Willie Author McDANIELS, Appellant v. STATE of Arkansas, Appellee.
No. CR-13-301.
Supreme Court of Arkansas.
April 24, 2014.
2014 Ark. 181
HANNAH, C.J., and CORBIN, J., join.
Dustin McDaniel, Att‘y Gen., by: Kathryn Henry, Ass‘t Att‘y Gen., for appellee.
JIM HANNAH, Chief Justice.
Appellant, Willie Author McDaniels, appeals from the denial of his petition for postconviction relief pursuant to
On appeal from a circuit court‘s ruling on a petitioner‘s request for Rule 37 relief, this court will not reverse the cir
The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In asserting ineffective assistance of counsel under Strickland, the petitioner must first show that counsel‘s performance was deficient. Williams v. State, 2011 Ark. 489, at 4, 385 S.W.3d 228, 232. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id., 385 S.W.3d at 232. The reviewing court must indulge in a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. Id., 385 S.W.3d at 232. Second, the petitioner must show that counsel‘s deficient performance prejudiced the defense, which requires showing that counsel‘s errors were so serious as to deprive the petitioner of a fair trial. Id., 385 S.W.3d at 232. In doing so, the petitioner must show that there is a reasonable probability that, but for counsel‘s errors, the fact-finder would have had a reasonable doubt respecting guilt, which means that the decision reached would have been different absent the errors. Id., 385 S.W.3d at 232. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id., 385 S.W.3d at 232-33. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from breakdown in the adversarial process that renders the result unreliable. Id., 385 S.W.3d at 233.
In his first point on appeal, Appellant contends that the circuit court clearly erred in rejecting without a hearing his claim that trial counsel was ineffective for failing to object to defective charging language and jury instructions. Count Two of the felony information charged Appellant with committing rape, in violation of
The circuit court found that trial counsel committed error by failing to object to the language of Count Two. Nevertheless, the circuit court found that under
A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than eighteen years of age and the actor is the victim‘s guardian, see
Appellant did not contest the fact that he was Q.A.‘s step-grandfather. He testified at trial that he had been married to Q.A.‘s grandmother, Gloria McDaniels, for thirty-three years. Q.A. testified at trial that Appellant was her step-grandfather, and that she called him “Paw Paw” while growing up. As to the allegation that Appellant was also Q.A.‘s guardian, there was testimony at trial from Q.A., Q.A.‘s relatives, and Appellant himself that Q.A. had spent a great deal of time at Appellant‘s home from the time she was a young child. Yolanda Allen, Appellant‘s stepdaughter, testified that Q.A. was around Appellant “from birth,” because she was the “first born grandchild,” and that Q.A. went places with Appellant and rode in the car with him “all the time.” Bridget White, Q.A.‘s mother, testified that Q.A. went on vacation with Appellant and Q.A.‘s grandmother to Florida and that when Q.A. moved back to Arkansas from Texas in the summer of 2007, Q.A. often spent the night with them. White also
The State contends that, given the evidence presented at trial, Appellant could have been convicted as either a “guardian” or a “step-grandparent.” As previously noted, Appellant did not dispute that he was Q.A.‘s step-grandparent. In his petition for postconviction relief, however, Appellant contended that there was insufficient evidence that he was Q.A.‘s guardian. The circuit court found that there was testimony at trial from Q.A. and Q.A.‘s relatives, including Appellant, that Q.A. had spent a great deal of time at Appellant‘s home from the time she was a young child and that this visitation would often include staying over nights and weekends. The circuit court also found that the pattern of staying at Appellant‘s residence would, due to its extended nature and repetition, qualify as a “living arrangement” under
We also conclude that the circuit court did not clearly err in finding that even if trial counsel had objected to the language used in the information or in the subsequent jury instruction, the State could have corrected any mistake by amending the information. It is axiomatic that the State is entitled to amend an information at any time prior to the case being submitted to the jury as long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. E.g., Rueda v. State, 2012 Ark. 144, at 9, 400 S.W.3d 226, 231. In the instant case, amending the information would not have changed the nature or degree of the crime charged in Count Two
In addition, we find no merit in Appellant‘s argument that he was entitled to an evidentiary hearing to “explore” whether the State would have amended the charge in response to an objection from trial counsel and because it “may well be discovered that trial counsel was unaware of the defect and would have approached the trial completely differently had trial counsel not have overlooked the error.” This court will not grant an evidentiary hearing on an allegation that is not supported by specific facts from which it can be concluded that the petitioner suffered some actual prejudice. E.g., Whitmore v. State, 299 Ark. 55, 66, 771 S.W.2d 266, 271 (1989). To the extent that Appellant argues that a hearing should have been held to bolster the conclusory
Appellant next contends that the circuit court clearly erred in rejecting without a hearing his claim that trial counsel was ineffective for failing to adequately investigate and utilize evidence of a third party‘s semen found on the victim‘s pants. North Little Rock Police Detective Julie Rose testified at trial that she took Q.A.‘s initial statement that led to the rape charges against Appellant. Q.A. testified that she thought a pair of ROTC pants she was wearing during one of the assaults might have Appellant‘s DNA on them because something that “[c]omes out of him got on the pants on the bed.” Rose testified that a pair of ROTC pants and other clothing were brought to her by Q.A.‘s mother. Rose then submitted the clothing to the Arkansas State Crime Laboratory for testing. Forensic serologist Tonia Silas testified that she examined the clothing submitted for testing and that she discovered semen on the ROTC pants. Forensic DNA examiner Mary Simonson compared the DNA from the semen found on the ROTC pants with Appellant‘s DNA. Simonson testified that after she compared the DNA samples, she excluded Appellant as a contributor of the DNA found on the ROTC pants.
