Strain v. State, CR 10–888.

• Decision Date: 02 February 2012
• Docket Number: No. CR 10–888.,CR 10–888.
• Citation: 394 S.W.3d 294,2012 Ark. 42
• Parties: Rickey C. STRAIN, Jr., Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2012 Ark. 42

394 S.W.3d 294

Rickey C. STRAIN, Jr., Appellant

v.STATE of Arkansas, Appellee.

No. CR 10–888.

Supreme Court of Arkansas.

Feb. 2, 2012.

Jeff Rosenzweig, for appellant.

Dustin McDaniel, Atty. Gen., by: Eileen W. Harrison, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant Rickey C. Strain, Jr., was convicted by a Jefferson County jury of first-degree murder and was sentenced to 300 months' incarceration in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Strain v. State, 2009 Ark. App. 99, 2009 WL 398117 (unpublished). Appellant then filed a petition for review in this court, which was denied. Strain v. State, CR 09–219 (Ark. May 14, 2009) (unpublished per curiam order).

Appellant subsequently filed in the trial court a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009), in which he argued that trial counsel had been ineffective for failing (1) to make a complete and thorough argument for a directed verdict, (2) to seek the appropriate jury instructions regarding accomplice liability, (3) to seek severance of appellant's trial from his codefendant's trial, and (4) to properly arguethat a witness's prior inconsistent statement could not be considered by the jury for the truth of the matter stated. That petition was denied following an evidentiary hearing, and appellant now brings the instant appeal of that denial. Because appellant has not established that the circuit court's denial was clearly erroneous, we affirm.

This court does not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. Reed v. State, 2011 Ark. 115, 2011 WL 913208 (per curiam). 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. In an appeal from a trial 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 United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam); Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam). Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Reese v. State, 2011 Ark. 492, 2011 WL 5589268 (per curiam) (citing State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007)). Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to such an extent that the appellant was deprived of a fair trial. See id.

With respect to the requirement that prejudice be established, a petitioner must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel that, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Carter v. State, 2011 Ark. 226, 2011 WL 1896765 (per curiam).

For his first point on appeal, appellant argues that trial counsel was ineffective for failing to make a complete and thorough motion for directed verdict, which prevented the appellate court from ruling on the sufficiency of the evidence. In its opinion affirming appellant's conviction, the Arkansas Court of Appeals found that appellant's insufficiency-of-the-evidence argument was not preserved because trial counsel's directed-verdict motion “[did] not specifically state how the evidence was insufficient or even mention what element of the crime was not proven.” Strain, 2009 Ark. App. 99, at 4, 2009 WL 398117. Trial counsel's motion was conclusory and, in effect, only argued that there was not any evidence “that could be used against these two defendants.” Arkansas Rule of Criminal Procedure 33.1(a) (2009) specifies that a motion that merely states that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency, such as insufficient proof on the elements of the offense.

According to appellant, had counsel made a more specific motion for directed verdict—pointing out that no witnesses had testified that appellant had fired a gun, that there were inconsistencies between one witness's police report and his testimony at trial, and that another witness was a crack dealer with a lengthy arrest record—“[t]he circuit court would have granted a dismissal or a reduction on such grounds and, if not, the appellate court would have reversed and dismissed.”

To prevail on a claim of ineffective assistance of counsel based on counsel's failure to preserve an issue for appeal, a petitioner must show that, had the issue been preserved, the appellate court would have reached a different decision. See generally Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam) (appellant required to establish actual speedy-trial violation to show ineffective assistance based on counsel's failure to preserve speedy-trial issue for appeal); Sparkman, 373 Ark. 45, 281 S.W.3d 277 (failure to preserve issue of suppression of a custodial statement for appeal was ineffective assistance where statement was actually taken in violation of Sixth Amendment right to counsel). In the instant case, therefore, appellant must demonstrate that the appellate court would have found that the evidence adduced at trial was insufficient to support a conviction and would have overturned his conviction for that reason.

This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52 (citing Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004)). The appellate court reviews the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Id. (citing Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002)). This court affirms a conviction if substantial evidence exists to support it. Stone, 348 Ark. 661, 74 S.W.3d 591. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).

Here, appellant's conviction was supported by evidence that he and his codefendant were driving through the area shortly before the murder occurred, that one of the witnesses had purchased cocaine from appellant and his codefendant, that the same witness subsequently spotted “the same two people that [he] had met just prior to this kicking the crap out of someone, and then [he] saw them shoot,” that a second witness identified both appellant and the codefendant as the men who beat the victim, and that the second witness placed both defendants near the victim when the fatal shots were fired. Based on this, it is clear that the conviction was supported by substantial evidence, and counsel was accordingly not ineffective for failing to preserve the sufficiency-of-the-evidence issue for appeal. The trial court was therefore not clearly erroneous in denying relief on this point.¹

Appellant's second argument on appeal is that trial counsel was ineffective for failing to request three specific jury instructions: (1) the “mere presence” jury instruction, AMI Crim.2d 404, which would have informed the jury that the mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice; (2) an instruction based on Arkansas Code Annotated section 5–2–406 (Repl.2005), which would have specified that appellant was only criminally liable for the degree of the offense that was consistent with his culpable mental state or his accountability for an aggravating fact or circumstance; and (3) an instruction based on Arkansas Code Annotated section 5–2–403, which would have altered AMI Crim.2d 401 to require that the jury determine whether appellant was acting with the requisite mental state for a murder conviction in order to hold him liable as an accomplice to that murder.

According to appellant, these instructions, both collectively and separately, would have established that appellant could not be convicted solely based on his presence at the murder scene, that the State had to prove some specific intent to cause the murder in order to convict appellant therefor, and that appellant could only be convicted of a degree of homicide that matched his personal culpability. Appellant argues that omitting these instructions fell below a reasonable standard of care, and there was no strategic or tactical reason for leaving this omission. Further, appellant argues that prejudice is established under Strickland because there is a reasonable probability that appellant would have been acquitted or convicted of a lesser offense had these instructions been given.

Regarding the “mere presence” instruction, we have repeatedly held that it is implicit in the accomplice-liability instruction—which states that a party must solicit, advise, encourage, coerce, aid, agree to aid, or attempt to...