Terrell v. State

• Decision Date: 21 April 2021
• Docket Number: No. CR-20-491,CR-20-491
• Citation: 2021 Ark. App. 179
• Parties: CHRISTOPHER W. TERRELL APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Court of Appeals

2021 Ark. App. 179

CHRISTOPHER W. TERRELL APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-491

ARKANSAS COURT OF APPEALS DIVISION IV

April 21, 2021

APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT

[NO. 56CR-15-21]

HONORABLE KEITH L. CHRESTMAN, JUDGE

AFFIRMED

STEPHANIE POTTER BARRETT, Judge

Christopher Terrell appeals the Poinsett County Circuit Court's order denying his Rule 37 petition for postconviction relief. Ark. R. Crim. P. 37.1 (2017). In his petition, Terrell argued his trial counsel was ineffective for three reasons: (1) failure to move for suppression of physical evidence on the basis of illegal entry into Terrell's residence; (2) failure to timely appeal his motion for new trial due to juror misconduct; and (3) failure to move for suppression of cell-phone site-location information. The circuit court denied Terrell's petition without a hearing. We affirm.

Terrell was convicted of first-degree murder in the November 29, 2014 death of James Hunt and sentenced to twenty-three years in prison. His conviction was affirmed by this court on direct appeal. Terrell v. State, 2019 Ark. App. 433, 587 S.W.3d 594.

I. Standard of Review

We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Slater v. State, 2017 Ark. App. 499, 533 S.W.3d 84. 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 a mistake has been committed. Id. In making a determination of a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.

In Kauffeld v. State, 2019 Ark. App. 29, at 2-3, 569 S.W.3d 348, 351, this court set forth the framework for analyzing an ineffective-assistance-of-counsel claim:

The benchmark for judging a claim of ineffective assistance of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668 (1984). Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance of counsel must show that his counsel's performance fell below an objective standard of reasonableness. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Osburn v. State, 2018 Ark. App. 97, 538 S.W.3d 258. Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Id.

II. Suppression Issues

On appeal, Terrell addresses his two suppression arguments—failure of his trial counsel to move to suppress physical evidence found at his residence and his cell-phone site-location information—together.

A. Physical Evidence

Terrell's first claim that he received ineffective assistance of counsel concerns counsel's failure to file a motion to suppress physical evidence.¹ The circuit court found two reasons to deny Terrell's Rule 37 petition on this point—(1) Terrell was on parole at the time of Hunt's murder, and as a parolee, he was subject to warrantless searches under Arkansas Code Annotated § 16-93-106,² and (2) Terrell could not demonstrate he was prejudiced by the failure to seek suppression of the physical evidence because this court's holding affirming the sufficiency of the evidence to support his conviction did not turn on evidence Terrell believed should have been suppressed.

The facts surrounding Hunt's murder were set forth in detail in Terrell's 2019 direct appeal to this court. Terrell and Hunt both had a sexual relationship with Betty Grant. When Hunt's body, which had sustained a shotgun wound to the head, was discovered bylaw enforcement beneath his burned truck on a levee in Marked Tree, Terrell and Grant became persons of interest after Hunt's wife told law enforcement that they had been with her husband prior to his death, and she had received a call from Terrell on November 27, 2014, asking if she knew where Grant was. Grant initially told the police that she had accidentally killed Hunt, but she later recanted and stated that Terrell had killed Hunt. Grant testified that on November 29, she saw Terrell holding something wrapped in a blue shirt; Terrell told her to get in her car; she and Terrell drove to the levee; Terrell called Hunt to bring gas to them at the levee; Grant fell asleep but awoke to a loud noise and saw Hunt bleeding from his face; and she then watched Terrell drag Hunt to the bottom of the levee, drive Hunt's truck to the bottom of the levee, pour gas on the truck, and set it on fire.

