Sims v. State
| Decision Date | 08 October 2015 |
| Docket Number | No. CR–15–153,CR–15–153 |
| Parties | Brian Elam Sims, Appellant v. State of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.
Appellant Brian Elam Sims appeals the 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, Sims contends that the circuit court erred in rejecting his seven claims of ineffective assistance of counsel and by denying his petition without a hearing. We affirm on all issues.
The prosecuting attorney in Pulaski County charged Sims with the offenses of first-degree murder, second-degree battery, and aggravated assault. Sims's first trial ended in a mistrial after it was discovered that his attorney had been suspended from the practice of law. The record of the second trial reflects that the charges stemmed from an incident that occurred on September 24, 2011, at the Rock City Lounge in Little Rock. According to the testimony, Sims and his wife, Charleena Sims, were at the bar for a birthday celebration with Charleena's sister, Hannah Monroe; Hannah's boyfriend, Chris Martis; and Chris's aunt and uncle, Michelle and Rodney Brazeal. Robert Cauley was an acquaintance of the bartender, Tina Powell, and Robert arrived at the lounge with his friend, Thomas Jones, at approximately 1:30 a.m. to help Tina close the bar.
At closing time, Robert and Thomas were in the kitchen eating pizza when they heard a commotion outside the bar. By all accounts, Charleena was causing a disturbance. The witnesses described her as "belligerent," and "out of control" and said that she was yelling and screaming, cussing at everyone, "throwing legs and arms," beating on the windows, and kicking the door of the bar. Robert, who stood six-feet tall and weighed 258 pounds, approached Charleena from behind and "bear hugged" her. With Hannah's help, Robert carried Charleena to the Simses' vehicle and placed her inside. Tina testified that she saw Sims walk down the sidewalk carrying a knife cupped in his hand and held behind his back.
Thomas testified that Robert remained at the Sims's vehicle in a kneeling position and that he appeared to be conversing with someone inside the car. Thomas stated that Sims approached Robert from the rear and struck Robert on either his shoulder or his neck. Upon seeing this altercation, Thomas ran toward the Simses' vehicle and found Sims on top of and straddling Robert, as Robert lay on his back on the ground. Thomas testified that Sims was stabbing Robert, as Robert pleaded for Sims to stop. Thomas intervened, during which time Sims stabbed Thomas. Thomas testified that he placed his left hand on Sims's shoulder and said that Sims struck upwards twice, hitting Thomas's hand and his arm.
Rodney also observed Robert in a crouched position beside the Simses' car. He testified that Sims was behind Robert and that he saw Sims swing at Robert, striking Robert in the lower back. Like Thomas, Rodney ran to the area, observed Sims on top of Robert, and saw Sims stabbing Robert. Rodney also testified that Robert was asking Sims to stop stabbing him. Rodney dislodged the knife from Sims's hand and threw Sims backwards. Rodney secured the knife, and he, Thomas, and others tended to Robert's wounds
.
In her testimony, Hannah stated that she walked to her car after putting Charleena in the vehicle. She next saw Rodney running in the direction of the Simses' vehicle. Hannah said that she did not know who was driving the Simses' vehicle, but she testified that the vehicle backed up and stopped before leaving the parking lot. She stated that Sims and Charleena exited the car and that they took turns waving a gun at the crowd. Hannah testified that both Sims and Charleena pointed the gun at her.
Robert died at the hospital days later. Dr. Charles Paul Kokes, the chief medical examiner, testified that the cause of death was multiple stab wounds
. Specifically, Robert had been stabbed seven times. He received two stab wounds to the right upper chest; one in the lower left side of the chest; one to the lower left side of the back; another to the middle of the back; one to the back right shoulder; and lastly, one to the back side of the right thigh.
Sims testified and asserted that he had killed Robert, whom he did not know, in self-defense. Sims said that he noticed a crowd around his vehicle when he walked out of the bar. He denied that he saw Robert carry Charleena to their vehicle. Sims stated that Charleena was seated in the front passenger seat when he reached the car and that he was standing beside the driver's side door and about to get inside to leave, when someone struck him in the head. He testified that the blow knocked him to the ground and that, when he looked up, he saw a "humongous" man coming down upon him. Sims said that he feared for his and his wife's lives and that he retrieved a knife from his back pocket and began swinging upward. He did not recall anyone else touching him and had no recollection of stabbing Thomas. Sims stated that he was able to roll to the side after the last time he struck Robert and that someone pushed Robert off of him. He said that no one took the knife from him and that he immediately got into his car to leave. Sims denied having a firearm in his hand at any time.
A jury in the Pulaski County Circuit Court found Sims guilty as charged of first-degree murder, second-degree battery, and aggravated assault. As a consequence, he received an aggregate term of thirty-three years' imprisonment. The court of appeals affirmed his convictions and sentences. Sims v. State, 2014 Ark. App. 312, 2014 WL 2013413. Thereafter, Sims filed a timely, verified petition for postconviction relief claiming that he had received ineffective assistance of counsel at trial. In his petition, Sims alleged that counsel's performance was deficient because he failed to request various jury instructions. He also claimed that his counsel was ineffective with respect to his handling of evidentiary issues.1 The circuit court entered an order denying the petition without a hearing. Sims now appeals, challenging the circuit court's findings and the court's failure to hold a hearing.
On review, we assess the effectiveness of counsel under the two-prong 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 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel's performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. 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. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. 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. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895.
In order to satisfy the second prong of the Strickland test, the petitioner must show that counsel's deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. In assessing prejudice, courts "must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695, 104 S.Ct. 2052. There is no reason for a court deciding an ineffective-assistance claim to address both components of the inquiry if the defendant makes an insufficient showing on one. Decay v. State, 2014 Ark. 387, 441 S.W.3d 899.
The first four issues that Sims raises on appeal concern jury instructions. He contends that the circuit court erred in concluding that his trial counsel was not ineffective by failing to offer proper instructions. We address his arguments in order.
As his first point on appeal, Sims contends that counsel neglected to ensure that a complete instruction on extreme-emotional-disturbance manslaughter was provided to the jury. The circuit court granted Sims's request, that in addition to instructions on first-and second-degree murder, to give an instruction on the lesser-included offense of extreme-emotional-disturbance manslaughter. A person commits this category of manslaughter if he causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. Ark. Code Ann. § 5–10–104(a)(1)(A) (Repl. 2013).
Sims's trial took place in the wake of our decision in Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643, where we held that the standard step-down provision of the AMI Crim.2d 301 instruction on lesser-included offenses effectively foreclosed the jury's consideration of extreme-emotional-disturbance manslaughter. Thus, we agreed with...
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