Lee v. State, CR 08-160.

• Decision Date: 07 May 2009
• Docket Number: No. CR 08-160.,CR 08-160.
• Citation: 308 SW 3d 596
• Court: Arkansas Supreme Court
• Parties: Ledell LEE, Appellant, v. STATE of Arkansas, Appellee.

308 SW 3d 596

2009 Ark. 255

Ledell LEE, Appellant, v.STATE of Arkansas, Appellee.

No. CR 08-160.

Supreme Court of Arkansas.

May 7, 2009.

Durrett & Coleman, by: Gerald A. Coleman; and Ford, Glover and Roberts, by: Danny W. Glover, Wynn, West Memphis, for appellant.

Dustin McDaniel, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., for appellee.

ROBERT L. BROWN, Justice.

On February 9, 1993, twenty-six year-old Debra Reese was found murdered.She had been beaten approximately thirty-six times with a tire thumper and strangled.The appellant, Ledell Lee, was arrested and charged with capital murder.His first trial ended in a mistrial in 1994 because the jury could not reach a unanimous verdict.The State then tried Lee again, and a jury found him guilty of capital murder on October 12, 1995, and sentenced him to death by lethal injection on October 16, 1995.This court affirmed the conviction and sentence on direct appeal.Lee v. State,327 Ark. 692, 942 S.W.2d 231(1997)(Lee I).

Lee subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37 in which he alleged that his trial attorneys had rendered ineffective assistance of counsel during the guilt and penalty phases of his second trial.The circuit court held two separate hearings on the matter, on January 20 and 21, 1999, and on March 30, 31 and April 1, 1999.Following these hearings, the circuit judge denied Lee's petition, and this court affirmed.Lee v. State,343 Ark. 702, 38 S.W.3d 334(2001)(Lee II).Petitions for habeas corpus relief in federal court then followed, which culminated in a stay of those proceedings until an issue related to impairment of counsel at the first Rule 37 hearings in 1999 could be resolved by state courts.

On August 30, 2005, Lee moved this court to recall the mandate in Lee II on grounds that his attorney in the postconviction proceedings rendered ineffective assistance of counsel.Lee maintained, and this court later found, that his postconviction attorney suffered from a substance-abuse problem and had been intoxicated during the initial Rule 37 proceedings in 1999.As a result, this court granted Lee's motion to recall the mandate and remanded the matter to the circuit judge for further proceedings.Lee v. State,367 Ark. 84, 238 S.W.3d 52(2006)(Lee III).

After this court's decision in Lee III, Lee filed an amended petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.The circuit judge held another hearing on August 28, 2007, and subsequently denied Lee's petition and entered findings of fact and conclusions of law on November 21, 2007.It is from these findings that Lee now appeals.¹

It is well established that the right to counsel, guaranteed by the Sixth Amendment to the United States Constitution, is "the right to effective assistance of counsel."See, e.g., Strickland v. Washington,466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).The United States Supreme Court has held that the question in determining whether an attorney rendered constitutionally ineffective assistance of counsel is "whether the 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."Id.Therefore, to prove a right to postconviction relief based on a claim of ineffective assistance of counsel, a petitioner must show (1) that "counsel's representation fell below an objective standard of reasonableness," and (2) that counsel's particular errors "actually had an effect on the defense."Id. at 688, 693, 104 S.Ct. 2052.

It is also well settled that there is a strong presumption that the trial counsel's representation falls within the wide range of reasonable professional assistance.SeeWainwright v. State,307 Ark. 569, 574, 823 S.W.2d 449, 451(1992).The appellant has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment.Id.According to the second prong of the Strickland test, even if counsel's conduct is shown to be professionally unreasonable, the judgment will stand unless the petitioner can demonstrate that the error had an actual prejudicial effect on the outcome of the proceeding.Strickland,466 U.S. at 691, 104 S.Ct. 2052.In short, the appellant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694, 104 S.Ct. 2052.

On review, this court will not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous or clearly against the preponderance of the evidence.See, e.g., Gaye v. State,2009 Ark. 201, 307 S.W.3d 1.A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made.Id.

