Lead Opinion
David Johnson was convicted of capital murder and was sentenced to death by lethal injection. Both his conviction and sentence were affirmed on direct appeal. Johnson v. State,
I.
Appellant’s first assignment is that the trial court erred in denying relief because his attorney had a conflict of interest. Appellant’s attorney, Robert Smith, represented Derrick Gilbert on an unrelated charge, and Gilbert did not testify as a witness for appellant. Appellant contends that Smith did not force Gilbert to testify because he was protecting Gilbert. The facts do not support this argument, and the trial court correctly ruled that appellant did not prove ineffective assistance of counsel as a result of a conflict of counsel’s interest. See Ford v. State,
Prejudice will be presumed from a conflict of counsel’s interest only when the defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected his lawyer’s performance. Strickland v. Washington,
At the trial on the merits, appellant proffered the testimony of Derrick Gilbert, which was that he would testify that Bobby Jewell Ford told him that he sold some property to appellant that was stolen from the crime scene on the night of the murder. The trial judge advised appellant’s attorney, Smith, that he would sustain a hearsay objection to such testimony. A deputy prosecutor stated that, since Gilbert had told her earlier that he knew nothing about the crime, he would be committing perjury if he gave such testimony, and, consequently, he might need an attorney. Appellant’s attorney, Smith, stated that he had a “problem” because he represented Gilbert in a different case. The trial judge advised Gilbert to “get out of here before you get yourself in trouble.”
At the postconviction hearing, Gilbert testified that Ford had told him that he thought he had killed someone and that he had obtained drugs from appellant in exchange for some items that were stolen from the crime scene. Gilbert further testified that Smith had initially represented him on an unrelated charge, but had failed to appear at his trial, and another attorney ultimately represented him. Gilbert admitted that he told the deputy prosecutor he did not know anything about the stolen items, but said that the reason he said that was because the deputy prosecutor indicated that he was a suspect in the murder case and he was afraid he might be charged with capital murder. Finally, Gilbert testified that he told a falsehood when he told the prosecutors he knew nothing about appellant’s case.
Smith’s representation of Gilbert would include a duty to protect Gilbert from perjuring himself or from implicating himself in the murder. Arguably, this is what Smith meant when he stated at trial that he had a problem because he also represented Gilbert. However, even assuming this shows an actual conflict, it does not prove that the conflict had a real and demonstrable effect on Smith’s performance. See Ford,
In the postconviction proceeding, appellant contended that the testimony was admissible under A.R.E. Rules 804(a)(2) and 804(b)(3), and under Chambers v. Mississippi,
[T]hat Bobby Ford is not a credible witness as he obviously has problems with his mental faculties, including his ability to relate events. This court also finds that Derrick Gilbert is not a credible witness either, based upon the testimony of the deputy prosecutors, Melody LaRue and Mark Fraiser, concerning their conversations with him in the jail, as well as his testimony before this court.
Appellant contends that at the trial Charles Whitfield could have corroborated the alleged statement against penal interest, but that Smith did not use him as a witness. To the contrary, Smith testified that he never heard the name Charles Whitfield until the postconviction hearing. Moreover, appellant did not call Whitfield as a witness at the postconviction hearing. Finally, Bobby Ford testified that he did not see or speak to Charles Whitfield the night appellant committed the murder, and he denied making any statement against penal interest to Whitfield. In sum, appellant failed to show that the testimony was admissible as an exception to hearsay, and the unreliable hearsay evidence was not admissible under Chambers. Thus, appellant failed to show that Smith acted in favor of Gilbert to the detriment of appellant because of a conflict of interest.
II.
Appellant next argues that the trial court erred in refusing to rule that Smith was ineffective at trial. The law on this subject is well settled. Counsel is presumed to be competent. Russell v. State,
a.
Under this general assignment of error, appellant makes a number of sub-points. In the first of these he argues that Smith was ineffective because he did not interview Bobby Jewell Ford, the man who allegedly admitted to Derrick Gilbert that he had killed someone and that he had sold some property to appellant that was stolen at the time of the murder. To the contrary, Smith testified that he visited with Ford and that he checked with the State Crime Laboratory to determine if any of the fingerprints at the scene matched those of Ford. He testified that Ford refused to admit to him that he had sold stolen property to appellant. The record reflects that Smith did call Ford as a witness and that Ford invoked the Fifth Amendment. In the post-conviction proceeding the trial court found that Smith had done all that he could do to get Ford to testify. The trial court’s finding is not clearly against the preponderance of the evidence. See Atchison,
b.
