*1 STATE of Arkansas v. C. FUDGE James CR 04-83 Court of Arkansas
Supreme 14, 2005 delivered Opinion April denied [Rehearing May 26, 2005.] *2 K. Beebe, Gen., Weber and Clayton A. by: Att’y Jeffrey Mike Gen., , for Att’ys appellant Ass’t Hodges PLC, Adams, & Adams Dale E.
Montgomery, Wyatt, by: appellee. C. was convicted of capital Justice. James Gunter, wife, im murder in the death of his and was Fudge, Kimberly J
sentenced
death. We affirmed the conviction and sentence in Fudge
E on but would not cross-appeal, address A on point cross-appeal for reasons stated in Chief Hannah’s Imber opinion. Justice Justice would affirm on both the and the appeal cross-appeal. Justice Brown would remand the case on for additional appeal findings fact and conclusions of law and would affirm on cross-appeal. Therefore, our is to affirm the trial disposition court’s on findings both the and the appeal cross-appeal.
We will not reverse the trial court’s decision
granting
relief
denying post-conviction
unless
erroneous.
clearly
State,
60,
v.
350 Ark.
Dansby
A
(2002).
when,
it,
erroneous
clearly
there is evidence to
although
support
court after
appellate
the entire evidence is left with
reviewing
the definite and firm conviction that a mistake has been commit-
Id.;
State,
161,
ted.
Davis v.
Both argue circuit court’s parties decision granting relief in relief in part on the basis of denying part ineffective Therefore, assistance of counsel was erroneous. clearly it is impor- tant in both the reviewing set forth appeal cross-appeal the standard for whether counsel’s assistance determining was
415 assistance of a claim of ineffective To ineffective. prevail counsel, counsel’s (1) performance must two things: prove deficient; the deficient prejudiced and (2) performance 668, 687 Proof (1984). v. 466 U.S. defense. Strickland Washington, errors so counsel made one requires showing component the “counsel” was not as functioning guaran- serious that counsel Id.; Ark. 3 Sixth Weaver teed Amendment. a showing Proof on two (1999). requires
S.W.3d 323
component
a fair
errors were so serious as to deprive Fudge
that counsel’s
trial,
that there is
is reliable. Id. This means
a trial whose result
that,
but for
counsel’s
“reasonable
unprofessional
probability
errors,
been
would have
different.”
the result
the proceeding
Strickland,
strong presumption Noel v. of reasonable assistance. professional range 35, is, must overcome That petitioner 26 S.W.3d circumstances, that, “under the challenged presumption See trial Michel action Louisiana, be considered sound strategy.’ ‘might Strickland, U.S., Ct., at at 76 S. 164.” supra, determined counsel’s U.S. at If it is performance 689. deficient, in- this does not end the ineffective-assistance indeed the deficient Petitioner must prejudiced prove quiry. to show at “It is not for the defendant his defense. Id. 687. enough of the conceivable effect on the outcome that the errors had some would meet act or omission counsel Virtually every proceeding. *4 challenged, Id. When a death sentence is being that test.” at 693. that, a must show that there is reasonable probability the petitioner errors, “would have concluded that the absent the counsel’s the jury did not circumstances of balance aggravating mitigating mind, I turn to in Id. at 695. With these standards warrant death.” raised on of ineffective assistance the allegations appeal.
I. State’sAppeal is that the circuit court sole The State’s appeal ineffective for failing that trial counsel was erred by ruling of Exhibit evidence to the introduction State’s to object The circuit conviction. a battery purported first-degree regarding claim, as relief on holding court granted post-conviction follows: wrongly in a case was presented the jury capital [W]here of the crime convicted that the petitioner previously
evidence when, fact, in the first battery degree, the had petitioner only offense, been convicted robbery, a less violent the failure to object evidence, to the introduction of such even where the exhibit thereto was not constitutes presented jury, deficient representation in a enough case that it death-penalty constitutes ineffective assis- and, indeed, tance of counsel denied this the constitu- petitioner tional to counsel right under the Sixth Amendment to the United Strickland, States Constitution. supra. To allow the jury in a deliberating sentencing death-penalty
case to believe that the defendant previously has been convicted of the violent offense of in the first when battery degree, that not the case,is so toas warrant a prejudicial reconsideration in new sentenc- ing hearing. In order murder, a sentence of death for impose capital must find jury beyond reasonable doubt at that least one circumstance exists. Ark. aggravating Code Ann. 5-4-603 (Repl. § The 1997). circumstance aggravating State presented in this case was that had been jury convicted of several Fudge felonies “an element of
prior which was the use or threat [each of] of violence to another or the creation of person substantial risk of death or serious to another physical See Ark. Code injury person.” Ann. 5-4-604(3) 2003). evidence (Supp. introduced § support circumstance was aggravating State’s Exhibits Nos. 57, and 58. These exhibits were never shown to the but were jury, read the State’s simply as follows: Exhibit (1) 56 shows was convicted Fudge the first degree; (2) Exhibit 57 shows was convicted of two counts of terroristic and (3) Exhibit 58 threatening; shows was convicted of two counts of terroristic threatening. — does not admission into dispute or — the recitation such admission jury regarding of either Exhibit Exhibit 58. Fudge argues recitation Exhibit was incorrect. He claims that the references to first- in Exhibit degree battery 56 do not amount proof beyond reasonable doubt that he was convicted He battery. in Exhibit argues judgment 56 shows only *5 Therefore, convicted of he claims robbery. his counsel’s failure to to the introduction object evidence of a first-degree- conviction constituted ineffective assistance counsel. The circuit court and agreed new granted Fudge sentencing of ineffective circuit court’s hold that the would hearing. erroneous. Accordingly, of counsel on this issue clearly assistance reverse. I would The first document of four documents.
