Montgomery v. State
| Citation | 385 S.W.3d 189,2011 Ark. 462 |
| Decision Date | 03 November 2011 |
| Docket Number | No. CR 11–141.,CR 11–141. |
| Parties | James E. MONTGOMERY, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Supreme Court of Arkansas |
OPINION TEXT STARTS HERE
Jeffrey Marx Rosenzweig, Little Rock, for appellant.
Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.
Appellant James E. Montgomery appeals the order of the Greene County Circuit Court denying his petition for postconviction relief filed pursuant to Ark. R.Crim. P. 37.1 (2011). On appeal, Montgomery argues that it was error for the circuit court to deny his request for postconviction relief, and to do so without holding a hearing. We affirm in part and reverse and remand in part.
Appellant was convicted of rape of his adopted granddaughter, K.M., who was then six years old. He was sentenced to twenty-five years' imprisonment in the Arkansas Department of Correction, and the court of appeals affirmed his conviction and sentence. Montgomery v. State, 2010 Ark. App. 501, 2010 WL 2404182.
Thereafter, Appellant filed a timely Rule 37 petition, raising six allegations of ineffective assistance of counsel.1 The circuit court denied the petition without a hearing. Appellant lodged the instant appeal, arguing five instances of error by the circuit court in denying the petition. Specifically, Appellant argues that the circuit court erred in denying his petition, without a hearing, where his trial counsel was ineffective in failing to (1) object to testimony about the victim's credibility; (2) object to testimony about patterns of behavior in child-sexual-abuse cases; (3) object to testimony that resulted in violations of his rights under the Fifth and Fourteenth Amendments to the United States Constitution; (4) request DNA testing on a condom found in the victim's bed; and (5) call Chris Montgomery, K.M.'s father and Appellant's son, as a witness at trial.
Before turning to the merits of Appellant's arguments, we note that where no hearing is held on a Rule 37 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief. Camacho v. State, 2011 Ark. 235, 2011 WL 2062328 (per curiam); see alsoArk. R.Crim. P. 37.3. This court may affirm the denial of a Rule 37.1 petition, regardless of the adequacy of the order, if we can determine from the record that the petition was wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Gonder v. State, 2011 Ark. 248, 382 S.W.3d 674 (per curiam). In this case, the circuit court complied with the requirement of making written findings; however, we cannot say that Appellant is not entitled to relief on some of his claims based on the face of the petition or the record before us.
As his first point on appeal, Appellant asserts that the circuit court erred in not granting his request for postconviction relief where his trial counsel failed to object to testimony asserting the credibility of the accuser, as such testimony was inadmissible under the Arkansas Rules of Evidenceand our court's case law. There are several different people whose testimony Appellant claims was objectionable. We will consider each one in turn.
At the outset, we note that this court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (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. Id.
In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Anderson v. State, 2010 Ark. 404, 373 S.W.3d 876 (per curiam). Our standard of review requires that 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Croy v. State, 2011 Ark. 284, 383 S.W.3d 367 (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. 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, 2011 WL 913206 (per curiam).
In order to meet the second prong of the test, the petitioner must show that counsel's deficient performance prejudiced petitioner's defense to such an extent that he was deprived of a fair trial. Carter v. State, 2011 Ark. 226, 2011 WL 1896765 (per curiam). A claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Mingboupha v. State, 2011 Ark. 219, 2011 WL 1805339 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Appellant asserts that in a case such as this one, which relied almost solely on the credibility of the child-accuser, he was prejudiced by his counsel's failure to object to witnesses' testimony that K.M. was credible. According to Appellant, had trial counsel objected to such testimony, which improperly buttressed the State's case, his objections would have been sustained. Appellant further asserts that the failure to object satisfies the cause prong of Strickland, while the fact that the State's case relied almost exclusively on K.M.'s credibility satisfied the prejudice prong.
The first person's testimony that Appellant takes issue with is Jamie Moore, an investigator with the Crimes Against Children Division of the Arkansas State Police. Moore was assigned to investigate K.M.'s allegations against Appellant. At trial, in response to a question about whether she interviewed the victim's father, Chris Montgomery, Moore responded that she had and that she then closed the investigation with a true finding.
The circuit court found that Appellant failed to demonstrate any prejudice with regard to this allegation, as defense counsel questioned Moore at length about her investigation and elicited testimony that a true finding need only be supported by a preponderance of the evidence. The circuit court then concluded that this was a matter of trial strategy and not a basis for postconviction relief.
The circuit court is correct that a trial counsel's decision not to object is one of trial strategy and outside the purview of Rule 37.1. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). However, the error in the circuit court's analysis of this issue lies in the fact that we have nothing in the record before us from which we can determine that the failure to object in this instance was actually a matter of trial strategy. There was no hearing, and Appellant's trial counsel has never been questioned as to why he did not object. Where, as here, the State's case hinged almost solely on the credibility of the victim,2 we cannot just assume that an attorney's failure to object to testimony that indirectly bolstered the victim's credibility was a matter of trial strategy. Accordingly, the circuit court erred in denying relief on this point without first holding a hearing.3
Next, Appellant asserts that his counsel should have objected during the State's questioning of Trish Smith, an intake social worker at Arkansas Children's Hospital. The State questioned Smith about K.M.'s allegations that Appellant would sometimes touch her inappropriately while she sat next to him, under a blanket, watching television, while her grandmother, Mary DeMaris, sat on the other side of Appellant. Appellant asserts that the following testimony was objectionable:
[The State:] Well, let me ask you Trish, based upon your experience in dealing with victims of sexual abuse and [K.M.] is telling you a scenario about how it's her, it's the alleged perpetrator, and then this other lady. Is that believable? Is that plausible on any other cases that you've ever worked that involved digital penetration or any type of sexual abuse?
[Smith:] Well, it doesn't require a whole lot of motion or even necessarily to take her clothes off. He could have been reaching inside of her pajamas or her panties without disturbing anything else while you're watching TV.
[The State:] Anything about the incident that she describes about that occurring, anything to cause you to believe that, that is not real, that could not have happened just because of another person being in possible close proximity?
[Smith:] No. And I don't know that [the] grandmother was awake. I mean, that she was present. She could have fallen asleep. I don't know. And I don't know that [K.M.] knew.
Smith was then questioned about the victim's mother and allegations that she coerced the victim into making the allegations against the accused:
[The State:] Based upon your conversation that you had with the mother, do you feel that she in any way coerced the child into the statements that she made to you?
[Smith:] No, I don't think she did and [K.M.] didn't act like this was anything that was coerced at all.
The circuit court, in considering Appellant's allegations, noted that this testimony was the subject of a pretrial motion and hearing wherein the State, over Appellant's objection, sought to introduce the testimony. The trial court allowed Smith's testimony under Ark. R. Evid. 803(4), as nontestimonial statements, because Smith's job was to assist the treating physician by determining what kind of examination was needed, who would be involved in her treatment, and...
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