Appellant argues that Smith was ineffective because he did not view the crime scene in preparation for trial. Smith testified at the postconviction hearing that he visited the crime scene before the trial. Appellant argues that Dudley Swann, the owner of Little Rock Crate and Basket company where the murder was committed, did not recall showing Smith the premises. Thus, appellant concludes that Smith never examined the crime scene. The actual testimony is not so conflicting as appellant would have it appear. Smith testified that he talked to Dudley Swann by phone and that he subsequently went to the scene and examined it without ever having met Swann. Even if there were a conflict in testimony, the resolution of credibility issues is within the province of the trial court. Atchison,
c.
Appellant argues that Smith did not examine the evidence prior to trial. Audrianna Grisham, who shared a law office with Smith, testified that he did not seem to be familiar with the case and that he did not appear to have seen the evidence until just before the trial. However, Smith testified at the postconviction hearing that he thoroughly examined the evidence, that he worked on the case for about a year before he met Ms. Grisham, that he only met Ms. Grisham about two weeks before the trial, and that she did not know the extent of his preparation. Again, credibility issues and the weighing of testimony are for the trial court. Atchison,
d.
Appellant next contends that Smith failed to adequately investigate the penalty phase of the trial. In support of the argument, he states that Smith knew of violence and alcoholism in appellant’s family background, yet he contended there was nothing out of the ordinary in appellant’s background. Appellant also supports the argument by stating that Smith did not use a family history he prepared, did not talk with his sister, did not call a psychologist, Dr. James Moneypenny, until just before the trial,
The trial court ruled that appellant did not show any prejudice because appellant did not show what mitigating circumstances Dr. Moneypenny or other family members would have brought out in trial. An examination of appellant’s brief to the trial court confirms this. He states that it was “easy” for the prosecution to “establish the paucity of Dr. Moneypenny’s contacts” with him; thus “one cannot say that the weighing of the [aggravating and mitigating] circumstances would not have been different” if Moneypenny had more time with him. He argues that only one family member was called to testify and if others had been called, “the strength of the family unit might have caused the jury not to vote for death.” However, appellant did not show what the family members might have said or done to help him, and a part of his argument in the penalty phase of the trial was that he should not receive the death penalty because he was fully capable of peacefully living the rest of his life in prison. Allegations of ineffective assistance without substantiation do not justify postconvicrion relief. Gilbert v. State,
e.
Appellant next argues that Smith was ineffective at the pretrial proceedings. In this sub-point, appellant contends that Smith did not object to a misstatement of evidence in the omnibus hearing. The specific argument is that at the hearing on November 1, 1990, the State claimed to have matched appellant’s fingerprints with fingerprints found at the scene, but, in fact, the fingerprint analysis done at the Crime Laboratory was not completed and mailed to the prosecutor’s office until November 26, 1990. Also, appellant argues that Smith apparently never did realize that he was not charged with capital felony murder, as he made a double counting argument both at pretrial and on appeal.
We summarily dismiss the argument about double counting, because, again, appellant has failed to show how he was prejudiced by Smith making the argument in his behalf. Strickland,
The trial court found that it would not have made any difference even if Smith had objected at the omnibus hearing because Ann McClain of the Little Rock Police Department was included on the witness list in the felony information, and she would have been able to testify that she matched the fingerprints. Again, appellant has shown no prejudice in this omission by Smith. He must show that the outcome of the trial would have been different if the omission had not occurred. Strickland,
Appellant contends that Smith was ineffective in both voir dire and selection of the jurors. He argues that Smith seated four jurors who previously sat as jurors on a capital murder trial in which a death verdict was rendered and that he did not strike other jurors. Specifically, appellant contends Smith should have struck one juror who worked closely with security personnel, another a former military policeman who said that he would give police officers’ testimony more credibility because they take field notes, two jurors who could not think of any mitigating circumstances, and one who had been a witness in a murder case. Appellant also contends Smith did not object when the State asked certain jurors to consider all the evidence when determining punishment, did not explore the jurors’ attitudes toward capital punishment, and that Smith suggested that crime is on the rise and that the death sentence is a more effective deterrent to crime than is the sentence of life without parole. Audrianna Grisham’s testimony on this issue is abstracted in the material part as follows:
On several occasions, he [Smith] and I had almost heated conversations about potential jurors, him thinking that they were qualified and me having doubts about it. It was Rob’s sole criteria; he wanted an all Catholic jury to sit on David Johnson’s trial. Their religion was his paramount concern, and he told me that. I remember one particular juror that during the middle of voir dire said that she absolutely without a doubt believed in capital punishment, but she was either Catholic or a religion that Rob considered tantamount to Catholicism, and he wanted her on the jury. I told him I thought it was a really bad idea.