Exhibit 56 consists crimes: count one with two information charging Fudge a felony — — battery. and count two first-degree robbery; aggravated statement, that Fudge document is stating pleaded second plea Next, a and battery. on the of robbery charges guilty count one was *6 — — count, eight one got on count on eight years each count being count two robbery first in being case. particular Q [Fudge’s You believe that the judgment counsel]: — state’sexhibit is sufficient fifty-six to establish A: Yes.
—Q: that Mr. was convicted of battery?
A: The sheet, and the judgment docket yes. it
Q: Did ever cross mind that your not be might sufficient? A: INo. mean we’d reviewed them before. Q look, If Harris, you would Miss [State’s for a counsel]: at, think,
moment there I what’s marked as state’s exhibit fifty-six moment. just
A: Okay. Q: that, I’ll let onto you true, if I hang may. Isn’t it Miss
Harris, that there were about four or five documents that were all part state’sexhibit fifty-six?
A: Yes.
Q: And isn’t it true that within those dockets there’s the information, which felony with Mr. originally charged aggravated robbery first degree battery? A: Yes. Q: And then there is the judgment commitment report
which shows that he was convicted. And I think it may reference only but it robbery; does denote convicted on both counts. Correct? says years information eight
A: Yes. typewritten with each other. to run concurrent each count sheet, which was the Court’s docket part And think also Q: *7 counts, it exhibit, does not? reflects a on both of that plea A: Yes. there, And, statement that there is was plea also within
Q: him himself which shows pleading executed Mr. Fudge by in the first both robbery battery degree? correct.
A: That’s So, an of that only this wasn’t issue Q: Okay. simply commitment that was — that was was a exhibit judgment Is correct? at issue. that — — four made
A: There were these these pages up Right.
that exhibit. with Mr. did discuss And said
Q: you you Okay. he have that conviction?
fact that did
A: Yes. exhibits, four was part those Q: Okay. given Again, — in a total look at those as consideration? When you
your doubt that a reasonable total beyond prove proof of first convicted degree battery?
A: Yes. is on state that it improper Those affirm who would appeal not raised on a decision reverse arguments for this court to base the State claim was not raised by the State. they by not to Ms. Harris object is that it was reasonable for conviction, is, the deficient-performance battery first-degree on focuses the State’s argument appeal of Strickland.While prong Strickland, brought the State appeal prejudice prong Exhibit 56 was that Ms. Harris’s failure object arguing ineffective assistance of on the The State’s focus counsel. agree. circuit court’s be due its might prong appeal
prejudice
mistaken
in its
conclusion
initial order denying post-conviction
relief that
State
concedes
charge
“[t]he
was reduced to
See
robbery.”
S.W.3d 600
This
is
the record.1
finding
supported
In its
testimony
Rule 37
its
presented
during
hearing,
and in its brief in
closing argument,
response
Fudge’s post-
conviction relief
the State
that Ex-
petition,
consistently argued
hibit 56
proved Fudge
guilty
first-degree battery
counsel was not
ineffective on this
The circuit court’s
point.
that the State
conceded
was reduced to
battery charge
Therefore,
robbery
mistake.
simply
ineffective
any finding
assistance
based
that mistake
erroneous. On more
clearly
note,
oflaw,
the State
important
cannot concede the ultimate issue
is,
See,
that counsel was ineffective.
State v.
e.g.,
Knighten,
2d
Wash.
a mistake has been
relief
appellate
(2002). A finding is
unless
We
court
will not
after
decision is
committed.
reviewingthe
clearly
reverse
clearly
erroneous
circuit court’s
Id.
entire
erroneous.
(emphasis
evidence left
when,
added);
decision
although
Dansby
Davis v.
granting
there is
definite and firm conviction that
denying
60,
Id. at 690.
The reasonableness of counsel’s actions bemay substantially statements, 691, in U.S. at influenced the defendant’s own case, Ms. that he had been admission to Harris has When a defendant given convicted first-degree battery. certain reason to believe that investigations pursuing fruitless, failure to those
would be counsel’s pursue investigations short, as unreasonable. Id. “In not later be inquiry may challenged be critical to into with the defendant counsel’s conversations may Id. assessment counsel’s investigation proper decisions[.]” *9 Ms. he had to and been told Harris that pleaded guilty Fudge in to numerous other of addition convicted first-degree battery, in While I am Exhibit 56 with that fact mind. crimes. She reviewed to of Exhibit with not to determine the sufficiency regard here I would it constitutes a conviction of first-degree battery, whether this actions in to determine whether Ms. Harris’s objecting the circum- reasonable all “considering exhibit were objectively this Id. have further Could Ms. Harris investigated stances.” at 688. defense Yes. Is it another
exhibit its validity? possible to the introduction have chosen to object would attorney Strickland Was Ms. Harris ineffective under Exhibit 56? Yes. to are provide do this? No. “There countless ways
failing case.” Id. Considering all of the in assistance effective any given circumstances this case and “wide of reasonable range Strickland, assistance” under I would hold professional presumed that Ms. Harris’s determination with to Exhibit 56 was the regard result reasonable professional judgment.2
While
us
Stricklanddoes not
to examine the
require
preju-
dice
in
our
determination on the
component
light
performance
even
Ms. Harris’s conduct
component,
able,
assuming
was unreason-
did
suffer
sufficient to warrant a
Fudge
prejudice
finding
Strickland,
of ineffective assistance of counsel.
