Wallace v. State Of Ark.
| Decision Date | 09 December 2010 |
| Docket Number | No. CR 09-714,CR 09-714 |
| Citation | 2010 Ark. 485 |
| Parties | TIMOTHY WALLACE Appellant v. STATE OF ARKANSAS Appellee |
| Court | Arkansas Supreme Court |
Appellant Timothy Wallace appeals the denial of his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2010). Appellant's petition alleged errors concerning the inadvertent passing to the jury of a transcript for a video of appellant's interview and confession that contained notes and marks by the prosecutor. In denying the petition without a hearing, the circuit court found that the transcript had no effect on the jury and that counsel was not ineffective for withdrawing his motion for mistrial on that basis. We hold that the denial of the petition was not error, and we affirm.
A jury found appellant guilty on two counts of capital murder and sentenced him to consecutive sentences of life imprisonment without parole. This court affirmed the judgment. Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580. Appellant filed a timely petition for relief under Rule 37.1 that presented claims that all centered upon the marked transcript and the court's and trial counsel's handling of that event, including claims of ineffective assistance ofcounsel. Appellant listed two claims of ineffective assistance and a due-process claim that appeared to include allegations of both ineffective assistance and an independent constitutional claim.1
On appeal, the State asserts that the trial court did not provide a ruling as to the due-process claim. The order does not specifically reference that claim. We need not address whether the order does provide a more general ruling addressing the issue, however, because the claim was not one cognizable in a Rule 37.1 petition in any event. See Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006) ().
Appellant claimed ineffective assistance of counsel on two bases: counsel withdrew his motion for mistrial and failed to preserve that argument; counsel failed to make an undue influence argument or ask the court to "poll" or question the individual jurors about whether an excused juror had discussed the notes with them. The petition failed to set forth facts to support such a claim because appellant failed to demonstrate that counsel could have presented a meritorious argument. Counsel is not ineffective for failing to make an argument that is meritless. Travis v. State, 2010 Ark. 341 (per curiam).
This court assesses the effectiveness of counsel under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Hampton v. State, 2010 Ark. 330 (per curiam); Polivka v. State, 2010 Ark. 152, ____ S.W.3d____. Underthe Strickland test, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Joiner v. State, 2010 Ark. 309 (per curiam). In addition, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. A defendant making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced the defense. Hampton, 2010 Ark. 330.
In order to meet the second prong of the Strickland test and show prejudice, appellant must have demonstrated that the argument that counsel failed to preserve, or should have made, would have had merit. See Eastin v. State, 2010 Ark. 275. A defendant who raises a challenge to the qualifications of a juror to serve impartially must overcome a presumption that the juror is unbiased and qualified to serve. See Adams v. State, 2009 Ark. 375, ___ S.W.3d ____. Prejudice is not presumed. Holloway v. State, 363 Ark. 254, 213 S.W.3d 633 (2005). There must be some proof offered that the juror would be precluded from serving. See Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008).
In appellant's case, when the court was advised that the transcript with the prosecution's notes had been passed to one of the jurors, it questioned the jury. One juror, Ms. Aldershof, indicated that she had been given the marked transcript. The court asked if any other jurors had seen any transcript with highlights or notations. The record reflects thatnone of the other jurors or the alternate responded to that question. After Ms. Aldershof was questioned apart from the other jurors, the court excused her.
Appellant contends that his attorney should have requested further questioning of the other jurors to determine if any had discussed the transcript with Ms. Aldershof. He...
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