Prater v. State

• Decision Date: 19 April 2012
• Docket Number: No. CR 11–437.,CR 11–437.
• Citation: 2012 Ark. 164,402 S.W.3d 68
• Parties: Chase A. PRATER, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2012 Ark. 164

402 S.W.3d 68

Chase A. PRATER, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–437.

Supreme Court of Arkansas.

April 19, 2012.

Jeff Rosenzweig, Little Rock, for appellant.

Dustin McDaniel, Attorney General, Rebecca Kane, Assistant Attorney General, for appellee.

ROBERT L. BROWN, Justice.

Appellant Chase Prater was convicted of rape, kidnapping, sexual assault in the second degree, and felony impersonation after a jury trial in the Pulaski County Circuit Court. Prater was sentenced to serve a total of twenty-eight years on all four counts on July 25, 2008. His conviction and sentence were affirmed by the court of appeals on May 27, 2009. Prater v. State, 2009 Ark. App. 443, 2009 WL 1478252. Prater then filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1, which the circuitcourt denied on January 24, 2011. Prater appeals from this order denying his petition. We affirm.

On appeal, Prater alleges three specific instances of ineffective assistance by his trial counsel: (1) trial counsel failed to make a specific directed-verdict motion on the kidnapping charge, which resulted in that issue not being properly preserved for appeal; (2) trial counsel failed to impeach a victim's testimony with photographs from two social-media websites, MySpace and LRGirls.com, depicting her at a party a few days after the rape and a comment by another victim that the two women were “hard core bitches”; (3) trial counsel failed to object to a violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), or, alternatively, trial counsel failed to prepare Prater properly for his testimony.

The facts underlying Prater's conviction are these. On August 3 and 4, 2007, Prater met two women, A.K. and A.R. at Mid–Town Billiards, a bar in Little Rock. Both A.K. and A.R. testified that they did not know Prater before that night. Likewise, both women testified that Prater introduced himself to them as “Randy” and stated that he was an undercover police officer who had been called in to assist with a drug raid at the bar. He told the women that the bar was about to be raided but that he would take them home. A.K. testified he told her that if they did not leave with him, he would arrest them and send them to jail. A.K. did testify that Prater allowed them to try to drive home in A.K.'s car. When A.R. tried to drive away, he banged on the window and said A.R. was “too messed up to drive.” He then told the women that he would have to search them before driving them home. A.K. testified that when he searched her, Prater put his hands up her skirt and touched her vagina. Next, he pulled her shirt down and groped her breasts. After that, he told them to get in his car, and he drove them to A.K.'s home. When they arrived, A.K. testified that he would not let [A.R.] out of the car.” A.K. testified that she went inside and did not tell her husband about the incident that night.

A.R. testified that, in addition to telling them he was an undercover police officer, Prater “flashed a badge.” She stated that Prater would sporadically talk into either a cell phone or “walkie-talkie” device and say things like “two white females,” followed by what sounded like some type of code. She added that after leaving A.K.'s house, Prater told her that he needed to take her to the police department because “either I'd been drugged or was on drugs.” She further said that Prater told her the police would hold her for seven days if she tested positive for drugs and that “if he took me in he knew I would test positive.” A.R. testified that she began calling friends to try to find a place to stay but that no one answered the phone. She then tried to rent a hotel room at the Days Inn in Morgan, where Prater had driven her, but her debit card was rejected so she could not rent the room.

After leaving the Days Inn, A.R. told the jury that Prater agreed to take her to her parents' house. She next testified that Prater pulled over in a gravel parking lot and told her he was going to have to search her. She said that Prater ordered her to take off her pants, and she complied, but when he ordered her to take off her underwear, she refused. At that point, A.R. testified that Prater took her underwear off and told her to turn around. He then climbed on top of her and vaginally raped her. A.R. then stated that as he began driving away from the parking lot, he forced her to perform oral sex on him. Next, she testified that he told her to get out of the car at a water tower near her parents' home in Conway. She added that Prater began masturbating and ejaculated on her. She testified that after that happened he dropped her off at her parents' house, where she sat in the backseat of her father's truck until the next morning. A.R. reported the incident that afternoon.

