Shreck v. State

• Decision Date: 26 August 2020
• Docket Number: No. CR-19-877,CR-19-877
• Citation: 2020 Ark. App. 354,605 S.W.3d 278
• Parties: Richard SHRECK, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2020 Ark. App. 354

605 S.W.3d 278

Richard SHRECK, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-877

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: August 26, 2020

Craig Lambert, Little Rock, for appellant.

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

ROBERT J. GLADWIN, Judge

Appellant Richard Shreck appeals the Faulkner County Circuit Court's second denial of his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1 (2019) on remand from this court, see Shreck v. State , 2019 Ark. App. 85, 572 S.W.3d 35 ( Shreck III ). Shreck argues that the circuit court erred in finding that his trial counsel provided effective assistance because counsel failed to object to certain evidence of "snuff" sex¹ and bondage sex introduced during the guilt phase of trial and also failed to investigate and present a complete defense regarding Shreck's intent. We affirm.

I. Background

On May 27, 2015, Shreck was convicted by a jury on two counts of conspiracy to commit rape. He was sentenced to the maximum thirty-year sentence on each count, to be served consecutively, and the maximum fine of $15,000. Shreck's direct appeal to this court was unsuccessful. Shreck v. State , 2016 Ark. App. 374, 499 S.W.3d 677 ( Shreck I ). The Arkansas Supreme Court granted Shreck's petition for review and ultimately affirmed. See Shreck v. State , 2017 Ark. 39, 510 S.W.3d 750 ( Shreck II ). The mandate issued on March 7, 2017.

II. Petition for Postconviction Relief and Rule 37 Hearing

Shreck then filed a timely petition for postconviction relief in the Faulkner County Circuit Court, alleging that his trial counsel had been ineffective in a number of respects. Without holding an evidentiary hearing, the circuit court denied Shreck's Rule 37 petition in a three-paragraph letter order on March 26, 2018. On April 4, Shreck filed a motion requesting reconsideration and the entry of adequate findings of fact and conclusions of law. The circuit court denied the motion in a one-sentence order filed April 10. Shreck appealed, and this court reversed and remanded for the circuit court to either make sufficient written findings to support its denial of relief or hold an evidentiary hearing. See Shreck III , supra .

The circuit court held an evidentiary hearing on June 17, 2019, at which Shreck's trial counsel, Jack Lassiter; Shreck's wife, Kathy; and Shreck testified. Following the hearing, the circuit court again denied Shreck's Rule 37 petition in a letter order filed on August 2, which included the following findings:

The Court first addresses the allegation raised in the petition regarding the lack of any object[ion] to the testimony of Officer Shannon Cook and the use of the word "snuff" in her testimony. Counsel is correction [sic] in that a motion hearing was held prior to trial wherein it was agreed that there would be no discussion of that issue. During Ms. Cook's testimony[,] the word was mentioned[,] and the petitioner's attorney alleges that failure of trial counsel to object at this point was evidence of his failure to represent Mr. Shreck under the standards required by the case law. The Court has reviewed the testimony regarding the motion as well as the testimony of Officer Cook and finds that the [c]ourts have recognized that making objections to the introduction of evidence is within the scope of trial counsel's discretion. The testimony elicited from Ms. Cook and the context in the transcript is that Mr. Shreck in the course of their Faulkner, Searcy[,] and Van Buren Counties discussions indicated that he would not participate in "snuff" sex. Admittedly[,] there was some rather disturbing testimony offered after that[;] however, the context of the testimony is such that the Court believes that this would be a matter of the trial counsel[']s discretion. Also[,] that testimony was not covered by the pretrial motion. Mr. Lassiter could not offer an answer for his failure to object[,] but this does not affect the Court's conclusion.

[Mr. Shreck] next contends that there was testimony regarding bondage[,] and no objection was made. Such testimony appeared in the transcript on [pages] (356–357) and again at pages (502–503) of the transcript. Further, the Court makes the same determination with regard to the admissibility of that testimony as previously set forth in the testimony regarding "snuff" sex. It was an issue that was before the trial counsel and his judgment on not making an objection will not be a basis for finding that he was ineffective.

The third allegation raised is that trial counsel was ineffective for failing to investigate and present a complete defense. In this regard[,] counsel for Mr. Shreck argues that [there] was in fact a real "Brooke Stumbaugh" and that Mr. Shreck had familiarized himself with her and had determined that she had no small children. This was amplified by the fact that he drove up next to her car at the Walmart parking lot and had time to recognize that there were no children in the vehicle[,] and [he] remained without attempting to drive off. Officer Chad Wooley testified that [Mr.] Shreck was there approximately 10–15 seconds before the officers arrived as [sic] his vehicle. The testimony is clear that while Mr. Shreck remained in that location for 10–15 seconds[,] it was also noted in the testimony that the parties had agreed that nothing illegal would happen that night. It could be as easily assumed that Mr. Shreck[,] recognizing that there were no children in the car[,] determined that this was in furtherance of their agreement not to do anything illegal that night. It is his contention that the existence of "Brooke Stumbaugh" should have been pursued[;] however[,] the testimony is replete with the messages between Officer Cook and Mr. Shreck regarding the use of young children and sexual acts. After the [sic] claims to have made the discovery.

Further, the Court notes that Mr. Shreck and [Officer Cook] had exchanged photographs[,] which [Officer Cook] testified was not a photograph of the Brooke Stumbaugh located by Mr. Shreck. Mr. Shreck testified that he had located a photograph of the woman he believed to be Brooke Stumbaugh. For their communication after that point would certainly be a matter for [t]rial [c]ounsel to weight [sic] in making a determination on what defense to pursue. To now allege that his attorney was ineffective for failing to pursue this does not give rise for a finding by the Court that Mr. Lassiter's representation was below the standard required.

Again, the Court is of the opinion that this was trial strategy which comes under the heading of the trial attorney's discretion.

Shreck filed a timely notice of appeal on August 16, and this appeal followed.

III. Standard of Review

Our supreme court reiterated the standard of review in postconviction-relief cases in Johnson v. State , 2020 Ark. 168, at 4–6, 598 S.W.3d 515, 519–20 :

When reviewing a circuit court's ruling on a petitioner's request for Rule 37.5 relief, this court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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 made. Id. , 60 S.W.3d at 406.

When considering an appeal from a circuit court's denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the circuit court clearly erred in holding that counsel's performance was not ineffective. Sparkman v. State , 373 Ark. 45, 281 S.W.3d 277 (2008). In making this determination, we must consider the totality of the evidence. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006).

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." Strickland , 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland , we assess the effectiveness of counsel under a two-pronged standard. First, a petitioner raising a claim of ineffective assistance 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. Williams v. State , 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Springs [v. State ], 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. , 387 S.W.3d 143.

Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. , 387 S.W.3d 143. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard , 367 Ark. 18, 238 S.W.3d 24. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. , 238 S.W.3d 24. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. , 238 S.W.3d 24. "[T]here is no reason for a court deciding an ineffective assistance claim ... to address

...