EDWARD JOSEPH REYNOLDS v. STATE OF ARKANSAS
No. CR-18-555
SUPREME COURT OF ARKANSAS
April 30, 2020
2020 Ark. 174
HONORABLE CHRIS E WILLIAMS, JUDGE
PRO SE APPEAL FROM THE GRANT COUNTY CIRCUIT COURT [NO. 27CR-14-106]
JOSEPHINE LINKER HART, Associate Justice
Aрpellant Edward Joseph Reynolds brings this pro se appeal from the trial court‘s denial of his claims for postconviction relief that were raised pursuant to
I. Standard of Review
A trial court‘s denial of a
II. Background
A jury found Reynolds guilty of kidnapping and aggravated assault, and he was sentenced as a habitual offender to consecutive sentences of life imprisonment and 180 months’ imprisonment. We affirmed. Reynolds v. State, 2016 Ark. 214, 492 S.W.3d 491.
A review of the trial record reveals1 that the evidence and testimony
Eventually, Reynolds released Wake and helped her bathe and wash off the blood. Two days after the assault, Reynolds brought Wake with him to the home of a third party to purchase drugs. While she was at this house, she surreptitiously asked the third party to contact her mother. Shortly thereafter, Wake‘s mother arrived and picked up Wake. While at her mother‘s house, Wake called the police and was taken to the hospital where she was treated for a concussion, fractures to her fingers, and contusions to her neck, throat, and chest. A search warrant was obtained for Reynolds‘s home where policе retrieved several cables and locks that resembled the restraints described by Wake. Blood samples from the carpet near the foot of the bed matched Wake‘s DNA. Wake testified that for the two days she remained with Reynolds, her eyes were swollen shut, and she was unable to see. She further testified on cross-examination that Reynolds had threatened to kill her if she left him.
Watters was charged as an accomplice in the kidnapping and assault and entered into a plea agreement. As part of the agreement, Watters testified against Reynolds and corroborated Wake‘s testimony that Reynolds had beaten, gagged, and bound her with cables. The torture continued for hоurs, and during this period, Reynolds discussed with Watters how and where to dispose of Wake‘s body.
III. Strickland Standard
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland. Williams, 2019 Ark. 289, 586 S.W.3d 148. Under the Strickland standard, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced his defense. Id. Unless a petitioner makes both showings, the allegations do not meet the benchmark on review for granting relief on a claim of ineffective assistance. Id.
Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumрtion. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Petitioner has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel‘s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
IV. Reynolds‘s Claims for Relief
Reynolds raised eight ineffective-assistance-of-counsel claims in his
It is not ineffective assistance if counsel fails to file a motion that would not be meritorious. Rea v. State, 2016 Ark. 368, 501 S.W.3d 357 (per curiam). So too, failure to make a meritless objection is not ineffective assistance of counsel. Dennis v. State, 2020 Ark. 28, 592 S.W.3d 646. To demonstrate error in the preservation of issues on appeal, a petitioner must demonstrate that the issue would have merited appellate relief and resulted in a finding of reversible error. Thompson v. State, 2019 Ark. 312, 586 S.W.3d 615. Finally, the faсt that there was a witness that could have offered testimony beneficial to the defense is not in itself proof of counsel‘s ineffectiveness. Hinton v. State, 2019 Ark. 136, 572 S.W.3d 381.
A. Failure to Challenge Sufficiency of Evidence Supporting Purposeful Intent
In his first claim for relief, Reynolds contended that counsel failed to preserve a sufficiency argument with respect to the evidence supporting his intent. Specifically, Reynolds argued that because he was under the influence of drugs at the time of the assault, the evidence was insufficient to support a finding that he acted with purposeful intent.
It is well established that voluntary intoxication does not negate criminal intent.
B. Failure to Suppress Photographs
In his second claim for relief, Reynolds argued that counsel was ineffective for failing to file a motion to suppress photographs depicting the victim‘s injuries. This court has stated that the mere fact that photos are inflammatory will not render them inadmissible. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998). Even the most gruesome photos mаy be relevant if they tend to shed some light on a material issue, corroborate testimony, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Id. Photos may also be admitted to show the nature, extent, and location
Trial counsel testified at the
C. Failure to Preserve Objection to Wake‘s Testimony
In his third claim for relief, Reynolds asserted that counsel was ineffective for failing to make a contemporaneous objection to Wake‘s testimony wherein she described her injuries without corroborating medical evidence. Specifically, Wake testified that as a result of the assault, she sustained a concussion; two minor fractures; and cоntusions to her neck, throat, back, and chest. Trial counsel did not object when Wake‘s testimony concerning her injuries was first presented but did object when Wake was again asked to describe her injuries. The trial court overruled the objection and concluded that Wake would be allowed to testify about her injuries. Because trial counsel did not object when Wake‘s testimony concerning her injuries was first presented, this court found on direct appeal that the issue was not preserved for review. Reynolds, 2016 Ark. 214, 492 S.W.3d 491. Counsel‘s failure to object at the first opportunity was trial error, resulting in this court holding that the objection had not been preserved for appeal. Even so, this court noted that the admission of Wake‘s testimony was not prejudicial because the jury had already heard Wake‘s testimony and seen photographic evidence of Wake‘s injuries, and her testimony was therefore merely cumulative of her prior testimony regarding the injuries she suffered. Id.
