Airsman v. State, 2015 Ark. 409

Background

Don Airsman, Jr. was convicted of first-degree murder in Hempstead County in 2013 and sentenced to life; this court affirmed the conviction on direct appeal (Airsmann v. State, 2014 Ark. 500).
Airsman filed a pro se Rule 37.1 postconviction petition raising four broad claims: juror misconduct (a juror’s improper contact with deputies and alleged whispering by Airsman’s father), and three prosecutorial-misconduct theories (immunity promise to father, improper handling/display of firearms in court, and failure to play a recording fully).
The trial court denied the Rule 37.1 petition without an evidentiary hearing, finding the allegations conclusory and insufficient to warrant relief under Rule 37.3. Airsman appealed that denial.
The appellate review applied Strickland’s two-prong ineffective-assistance framework where applicable: (1) deficiency of counsel and (2) prejudice to the defense.
The court declined to consider several arguments Airsman raised on appeal because they were not presented below in the trial court and thus barred from Rule 37.1 review.
On the merits, the court held Airsman’s claims were either procedurally barred in a Rule 37.1 proceeding, conclusory, based on self-serving allegations without corroboration, or failed to show how counsel’s conduct met Strickland’s deficiency and prejudice requirements; the Rule 37.1 denial was affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Juror misconduct / failure to remove juror	Airsman: juror had improper contact with deputies and father whispered “self-defense” to jurors; counsel/trial court should have removed juror or inquired further	State: claim was not raised at trial, is not cognizable on Rule 37.1, and Airsman produced only self-serving, uncorroborated assertions	Dismissed: claim procedurally barred in Rule 37.1 or, if construed as ineffective assistance, failed for lack of proof and prejudice
Prosecutor misplayed recording	Airsman: prosecutor failed to play video from beginning, omitting portion showing a deal with witness; counsel failed to object	State: prosecutorial-misconduct claims must be raised at trial/direct appeal; counsel’s alleged failure is conclusory and lacks specified remedial action or prejudice	Dismissed: procedurally improper in Rule 37.1; ineffective-assistance claim insufficiently pleaded
Prosecutor promised immunity to witness / courtroom misconduct (weapons)	Airsman: prosecutor promised immunity to his father and waved pistols causing juror outbursts	State: such misconduct claims belong on direct appeal/trial; petitioner fails to show counsel’s specific error or resulting prejudice	Dismissed: not cognizable in Rule 37.1; conclusory ineffective-assistance allegations fail Strickland
Trial-counsel conflict / failure to present mitigation or testify	Airsman: conflict of interest and counsel’s conduct (not testifying, no mitigation) undermined defense	State: issues not raised below; allegations conclusory and fail to meet Strickland’s specificity and prejudice requirements	Dismissed: procedurally barred or insufficiently pleaded to warrant relief

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong standard)
Airsman v. State, 2014 Ark. 500 (direct-appeal decision affirming conviction)
Williams v. State, 369 Ark. 104 (presumption that counsel’s conduct is within professional norms)
Henington v. State, 2012 Ark. 181 (burden to identify specific acts or omissions by counsel)
Holloway v. State, 2013 Ark. 140 (prejudice requirement under Strickland)
Howard v. State, 367 Ark. 18 (prejudice and procedural limits on raising claims)
Hayes v. State, 2011 Ark. 327 (Rule 37 limitations on juror-misconduct claims)
Robertson v. State, 2010 Ark. 300 (trial error not raised at trial cannot be raised in Rule 37)
Camp v. State, 2015 Ark. 90 (self-serving allegations insufficient for Rule 37 relief)
Scott v. State, 2012 Ark. 199 (prosecutorial-misconduct claims belong on direct appeal)