I would hold that the circuit court’s of ineffective erroneous, assistance of this issue is clearly would reverse. JJ., join opinion.
Glaze Dickey,
II. Cross-appeal On circuit cross-appeal Fudge court argues clearly erred that there was holding no ineffective assistance of counsel regard claims: trial following (1) counsel’s failure (2004) See (holding Nixon, Florida 125 S. Ct. that defense counsel’s failure obtain defendant’s consent to a concession of murder did not render express automatically deficient). counsel’s There is prejudice no under deficiency presumption Stricklandeven guilt to concession of on the charge itself; is did capital-murder question counsel’s objective fall “an below standard of at reasonableness?” Id. representation 555. guilt“does Counsel’s concession of defendant’s not rank as to function in a‘fail[ure] any ” meaningful as sense the Government’s Id. at 562. adversary.’ *10 trial counsel’s (2) and evidence of mitigation; investigate present in his for directed to include federal motion failure grounds verdict, to present thereby foreclosing Fudge’s opportunity failure (3) in a trial counsel’s claim federal habeascorpusproceeding; the motion to and of to investigate support present the use records to select of voter-registration prohibit to state- counsel’s failure (4) argue Fudge’s appellate panel; Portland, should have been ment to Oregon, police suppressed; for a or seek trial failure to move mistrial other (5) and counsel’s to the State’s continuous remedial measures rectify pattern of witnesses. We affirm. questioning improper
A. and Present Evidence Failure Investigate Mitigation counsel, that his contends trial Tammy penalty-phase Harris, was ineffective present failing investigate of alcoholism (1) evidence of following mitigation: Fudge’s history addiction; of alcoholism in (2) and drug history Fudge’s family; his abuse suffered at hands of mother as (3) physical child; of violence (4) Fudge’s family, specifically history uncle; father, evidence of that of his and (5) grandfather, attributes, better himself in including attempts positive artist, talents as a and automotive- poet, sculptor, prison Pursuant to our remand for further body repairman. findings and conclusions of law on the issue these factors mitigating fact thereof, and the see investigation appropriate the circuit court held that 120 S.W.3d (2003), not to these additional factors counsel’s decision present mitigating counsel, matter assistance of but a of trial ineffective We strategy. agree. Strickland, how much
In Court addressed Supreme evidence counsel was required investigation mitigating assistance. constitute reasonable professional perform Court stated that of law and facts choicesmade after
strategic thorough investigation are options unchallengeable; strategic relevant to plausible are choices after less than reasonable complete investigation made extent reasonableprofessionaljudgments sup- precisely words, In has a the limitations on other investigation. port to make reasonable to make reasonable duty investigations unnecessary. any decision makes particular investigations case, decision must be investigate ineffectiveness particular *11 424 circumstances, in all
directlyassessedforreasonableness applying measureof deference counsel’s heavy judgments. Strickland, U.S. at In 690-691. Williamsv. 347 Ark. 64 S.W.3d 709 we stated that must (2002), effort be made to every eliminate the effects of and to evaluate counsel’s distorting hindsight from counsel’s at the time. by looking perspective has no in a review of effective assistance of “[H]indsight place Williams, counsel.” supra. claim,
In of his refers us to United States support Smith, Court’s decision in Supreme U.S. Wiggins In was the defendant convicted of and Wiggins, murder sentenced to death. During post-conviction proceedings, defendant claimed that counsel failed to investigate present evidence of defendant’s mitigating dysfunctional background, which included extreme and sexual abuse. Id. at 516. physical that, tactics, Counsel as a matter of trial he decided argued to focus the factual case instead of retrying investigating introducing mitigating Id. at during sentencing 517. phase. Court of affirmed the Maryland relief, trial court’s denial of Appeals that counsel’s holding decision was a investigate matter reversed, of trial tactics. Id. at 518. The Court Supreme both the holding nature and the extent of “[gjiven the abuse suffered, find petitioner we there be a reasonable probability that a aware of this competent attorney, would have history, it at introduced in an admissible sentencing form.” Id. at 535. In we (2000), Sanford held that trial counsel’s failure to circum- investigate mitigating stances and such evidence present con- during penalty phase stituted ineffective assistance counsel. In inas Sanford, Wiggins, counsel conducted no virtually investigation regarding mitigation evidence. The potential mitigation should have petitioner argued been included investigated introduced mental long-standing retardation, murder, of sixteen at the time of age medical retardation, records of head injuries, of mental family history jail records In commendations. there inef- reflecting assistance, fective we of the Circuit’s approved Eighth reasoning Lockhart, from Pickensv. 714 F.2d 1455 Cir. (8th 1983), “it stating after a full of all the only investigation circumstances mitigating informed, that counsel can make an tactical decision about which information would be the most to the client’s helpful case.” Pickens, Sanford, that counsel supra. undisputed failed to make at all. The court investigation any recognized concen- and may aillinesof defense not to investigate choose may trate, line of on another strategy, possible reasons of sound if it were a reasoned fault such a strategy would not defense.We That is not the situation based on sound assumptions. choice evi- mitigating into any possible did no investigation here. Plant A abdicationof total left with no case present. dence. He was trialstrategy. viewed aspermissible shouldnever be duty Pickens, omitted). at (citations 714 F.2d *12 Pickens, coun- and Fudge’s with
In contrast Wiggins,Sanford, not to offer the a tactical decision and made sel did investigate Ms. before us is whether The question information jury. the test of reasonableness to satisfy