To the extent Reynolds‘s trial counsel‘s failure to object at the first oppоrtunity arguably satisfies the first prong of Strickland, this failure does not satisfy the second prong—that his counsel‘s error was sufficiently prejudicial as to show a reasonable probability of a different outcome. We note from the trial record that Wake described in detail how her injuries were incurred, that the locks and cables from Reynolds‘s BowFlex machine resembled those used to tie Wake up, and that photographs of Wake‘s injuries taken during her ride in the ambulance were introduced into evidence. Any deficiency for failing to object to Wake‘s initial testimony about her medical diagnoses was not so prejudicial as to change the outcome of the trial.
D. Failure to Call a Witness
In his fourth claim for relief, Reynolds alleged that counsel failed to call Reynolds‘s cousin as a witness who, according to Reynolds, would have provided
In the petition filed below, Reynolds did not provide a summary of his cousin‘s testimony but made conclusory allegations that her testimony would have been favorable and would have supported the proposition that Wake had “conspired to retaliate false chаrges against petitioner in order to arrest and convict him.” Trial counsel testified that he did not call Reynolds‘s cousin as a witness because the cousin had not been present during the assault and had seen Wake only on the morning before the events surrounding the crimes unfolded. Thus, Reynolds‘s trial counsel concluded that her testimony would not have been relevant. On appeal, Reynolds insists that trial counsel‘s failure to call his cousin as a witness was an unreasonable decision but offers no basis for his argument. Reynolds simply fails to establish that the decision not to call his cousin was unreasonable or that his cousin‘s testimony would have changed the outcome of the trial when viewed within the context of all the evidence presented.
E. Prosecutorial Misconduct
Reynolds‘s fifth claim was that the prosecutor wrongfully vouched for Wake‘s credibility during closing argument. This argument fails because the issue was, in fact, raised at trial and reviewed on appeal. This court found that the remarks made during closing argument by the prosecutor were not inflammatory, and Reynolds was not рrejudiced by the remarks because the trial court provided a curative instruction. Reynolds, 2016 Ark. 214, 492 S.W.3d 491.
F. Failure to Object to Testimony of Accomplice
For his sixth claim, Reynolds contended that counsel should have objected to Watters‘s testimony because his accomplice testimony was uncorroborated. It is well settled that the corroborating evidence of an accomplice‘s testimоny need not be sufficient in and of itself to sustain a conviction. Thrower v. State, 2018 Ark. 256, 554 S.W.3d 825. The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and connects the accused with its commission. Taylor v. State, 2010 Ark. 372, 372 S.W.3d 769. Here, Watters‘s testimony was corroborated by the physical evidence recovered from Reynolds‘s home, which included the cables and the padlocks described by Watters and Wake as being used to restrain Wake, as well as the DNA evidence, which confirmed the presence of Wake‘s blood in the room where the assault took place. Without considering Watters‘s testimony, Wake‘s testimony and the evidence recovered from Reynolds‘s home
G. Sufficiency of Evidence Supporting the Conviction for Class Y Felony Kidnapping
In his seventh claim for relief, Reynolds contended that because Wake was released safe and alive, trial counsel should have challenged the sufficiency of the evidence supporting his cоnviction for Class Y kidnapping.
It is a question of fact for the jury to decide which of the kidnapping felonies apply in a particular case. Clark v. State, 292 Ark. 69, 727 S.W.2d 853 (1987). The trial record shows that the jury was provided with instructions and verdict forms on both Class B felony and Class Y felony kidnapping. The verdict form shows that the jury found that Reynolds had not proved by a preponderance of the evidence that he released the victim alive and in a safe place prior to trial.
A motion for directed verdict on the Class Y kidnapping charge would have failed. The evidence in this case demonstrated that after Reynolds removed the restraints, Wake remained under his control: she testified that Reynolds did not take her to the hоspital; her eyes were swollen shut, which rendered her incapable of escaping; and Reynolds had threatened to kill her if she left him. It was not until she accompanied Reynolds to the house of a third person that she was able to escape from his control. The fact that the victim remained under the control of the assailant is sufficient to support a finding that Reynolds was guilty of Class Y felony kidnapping. Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004).
H. Cumulative Errors
Finally, Reynolds contended that counsel‘s cumulative errors warrant a determination that his representation was ineffective. None of the errors presented in this appeal create a reasonable probability of a different outcome had they not ocсurred. Furthermore, this court has not recognized cumulative error in allegations of ineffective assistance of counsel, and we decline to do so in this instance. Lacy v. State, 2018 Ark. 174, 545 S.W.3d 746.
Affirmed.
Edward Joseph Reynolds, pro se appellant.
Leslie Rutledge, Att‘y Gen., by: Rachel Kemp, Ass‘t Att‘y Gen., for appellee.