Adams v. State

2013 Ark. 174, 427 S.W.3d 63, 2013 WL 1772361, 2013 Ark. LEXIS 203
CourtSupreme Court of Arkansas
DecidedApril 25, 2013
DocketNo. CR 12-375
StatusPublished
Cited by49 cases

This text of 2013 Ark. 174 (Adams v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. State, 2013 Ark. 174, 427 S.W.3d 63, 2013 WL 1772361, 2013 Ark. LEXIS 203 (Ark. 2013).

Opinions

COURTNEY HUDSON GOODSON, Justice.

1 Appellant Billy Terrell Adams appeals the order entered by the White County Circuit Court denying his petition for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. For reversal, he contends that the trial court erred by not allowing him to subpoena a juror from his trial and by limiting his examination of a witness at the hearing; by not permitting him to amend his petition; by not invoking the rule to exclude his trial counsel from hearing the testimony of other witnesses; and by denying his petition for postconviction relief. Because this case involves postconviction relief, our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1 — 2(a)(8). We affirm on all issues.

Factual Background

In August 2008, a jury convicted Adams of capital murder in the shooting death of Charles “Chucky” Cunningham and sentenced him to life in prison without parole. In reaching its verdict, the jury rejected Adams’s claim of justification and the defense that he was Runable to conform his conduct to the requirements of the law as a result of mental disease or defect. This court subsequently affirmed the conviction and sentence. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764. As we noted in the opinion, the evidence at trial disclosed that Adams and Cunningham engaged in a physical altercation in the front yard of Adams’s home. When the fight ended, Cunningham got into his vehicle, and Adams went inside the house after briefly speaking with Cunningham through the car window. A few moments later, Adams emerged from the house carrying a shotgun, and from the front porch, he fired the weapon at the vehicle as Cunningham began driving away. Cunningham crashed into a utility pole after travelling a few blocks from Adams’s home. According to the medical examiner, Cunningham died as a result of the gunshot wounds that he received. In Adams, one of the issues raised on appeal was that the circuit court erred in questioning a juror after the answer she gave regarding her vote during the jury poll. We declined to address the argument because trial counsel failed to make a contemporaneous objection.

On May 24, 2010, following the issuance of our mandate, Adams filed a timely, pro se petition for postconviction relief, alleging that he had received ineffective assistance of counsel at trial. His allegations included claims that counsel failed to adequately present the defense of mental disease or defect; failed to procure the attendance of witnesses who would have testified that a gun was removed from Cunningham’s vehicle by someone at the scene of the accident; and failed to preserve for appeal the issue concerning the circuit court’s questioning of the juror. In the petition, Adams requested a hearing, the appointment of counsel, and permission to file an amended petition. On September 2, 2010, he filed a |3motion to subpoena witnesses, including the juror who was questioned by the court during the polling of the jury.

On September 28, 2010, the circuit court held a preliminary hearing. The court denied Adams’s motion to subpoena the juror and his request for the appointment of counsel. The circuit court stated that it would not set the petition for a hearing any sooner than sixty days in order to give Adams time to retain counsel. The court granted Adams’s request to file an amended petition, limited, however, to the single issue of trial counsels’ failure to object to remarks made by the prosecutor during closing argument.

By letters dated January 24 and May 6, 2011, the circuit court wrote Adams inquiring about whether he had retained counsel or whether he still intended to hire counsel. On August 23, 2011, the court informed Adams by letter that the hearing would take place on October 25, 2011. On September 26, 2011, Adams, still acting pro se, filed a sixteen-page amended petition for postconviction relief that raised issues beyond the claim that counsel were ineffective for not objecting to comments made by the prosecutor in closing argument. In the amended petition, Adams asserted that counsel were ineffective for not objecting to the prosecutor’s statement in closing that Adams would be released if found not guilty by reason of mental disease or defect if the court found that he was no longer suffering from the mental disease or defect.1

14At the outset of the hearing, the circuit court announced that it would consider only the claim of ineffective assistance of counsel contained in the amended petition concerning the failure to object to the statement made by the prosecutor during closing argument. The court ruled that it would not address the additional issues raised in the amended petition because of its previous ruling allowing amendment only as to that one issue and because the petition exceeded the ten-page limitation found in Rule 37.1(b). Thereafter, Adams invoked “the rule” to exclude both of his trial counsel from the courtroom during the presentation of testimony. The circuit court denied that request but later altered its ruling by excluding counsel during each other’s testimony and while Adams testified.

In support of the petition, Adams elicited the testimony of his appellate counsel, Bill James. James said, with regard to the juror-polling issue raised on appeal, that an objection would have preserved the point for appeal but that he could not say whether the appellate court would have deemed the argument meritorious.

Adams also presented the testimony of Dr. Bob Gale, who was Adams’s expert witness at trial with respect to the defense of mental disease or defect. Gale said that he testified at trial that Adams suffered from a mental disease that rendered him unable to conform his conduct to the requirements of the law. Gale did not recall trial counsel mentioning the term “irresistible impulse,” and he could not remember whether trial counsel discussed the benefit of having Adams’s psychiatrist from UAMS testify to corroborate Gale’s testimony. He stated, however, that he reviewed Adams’s medical records prior to trial.

In addition, Adams called Herbert Gardner as a witness. Gardner had provided an | .^affidavit for Cunningham’s arrest, dated four months prior to Cunningham’s murder, stating that Cunningham had beaten and pulled a gun on him in a jealous rage over Gardner’s supposed relationship with Holly Cowan, the mother of Cunningham’s child. When Adams began questioning Gardner about the incident, the circuit court ruled that the affidavit, which had been made a part of the trial record, spoke for itself and that it was not proper for Adams to inquire about what Gardner remembered about the altercation with Cunningham. The court instructed Adams to limit his inquiry to the issue of whether trial counsel were ineffective for not securing Gardner’s presence at trial. In this regard, the circuit court noted that counsel had subpoenaed Gardner for trial but that the sheriff had not been able to serve Gardner with the subpoena at the given address after two attempts. Gardner testified that he did not know that he was a named witness for the trial and that the address and phone number listed on the subpoena were old. He explained that he worked in the oil field and that his address had changed because he was in and out of town all of the time.

Brian Joe Cowan testified that Adams’s counsel spoke with him in advance of trial and that she had asked him about disagreements that he had with Cunningham. Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 Ark. 174, 427 S.W.3d 63, 2013 WL 1772361, 2013 Ark. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-state-ark-2013.