*1 727 standard, Strickland entry plea, question part of a first of the guilty there whether, unprofessional for counsel’s is no showing that his conviction resulted errors, probability is a from a pro breakdown the adversarial pleaded that the would not have cess that rendered his conviction unreliable. | navacca, 224, 16, guilty going Tor 2012 Ark. at 408 ./insisted Robinson, 211, 4, «above, at to trial. 2016 Ark. 492 at it S.W.3d 738. Based on the [ the Strickland discussing at clear from the S.W.3d record that Davis cannot standard, respect allegations of prevail on appeal, and motion an ineffective assistance of counsel when a of extension time file a brief and his entered, guilty plea has been the first half motion for appointment of counsel are requires of the standard that counsel’s ad moot. plead guilty
vice to must fall outside the dismissed; Appeal motions moot. range of competence demanded of attor 4, neys in criminal cases. Id. at FN Henderson,
(citing 268, Tollett v. U.S. 1602, (1973)).
93 S.Ct.
Therefore, on from the appeal denial of a following guilty
Rule
pleas,
37.1
review—one,
there are
only two issues
had advised Davis to based his professional strength assessment
of the State’s evidence and that Davis vol intelligently pleaded guilty
untarily
was deemed be more credible than
contradictory testimony Davis. This
credibility finding disregarded cannot be because, after review of the it
totality cannot said be credibility finding
that the trial court’s
inherently improbable clearly unbelieva Davenport, Ark. at
ble. 281 S.W.3d Moreover,
at 270. did rejected
clearly allega when it Davis’s err plead
tion that his counsel’s advice to
guilty range of competence fell outside attorneys
demanded in criminal cases.
Robinson, 492 S.W.3d Because Davis to establish the failed *3 Rock, Rosenzweig,
Jeff appel- Little lant. Gen., Rock, Rutledge,
Leslie Att’y Little Fortner, by: Att’y Valerie Glover Ass’t Gen., appellee. DANIELSON,
PAUL E. Associate Justice
11Appellant Adam F. was convicted in battery the White Coun- first-degree Circuit ty Court and sentenced to ten years’ imprisonment. The Arkansas Court of Appeals Doty v. affirmed. App.2015 WL 1299886 . subsequently petition postcon- filed a pursuant viction to Arkansas relief Rule of (2015). Criminal Procedure 37.1 The circuit hearing. court denied the after appeals, arguing now that his trial (1) in ways: counsel was three ineffectivé' failing recording to obtain a of a call that would have corroborated the testimo- witness; (2) ny erroneously a defense advising a defense witness to omit certain (3) testimony; remarks from his fail- ing to use available exhibits to discredit prosecution assertions certain witnesses. postconviction We affirm the denial of re- lief.
laDoty’s
first-degree-battery
charge
shooting
stemmed from a
that occurred on
their
testimony,
Dotys
held
September
-of
2013. The
Wood
evening
Yandell,
trial that
faces and
victim,
guns
testified at
the Yandells’
Justin
he,
father,
gun-
points.
and his brother heard
all
at various
his
threats to
of them
to their home and then heard
fire close
justification
Doty presented a
defense.
hitting their barn. Justin
shotgun pellets
his
that Justin did
leave
testified
Wood
brother,
Yandell, approached
his
Josh
pistol at the fence line and
he carried
investigate,
Justin
line to
their fence
Both
Dotys.
it down where
found
pistol
carrying a
waist-
holstered
Skip Doty and Adam
testified
line, they
At the fence
band of
shorts.
reaching for some-
they observed Justin
Wood,
young
was with
met Jesse
who
approached,
him as he
thing behind
collecting
that had been shot.
son
doves
pistol
that he saw the
Adam stated
a conversation with
Yandells had
The
Adam,
According
Justin’s waistband.
Wood,
informed them
he was
who
*4
very aggressive
ap-
Justin was
his
father-in-law,
Doty,
George “Skip”
his
with
that Justin
proach, and Adam believed
brother-in-law,
Doty. The
and
Adam
his
him or
shoot either
his father. Re-
hunting
nearby proper-
on
party
dove
was
cordings of
911 calls were
five
introduced
family
to
ty
they
be their
believed
from
at trial:
three
Josh
into evidence
Doty’s name
recognized Skip
Justin
land.
Yandell,
Skip Doty,
from
from
one
and one
him to
to
approach
speak
and decided
son.
