Stalnaker v. State

• Citation: 464 S.W.3d 466,2015 Ark. 250
• Decision Date: 28 May 2015
• Docket Number: No. CR–14–1083,CR–14–1083
• Parties: Danny Stalnaker, Appellant v. State of Arkansas, Appellee
• Court: Supreme Court of Arkansas

2015 Ark. 250

464 S.W.3d 466

Danny Stalnaker, Appellant

v.State of Arkansas, Appellee

No. CR–14–1083

Supreme Court of Arkansas.

Opinion Delivered May 28, 2015

Danny Stalnaker ; pro se appellant.

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

Opinion

PER CURIAM

In 2013, Danny Stalnaker was found guilty by a jury of murder in the second degree and being a felon in possession of a firearm. He was sentenced as a habitual offender to an aggregate term of 540 months' imprisonment and a fine of $20,000. The Arkansas Court of Appeals affirmed. Stalnaker v. State, 2014 Ark. App. 412, 437 S.W.3d 700.

Subsequently, Stalnaker timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013), claiming that he was denied effective assistance of counsel. The trial court denied the petition. Stalnaker brings this appeal.¹

We do not reverse the grant or denial of postconviction relief unless the trial court's findings are clearly erroneous. Lemaster v. State, 2015 Ark. 167, 459 S.W.3d 02. 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. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.

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). Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show that counsel's performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the Sixth Amendment. Id. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable, Lemaster, 2015 Ark. 167, 459 S.W.3d 802.

Stalnaker was originally charged with first-degree murder in the death of Chris Patterson. Evidence adduced at trial reflected that Stalnaker and Patterson were at a camping area and that Patterson, who was heavily intoxicated, had been annoying other persons throughout the day with verbal abuse and threats of physical harm. In the evening, Stalnaker retrieved a shotgun, exchanged some words with Patterson, who was seated at a picnic table, and then struck Patterson on the side of the head with the stock of the shotgun. Stalnaker said that he acted out of fear of Patterson, he did not intend to kill him, and he did not realize that Patterson would die from the blow. The medical examiner described the injury as significant and life threatening.

At trial, Stalnaker's counsel requested that the jury be instructed on the justifiable use of “physical force” because Stalnaker believed that he was defending himself from Patterson's threat of physical force, as found in Arkansas Model Jury Instruction—Criminal 704. The trial court denied the request and offered to give the “deadly physical force” instruction found in Arkansas Model Jury Instruction—705. Counsel declined 705, arguing that the facts would not support that instruction. Counsel ultimately withdrew the request that the jury be instructed on a justification defense at all and proffered 704. Counsel also proffered jury instructions on the lesser included offenses of negligent homicide and manslaughter after the trial court declined to instruct the jury on those offenses.

On direct appeal, Stalnaker raised the issue of whether the trial court abused its discretion in declining the proffered justification-defense instruction in 704. The court of appeals held that there was no abuse of discretion in declining 704 because the facts supported the “deadly physical force” instruction in 705, if any justification defense.

In his Rule 37.1 petition, Stalnaker alleged that counsel was ineffective because counsel abandoned the strategy of “self-defense, negligent homicide and/or manslaughter” without his permission. As his first issue in this appeal, he argues that counsel was remiss in not objecting when the trial court declined to instruct the jury on negligent homicide and manslaughter as lesser included offenses and that counsel was ineffective by not raising the issue on direct appeal. He further argues that counsel should not have withdrawn his request for an instruction on justification.

With respect to the issue concerning the jury instructions for negligent homicide and manslaughter, as stated, the record reflects that counsel specifically sought instructions on negligent homicide and manslaughter and proffered instructions on those offenses when the court denied the request for the instructions. Therefore, counsel did raise the issue at trial and obtained a ruling on it. As to whether counsel was ineffective for not raising the issue on direct appeal, a petitioner contending that his appellate attorney was ineffective for failing to raise an issue must demonstrate that he was prejudiced by counsel's decision. To establish prejudice, the petitioner bears the burden of demonstrating that there was an issue that would have been meritorious on direct appeal and would have resulted in relief from the judgment. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. Appellant did not make that showing.

To establish that there would have been merit to the issue of whether the trial court erred in declining to give the instructions, Stalnaker appears to rely primarily on his belief that the trial court in its order misstated or misunderstood the facts of the case or failed to come to the correct conclusion, i.e. that Stalnaker acted in self-defense. He essentially argues that the facts, if accepted from his perspective, were not sufficient to sustain the judgment of conviction. Stalnaker's interpretation of the facts itself, however, is not a showing that the court of appeals would have reversed the judgment if counsel had raised on appeal the issue of the trial court's refusal to give instructions on negligent homicide and manslaughter.

The sufficiency of the evidence, including the credibility of witnesses, was a matter to be decided at trial. Stalnaker's stringent disagreement with the trial court's statements concerning the facts of the case is not a ground to reverse the order denying postconviction relief. Moreover, to the extent that Stalnaker was asking the trial court in his Rule 37.1 petition to reassess the question of whether the facts supported the judgment, Rule 37.1 does not provide a means to attack the weight of the evidence to support the conviction. Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam). The claim amounts to a direct attack on the judgment. Id. As such, a challenge to whether the evidence was sufficient to sustain the judgment is a matter to be raised at trial and on the record on appeal. Leach v. State, 2015 Ark. 163, 459 S.W.3d 795 (2015). It is well settled that Rule 37.1 does not afford an opportunity to a convicted defendant to challenge the sufficiency of the evidence merely because the petitioner has raised the challenge as an allegation of ineffective assistance of counsel. Nickelson v. State, 2013 Ark. 252, 2013 WL 2460147 (per curiam).

Therefore, the sole question cognizable under the Rule is whether counsel erred by not raising on direct appeal the issue of the trial court's declining to give the proffered instructions on the two lesser included offenses. Stalnaker did not meet his burden of demonstrating that counsel was ineffective because he failed to show that the issue would have been meritorious. In assessing prejudice, courts “must consider the totality of the evidence before the judge or jury.” Strickland, 446 U.S. at 695, 100 S.Ct. 1945. Here, there was evidence that Patterson, who had a blood alcohol content four times the legal limit for intoxication, was seated with his legs under a picnic table. Stalnaker went to retrieve a shotgun and, after briefly exchanging words with Patterson, swung the gun with great force “like a baseball swing” and struck Patterson in the head. Stalnaker testified that he struck Patterson because Patterson stood up and threatened him, but no other witness testified to Patterson's having threatened Stalnaker. There was testimony only that Patterson was verbally belligerent, obnoxious, and had made general threats to “kick” or “whoop” people. Considering the totality of the evidence adduced at trial and the court of appeals' decision that the facts supported a verdict of second-degree murder, Stalnaker did not establish that he was entitled to an instruction on negligent homicide or manslaughter. Stalnaker has not shown that there is a reasonable probability that the outcome of the trial would have been different had an instruction on the lesser included offenses been given to the jury. See Rasul v. State, 2015 Ark. 118, at 6, 458 S.W.3d 722.

Turning to the issue of whether counsel was ineffective in not asking for a jury instruction on justification as a defense, counsel proffered jury instruction 704, which required a showing that the perpetrator was justified in using “physical force” to defend himself. Counsel argued that 704 was the only jury instruction appropriate to the facts of the case. Counsel declined the court's offer to instruct the jury in accordance with jury instruction 705, which required a showing that “deadly physical force” was justified because counsel did not consider that the facts would support a showing that Stalnaker was justified in using deadly physical force. Rather than accept 705, counsel...