Smith testified that he examined the responses the jurors made to questions submitted prior to trial. He testified that, as the trial took place three years ago, he could not recall the names of the jurors, and he did not recall whether he took jurors who had previously voted for a death penalty. He testified that if he had done so, he would have had a reason at the time.
Smith testified that he talked to attorneys who had extensive criminal experience. He testified that Millard Farmer was one of the foremost defense attorneys in capital cases, and Farmer told him appellant was likely to be sentenced to death. Thus, Smith was apparently looking for a strategy that might keep his client from the death sentence. He apparently chose to base it upon religious tenets of the jurors. Appellant’s argument is that Smith used bad strategy in selecting the panel. We have often written that we will not label counsel ineffective merely because of possible bad tactics or strategy. Dumond v. State,
g-
Appellant makes two-arguments under this sub-issue. They are: (1) Smith failed to sufficiently raise doubts that tennis shoes and clothes admitted into evidence belonged to appellant; and (2) Smith failed to present alibi witnesses and other exculpatory evidence.
1.
The forensic scientist from the State Crime Laboratory testified that the small amount of human blood on the shoes introduced into evidence could not be matched to either appellant or the victim. Connie Manuel, appellant’s girlfriend with whom he was living, stated that on the night of the murder appellant wore the clothes and shoes that were admitted into evidence, and that appellant washed some clothes the next day, but she could not say whether the clothes he washed were the same clothes he wore earlier. Luella Shavis, Connie Manuel’s mother, who also lived with appellant, testified that she authorized the police to take some clothes from a bedroom of their home, but she could not tell if the ones presented at trial were the ones taken except for the shirt. There were no witnesses who described appellant’s clothing at the time of the murder, except for possibly Terrie Dickerson, who
2.
Appellant argues that Smith should have asked Terrie Dickerson if appellant was at her house at the time of the murder. Although the question at trial was not asked in that exact way, Terrie Dickerson did testify to that effect. She stated that, at approximately 7:00 p.m. on the evening of the murder, appellant walked up to her house and told her that her car, which he had borrowed, was stuck in a ditch by Little Rock Crate and Basket. She further testified that it would take about two hours to walk to her house from Little Rock Crate and Basket. If true, this would have made it impossible for Johnson to have committed the murder, as Leon Brown was alive at 5:00 p.m. See Johnson,
Appellant’s complaint about Dickerson’s testimony is that it should have been “emphasized” more, but, again, it is an argument over strategy. Haynie,
Appellant also argues that Smith made a mistake in not cross-examining criminalist Gary Lawrence. On direct, Lawrence testified that hairs found on a board, arguably the murder weapon, could not be definitively identified as the victim’s hairs. Smith did not cross-examine him, but that strategy allowed him to argue in closing that there was no evidence to link appellant with the murder weapon.
h.
Appellant argues that in the penalty phase of the trial Smith should have offered more evidence about his background, both through Dr. Moneypenny and through family members. At trial, Dr. Moneypenny attempted to testify about appellant’s background, but a hearsay objection was sustained. At the postconviction hearing, Dr. Moneypenny testified that appellant indicated his mother had a drinking problem and that there was a lot of physical violence between his mother and father and between his mother and stepfather. Dr. Moneypenny stated that he had testified about mitigating circumstances in other trials. However, there was no proof that family members would have so testified. In fact, appellant’s sister, Patrice Jenkins, testified at trial that the men in their home were “wonderful” father figures. Thus, appellant has not brought forth the facts necessary to show any prejudice.
The argument concerning Dr. Moneypenny’s testimony is a disguised evidentiary argument that the testimony should have been admitted under Ark. Code Ann. § 5-4-602(4) (Repl. 1993), which states that the rules of evidence, such as hearsay, do not apply to mitigating evidence in capital cases. Such arguments are not entertained in Rule 37 petitions. Haynie,
i.
Appellant argues that Smith was ineffective after the trial, the facts surrounding
The trial court found that Grisham’s testimony was not credible and that Smith had done all he could do. Again, such questions of credibility are within the province of the trial court. Atchison,
III.
Appellant argues that he should be afforded relief because the deputy prosecutors violated Rule 4.2 of the Arkansas Rules of Professional Conduct when they questioned Derrick Gilbert about this murder while Gilbert was represented by counsel. The argument is without merit. Gilbert was represented by Smith in an unrelated matter, and the Rule does not prohibit communication with a party on matters outside the representation. See Comment to Rule 4.2.