Wood’s
According
him
to Jus-
gunfire.
about the
right
jury
to a
Doty waived
and
pistol
testimony,
tin’s trial
he removed his
guilty
was found
and sentenced
it on
from his
and left
waistband
challenge
attempted
He
the suffi-
court.
walking
ground near the fence line before
ciency
appeal, arguing
of the
evidence
eighty to one hundred
approximately
negate his claim of
that the State failed to
yards
Dotys
were. Wood
where
Doty,
App.
193. The
justification.
him,
Josh Yandell re-
followed behind
appeals
argument
held that
turned home.
Doty
preserved
failed to
was
Skip
testified that he found
Justin
motion at
renew his dismissal
the close
holding
Doty
Adam
sitting
chairs,
lawn
all the evidence. See id. The mandate is-
asked,
shotguns.
approached,
As he
he
23,
April
sued
you Skip Doty?”
point,
“Are
Adam
At
Doty filed the instant
On June
Doty
up
came
Justin
him
behind
and.hit
petition, which
three issues.
Rule 37
raised
-the
with the butt of his
behind
ear
First, Doty argued that his trial counsel
shotgun.
fought
Adam then
Justin
failing
previ-
for
to obtain
was ineffective
shotgun,
over
with Justin eventual-
Adam’s
ously
sixth
call. In this
undiscovered
away.
stag-
As
ly wrestling
gun
Justin
county dispatch
recording,
called
gered backward, holding
shotgun so
shortly
altercation in
Doty back
after the
pointed
sky,
toward
barrel
and the
order
ascertain
he
other
from his
pistol
Adam retrieved a
pocket
short,
party
of his
In
members
were.
and shot Justin in the knee. Justin testi-
were
dispatch
informed
begged
fied
as he
someone to call
police
attempted
waiting
and had
began packing
Dotys
and Wood
recording
up
apparently
This
was
equipment.
their
Yandell arrived
flee.
never
Josh
pthe
later,
father,
minutes
followed
their
over
defense because
handed
Jerry
of its
According to
State did not know
existence.1
Yandell.
the UYandells’
counsel,
Doty's
recording
pending.
who
Doty’s
This
discovered while
was
See,
alleged- that his trial counsel should have
ous.
e.g., Taylor
father
discussed with his
whether made
A finding
S.W.3d 271.
is clearly
when,
specific request
the 911 call so that a
although
could erroneous
there is evi-
Second,
it,
court,
dence
appellate
have been made for it.
ar-
support
after reviewing
gued that his trial counsel was
the entire
ineffective
is left
erroneously
the definite and firm
advising
not to
conviction that a
father
mistake
making
has been made. See
testify that he
shot or almost
id.
should have
determination on
claim of
did shoot
Yandell
con-
ineffective
Justin
himself.
counsel,
assistance of
this court
that this
considers
tended
advice was unreasonable
totality
See id.
evidence.
adversely
and that it
his father’s
affected
Third,
credibility.
Doty argued that his
On
review claims of ineffective
trial counsel was
ineffective
failing
counsel,
assistance of
this court follows the
introduce
infor-
and ballistics
standard
set forth
Strickland Wash
purportedly
mation
would have
ington,
U.S.
S.Ct.
question
into
called
assertion
Yandells’
(1984).
L.Ed.2d 674
See id. Under that
property
their
being pelted by
two-prong analysis, to prevail on a claim of
gunfire. Doty
this evi-
maintained
counsel,
ineffective assistance of
the peti
dence would have discredited the entire
(1)
tioner must show that
per
counsel’s
premise on which
allegedly
the incident
(2)
formance was deficient
defi
started.
performance prejudiced
cient
his defense.
*5
hearing,
After a
the circuit court en- See id. The
for judging
benchmark
a claim
denying' Doty’s
tered its order
Rule 37 of ineffective
of
assistance
counsel must be
28,
petition on October
2015. The court
“whether counsel’s conduct so undermined
Doty’s
given
found that
trial counsel had
proper functioning
the
of the adversarial
him and his father
opportunity
an
to listen
process that the trial cannot
be relied
discovery
the five
calls
in
having produced
just
as
á
result.” Sher
event,
any
preju-
State,
and
was not
man
the absence of the sixth
curiam)
diced
record-
(per
(quoting
S.W.3d
ing,
Strickland,
which could have
to im-
been used
with his The court further satisfy To prong the first of the regarding that trial counsel’s advice found test, petitioner Strickland the must show Skip Doty’s,testimony was reasonable trial performance counsel’s was deficient. |Bthe strategy photographs and estab- See, e.g., Taylor, 2015 Ark. 470 S.W.3d nothing lished than the other crime-scene To requirement, postcon- 271. meet this location. of timely ap- filed a notice petitioner viction must show that counsel peal, made errors so that counsel was serious This functioning guaran court does not reverse as the “counsel” of postconviction denial the petitioner by relief unless teed Sixth Amend circuit findings clearly court’s errone- ment States Constitution. United represented appeal, peti- him also filed a The to both referred nobis, asking tion for writ of error coram this reports, only photo- ballistics jurisdiction court to reinvest in the circuit graphs were at the Rule 37 hear- introduced purposes discovering court for addi- this ing. peti- tional This denied
tion. by. failing to obtain the presumption fective assistance strong There is a id.
