Lead Opinion
Appellant Jack Harold Jones Jr. was convicted in the White County Circuit Court of the capital murder and rape of Mary Phillips and the attempted capital murder of Lacy Phillips. Jones was sentenced to death by lethal injection, life imprisonment, and thirty years’ imprisonment, respectively, for the crimes. This court affirmed the convictions and sentences in Jones v. State,
The facts surrounding these crimes were set out in great detail in this court’s previous decision, and we see no need to repeat them here. Suffice it to say that on June 6, 1995, thirty-four-year-old Mary Phillips and her eleven-year-old daughter Lacy were at an accounting office in Bald Knob, where Mary worked as a bookkeeper. Jones entered the business and robbed them at gunpoint. Jones then anally raped and murdered Mary and severely beat and strangled Lacy, leaving her for dead. Lacy lost consciousness for a period of time. She later awakened when police, apparently believing she was dead, were taking photographs of her. The police found Mary’s body nude from the waist down, with a cord from a nearby coffee pot wrapped around her neck. Additionally, she had sustained blunt-force head injuries, as well as bruises on her arms and back.
Before discussing the points raised on appeal, we note that to prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Weaver v. State,
I. Aggravating Circumstance of Especially Cruel or Depraved Manner
For his first point for reversal, Jones argues that trial counsel was ineffective for fading to object to the submission of the aggravating circumstance that the capital murder was committed in an especially cruel or depraved manner. He asserts that the evidence was insufficient to support such a finding. He also argues that despite trial counsel’s failure to object, appellate counsel was ineffective for not pursuing the issue on appeal. See Bowen v. State,
In Johnson, the appellant raised an issue on appeal that he had not raised in his Rule 37 petition. Moreover, the issue was not argued during the postconviction hearing, nor did the trial court rule on it. Because the appellant had received the death penalty, however, this court determined that it was possible to reach the issue on appeal. This court explained:
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,311 Ark. 220 , 227,843 S.W.2d 803 , 807 (1992). However, in death penaltycases we will consider errors argued for the first time on appeal where prejudice is conclusively shown by the record and this court would unquestionably require the trial court to grant relief under Rule 37. Hill v. State, 275 Ark. 71 ,628 S.W.2d 284 , cert. denied,459 U.S. 882 (1982). In Sumlin v. State,273 Ark. 185 ,617 S.W.2d 372 (1981), we said an error may be argued for the first time on appeal in a death case only when it is “of such magnitude that it would require us to take note of an error which involved a fundamental deprivation of the right to a fair trial.” Id. at 192,617 S.W.2d at 376 .
Id. at 137,
Arkansas Code Annotated § 5-4-604(8)(A) (Repl. 1997) provides for the aggravating circumstance that the “capital murder was committed in an especially cruel or depraved manner.” Section 5-4-604(8) defines the relevant terms as follows:
(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder[.\ [Emphasis added.]
This court has consistently held that whenever there is evidence of an aggravating or mitigating circumstance, however slight, the matter should be submitted to the jury for consideration. See Willett v. State,
Here, the evidence showed that Jones held Mary and her eleven-year-old daughter
The medical examiner testified that Mary died as a result of a combination of strangulation and blunt-force head wounds. He testified that the application of force to the neck was in all likelihood relatively prolonged, taking approximately four minutes. Additionally, the evidence indicated that Mary had a number of wounds that appeared defensive in nature and consistent with some type of struggle taking place. The evidence also indicated that the blunt-force injuries to Mary’s head likely occurred prior to the time she was strangled, due to the amount of blood around the brain, and that it was possible that she could have sustained consciousness throughout much of her injuries.
From these facts, there was substantial evidence that Jones committed the murder in an especially cruel manner. As she was bound with speaker wire, Mary was bludgeoned, anally raped, and strangled, while her young daughter sat, bound to a chair, in an adjoining room. Clearly, Mary was the victim of serious physical abuse. There was also substantial evidence that Mary suffered mental anguish at the hands of her killer, not only as the victim of the ordeal, but also as the mother of the next likely recipient of the same fate. Accordingly, the record does not show conclusively that trial counsel performed deficiently in failing to object to the submission of this aggravating circumstance to the jury. Nor does the record conclusively show that appellate counsel performed deficiently by not pursuing the issue on appeal. Indeed, from this record, it is not apparent that Jones was deprived of any right, much less the fundamental right to a fair trial.
