State v. Fudge, CR 04-83.

• Decision Date: 14 April 2005
• Docket Number: No. CR 04-83.,CR 04-83.
• Parties: STATE of Arkansas, Appellant, v. James C. FUDGE, Appellee.
• Court: Arkansas Supreme Court

Page 850

206 S.W.3d 850

STATE of Arkansas, Appellant, v. James C. FUDGE, Appellee.

No. CR 04-83.

Supreme Court of Arkansas.

April 14, 2005.

Supplemental Dissenting Opinion of Denial or Rehearing May 26, 2005.

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Mike Beebe, Att'y Gen., by: Jeffrey A. Weber and Clayton K. Hodges, Ass't Att'ys Gen., Little Rock, for appellant.

Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, Little Rock, for appellee.

JIM GUNTER, Justice.

James C. Fudge was convicted of capital murder in the death of his wife, Kimberly Fudge, and was sentenced to death. We affirmed the conviction and sentence in Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Fudge then filed a Rule 37 petition requesting post-conviction relief, which was denied by the circuit court. On appeal, we reversed and remanded for further findings of fact and conclusions of law on certain issues related to Fudge's ineffective-assistance-of-counsel claim. See Fudge v. State, 354 Ark. 148, 120 S.W.3d 600 (2003). On remand, the circuit court issued an amended order denying all of Fudge's claims except for one. The court agreed with Fudge's claim that his penalty-phase counsel, Tammy Harris, was ineffective for failing to object to evidence of a purported prior conviction for first-degree battery, which was used by the State as evidence of an aggravating circumstance. Accordingly, the circuit court granted Fudge a new sentencing hearing. The State appeals, and Fudge cross-appeals.

Justice Glaze, Justice Dickey, and I would reverse on appeal and affirm on cross-appeal. Chief Justice Hannah and Justice Corbin would affirm on appeal and affirm on points B, C, D, and E on cross-appeal, but would not address point A on cross-appeal for reasons stated in Chief Justice Hannah's opinion. Justice Imber would affirm on both the appeal and the cross-appeal. Justice Brown would remand the case on appeal for additional findings of fact and conclusions of law and would affirm on cross-appeal. Therefore, our disposition is to affirm the trial court's findings on both the appeal and the cross-appeal.

We will not reverse the trial court's decision granting or denying post-conviction relief unless it is clearly erroneous. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). 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.; Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).

Both parties argue that the circuit court's decision granting relief in part and denying relief in part on the basis of ineffective assistance of counsel was clearly erroneous. Therefore, it is important in reviewing both the appeal and the cross-appeal to set forth the standard for determining whether counsel's assistance was ineffective. To prevail on a claim of ineffective assistance of counsel, Fudge must prove two things: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proof on component one requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id.; Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). Proof on component two requires a showing that counsel's errors were so serious as to deprive Fudge of a fair trial, a trial whose result is reliable. Id. This means that there is a "reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

In making its determination, the court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). That is, the petitioner must overcome the presumption that, "under the circumstances, the challenged action `might be considered sound trial strategy.' See Michel v. Louisiana, supra, 350 U.S. [91], at 101, 76 S.Ct. [158], at 164 [100 L.Ed. 83 (1955)]." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. If it is determined that counsel's performance was indeed deficient, this does not end the ineffective-assistance inquiry. Petitioner must prove the deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test." Id. at 693, 104 S.Ct. 2052. When a death sentence is being challenged, the petitioner must show that there is a reasonable probability that, absent the counsel's errors, the jury "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S.Ct. 2052. With these standards in mind, I turn to the allegations of ineffective assistance raised on appeal.

I. State's Appeal

The State's sole argument on appeal is that the circuit court erred by ruling that Fudge's trial counsel was ineffective for failing to object to the introduction of State's Exhibit 56, evidence regarding a purported first-degree battery conviction. The circuit court granted post-conviction relief on this claim, holding as follows:

[W]here the jury in a capital case was presented wrongly with evidence that the petitioner was previously convicted of the crime of battery in the first degree, when, in fact, the petitioner had only been convicted of robbery, a less violent offense, the failure to object to the introduction of such evidence, even where the exhibit thereto was not presented to the jury, constitutes representation deficient enough in a death-penalty case that it constitutes ineffective assistance of counsel and, indeed, denied this petitioner the constitutional right to counsel under the Sixth Amendment to the United States Constitution. Strickland, supra.

* * *

To allow the jury deliberating on sentencing in a death-penalty case to believe that the defendant previously has been convicted of the violent offense of battery in the first degree, when that is not the case, is so prejudicial as to warrant reconsideration in a new sentencing hearing.

In order to impose a sentence of death for capital murder, the jury must find beyond a reasonable doubt that at least one aggravating circumstance exists. Ark. Code Ann. § 5-4-603 (Repl.1997). The aggravating circumstance that the State presented to the jury in this case was that Fudge had been convicted of several prior felonies "an element of [each of] which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person." See Ark.Code Ann. § 5-4-604(3) (Supp.2003). The evidence introduced to support this aggravating circumstance was State's Exhibits Nos. 56, 57, and 58. These exhibits were never shown to the jury, but were simply read by the State's counsel to the jury as follows: (1) Exhibit 56 shows Fudge was convicted of battery in the first degree; (2) Exhibit 57 shows Fudge was convicted of two counts of terroristic threatening; and (3) Exhibit 58 shows Fudge was convicted of two counts of terroristic threatening.

Fudge does not dispute the admission into evidence—or the recitation to the jury regarding such admission—of either Exhibit 57 or Exhibit 58. Fudge argues that the recitation of Exhibit 56 was incorrect. He claims that the references to first-degree battery in Exhibit 56 do not amount to proof beyond a reasonable doubt that he was convicted of first-degree battery. He argues that the judgment in Exhibit 56 shows only that he was convicted of robbery. Therefore, he claims that his counsel's failure to object to the introduction of evidence of a first-degree-battery conviction constituted ineffective assistance of counsel. The circuit court agreed and granted Fudge a new sentencing hearing. I would hold that the circuit court's finding of ineffective assistance of counsel on this issue is clearly erroneous. Accordingly, I would reverse.

Exhibit 56 consists of four documents. The first document is a felony information charging Fudge with two crimes: count one—aggravated robbery; and count two—first-degree battery. The second document is a plea statement, stating that Fudge pleaded guilty on the charges of robbery and first-degree battery. Next, a criminal-docket sheet contains notes indicating that count one was reduced from aggravated robbery to robbery, the plea of not guilty was withdrawn, and a plea of guilty was entered. The docket sheet also states that the defendant was sentenced to eight years on each count concurrent with each other. Finally, the judgment and commitment order indicates that the State reduced the charge to robbery, and that Fudge withdrew a previous plea of not guilty and entered a plea of guilty. There is no specific mention made of count two, the first-degree battery charge, in the judgment and commitment order. However, it states that "the Court doth sentence and commit defendant to [eight] years imprisonment in the State Penitentiary on each count to run concurrent with each other." Whether Fudge was convicted of first-degree battery is not the issue before us. The issue is whether, under the facts and circumstances of this case, Ms. Harris's conduct constituted ineffective assistance of counsel. I would hold that it did not.

Fudge's penalty-phase counsel, Ms. Harris, testified in the Rule 37 hearing that Fudge admitted to her that he had been convicted of first-degree battery. She testified that Fudge was shown all of the exhibits—that is, Exhibits 56, 57, and 58— and that he said he "had" those convictions. Ms. Harris further testified that, having previously reviewed Exhibit 56, she believed the judgment and docket sheet were...