Harris did investigation enough Strickland, U.S. at 690-691. With regard under Strickland. alcoholism, of Fudge’s guilt-phase his history and family’s Fudge’s counsel, testified that and Ms. Harris both they Brett Qualls, and his with members of family talked Fudge’s their investigator evidence of decision not to and made a tactical present friends the informa- that she did not Ms. Harris said present alcoholism. of with defense it was inconsistent Fudge’s
tion to the because jury his wife that he killed claim in the sentencing hearing innocence to her felt it would he was an alcoholic. She compromise because with jury. credibility his abuse of Fudge
The only testimony regarding physical Brown. She testified from his Aunt Essierean mother was was bad. him because she thought Fudge mother whipped Fudge’s However, his call what we might she then said although these it was called “chastising” did to him abuse days, mother abuse, of but a way Essierean did not consider those Aunt days. did not do when that children were whipped they life. She testified evidence of abuse. offered no other light thing. Fudge right within the conduct falls that counsel’s of the strong presumption assistance, Williams, we supra, wide of reasonable professional range evidence of failure to introduce this that counsel’s do not believe under Strickland. deficient “abuse” constitutes should factor argues next mitigating potential of violence. is his history Fudge’s introduced family’s have been homicides, one involving convicted of three father allegedly convicted killing girlfriend. His uncle was allegedly his wife. of Dr. introduced testimony At the Rule hearing, Diner, the detrimental effect a explain psychiatrist,
Bradley it has not been Diner testified that Dr. had on violence Fudge. there is link a between a child’s hereditary proven propensity for violence and the nature violent of his father uncle. However, he did state would that he for expect grow up conflict, violence to using violence. given family manage history
Ms. Harris she testified that was aware of father’s Fudge’s However, criminal stated history. she that after about the learning homicides, she did not to obtain additional criminal attempt decision, father. and Mr. Fudge’s She made history given Fudge’s Qualls father’s was not the best history, probably witness could call on behalf. afraid they She was Fudge’s would have seen that father had been convicted murder three times and was out street. In on the her evidence of opinion, link was too risk to of a take. Her genetic big experience sort of violence it did family was that over well with go juries; case, in this they the information thought regarding Fudge’s father’s violent do would more harm history than good.
Here, Ms. Harris
and made a tactical
investigated
decision
not to
violent
put
testimony Fudge’s
We have
familyhistory.
often
tactics,
said that matters of trial
even if
strategy
arguably
fall within
realm of
counsel’s
improvident,
professionaljudg-
ment
are
grounds
ineffective assistanceof
*13
counsel. Noel v.
Finally, Qualls and Harris both knew about Fudge’s artwork, talents with to his alleged regard sculpting, auto-body work. Neither believed that this of evidence was a type good Moreover, afraid were that if mitigator. what a they showed the they jury was, artist the State then show good Fudge might pictures “no, of the or crime scene autopsy here’s say Fudge’s James Pictures of a car customized were not Fudge shown to artworkf.]” the because car had holsters built into it. gun Counsel chose to introduce evidence job regarding Fudge’s working an since the owner of the auto-body shop, witnessed shop Fudge attack someone with a hammer at the Ms. Harris’s sledge shop. decision not to introduce this evidence was a matter mitigating of trial strategy. case,
In this all of the mitigating Fudge argues should have been introduced or not have had the effect may may We hold that Ms. Harris’s mitigation. actions to regard
427 were not to introduce this evidence and her decision investigation claim ineffective assistance matters both of trial strategy. Fudge’s is denied. point B. Federalize VerdictMotion Failure to Directed- trial, rested in of the After the State the guilt phase Fudge’s on the that the State for a directed verdict counsel moved grounds either the sufficient evidence prove identity had presented killer and deliberation. Kimberly Fudge’s premeditation alternative, moved to reduce the counsel charge after he counsel renewed these motions rested. murder. Defense in his claims that counsel’s failure include federal grounds Fudge ineffective assistance of motion directed verdict constituted counsel because foreclosed Fudge’s opportunity present in a claim federal habeascorpusproceeding. circuit court rejected argument, relying F.2d Cir. which that a
Satter 1259 held (8th 1992), Leapley, was of the evidence necessarily challenge sufficiency Therefore, under the federal constitution. due-process challenge Moreover, we there was counsel error. held no Johnson S.W.3d that failure to an (2004), preserve issue for federal habeasreview is not prejudice contemplated by test, the Strickland which a reasonable requires probability have at trial would been different. Because has not outcome or that counsel deficient prejudiced, proven counsel was not ineffective. Motion
C. and PresentEvidencein Failure Investigate Supportof to Prohibit Use Records Voter-Registration trial, made motion to Before prohibit to select the on the use of records jury panel voter-registration be and women would under that African-Americans grounds Missouri, U.S. 357 (1979). in violation Duren v. represented have It was denied. that counsel should argues attempted *14 racial venire every jury compile regarding makeup in Counsel’s failure to in Pulaski of this motion. support County so, constitutes ineffective assistance counsel. do Fudge argues, claim, our the circuit court relied on holding In denying State, 87, Ark. (1995), Nooner v. 322 rejecting list to select a use of a voter-registration is unconstitutional. panel
428
Moreover, offers more than Fudge nothing conclusory information, that had counsel the court allegations provided would have his motion. Even if counsel were granted Fudge’s venire, have shown were that blacks on hisjury under-represented must then have shown that the Fudge alleged misrepresentation was due African-Americans to a exclusion in the systematic jury- 692, State, selection Lee v. itself 327 Ark. 231 system S.W.2d Missouri, Duren U.S. Where (1997)(citing (1979)).