Appellant contends that United States v. Lopez,
IV.
Appellant argues that the trial court erred in denying post-conviction relief because he is actually innocent of capital murder. We summarily dismiss this point of appeal. We recited the proof in our original opinion, Johnson v. State,
In this argument appellant merely reiterates his argument that Bobby Ford may have killed Leon Brown, which is what he unsuccessfully argued at trial. Appellant is therefore trying to rechallenge the sufficiency of the evidence in this post-conviction proceeding. We have said that there can be no relief on an ineffectiveness claim when there is no demonstration that additional evidence would have persuaded the jury differently. Wainwright v. State,
V.
In his final point of appeal, appellant makes three sub-points involving the penalty phase of the trial.
The first sub-point involves this court’s opinion on the direct appeal. In this argument appellant contends that the trial court erred in its Rule 37 ruling in refusing to hold that this court improperly applied the harmless error analysis to an evidentiary ruling involving the testimony of Dr. Moneypenny. See Johnson,
b.
The second sub-point involves this appeal from the trial court’s denial of postconviction relief. In his Rule 37 petition filed in circuit court, appellant argued that trial counsel was ineffective at trial because he “did not object to improper restriction on mitigation evidence.” The trial court directly addressed this argument and ruled that this court in its opinion addressed the improper restriction on mitigating evidence and held that there was no prejudice because the evidence came in through another witness. The trial court then ruled that appellant was attempting to reargue the evidentiary issue through the guise of ineffective assistance of counsel and could not do so when the claim was addressed on direct appeal. See Stephens v. State
c.
The third sub-point involves counsel’s ineffectiveness for failing to argue on rehearing that this court’s opinion on direct appeal contained an alleged error of law. Appellant did not make this allegation in his Rule 37 petition filed in circuit court. The matter was not argued below, and the trial court did not rule on it. This is an appeal from the trial court’s denial of the Rule 37 petition, and our general rule is that specific allegations of ineffectiveness of counsel must be pleaded, and specific issues of ineffectiveness of counsel cannot be raised for the first time on appeal. Tisdale v. State,
The record does not show error of such magnitude. In fact, the record does not show any error in our opinion. Appellant contends that this court erroneously employed the harmless error standard of review in deciding the penalty phase of the trial, and cites Williams v. State,
The Act states that where the Arkansas Supreme Court finds that the jury erred in finding the existence of aggravating circumstances or lack of mitigating circumstances, the court shall conduct a harmless error review. The review as set out by the legislature requires the supreme court to determine whether the remaining aggravating circumstance(s), excluding the circumstance found in error, exists beyond a reasonable doubt and justifies a death sentence beyond a reasonable doubt. If so, the court can conclude that the jury would have imposed the death sentence despite the error, and can affirm the defendant’s death sentence by a vote of a simple majority, rather than remand for the lower court to determine the sentencing issue.
Id. at 569.
In Ward v. State,
When mitigating circumstances are found, the wording of the statute does not expressly authorize this court to utilize a harmless error review in the weighing of aggravating circumstances against mitigating circumstances, but that was not the issue before us on direct appeal of this case. Nowhere in the direct appeal did we reweigh aggravating circumstances against mitigating circumstances. Rather, on our own motion we discovered an erroneous evidentiary ruling involving testimony about mitigating circumstances, see Ark. Sup. Ct. R. 4-3(f), and we wrote:
Even though the ruling was erroneous, no prejudice was suffered because the expert witness was able to express his opinion that the appellant could successfully live in a prison society, and the jury so held, and the facts concerning the appellant’s background were fully developed for the jury by another witness, appellant’s sister, Patrice Marcella Jackson Jenkins.
Johnson,
There was no proffer at trial of additional testimony by Dr. Moneypenny that might have caused the jury to find an additional mitigating circumstance. Patrice Jenkins testified about appellant’s background, and there was no objection to her testimony. Consequently, there was no proffer of additional testimony by her. Thus, the jury heard all of the evidence about mitigating circumstances that was offered at trial. This court correctly used the harmless error standard of review in deciding the evidentiary issue. We did not reweigh the aggravating circumstance against the mitigating circumstance. Therefore, appellant was not deprived of any rights, much less the fundamental right to a fair trial. In sum, appellant’s argument is without merit because he did not plead the matter in his Rule 37 petition in circuit court, and it is barred. Even if we considered the matter for the first time on appeal because it is a death case, the argument is without merit, and appellant was not deprived of a fundamental right to a fair trial.
