Thompson v. State

• Decision Date: 31 October 2019
• Docket Number: No. CR-18-425,CR-18-425
• Citation: 2019 Ark. 312,586 S.W.3d 615
• Parties: Edward THOMPSON, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

2019 Ark. 312

586 S.W.3d 615

Edward THOMPSON, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-425

Supreme Court of Arkansas.

Opinion Delivered: October 31, 2019

Rehearing Denied December 19, 2019

Edward Lee Thompson, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

SHAWN A. WOMACK, Associate Justice

Edward Thompson sought postconviction relief based on allegations of ineffective assistance of trial and appellate counsel under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The circuit court was not persuaded by his claims and denied the petition. Thompson appeals that decision. We affirm.

I.

Tyler and Keye Ratley were leaving a Little Rock nightclub when they were attacked by Thompson and an accomplice. Tyler was walking behind his brother when Thompson attempted to rob him. The assailants fled when Keye ran to his brother's aid. As Keye chased after them, one of the men fatally shot him in the stomach. A witness observed the men drive away in a red P.T. Cruiser that had been reported as stolen the day before. After police recovered the stolen vehicle, they discovered Thompson's DNA inside. Thompson was later arrested after Tyler identified him in a photographic lineup.

A jury convicted Thompson of first-degree felony murder, aggravated robbery, felony theft, and misdemeanor theft. He was sentenced to life imprisonment plus an aggregate ninety years. We were not persuaded by Thompson's arguments on direct appeal. Thompson v. State , 2015 Ark. 271, 548 S.W.3d 129. Our independent review of the record, however, revealed a reversible error. Id. ; see Ark. Sup. Ct. R. 4-3(i) (2016). Thompson had been charged with capital felony murder predicated on aggravated robbery. But he was convicted of first-degree felony murder predicated on robbery. We accordingly reversed the aggravated robbery conviction and remanded with instructions for resentencing. Id. The remaining convictions and sentences were affirmed. Id.

After resentencing, Thompson timely petitioned for Rule 37 postconviction relief. His claims were premised on allegations of constitutionally deficient counsel both at trial and on direct appeal. The circuit court determined that Thompson failed to make the requisite showings under Strickland . His petition was denied, and this appeal followed.

II.

The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to the effective assistance of counsel. See Lee v. State , 2009 Ark. 255, at 3, 308 S.W.3d 596, 600. The benchmark for judging any claim of ineffectiveness is "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." Id. (quoting Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). The standard governing Thompson's ineffective assistance of counsel claims is the familiar two-prong test established in Strickland . See Liggins v. State , 2016 Ark. 432, at 2-3, 505 S.W.3d 191, 193-94. To prevail under Strickland , Thompson must show both that his attorney's performance was constitutionally deficient and that he was prejudiced as a result. Id.

To establish deficient performance, Thompson must show that counsel's representation fell below an objective standard of reasonableness. Id. But judicial scrutiny of counsel's performance is highly deferential: The Strickland analysis begins with "a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. This presumption may be overcome only by showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Luper v. State , 2016 Ark. 371, at 3, 501 S.W.3d 812, 815-16. Thompson must identify specific acts and omissions which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

With respect to prejudice, Thompson must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (internal quotations omitted). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. State v. Fudge , 361 Ark. 412, 415, 206 S.W.3d 850, 853 (quoting Strickland , 466 U.S. at 693, 104 S.Ct. 2052 ). Indeed, the likelihood of a different outcome must be "substantial, not just conceivable." Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland , 466 U.S. at 687, 104 S.Ct. 2052.

Unless Thompson satisfies both prongs, it cannot be said that his conviction resulted from a breakdown in the adversarial process that rendered the result unreliable. See Gordon v. State , 2018 Ark. 73, at 5, 539 S.W.3d 586, 591. Accordingly, there is no reason for a court "to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland , 466 U.S. at 697, 104 S.Ct. 2052.

We will not reverse the denial of postconviction relief unless the circuit court's findings were clearly erroneous. See Liggins , 2016 Ark. 432, at 2, 505 S.W.3d at 193. Clear error exists where, after reviewing the totality of the evidence, we are left with the definite and firm conviction that a mistake has been made. Id. With these standards in mind, we proceed to the merits of this appeal.

A.

With respect to trial counsel's performance, Thompson appeals the circuit court's rejection of four alleged errors.¹ Those errors include: (1) failure to timely object to Tyler's identification; (2) failure to object to jury instructions on accomplice liability; (3) failure to investigate and object to the admission of video evidence; and (4) failure to seek a hearing to redact improper character evidence from Thompson's custodial statement. We affirm the circuit court's decision on each point.

1.

Thompson's first point is premised on counsel's failure to contemporaneously object to Tyler's identification. Counsel twice moved to suppress Tyler's pretrial and in-court identifications but was unsuccessful. The alleged error, however, arose from counsel's failure to object during Tyler's testimony at trial. This omission rendered the matter unpreserved for appellate review. See Thompson , 2015 Ark. 271, at 4-5, 548 S.W.3d at 131-32. Had the matter been preserved, Thompson contends it would have been reversible error on appeal for violation of due process. The circuit court concluded that Thompson failed to identify facts that established prejudice under Strickland .

A pretrial identification violates due process when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. King v. State , 323 Ark. 558, 561, 916 S.W.2d 725, 727 (1996). Even when the process is suggestive, the circuit court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be decided by the jury. Id. In determining reliability, the court considers: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Id. We do not reverse a ruling on the admissibility of identification unless it is clearly erroneous, and we will not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. See Williams v. State , 2014 Ark. 253, at 6, 435 S.W.3d 483, 486.

Thompson argues that the two photographic lineups that led to Tyler's identification were unduly suggestive. Citing the reliability factors above, he claims that the trial court erroneously denied trial counsel's motion to suppress the pretrial identification based on those lineups. Thompson asserts error because his photograph was the only one to appear in both lineups. He also claims that the second lineup, which produced Tyler's positive identification, included an outdated photograph of him and did not match Tyler's initial description of the perpetrator. He also asserts error on the basis that Tyler failed to identify him in the first lineup, which included the most recent photograph of him, and because a month had passed between the crime and Tyler's identification. ²

Thompson failed to show that the trial court clearly erred in denying the motion to suppress the pretrial identification. The fact that Thompson was the only individual whose photograph was in both lineups was not unduly suggestive. This is because, as Thompson concedes, the two photographs were different. See King , 323 Ark. 558, 916 S.W.2d 725. His remaining claims are equally unpersuasive. See Milholland v. State , 319 Ark. 604, 893 S.W.2d 327 (1995) (identification two months after crime reliable); Mills v. State , 322 Ark. 647, 910 S.W.2d 682 (1995) (discrepancy in initial description did not render identification unreliable in light of victim's certainty). In sum, Thompson failed to demonstrate that the photo lineups produced an inevitable result and that he was prejudiced by counsel's conduct. Moreover, the factors regarding the reliability of an in-court identification need not be addressed if the pretrial identification process is determined to be not unduly suggestive. See King, supra. Therefore, it was...