Gregory DECAY, Appellant v. STATE of Arkansas, Appellee
No. CR-13-992
Supreme Court of Arkansas
Sept. 25, 2014
2014 Ark. 387
PAUL E. DANIELSON, Justice.
The allegations raised by appellant did not call into question the trial court‘s jurisdiction. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Bliss v. Hobbs, 2012 Ark. 315, 2012 WL 3374058 (per curiam). There was no claim that demonstrаted that the trial court in his case did not have subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes or to establish that the judgment-and-commitment order entered in the case was facially invalid. Claims of trial error are properly settled in the trial court and do not implicate the facial validity of the judgment or the jurisdiction of the trial court. Girley v. Hobbs, 2012 Ark. 447, 2012 WL 5963201 (per curiam). Likewise, allegations of ineffective assistance of counsel are properly raised in the trial court in a timely рroceeding under
When a petitioner in a habeas proceeding fails to raise a claim within the purview of a habeas action, the petitioner fails to meet his burden of demonstrating a basis for a writ of habeas corpus to issue. Benton v. State, 2013 Ark. 385, 2013 WL 5519866 (per curiam); Henderson v. White, 2011 Ark. 361, 2011 WL 4092404 (per curiam). Appellant clearly did not meet his burden, and, therefore, he could not prevail on appeal. See Glaze, 2013 Ark. 458.
Appeal dismissed; motion moot.
Dustin McDaniel, Att‘y Gen., by: LeaAnn J. Adams, Ass‘t Att‘y Gen., and Laura Shue, Ass‘t Att‘y Gen., for appellee.
PAUL E. DANIELSON, Justice.
Appellant Gregory Christopher Decay appeals from the order of the Washington County Circuit Court denying and dismissing his petition for postconviction relief pursuant to
In Decay II, this court limited the circuit court‘s findings of fact and conclusions of law on remand to “only those issues raised on appeal,” which included (1) that he was denied effective assistance of counsel when his trial counsel failed to investigate, develop, and present mitigation evidence during his trial; (2) that he was denied effective assistance of counsel when his trial counsel failed to properly object to the prosecuting attorney‘s comment on Decay‘s failure to testify; (3) that he was denied effective assistаnce of counsel when his trial counsel failed to properly object to the prosecuting attorney‘s statement to the jury that Decay may become eligible for release if sentenced to life imprisonment without parole; and (4) that he was denied effective assistance of counsel when his trial counsel failed to advance the defense that Decay did not commit the act
This court does not reverse the denial of postconviction relief unless the circuit court‘s findings are clearly erroneous. See Golden v. State, 2013 Ark. 144, 427 S.W.3d 11. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. See id. In making a detеrmination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. See id. Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See id.
In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel‘s performance was deficient. See Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the petitioner by the Sixth Amendment. See id. The rеviewing court must indulge in a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. See id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel‘s perspective at the time of trial, could not have been the result of reasonable professional judgment. See id.
In order to satisfy the second prong of the Strickland test, the petitioner must show that counsel‘s deficient performаnce prejudiced the defense, which requires showing that counsel‘s errors were so serious as to deprive the petitioner of a fair trial. See id. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder‘s decision would have been different absent counsel‘s errors. See id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See id.
I. Failure to Investigate, Develop, and Present Mitigating Evidence
For his first point on appeal, Decay argues that the circuit court erred in denying his claim that his trial counsel were ineffective in failing to investigate, develop, and present mitigation evidence. He asserts that, despite being assigned a mitigation specialist, the specialist did not perform his job duties, and he therefore did not receive the benefit of having had the specialist. To that end, he contends, his trial counsel were ineffective in failing to “supervise and control” the specialist. Additionally, Decay submits, the minimal testimony by his family membеrs during the sentencing phase was insufficient in its mitigating effect and further demonstrates
The State responds that Decay failed to show any deficient performance on the part of his trial counsel, when the testimony at the postconviction hearing demonstrated that his trial counsel actively sought mitigating evidence, prepared for the sentencing phase by meeting with each other repeatedly, meeting with Decay, inquiring about his childhood and family history, requesting Decay‘s records, talking with his family members, and even obtaining a continuance to further develop any mitigation evidence. It states that, to the extent the mitigation specialist failed to investigate, Decay‘s trial counsel dealt with that failure and completed the investigation. Moreover, the State avers, Decay failed to show in his petition or during the hearing any other mitigation that trial counsеl could, and should, have sought or developed. The State contends that Decay has shown neither deficient performance by his trial counsel nor prejudice and therefore urges us to affirm the circuit court‘s order.