venire is chosen the random-selection using process required by Ark. Code Ann. 16-32-103 we have held that (Repl.1999), § there is no of a exclusion of possibility systematic purposeful any Id.; Price v. group. Ark. S.W.3d 653 (2002). offered no evidence of exclusion. Fudge As has purposeful Fudge neither nor affirm proved error we prejudice, circuit court’s determination on this issue.
D. Failure to Statementsto Argue Fudge’s Appeal Oregon
PoliceShouldHave Been Suppressed Portland, was arrested in an Fudge Oregon, pursuant arrest warrant issued Pulaski to Detective County. According David of the Portland Police Rubey was taken Department, Fudge searched, into his advised of Miranda custody, rights. Fudge then read their signed standard copy Miranda form. that the form defi- constitutionál-rights cient, Fudge argues statement Detective making inadmissible. Rubey While statement, trial counsel moved to suppress argues that his counsel’s failure raise the appellate issue on appeal constituted ineffective assistance of counsel. areWe Ark. Code Ann. by 16-91-113 to review required §
all errors of the prejudicial where either a rights appellant sentence for life or death has been aid imprisonment To imposed. statute, us in compliance Ct. R. Sup. 4-3(h) requires an in such a case to abstract appellant all adverse him on rulings motions, all objections, made either requests party. court, direct to this Fudge’s we appeal stated accordance “[i]n with Ark. Ct. R. 4-3(h) the record has been Sup. (1998), reviewed for adverse objected rulings but appellant James and no argued reversible error was appeal, found.” 20 S.W.3d 315 (2000). errors,
We all reviewed the denial of including motion, suppression no found reversible error. implicitly error, Since there reversible no was not ineffective for
429
be found
this
Counsel cannot
to
appeal.
failing
argue
point
no merit. See
make an
that has
ineffective for
failing
State,
547,
851
432
Because
(1993).
v.
312 Ark.
S.W.2d
Monts
law the
it is now the
was
direct
issue
settled
appeal,
State,
Ark.
here. See
v.
case and cannot be
Camargo
reargued
534,
680 (1999);
S.W.2d
Johnson
S.W.3d 151
E.
a Mistrial For State’s Pattern
Failure Seek
Improper
Questioning
in a
claims
the State
pattern
Fudge
engaged
Finally,
call-
including leading questions, questions
improper questioning,
for
for
calling
compound questions, questions
specu-
ing
lative
hearsay,
been
had
irrelevant
responses,
questions,
questions
that his trial counsel had a
asked and answered.
contends
Fudge
mistrial,
questioning by moving
duty
stop
improper
assistance of
and that his failure to do so constituted ineffective
circuit
and so we.
counsel. The
court
do
disagreed,
court held that the
asked
the State
by
The circuit
questions
for which a motion for
did not rise to the level of misconduct
made,
have
for which there was remedy
mistrial should
been
nor
A mistrial a drastic remedy,
sustaining
objection.
beyond
be
error
so
when an
only
prejudicial
justice
employed
trial,
and when it cannot be
cannot be
continuing
served cured
an instruction to the
Walker
jury.
tions: the victim’s was asked (1) daughter mother; “never find” her (2) hear she would say had was about conversations she victim’s mother asked telephone track of her kept with the victim whether daughter regularly victim’s asked her were (3) neighbor what children doing; with the victim regarding injuries about her conversation had seen the hand of and when she victim received at the dates; detective victim on certain relevant and (4) Oregon Sheriff s the Pulaski County about his contact with asked testify Office, his use of the with regarding about conversations he her about conver and whether stole keys, victim’s car from a information had obtained sations Fudge regarding All were by Fudge’s objected Pulaski County investigator. *16 and trial counsel ruled court. These do not upon by questions such to a rise to an level as warrant mistrial. The circuit egregious court’s on this issue erroneous. ruling clearly C.J., JJ., Corbin, Imber,
Hannah, and affirm on direct appeal. and reverse on direct Dickey, JJ., appeal.
Glaze, Gunter, remands direct on J., Brown, appeal. and affirm
Glaze, Brown, Dickey, JJ., Imber, Gunter, cross-appeal. and reverse in on C.J., J., cross-
Hannah, Corbin, part appeal. Chief I with Im agree Jim Justice. Justice Hannah,
ber’s of the issue on direct write I to disposition appeal. further that it is for this to base emphasize wholly court a improper decision reverse on never raised Rather arguments appellant. court, than before this three col addressing arguments of my would record craft the and State’s order leagues go argument to determine that counsel’s was not deficient. “This has court been resolute in that we will not amake stating party’s issue, for that or raise argument an sua unless it party involves sponte, 516, the trial court’s Hanlin v. jurisdiction.” Ark.
