Case Information
SUPREME COURT OF ARKANSAS .
No. CR-15-1048
BRUCE ALLEN ECHOLS Opinion Delivered May 26, 2016
APPELLANT
PRO SE APPEAL FROM DENIAL OF V. PETITION FOR POSTCONVICTION
RELIEF; PETITION FOR WRIT OF STATE OF ARKANSAS MANDAMUS; MOTION FOR
APPELLEE TRANSCRIPT AND FOR LEAVE TO APPEND BRIEF; MOTION FOR EXTENSION TO FILE BELATED SUPPLEMENTAL BRIEF; MOTION FOR SEVEN-DAY ADDITIONAL EXTENSION TO FILE BELATED SUPPLEMENTAL BRIEF; MOTION FOR CONTINUANCE; MOTION TO DISMISS APPEAL [SALINE COUNTY CIRCUIT COURT, NO. 63CR-12-513] HONORABLE GRISHAM PHILLIPS, JUDGE
AFFIRMED; PETITION FOR WRIT OF MANDAMUS DENIED; MOTIONS MOOT
PER CURIAM
Aрpellant Bruce Allen Echols was convicted by a jury of four counts of aggravated
robbery and was sentenced to four concurrent terms of 360 months’ imprisonment. The
convictions and sentences were affirmed by the Arkansas Court of Appeals.
Echols v. State
,
for a writ of mandamus and pro se motions for сopies of his trial transcript and for leave to append brief; a motion for extension to file a belated and supplemental brief; a motion for seven additional days to file a belated and supplemental brief, a motion for a continuance, and a motion to dismiss.
Echols filed a timely verified petition for postconviction relief pursuant to Rule 37.1
of the Arkansas Rules of Criminal Procedure (2015) and alleged that both trial сounsel and
appellate counsel
[1]
were ineffective in litigating the factual and legal issues surrounding
Echols’s arrest and the subsequent search of his residence. On September 24, 2015, the trial
court entered its order summarily denying relief without a hearing. The trial court cited
Coulter v. State
,
On November 2, 2015, the trial court denied the motion to modify because it had
addressed all claims raised in the petition and further ruled that “[t]o the extent the court
did not rule on any pending issue, argument, petition, or motion, the Court denies all as
without merit.” The trial court retained jurisdiction to enter this order because, although
the notice of appeal had been filed, the record had not yet been lodged in this court.
See Watkins v. State
,
After the record had been lodged, Echols filed a petition for a writ of mandamus
asking this court to compel the trial court to rule on his claims. However, a ruling on the
mandamus petition would require appellate review of an order that Echols failed to appeal,
and mandamus is not a substitute for appeal.
Gran v. Hale
,
court to provide a ruling on an omitted issue and the trial court failеd to do so.
Strain v.
State
,
On appeal from a trial court's ruling on Rule 37.1 relief, we will not reverse the trial
court’s decision granting or denying postconviction relief unless it is clearly erroneous.
Kemp
v. State
,
At the outset, Echols argues that the trial court erroneously dismissed his Rule 37.1
petition based on the doctrine of “law of the case.” The trial court did not rely on the
doctrine of “law of the case,” but instead, relied on our decision in
Coulter
,
Harris v. State
,
In making a determination on a claim of ineffective assistance of counsel, we assess
the effectiveness of counsel undеr the standard set forth by the Supreme Court of the United
States in
Strickland v. Washington
, 466 U.S. 668, (1984), whereby a petitioner must
demonstrate that counsel made errors so serious that it prejudiced the outcome of the trial.
Sartin v. State
, 2012 Ark. 155, at 2–3, 400 S.W.3d 694, 697–98. Under the
Strickland
standard, the reviewing court indulges in a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.
Id.
The defendant claiming
ineffective assistance of counsel has the burden of overсoming 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.
Id.
In order to satisfy the prejudice part of the
Strickland
test, the petitioner must
show that counsel’s deficient performance prejudiced the defense, such that there is a
reasonable probability that the outcome of his trial would have been different absent
counsel’s еrrors.
Sartin
,
On appeal, Echols restates allegations and arguments raised in his Rule 37.1 petition. In the first half of his appellate argument, Echols focuses on the litigation of issues surrounding his arrest, which Echols contends was pretextual. Echols argues that trial counsel overlooked crucial facts and failed to make relevant lеgal arguments which, according to Echols, would have conclusively established that his arrest was pretextual. Before addressing the merits of Echols’s allegations a review of the circumstances surrounding Echols’s arrest is necessary.