As a preliminary matter, we note that the State urges this court to apply the doctrine of law of the case to a number of Lee's arguments on appeal.The State specifically contends that Lee makes the same arguments as were made in Lee II, and the evidence before this court is materially the same as what we considered in Lee II.The doctrine of law of the case provides that "the decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review."See, e.g., Zawodniak v. State,339 Ark. 66, 68, 3 S.W.3d 292, 294(1999).Law of the case does not apply in the instant appeal because this court recalled the mandate of Lee II in Lee III and reopened Lee's postconviction proceeding based on our determination that Lee had not had the benefit of effective counsel at the Rule 37 proceedings in 1999.We reject the State's argument on this point.

I.The Guilt Phase

Lee was represented during the guilt phase of his trial by William Simpson, Chief Public Defender for the Sixth Judicial District, and Bret Qualls, an attorney with the State Trial Public Defender's Office.

A.Conflict of Interest²

Lee claims initially on appeal that the circuit judge erred in finding that he failed to show that his attorneys' performance was affected by an actual conflict and that he had waived any conflict that may have existed.

The surrounding facts for this point are these.After Lee was charged with capital murder for the death of Debra Reese, he became a suspect in several other crimes — a second capital murder case and three rape cases — for which he was later charged.³The Reese murder was assigned to Pulaski County Circuit Court, Second Division, while the second capital murder case was assigned to the Seventh Division, and the three rape cases were assigned to the First Division.Simpson and Qualls were appointed to represent Lee in all five cases.

As already noted, in 1994, the first trial in the Reese murder ended in a mistrial because of a hung jury.During that time, the other four cases against Lee were pending.In early February 1995, Lee, acting pro se, moved First Division JudgeMarion Humphrey to relieve Simpson and Qualls as counsel in the rape cases based on an alleged conflict of interest.After a hearing on the pro se motion, on February 17, 1995, Judge Humphrey, without stating his reasons, found that a conflict existed and granted Lee's request to have Simpson and Qualls relieved as counsel in the rape cases.Judge Humphrey then appointed Dale Adams to represent Lee in those cases.⁴

Following Judge Humphrey's decision, Simpson and Qualls sought a hearing in Second Division to determine the status of the public defender's office in the Reese murder case.On February 22, 1995, Judge Chris Piazza heard the matter and stated that the conflict in the First Division did not govern the issue.He said: "Judge Humphrey can't declare there is a conflict up there and have any bearing on this case."⁵On March 8, 1995, Judge Piazza found that there was no conflict between Lee and his attorneys and again refused to relieve Simpson and Qualls.

Judge Piazza held two other hearings during which Simpson and Qualls requested that they be relieved as counsel, and in both cases, Judge Piazza refused their requests.⁶Simpson then filed a petition for writ of certiorari with this court on April 25, 1995, in which he alleged that there was "an intolerable conflict between himself and Lee."He asked this court to relieve Qualls and him as counsel in the Reese murder case.This court denied the petition and declined to hold that Judge Piazza "committed a plain, manifest, clear, great, or gross abuse of discretion in refusing to relieve the public defender."Simpson v. Pulaski County Cir. Ct.,320 Ark. 468, 899 S.W.2d 50(1995).

On appeal, a criminal appellant is entitled to a presumption of prejudice only when he demonstrates that an actual conflict of interest adversely affected his lawyer's performance.SeeSheridan v. State,331 Ark. 1, 4, 959 S.W.2d 29, 31(1998)(citingStrickland,466 U.S. 668, 104 S.Ct. 2052).The petitioner has the burden of proving a conflict of interest and of showing its adverse effects.Id.(citingDumond v. State,294 Ark. 379, 743 S.W.2d 779(1988)).The prejudice must be real and have some demonstrable detrimental effect and not merely have some abstract or theoretical effect.Id.

Lee argues that there was a conflict of interest in the instant case that entitles him to "automatic relief."It is Lee's specific contention in this appeal that, in circumstances in which a criminal defendant or his lawyer alleged a conflict of interest before trial or at trial, the circuit judge must relieve counsel and appoint separate counsel or take adequate steps to ascertain whether the risk of an actual conflict of interest is too remote to warrant...