Joseph Wilson testified that Terrell had asked him on November 29 if he could get Terrell a gun, and he told Wilson that he was going to "take care of some business." Wilson later saw Terrell sitting in Grant's car at the levee.

Lloyd Watson³ testified that he heard a vehicle speed by his house on the night of November 29 and park next door at Terrell's brother's house. The next day, Watson observed Terrell remove items from that vehicle, including a tire, gas cans, and clothes, which Watson recognized as belonging to Grant. Watson also saw Terrell remove the door panels from the vehicle. Terrell placed all the items he removed from the vehicle in a detached garage on his brother's property. After obtaining a search warrant, police seized door panels,a pair of jeans, and gas cans from the detached garage. A pair of boots was also taken from inside the residence. Although blood was found on the boots and jeans, there was insufficient DNA to determine to whom the blood belonged.

The State argues, and we agree, that even if the above items should have been suppressed, Terrell cannot show prejudice by the failure to file a motion to suppress because there was overwhelming evidence from witness testimony to support his conviction without the seized items. This court, in recognizing that the jury was entitled to believe Grant's testimony that Terrell was the person who killed Hunt and in holding there was sufficient evidence to support Terrell's conviction, stated,

Although Grant did not see the shot being fired, she heard it and immediately thereafter saw Hunt dying from a gunshot wound to his face. She then saw Terrell drag Hunt's body, position Hunt's truck over the body, and light the truck on fire. Earlier that day, Terrell had asked Joseph Wilson for help acquiring a gun that he needed to "take care of some business." Wilson saw Terrell at the levee the afternoon of the murder. After the murder, Lloyd Watson saw Terrell disposing of items from Grant's car. A jury may properly consider an attempt to cover up one's connection to a crime as proof of a purposeful mental state. Stearns [v. State, 2017 Ark. App. 472, 529 S.W.3d 654]. Viewing the evidence in the light most favorable to the State, we hold that substantial evidence supports the conviction.

Terrell, 2019 Ark. App. 433, at 7, 587 S.W.3d at 600. Grant's eyewitness testimony identified Terrell as the person who murdered Hunt. None of the items Terrell claims were improperly seized provided any evidence linking Terrell to the murder since there was insufficient DNA to determine whose blood was on the boots and jeans. The circuit court was not clearly erroneous in denying Terrell's Rule 37 petition on this point.

B. Cell-Phone Site-Location Information

Terrell argues in his Rule 37 petition that his counsel was ineffective for failing to move for suppression of his cell-phone site-location information because it was obtained without a warrant. He bases this contention on the United States Supreme Court's decision in Carpenter v. United States, 138 S. Ct. 2206 (2018), which held that the government's seizure of cell-site location data is a Fourth Amendment search that requires a warrant. However, as Terrell admits, Carpenter was not decided until June 22, 2018, more than two months after he was convicted and sentenced on April 12, 2018. In Toledo v. United States, 581 F.3d 678, 681 (2009), the Eighth Circuit Court of Appeals held:

We do not evaluate counsel's performance using "the clarity of hindsight, but in light of the facts and circumstances at the time of trial." Carter v. Hopkins, 92 F.3d 666, 669 (8th Cir. 1996) (citation omitted). Counsel is not accountable for unknown future changes in the law. See Horne v. Trickey, 895 F.2d 497, 500 (8th Cir. 1990) (not ineffective assistance of counsel to fail to foresee "a significant change in existing law."); Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999) (not ineffective assistance of counsel to "fail [ ] to anticipate a change in the law").

Failure to move to suppress cell-site location data at the time of trial cannot be ineffective assistance of counsel based on the decision in Carpenter because it was not the law at the time of Terrell's conviction. We therefore affirm the circuit court's denial of Terrell's Rule 37 petition on this point.

III. Motion for New Trial

In Terrell's remaining point on appeal, he argues that the circuit court erred in denying his claim for ineffective assistance of counsel because the denial of his motion for a new trial was not...