Here, Decay claims that his trial counsel were ineffective in failing to investigate, develop, and present mitigation evidence in the sentencing phase of his trial and that the circuit court erred in denying his petition on this basis. The sum of his argument is that the mitigation evidence presented by his trial counsеl “was a weak attempt to show the jury the real picture of Gregory Christopher Decay‘s life that is worth living.” The circuit court, however, found that “all available mitigation evidence was developed by Petitioner‘s trial counsel,” and that trial counsel‘s mitigation efforts were not deficient and did not result in prejudice to Decay. We agree.
It is undisputed that the guarantee of effective assistance of counsel clearly encompasses the penalty phase of a criminal trial, and this court has recognized that the failure to present any testimony during the mitigation phase of the trial fails to pass constitutional muster. See, e.g., Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. Counsel is obligated to conduct an investigation for the purpose of ascertaining mitigating evidence, and the failure to do so is error. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003). Such error, however, does not automatically require reversal unless the petitioner shows that, but for counsel‘s errors, there is a reasonable probability that the sentence would have been different. See id.; Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). When reviewing a claim of ineffectiveness based on a failure to present adequate mitigating evidence, we must view the totality of the evidence—both that adduced at trial and that adduced in the postconviction hearing. See Coulter, 343 Ark. 22, 31 S.W.3d 826.
To the extent that Decay argues that additional mitigating evidence was not investigated, developed, or presented, our review of the record reveals that Decay wholly failed to identify to the circuit court any additional evidence or witnesses that should have been presented during the sentеncing phase of his trial by his trial counsel but were not. In his petition, Decay merely stated that “[t]rial counsel was ineffective for failing to properly investigate and present mitigation evidence at the sentencing phase of the trial,” and at the hearing, Decay relied solely on the testimony of his trial counsel, neglecting to identify any other witnesses or evidence that would have been relevant to mitigation. When a petitioner fails to show what was omitted and how it could have changed the outcome, we will nоt grant
Moreover, it is clear from the record that Decay‘s trial counsel did in fact investigate, develop, and present mitigating evidence. During the sentencing phase of Decay‘s trial, Decay‘s older brother, sister, mother, and the mother of his other brother‘s son each testified on his behalf. Decay‘s lead counsel, Denny Hyslip, testified at the postconviction hearing that, while the mitigation specialist did not perform well, he and co-counsel, Julie Tolleson, prepared for sentencing and mitigation. He testified that they spoke with Decay‘s family about his “childhood, his education, any particular injuries he might have had, [and] how he did in school,” and that no one gave them “an avenue or a witness or anything for mitigation” that they did not check out. In addition, Ms. Tolleson testified that they met with Decay, and later his family, and went through a thirty-page mitigation questionnaire in an attempt to discover any mitigating evidence concerning Decay‘s birth, childhood, develоpment, schooling, participation in sports, religious convictions, and prior “trouble.” She testified that, while they also sought out Decay‘s school, hospital, and medical records from Louisiana, where Decay grew up, the records were unavailable because of Hurricane Katrina, and the standardized test scores and work records that they did obtain were not helpful. In addition, Decay‘s trial counsel moved for, and were granted, a continuance to further prepare for the sentencing phаse of Decay‘s trial.
In light of the foregoing, we simply cannot say that the circuit court clearly erred in finding that trial counsel‘s performance was not deficient with respect to mitigation. Nor need we address Decay‘s argument that prejudice is apparent. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). We affirm the circuit court‘s finding.
