Jones v. State
8 S.W.3d 482
Ark.
2000
Check Treatment

*1 v. STATE of Arkansas Harold JONES, Jr. Jack CR 98-1091 Court of Arkansas

Supreme delivered January Opinion denial issued [Supplemental opinion rehearing February 2000* ] participating. * SMITH, not J., *3 PLLC, Adams, Adams & Dale E.

Montgomery, Wyatt, for by: appellant. Gen., Watkins,

Mark TeenaL. Ass’t Pryor, by: Gen. Att’y Att’y Gen., and Darnisa Evans Sr. Ass’t for Johnson, Att’y appellee. Donald L. Corbin, Harold Appellant Justice. Jack was convicted the White Circuit Court of County Jr. murder and and the capital rape Mary Phillips attempted murder of was sentenced to death Lacy Phillips. lethal life injection, thirty years’ imprisonment, imprisonment, for the crimes. This court affirmed the convictions and respectively, cert, sentences in 522 U.S. 1002 filed a relief petition postconviction to Ark. P. The R. Crim. trial court denied the pursuant peti- tion. On raises four three appeal, points involving the submission of various circumstances and one per- to the admission of Our taining expert testimony. jurisdiction this to Rule 37 and Ark. 1-2 Ct. R. appeal pursuant (a)(8). Sup. We affirm.

The facts these crimes were set out in detail surrounding great decision, court’s and we see no need to them previous repeat 6, 1995, here. it Suffice that on say thirty-four-year-old June and her Mary were at an Phillips eleven-year-old daughter Lacy Knob, office in Bald where worked as a book- accounting Mary entered the business robbed them at keeper. gunpoint. then and murdered anally beat and raped Mary severely her for dead. lost strangled Lacy, leaving consciousness for a Lacy of time. She later awakened when period believ- police, apparently dead, she was were of her. ing found taking photographs police down, nude from the waist Mary’s body with a cord from a nearby coffee around her neck. she had pot wrapped sus- Additionally, tained blunt-force head as well as bruises on her injuries, arms and *4 back.

Before the raised on discussing we note points appeal, that to on a counsel, claim of ineffective prevail assistance of the must show first that counsel’s petitioner was deficient. performance State, 97, Weaverv. 339 Ark. 3 S.W.3d 323 This (1999). requires that counsel made errors so showing serious that counsel was not as the “counsel” the the functioning guaranteed Sixth petitioner by 99, Amendment. Id. at 3 S.W.3d at 325. Petitioner must also show defense; that the deficient the this performance prejudiced requires that counsel’s errors were so showing serious as to deprive of a fair trial. Id. petitioner On this court in a appeal, indulges that strong counsel’s conduct falls within the presumption wide of reasonable range assistance. Id. haveWe professional repeatedly held that we will not reverse the denial relief postconviction unless the trial court’s are erroneous or findings clearly clearly State, against See, evidence. Norman v. preponderance e.g.,

5 54, Dillard, 2 771 curiam); 339 Ark. S.W.3d State v. 338 (1999) (per 571, 750 Ark. 998 S.W.2d

I. Circumstance Cruel Manner Aggravating Especially Depraved For his first trial that argues counsel point was ineffective for to the submission fading aggra circumstance committed murder was vating in an cruel or manner. He asserts that the especially evidence depraved was insufficient to such a He also finding. argues trial counsel’s failure to despite object, counsel was inef appellate fective for not State, the issue on See Bowen pursuing 322 appeal. 483, denied, Ark. 555 cert. 517 U.S. 1226 (1996). concedes that neither raised in his Rule argument He nevertheless asserts petition. is not procedurally State, barred to this court’s pursuant holding Johnson 117, 900 S.W.2d 940 (1995). In Johnson, the raised issue an on appellant that he appeal had not Moreover, raised in Rule the issue petition. was not argued during nor did the trial postconviction court hearing, rule on it. Because the had received the death appellant penalty, however, this court determined that it was to reach the possible issue on court This appeal. explained:

This is an from the trial appeal court’s denial of the Rule 37 petition, our rule is that general specific of ineffec allegations tiveness counsel must be pleaded, specific issues of ineffec tiveness of counsel cannot be raised for the first time on appeal. 220, 227, State, 311 Ark. Tisdale v. 843 S.W.2d 807 (1992). However, in death cases we will penalty consider errors argued for first time on appeal where shown conclusively by the record and this court would the trial unquestionably require court under grant Rule relief State, 275 Ark. 37. Hill v. 459 U.S. cert. 882 (1982). In Sumlin v. 617 S.W.2d 372 (1981), we said an error argued be may time appeal first death case when it is such magnitude it would us require “of take note an error which involved a deprivation right fundamental *5 192, at to a S.W.2d trial.” 617 at 376. Id. fair 137, Id. at 900 951 (emphasis added). in cases, death this court may address issues raised for the first time on a from denial of a appeal Rule 37 where is petition, prejudice is shown record. only shown Such prejudice by conclusively it such deprived is an error of magnitude there when fair where Conversely, to a trial. of the fundamental right defendant shown, is barred the issue not is conclusively procedurally in this merits. After the record we not reach the reviewing may case, not it does show conclusively we conclude that of this circumstance to the submission aggravating prejudiced jury. 1997) Annotated 5-4-604(8)(A) (Repl. pro-

Arkansas Code § murder was circumstance that for the “capital vides aggravating Section 5- cruel or manner.” committed in an depraved especially as follows: defines relevant terms 4-604(8) is of this subdivision a murder (B) (8), capital For purposes when,as a cruel course conduct in an manner part committed especially of of abuse,or serious torture anguish, physical upon mental intended inflict death, victim’s mental serious anguish, physical the victim to the prior as abuse, defined the vic- anguish” or tortureis “Mental is inflicted. fate. abuse” is to his ultimate “Serious uncertainty physical tim’s as a risk death or abuse creates substantial physical defined health, loss or protracted causes or protracted impairment organ. member or “Tor- bodily of the function any impairment of extreme pain ture” is defined as the infliction physical time to the victim’sdeath. prior prolonged period murderis (C) For this subdivision purposes relishesthe person in an mannerwhen the depraved committed especially murder, or an debasementor shows perversion, evidencing indifference and evidencesa sense committing the victim suffering pleasure [Emphasis murder[.\ added.] has held that whenever there This court consistently circumstance, however evidence of an aggravating mitigating to the for consideration. the matter should be submitted slight, jury 427, State, (1998); Willett v. 335 Ark. 983 S.W.2d 409 Kemp See State, cert. 519 U.S. 919 S.W.2d State, Once 319 Ark. (1996); Dansby exists an circumstance has found that beyond doubt, if the State has court affirm reasonable this may of each element therein. substantial evidence presented To make 992 S.W.2d 110 (1999). McGehee v. determination, in the of the evidence we review sufficiency rational any the State to determine whether most favorable to light *6 the existence of have found of fact could trier doubt. a reasonable Kemp, circumstance beyond her held Here, that Mary evidence showed Jones to back them a at and took Lacy daughter gunpoint eleven-year-old floor, of down on the with Lacy top told them to lie He room. floor, took the on the money were her mother. While they more. and asked if there was any cash of the business’s register out in a wire and her with put then tied Mary stereo-speaker up Next, to chair in the bathroom. left tied he Lacy closet. to time and then returned her. The intervening for some time Lacy and murdered is when Mary. raped apparendy that died as a result medical examiner testified Mary head wounds. He and blunt-force combination strangulation to the neck was in all likeli- of force testified application four minutes. taking hood relatively prolonged, approximately indicated that had a number of the evidence Mary Additionally, in nature and consistent with some defensive wounds appeared The evidence also indicated that the taking place. struggle type head occurred the time blunt-force likely injuries Mary’s prior brain, around the due to the amount blood she was strangled, that it that she could have sustained consciousness was possible much of her throughout injuries. facts, there was substantial evidence that From these an cruel manner. As she was