Echols became a suspect in a bank robbery following a traffic stop of his brother, Terry Echols, after police learned that Terry had purchased items with money traced to the robbery. Testimony at thе suppression hearing established that Terry told investigating officers that the money came from his brother Bruce, with whom he shared a residence, and that Bruce primarily drove the vehicle that Terry was driving that day. A search of the vehicle uncovered clothing similar to clothing described as being worn by the robber. After participating in the stop and investigation of Terry, Officer Bigelow, who was already aware of an outstanding warrant issued for Bruce Echols on an unrelated misdemeanor charge, proceeded to the residence shared by Terry and Bruce Echols, where he arrested Bruce for the purpose of questioning him about the robbery.
Echols alleges that trial counsel failed to challenge what he describes as the “perjured” testimony of the arresting officer, Officer Bigelow. Echols insists that counsel was ineffective for failing to point out the following two incоnsistencies in the testimony of Officer Bigelow: that Bigelow testified on direct examination that he saw the arrest warrant the day before Echols’s arrest, but he further explained on cross-examination that he did not
actually see the warrant itself, but saw a folder bearing Echols’s name in the warrant file- cabinet; and that Bigelow testified on direct examination that Terry Echols had informed officers that he did not know if his brother Bruce was involved in the robbеry, but on cross- examination, Officer Bigelow recalled that Terry stated that he believed Bruce was involved in the robbery.
The above-cited inconsistencies in Bigelow’s testimony did not rise to the level of
perjury
[2]
as Echols asserts, but the testimony was wholly irrelevant to a determination that
the arrest was pretextual. We have explained that the crucial question in a pretextual-arrest
context is whether the arresting officer would havе executed the full custodial arrest “but
for” his suspicion that the arrestee was involved in another more serious crime.
State v.
Sullivan
,
Nevertheless, Echols contends that he was prejudiced by Officer Bigеlow’s allegedly false testimony because the trial court commented that “if Bigelow had seen the warrant the day before, then the arrest may well be pretextual.” However, contrary to Echols’s allegation, the trial court indicated that the arrest may well have been pretextual if Officer Bigelow had discovered the arrest warrant earlier than one day before it was executed. What the trial court found to be critical was testimоny establishing the time frame between the date Officer Bigelow first became aware that a warrant had been issued and the date on which the warrant was ultimately executed. Evidence that there was only a one-day delay in effecting the arrest supported Officer Bigelow’s testimony that the warrant would have been served regardless of Echols’s suspected participation in a bank robbery. The second instance of perjury alleged by Echols includes testimony from Officer Bigelow regarding Terry Echols’s belief that Bruce may have been involved in the robbery. Echols cannot demonstrate that he was prejudiced by counsel’s failure to seize upon this allegedly perjured testimony because, as noted by the court of appeals, the testimony was only relevant to the issue of probable cause for an arrest, an issue that was rendered moot when the trial court concluded that the arrest was not pretextual. See Echols , 2015 Ark. App. 304, at 9, 462 S.W.3d at 357 .
Echols’s final allegation connected to his arrest involves the prosecutor’s reliance on
the facts presented in
Stephens v. State
,
his argument that the arrest was valid.
[3]
Echols asserts that the
Stephens
holding was not
relevant because it involved an arrest following a traffic stop, whereas Echols was arrested at
his residence. According to Echols, the prosecutor intentionally failed to explain this
distinction for the purpose of misleading thе trial court, and his counsel was deficient for
allowing the prosecutor to advance this argument. The applicability of our holding in
Stephens
to the facts presented in Echols’s case was settled on direct appeal. The prosecutor
appropriately cited
Stephens,
Echols further argues that the trial court erred when it denied his claim for
postconviction relief without a hearing. We have explained that Rule 37.3 clearly grants
the trial court discretion to decide whether the files and records are sufficient to address the
petition without a hearing, and the trial court need not hold an evidentiary hearing where
it can be conclusively shown on the record, or the face of the petition itself, that the
allegations have no merit.
Green v. State
,
In the remaining half of his appellate brief, Echols argues that trial counsel was
ineffective by failing to discredit the affidavit supporting the search warrant that was issued
to search his residence. Echols asserts that trial counsel failed to argue that the affidavit did
not establish that contraband had been personally observed at the residence to be searched.
Counsel was not ineffective for failing to raise this argument for two reasons. First, the
court of appeals settled this issue when it reviewed the information contained in the affidavit
and concluded that it provided sufficient information to establish probable cause that
evidence of the robbery was likely to be found in the mobile home shared by Bruce and
Terry Echols.
Echols
,
evidence that contraband or evidence was seen in the place to be searched, as Echols
contends. The failure to make such a meritless argument is not ineffеctive assistance of
counsel.
