Porras v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: ROBERT J. GLADWIN, Judge
• Citation: Porras v. State, 684 S.W.3d 236 (Ark. App. 2024)
• Docket Number: CR-22-717
• Decision Date: 31 January 2024
• Parties: Bryan PORRAS, Appellant v. STATE of Arkansas, Appellee

684 S.W.3d 236

2024 Ark. App. 57

Bryan PORRAS, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-717

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered January 31, 2024

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCR-17-65], HONORABLE R. GUNNER DELAY, JUDGE

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Tim Griffin, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.

ROBERT J. GLADWIN, Judge

₁Appellant Bryan Porras appeals the Sebastian County Circuit Court’s order denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2023). Porras argues that the circuit court erred in denying his Rule 37 petition and claims that his trial counsel provided ineffective assistance of counsel by (1) failing to move for directed verdict on the basis of insufficient codefendant corroboration; (2) failing to object to Detective Anthony Parkinson’s testimony on hearsay or confrontation grounds; (3) failing to investigate and present the testimony of three witnesses; (4) failing to request a second-degree-murder instruction; (5) opening the door to damaging testimony by Detective Parkinson; (6) failing to object to this testimony by Detective Parkinson on hearsay or ₂confrontation grounds; (7) failing to object to the "journal"; and (8) relying on several pieces of evidence in finding a lack of prejudice. We affirm.

I. Facts and Procedural History

A. Direct Appeal

On January 17, 2017, Porras was charged by felony information—and as a habitual offender—with murder in the first degree; terroristic act; and possession of firearms by certain persons. The State subsequently filed three amended informations, ultimately charging him as a habitual offender with murder in the first degree; one count of terroristic act, Class Y felony; six counts of terroristic act, Class B felony; and possession of firearms by certain persons. The State sought enhanced habitual-offender sentences on all charges save for the firearm-possession count, pursuant to Ark. Code Ann. § 16-90-120 (Repl. 2016).

Porras’s jury trial occurred on November 13–15, 2017, during which the following evidence was presented. Porras’s charges arose from a gang-related shooting that occurred in Fort Smith on the night of January 14, 2017. Porras and three codefendants—Alberto Chavez, Ryan Oxford, and Jorge Chirinos—were members of a gang called Slangez 96.¹ The eighteen-year-old deceased victim, Justin Lopez, and Trey Miller were members of a rival gang called Clout Boyz. Lopez was killed when a barrage of gunfire from two assault rifles hit the camper trailer where he was visiting Miller.

₃Porras, Chavez, Oxford, and Chirinos were together at a wedding party at the Fort Smith Convention Center on the night of the incident. All four men were wearing purple bandannas around their necks. Jamie Aceves Garcia testified that Porras approached him and demanded to know where the Clout Boyz were "because he was having problems with them." Porras threatened to shoot Garcia if he did not tell him where they were. Garcia knew the members of the Clout Boyz gang; but, as he told Porras, he did not know where they were. Thereafter, Garcia saw Porras and the other three codefendants leave the party and return about an hour later in a four-door gray car.

At the time of the incident, Miller was living in a camper trailer located in the backyard of his grandparents’ home. Around 10:00 p.m., Miller and Lopez were alone and sitting at the kitchen table inside the trailer when, through the open door of the trailer, they noticed a car driving into the alley behind Miller’s grandparents’ home. After the two heard the backyard gate being opened, Lopez grabbed a shotgun and called out to an approaching figure. At that point, the person yelled, "Shoot, shoot, shoot," and numerous rounds were fired from assault rifles into the trailer. Miller stated that as the shooters were leaving, he heard "whooping and hollering" like they were "celebrating." Lopez was killed by a bullet shot from an AR-15 that entered the back of his skull and fragmented. Miller was not injured. There were cartridge casings located at the crime scene, and twenty-eight bullet-impact points were found inside the trailer.

Officers were dispatched to the scene at 10:31 p.m. They identified the codefendants as suspects and obtained warrants to search Porras’s and Oxford’s apartments. The officers ₄recovered an AK-47 semiautomatic assault rifle, an AR-15 semiautomatic assault rifle, approximately four hundred rounds of ammunition, and a purple bandanna from Oxford’s apartment. They recovered a purple bandanna, two "Jason" Halloween masks, a composition notebook/journal, an AR-15 semiautomatic assault rifle, and a quantity of .223-caliber ammunition from Porras’s apartment. The AR-15 and ammunition were hidden behind a water heater in the bedroom closet that contained male clothing, while the bandanna was discovered behind a freezer. Ballistic comparison of the bullet fragment recovered during Lopez’s autopsy revealed that it was fired from the AR-15 seized during the search of Porras’s apartment. Shell casings found at the crime scene were also linked to the rifles seized. All of the .223-caliber shell casings found at the crime scene were ejected from the AR-15, and all of the recovered 76.2 x 39mm shell casings were ejected from the AK-47.

