McGhee v. State
| Decision Date | 25 April 2002 |
| Docket Number | 00-760 |
| Citation | 72 S.W.3d 867 |
| Parties | JASON McGEHEE, APPELLANT, VS. STATE OF ARKANSAS, APPELLEE,SUPREME COURT OF ARKANSAS Opinion Delivered 25 April 2002 APPEAL FROM THE BOONE COUNTY CIRCUIT COURT, NO. CR99-314A, HON. ROBERT MCCORKINDALE, II, JUDGE, AFFIRMED. JIM HANNAH, Associate Justice Jason McGehee appeals the trial court's denial of his petition for postconviction relief. His prior appeal from the denial of his petition for postconviction relief was reversed and remanded for the trial court to make the specific findings of fact and conclusions of law required under Ark. R. Crim. P. 37.5, and due to a flagrantly deficient abstract. McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). McGehee's convictions on capital murder and kidnapping, and respective sentences of death and life imprisonment, were affirmed in McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999) ("McGehee I"). McGehee asserts five separate errors by counsel that he alleges required the trial court to find he is entitled to relief under Rule 37. More particularly, McGehee asserts ineffective assistance of counsel in: 1) failure to request a jury instruction declaring that Candace Campbell and Robert Diemert were accomplices to the capital murder; 2) failure to seek a similar ruling from the trial court as a matter of law; 3) failure to raise the issue of the constitutionality of his sentence given that others similarly involved were sentenced to lesser terms; 4) failure to raise on direct appeal the issue of the denial of transfer where co-defendant Benjamin McFarland had just been convicted of Melbourne's murder in Baxter County; and 5) abandonment of the issue of consideration of victim-impact evidence in the sentencing phase. We find no reversible error and affirm the denial of the petition for postconviction relief. Facts This case arose from the murder of fifteen-year-old John Melbourne, Jr. In August of 1996, Melbourne was acquainted with Jason McGehee, Benjamin McFarland, Christopher Epps, and Candace Campbell, all of whom |
| Court | Arkansas Supreme Court |
Jason McGehee appeals the trial court's denial of his petition for postconviction relief. His prior appeal from the denial of his petition for postconviction relief was reversed and remanded for the trial court to make the specific findings of fact and conclusions of law required under Ark. R. Crim. P. 37.5, and due to a flagrantly deficient abstract. McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). McGehee's convictions on capital murder and kidnapping, and respective sentences of death and life imprisonment, were affirmed in McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999) ("McGehee I").
McGehee asserts five separate errors by counsel that he alleges required the trial court to find he is entitled to relief under Rule 37. More particularly, McGehee asserts ineffective assistance of counsel in: 1) failure to request a jury instruction declaring that Candace Campbell and Robert Diemert were accomplices to the capital murder; 2) failure to seek a similar ruling from the trial court as a matter of law; 3) failure to raise the issue of the constitutionality of his sentence given that others similarly involved were sentenced to lesser terms; 4) failure to raise on direct appeal the issue of the denial of transfer where co-defendant Benjamin McFarland had just been convicted of Melbourne's murder in Baxter County; and 5) abandonment of the issue of consideration of victim-impact evidence in the sentencing phase.
We find no reversible error and affirm the denial of the petition for postconviction relief.
This case arose from the murder of fifteen-year-old John Melbourne, Jr. In August of 1996, Melbourne was acquainted with Jason McGehee, Benjamin McFarland, Christopher Epps, and Candace Campbell, all of whom were older than he was. They were occupying a house in Harrison and ranged in age from seventeen to twenty-one years old. The facts show that McGehee was the twenty-one-year-old and the leader of the group.
McGehee moved into the house in Harrison while it was still being rented by Robert Diemert. However, Diemert moved shortly thereafter and ceased paying rent. Nonetheless, McGehee remained in the house, and the others moved in with McGehee. Melbourne stayed the night there occasionally. There was no power at the house, and the group apparently financed their purchase of food, alcohol, and drugs by stealing property and passing stolen checks.
On August 19, 1996, Melbourne was sent by McGehee to obtain cash by providing a stolen check made out for more than the amount required to purchase shoes. Melbourne made two attempts at Cooper Store in Harrison and was able to purchase shoes on the second attempt. The store owner became suspicious and called the bank. Upon determining that the check was stolen, the store owner called police who picked up Melbourne and Anthony Page and questioned them. Melbourne told the officers about stolen property and checks that could be found at and near McGehee's house. Melbourne was then released into his father's custody but was soon back on the streets in downtown Harrison.
Police proceeded to the house where they attempted to contact those living there. No one answered the door, and according to Christopher Epps's testimony, the police proceeded directly to the stolen items including the stolen checks under the house. The police located the stolen property. This activity by police was observed by McGehee and the others who were hiding inside the house.
