Airsman v. State

2015 Ark. 409, 473 S.W.3d 549, 2015 Ark. LEXIS 616
CourtSupreme Court of Arkansas
DecidedNovember 5, 2015
DocketCR-15-268
StatusPublished
Cited by9 cases

This text of 2015 Ark. 409 (Airsman 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
Airsman v. State, 2015 Ark. 409, 473 S.W.3d 549, 2015 Ark. LEXIS 616 (Ark. 2015).

Opinion

PER CURIAM

hln 2013, appellant Don Airsman, Jr. was found guilty by a Hempstead County jury of first-degree murder and was sentenced to life imprisonment. This court affirmed. Airsman v. State, 2014 Ark. 500, 451 S.W.3d 565.

Airsman subsequently filed a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015) in the trial court. He raised four claims for relief. First, he claimed that a juror, who failed to disclose his inappropriate contact with six deputies and Airsman, should have been removed from the jury and replaced with one of the alternate jurors. His next three claims for relief centered on allegations of prosecuto-rial misconduct which included the following: (1) that the prosecutor promised his father, Donnie Airsman, immunity for testifying and that the prosecutor waved two pistols around the courtroom, causing jurors to yell out; (2) that the prosecutor stated the investigation was ongoing pending the trial, but the “investigator over the whole case testified at trial that it had been over [2and proved that it had been self defense[,]” and that the trial court should have ruled on this finding of self-defense prior to trial; and (3) that the prosecutor did not play a video from the beginning as ordered by the trial court, omitting a part that allegedly showed a “deal made by the prosecutor with the witness.” The trial court denied Airs-man’s request for Rule 37.1 relief, finding that his allegations fell “short of meeting the requirement of a valid collateral attack” and that Airsman was not entitled to an evidentiary hearing based on the con-clusory nature of his allegations. 1 Airs-man timely lodged an appeal of that order in this court.

When considering ' an appeal from a trial court’s denial óf a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s'conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must, show that counsel made errors Uso serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable, professional judgment. Henington. v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam).

Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner' making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). 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, i.e., the decision reached would have been different absent the ¿r-rors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a' petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the ‘defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

On appeal; Airsman makes the following arguments supporting his claims for Rule 37.1 relief: (1) trial counsel did not point out an incident to the trial court between a juror and deputies, during a break, which should have been addressed and that, when the trial court asked if anyone, had been affected by anyone talking .to them, a comment was made that “[h]e[, Donnie Airsman,] just whispered to the jury and .said, [s]elf-[d]efense[,]” which tainted the jury; (2) the prosecutor did not play a recording properly during the trial, and trial counsel did not object to the prosecutor’s misconduct; (3) various claims of prosecutorial misconduct and ineffective assistance of counsel because counsel allowed the prosecutorial misconduct to occur; (4) a conflict of interest with trial counsel based on his failure to testify, lack of mitigation evidence, and his interaction with counsel on an unrelated case when Airsman was a corrections or law-enforcement officer; and (5) a catch-all argument that the jury was tainted. Contrary to Airsman’s assertions, ;he failed to establish that he was entitled to postconviction relief on any of his claims.

Airman’s arguments on appeal that Donnie Airsman improperly spoke to the jury during the trial, that there was a conflict of interest with counsel, and that the jury was tainted were not raised below for the trial court to consider. -Alhgrounds for relief pursuant to the Rule must be asserted in the original or ■ an amended petition. Ark. R.Crim. P. 37.2. We do not consider issues that are raised for the first time on appeal. Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam).

With respect to Airsman’s first claim about the juror — which appears to be an amalgamation of an ineffective-assistance-of-counsel claim or juror-misconduct claim for failure [¿¡to point out an incident with a juror to the trial court and a claim regarding trial court error for not removing the juror — Airsman did not make a clear argument below with respect to whether he claimed the proposed error was made by the trial court, trial counsel, or the jqror when he argued the juror should have been removed and replaced with one of the alternates. While the argument on appeal appears to be similar to the claim made in Airsman’s Rule 37.1 petition, parties may not change on appeal the scope ¡and nature of. their arguments made below. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000).

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Bluebook (online)
2015 Ark. 409, 473 S.W.3d 549, 2015 Ark. LEXIS 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/airsman-v-state-ark-2015.