Conley v. State, 2014 Ark. 172

Appellant Vernell R. Conley was charged by amended information with delivery of a controlled substance (crack cocaine), possession of a controlled substance (marijuana) with intent to deliver, and possession of drug paraphernalia (digital scales); he was also alleged to be an habitual offender.
Trial occurred August 26, 2010; the State’s evidence showed delivery of crack cocaine to undercover officers (Sept. 15, 2009) and search of Conley’s home (Nov. 6, 2009) uncovered marijuana and scales.
Jury convicted Conley of delivery and possession of scales; acquitted on marijuana with intent to deliver but convicted of the lesser offense of possession of marijuana; marijuana was also found in the master bedroom.
Sentencing: habitual-offender enhancements yielded 60 years for delivery, 6 years for possession of a controlled substance, and 30 years for paraphernalia; sentences run concurrently with each other and consecutively to the delivery sentence.
Court of Appeals affirmed; this court granted postconviction relief relief petition, amended petition followed, and circuit court denied relief on ineffective-assistance claims.
This opinion affirms in part and reverses/remands in part, directing dismissal of two possession charges and leaving the rest for disposition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for not calling promised witness	Conley claims trial counsel promised a witness would testify that marijuana and paraphernalia were not his; failure to call violated Strickland.	Conley’s wife would have testified; prosecutor threatened to charge her; counsel reasonably avoided perjured testimony.	Affirmed on this point; no prejudice shown.
Directed-verdict motions on possession charges	Counsel failed to make meritorious directed-verdict motions; insufficient evidence linked Conley to contraband.	State failed to prove possession beyond reasonable doubt; constructive possession insufficient.	Reversed and remanded to dismiss possession of a controlled substance and possession of drug paraphernalia.
Severance of possession charges from delivery	Trial strategy required severance to preserve claims; failure to sever prejudiced defense.	Severance issue moot after dismissal of possession charges; no need to decide merits.	Not reached/abandoned due to dismissal of possession charges.
Sufficiency of the evidence to support possession convictions	Without sufficient evidence, directed-verdict would have been meritorious.	Evidence supported some possession theories; jury verdicts reflect credibility determinations.	Not necessary to decide separately since possession convictions were dismissed.

Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (opening-statement witness promises and strategy review (voir dire on alibi/defense))
Wells v. State, 2013 Ark. 389, 430 S.W.3d 65 (2013) (sufficiency standard; substantial evidence review)
Green v. State, 2013 Ark. 497, 430 S.W.3d 729 (2013) (directed-verdict/insufficiency; standard for review)
Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147 (2009) (constructive possession framework; pivotal factors)
Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) (joint occupancy and possession inference)
McAleese v. Mazurkiewicz, 1 F.3d 159 (1993) (premise: failure to call promised witnesses can be prejudicial)
Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783 (2011) (opening-statement promises and evaluation of prejudice)
Harris v. Reed, 894 F.2d 871 (1990) (promissory-witness prejudice rationale)