S.W.3d 181 (2004).
As the issue, with to the appellee respect first-degree battery raised Fudge responded State. Three of arguments my fellow justices would have a Fudge anticipate provide response to an this court decides to on argument raise its own. Raising a for reversal sua ground of his to be spontedeprives Fudge right heard SeeHanlin, issue. This is supra. unacceptable.
As to the with deci- cross-appeal, disagree majority’s sion to address his counsel penalty-phase was ineffective for evidence failing investigate present case, In the the circuit court’s mitigation. decision order present affirmed; therefore, resentencing entitled to new first sentencing hearing. Fudge’s point cross-appeal, counsel ineffective for penalty-phase failing investigate be should not present mitigation, addressed because is moot. point rule, As a courts of this will general state appellate review are issues that moot. Delancy S.W.3d 301 To (2004). do so would be to render advisory becomes case Generally, we will not do. Id. which opinions, have no legal rendered would practical moot when judgment any State, Id.; K.S. v. effect a then-existing controversy. upon legal two court has This recognized one The first the mootness doctrine. Delancy,supra. exceptions review, and evade are yet involves issues that capable repetition, of substan issues that raise considerations the second one concerns addressed, which, would future if prevent tial interest public An of what Fudge’s Id. analysis penalty-phase litigation. to the investigation
did in this sentencing hearing regard have no evidence will practical legal presentation mitigating case, will receive it is clear that Fudge effect as already upon new sentencing hearing.
Further, the case fall under one of exceptions. does not is counsel the issue of whether Fudge’s Clearly, penalty-phase that evades ineffective is not an issue that is of repetition capable that considerations of review. Nor is the issue one raises public which, addressed, if would future When litigation. interest prevent resentenced, anew. The State is the will begin penalty phase Fudge will have the to aggravating present opportunity and circumstances, the will have present Fudge opportunity all the evi- circumstances. After hearing evidence of mitigating dence, This cannot the will determination. court make its the what evidence will be at resentencing anticipate presented sentence or whether can this court Nor anticipate Fudge’s hearing. that his will raise future claims penalty-phase alleging evi- ineffective failing investigate
counsel was present dence mitigation. resentenced; Here, relief will he has obtained the be and, rendering There is no accordingly, sought. controversy It not the on merely practice decision this issue
any advisory. issue advisory future litigation court anticipate I 890 S.W.2d Keffer, opinions. Wright on that his penalty- would hold that Fudge’s cross-appeal point evidence of mitiga- failed to and present counsel investigate phase tion is moot. sum, on I court be affirmed believe that the circuit should that that Imber’s agrees To the extent opinion direct appeal. Justice affirmed, I direct should be join
the court’s order on circuit appeal to address I decision that with disagree majority’s opinion. penalty-phase Fudge’s argument cross-appeal was ineffective evidence of failing investigate present I with join issues mitigation. majority remaining respect on cross-appeal. J., joins.
Corbin, on direct J., joins appeal.
Imber, Although Imber, agree with the Clinton Justice. el le of the issues cross opinion’s1 disposition Annab I must appeal, respectfully circuit disagree position court’s order a new should be reversed. granting sentencing hearing outset,
At the forth the sets standard opinion correctly that the defendant must to succeed on an ineffective- satisfy assistance-of-counsel claim. must (1) counsel’s prove was deficient performance (2) deficient performance his defense. prejudiced Strickland 466 U.S. Washington, (1984). The circuit court concluded that counsel’s failure to object to the introduction of evidence from State’s Exhibit 56 regarding conviction purported first-degree “constituted battery represen- tation deficient in a case that it constitutes enough death-penalty ineffective assistance of counsel” under Strickland.On appeal, State makes no argument counsel’s was not deficient; rather, the State limits its explaining why counsel’s failure to object to Exhibit 56 did not result any prejudice defense. State Specifically, argues on that the circuit court erred in appeal Rule 37 relief granting because Exhibit 56 was admissible “misin- despite jury being formed that conviction was for [Fudge’s] in the first *18 the degree.” State that Alternatively, defense counsel’s suggests failure to to the object informed jury being “erroneously had a conviction for [Fudge] did not first-degree battery” preju- dice the defense because the State of other presented violent prior convictions. Both felony these relate arguments Yet, to the in solely Strickland. the in prejudice prong opinion large its conclusion that the part hinges circuit court’s order should be on reversed the that counsel’s conduct premise the during penalty — was not deficient under the phase of Strickland an prong first so, State never made on By the appeal. doing advocates sua reversal opinion on not sponte ground argued by the State. 1 The to the refers written Gunter in which “opinion” by opinion Justice Justices join. Glaze and Dickey
433 was not on a argued by We do not reverse ground state that rules of this court because well-settled the appellant aban are deemed appeal made appellants arguments Essex, 558, 19 585 (2000); Ark. S.W.3d doned. Crockett 871, Booneville, 614 (1977); 545 S.W.2d Hazen v. City of (1933). Ark. MissouriPac. R. Co. v. Harding, here, first did not address the as the prong appellant It failed that counsel’s performance Strickland argue appeal. the four documents deficient on either of two (1) grounds: believe that led counsel to contained Exhibit reasonably conviction; and admit (2) Fudge had a battery first-degree such all “those convictions.” While ted that had received inwas fact whether counsel’s arguments concerning merit, indeed have deficient under the first Strickland prong may were never made we should not examine arguments simply sua much less reverse on raised sponteby grounds appellant, court.