State v. Rainer
,
For his second allegation of error regarding the affidavit, Echols contends that
counsel failed to argue that the affidavit lacked a sufficient time reference. However, the
record demonstrates that the affidavit set forth the date and time of the bank robbery; the
date and time Terry Echols was stopped, questioned, and searched after having been
reported to be in possession of stolen money; and the date that Bruce Echols was
interviewed. Providing the date and time when information was discovered is sufficient to
meet the time-reference standard.
See Wagner v State
,
Echols’s third allegation of error regarding the affidavit—that the affidavit did not demonstrate the reliability of the informant—was not raised in his Rule 37 petition, and, because an appellant is limited by the scope and nature of arguments presented below, we
cannot consider arguments raised for the first time on appeal.
Woods v. State
,
Echols further contends that counsel failed to argue that the defects in the search warrant’s affidavit were so egregious that the good-faith exception [4] to the exclusionary rule did not apply to the search of his residence. Because the trial court found that the warrant was valid and supported by probable cause, counsel was not ineffective for failing to raise this argument. See Blanchett v. State , 368 Ark. 492, 497, 247 S.W.3d 477, 481 (2007) (because arrest warrant was found to be valid, we declined to address argument that good- faith exception was not applicable).
In his final assignment of error regarding the affidavit supporting the search warrant, Echols asserts that counsel ineffectively allowed the prosecutor to bolster the affidavit with information gleaned from testimony presented during the suppression hearing. The testimony that Echols claims improperly supplemented the affidavit was testimony that Bruce lived with his brother, Terry Echols. However, a review of the affidavit demonstrates that the first paragraph affirms that the address of the residence to be searched was occupied by both Terry and Bruce Echols, which was reliable information supplied by investigating officers based on statements made by Terry Echols when he was initially stopped and questioned.
Accordingly, the trial court did not clearly err when it denied Echols’s claims for postconviction relief based on allegations of ineffective assistance of counsel in litigating the issues raised in the motion to suppress, and, therefore, we affirm. For the reasons set forth above, the petition for a writ of mandamus is denied, and Echols’s pro se motiоn for a transcript and for leave to append his brief and his pro se motion for an extension of time to file a supplemental brief, and for an additional seven days to file a supplemental brief are moot. [5]
Affirmed; petition for writ of mandamus denied; motions moot.
Bruce Allen Echols , pro se appellant.
Leslie Rutledge , Att’y Gen., by: Vada Berger , Ass’t Att’y Gen., for appellee. .
Notes
[1] In his reply brief, filed in this court on April 5, 2016, Echols withdrew any claims pertaining to appellate counsel raised in his Rule 37.1 petition and in his initial brief.
[2] The allegedly inconsistent testimony of Bigelow can be readily reconciled.
Bigelow’s testimony that he saw the actual warrant in the cabinet is not inconsistent with
his later testimony clarifying that he did not remove the warrant from the cabinet and view
it. Secondly, Terry Echols’s statements that he did not know if his brother was involved in
the robbery, but believed that he was involved are not contradictory statements as there is
a difference between knowing and believing. The trial court resolved thеse inconsistencies,
finding Officer Bigelow’s testimony to be credible. Variances and discrepancies in the proof
go to the weight or credibility of the evidence and are matters for the fact-finder to resolve.
The trier of fact is free to believe all or part of any witness’s testimony and may resolve
questions of conflicting testimony and inconsistent evidence.
Starling v. State
,
[3] In the reply brief, Echols clarified that he did not intend to make a free-standing, due-process claim with respect to allegations of prosecutorial misconduct. This issue arose because it was unclear from his brief and Rule 37.1 petition whether Echols’s allegations with respect to the prosecutor’s conduct were intended to be claims unconnected to his allegations of ineffective assistance of counsel. The State’s brief raised an alternative argument that prosecutorial misconduct claims are generally not cognizable in Rule 37.1 proceedings.
[4] The good-faith exception to the exclusionary rule, which was announced by the
United States Supreme Court in
United States v. Leon
, 468 U.S. 897 (1984), wherein
evidence that was obtained when police officers reasonably relied in good faith on a
subsequently invalidated warrant was not subject to suppression, has been adopted and
applied by this court.
See Starr v. State
,
[5] Echols’s pro se motions requesting a coрy of the trial transcript, and his motions to
file a supplemental belated brief, as well as his motions for an extension to file a supplemental
brief, and his motions for a continuance and motion to dismiss were filed in response to the
State’s alternative argument that evidence is otherwise admissible if the State proves by a
preponderance of the evidence that the police would have inevitably discovered the
еvidence by lawful means.
McDonald v. State
,