In his petition for postconviction relief, Appellant contended:
Although trial counsel reached a stipulation to introduce the results of the test, she failed to fully investigate and introduce evidence related to the circumstances related to this discovery which was pivotal to the motivation and the credibility of the alleged victim and an explanation for the victim‘s alleged “disclosure” that the Defendant had engaged in sexual intercourse with her.
As this case fell squarely upon the testimony of the alleged victim, her credibility was a pivotal matter. Trial counsel‘s failure to fully investigate and introduce evidence on her reasons and motivations and explanation for the semen found upon her pants was ineffective and prejudiced the Defendant by depriving the jury of information relevant to their credibility assessment.
In rejecting this claim, the circuit court made the following findings:
The defendant does not state what use could or should have been made of this evidence by defendant‘s trial counsel, other than referencing the victim‘s credibility and her “reasons and motivations and explanation for the semen found upon her pants.”
Evidence was put before the jury of the existence of semen found on the victim‘s clothing which was not that of the defendant. The allegation that trial counsel was ineffective in her use of this evidence is a conclusory allegation. Furthermore, there is no showing that there was any additional evidence available regarding the circumstances of how the semen got on the pants, or that any such evidence or testimony would have been admissible even had it existed. The determination of what use to make of the evidence and testimony regarding the testing of the ROTC pants was a matter of trial tactics and strategy, and
the defendant has not demonstrated ineffective assistance in this regard.
On appeal, Appellant asserts that “[t]he issues of who produced the semen, when it was produced, how it arrived there, and possible lies regarding [it] being [Appellant‘s] semen were never probed by trial counsel.” He further asserts that he “was entitled to a hearing on the failure to fully investigate and utilize this information.” When a petitioner alleges ineffective assistance of counsel for failure to perform adequate investigation, he or she must delineate the actual prejudice that arose from the failure to investigate and demonstrate a reasonable probability that the information that would have been uncovered with further investigation could have changed the trial outcome. E.g., Mason v. State, 2013 Ark. 492, at 8, 430 S.W.3d 759, 765. The burden is entirely on the petitioner to provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. E.g., Bryant v. State, 2013 Ark. 305, at 9-10, 429 S.W.3d 193, 200-01 (per curiam). In this case, the jury was made aware, through the testimony of Simonson, that the DNA extracted from the semen found on Q.A.‘s pants did not match Appellant‘s DNA. Appellant fails to delineate the actual prejudice that arose as a result of trial counsel‘s alleged ineffectiveness, and his bare assertion of prejudice is a conclusory allegation that cannot form the basis of relief. E.g., Eastin v. State, 2010 Ark. 275, at 4, 2010 WL 2210924 (per curiam).
Finally, Appellant has failed to demonstrate that he was entitled to a hearing on his failure-to-investigate claim. There is no requirement that the court grant an evidentiary hearing on an allegation other than one of specific facts from which it can be concluded that the petitioner suffered some actual prejudice. E.g., Preston v. State, 306 Ark. 408, 410, 815 S.W.2d 389, 390 (1991). Furthermore, the supporting facts must appear in the petition, and the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a hearing is held. Id., 815 S.W.2d at 390. Postconviction relief is not available to the petitioner who wishes to have a hearing in the hopes of finding some ground for relief. E.g., Hayes v. State, 280 Ark. 509, 509-C, 660 S.W.2d 648, 651 (1983). The circuit court did not clearly err in rejecting without a hearing Appellant‘s claim that trial counsel was ineffective for failing to adequately investigate and utilize evidence of a third party‘s semen found on the victim‘s pants.
Affirmed.