Nelson v. State

• Decision Date: 05 December 2018
• Docket Number: No. CR-18-208,CR-18-208
• Citation: 566 S.W.3d 530,2018 Ark. App. 583
• Parties: Stanley NELSON, Appellant v. STATE of Arkansas, Appellant
• Court: Arkansas Court of Appeals

2018 Ark. App. 583
566 S.W.3d 530

Stanley NELSON, Appellant
v.
STATE of Arkansas, Appellant

No. CR-18-208

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: December 5, 2018

James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

RAYMOND R. ABRAMSON, Judge

Stanley Nelson appeals the Pulaski County Circuit Court order denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5 (2017). We affirm the circuit court's decision denying postconviction relief.

On October 7, 2013, the State charged Nelson with first-degree murder of Latravis Morant and first-degree battery of Sedrick Green, along with a firearm enhancement and an in-the-presence-of-children enhancement. The court held a jury trial from October 21 through 24, 2014.

The testimony at trial showed that on August 14, 2013, Nelson, Green, and Morant were drinking alcohol and playing a dice game with Nelson's cousin, Courtney Marshall, when a physical altercation developed between Green and Marshall. Nelson grabbed a gun from Marshall's waistband and began shooting. Morant was shot in the abdomen while trying to interfere with the fight. He later died at the hospital. Green was shot in the arm and thigh while he was on the ground fighting Marshall. He survived his injuries. At trial, the jury was instructed on the justification defense as to both the murder and the battery charges. The jury convicted Nelson of second-degree murder and first-degree battery. He was sentenced to thirty-five years' imprisonment for second-degree murder and eleven years' imprisonment for first-degree battery.

On November 11, 2014, Nelson filed a motion for a new trial and asserted a claim of ineffective assistance of counsel. Specifically, he asserted that his counsel was ineffective for submitting a flawed jury instruction on the justification defense for the battery charge. The court denied Nelson's motion.

On appeal, this court affirmed Nelson's convictions. See Nelson v. State , 2015 Ark. App. 697, 477 S.W.3d 569. The mandate was issued on January 29, 2016.

On April 21, 2017, Nelson filed a third amended Rule 37 petition.¹ In the petition, he alleged that his trial counsel was ineffective for (1) submitting a flawed jury instruction on his justification defense to the battery charge; (2) advising him not to testify; (3) not introducing medical evidence of Marshall's injuries; (4) failing to

566 S.W.3d 534

elicit testimony about Green's prior acts of domestic violence; (5) failing to call witnesses for sentencing; and (6) failing to request a nonmodel jury instruction on imperfect self-defense.

The circuit court held an evidentiary hearing on September 28 and October 5, 2017. On the first day of the hearing, the court found that it was precluded from considering Nelson's claim concerning the flawed jury instruction because this court had rejected the argument on direct appeal.

On October 3, 2017, Nelson filed a motion to amend his Rule 37 petition, requesting leave to modify his argument concerning the flawed jury instruction. Specifically, he sought to claim that his counsel was ineffective in asserting his original ineffective-assistance-of-counsel claim for failing to argue that he had suffered prejudice due to the flawed jury instruction. On the second day of the hearing, the court orally granted Nelson's motion to amend.

On November 9, 2017, the circuit court entered a written order denying Nelson's Rule 37 petition. In the order, the court denied Nelson's claims alleged in his April 21, 2017 petition. The court did not consider Nelson's amended claim concerning counsel's failure to allege prejudice as a result of the flawed jury instruction. Therefore, on November 13, Nelson filed a motion to reconsider the denial of his Rule 37 petition. In the motion, he requested the court to rule on his amended claim. The court never issued an order on the motion.

On December 6, Nelson timely appealed the court's November 9 order to this court, and on December 14, Nelson filed a second notice of appeal to include the court's "deemed-denial" of his motion for reconsideration.

This court does not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. Reed v. State , 2011 Ark. 115 (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.

The benchmark question to be resolved in judging a claim of ineffective assistance of counsel is 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. Norris v. State , 2013 Ark. 205, 427 S.W.3d 626 (per curiam). We assess the effectiveness of counsel under a two-prong standard as 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). Lowe v. State , 2012 Ark. 185, 423 S.W.3d 6 (per curiam). Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy both prongs of the test, and it is unnecessary to examine both components of the inquiry if the petitioner fails to satisfy either requirement. See Pennington v. State , 2013 Ark. 39, 2013 WL 485660 (per curiam).

A petitioner claiming ineffective assistance must first show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the petitioner by the Sixth Amendment to the United States Constitution. Walton v. State , 2013 Ark. 254, 2013 WL 2460191 (per curiam). There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable

566 S.W.3d 535

professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel that, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id.

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, 2011 WL 693579 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

On appeal, Nelson first argues that the circuit court erred in finding that his trial counsel was not ineffective in asserting his ineffective-assistance-of-counsel claim in his motion for a new trial. Specifically, he asserts that his counsel was ineffective for failing to allege he was prejudiced by the flawed instruction. The State argues that Nelson's argument is not preserved...