Johnston v. State

• Decision Date: 09 April 2015
• Docket Number: No. CR–14–1114,CR–14–1114
• Citation: 2015 Ark. 162,459 S.W.3d 782
• Parties: Johnathan Johnston, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2015 Ark. 162

459 S.W.3d 782

Johnathan Johnston, Appellant

v.State of Arkansas, Appellee

No. CR–14–1114

Supreme Court of Arkansas.

Opinion Delivered April 9, 2015

Opinion

PER CURIAM

In 2013, appellant Johnathan Johnston was found guilty by a jury of three counts of rape. He was sentenced to 480 months' imprisonment for each count to be served concurrently. We affirmed. Johnston v. State, 2014 Ark. 110, 431 S.W.3d 895.

In 2014, appellant timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013). The trial court denied the petition, and appellant lodged an appeal from that order in this court. He now seeks by pro se motion an extension of time to file his brief-in-chief. Because it is clear from the record that appellant could not prevail if the appeal were permitted to go forward, the appeal is dismissed, and the motion is moot. See Winters v. State, 2014 Ark. 399, 441 S.W.3d 22 (per curiam).

Appellant was charged in 2011 with raping his then nine-year-old daughter between 2006 and 2011. The victim testified that appellant had begun raping her when she was four or five years old during her weekly visitation with him, which was established following her parents' divorce. She stated that the rapes occurred several times during each weekend visit and that appellant raped her vaginally, orally, and anally. The victim further testified that appellant had occasionally used a condom but that he typically ejaculated on her. The victim explained that appellant used threats to obtain her silence, but she decided in 2011 to reveal the abuse. While appellant would normally have the victim change her clothes and shower after the rapes, she decided not to change her underwear before she went home one weekend. After the victim returned home and told her grandmother about the rapes, she was taken to Arkansas Children's Hospital, where she underwent a sexual-assault examination. A swab taken from her vagina tested positive for sperm cells, although the cells were unable to be DNA typed. The underwear that the victim had worn home that weekend was also examined, and appellant's semen was found in the crotch area. His semen was also found on four other pairs of the victim's underwear seized from appellant's home. A forensic sexual-assault examination conducted two weeks later revealed that the victim had a major tear in her hymen that indicated sexual abuse involving penetrating trauma.

In his Rule 37.1 petition, appellant's claim for postconviction relief was that he was not afforded effective assistance of counsel at trial. This court has held that it will reverse the trial court's decision granting or denying postconviction relief only when that decision is clearly erroneous. Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.

When considering an appeal from a trial court's denial of a Rule 37.1 petition based on 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 v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Chunestudy v. State, 2014 Ark. 345, 438 S.W.3d 923 (per curiam).

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, 104 S.Ct. 2052. 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). There is a strong presumption that trial counsel's conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. 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, 386 S.W.3d 477 (per curiam). The petitioner must show that 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. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). 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 unreliable. Id. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Appellant's grounds for postconviction relief under the Rule pertained to counsel's failure to obtain expert witnesses to testify for the defense to combat the evidence adduced by the State that the victim had been repeatedly raped by appellant. He first alleged that counsel was remiss for not obtaining an expert witness who would have testified that the victim's allegations could not have been true because a person of his large size would have caused major physical injury to the child if he had raped her multiple times over several years. He argued that an expert's discrediting of the child's testimony would have had a “serious impact on the guilt and innocence phase of the jury's consideration, and at sentencing had the jury convicted of a lesser included offense.” He further contended that an expert should also have been called to testify that, if the victim had been repeatedly raped as she testified, she would surely have contracted a certain sexually transmitted disease with which he was known to suffer. Appellant did not identify particular witnesses who could have been called to provide the testimony on the lack of physical injury to the victim or the failure of the victim to contract the sexually transmitted disease. He also did not establish that the testimony of either witness would have been admissible into evidence.

Appellant also asserted that counsel should have called a psychiatrist or psychologist as an expert witness in the field of “psychosexual behavior and/or sex therapy.” Again, without identifying any such witness who was available or establishing that the witness's testimony would have been admissible, appellant claimed that the expert could have informed the jury that appellant had never had a desire, propensity, or urge to have sexual contact with a child. Noting that there was incriminating evidence introduced at trial of files on appellant's computer depicting pornographic images, appellant argued that there was no evidence as to who had created the files or who had viewed them.

Appellant did not establish that the failure of counsel to obtain the testimony of any of the three expert witnesses violated the Strickland standard for a showing of ineffective assistance of counsel. This court has held that the objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call a certain witness is to determine whether this failure...