Savage v. State

• Decision Date: 14 May 2015
• Docket Number: No. CR–14–407,CR–14–407
• Citation: 2015 Ark. 212,462 S.W.3d 326
• Parties: Jerry Dewayne Savage, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2015 Ark. 212

462 S.W.3d 326

Jerry Dewayne Savage, Appellant

v.State of Arkansas, Appellee

No. CR–14–407

Supreme Court of Arkansas.

Opinion Delivered May 14, 2015

Opinion

PER CURIAM

In 2012, appellant Jerry Dewayne Savage was convicted of three counts of second-degree sexual assault and sentenced as a habitual offender to an aggregate term of 720 months' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Savage v. State, 2013 Ark. App. 133, 2013 WL 749779. Appellant filed in the trial court a timely petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014), and the trial court denied the petition without a hearing. Appellant lodged his appeal of the order in this court, and we affirm the trial court's denial of postconviction relief.

Under our general standard of review for an order that grants or denies postconviction relief, this court will not reverse the trial court's decision unless the trial court's findings are clearly erroneous. See Decay v. State, 2014 Ark. 387, 441 S.W.3d 899. 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. Id.

In his petition, appellant raised ten claims as grounds for relief. His ten points on appeal largely reassert the same claims. Appellant's first seven points for reversal are claims of ineffective assistance of counsel, and the first two points allege error in the trial court's finding that trial counsel was not ineffective for failing to investigate or call certain witnesses concerning appellant's mental condition.

On review of claims of ineffective assistance of trial counsel, this court follows the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that two-prong analysis, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Sherman v. State, 2014 Ark. 474, 448 S.W.3d 704 (per curiam) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052 ). In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.

To satisfy the first prong of the Strickland test, the petitioner must show that counsel's performance was deficient. Decay, 2014 Ark. 387, 441 S.W.3d 899. To meet this requirement, a postconviction petitioner must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam). There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam).

In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Delamar v. State, 2011 Ark. 87, 2011 WL 693579 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in the sentencing. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).

Unless a petitioner under Rule 37.1 makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Anderson, 2015 Ark. 18, 454 S.W.3d 212. There is therefore no reason for a court deciding an ineffective-assistance claim to address both components of the inquiry if the petitioner fails to make a sufficient showing on one. Id.

In his first claim, appellant listed four witnesses that he asserted counsel should have called to testify, and he alleged that each would have testified concerning various instances of behavior that reflected his mental impairment following a drug overdose and the lack of successful treatment for it. Appellant also asserted that two of the witnesses would testify concerning statements made by one victim's mother, who worked for the Ashley County Sheriff s Department, about walking in on appellant and her daughter at the time that the alleged crime occurred and not having reported the incident. In the petition, appellant alleged that he was prejudiced by counsel's failure to call the witnesses because the testimony would have “shed light” on his competency and would have also shown that adults who had knowledge of the crime had failed to report it and that the crimes therefore fell outside the applicable statute of limitations.

To demonstrate prejudice from counsel's failure to call a witness, appellant must have shown that counsel could have presented specific admissible testimony. See McNichols v. State, 2014 Ark. 462, 448 S.W.3d 200 (per curiam); see also Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice, and neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective. Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam). To warrant postconviction relief on the ground that counsel was ineffective for failure to perform an adequate investigation, a petitioner must delineate the actual prejudice that arose from the failure to investigate and demonstrate a reasonable probability that the specific materials that would have been uncovered with further investigation—such as a witness's testimony—could have changed the trial outcome. Id.

In appellant's case, the issue of relevant testimony concerning his mental condition is narrowly limited to the issue of his competency to stand trial. So, appellant must demonstrate prejudice as to the question of whether he was capable of understanding the proceedings and assisting in his defense, and the described potential testimony from the witnesses had little bearing on that issue.

Appellant alleged that the witnesses would have testified that at times he had shown confusion, disorientation, and odd behavior, but the proposed testimony did little to address whether appellant was competent at the time of trial. As the trial court noted in its order denying postconviction relief, there was an evaluation of appellant conducted prior to his trial and, in the resulting report, the evaluating psychologist concluded that appellant had demonstrated competency. The court also noted that appellant had provided an additional evaluation report that had been prepared for an earlier trial and that the evaluating psychologist in that case also concluded that appellant was competent at that time.

None of the testimony that appellant alleged counsel might have put on at trial with additional investigation appeared at odds with the statements in those reports or with the experts' stated support for their conclusions on competency. None of the facts that appellant alleged would appear to have significance concerning the basis of the expert opinion regarding his competency for trial. The testimony was therefore not sufficient to have changed the outcome of the ruling that found appellant was competent and the trial court was not clearly erroneous in finding no prejudice.

On appeal, appellant also alleges that it was not reasonable for his attorney to fail to investigate the witnesses. Appellant's claim of ineffective assistance did not, however, satisfy the Strickland test because he did not demonstrate prejudice from the allegedly deficient performance. The trial court did not err in finding counsel was not ineffective for failing to investigate this issue.

The trial court only addressed the issue of the testimony going to the victim's mother having knowledge of the crime and the statute of limitations through its comments on appellant's related fifth claim of ineffective assistance.¹ We conclude, as further discussed in conjunction with the related issue below, that appellant also failed to demonstrate prejudice in that the witness testimony appellant described was insufficient to have changed the outcome at trial concerning this issue.

Appellant's second claim of ineffective assistance alleged that trial counsel had provided false information to the trial court concerning the retention of an independent expert to perform a mental evaluation and had failed to retain an expert to provide testimony concerning appellant's competency. Appellant provided no factual substantiation for his claim that counsel provided false information.

During the course of the proceedings, trial counsel indicated to the court on more than one occasion that she was going to retain an independent expert to perform a mental evaluation. There was a point, however, when appellant forced counsel to abandon any defense based on the theory that appellant had committed the crimes but was not guilty by reason of a mental disease or defect. On the record, trial counsel questioned appella...