Turner v. State, 2016 Ark. 96

Background

Turner was convicted by a Columbia County jury of possession with intent to deliver (cocaine and methamphetamine) and maintaining a drug premises and sentenced to an aggregate 86 years; the appellate court previously affirmed his convictions.
Turner filed a timely Rule 37.1 postconviction petition alleging ineffective assistance of trial counsel on two grounds: (1) failure to object to alleged improper prosecutorial remarks in rebuttal closing; and (2) failure to move to dismiss for violation of the speedy-trial rule or to create an adequate record on excluded delay periods.
The circuit court denied the Rule 37.1 petition without an evidentiary hearing; Turner appealed that denial to the Arkansas Supreme Court.
On the closing-argument claim, the court reviewed whether prosecutors’ rebuttal comments (challenging defense testimony that Turner lived elsewhere, a vague “you didn’t hear” remark, and an arguably veiled reference to not testifying) were improper and whether counsel’s failure to object amounted to ineffective assistance under Strickland.
On the speedy-trial claim, Turner was arrested March 9, 2006; trial began October 8, 2008 (944 days later). Whether excluded continuance periods brought the case within the 12-month Rule 28.1 limit was dispositive to whether counsel was ineffective for not moving to dismiss.
The majority affirmed denial as to the closing-argument claims but reversed and remanded as to the speedy-trial ineffective-assistance claim, because the circuit court’s written findings were insufficient under Ark. R. Crim. P. 37.3 to permit appellate review of which periods were excludable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for not objecting to prosecutor’s rebuttal comments that allegedly shifted burden or referred to defendant’s failure to testify	Turner: comments improperly shifted burden, implied obligation to refute, suggested undisclosed evidence, and veiled reference to failure to testify; counsel should have objected	State: remarks tied to defense testimony/argument, permissible rebuttal, jurors instructed that arguments are not evidence, and any objection would have been meritless	Court: Counsel was not ineffective; remarks were fair response to defense, not improper burden shift or impermissible comment on silence; no prejudice shown; claim denied
Whether trial counsel was ineffective for failing to move to dismiss for violation of speedy-trial rule	Turner: trial began 944 days after arrest; counsel should have moved to dismiss because excluded periods do not cover the delay	State/Circuit Ct: many continuances were at defendant’s request and thus excludable; trial counsel not ineffective	Court: Reversed and remanded on this claim because circuit court’s Rule 37.3 findings were conclusory and did not identify which periods were excludable or parts of the record relied upon; requires specific findings on remand
Whether circuit court’s denial without detailed findings met Rule 37.3 requirements	Turner: court’s order was conclusory and failed to identify record support for excluding delays	State/Circuit Ct: record reflects defendant-requested continuances; findings sufficient	Court: Majority — findings insufficient for appellate review; remand required for specificity; Dissent — record sufficed and majority improperly shifted burdens
Whether cumulative error applies to ineffective-assistance claims	Turner: cumulative effect of prosecutor’s comments was prejudicial	State: Arkansas does not recognize cumulative error for ineffective-assistance claims	Court: Declined to address cumulative-error argument; notes Arkansas does not recognize it in this context

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance: deficient performance and prejudice)
Camargo v. State, 346 Ark. 118 (Ark. 2001) (allocation of burdens in speedy-trial context once a prima facie showing is made)
Standridge v. State, 357 Ark. 105 (Ark. 2004) (continuances at defendant’s request may be excludable when record memorializes the reason)
Leaks v. State, 339 Ark. 348 (Ark. 1999) (limits on closing-argument remarks to evidence and reasonable inferences)
Jackson v. State, 368 Ark. 610 (Ark. 2007) (counsel may argue plausible inferences from testimony in closing)
Hayes v. State, 280 Ark. 509 (Ark. 1984) (failure to object to closing argument is not ineffective assistance absent prejudice)
Biggers v. State, 317 Ark. 414 (Ark. 1994) (State may comment on matters raised by the defense in closing)