II. Failure to Object to the Prosecutor‘s Comment on Decay‘s Failure to Testify
For his second point on appeal, Decay argues that his trial counsel were ineffective for failing to object to statements made by the prosecutor that he claims referenced a lack of remorse and a failure to testify and apologize on his part. The State argues that remorse was an issue raised by Decay himself and that the failure to object by trial counsel was within the wide range of permissible, professional legal conduct. Furthermore, the State contends, the statement by the рrosecutor was not a reference to Decay‘s failure to testify, but was the prosecutor‘s interpretation of Decay‘s pretrial statements and his actions after the murders that demonstrated a lack of remorse.1
During closing arguments, the prosecutor made the following statements:
And, in that five page statement he still blames Kevin and Kendall for what he had to do. He still blames them. There‘s no—that‘s not remorse.
There‘s no remorse in that letter. There‘s no remorse in the last parts of the statement becausе he‘s not talking
about Kevin and Kendall. He‘s not talking about how bad I feel for them.
An allegedly improper comment on the defendant‘s failure to testify usually occurs during the prosecutor‘s closing argument, when the evidence is closed and the defendant‘s opportunity to testify has passed. See Johnson v. State, 2013 Ark. 494, 430 S.W.3d 755. Under those circumstances, a comment that draws attention to the defendant‘s failure to testify is improper because it creates the risk that the jury will surmise that the defendant‘s failure was an admission of guilt. See id. Consequently, the cоmment has the effect of making the defendant testify against himself in violation of the Fifth Amendment. See id. Under the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, a defendant has the privilege of deciding whether to testify. See id. In determining whether a prosecutor has improperly commented on a defendant‘s failure to testify, this court employs a two-step review:
First, we determine whether the comment itself is an improper comment on the defendant‘s failure to testify. The basic rule is that a prosecutor may not draw attention to the fact of, or comment on, the defendant‘s failure to testify, because this then makes the defendant testify against himself in violation of the Fifth Amendment. A veiled reference to the defendant‘s failure to testify is improper, as well. Should we determine that the prosecutor‘s closing argument statement did indeed refer to [the defendant‘s] choice not to testify, we would then determine whether it can be shown beyond a reasonable doubt that the error did not influencе the verdict.
Jones v. State, 340 Ark. 390, 402, 10 S.W.3d 449, 456 (2000) (alteration in original) (quoting Gates v. State, 338 Ark. 530, 538, 2 S.W.3d 40, 44 (1999)).
In Jones, this court applied this two-step review and held that a comment by the prosecutor was not a veiled reference to the defendant‘s failure to testify. See id. Instead, this court reasoned, “the prosecutor was referring to Jones‘s lack of remorse as evidenced by his statements to his brother and to the police and by his actions after the murders.” Id. at 402, 10 S.W.3d at 456. In addition, the court pointed out, Jones had invited the statements at issue and opened the door to them; therefore, he was precluded from complaining about them. See id.
Likewise, in the instant case, it is clear that the prosecutor stated that Decay expressed no remorse in his writings, not that he failed to express remorse to the jury. See Johnson, 2013 Ark. 494, 430 S.W.3d 755; Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). “This was evidence, completely aside from [Decay‘s] own non-appearance on the witness stand, on which the prosecutor was free to comment.” Jones, 340 Ark. at 402, 10 S.W.3d at 456. The statements therefore were not improper.
Our review of the record reveals that the prosecutor‘s statements regarding Decay‘s lack of remorse, as evidenced by his writings, were not improper comments on his failure to testify, and therefore any objection made by trial counsel would have been without merit. Failure to make a meritless objection is not an instance of ineffective assistance of counsel. See Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). For this reason, we affirm the circuit court‘s finding on this point.
III. Failure to Object to the Prosecutor‘s Comment on Decay‘s Eligibility for Release
For his third point on appeal, Decay argues that his trial counsel were inef-
The State contends that, even if an objectionable ground existed, trial counsel did not object because they were operating under the belief that the prosecutor was only clarifying the legal definition of life imprisonment without parole. The State further claims that it would require speculation to conclude that the statement conveyed to the jury a preference for the death penalty because Decay could potentially be released if sentenced to life imprisonment without parole.