The composition notebook/journal seized from Porras’s apartment contained drawings and rap lyrics referencing Slangez. A video recovered from Porras’s cell phone showed him with the codefendants acting out a rap song referencing "Slangez 96" and "Clout Boyz Killa" and displaying firearms similar to those fired at the scene. Detective Chris George, who was assigned to the vice narcotics unit, tracked gang activity in Fort Smith. He testified that Slangez 96 and Clout Boyz were rival gangs, both with a presence in Fort Smith, and that Slangez 96 members wore purple to show their affiliation.

Chirinos testified that he, Porras, Oxford, and Chavez went to the wedding party on the night of the shooting. While there, Porras asked Garcia where the Clout Boyz were. The four codefendants left the party after Porras learned that members of the Clout Boyz were ₅in Miller’s trailer. As Porras was driving to the trailer, he instructed the others to put on masks. Porras used a bandanna to cover his nose and mouth and wore a hoodie. He drove through the alley, stopped the car, and approached the trailer on foot. Porras was armed with the AK-47 and Chavez with the AR-15. Chirinos testified that when they heard sounds coming from inside the trailer, Porras came back through the gate yelling "shoot, shoot," and Porras and Chavez started shooting until they had emptied their magazines. After they left the crime scene, they took the rifles to Porras’s apartment then went back to the wedding party until Porras’s girlfriend called for him to pick her up from work.

The Sebastian County jury convicted Porras of one count of first-degree murder and two counts of committing a terroristic act and enhanced his sentence for using a firearm in the commission of the crimes. He was sentenced as a habitual offender to an aggregate term of seventy-three years’ imprisonment pursuant to a sentencing order filed on November 21, 2017. Porras filed a timely notice of appeal on November 22.

On direct appeal, Porras claimed (1) that the State failed to present sufficient evidence, independent of an accomplice’s testimony, to support his convictions, and (2) that by finding trial counsel had opened the door to a line of questioning, the circuit court denied him the right to confront witnesses against him. Porras v. State, 2018 Ark. App. 592, at 1, 2018 WL 6332856. We held that Porras’s challenge to the sufficiency of the evidence was not preserved for appellate review. Id. at 1–4. As to his second claim, we held that Porras received the relief he requested when he objected. Id. at 8. Porras argued that Detective Parkinson could not testify that the codefendants told him Porras was with them at the crime scene. Id. Because Detective ₆Parkinson testified that each of the codefendants confessed to being at the crime scene, we held that he had received the relief he requested and denied the claim. Id. This court affirmed Porras’s conviction in an opinion issued on December 5, 2018, and rehearing was denied on January 19, 2019. See Porras, supra. The mandate was issued on January 16 and affirmed on January 24.

B. Rule 37 Petition and Amended Petition

Porras filed a timely pro se petition for postconviction relief pursuant to Rule 37.1 in the Sebastian County Circuit Court on March 20, 2019. See Ark. R. Crim. P. 37 (2023). The State filed a response on March 26 and an amended response on April 8, and Porras filed a reply to the response on April 10. Porras subsequently sought and obtained leave from the circuit court to file an amended Rule 37 petition. On January 4, 2020, Porras filed an amended Rule 37 petition alleging eight separate reasons that trial counsel provided ineffective assistance of counsel.² The State filed a response on January 21. After several continuances were granted, in part related to the COVID pandemic, an evidentiary hearing on Porras’s Rule 37 petition was held on May 6, 2022.

Rigoberto Pena Canjura testified that Porras was not involved in the charged acts on January 14, 2017, because Porras was on Xbox Live playing a video game with him around ₇10:00 p.m. when Canjura heard the shooting down the street from his home. Canjura testified he did not think anything of the sounds of shooting and continued gaming with Porras for another thirty minutes before Porras ended the session. Canjura testified that he and Porras played video games together for about an hour in total. Canjura was incarcerated for a period of years, including when Porras’s case was pending and when it went to jury trial.

Codefendant ...