*1 n disposition of Duna- late brief. The Mr. case conform the
hue’s should law. respectfully
I dissent.
Mark David Arkansas, Appellee
STATE of
No. CR-16-702
Supreme Court Arkansas.
Opinion January Delivered *3 WYNNE, Associate
ROBIN F. Justice 11Appellant ap- David Johnson Mark from the Coun- to this court Drew peals pro se dismissal of his ty Circuit Court’s postconviction pur- relief filed of Criminal Pro- suant Arkansas 37.1, (2012). ne- entered cedure plea guilty to two counts gotiated murder, capital first-degree attempted murder, battery. He *4 by jury, elected be sentenced imposed imprisonment life terms were n each of the counts a total of 600 for the murder months or- offenses. All sentences were other consecutively. to be The served dered an in which charges arose out of incident carrying into a Johnson rammed vehicle Johnson, wife, estranged Heather preg- of whom passengers, two one was. in the death nant. The collision resulted pregnant woman her unborn injury serious child and Heather of the passenger. reversal the other For order, that his attor- maintains failing neys were ineffective for in the by Heather sentenc- molest- ing proceeding that Johnson had daughter; calling for not wit- ed her who could testified that nesses .have accident; an collision car was lawith advising plead guilty. We and for court that Johnson agree the trial with not to establish he was afford- failed of counsel. assistance Accord- effective ed order. ingly, trial court’s we affirm This court reverse does postconviction relief unless denial findings clearly erroneous. trial court’s are Williams finding clearly A is erroneous court, reviewing appellate after when the Johnson, appellant. D. pro Mark se evidence, left is definite entire Gen., Att’y by: the trial court Rutledge, Leslie conviction firm Id. In Holt, Gen., making Att’y a determi appel- Ass’t mistake. Kent G. made of ineffective assistance nation claim lee. o.n
-147
bqen
counsel,
totality
this court considers the
different absent
errors. Id.
counsel’s
of the evidence. Id.
probability
A reasonable
a probability
sufficient
undermine
confidence
requires
Our
review
standard
petition-
outcome
trial. Id.
Unless
that we assess counsel’s effectiveness un
both
showings,
er makes
Strickland
it can-
two-prong
der
set forth
standard
e
be
said
conviction
resulted
Suprem
the United States
Court
from a breakdown
pro-
of the adversarial
Washington,
Strickland v.
U.S.
that renders the
cess
result unreliable. Id.
S.Ct.
L.Ed.2d
In
is no
“[T]here
reason for
deciding
a court
asserting ineffective
of counsel
assistance
ineffective assistance
...
an
claim
ad-
Strickland,
pursuant to
the petitioner first
both components inquiry dress
must show
performance counsel’s
defendants make an
showing
insufficient
deficient. McDaniels v.
on one.” Anderson v.
requires
644. This
a show
3-4,
that counsel
ing
made
serious
(quoting
errors' so
786-87
Strickland,
functioning
that he or
was not
| aSecond,
petitioner
the
must
vorce because she discovered that Johnson
performance
show that counsel’s deficient
sexually,
had been
her
.molesting
minor
defense,
prejudiced
requires
the
daughter.1 The trial court
noted
John-
showing that
so seri
counsel’s errors were
of-|¿whether
son
the
the
had waived
issue
deprive
ous
the
a fair
petitioner
as to
admissible,
testimony
so,
by pleading
doing
petitioner
trial. Id. In
must
was
is a
guilty,
testimony
giv-
show that there
but because the
probability
reasonable
en,
sentencing
that the
proceeding,
fact-finder’s decision would have
counsels’
As we
appeal,
proceeding
1.
noted on
ini-
if
object
direct
there was cause to
abuse,
tially
prevent
question regarding
alleged
filed motion in
limine to
Because
testimony concerning
contemporaneous objection
sexual abuse
alleged
there was no
dur-
daughter
coming
ing
sentencing proceeding,
from
into evidence.
we' declined to
explained
The trial court
testimony
to counsel
it
consider the issue of whether
permit
was inclined to
concerning
alleged
sufficient
abuse was admissible.
State,
494,
3,
purpose,
show motive
Johnson v.
at
755,
object
sentencing
would be allowed to
S.W.3d
756.
independent
has
relevance. Steven
germane to the issue
bad act
failure to
12,
State,
100, at
son v.