Affirmed.
Concurrence Opinion
concurring in part, dissenting in part. I agree to affirm the Order Denying Post-Conviction Relief on every point but one and would remand for resentencing.
During the penalty phase at the original trial, Johnson was prohibited by court ruling from presenting complete background testimony through Dr. Moneypenney in mitigation of a death sentence. We affirmed that ruling in Johnson v. State,
The key assumption in the majority’s discussion of this issue is an erroneous conclusion that Johnson did not raise his counsel’s failure to petition for rehearing in his Rule 37 petition. But Johnson did raise that failure, after explaining the error of applying the harmless error analysis to the exclusion of a mitigating circumstance:
As discussed previously, to the extent that this matter is deemed to have been procedurally defaulted at trial or on appeal, Smith [trial counsel] was ineffective in not properly presenting and preserving it.
Despite this assertion in the Rule 37 petition, the trial court ruled as follows:
Mitigation evidence. Petitioner alleged that his attorney was ineffective for not objecting to the improper restriction on mitigation evidence. The Arkansas Supreme Court when addressing the issue of improper restriction on mitigating evidence, stated that there was no prejudice because the evidence came in through another witness. Petitioner appears to be arguing an evidentiary question through the guise of ineffective assistance of counsel, and cannot do so especially when the claim was raised on direct appeal. Robinson v. State, supra. See O’Rourke v. State,298 Ark. 144 ,764 S.W.2d 916 (1989); Neff v. State,287 Ark. 88 ,696 S.W.2d 736 (1985).
Contrary to the trial court’s statement, the mitigation issue was not raised on direct appeal by Johnson. Rather, this court raised the issue as part of our Supreme Court Rule 4-3(h) review and then applied the harmless error analysis. See Johnson I,
The majority then concludes that even if Johnson did assert the issue of failure to ask for rehearing in his Rule 37 petition, Johnson did not suffer any prejudice by the exclusion of Dr. Moneypenney’s testimony. Specifically, the majority concludes that application of the harmless error test was proper. But this runs counter to our cases and authority from the United States Supreme Court. In Sheridan v. State, we underscored the importance of mitigation testimony:
The United States Supreme Court has held that it is a mandatory safeguard of the Eighth Amendment for the sentencing body to be allowed to consider any mitigating factor that is relevant to the particular offender’s case. California v. Brown,479 U.S. 538 (1987); Roberts v. Louisiana,431 U.S. 633 (1977); Gregg v. Georgia,428 U.S. 153 (1976). The defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense. California v. Brown, supra. Not only must relevant mitigating evidence be admitted, it must be actually considered, which in appropriate cases means specifically instructing the jury to do so. Penry v. Lynaugh, supra; Eddings v. Oklahoma,455 U.S. 104 (1982). In other words, any death sentence that results from a deliberate exclusion of any relevant mitigating evidence is presumptively invalid. Hitchcock v. Dugger,481 U.S. 393 (1987).
The United States Supreme Court has addressed the precise point of whether the
We think, however, that characterizing the excluded evidence as cumulative and its exclusion as harmless is implausible on the facts before us. The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses — and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges — would quite naturally be given much greater weight by the jury. Nor can we confidently conclude that credible evidence that petitioner was a good prisoner would have had no effect upon the jury’s deliberations. The prosecutor himself, in closing argument, made much of the dangers petitioner would pose if sentenced to prison, and went so far as to assert that petitioner could be expected to rape other inmates. Under these circumstances, it appears reasonably likely that the exclusion of evidence bearing upon petitioner’s behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury’s decision to impose the death sentence. Thus, under any standard, the exclusion of the evidence was sufficiently prejudicial to constitute reversible error.
The exclusion by the state trial court of relevant mitigating evidence impeded the sentencing jury’s ability to carry out its task of considering all relevant facets of the character and record of the individual offender.
Skipper,
The facts of the instant case are analogous. But the majority opinion holds that excluding the mitigation testimony of Dr. Moneypenney concerning Johnson’s adverse background conditions was cumulative to that of his sister and, therefore, harmless. However, a sister’s testimony does not substitute for that of a disinterested witness. The jury was deprived of Dr. Moneypenney’s testimony. It was error to exclude it, and trial counsel should have petitioned for rehearing when this court affirmed the error.
I believe that the exclusion of Dr. Moneypenney’s testimony on mitigating circumstances might well have affected the assessment of the death penalty. Accordingly, I would remand for resentencing. See Ward v. State,