Nooner v. State, 98-577

• Decision Date: 18 November 1999
• Docket Number: 98-577
• Citation: 4 S.W.3d 497
• Parties: Terrick Terrell NOONER v. STATE of Arkansas CR 98-577 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Terrick Terrell NOONER v STATE of Arkansas

CR 98-577 ___ S.W.3d ___

Opinion delivered November 18, 1999

Supreme Court of Arkansas

Appeal from Pulaski Circuit Court; Morris W. Thompson, Judge; affirmed.

1. Criminal procedure -- post-conviction relief -- remedy against unjust imprisonment. -- Post-conviction proceedings under Ark. R. Crim. P. 37 provide a remedy against unjust imprisonment; the rule enables the courts to correct a manifest injustice; Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void.

2. Criminal procedure -- post-conviction relief -- standard of review. -- The supreme court will not reverse the trial court's decision granting or denying post-conviction relief unless it is clearly erroneous; 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.

3. Criminal procedure -- post-conviction relief -- no review of mere error. --Because Ark. R. Crim. P. 37 is a post-conviction remedy, it does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal.

4. Criminal procedure -- post-conviction relief -- constitutional issues cannot be raised. -- Even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings.

5. Appeal & error -- arguments raised for first time on appeal not considered. -- The supreme court will not hear arguments raised for the first time on appeal.

6. Criminal procedure -- post-conviction relief -- issue decided on appeal cannot be reargued under Rule 37. -- If an issue has already been decided on appeal, it cannot be reargued under Ark. R. Crim. P. 37.

7. Criminal procedure -- post-conviction relief -- constitutional challenge not considered where previously rejected. -- Where the issue of the constitutionality of the victim-impact evidence statute was not litigated in the post-conviction pleadings or hearings, and where the supreme court, in appellant's original appeal, had expressly rejected the constitutional challenges to the statute, it was improper to consider the issue under Ark. R. Crim. P. 37.

8. Attorney & client -- ineffective assistance of counsel -- requirements for claim. -- When a convicted defendant complains of ineffective assistance of counsel, he must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced his defense; unless the petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable; in other words, 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 in that the decision reached would have been different absent the errors; a reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

9. Attorney & client -- ineffective assistance of counsel -- decision not to request psychiatric evaluation did not constitute. -- Where the record indicated that the trial court thoroughly evaluated appellant's claim and reasonably believed the testimony of trial counsel that they carefully considered whether to request an evaluation but discerned no good-faith basis for doing so; and where appellant's trial counsel also presented evidence that they had adduced evidence of appellant's troubled past and treatment through his stepfather during the penalty phase of his trial, the supreme court held that appellant had not established that trial counsel's decision not to request a psychiatric evaluation constituted ineffective assistance.

10. Attorney & client -- ineffective assistance of counsel -- no reasonable probability outcome would have been different had counsel sought to introduce mitigating evidence. -- Rejecting a second ineffective-assistance argument, the supreme court held that there was no reasonable probability that the outcome would have been different had trial counsel sought to introduce evidence that appellant's prior charge of aggravated robbery was reduced to robbery because he had prevented his co-defendant from raping the robbery victim.

Jeff Rosenzweig, for appellant.

Mark Pryor, Att'y Gen., by: David R. Raupp, Ass't Att'y Gen., for appellee.

Lavenski R. Smith, Justice.

Terrick Terrell Nooner ("Nooner") appeals the Pulaski Circuit Court's denial of his Petition for Rule37 relief. Nooner alleges that fundamental errors and ineffective assistance of counsel in the penalty phase of his trial entitle him to a new trial. Specifically, Nooner contends that allowing testimony under the state's victim-impact statute violated the constitutional prohibition against ex post facto laws. He also contends that Arkansas's victim-impact statute is unconstitutional as written. Additionally, Nooner asserts that two decisions of his trial counsel rendered that counsel ineffective in violation of his Sixth Amendment rights. These decisions consisted of trial counsel's election not to seek a mental evaluation prior to trial and counsel's choice not to bring a purportedly mitigating circumstance to the attention of the jury. We find no error and affirm.

I. Facts

We affirmed Nooner's conviction and sentence in Nooner v. State, 322 Ark. 87, 907 S.W. 2d 677 (1995)("Nooner I"). Nooner I recites the underlying facts, and they will only be briefly summarized here. On March 16, 1993, Scott Stobaugh, a college student, washed clothes at the Funwash Laundromat on West Markham street in Little Rock. An assailant, in an apparent robbery attempt, shot Stobaugh seven times at close range with a .22caliber pistol, causing his death. A surveillance camera captured a portion of the incident on videotape. The videotape showed the assailant and Stobaugh as Stobaugh raised his hands. Two witnesses identified the person on the Laundromat video as Nooner, by clothing and appearance. Other testimony and ballistics evidence tied Nooner to the murder weapon. A Pulaski County Circuit Court jury convicted Nooner of capital murder and sentenced him to death for the murder of Scott Stobaugh.

II. Standard of Review

Post-conviction proceedings under Rule 37 provide a remedy against unjust imprisonment. The rule enables our courts to correct a manifest injustice. As we have stated, Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void. Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989). Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999). We will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). 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. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997).

Rule 37 is a post-conviction remedy, and as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). Even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988).

III. Ex Post Facto and Vagueness

Nooner attacks the constitutionality of Arkansas's victim-impact evidence statute. Ark. Code Ann. § 5-4-602(4). He challenges the law both as written and as applied. Nooner argues that imposition of the death sentence in his case violated the U.S. Constitution and the Arkansas Constitution because it was enacted after the murder of Scott Stobaugh but before his trial. Nooner alleges that as an ex post facto law, the statute could not be used to allow victim-impact testimony in his trial. Nooner also contends the victim-impact evidence statute is void for vagueness. In response, the State argues that neither of Nooner's constitutional claims were raised below and that both were resolved by this court in Nooner I. We agree.

Nooner, in fact, concedes that the victim-impact issue was not litigated in the Rule 37 pleadings or hearings below. We have routinely held that we will not hear arguments raised for the first time on appeal. Moreover, Nooner I expressly rejected appellant's constitutional challenges to Ark. Code Ann. § 5-4-602(4). Nooner I, 322 Ark. at 109. If an issue has already been decided on appeal, it cannot be reargued under Rule 37. Blakely v. State, 283 Ark. 138, 671 S.W. 2d 183 (1984); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). See also, Trimble v. State, 336 Ark. 437, 986 S.W. 2d 392 (1999). This court, in Neal, supra, stated:

Neal and his attorneys also seem to have a total misconception of the purpose and role of Rule 37. It is not meant to function as a substitute for appeal, as a method of review of mere error in the conduct of the trial, or as a second opportunity to petition for a rehearing. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934; Austin v. State, 264 Ark. 318, 571 S.W.2d 584; Clark v. State, 255 Ark. 13, 498 S.W.2d 657. It is not intended to permit the petitioner to again present questions which were passed upon on direct appeal. Hulsey v. State, supra. Nor does...