See
| (¡counsel’s
within the wide
conduct falls
911 call. As
previously undisclosed sixth
assis-
range
professional
of reasonable
out,
his father
cross-ex-
points
tance,
and a
has the burden
regarding
at trial
his conversation
amined
identify-
overcoming
presumption
dispatch following the altercation:
counsel,
acts or
ing specific
omissions
there for
[W]hy didn’t wait
Prosecutok:
which,
per-
from counsel’s
when viewed
police to
there?
get
been the result of
spective, could not have
professional judgment. See id.
SiupDoty:
reasonable
did.We
In order
to meet
the second
Not
the scene
Prosecutor:
test,
a claimant must show
prong
shooting.
probability
is a
reasonable
Skip Doty:
people there
Because the
have been
the fact-finder’s decision would
us harm were
wanted
do
errors. See id. A
different absent counsel’s
there.
left to where
were and
We
probability
probability
suf
I
to the truck
I—and unloaded
went
ficient to undermine confidence
the out
I
weapons
all of our
talked
language,
of the trial. See
The
come
id.
said,
she
seems to me like the
trial,”
only
“the outcome of the
refers not
I
story—she
you?
where are
And
guilt
innocence but
said
sentencing.
possible prejudice
See
standing here at the end
said we’re
id.,
(citing
know,
Unless under Rule 37 required showings both under makes analysis, it cannot be said that
Strickland (Continuing): She said that’s resulted from a conviction breakdown story not—that’s not that I’m hear- in the adversarial process renders *6 ing. they’re said I’m—she said She See, e.g., Anderson v. result unreliable. you’re saying you guns all have (per 454 S.W.3d said, go police. I going to war curiam). is, therefore, There no reason no, right I ma’am. said we’re—we’re deciding a court an ineffectiveH7assistance just here I’ll down there to walk components claim to both address no- you’ll them if let them know that if inquiry to make a fails body’s anybody harm. here to do We— showing sufficient on one. See id. just we’ve been attacked and we defend- Missing I. Failure to Obtain. Call just trying to—to ed ourselves and we’re can y’all get wait for here so we tell point For con- appeal, first you happened. tends that his trial counsel inef- what innocence”; Doty argues finding and that the unused that the circuit preju- impact no on a proof misstated burden of on the "would have had order, prong. guilt dice concluded Court its the court the trial had they Doty points that the absence of the sixth 911 call "did been so out that introduced.” finding by only probability requires and would not to different our a reasonable lead law guilt”; respect with' Court to the defendant's outcome have been different. would However, Skip Doty’s testimony regarding in- is clear to this court that the it phrasing merely tention to shoot no favor- circuit court’s reflects the "would have had impact judge presided over able on the case and fact that the both defendant’s same proceeding. would not have caused the court to make a and the Rule Doty: | 9Skip Yeah, I that on didn’t hear I can see their cars Peosecutor: say— tape. You didn’t now. Dispatch: Doty: Skip Well, that’s what I said. You can see their cars? Skip Doty: I—nobody’s Yeah. running No, sir, you Proseoutor: didn’t. here, just— it’s testimony, prose- of this time IsAt Dispatoh: Okay, well— cutor was unaware the existence and the Skip Doty: —nobody’s of getting afraid’s recording, content the missing wherein or trouble anything. county dispatch Skip back in called Dispatch: Well, Okay. just— to ascertain his order whereabouts follow- ing recording the altercation. That Skip Doty: right. That isn’t Skip Doty’s testimony have corroborated Dispatch: Well, Okay. yeah—what we’re respects: some so, getting is a story, different we Dispatch: Okay. get—the just We need your want—we want side police looking y’all. Okay. are story. wanting. That’s what we’re Siap Doty: Skip Doty: That’s—that’s I what was Their—their cars are at the wanting—that’s why I wondering driveway end of the that we’re on. We’re why they’re coming on to me. sitting looking here at them. Dispatch: Well, trying—we’re try- we’re Dispatch: Okay. What— ing to y’all find an address where Skip Doty: They got on a four-wheeler were at. something and— Skip Doty: Oh, we’re right here. Dispatch: They go out had there and Dispatch: Okay. get him bleeding because he was Doty: Skip waiting y’all get We’re death. here. Doty: That’s—no, he wasn’t bleed- Dispatch: Okay. standing You’re death, ing anyway, that’s—that’s there— went. Doty: Nobody’s— Dispatch: Okay. Dispatch: standing— You’re Skip Doty: right here on We’re—we’re Skip Doty: —running anything. from driveway that— that his trial coun contends
