Rackley v. State
| Decision Date | 30 January 2014 |
| Docket Number | No. CR-12-157,CR-12-157 |
| Citation | 2014 Ark. 39 |
| Parties | MARCUS L. RACKLEY APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Supreme Court |
HONORABLE DAVID L.
Appellant Marcus Rackley appeals after a Faulkner County Circuit Court denied his petition filed pursuant to Arkansas Rulew of Criminal Procedure 37.1. On appeal, appellant contends that trial counsel was ineffective (1) because he was simultaneously representing appellant and appellant's wife at the time of appellant's trial, and the dual representation created an actual conflict of interest that adversely affected counsel's performance; (2) because he failed to object to the introduction of the out-of-court statements made by appellant's wife; (3) because he was incapacitated due to the medication he was taking during the trial; (4) because he failed to object to statements given by Prosecuting Attorney Foster during voir dire; (5) because he failed to comply with witness sequestration rules under the Arkansas Rules of Evidence; and (6) because he failed to properly handle the issue of whether certain sexual messages sent to and from the victim could be admitted during trial. This courtassumed jurisdiction of this appeal pursuant to Arkansas Rule of Criminal Procedure 37.1 and Arkansas Supreme Court Rule 1-2(a)(8) as this involves postconviction relief. We reverse and remand for a new trial with conflict-free counsel.
Since this is an appeal from the denial of a postconviction petition, only a brief recitation of the facts regarding the underlying criminal conviction is necessary. Appellant was charged with thirty-seven various sex offenses, including charges of rape, incest, second-degree sexual assault, and first-degree sexual abuse, that stemmed from allegations that appellant had repeatedly sexually molested his stepdaughter, T.W., between 2001 and 2004. T.W.'s mother, Mrs. Cynthia Walters, formerly Mrs. Cynthia Rackley and appellant's wife at the time of trial, also was faced with charges stemming from appellant's sexual abuse of T.W. Appellant's attorney, Mr. Max Horner, simultaneously represented both the appellant and Mrs. Walters. Appellant's proceedings preceded the resolution of Mrs. Walters's charges. A Faulkner County jury convicted appellant of all counts and sentenced him to a total of thirty-seven years in the Arkansas Department of Correction.
Appellant timely appealed his convictions, and this court affirmed. Rackley v. State, 371 Ark. 438, 267 S.W.3d 578 (2007). After appellant filed a timely, verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1, the trial court initially entered an order denying relief without an evidentiary hearing. Subsequently, this court reversed and remanded for the trial court to comply with Arkansas Rule of Criminal Procedure 37.3. Rackley v. State, 2010 Ark. 469 (per curiam). After a hearing, the trial court filed a written order again denying appellant's Rule 37 proceedings on October 14, 2011.This appeal followed.
Appellant's first point on appeal is that trial counsel was ineffective because he was simultaneously representing appellant and appellant's wife at the time of appellant's trial and that the dual-representation created an actual conflict that adversely affected counsel's performance. He further alleges that the trial court erred in failing to grant him relief because conflict-free counsel could have had appellant's former wife explain or deny the damaging statements said to have been made by her to Ms. Luebke and Ms. Thessing that were admitted at trial. In appeals of postconviction proceedings, this court will not reverse a trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004); Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). 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. Howard, supra.
To prevail on a claim of ineffectiveness based on counsel's conflict of interest, appellant must demonstrate the existence of an actual conflict of interest that affected counsel's performance, as opposed to a mere theoretical division of loyalties. Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003) (citing Mickens v. Taylor, 535 U.S. 162 (2002)). Appellant has the burden of proving a conflict of interest and showing its adverse effects. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). However, "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Id. at 493, 127 S.W.3d at 493 (quoting Mickens, supra (quoting Cuyler v.Sullivan, 446 U.S. 335 (1980))).
It is undisputed that Mr. Horner simultaneously represented appellant and Mrs. Walters at the time of appellant's trial. In a hearing prior to trial, Mr. Horner represented to the court that his client, Mrs. Walters, would be invoking her Fifth Amendment right to remain silent upon advice of counsel and sought to prohibit any out-of-court statements made by Mrs. Walters. After the State expressed to the court that it had a right to place her on the stand first, to ask her nonincriminating questions, and to then see if she would invoke her Fifth Amendment Right on the stand, Mr. Horner objected and stated the following:
Your Honor, I think that would be highly prejudicial to my client to put her up there and for her to say, you know, I'm invoking my Fifth Amendment rights. If she invokes her Fifth Amendment right, it goes to all testimony not just the testimony that is incriminating to her. Her testimony in total would be inadmissible. I also represent Mrs. Rackley and I can tell you that is what she is going to say.
After the hearing, the trial court ultimately allowed her to be called to the stand by the State outside the presence of the jury to invoke her Fifth Amendment right and ruled that testimony regarding statements that Mrs. Walters made to Ms. Luebke and Ms. Thessing were admissible.
After reviewing the testimony by Ms. Luebke and Ms. Thessing at trial, there is no doubt that their testimony was damaging to the appellant. At trial, Ms. Luebke testified that T.W. and her daughter were friends. She testified that T.W. had stayed with her periodically between December and February or March. Ms. Luebke reported the alleged sexual abuse to the Faulkner County Sheriff's Office after her daughter informed her that T.W. had told her that she was being abused. After filing the report and while T.W. was in her home, Ms.Luebke testified on direct examination by the State that she had the following conversation with Mrs. Walters:
[T.W.] advised me her mother was going to call back in ten minutes. She ask me would I speak to her because she did not wish to speak to her at that point. I told [T.W.], yes, I would. Approximately ten minutes later, Cindy Rackley did call back and I answered [T.W.]'s cell phone. Cindy said, or actually I said, And Cindy said that ---- that they were having family problems. I said, "I know that you are having family problems and it was my understanding that you had tried to find a home, a place for you and [T.W.] and Matt to live." She said yes, that she was having financial problems, that everything was in Mark Rackley's name and she was not financially able to get away at that time. She was waiting on her income tax return to come in. She said that Mark had come to her saying that he had inappropriate sexual feelings toward [T.W.] but that [T.W. also] had feelings toward Mark and I said, "Well, Cindy, what did you tell [T.W.]?" And she said, "I said, it is okay Baby, it is not like you are related." At that time I changed the subject back to asking her to please just allow [T.W.] to spend the night because I had told her that if she or Mark tried to come to get [T.W.] that I was told I would have to call the police and she agreed to let [T.W.] spend the night. Then after that phone conversation, we went down to Bobby Brown's, to the investigator's office and [T.W.] made her statement to Investigator Brown.
Ms. Thessing testified at trial that she was a friend of Mrs. Walters. She also testified as follows during direct examination by the State regarding statements that Mrs. Walters made to her regarding the sexual abuse:
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