committed the murder in especially wire, with was bound Mary anally raped, speaker bludgeoned, sat, chair, while her bound to a in an strangled, young daughter room. was the victim of serious adjoining Clearly, Mary physical also abuse. There was substantial evidence that suffered Mary killer, mental the hands of her not the victim of anguish ordeal, but also as the mother of the next likely recipient record same fate. does not show conclusively to the sub trial counsel deficiently failing performed circumstance to the Nor does the mission this aggravating jury. record defi show counsel appellate performed conclusively Indeed, not the issue on from this ciently pursuing appeal. record, much it not right, apparent deprived any to fair less the fundamental trial. right

II. Circumstance Arrest Aggravating Avoiding Preventing For his second that both trial argues *7 counsel were ineffective for to to the appellate failing use circumstance State’s that the murder aggravating was committed for the or arrest. purpose avoiding preventing concedes that this issue was not raised again Rule 37 Jones order, however, The reflects issue. petition. ruling Specifi- the trial court found submission of this cally, circumstance was and that counsel’s failure appellate proper, otherwise did not meet the test of argue ineffective assistance of counsel. we will the address merits of this Accordingly, argument. relies on this court’s primarily holding Kemp, Jones 919 S.W.2d that although murder consequence every is the elimination witness, of the victim as a the motive is potential not case, avoid arrest. From the record in this necessarily how ever, it is clear that there was sufficient evidence to conclusion that jury’s murdered Mary Phillips purpose Jones arrest for avoiding aggravated robbery. Phil According Lacy came to her mother’s business lips, twice on the date of the Jones time, murder. The first asked to borrow a book. gave Mary Jones Later, him the book. returned informed that she Mary had him the book. When given went to wrong the other Mary get book, aout and said “I’m I’m pulled gun sorry to have going this, to do but I’m to have to rob After had going you.” victims, restrained both he the cash and took all opened up register indicated that she money. Lacy was able to look at get good hair, She remembered that had black tattoos on his Jones. arms, and a tattoo on his face. was able to teardrop-shaped Lacy describe her assailant to the She also identified police. clearly at trial. evidence,

Based on the could have foregoing concluded that murdered for the or Mary purpose avoiding his arrest for the crime of preventing aggravated robbery. distinctiveness of tattoos on appearance, many including Jones’s arms, his face and well as fact that had two Mary separate him, lived, to observe raises an had opportunities inference that she could have identified as the Mary man robbed her and her State, daughter See Porter 321 Ark. gunpoint. denied, S.W.2d 835 (1995), cert. 517 U.S. 1108 (1996) (holding Porter a reasonable doubt found have beyond could the jury because of the arrested robbery, to avoid being the victim killed that he had wound and fact spoken head of the victim’s nature him as have identified and could the restaurant outside to Porter Sanders robbers); one of evidence 1162 (1995) (holding 513 U.S. cert. the murder was committed doubt that a reasonable

showed beyond on the evi arrest based of avoiding preventing for the purpose Sanders, he identified because could have that the victims dence even been in their home). for them had worked had previously on this not warranted point. Rule 37 relief with a III. CircumstancesInconsistent Charge Aggravating PremeditatedMurder *8 trial for counsel For his third argues to to the submission aggra- was ineffective for object failing the murder was committed (1) circumstances that vating the He arrest. (2) avoiding argues pecuniary gain purpose on the that those that counsel should have objected ground aggra- the that he were inconsistent with charge circumstances vating deliberation. committed the murder with premeditation brief, he In concedes that has found his appeal to his on this This alone is no authority argument point. McGehee, the See sufficient basis to affirm judgment. Nevertheless, he contends that the submission of of due these circumstances amounted to denial pro aggravating no There is merit to this contention. We with State cess. agree and deliberation dur prosecution’s theory premeditation not lead to a violation when did guilt ing phase due-process circumstances were these sought during sentencing aggravating all that the defense was made aware of The record reflects phase. circumstances State sought prove during cannot now claim that he was mis sentencing. Accordingly, led and deliberation. We thus State’s theory premeditation affirm the trial denial of Rule 37 relief on this court’s point.

