Lambert v. State

• Decision Date: 05 April 2012
• Docket Number: No. CR 11-1251,CR 11-1251
• Citation: 2012 Ark. 150
• Parties: COREY LAMBERT APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Supreme Court

2012 Ark. 150

COREY LAMBERT APPELLANT

v.STATE OF ARKANSAS APPELLEE

No. CR 11-1251

SUPREME COURT OF ARKANSAS

Dated: April 5, 2012

PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S

BRIEF AND FOR USE OF TRIAL TRANSCRIPTS [JEFFERSON COUNTY

CIRCUIT COURT, CR 2008-875, HON. JODI RAINES DENNIS, JUDGE]

APPEAL DISMISSED; MOTION MOOT.

PER CURIAM

Appellant Corey Lambert has lodged an appeal in this court from an order that denied his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2011). He filed a motion in which he seeks an extension of time to file his brief and the use of the trial transcript. Because appellant's petition for postconviction relief was clearly without merit, we dismiss the appeal, and the motion is moot.

An appeal from an order that denied a petition for a postconviction remedy will not be permitted to go forward where it is clear that the appellant could not prevail. Watson v. State, 2012 Ark. 27 (per curiam); Riddell v. State, 2012 Ark. 11 (per curiam); Hendrix v. State, 2012 Ark. 10 (per curiam); Croft v. State, 2010 Ark. 83 (per curiam); Crain v. State, 2009 Ark. 512 (per curiam). Appellant stated four grounds for relief in his petition. All of appellant's stated grounds allege ineffective assistance of counsel in connection with the State's failure to introduce certain actual physical evidence—a gun and some cash—during appellant's jury trial. Appellantdid not establish a basis to support a finding of ineffective assistance on those claims.

The Arkansas Court of Appeals affirmed appellant's convictions on charges of attempted murder in the first degree, aggravated robbery, and theft of property.¹ Lambert v. State, 2011 Ark. App. 258. The evidence presented at trial was that, on a day in 2008, a man wearing a red jacket and red pants came into the Stitch and Clean in Pine Bluff, demanded money from the employee behind the counter at gun point, and left on foot with all the money in the cash register. Minutes later, while an officer was still questioning the employee, appellant—wearing a red jacket and red pants—was apprehended a short distance away.

A witness, who had noticed appellant as he walked in front of her house after the robbery, testified that she saw a police officer in a marked car approach. When the police officer stopped the car and got out, appellant fired at the officer, and the officer fired back, wounding appellant. The employee from the cleaners came to the scene of the shooting and identified appellant as the robber. Money taken from appellant's jacket pocket at the shooting scene, which matched what was taken in both amount and denominations, was returned to the owner of the cleaners after the scene was processed by the police.

During testimony at appellant's trial, the Stitch and Clean employee and the officer who took appellant into custody each identified pictures of a gun that had been photographed on the ground at the scene of the shooting. The testimony indicated that the gun in the photograph was the weapon used in the robbery and the gun fired by appellant at the officer. The photographs were introduced into evidence, but the actual gun was not. Photographs thatdepicted the money found in the pocket of appellant's red jacket at the scene of the shooting were also introduced into evidence.

In his Rule 37.1 petition, appellant alleged that counsel was ineffective because she failed to object to the introduction of the photographs of the gun, because she failed to object to the introduction of the photographs of the money, because she failed to make a pretrial motion that sought to limit the scope of testimony in order to prevent references to the gun or the money, and because she failed to object at trial to testimony concerning the gun or the money. Appellant asserted in support of these claims (1) that the evidence should not have come in because he disputed that he had either the gun or the money when he was taken into custody, (2) that counsel should have challenged the chain of evidence, (3) that counsel should have challenged the fact that the State did not produce the gun or the money for examination, and (4) that counsel did not properly cross-examine the officer who took the gun into evidence and returned the stolen money. Appellant did not, however, identify through these assertions any viable basis that counsel could have raised to successfully contest the introduction of the photographs or the testimony.

In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Williams v. State, 2011 Ark. 489, ___ S.W.3d ___. We assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Hale v. State, 2011 Ark. 476 (per curiam). Under the Strickland test, a petitioner raising a claim of ineffective assistance must first 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. Id. In addition, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id.

A defendant making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Miller v. State, 2011 Ark. 114 (per curiam). In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Delamar v. State, 2011 Ark. 87 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

In order to demonstrate prejudice for a failure to object, appellant must have submitted facts to support the proposition that counsel could have raised a specific, meritorious argument and that failing to raise that specific argument would not have been a decision supported by reasonable professional judgment. Simmons v. State, 2012 Ark. 58 (per curiam). Appellant did not identify any meritorious argument...