Later that night, John Melbourne, Jr., was murdered. The facts show escalating events that commenced with the visit by police and culminated with Melbourne's death.
After the police left upon finding the stolen goods, the group at the house agreed that Melbourne had "snitched." The facts show that the group then agreed that Melbourne needed to be taught a lesson. They decided that upon Melbourne's return, they would beat him to teach him not to "snitch."
Anthony Page testified that the group was always talking about beating someone. McFarland and Epps found Melbourne in town and asked him to return to the house, which he did. Upon his return, Melbourne was attacked by Epps as he spoke with McGehee about his arrest. Then McGehee began to beat Melbourne as well. At this point, Melbourne was being beaten with fists and also being kicked. McFarland joined in, as did Campbell. Melbourne was stripped naked, and the assault continued. There was some evidence that Campbell sprayed him in the face with Lysol and burned him with a candle.
This initial beating lasted about an hour and a half or possibly two hours. The evidence fails to show that there was any discussion of killing Melbourne throughout this time. The first mention of death in the evidence comes shortly thereafter from a conversation between McGehee and Charla Bright. Bright was their neighbor who came over twice as she heard the noises of Melbourne being beaten. She observed Melbourne as he was being assaulted. She testified that she was later assured by McGehee that Melbourne would not be hurt. However, she also testified that MeGehee told her that if this had occurred in a bigger city, he would be killed for what he had done. McGehee told her Melbourne had "narked them out." The next mention of death was in a car on a trip to Utah that included a stop in Omaha, Arkansas. The trip was undertaken because both McGehee and Epps were wanted by the police and were now more fearful of arrest because of the police visit to their home. According to Epps's testimony, they overheard the police use their names while hiding from the police in the house as the police searched for the items they were told of by Melbourne. Near the close of the two-hour beating, Diemert arrived. He had a car. Diemert testified that McGehee had discussed moving to Utah with him previously, and when McGehee suggested that they go that night, he agreed.
By the time Diemert arrived, McGehee had allowed Melbourne to put his shirt and shorts on. Diemert testified that as they loaded the car he was unaware that Melbourne had his hands bound. Bright testified she heard the group leave that night.
They then left for Utah, but headed first for a house in Omaha that McGehee's uncle had rented until recently. According to Campbell's testimony, she understood they were going to the house in Omaha to leave McFarland, Epps, and Melbourne there. According to Epps's testimony, they were going to leave Melbourne there.
Campbell testified that during the ride to Omaha, she was sitting in McGehee's lap in the front passenger seat, and someone in the back seat asked Melbourne how it felt to know he was going to die. Again, according to Campbell's testimony, upon their arrival in Omaha, they took Melbourne in the house there. He was stripped naked again, and the assault on Melbourne began again. Everyone present was engaged in the assault on Melbourne. According to Diemert, Melbourne was kicked, hit with fists, hit with a box fan, and struck with a piece of wood used like a bat. Diemert also testified that a butcher knife was placed at Melbourne's throat. According to Epps's testimony, the butcher knife was placed at Melbourne's stomach. Diemert further testified that Campbell kicked and then burned Melbourne's genitals with a candle. Campbell testified that during this beating McGehee asked Melbourne how it felt knowing he was going to die. Melbourne attempted escape but was grabbed and brought back.
It appears the group decided to take a break from their brutal assault, and they went outside to have a smoke. According to Campbell's testimony, Epps was guarding Melbourne while the rest talked outside. Again, according to Campbell, McGehee asked McFarland if he was going to take care of Melbourne, which Campbell understood meant they intended to kill him. She testified that McFarland was hesitant, but that McGehee was suggesting they get rid of Melbourne. Campbell testified further that then she and Diemert were told to go wait in the car, which they did. Diemert testified that McGehee led Melbourne down a path into the woods. McFarland and Epps followed along. At this time, Melbourne again had his hands bound and had not been allowed to dress. Again according to Diemert, the three returned about thirty minutes later without Melbourne.
McGehee's conviction and sentence were affirmed by a decision of this court handed down June 17, 1999. Pursuant to Ark. R. Crim. P. 37.5(k) "Special Rule for Persons Under Penalty of Death," Rule 37.5 is applicable to McGehee because he became eligible to file a petition under Rule 37.2 (c) after March 31, 1997. A five-page order setting out findings of fact and conclusions of law is provided. Therein, the trial court discusses each issue raised by McGehee and makes specific findings and conclusions. The trial court denied McGehee's petition.
Where ineffective assistance of counsel is asserted, the reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Thomas v State, 330 Ark. 442, 954 S.W.2d 255 (1997). In order to rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In determining a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). This court will not reverse the...
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