McNichols v. State

• Decision Date: 06 November 2014
• Docket Number: No. CR–13–1135.,CR–13–1135.
• Citation: 2014 Ark. 462,448 S.W.3d 200
• Court: Arkansas Supreme Court
• Parties: James E. McNICHOLS, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. 462

448 S.W.3d 200

James E. McNICHOLS, Appellant

v.STATE of Arkansas, Appellee.

No. CR–13–1135.

Supreme Court of Arkansas.

Nov. 6, 2014.

James E. McNichols, pro se appellant.

Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

Opinion

PER CURIAM.

In 2007, appellant James E. McNichols was found guilty by a jury of two counts of raping his seven-year-old step daughter. He was sentenced to serve an aggregate sentence of 240 months' imprisonment. The Arkansas Court of Appeals affirmed. McNichols v. State, CR–07–1285, 2008 WL 2444722 (Ark.App. Jun. 18, 2008) (unpublished) (original docket no. CACR 07–1285).

After the mandate in the case issued on November 13, 2008, appellant timely filed in the trial court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007).¹ Appellant retained an attorney to represent him in the Rule 37.1 proceeding, and a hearing was held on the petition in 2013. On September 11, 2013, the trial court entered an order dismissing the petition. Counsel for appellant perfected the appeal to this court, and appellant subsequently filed pro se motions seeking to have counsel relieved and for an extension of time to file a pro se brief. The motion to relieve counsel was granted and a new briefing schedule was set. The appeal is now before us.²

Appellant initially argues that the trial court erred in denying relief on two allegations of ineffective assistance of counsel. 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. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. 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. Caery v. State, 2014 Ark. 247, 2014 WL 2158140 (per curiam); 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. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.

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. Caery, 2014 Ark. 247, 2014 WL 2158140 ; 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 ; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). 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 first claim of error in the trial court's order concerns his allegation that his trial counsel failed to procure and question witnesses. He states that he provided counsel with a list of potential witnesses, but counsel failed to contact them before trial. He further states that three potential witnesses were present at trial, but counsel did not question them or call them to testify. Appellant contends that the witnesses were aware of a number of facts that would have helped the defense if the jury had heard the information.

At the evidentiary hearing, appellant said that the witnesses on the list were mainly character witnesses, but his mother and his mother-in-law could have testified at trial that the victim had been in trouble at school for lying. He also testified that his wife was present at trial, but he acknowledged that she would not have agreed to testify because she was “tied to the case” and that she would have invoked her Fifth Amendment right to decline to incriminate herself.³ In his brief in this appeal, appellant argues in general terms that the witnesses on the list could have aided the defense, but none of the persons on the list was called by appellant to testify at the hearing as to what information they could have provided if called as trial witnesses.

We cannot say that the trial court erred in declining to grant postconviction relief on appellant's allegation concerning counsel's failure to question the witnesses on the list.⁴ At most, with the exception of naming his mother and his mother-in-law as witnesses who could have testified that the victim had been in trouble at school for lying, appellant in his petition and at the hearing offered only a general summary of information that the witnesses collectively could have provided. He did not state what information could have been provided by a particular witness, and he did not provide sufficient details about what a particular witness would have said if called to testify to determine if any of the witnesses could have given admissible evidence. We have held that the general suggestion that calling a witness would have been beneficial to the defense is not sufficient to satisfy the second prong under Strickland because conclusory claims do not demonstrate that there was prejudice to the defense. Chunestudy v. State, 2014 Ark. 345, 438 S.W.3d 923 (per curiam). It is not enough to allege prejudice, prejudice must be demonstrated with facts. Stiggers v. State, 2014 Ark. 184, 433 S.W.3d 252. Appellant fell short of showing that there was a specific witness on the list who could have offered specific admissible testimony of benefit to the defense.

Even considering appellant's reference to his mother and his mother-in-law as persons who knew of the victim's having lied before, the allegation was not sufficient to establish that their testimony would have been admissible or that the defense was prejudiced to the degree that the outcome of the trial would have been different had either been called to testify. This court has held that a petitioner under the Rule must establish that there was a reasonable probability that, had counsel performed further investigation and presented a particular witness, the outcome of the trial would have been different. See Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. At the Rule 37 hearing, appellant did not call any of the witnesses on his list or submit affidavits with their testimony. As a result, he did not show that counsel was remiss. Wertz, 2014 Ark. 240, 434 S.W.3d 895.

Appellant next asserts that counsel was ineffective in that he failed to cross-examine the State's witnesses. The trial court found that counsel did cross-examine the State witnesses, even if counsel did not ask the questions that appellant referred to in his petition. While the claims in the petition did not clearly specify what questions should have been asked to which of the State's witnesses, appellant at the hearing specified that the victim should have been questioned about anal penetration and a prior admission by the victim contained in a document, which was introduced as an exhibit at the hearing, that there had been no such penetration. Appellant also introduced as an exhibit at the hearing a second document in which the biological father of the victim is recorded as having said that he did not know if the victim's claims were true.⁵ It was not made clear at the hearing which witness appellant was contending should have been questioned concerning the second document. Moreover, there was no showing that either document would have been admissible or that admissible evidence could otherwise have been gleaned from the documents and used to question a particular witness. The allegation that counsel was ineffective for failure to call and question a witness does not meet the Strickland standard for a finding of ineffective assistance of cou...