During voir dire, the following colloquy occurred without objection by Decay‘s trial counsel:
TRIAL COUNSEL: You understand when [the prosecutor] talked to you about Capital Murder and the death penalty, do you understand that he would get—Mr. Decay, if you found him guilty, and you give him life without parole, that that is in fact what that means, life without parole?
PROSECUTOR: Your Honor, for clarification, I believe it would mean that it would be life unless paroled, pardoned, or commutation by a governor. Your Honor, I believe that‘s the actual definition. And I have no problem with him saying that part, Your Honor.
The thrust of Decay‘s argument is that his trial сounsel‘s failure to object to the prosecutor‘s statement resulted in a jury being empaneled that was predisposed to reject a sentence of life imprisonment without parole.
It is clear to this court, however, that Decay has failed to meet the second prong of Strickland. Decay seems to assert that he was prejudiced by his trial counsel‘s failure to object to the prosecutor‘s statement because it resulted in the jury being predisposed to a sentence of death. Jurors, however, are presumed to be unbiased and are presumed to follow the instructions given to them by the court. See Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005). A petitioner asserting ineffective assistance of counsel has the burden of proving that the prejudice resulting from an alleged error was real and had some demonstrable, detrimental effect and not some abstract or theoretical effect. See Springs, 2012 Ark. 87, 387 S.W.3d 143. Here, the jury had before it both possible sentences, life imprisonment without parole and death, and, while it chose the latter, Decay has nоt demonstrated any facts to support his claim that it did so because it was influenced by the statement at issue. A petitioner seeking postconviction relief must do more than allege prejudice; he must demonstrate it with facts. See Stiggers v. State, 2014 Ark. 184, 433 S.W.3d 252. We therefore affirm the circuit court‘s order denying relief on this point.
IV. Failure to Advance the Defense of Decay‘s Choice
Decay next argues that he received ineffective assistance of counsel when his trial counsel failed to advance the defense that he desired. He urges that he was entitled to have the defense of his choice presented to the jury, despite his trial counsel‘s feelings on the matter, and that the critical stage of his trial was when the State rested its case and trial counsel failed to put
The State responds that Decay‘s trial counsel‘s conduct fell within thе wide range of reasonable professional assistance, as evidenced by the record. It further states that Decay has shown neither deficient performance, nor prejudice, resulting from an alleged failure on the part of his trial counsel to present his desired defense.
Trial counsel‘s decisions regarding what theory of the case to pursue represent the epitome of trial strategy. See Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). When a decision by trial counsel is a matter of trial tactics or strategy and that decision is supported by reasonable professional judgment, then such a decision is not a proper basis for relief under
Decay first takеs issue with what he claims was his trial counsel‘s failure to employ the defense that a third party had committed the crimes. At the
Decay further claims that his defense of denial “demanded” that his trial counsel explain why he would have given incriminating statements to the police. Yet, Decay himself chose not to tеstify, and Hyslip explained how that made the defense that he was not present more difficult. Moreover, while Decay seems to take issue with his trial counsel‘s failure to put on any evidence after the State rested, Decay has failed to specifically identify any other possible witnesses that trial counsel could have called in his defense or what testimony they could have provided that would have changed the outcome. See, e.g., Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000) (observing that this court does not grant postconviction relief for inеffective assistance of counsel where the petitioner has failed to show what the omitted testimony was and how it could have changed the outcome).
In sum, Decay bases his claim of ineffective assistance of counsel on the notion that he was entitled to the defense of his choice whether his trial counsel thought it wise or unwise; but that is simply not the case. As we have previously observed, an attorney need not advance every argument urged by his client. See Sartin, 2012 Ark. 155, 400 S.W.3d 694. Moreover, even though another attоrney may have chosen a different course, trial
While Decay also argues that prejudice should be presumed in a claim such as his, we need not address his argument, because he has failed to demonstrate that trial counsel‘s performance was deficient with respect to the defense he received. As we have previously stated, “[t]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Anderson, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). We therefore affirm the circuit court‘s order.
Affirmed.