Cuningham v. State
2013 Ark. 304
Ark.2013Background
- Dellemond Cunningham was convicted in 2009 of being an accomplice to aggravated robbery, accomplice to theft of property, felon in possession of a firearm, and intimidating a witness; total sentence 444 months. His conviction for witness intimidation was previously affirmed on direct appeal.
- Cunningham filed a timely pro se Rule 37.1 postconviction petition asserting ineffective assistance of trial counsel and prosecutorial misconduct; the trial court denied relief and he appealed.
- The Rule 37.1 hearing developed facts about (1) a State-disclosed gang expert whose testimony was excluded for untimely disclosure and lack of qualifications; (2) counsel’s trial strategy choices (seeking exclusion rather than continuance, keeping a juror despite voir dire comment, not moving for mistrial after contested testimony, and decisions about hearsay and documentary evidence); and (3) unsuccessful attempts to admit a transcript of a police interview of a witness, Barving Price.
- The trial court found counsel’s choices were reasonable trial strategy and that Cunningham failed to show prejudice under the Strickland standard.
- The Supreme Court of Arkansas reviewed the denial for clear error, applied Strickland v. Washington’s two-prong test (performance and prejudice), and affirmed the denial of postconviction relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Untimely disclosure of State gang expert / Brady violation | Prosecutor failed to timely disclose gang expert; possible Brady violation and trial-prep prejudice | Expert was excluded by trial court; no testimony admitted; no material favorable evidence was suppressed | Held: No prejudice; no Brady violation shown; claim not cognizable in Rule 37.1 alone |
| Counsel failed to seek continuance after expert disclosure | Counsel should have moved for continuance to obtain/consult an expert and avoid surprise | Counsel strategically sought exclusion of expert to avoid emphasizing gangs; tactical decision | Held: Decision was reasonable trial strategy; no ineffective assistance |
| Counsel failed to excuse potentially biased juror | Juror said "if he has nothing to hide, it won’t hurt anything," and counsel knew defendant would not testify—should have struck juror | Counsel believed juror was not biased, would be favorable, and juror affirmed she could follow instructions; tactical choice | Held: No showing of actual bias or prejudice; juror-presumption of impartiality stands; strategic choice reasonable |
| Failure to move for mistrial / failure to admit transcript / failure to object to hearsay | Counsel should have moved for mistrial after detective’s testimony, properly admitted Price interview transcript, and objected to hearsay | Objections overruled; limiting instruction given; transcript ruled inadmissible; strategic decision not to object to some testimony | Held: Mistrial was not clearly warranted; transcript properly excluded by trial court; hearsay objections claimed too general to show prejudice; no ineffective assistance shown |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective-assistance claims: performance and prejudice)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s suppression of material favorable evidence violates due process)
- Williams v. State, 369 Ark. 104 (2007) (discussing counsel-performance standard and presumption of reasonable assistance)
- McCraney v. State, 360 S.W.3d 144 (Ark. 2010) (per curiam) (presumption that counsel’s conduct is within wide range of reasonable professional assistance)
- Abernathy v. State, 386 S.W.3d 477 (Ark. 2012) (per curiam) (petitioner must show counsel’s performance fell below objective standard)
- Howard v. State, 238 S.W.3d 24 (Ark. 2006) (reasonable-probability standard for prejudice includes sentencing impact)
- Butler v. State, 384 S.W.3d 526 (Ark. 2011) (per curiam) (jury selection and tactical choices are not automatic grounds for relief)
- Zachary v. State, 188 S.W.3d 917 (Ark. 2004) (mistrial is drastic remedy; instruction may cure error)
- Hoyle v. State, 388 S.W.3d 901 (Ark. 2011) (per curiam) (trial-strategy choices on objections generally not basis for relief)
- Nance v. State, 4 S.W.3d 501 (Ark. 1999) (advocates may reasonably differ about objecting; excessive objections can emphasize issues to jury)
- Weatherford v. State, 215 S.W.3d 642 (Ark. 2005) (per curiam) (affirming deference to counsel’s reasonable strategic decisions)