Wainwright v. State

• Decision Date: 13 January 1992
• Docket Number: No. CR,CR
• Citation: 823 S.W.2d 449,307 Ark. 569
• Parties: Kirt WAINWRIGHT, Petitioner, v. STATE of Arkansas, Respondent. 89-79.
• Court: Arkansas Supreme Court

Page 449

823 S.W.2d 449

307 Ark. 569

Kirt WAINWRIGHT, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 89-79.

Supreme Court of Arkansas.

Jan. 13, 1992.

Kirt Wainwright, pro se.

Edward F. Cochran, Bradley, David Malaby, Texarkana, for petitioner.

Clint Miller, Asst. Atty. Gen., Little Rock, for respondent.

PER CURIAM.

The petitioner Kirt Wainwright was found guilty by a jury of capital felony murder in 1989 and sentenced to death by lethal injection. This court affirmed. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); cert. den. 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991). Petitioner now seeks permission to proceed in circuit court pursuant to Criminal Procedure Rule 37. ¹ The petition contains some forty or more allegations, many of which petitioner concedes were raised only to satisfy procedural considerations with an eye to pursuing a petition for writ of habeas corpus in federal court should that be necessary at a later date. We will address the issues one-by-one in approximately the order raised in the petition.

Defense counsel was ineffective for failing to challenge the constitutionality of the trial court's limitation of expenses for expert forensic, ballistic, and psychiatric testimony.

At the time petitioner was tried Ark.Code Ann. § 16-92-108 (1987) set out certain limitations on expenses and fees imposed for court-appointed attorneys for indigent clients accused of criminal offenses. Since that time we found the fee cap statute unconstitutional. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991).

Counsel for appellant requested and received funds in excess of the statutory amount allowed under the statute for expert testing and testimony for his trial, but he did not receive as much as he requested. On appeal, petitioner argued that the trial court erred in denying sufficient funds to secure the services and testimony of a psychiatric expert. We found no error. Petitioner contends that if counsel had challenged the statutory fee cap, the challenge would have been successful and the trial court would have been less hampered in awarding fees for psychiatric and forensic testing and testimony and thus counsel was ineffective. We do not accept petitioner's conclusion.

While it can always be said that a defendant could have benefitted from more money to spend on his defense, a petitioner cannot establish that his attorney was ineffective for not securing additional funds merely by reciting testing which could have been done or witnesses which could have been called had there been more money available. Assertions of ineffective assistance of counsel must be examined in light of the criteria set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Court held that the benchmark for judging any claim of ineffectiveness 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. The criteria apply to both capital sentencing proceedings as well as the guilt phase of a capital trial. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

To prove ineffective assistance of counsel under the Strickland standard, the petitioner must show first that counsel's performance was deficient in that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction or death sentence resulted from a breakdown in the adversarial process that renders the result unreliable. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The petitioner 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. Even if counsel's conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. A reasonable probability that, but for counsel's conduct the result of the proceeding would have been different, is a probability sufficient to undermine confidence in the outcome.

Trial counsel sought expenses to pay for additional psychological expert testimony, to employ an independent forensic expert to study the autopsy findings, to employ a ballistics expert, and for a sociologist to help in preparing the defense and to testify in mitigation of punishment. The requests were denied, and petitioner has not demonstrated that had counsel on appeal challenged the fee cap that the judgment would have been reversed on appeal, especially since this court had previously upheld the statute's constitutionality. State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980). Trial counsel presented a zealous defense in behalf of an accused against whom there was ample evidence of guilt. Petitioner has offered no factual substantiation that convinces us that there is a reasonable probability that the outcome of either the guilt or sentencing phases of the trial would have been different had the jury heard specific testimony of a specific witness. Petitioner's most specific assertion is that Dr. Irwin Stone, a ballistic's expert, could have testified conclusively that an alleged accomplice Dennis Leeper fired the weapon used to kill the store clerk. This allegation, however, falls short of establishing that counsel's failure to raise the fee cap issue on appeal deprived the petitioner of a fair trial and appeal whose outcome can be relied on as just.

Attorneys at trial were ineffective in failing to object to the trial court's exclusion of venirepersons Steed and Johnson for cause.

Two prospective jurors, Steed and Johnson, were excused by the court after each expressed a preference for imposing a death sentence in cases where the evidence showed that the murder had been committed in the course of a robbery. Petitioner asserts that counsel should have objected under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon the Court held that a state may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed in voir dire examination that they had conscientious scruples against, or were otherwise opposed to, capital punishment. In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); see also Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the court said that as a general proposition a juror may not be challenged for cause based on his views about capital punishment, unless those views would prevent, or substantially impair, the performance of his duties as a juror in accordance with his instructions and his oath. It is the trial court which must decide if the juror's views would prevent or substantially impair performance of his or her duty as a juror, and great deference must be given to the trial judge who sees and hears the potential jurors. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990).

Here, Steed said that if it were proven that the accused took a life, his life should be taken too. He further stated that if the state proved its case that a life had been taken, he probably would not consider imposing a sentence of life imprisonment without parole. He also said that he would be able to follow the court's instructions and give consideration to both life without parole and death as appropriate punishments. Venirewoman Johnson said that she believed that the state had the right to take a life as punishment for certain crimes and that she would be able to vote to impose the death penalty in a case where capital murder was proven. She further stated at one point that she would be unwilling to consider life without parole as a punishment where a life had been taken during a robbery. Although she said that she would be able to follow the court's instructions and at least give consideration to both possible punishments, she also expressed several times a leaning toward the death penalty.

Under these circumstances, when considering the deference which must be given to the trial court which was in a position to hear the words of the venirepersons and consider their demeanor, we cannot say that the court was wrong to excuse either Steed or Johnson for cause. Moreover, it is not clear how petitioner could have been prejudiced by the trial court's action since both the jurors clearly looked upon capital punishment with favor.

Counsel was ineffective in not raising and supporting a motion to suppress petitioner's statements on the ground that the statements were coerced.

Counsel challenged the admissibility of four statements made by the petitioner to the police on the ground that the statements were not freely and voluntarily given. Only the fourth statement was incriminatory. After a pretrial hearing on the voluntariness of the statements, the trial court ruled that the statements were admissible. The issue of the voluntariness of the second statement and the inculpatory fourth statement was raised on appeal. This court made an independent determination of the voluntariness of the statements and upheld the trial court's decision. Counsel also challenged two other statements, one made during a search of his cell and another made to his co-defendant Leeper. These statements were introduced into evidence in the penalty phase of the trial. We sustained the trial court's ruling that those statements were admissible. Petitioner contends that Leeper in a post-trial interview said that the first statement petitioner...