2013 Ark.
representation was
counsels’
of whether
416,
404(b),
Rule
evi
the sentenc-
423. Under
-under Strickland
S.W.3d
effective
relevant
independently
is
and admis
ing proceeding.
dence
tendency
if it has a
make
sible
Arkansas Rule Evidence
any
consequence
is of
fact that
existence
as evidence
“relevant evidence”
defines
action more
or
to the determination
any
to make the existence
having
tendency
probable
it
be without
less
than would
consequence
is of
any
fact that
243,
State,
at
v.
Vance
evidence.
probable
of the action more
determination
20,
325,
Any
383 S.W.3d
339-40.
circum
than it
be without
or
would
probable
less
to the crime
that links a defendant
stance
404(b)
raising
prohibits
Rule
the evidence.
possible
for the crime is
motive
raises
prove
acts “to
past crimes
bad
un
independently relevant
admissible
in order to
person
of a
show
character
State,
404(b).
v.
372 Ark.
der
Creed
conformity
therewith.” Russell
he acted
(2008).
221,
Evidence
273 S.W.3d
at
v.
point
proves
admissible
a material
however,
may,
be
Such evidence
solely
prove
is not introduced
purposes, such as
for other
admissible
person.
Fells v.
defendant
a bad
motive,
intent, prepa
opportunity,
proof
77, 84,
498, 503
ration,
identity, or ab
plan, knowledge,
sence of mistake or accident. Stanton
Here,
testimony in
there was
sentencing proceeding at Johnson’s tri
(June
2017).
415,reh’g denied
Arkansas
al
had served
di
that Heather
16-97-103(5)
Annotated
Code
section
collision,
papers
days
vorce
two
before the
*6
2006)
(6)
provides that
relevant
(Repl.
because she
that she had done so.
discover
aggravating and
character evidence and
sexually abused her
ed Johnson had
circumstances
inad
mitigating
considered
extremely an
daughter, that Johnson was
phase of a crimi
during
guilt
missible
colli
day
on
of the
gry
with Heather
during
may be admissible
nal trial
,for
because she
filed
divorce be
sion
had
State, 362
sentencing phase.
v.
Crawford
abuse, that Johnson
alleged
of the
cause
306,
146,
301,
Ark.
208 S.W.3d
her,
to kill
had choked
threatened
and
uncharged
of
criminal conduct
Evidence
that
also
the woman who
angry
he was
at
penalty phase
of a
can be admissible
oc
driving
the collision
the car when
relevant evidence
defen
is
to
testimony
relevant
es
curred. The
was'
aggravating
or
evidence of an
dant’s character
as
and,
causing
the collision
tablish motive
State,
mstance.
Brown v.
circu
intent,
regard
disprove
to
to
John
Further,
420,
66.
2010 Ark.
378 S.W.3d
a
son’s
that
the collision was
assertion
|Brejection
or
of
under
admission
evidence
State,
in Hill v
mere accident. We held
.
404(b)
to
discretion
is left
the sound
408,
(1994), a case
318 Ark.
failed to-make a Johnson did not demon tion to at petition issue. The potential strate either witness could qualified give er under Rule 37.1 who raises the failure have been admissible evi must show that there was a basis dence on accident reconstruction. aWhen for a objection petitioner alleges meritorious because failure ineffective assistance objection concerning make meritless not inef counsel the failure to call wit nesses, fective Turner assistance counsel. v. it is on petitioner incumbent witness, provide name the summary testimony, the testi establish that , mony would have been into evi admissible II. Counsel’s Call Failure Witnesses 184, 433 Stiggers dence. 252. To prejudice, demonstrate argues counsel petitioner required establish that should have called witnesses that, there was a probability reasonable Greg body shop defense local Murphy, witness, had presented the out Gaston, operator, owner Willie an proceeding come would have been investigator for the who had stud defense different. See Johnson did not id. make crash, ied inspected the scene showing. knowledge had wrecked vehicles and surrounding circumstances the collision. *7 of trial The decision counsel Murphy He that both Gaston contends generally call a witness a matter of trial testimony could to corrobo have offered strategy purview the of Rule outside rate testimony of accident-recon State, Banks v. 2013 Ark. Trial 37.1. 147. expert length struction who testified at counsel her judgment must use his or best collision an acci defense be determine which witnesses will bene-' dent not a act as the prose deliberate Nonetheless, ficial to Id the defendant. cution Johnson contends that asserted. strategic sup such decisions must still be ytestimony Murphy of and Gaston would 1 ported by professional reasonable impose have swayed jury a more judgment. assessing Id. an attor When 1 lenient sentence. call ney’s particular decision not to a wit ness, that, error in into find no must be taken account as We court’s largely profession decision that Johnson failed to es the decision is based on any tablish al judgment, that he un the decision is one that could prejudice suffered endlessly by experienced der the a of Strickland standard as result be debated advo cates, counsels’ Murphy failure to call either and the fact that a witness wit Gaston, stated, As the defense bene- called an could have offered nesses 150 in proof, involving guilty pleas not in itself of is set out Hill v.
