ROBERT DAVIS v. STATE OF ARKANSAS
No. CR-13-802
SUPREME COURT OF ARKANSAS
January 16, 2014
2014 Ark. 17
HONORABLE LEON JOHNSON, JUDGE
PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF AND FOR APPOINTMENT OF COUNSEL [PULASKI COUNTY CIRCUIT COURT, 60CR-09-1024]; APPEAL DISMISSED; MOTIONS MOOT.
In 2010, appellant Robert Davis was found guilty by a jury of capital murder and aggravated robbery and sentenced as a habitual offender to life imprisonment without parole.1 On appeal, appellant did not challenge the sufficiency of the evidence. Instead, he argued that the trial court erred in admitting into evidence the out-of-court statement of Latasha Smith to a police detective. In the statement, Latasha Smith informed the detective that appellant had admitted to her that he had killed someone and that it was the man on Meadowcliff. The victim‘s body had been found at the intersection of Meadowcliff and Sherаton Roads.
When Latasha Smith testified for the State, she said on direct examination that she remembered giving a statement to the detective, but she did not recall the subject matter of the discussion. The State unsuccessfully sought to refresh her memory by allowing her to review
Appellant subsequently filed in the trial court a timely, verified pro se petition for relief pursuant to
We need not consider thе merits of the motions because it is clear from the record that
A review of the petition and the order reveals no error in the trial court‘s decision to deny relief. When considering an appeal from a trial court‘s denial of a Rule 37.1 petition based on ineffectivе assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding that cоunsel‘s performance was not ineffective. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial сounsel‘s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel‘s perspective at the
In his petition, appellant first argued that counsel did not provide effective assistance based on counsel‘s failure to confront Latasha Smith in cross-examination to bring out “any basis оr bad memory when she stated she could not recall the crime or her statements to police.” He alleged that the failure to cross-examine her prejudiced him in that the jury did not get the
The allegation was not sufficient to establish that appellant was prejudiced by counsel‘s conduct to thе extent that there is a reasonable probability that, but for counsel‘s error, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absеnt the error. Here, as the trial court noted in its order, counsel was permitted to voir dire Latasha Smith, ask detailed questions concerning her inability to remember the statement she gave, and bring out that her mental problems had resulted in her being on disability. Appellant did not state what further questions appellant could have asked on cross-examination that would have revealed any specific information to the jury to undermine her testimony further than it had been during the voir dire. An entirely conclusory claim is not a ground for postconviction relief. Munnerlyn v. State, 2013 Ark. 339 (per curiam); Glaze v. State, 2013 Ark. 141 (per curiam). The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmativеly support the claims of prejudice. Thacker v. State, 2012 Ark. 205 (per curiam); Jones v. State, 2011 Ark. 523 (per curiam); Payton v. State, 2011 Ark. 217 (per curiam).
Appellant next contended that his attorney failed to present an affirmative defense. The basis of the claim is not entirely clear, but appellant contends thаt another person, Michael Scales, could have been shown to have been an “equal participant” and charged as an accomplice. He states that Scales was not charged despite the evidence against him and that Scales was allowed to testify for the State, which counsel should have prevented by seeking to have Scales named as an accomplice. Appellаnt provides no support for the suggestion that
If petitioner intended the allegation to be that he would not have been as culpable if he had Scales as an accomplice, the law in Arkansas makes no distinction between the criminаl liability of a principal and an accomplice.
Appellant also asserted that counsel denied him due process of law by failing to communicate with him and provide him with “discovery information,” police reports, statements, and a copy of the transcript of his trial. As apрellant did not state how the defense was prejudiced by any inaction on counsel‘s part at trial or on appeal, he did not meet the first prong of the Strickland test. See Lowe, 2012 Ark. 185, ___ S.W.3d ___ (holding a general claim that counsel failed to meet with the defendant in itself did not constitute a showing of ineffective assistance of counsel).
Appeal dismissed; motions moot.
Robert Davis, pro se appellant.
No response.