does not fit within a hearsay exception. Rule 804(a)(2) provides a hearsay exception when the declarant persists in refusing to testify about the subject matter of his statement despite an order of the court to do so. The facts do not support this exception because the trial court never ordered Gilbert to testify, and Gilbert never refused to do so. Rather, Gilbert was available, and the trial court ruled the testimony would be hearsay. Rule 804(b)(3) provides that statements against interest are not hearsay when the declarant is unavailable. A.R.E. Rule 804(b)(3). However, the Rule also provides that before a hearsay statement which would exculpate the accused but is against the penal interest of the witness is admitted, the trial court must determine whether the circumstances surrounding the statement are solidly trustworthy. Id. The Rule expressly provides that such a statement is not admissible "unless corroborating circumstances clearly indicate the trustworthiness of the statement." Id. The record reflects that Derrick Gilbert is currently serving a seventy-five year sentence for aggravated robbery, kidnapping, and a drug offense. Bobby Ford, the person who allegedly made the statement against penal interest, was a co-defendant with Gilbert and was also convicted on the aggravated robbery and kidnapping charges. He testified that Gilbert was his "fall partner" and that he robbed hotels and "places" to "get money to buy weed and stuff." He testified that he got to know Gilbert when he was standing on a street corner and Gilbert stole a Wells Fargo vehicle containing $40,000.00. Finally, at the postconviction hearing Ford denied having made the statement against penal interest. The trial court heard the witnesses, observed them, and expressly found:

[T]hat Bobby Ford is not a credible witness as he obviously has problems with his mental faculties, including his ability to relate events. This court also finds that Derrick Gilbert is not a credible witness either, based upon the testimony of the deputy prosecutors, Melody LaRue and Mark Fraiser, concerning their conversations with him in the jail, as well as his testimony before this court.

Appellant contends that at the trial Charles Whitfield could have corroborated the alleged statement against penal interest, but that Smith did not use him as a witness. To the contrary, Smith testified that he never heard the name Charles Whitfield until the postconviction hearing. Moreover, appellant did not call Whitfield as a witness at the postconviction hearing. Finally, Bobby Ford testified that he did not see or speak to Charles Whitfield the night appellant committed the murder, and he denied making any statement against penal interest to Whitfield. In sum, appellant failed to show that the testimony was admissible as an exception to hearsay, and the unreliable hearsay evidence was not admissible under Chambers. Thus, appellant failed to show that Smith acted in favor of Gilbert to the detriment of appellant because of a conflict of interest.

II.

Appellant next argues that the trial court erred in refusing to rule that Smith was ineffective at trial. The law on this subject is well settled. Counsel is presumed to be competent. Russell v. State, 302 Ark. 274, 789 S.W.2d 720 (1990). A reviewing court indulges a strong presumption that counsel's conduct falls within a wide range of "reasonable professional assistance." Missildine v. State, 314 Ark. 500, 508, 863 S.W.2d 813 (1993). To prevail on an argument of ineffective assistance, an appellant must show not only that counsel's performance fell below an objective standard of competence, but he must also show that, but for counsel's errors, there is a reasonable probability that the jury would have decided differently. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064-65. A general claim of ineffectiveness with no showing of actual prejudice will not warrant relief. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). Judicial review of counsel's performance is highly deferential, and "a fair assessment of counsel's performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Missildine, 314 Ark. at 508, 863 S.W.2d at 814. A court considering a claim of ineffective assistance must view it through the perspective of the totality of the evidence put before the jury. Id. In reviewing a trial court's denial of postconviction relief, we will affirm unless the ruling...