With respect prejudice prong, opinion of terroristic concludes that four convictions briefly prior number of violent felo constitute an threatening overwhelming review, a trial court’s decision nies. On we will not reverse relief is erro unless decision clearly granting post-conviction A (2002). Ark. S.W.3d 857 neous. Dansby when, there evidence to although erroneous clearly it, the entire evidence court after support appellate reviewing a mistake has been definite and firm conviction that is left with the Id. The concludes that failed prove committed. opinion been excluded the result that if Exhibit 56 had proceeding However, standard based on our would have been different. review, court erred in conclude that circuit cannot
appellate either in the first or second relief. Terroristic threatening, granting Ark. Code threats of See is a crime that involves injury. degree, However, the crime of first battery Ann. 5-13-301 § See the infliction of serious physical injury. involves degree 1997). Ann. four Despite Fudge’s prior Code 5-13-201 (Repl. § the first-degree battery of terroristic threatening, convictions con infliction of that included the actual viction was the aggravator only convic serious Without physical injury. *19 tion, firm conviction that am not left with a definite and I new sentenc when it granted circuit court committed a mistake court’s order I affirm the circuit would ing hearing. Consequently, on direct and cross To the extent Chief appeal appeal. Justice Hannah’s is the court opinion agrees on reversing grounds the State never I argued appeal, join opinion.
Hannah, J., Corbin, J., C. in join part.
L. Brown, I would Justice, concurring dissenting. ert not affirm or reverse circuit simply judge Rob counsel, the issue of I ineffectiveness of but would remand for additional of fact and conclusions of law. findings Rule 37
This is with confusion and unan- appeal fraught swered on the ineffectiveness At the core of questions point. my dilemma fact that the State has filed brief that abstracts Addendum, and includes Exhibit 56 in the all of testimony which shows that defense counsel was correct in not objecting Yet, the State in prosecutor’s first-degree battery argument. but, rather, of its brief does address this
argument part point with the circuit agree defense counsel sat appears judge idly while the misinformed the of the prosecutor Thus, conviction. we have a in conflict the State’s abstracted and Addendum on the one testimony hand and its failure to argue Moreover, issue on develop ineffectiveness the other. in of Exhibit 56 and the abstracted light the circuit testimony, judge to have erred in (1) that appears of convicted finding first-degree battery, (2) prosecutor conceded this at the Rule 37 point hearing. The issue this court overarching whether we facing today
can correct what to be an erroneous appears circuit finding by which led to his judge ineffectiveness when the State has failed to address that issue on Stated can appeal. differently, court reverse the circuit for a mistaken judge finding concerning error, when the State in its attorney brief with the appears agree circuit The dissents in this matter judge? conclude that this court is concession, bound the State’s even concession though may well be in I error. as believe it is this court’s role disagree ineffective, decide whether defense counsel was not the Attorney Nevertheless, General’s. order resolve the conflict between the abstracted and Exhibit 56 in the State’s brief and the testimony order, circuit I would remand this matter for judge’s additional of fact and findings conclusions law. conflict this matter can be summarized as follows.
From the abstracted and Exhibit defense testimony appears counsel was not ineffective. She believed had reasonably *20 she testified that because convicted of battery, been first-degree Furthermore, to State’s case. according told her this was the was, 56, that Fudge of four appears Exhibit which consists pages, offense, an fact, he received eight-year in since convicted of was first- One of the charges for each count charged. sentence the all made clear abundantly by This was prosecu- battery. degree at the circuit defense counsel before judge tor who cross-examined the Rule 37 hearing. is that the circuit this case
What has caused the problem Order 37 matter found in his Amended who sat on the Rule judge “the State concedes that the first-degree granting resentencing But, conces- was reduced to charged robbery.” again, battery the abstracted testimony sion the is contradicted by by prosecutor fact, at the Rule 37 took hearing and Exhibit 56. the prosecutor was convicted of that Fudge pains emphasize in his order to be the appears battery. Accordingly, judge’s finding in error. the in its brief in this case is that State second problem on the circuit agrees judge’s
picks up at the the first-degree-battery argument original misinformed by the led trial. This “misinformation” by prosecutor apparently as of counsel an argument State ineffectiveness deemphasize Thus, ineffectiveness of the over the prong State leaps appeal. on whether test and concentrates preju- Strickland only counsel’s failure to first-degree- diced defense object by reference. dark as why Because this court is operating largely conflict between the abstracted testimony, is this clear there order, I would remand Exhibit and the circuit judge’s on this circuit us enlighten findings by judge additional course before wiser and more matter. This would be the prudent order. or reverse the circuit we decide whether affirm judge’s Thus, dissent and fellow who I with my justices disagree further order without affirm circuit judge’s who would simply the State’s this court bound by clarification. argue They Whether ineffectiveness point. disagree. failure to argue determination and one ineffective is a defense counsel was judicial this court. An erroneous to be decided by of the ultimate issues does not decide the the State of that simply concession point P.2d 1118 (1988) 2d 109 Wash. issue. State v. Knighten, to arrest did not cause concession of no erroneous (State’s probable Court). bind the Washington Supreme
I also with those who would reverse the disagree simply circuit because it seems clear to me that this judge court does not have all the circuit pieces puzzle. Only judge, making done, additional can shed on this dilemma. findings, light Once this court can then render its decision with a full awareness of the *21 facts. This court has remanded Rule 37 matters in the for past additional See, fact. Greene findings e.g., will (2004) (court remand death case under Rule 37.5 when trial court fails to make sufficient of fact and findings conclusions of This case cries law). out for such a remedy. I also with Gunter’s disagree on the opinion preju- Justice
dice but concur prong with his in ah other opinion respects.