Dispatch: driveway you What at? sel should have discussed this undisclosed driveway. Tell me what Wood, 911 call with his father and who Skip Doty: Tom *7 driveway. Ed Reeves’ briefly recording, also heard so that That’s where their cars—I can see their |inwould trial counsel have been made cars— aware of its and existence could have made Dispatch: you go you Can down—can specific request a for it. ar Doty further go down there to them? gues prejudiced by his that defense was Doty: Skip Yeah, they— Yeah. of the sixth 911 the absence call because Dispatch: you kind of vehicle are What impeached his father was on that basis. to going be in? Doty points testimony out that his father’s supported his own his Doty: corroborated Skip in pickup, We’re a white but justification. theory there, I can walk I mean— Dispatch: problem Doty’s argu- You can to You walk him? The obvious with standing driveway? at the of a that trial end ment is counsel would had
734 him- Yandell or about to shoot Justin a was knowing sixth way of that there was no to argues that this amounted Doty not request, as it was self. or 911 call to discuss not- simply performance know because advice to him. He did deficient provided Thus, Doty suggests specif- inherently what unreasonable. More was its existence. was, in done should have that the de- ically, trial counsel he maintains his maintains that fact, Doty also it impossible. presented justification, being fense was defi- performance was his trial counsel’s only appropriate have been would go over he failed to with cient because testify necessary Skip Doty to that five 911 calls “crucial witnesses” deadly physi- that he too have used would discovery—-the implica- in provided were argues cal force. further Doty or Jesse being tion Wood testimony prejudiced of this his absence 911 that one call was have noticed defense, by following re- as evidenced disagree. Trial missing. counsel testi- We in mark the trial court announc- hearing that he had at the Rule 37 fied guilt: a ing its there was “[I]f recordings prepa- himself listened justified deadly physi- true situation trial, spoken that he had with ration force, Doty] it?” why [Skip cal didn’t use par- times their Dotys numerous about Doty’s argument is merit. without calls, in the he ticipation 911 consistently This has held when recordings to he had believed trial counsel is a matter decision listen to so that Dotys could strategy that decision is tactics he could not remember them. While judg supported by professional reasonable actually to Dotys had listened whether ment, proper is not then such a decision trial, recordings prior trial counsel See, e.g., basis for relief under Rule 37. stating general unequivocal was State, 2014 441 Decay v. Ark. S.W.3d discovery, including practice to make all State, Ark. (citing Mason v. 2013 recordings, to his clients. As the available 759). This is true even S.W.3d out, points simply no author- State strategy improvident the chosen was ity required actually trial counsel State, retrospect. (citing See id. Sartin family sit and listen client’s down 694; 2012 Ark. Flowers v. S.W.3d together. Doty 911 calls has failed to (per S.W.3d strong presumption that his overcome the curiam)). Doty’s trial counsel testified attorney’s conduct fell within the wide hearing the Rule 37 his advice professional range of assis- part strategy. Specifi of his trial See, e.g., Taylor, tance. li?Skip cally, he stated that had a has failed S.W.3d Because ^performance strong personality” “very and described prong satisfy the deficient-! assertive, overbearing, “very him as test, there is no need Strickland See, For that angry episode.” prejudice component. e.g,, about whole address reason, Anderson, explained, he counsel advised Skip Doty that “unless that his re Concerning Skip II. Advice question,” sponse particular should Doty’s Testimony indicating testimony that he volunteer *8 shot victim himself. have the Clear would point appeal, For his second that ly, trial counsel feared such remarks Doty that his counsel contends trial was advising Doty appear to Doty’s make have ineffective father aggressor, the which would undercut testimony any from trial state been omit theory shot that Justin Yandell indicating ment he should have the defense’s that