IV on Hair Expert Testimony Analysis that the trial court erred in Finally, his argues denying on the that trial counsel was ineffective petition ground for failing to the State’s introduction of on the object expert testimony hair subject analysis. testimony from question Beckett, a Chantell criminalist with the Arkansas State Crime Lab- hair, Beckett testified that she had examined one head oratory. one head-hair and one hair taken from fragment, pubic Mary Phillips’s them body to known from She testi- compared samples Jones. fied that the hairs were similar.” contends “microscopically that her was both irrelevant and testimony We affirm incompetent. because has failed to demonstrate that his defense was this evidence. prejudiced by candidly concedes that counsel’s failure to to Beckett’s did not him testimony during guilt because the heard phase, evidence of his ostensibly confession well as police, victim. testimony He surviving however, contends, excluded, that had this been testimony sen tence could have turned out The fact that his differently. sentence couldhave been different is not the standard. To on a claim prevail counsel, ineffective assistance the defendant must show that counsel’s was deficient performance and that counsel’s deficient Dillard, his defense. performance prejudiced S.W.2d 750. Prejudice is shown when the decision reached wouldhave been different absent the errors. Id. We thus affirm the trial court’s denial of relief. postconviction

Affirmed.

SMITH, not J., participating.

10-A OF REHEARING ON DENIAL OPINION SUPPLEMENTAL 10, FEBRUARY Adams, PLLC, Dale E. Adams & Wyatt, by: Montgomery, appellant. Gen., Darnisa Evans Senior Ass’t

Mark by: Johnson, Pryor,Att’y Gen., Watkins, Gen., L. Ass’t Teena Att’y appellee. Att’y Corbin, Our decision Donald L. affirming Justice. was delivered on trial court’s order January 2000. In filed a for rehearing January Appellant petition we erred as a matter of law asserts that Appellant petition, on a claim standard for wrong showing prejudice applying counsel. reflects assistance of Our opinion ineffective part: concedes that failure to candidly counsel’s him Beckett’s did not testimony during guilt phase, heard of his confession because the evidence ostensibly He con surviving as well as the victim. testimony police, excluded, tends, however, that his sen had this been testimony tence could turned out The fact that his sentence differently. have have is not the To on claim prevail could been different standard. counsel, must show that of ineffective assistance defendant deficient counsel’s was deficient and that counsel’s performance Dillard, defense. performance prejudiced when decision reached S.W.2d 750. shown Prejudice different absent the errors. Id. wouldhave been 10, 8 S.W.3d 482 Appellant SeeJones 466 U.S. 668 asserts that test under Strickland Washington, different, but that is not that the outcome would have been *10 would have been there is reasonable outcome probability 10-B

different. is correct in his Appellant recitation of the standard estab- however, lished in Strickland.His argument, misses the of our holding.

Our decision the trial court’s denial of relief affirming under Ark. R. Crim. P. 37 was not based on the to which degree Appel- lant failed to show that the outcome of his case would have been Rather, different. we affirmed because did not even use Appellant the word “would” in his to this argument court. He merely argued case could have turned proceeding out differ- “[i]n His entlyf.]” was thus argument more than a nothing contention that the result have been mightpossibly different. This is insufficient Strickland, under as the Court observed that “not error that every could have conceivably influenced the outcome undermines the of the result of the reliability at U.S. 693. proceeding.” we deny of this case. We issue this rehearing for the supplemental opinion for future purpose cases clarifying that the standard for on an showing prejudice ineffective-assistance- of-counsel claim that, is “a reasonable but probability for counsel’s errors, the result of the unprofessional would have been proceeding different.” Id.

SMITH, not J., participating.