State v. Harrison

• Decision Date: 14 June 2012
• Docket Number: No. CR 10–638.,CR 10–638.
• Citation: 2012 Ark. 198,404 S.W.3d 830
• Parties: STATE of Arkansas, Appellant v. Kenneth HARRISON, Appellee.
• Court: Arkansas Supreme Court

2012 Ark. 198
404 S.W.3d 830

STATE of Arkansas, Appellant
v.
Kenneth HARRISON, Appellee.

No. CR 10–638.

Supreme Court of Arkansas.

May 10, 2012.
Rehearing Denied June 14, 2012.

[404 S.W.3d 832]

Dustin McDaniel, Atty. Gen. and David R. Raupp, Senior Asst. Atty. Gen., for appellant.

Kenneth Harrison, pro se.

DONALD L. CORBIN, Justice.

[2012 Ark. 1]Appellant, the State of Arkansas, appeals the order of the Pulaski County Circuit Court granting Appellee, Kenneth Harrison, a new trial on his petition for postconviction relief filed pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. As Rule 37 proceedings are civil in nature, the State may bring this appeal pursuant to Rule 2(a)(3) of the Arkansas Rules of Appellate Procedure—Civil (providing for appeal from an order granting a new trial). State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1–2(a)(8) (2011). We cannot say the circuit court's findings are clearly erroneous, and we affirm the order granting postconviction relief.

Harrison was tried and convicted of the capital murder of Fulton Watson. The murder occurred at an automobile repair shop where Harrison, Watson, and other witnesses worked. Harrison also lived near the repair shop. Two eyewitnesses, Jacque Snider and Shuntae Ingram, testified and identified Harrison as Watson's killer. The jury sentenced Harrison to [2012 Ark. 2]life imprisonment without parole. We affirmed the conviction and sentence. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007).

Harrison then filed a petition pursuant to Rule 37. The circuit court held a hearing on the petition, and then entered an order granting a new trial. The State lodged its appeal. We did not initially reach the merits of the appeal, however, because the record did not demonstrate that Harrison's petition was timely filed and thus that the circuit court had jurisdiction. Accordingly, we reversed and vacated the order granting postconviction relief. State v. Harrison, 2011 Ark. 297, 2011 WL 3137615 (per curiam). Harrison filed a motion for reconsideration and attached the circuit court's docket sheet that indicated the possibility that the petition had been timely filed. We remanded for the circuit court to make findings of fact and

[404 S.W.3d 833]

conclusions of law on the jurisdictional question. State v. Harrison, 2011 Ark. 467, 2011 WL 5248223 (per curiam). The circuit court returned its findings, and we received a supplemental record demonstrating that the verified petition was filed on February 25, 2008. As this court issued its mandate in the direct appeal on December 27, 2007, the petition was in fact timely filed within sixty days pursuant to Rule 37.2(c)(ii) of the Arkansas Rules of Criminal Procedure. We therefore granted the motion for reconsideration, and the merits of the appeal are now before us.

The circuit court granted relief on Harrison's petition based on its finding that trial counsel was ineffective for failing to discover the juvenile adjudication for capital murder of Shuntae Ingram, one of the two eyewitnesses who testified to Harrison's murder of Watson, and for failing to use that conviction to impeach Ingram at trial or to investigate Ingram's background and develop a strategy of defense implicating Ingram as the perpetrator of [2012 Ark. 3]Watson's murder. Because Ingram had given inconsistent statements between the investigation of the case and the trial, the circuit court concluded that Harrison had demonstrated he was prejudiced by counsel's failure to investigate Ingram's background. This appeal followed.

For reversal of the order granting postconviction relief, the State asserts that the circuit court erred in three ways. First, the State contends the circuit court's finding that Harrison was prejudiced by trial counsel's failure to uncover witness Ingram's juvenile adjudication for capital murder directly contradicts this court's conclusion on direct appeal that Harrison had not demonstrated prejudice from the prosecutor's failure to disclose the juvenile adjudication. Second, the State contends that the circuit court's finding that trial counsel's failure to uncover Ingram's adjudication and rely on it to implicate Ingram is contrary to Rule 609 of the Arkansas Rules of Evidence, and Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). Third, the State contends that both of the circuit court's findings as to prejudice, even if legally possible to reach despite the law-of-the-case doctrine and previously mentioned evidentiary bars, are clearly erroneous given the other evidence of Harrison's guilt presented at trial. Each of its arguments on appeal turns on the prejudice prong of the test, as the State contends that the circuit court erred in finding that Harrison met his burden of demonstrating prejudice.

This court will reverse a circuit court's decision granting postconviction relief only upon a showing that the court's finding was clearly erroneous. State v. Brown, 2009 Ark. 202, 307 S.W.3d 587. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that [2012 Ark. 4]a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id. Our standard of review requires that 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, 2012 Ark. 155, 400 S.W.3d 694.

In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel's performance was deficient. Id. 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. Id. The reviewing court must indulge in a strong presumption

[404 S.W.3d 834]

that counsel's conduct falls within the wide range of reasonable professional assistance. Id. 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. Id.

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. Id. 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. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

[2012 Ark. 5]Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[T]here 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.” Anderson v. State, 2011 Ark. 488, at 3–4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052).

For its first point for reversal, the State argues that the circuit court erred in finding that Harrison was prejudiced by trial counsel's failure to uncover Ingram's juvenile adjudication for capital murder because such a finding directly contradicts this court's conclusion on direct appeal of no prejudice. In short, the State contends that the doctrine of law of the case forecloses the possibility of relief on an ineffective-assistance-of-counsel claim due to this court's no-prejudice holding on the impeachment issue in the direct appeal.

Under the doctrine known as law of the case, the “decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review.” Washington v. State, 278 Ark. 5, 7, 643 S.W.2d 255, 256 (1982) (citing Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919)). The doctrine prevents an issue raised in a prior appeal from being raised in a subsequent appeal “unless the evidence materially varies between the two appeals.” Fairchild v. Norris, 317 Ark. 166, 170, 876 S.W.2d 588, 590 (1994). However, the doctrine is not limited to issues raised in prior appeals as the doctrine was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Id. Accordingly, the conclusion of [2012 Ark. 6]the court in one opinion becomes the law of the case on subsequent proceedings on the same cause and the matter is res judicata. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000) (discussing the doctrine in the context of an appeal from a decision on a petition for postconviction relief asserting a claim of ineffective assistance of counsel). However, in order for the law-of-the-case doctrine to bar consideration of an issue, the merits of the claim must previously have been addressed and the claim must have been adjudicated. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003); see also Parmley v. Hobbs, 2011 Ark. 75, 2011 WL 573830 (per curiam); Mosley v. Norris, 2010 Ark. 501, 2010 WL 5185784 (per curiam); Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam); Jackson v. State, 2009 Ark. 572, 2009 WL 3788895 (per curiam).

[404 S.W.3d 835]

In the present case, despite the State's assertion to the contrary, this court's decision on Harrison's previous direct appeal did not address or adjudicate the same issue he now raises in his postconviction proceedings. On...