Rose v. State, CR-16-1067.

• Decision Date: 31 May 2017
• Docket Number: No. CR-16-1067.,CR-16-1067.
• Citation: 526 S.W.3d 11
• Parties: Lori J. ROSE, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

526 S.W.3d 11

Lori J. ROSE, Appellant

v.STATE of Arkansas, Appellee

No. CR-16-1067.

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: May 31, 2017

Ernie Witt, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Lori Rose appeals the Polk County Circuit Court's order denying her Rule 37 petition for postconviction relief. Ark. R. Crim. P. 37.1 (2016). We assumed jurisdiction of this appeal pursuant to footnote 1 in Barnes v. State , 2017 Ark. 76, 511 S.W.3d 845 (per curiam). Rose contends that the trial court erred in denying her petition because trial counsel was ineffective for failing to (1) file a motion to suppress; (2) introduce a text message; (3) meet with Rose to prepare for trial; (4) present witnesses on Rose's behalf; and (5) involve Rose in the jury selection and voir dire. We affirm.

Rose was convicted by a Polk County jury of aggravated residential burglary, domestic battering in the second degree, aggravated assault, and terroristic threatening. At the trial on those charges, the victim, Billy Vaught, testified that he and Rose had been in a romantic relationship for approximately two years until they broke up on November 19, 2013. Two days later, Rose's teenage daughter phoned and asked him to stay at her home because she was home alone and could not reach her mother. After Rose returned, Vaught stayed overnight on Rose's couch and left the following day. That night, he went to bed early but woke up around midnight when Rose entered his bedroom, turned on the light, and stated that he should "prepare to die." She was under the impression that Vaught had molested her daughter. Vaught said that he could tell that the hammer of the gun had been cocked and that Rose had been drinking, so he kicked the gun with his left leg. The rifle went off and shot Vaught in the right leg just below the knee. They briefly struggled over the gun, but he shoved it under the bed. He called his sister, who drove him to the hospital, and Rose left before Vaught's sister arrived. Vaught's kneecap and femur bone were broken, and he had to have knee-replacement surgery. Vaught said that during their relationship, he and Rose frequently stayed at each other's homes, and that it was not necessary for them to have an explicit invitation to do so. Vaught said that he had not told Rose that she was no longer welcome in his home prior to the shooting.

Rose gave two statements to police after her arrest. In her first statement, which was played for the jury, Rose admitted that she had filed a police report against Vaught for alleged sexual abuse of her daughter, but she denied that she had been to his home or that she had shot him that night. The arresting officer testified that Rose did not appear to be highly intoxicated at the time he obtained her statement, although he could smell alcohol on her. Rose gave a second statement on the following day that was also played at trial. Rose claimed that she was scared and intoxicated and had not told the truth in her first interview. She admitted that she had gone to Vaught's home and that she had been drinking. She said that someone had told her that Vaught had also acted inappropriately toward his son in the past, so she went to Vaught's home with the intention of taking his son home with her. She did not expect Vaught to be at home, but when she realized that he was asleep, she said that she grabbed the rifle sitting by the front door and went to speak to him. She had borrowed the same rifle from Vaught and returned it to his house after they had broken up earlier in the week. She said that the rifle was pointed down, not at Vaught, but when she asked him why he had hurt her daughter, he kicked the gun and it went off and shot him in the leg. She handed Vaught his cell phone, and he asked her to leave.

At the conclusion of the trial, Rose was found guilty of aggravated residential burglary, second-degree domestic battery, aggravated assault, and terroristic threatening. The jury recommended that she be sentenced to a total of seventy-two years, but the trial court sentenced her to a total of thirty-six years' imprisonment. This court affirmed Rose's convictions in Rose v. State , 2015 Ark. App. 563, 472 S.W.3d 167, and the mandate was entered on October 24, 2015.

Rose filed a timely petition for relief under Rule 37 on December 21, 2015, with the Polk County Circuit Court. The petition alleged numerous errors by trial counsel, Greg Klebanoff, and contained a proper verification. An amended petition for Rule 37 relief was filed on April 6, 2016, and a hearing was held on June 23, 2016. Lori Rose testified that she had received a text message from Vaught somewhere between November 19 and 21, 2013, wherein Vaught said that she was welcome in his home at any time. The incident occurred on November 23, 2013. She said that she had showed this text message to Klebanoff, and he did not produce the message for the jury. She also said that she did not have a defense-strategy discussion with him. She said Klebanoff was more concerned with his payment than about trial strategy. She said that the trial court had granted a motion in limine that the word "victim" was not to be used during the course of the trial, but when it was used, Klebanoff never objected. She said that she had received several letters from Klebanoff, one of which stated that if she had paid him more she would have had a better defense, but she could not produce that letter. She said that Klebanoff did not use the witnesses who were willing to testify on her behalf, and she thought that if they had been used during the sentencing phase, she might have made a more favorable impression on the jury.

Greg Klebanoff testified that he had represented Rose, that he was aware that Rose had been given a portable breath test on the night she was arrested, and that she registered .17, which is more than twice the legal limit. He said that he did not bring up the test result during trial and did not move to suppress the first statement that she gave. He said Rose testified that she was intoxicated, hysterical, and upset. He said that he had thought about filing a motion to suppress based on intoxication, but he decided there was not much dispute about what had happened, and if he wanted a positive result for Rose, he would have to get it through jury nullification.

Klebanoff said that jury nullification requires sympathy, and he thought her first statement showed that she was confused, distressed, and intoxicated, and the jury would have sympathy for her. He said that he supposed Rose could have added input on selecting the jury, but he had never had his clients participate in jury selection. He said that he did not object when the word "victim" was used and did not move for a mistrial because a mistrial is a drastic remedy, and a bench instruction to disregard is normally sufficient. He said that objecting to something that was prohibited would call more attention to it. He also said that he did not think the text message that Rose was welcome in Vaught's home at any time was important because it was superfluous. He said that Rose's character had been called into question, and he did not call the witnesses because he knew that Rose had assaulted her ex-husband with a gun. Klebanoff thought that calling the character witnesses that Rose had referred to would have opened the door for the State to bring out that in 2003 she had chased her husband through the woods with a deer rifle, shooting at him.

After taking the petition under advisement at the conclusion of the hearing, the trial court denied Rose's petition and filed its findings of fact and conclusions of law on August 30, 2016. The trial court stated in each of its conclusions of law that Rose had shown neither deficient performance of counsel nor actual prejudice to her case as required by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A notice of appeal was timely filed on September 26, 2016, and this appeal followed, wherein Rose argues that the trial court erred in denying her petition for Rule 37 relief based on ineffective assistance of her counsel.

We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Conley v. State , 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.

Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland, supra. Conley, supra. In asserting ineffective assistance of counsel under Strickland , the petitioner must first demonstrate that counsel's performance was deficient. Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Conley, supra. This requires the petitioner to show...