SUPPLEMENTAL DISSENTING OPINION ON
DENIAL OF 26, 2005 REHEARING MAY State’s request Justice, I would dissenting. the grant
Glaze, based on the sound rehearing reasoning Tom set legal out authority injustice Gunter’s opinion. Any suggestion the State sua seeks reversal of the trial sponte court’s ruling declaring Harris, Fudge’s attorney, was ineffective Tammy because of her failure to of Exhibit introduction object 56 (the first-degree battery conviction) clearly The State’s brief wrong. addressed this issue as follows:
The State ... the requests Court to reversethe circuit court’s grant Moreover, of reliefbecause was admissible. even [Exhibit 56] not,1 if it was of relief grant was in clearly erroneous that any deficient conduct in not objecting State’s Exhibit did not result in any prejudice. case,
In the present
the circuit court ruled that the appellee’s
trial counsel was ineffective because she
object
did not
introduction of State’sExhibit 56. The exhibit was introduced as
deficient,
Once this court
Fudge’s attorney’s
concludes that
conduct was not
ends,
inquiry
court’s
need
we
prejudice prong
address
second
set
out Strickland
Washington,
evidence of the aggravating was the element of which felony,an committed another “previously and consisted of four another person,” or threat of violence to use documents, had a that shows judgment appellee including guilty but robbery, pleaded been originally charged aggravated first not mention battery degree. does robbery, that he was statement that shows exhibit also included plea in the first De- battery to both robbery degree. pleading guilty first-degree battery, fact did mention judgment spite violent offence than court ruled that less robbery the circuit and, therefore, battery appellee prejudiced with evidence of the fact that the improperly presented decision to relief grant crime. The circuit court’s purported should be reversed. error, made the
There was no when the objection prosecutor no claim trial counsel was ineffective and the has made appellee *22 is which he obtained relief for not it. The claim objecting upon exhibit, but, is as explained based on failure object above, the exhibit was inadmissible. State not have made its deficiency may argu-
Although Gunter’s the trial court ment on as clear as opinion, appeal Justice below, and the State did address rejected short, admitted to her that Harris testified appeal. was shown been convicted of when Fudge had first-degree battery and docket sheet estab- Exhibit 56. Harris said judgment The State battery. lished that convicted that, facts, on these Harris was not ineffective by arguing appealed, The trial court’s finding not to to Exhibit 56. object choosing been reduced to conviction had the State conceded with the An conversation wrong. attorney’s robbery clearly be to a assessment counsel’s defendant critical proper may Here, he had admitted to Harris that decisions. investigation convicted; review of the conviction judgment been after Harris’s sheet, not to reasons existed Harris object and docket sufficient into evidence. to Exhibit 56’s introduction I Gunter’s which believe is necessary change, Justice Srickland, is addressed the prejudice prong our opinion, having was not in this case the conduct of
since
believe
removed,
so that
should be
That
deficient.
portion
opinion
an issue that
whether
no confusion will exist over
prejudice
needs to be addressed.
an issue in
this case. See
Prejudice
Dickey, joins J., opinion.
Cliff BIEDENHARN v. Edward F. THICKSTEN 04-526 Court Arkansas
Supreme 14, 2005 delivered Opinion April notes sheet contains indicating criminal-docket of not robbery, plea guilty reduced from aggravated robbery withdrawn, sheet was entered. The docket and was plea guilty on each states that the defendant sentenced eight years also and other. count concurrent with each Finally, judgment order indicates that the State reduced charge commitment of not withdrew a Fudge previous plea guilty robbery, no mention made entered a There is plea guilty. specific two, in the count judgment first-degree battery charge, However, “the Court doth order. it states that commitment commit defendant to [eight] years sentence and imprisonment with each on each count run concurrent the State Penitentiary is not Whether was convicted of first-degree battery other.” Fudge whether, under the facts and the issue before us. The issue is case, constituted inef- of this Ms. Harris’s conduct circumstances I would hold that did not. fective assistance of counsel. counsel, Harris, in the Ms. testified Fudge’s penalty-phase he had been admitted to her that Rule 37 hearing She testified that Fudge of first-degree battery. convicted — — is, 56, 57, and 58 all of the exhibits that Exhibits shown further Ms. Harris that he said “had” those convictions. that, she believed reviewed Exhibit testified having previously to establish that and docket sheet were sufficient the judgment She this in the Rule was convicted of battery. explained as follows: hearing . that Mr. may . . Did the fact Q [Fudge’s counsel]: of battery that he’d been convicted play have admitted to you circum- this aggravating a role in whether challenge stance? As all of the exhibits. all —he was shown A: showed him We one, convic- he said that he had those each we went through an that there was information shows tions. And felony