ficial
the defense
State,
Lockhart,
52,
366,
v.
S.Ct.
counsel’s ineffectiveness. Huls
U.S.
(1985). Hill,
572,
(1990);
Supreme
Dumond
In
L.Ed.2d. 203
151 us, guilty; no one that he was not had in the before plead- forced case Walls hiAs to give up right by jury; his trial guilty, jury him to ed requested but sentencing. plea agreement approval; with his met testimony regarding State introduced no from the appeal plea could be there in an uncharged, Walls’s involvement un- itself; attorneys guilty his not Walls, had forced proven murder. at plead guilty “good to. and were law reversing, 402. In S.W.2d at this court yers”; jury pen his. would decide it foundation of stated that is a our crimi- offense, including for alty penalty each justice system nal we do not that sentence murder, which1 a carried unproven, uncharged defendants range' forty years, years, of ten to or life 500-01, crimes. 336 Ark. at S.W.2d on imprisonment. Based a review pursuant 402-03. the Relief Accordingly, hearing plea pro failure and Johnson’s 37.4, by petition is defined Rule 37 Rule facts show in his 37.1 vide Rule states “the circuit that court may fully he was aspects not advised all. judgment, original set aside discharge plea, clearly Johnson failed dem her, petitioner, resentence him plea should-be on onstrate vacated trial, grant' a new otherwise correct the grounds that he ef afforded sentence, may appropriate appear fective assistance counsel. proceedings.” court held that Walls
Affirmed. testimony was both irrelevant and unfairly prejudicial. Id. Hart, J., dissents. Walls directly point. on The majority Hart, Justice, Josephine Linker js simply wrong when asserts dissenting. Heather’s testimony was relevant and ad- | majority recognize fails nThe Moreover, missible. error clearly significance Mr. Johnson’s trial coun- prejudicial to I hardly Mr. Johnson. need object failure to to the sel’s against mention that sex crimes children wife, estranged
Mr. Johnson’s Heather in are this state. reviled Johnson, during sentencing proceed- I acknowledge' that réadily as a mecha ing. Heather testified that discovered rélief, nism for postconviction Rule is37 Mr. sexually been mo- had However, much pretty an kettle. in empty lesting minor daughter. Sexually their mo- twenty-seven-year history state, lesting minor is a this crime one the two in which an instances incar allegation an uncharged, constituted person received relief1 ap cerated on Although unproven crime. Arkansas Rule peal—Flores v. 404(b) largely of Evidence has been evis- (2002)—involved coun cerated case that has law stretched sel’s to an object failure beyond recognition almost obvious trial exceptions rule, Failure to error. Heather’s testi- exceptions contained within the these mony uncharged, this do include evidence un- resulted refusal court’s argument appeal. consider on proven presented sentencing crimes direct hathis Johnson v. proceeding Walls .guilty plea. after a Flores, prejudice As in S,W.2d *9 trial, her, pursuant grant him or a Rule 37 new otherwise Relief 37.4, sentence, appear defined may appropri- states that "the correct the may original judg- circuit set court aside proceedings.” ate ment, discharge petitioner, resentence this I remand would reverse and proven. sentencing proceeding.
case for a new respectfully
I dissent. 1Ark. WILLIAMS, Petitioner
Roderick R. PORCH, Circuit
Honorable Steven
Judge, Respondent
No. CR-17-481
Supreme Court of Arkansas. January
Opinion Delivered