Jackson v. StateJackson v. State
PER CURIAM
In 2009, appellant Michael Deshaun Jackson was found guilty by a jury of capital murder, criminal attempt to commit capital murder, and aggravated robbery, with a firearm enhancement. He was sentenced to an aggregate sentence of life imprisonment without parole. We affirmed. Jackson v. State, 2011 Ark. 9, ___ S.W.3d ___.
In 2011, appellant filed in the trial court a timely, verified pro se petition for postconviction relief pursuant to
This court has held that it will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Charland v. State, 2012 Ark. 246; Springs v. State, 2012 Ark. 87, ___ S.W.3d ___; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007); Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). We have said, “A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after
In his brief on appeal, appellant first argues that the trial court erred in not holding a hearing on his
Appellant next contends that it was a violation of the provisions against double jeopardy contained in the United States Constitution and the Arkansas Constitution for him to be convicted of both capital murder and aggravated robbery because the aggravated-robbery charge
As the trial court found in its order, there is no merit to appellant’s argument that he was subjected to double jeopardy. Separate convictions and sentences are authorized for capital murder and the felony underlying the capital-murder charge, pursuant to
As his second ground for reversal of the order, appellant asserts that he was denied due process of law when the prosecutor knowingly used the false testimony of Tina Jefferson to obtain his conviction. He alleges that Jefferson was threatened with revocation of her probation if she did not testify that she had heard appellant talk about his involvement in the crime. Appellant contends that Jefferson recanted her testimony after he was convicted, and, in the
At trial, Jefferson was questioned vigorously by counsel for appellant. The circumstances surrounding her reluctance to testify, including her fear that her probation would be revoked if she declined to testify and her attempts to avoid testifying, were brought out both in direct and cross-examination. As raised by appellant, the allegation of Jefferson’s recanted testimony amounted to an attempt to refute whatever evidence was adduced at trial by means of Jefferson’s testimony.
With respect to appellant’s desire to add Jefferson’s affidavit to the addendum to his brief, this court does not consider any item that was not before the trial court when it entered its order on the petition for postconviction relief. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). Accordingly, the motion is denied.
The remainder of appellant’s points for reversal of the order are concerned with the effectiveness of his attorney. We first note that appellant urged the trial court to consider that counsel’s errors, taken as a whole, amounted to ineffective assistance of counsel. We have repeatedly held, however, that the concept of cumulative error is not recognized in
When considering an appeal from a circuit court’s denial of a
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, 369 Ark. 104, 251 S.W.3d 290. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Id. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, ___ S.W.3d ___ (per curiam).
To understand the allegations raised, a brief summary of the events giving rise to the charges against appellant is needed. In 2007, three men—appellant, Sammie Madden, and Cherick Coleman—entered the home of David Rogers in North Little Rock. Rogers operated a candy and snack store from his home. Rogers’s stepson, Shawn Bisbee, also lived in the home. Rogers testified that the three men demanded money, forced him to lie face down on the floor of the dining room, and took Bisbee back to a bedroom. Rogers emptied the cash register and one lockbox hidden in the home. Rogers also told the men about a gun he kept hidden under
While Rogers was in the dining room, at least one of the three intruders was searching the bedroom where Bisbee was also forced to lie face down on the floor. There was a second lockbox hidden under Rogers’s bed, but Rogers could not find a key to unlock it. At this point, Rogers testified that he was taken to the bedroom and was forced to lie face down on the floor where both he and Bisbee were struck in the back of the head with a pistol. When Rogers could not open the second lockbox, Bisbee was stabbed in the back by appellant four times, and his throat was cut by appellant.1 Appellant then shot Bisbee and Rogers each in the back of the head before all three assailants fled the home. Coleman testified that he dropped the gun that he was given by appellant in the front yard. Rogers survived the attack, but Bisbee died as a result of his injuries.
Appellant first alleged in his petition that his attorney was ineffective, in that counsel failed to elicit information from Coleman on a prior firearm-possession charge against Coleman and failed to cross-examine Coleman on whether a deal had been made with the prosecution in exchange for his testimony. Appellant provides no substantiation for the claim that there was a prior firearm-possession charge that had some effect on Coleman’s testimony. Conclusory statements cannot be the basis of postconviction relief. Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). Coleman agreed to testify as part of the negotiated plea of guilty, and appellant’s attorney questioned Coleman at length concerning the plea agreement. Appellant did not offer
Next, appellant asserted that counsel should have followed up on the progress of Tina Jefferson’s criminal case so that a posttrial motion could have been filed and a hearing held on the matter. The claim was not supported by any facts to show that counsel had any obligation to file a posttrial motion and did not demonstrate that counsel erred. The burden was entirely on appellant to provide facts in this petition to support his claims of prejudice. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam); see also Jones v. State, 2012 Ark. 215 (per curiam).
Petitioner also alleged that there were a number of instances where counsel could have questioned witnesses in such a way that doubt would have been cast on whether appellant was involved in the attack on the victims. He argues that there were inconsistencies in victim David Rogers’s statements that could have been used to establish that appellant did not commit the acts that Rogers and Coleman attributed to him. Appellant particularly focused on proof that counsel could have presented to the jury to show that he is left-handed and shorter than the other assailants, and, thus, could not have committed the acts as described. In the same vein, he contended that the forensic evidence, including that obtained from the medical examiner’s autopsy of victim Shawn Bisbee, could have been presented by counsel so as to show the jury that he did not inflict certain injuries. He further contends that counsel could have elicited important evidence if counsel had argued that fingerprint analysis should have been done on the gun found in the yard of the victims’ residence.
Order affirmed; motion to supplement brief denied.
Michael Deshaun Jackson, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.