735 justi photographs and the were meant to aggressor and that was show the was Reynolds’ shooting him. counsel’s advice “the distance Mr. home was fied in Trial Skip Doty shooting that he avoid such remarks from the scene the took obviously strategy supported by a pri trial stated that the place.”4 was Trial counsel Again, professional judgment. mary purpose photographs reasonable the was to to impeach that has Reynolds Reyn we hold failed when performance part the testify, establish deficient olds was not called to ultimately counsel, trial not of his need point we decide see the trial counsel intro “didn’t See, prejudice. Moreover, he has ducing whether pictures,” established those as the Anderson, found, e.g., photographs. S.W.3d circuit the did gunfire originated. where the establish They only the alter demonstrated where Failure to Photographs Introduce III. reasons, place. cation took For these point For his third appeal, not to use the photo counsel’s decision that his trial counsel maintains as graphs cannot unreason be described failing photo ineffective to introduce able, and is no need the to address that graphs purporting the show Yan- prong of prejudice inquiry. the Strickland telling See, dells could not have been the Anderson, truth e.g., Dotys’ that the gunfire when asserted S.W.3d 212. on their hitting prop had structures been reasons, the For and con above-stated support prejudice To erty. his claim sidering -the totality we resulted, any asserts document clearly hold that court did not circuit impeached have Yandells that would denying Doty’s postcon- err
was relevant defense should short, cannot say viction relief. In we used. been “so counsel’s conduct undermined above, a by As forth when decision set proper, functioning of the adversarial is a of trial tactics or trial counsel matter cannot that the trial be relied on process strategy supported by is decision just having produced result.” as Sher a judgment, professional then man, Ark. at at proper is not a such decision basis Strickland, (quoting U.S. See, e.g., Decay, Rule relief. 2052). 104 S.Ct. Doty’s | 387, 441 counsel S.W.3d 899. atrial Affirmed, hearing at the testified Rule 37 photographs’ -not to decision use J., HART, .concurs. him issue, which were Hart, Justice, Josephine Linker explained He Doty, was tactical one. concurring. photographs thoroughly he had studied jurisprudence, time at this court’s Rule 37 spent and that had Given separately write explained He further this case affirmable. crime scene. .1 emphasize raised photographs actually were intended to be two issues case, conjunction testimony directly. One issue with the addressed used Barry Reynolds, prosecution problem applying witness. with Strick- trials, eyewitness, an Reynolds apparently land standard bench standing." claimed to marked notations be The as "BR Porch” and "Where BR such front *9 case Unfortunately, in the petition. Id. the 911 calls 37 to characterize is how other us, of for a writ petitioned Mr. by over the before not turned State. that were coram nobis before direct error First, this case was tried Because the had been decided. bench, the fact-finder judge was both it was sum prematurely, writ was filed term, and, lack of a better the referee. entry by marily dismissed docket role, charged with judge is In the latter as a arguably available at least be could a fair Doty received ensuring that Mr. securing postconvietion of potential means proceeding, in a Accordingly, Rule 37 trial. relief. indirectly at on trial judge is least the trial the trial trial counsel. When as as the well grounds that the asserted
judge finds assistance of counsel
finding ineffective of the outcome not have affected
trial, it is logically speaking, both evidence and uncontradicted direct fact fact would of how the finder Ark. performance. trial counsel’s viewed THACKER, Appellant Elvis Aaron into the issue of whether getting Without biased, I actually sub- judge trial appearance has the mit that it at least Arkansas, Appellee STATE judge the trial impropriety when effec- report card. tively himself his own giving No. CR-15-1034 fact, jury Even when a finder Supreme Court Arkansas. subsequent over a judge, presiding trial deciding is still proceeding, Rule 37 20, 2016 Opinion Delivered: October a Rule question of whether In process, a fair trial. received is, part, assessing least in judge view, In my performance.
or her own assigning consider Rule 37
court should preside judge to a who did over
cases trial.
|1BThe unique issue is one to this second Doty's alleges Rule 37 counsel
case. Mr. of counsel for the assistance
ineffective failure to discover the addi counsel’s played tapes that were
tional view, the failure the State my
trial. In tapes Brady was a clear turn over Brady Maryland, 373 U.S.
violation. See 1194, 10 (1963). L.Ed.2d 215 83 S.Ct. Arkansas, postconviction context may be
Brady violations addressed nobis, of error coram
seeking a writ see
Howard v. support cannot a Rule