In addition to the testimony of A.K. and A.R., Kelli Dixon, a forensic DNA examiner at the Arkansas State Crime Lab, testified for the State that a DNA profile obtained from semen recovered from A.R.'s shirt and capri pants was consistent with a DNA profile obtained from Prater. Ms. Dixon concluded that the DNA obtained from the shirt and capri pants originated, “within all scientific certainty,” from Prater.

Prater also testified at his trial. According to his testimony, A.R. and he had met before the night the rape occurred. He testified that he helped A.K. and A.R. walk to A.K.'s car but that when A.R. tried to drive, “the car began to just—It was wildly jerking.” He said that A.K. became “completely hysterical,” and so he offered to take the two women to A.K.'s house. He testified that A.R. did not want to stay at the house and asked to stay with him, which he declined. He said that as he was driving, they began kissing and it “became a little more passionate,” so they pulled into a gravel parking lot near her parents' house. Prater testified that they did have sex but it was consensual.

During cross-examination of Prater by the State, the following exchange occurred:

Prosecutor: You can explain yourself well enough to convince the girls out on the street. You feel you can explain yourself well enough to convince people in this Court Room, don't you?

Defendant: My story's been the same from the beginning.

Prosecutor: Who did you tell your story to?

Defendant: My attorney.

Prosecutor: You didn't tell it to anyone else.

Defendant: No, sir.

Prosecutor: Nobody else.

Defendant: No, sir.

Prosecutor: I mean, this is my first time hearing it, right?

Defendant: Yes, sir.

Prosecutor: Okay. But your story's been the same from the beginning?

Defendant: Yes, sir.

Prosecutor: And the only person we have to go on is you.

Defendant: I figured my attorney or my family or—

Prosecutor: I mean, you've had chances to explain this along the way, right?

Defendant: Only when they first brought me in.

Prosecutor: How come we're just now hearing it then?

Defendant: There was no way, there was no way. Everything that you're taught in the military, everything you're taught about—Even just watching regular TV, if something like this happens, guilty or innocent, you do not have to say anything to anyone until you have somebody there to help defend you. Because if you're already in there, everybody's already against you.

You get somebody in there who's able to make sure that—If you are innocent, that they're there to take care of you. So you don't say anything until you have that person there.

Prosecutor: Okay. So you didn't want to tell your story until you've had a chance to talk with your attorney about what your story is going to be.

Defendant: No.

Prosecutor: Is that what you're telling us?

Defendant: My story. I told my story directly to my attorney first thing, and from that he's worked from there. My story has never changed.

Prosecutor: But you didn't want anyone else to hear it until you had a chance to speak with your attorney?

Defendant: Yes, sir.

Prater's counsel did not object during this exchange.

At the close of the State's case, Prater's counsel moved for a directed verdict on the kidnapping count as follows: “State hasn't shown that Chase Prater did restrain, without consent, [A.R.] as to interfere substantially with her liberty for the purpose of inflicting physical injury upon her or engaging in sexual intercourse, deviate sexual activity and sexual contact with her.” Although the circuit court denied the motion for directed verdict, it granted Prater's motion to reduce the kidnapping from a Class Y felony to a Class B felony because A.R. was released in a safe place. Prater's counsel renewed the motion for directed verdict at the close of all the evidence.

In his direct appeal, Prater contended that there was insufficient evidence to show that he restrained A.R. against her will with an amount of force that was greater than that incidental to the commission of the rape. Prater, 2009 Ark. App. 443, at 1, 2009 WL 1478252. The court of appeals held that the argument was not preserved for review because Prater did not make the same argument to the trial court. Id. at 2.

During the hearing on Prater's Rule 37 petition, Prater's trial counsel testified that there was no basis for a directed verdict on the basis of restraint for the kidnapping charge. He acknowledged that the State had met its burden on that issue. Trial counsel also testified that he was not familiar with Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988), at the time of trial and acknowledged that A.R. did get out of the car on several occasions before the rape occurred. Trial counsel further testified that he had seen the photographs from MySpace or LRGirls.com prior to trial. He testified that he discussed the photographs with other attorneys in his office and decided that they were not relevant. Specifically, he testified, “I felt that that could become relevant if she testified at trial that she was so distraught that she couldn't leave her house.... I thought it could...