II. Aggravating Circumstance of Avoiding or Preventing Arrest
For his second point for reversal, Jones argues that both trial and appellate counsel were ineffective for failing to object to the State’s use of the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing arrest. Jones again concedes that this issue was not raised in his Rule 37 petition. The order, however, reflects a ruling on this issue. Specifically, the trial court found that the submission of this aggravating circumstance was proper, and that appellate counsel’s failure to argue otherwise did not meet the test of ineffective assistance of counsel. Accordingly, we will address the merits of this argument.
Jones relies primarily on this court’s holding in Kemp,
Based on the foregoing evidence, the jury could have concluded that Jones murdered Mary for the purpose of avoiding or preventing his arrest for the crime of aggravated robbery. The distinctiveness of Jones’s appearance, including the many tattoos on his face and arms, as well as the fact that Mary had two separate opportunities to observe him, raises an inference that had she lived, Mary could have identified Jones as the man that robbed her and her daughter at gunpoint. See Porter v. State,
III. Aggravating Circumstances Inconsistent with a Charge of Premeditated Murder
For his third point for reversal, Jones argues that trial counsel was ineffective for failing to object to the submission of the aggravating circumstances that the capital murder was committed (1) for pecuniary gain and (2) for the purpose of avoiding arrest. He argues that counsel should have objected on the ground that those aggravating circumstances were inconsistent with the charge that he committed the murder with premeditation and deliberation.
In his appeal brief, Jones concedes that he has found no authority to support his argument on this point. This alone is sufficient basis to affirm the judgment. See McGehee,
IV Expert Testimony on Hair Analysis
Finally, Jones argues that the trial court erred in denying his petition on the ground that trial counsel was ineffective for failing to object to the State’s introduction of expert testimony on the subject of hair analysis. The testimony in question was from Chantell Beckett, a criminalist with the Arkansas State Crime Laboratory. Beckett testified that she
Jones candidly concedes that counsel’s failure to object to Beckett’s testimony did not prejudice him during the guilt phase, ostensibly because the jury heard evidence of his confession to police, as well as the testimony of the surviving victim. He contends, however, that had this testimony been excluded, his sentence could have turned out differently. The fact that his sentence could have been different is not the standard. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced his defense. Dillard,
Affirmed.
Lead Opinion
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING FEBRUARY 10, 2000
Our decision affirming the trial court’s order was delivered on January 6, 2000. Appellant filed a petition for rehearing on January 24, 2000. In the petition, Appellant asserts that we erred as a matter of law by applying the wrong standard for showing prejudice on a claim of ineffective assistance of counsel. Our opinion reflects in part:
Jones candidly concedes that counsel’s failure to object to Beckett’s testimony did not prejudice him during the guilt phase, ostensibly because the jury heard evidence of his confession to police, as well as the testimony of the surviving victim. He contends, however, that had this testimony been excluded, his sentence could have turned out differently. The fact that his sentence could have been different is not the standard. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced his defense. Dillard,338 Ark. 571 ,998 S.W.2d 750 . Prejudice is shown only when the decision reached would have been different absent the errors. Id.
See Jones v. State,
Our decision affirming the trial court’s denial of relief under Ark. R. Crim. P. 37 was not based on the degree to which Appellant failed to show that the outcome of his case would have been different. Rather, we affirmed because Appellant did not even use the word “would” in his argument to this court. He merely argued that “[i]n this case the proceeding could have turned out differentlyf.]” His argument was thus nothing more than a contention that the result might possibly have been different. This is insufficient under
Accordingly, we deny rehearing of this case. We issue this supplemental opinion for the purpose of clarifying for future cases that the standard for showing prejudice on an ineffective-assistance-of-counsel claim is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.