621 S.W.3d 140
Ark.2021Background
- Gerald Lowery was convicted by a Miller County jury of rape and second-degree sexual assault of a six‑year‑old and was sentenced to consecutive terms of life and 240 months; this court affirmed on direct appeal in Lowery v. State, 2019 Ark. 332.
- Lowery filed a pro se Rule 37.1 postconviction petition alleging multiple instances of ineffective assistance by trial counsel Kerry Wood and Jason Mitchell (failure to investigate/subpoena records and witnesses, conflicts, failure to object to evidence/argument, etc.).
- Trial evidence included testimony by the victim T.L., testimony by Lowery’s daughter B.B. describing earlier abuse, and a law‑enforcement report referencing allegations by Lowery’s niece M.N.; M.N. denied abuse at trial.
- The trial court’s Rule 37.1 order addressed some but not all of Lowery’s claims and denied relief under the Strickland standard; Lowery appealed focusing on claims the trial court omitted.
- The Supreme Court of Arkansas held that most omitted claims were waived for failure to obtain rulings below or were abandoned on appeal, and it affirmed the trial court’s denials as to the claims preserved for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court’s failure to rule on some petition claims | Lowery: court erred by not addressing admissibility/credibility issues (e.g., B.B.) | State: appellant failed to obtain rulings below; unruled issues are waived | Waived — failure to obtain rulings below bars appellate review |
| Counsel failed to obtain B.B.’s medical/psych records and investigate Pulaski County matters | Lowery: counsel’s investigation would have shown B.B.’s allegations lacked merit (Pulaski nolle prosequi) | State: records privileged (Ark. R. Evid. 503); no legal basis for disclosure; counsel not ineffective for failing to obtain privileged materials | Denied — counsel not ineffective; privilege bars compelled disclosure; no prejudice shown |
| Admission of references to M.N./Kirkland report and related cross‑examination | Lowery: all references to M.N. should have been excluded; counsel failed to object | State: related cross‑examination issue was litigated on direct appeal and found harmless; Rule 37 cannot reargue direct‑appeal issues | Denied / barred — claim already decided on direct appeal; cannot be relitigated on Rule 37 |
| Conflict of interest based on Wood’s prior child‑advocacy work and courtroom demeanor | Lowery: Wood’s prior work and hostility created a conflict and presumed prejudice | State: no actual conflict of interest; alleged conduct was trial strategy; Strickland prejudice standard applies | Denied — no actual conflict, no demonstrated prejudice; counsel presumed effective |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing two‑prong ineffective‑assistance standard)
- Lowery v. State, 2019 Ark. 332 (direct appeal affirming convictions and addressing related evidentiary issues)
- Brown v. State, 2017 Ark. 364 (appellant must obtain rulings on omitted issues to preserve appellate review)
- Kemp v. State, 348 Ark. 750 (Rule 37 does not permit reargument of points decided on direct appeal)
- Townsend v. State, 350 Ark. 129 (actual conflict requirement and prejudice burden for other conflict claims)
- Mickens v. Taylor, 535 U.S. 162 (analysis of conflict‑of‑interest prejudice and limits on presumed prejudice)
- Winfield v. Roper, 460 F.3d 1026 (discussion on presumption of prejudice and conflict claims)