Thomas v. State

• Decision Date: 06 November 1997
• Docket Number: No. CR,CR
• Citation: Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (Ark. 1997)
• Parties: Nathaniel THOMAS, Appellant, v. STATE of Arkansas, Appellee. 96-803.
• Court: Arkansas Supreme Court

Page 255

954 S.W.2d 255

330 Ark. 442

Nathaniel THOMAS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-803.

Supreme Court of Arkansas.

Nov. 6, 1997.

Phillip M. Hendry, Little Rock, for Appellant.

Winston Bryant, Attorney General, Brad Newman, Assistant Attorney General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant Nathaniel Thomas appeals the denial of relief under Arkansas Rule of Criminal Procedure 37 from the Pulaski County Circuit Court. Appellant asserts that the trial court erred in denying the Rule 37 petition because his attorney was ineffective by failing to timely renew the motion for directed verdict at the conclusion of Appellant's case, thus barring a challenge to the sufficiency of the evidence on appeal. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(4). We affirm.

Appellant was charged along with three other men, James Ellison, Lawrence Butler, and Clayton Phillips, with three counts of capital murder in the shooting deaths of Cyrus Lee, Sabrina Earl, and Marcus Johnson at an apartment in Little Rock on February 19, 1992. He was tried before a jury on December 9 and 10, 1992, and found guilty of the capital murder of Cyrus Lee, and the first-degree murders of Sabrina Earl and Marcus Johnson. Appellant received respective sentences of life imprisonment without parole and two terms of forty years' imprisonment to run concurrently together, but consecutive to the life term.

On appeal to this court, Appellant raised two points for reversal, one regarding the sufficiency of the evidence and the second concerning the admissibility of custodial statements. Neither argument had merit, and we affirmed the judgment of the trial court. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). The record of the trial demonstrated that Appellant's counsel did not attempt to renew the directed-verdict motion until the jury had begun its deliberations, after being prompted by the trial court. This court held that Appellant's sufficiency argument was thus not preserved for appeal, because he failed to timely renew his motion for directed verdict after he had presented evidence in his defense. A defendant who goes forward with the production of additional evidence after a directed-verdict motion is overruled waives any further reliance upon the former motion. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992).

Following our affirmance of the direct appeal, Appellant filed in the trial court a petition for postconviction relief pursuant to Rule 37, which was subsequently denied. Appellant then appealed that ruling, and this court reversed and remanded so that the trial court could address Appellant's allegation that his trial counsel was ineffective for failing to properly preserve his challenge to the sufficiency of the evidence. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). In that opinion, this court prospectively overruled the holdings in Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987), and Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991), that an allegation of ineffective assistance of counsel based on counsel's failure to move for a directed verdict was not cognizable under Rule 37.

On remand, the trial court again denied the requested relief under Rule 37, after having reviewed the evidence regarding Appellant's allegation that counsel had been ineffective in the representation of Appellant for failing to timely renew the motion for directed verdict. The trial court found in its order:

As the record from the trial reflects, at the end of the State's case, Petitioner's counsel made a detailed and thorough motion for a directed verdict. The Court overruled the motion, explaining that the State had provided sufficient evidence for the case to be presented to the jury. The fact that Petitioner's counsel did not renew the directed verdict after the defense rested does not alter the sufficiency of the evidence presented by the State, which in the Court's view, had already reached the amount necessary to proceed to the jury. It cannot be said that but for counsel's failure to renew the motion, the factfinder, in this case the jury, would have reached a different conclusion on the guilt or innocence of Petitioner, since the Court had already determined that the State could proceed with its case. [Emphasis added.]

The question before us now is what standard of review should we apply in determining whether the trial court erred in reviewing its own previous decision to deny Appellant's motion for directed verdict. We conclude that the appropriate standard of review for this issue is whether the trial court's decision was clearly erroneous or clearly against the preponderance of the evidence presented at trial and during the hearing on the Rule 37 petition. For reasons set out below, we conclude that the trial court was not clearly erroneous in denying Appellant's requested relief under Rule 37.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced his defense. Judicial review of counsel's performance must be highly deferential, and a fair assessment of counsel's performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Id.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Thomas, 322 Ark. 670, 911 S.W.2d 259. 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. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair 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. In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Thomas, 322 Ark. 670, 911 S.W.2d 259.

Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Huls, 301 Ark. 572, 785 S.W.2d 467. In Huls, this court found that even if a timely objection at trial could have prevented the jury from hearing a witness's testimony, the testimony, when taken with the entire evidence presented at trial, did not lead to a conclusion that there was a reasonable probability that the jury would have acquitted petitioner if the witness had not testified. In making a determination on a claim of counsel's ineffectiveness, we must consider the totality of the evidence presented to the judge or jury. Id.

Normally, to prevail on a claim of counsel's ineffectiveness, the appellant must demonstrate that but for counsel's errors, the jury would have reached a different conclusion. In the present case, that cannot be the focus of our inquiry because if the directed-verdict motion had been timely renewed and granted, the matter would not have gone to the jury. The trial court in this case seemed to be puzzled because the case was remanded for a determination of whether counsel was ineffective due to the failure to renew the directed-verdict motion. The trial judge...