Rasul v. State
| Decision Date | 19 March 2015 |
| Docket Number | No. CR–14–136,CR–14–136 |
| Citation | 2015 Ark. 118,458 S.W.3d 722 |
| Parties | Naeem Rasul, Appellant v. State of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Benca & Benca, Little Rock, by: Patrick J. Benca, for appellant.
Dustin McDaniel, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., for appellee.
Appellant Naeem Rasul brings this appeal from an order entered by the Pulaski County Circuit Court denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For reversal, appellant contends that the circuit court erred in concluding that he did not receive ineffective assistance of counsel at trial. We affirm the circuit court's decision.
The prosecuting attorney in Pulaski County charged appellant with the offense of first-degree murder in the shooting death of Henry Onukwube that occurred on October 20, 2007, in Pettaway Park, which is adjacent to Twenty–First Street in Little Rock. The record of trial reflects that appellant and Onukwube were involved in an altercation in the early morning hours on the day the homicide took place. In this incident, appellant struck Onukwube on the head with a pistol, leaving a wound
that required stitches. According to appellant's testimony at trial, later that morning Onukwube damaged the door of a home owned by appellant's mother on Vance Street, and Onukwube also hurled a brick through the window of appellant's vehicle that was parked there.
That same afternoon, appellant was driving in a truck with his brother down Twenty–First Street on his way back to his mother's home after purchasing soft drinks at a store. Appellant testified that, as he was passing by the park, he saw Onukwube near a picnic table, and he said that Onukwube retrieved a handgun from his pocket and waved the gun around in a taunting manner. Appellant stated that, fearing for his life and that of his brother and also believing that he could not escape with safety, he stopped the truck, exited, and began shooting his .45–caliber semiautomatic pistol at Onukwube. Although appellant testified that he did not know that his brother had also exited the truck, a witness, Arlin Cheeter, testified that both men emerged in tandem from the truck after it came to an abrupt stop and that both of them immediately began firing their handguns at Onukwube, who ran in the opposite direction. Cheeter also testified that, when the truck passed by the park, Onukwube had “dropped back” and reached under his shirt, as if Onukwube had a weapon. Cheeter said, however, that he did not see Onukwube with a gun, and he denied that he confiscated any weapon from Onukwube after the shooting.
Carlos Chambers was also in the park with Onukwube. He testified that he ran and then hit the ground so as not to be struck by the gunfire. Chambers said that he looked back and saw the men from the truck chasing Onukwube until Onukwube fell onto the basketball court. He testified that he did not see Onukwube with a gun and that he did not see Onukwube do anything with his hand when the truck came to a stop. Chambers said that the men walked away after Onukwube fell.
The police found Onukwube's body lying on a basketball court. They did not locate a handgun in the vicinity of the corpse or elsewhere in the park. In a small confined area, investigators recovered six .45–caliber bullet casings and ten nine-millimeter bullet casings in a linear pattern from the street heading north toward the basketball court.1 Officers also located several bullet strikes in the ground and a projectile on the basketball court. According to the testimony, the direction of fire appeared to be from the south to the north. Despite searching with a metal detector, the officers were not able to find any physical evidence indicating that there were any shots fired, other than those from the south to the north toward the basketball court. There was also no evidence that a weapon other than a nine-millimeter or .45–caliber was used that day. Officers recovered a .45–caliber Glock semiautomatic pistol and a nine-millimeter Ruger semi-automatic pistol from the home of appellant's father. Ballistic testing revealed that the shell casings discovered at the scene were fired from those two guns.
Cameron Menzes testified for the defense and said that his brother, Cheeter, told him that Onukwube had a gun at the park. He said that he did not provide the police with this information because he did not know if it was true.
At the conclusion of the testimony, the circuit court granted appellant's request to instruct the jury on self-defense. The court also allowed instructions on the lesser-included offenses of second-degree murder and manslaughter. However, for reasons not explained in the record, the court instructed the jury on the claim of self-defense only with regard to the charge of first-degree murder, but not the lesser-included offenses. The jury acquitted appellant of first-degree murder but found him guilty of second-degree murder. As a consequence, appellant received a sentence of twenty years' imprisonment and a fine of $15,000, plus a firearm enhancement of fifteen years. The court of appeals affirmed his conviction and sentences. Rasul v. State, 2009 Ark. App. 631, 2009 WL 3153257.
Appellant subsequently filed a timely, verified petition for postconviction relief, as well as an amended petition. Appellant claimed that his trial counsel was ineffective because he did not raise an objection to ensure that a self-defense instruction was given with respect to the lesser-included offenses. He also asserted that counsel's performance was deficient because counsel did not secure the testimony of an expert witness concerning the effects of the drug PCP, which was detected in Onukwube's system as a result of the autopsy.2 In response, the State asserted that trial counsel's decision not to call an expert witness was a matter of trial strategy and that, in any event, the defense elicited testimony on the subject from the medical examiner, Dr. Frank Peretti. The State also asserted that appellant was not prejudiced by the absence of jury instructions on self-defense with respect to the lesser-included offenses because, given the evidence produced at trial, the outcome of the trial would not have been different.
The circuit court conducted a hearing on appellant's petitions. At the hearing, appellant presented the testimony of Dr. Kim Light, who holds a masters in pharmacology. He said that PCP is a dissociative agent that is mild and nondescript in many cases but that it can without explanation from a scientific basis produce extraordinary types of effects, including delusional thinking, paranoia, and irrational behavior. Light also stated that a person under the influence of PCP may appear to exhibit superhuman strength. On cross-examination, Light testified that he agreed with Dr. Peretti's trial testimony that Onukwube had a significant amount of PCP in his system. He also had no quarrel with Dr. Peretti's assessment that PCP can cause a person to act violently and with such delusions that a person would jump through a plate-glass window or hop over an overpass.
At the conclusion of Light's testimony, appellant rested his case. Thereafter, the State called trial counsel, Lott Rolfe, as its witness. Rolfe admitted that he should have made sure that all of the lesser-included offenses were covered by an instruction on justification. He explained that he was distracted by his preparations for closing argument. Rolfe also stated that he had considered hiring an expert regarding the effects of PCP, but he said that, after interviewing the medical examiner, he did not feel that it was necessary because he knew that he could elicit favorable testimony from Dr. Peretti on the subject.
After the hearing, the circuit court denied the petition. The circuit court found that appellant was not prejudiced by the failure of counsel to ensure that all offenses were covered by a justification instruction in light of the evidence offered at trial. Specifically, the circuit court found:
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