Britt v. State

2009 Ark. 569, 349 S.W.3d 290, 2009 Ark. LEXIS 742
CourtSupreme Court of Arkansas
DecidedNovember 12, 2009
DocketCR 08-841
StatusPublished
Cited by15 cases

This text of 2009 Ark. 569 (Britt 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
Britt v. State, 2009 Ark. 569, 349 S.W.3d 290, 2009 Ark. LEXIS 742 (Ark. 2009).

Opinion

PER CURIAM.

Iiln 2006, a jury found appellant Kenneth Allan Britt guilty of manufacturing methamphetamine, possessing drug paraphernalia with intent to manufacture methamphetamine, and fleeing, and sentenced him to an aggregate term of 240 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Britt v. State, CACR 07-103, 2007 WL 3276800 (Ark.App. Nov. 7, 2007), petition for review denied CR 07-1224, 2008 WL 331074 (Ark. Feb 7, 2008) (per curiam). Appellant filed in the trial court a pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 that was denied. Appellant appeals the denial of post-conviction relief and raises twelve points of error.

This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007); see also Anderson v. State, 2009 Ark. 493, 2009 WL 3235533 (per curiam); Davis v. State, 366 Ark. 401, 235 S.W.3d 902 (2006). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Anderson, 2009 Ark. 493, at 2 (citing Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam)). We hold that the trial court’s denial of postconviction relief was not clearly erroneous.

Appellant’s first point on appeal alleges that trial counsel was ineffective for failure to object to the charges of manufacture of methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine on the basis that the charges were a violation of the prohibition against double jeopardy. Appellant additionally argues fundamental error as a result of the alleged violation of the Double Jeopardy Clause. The trial court found no double-jeopardy violation as asserted in appellant’s petition.

Appellant’s claim in his petition was founded upon the allegation that one of the two charges is a lesser-included offense of the other charge. He did not further develop this argument in his petition and does not do so on appeal. He has failed even to identify which of the two charges he contends is included within the other. We will not research and develop arguments for appellants. Hester v. State, 362 Ark. 373, 208 S.W.3d 747 (2005). Moreover, in Hester, this court held that possession of drug paraphernalia with intent to manufacture methamphetamine was not a lesser-included offense of manufacture of methamphetamine. Appellant appears to concede this point in his reply brief, and we cannot hold that the trial court clearly erred in denying relief on this point.

Appellant’s second point on appeal is solely based on an allegation of ineffective assistance of counsel. Our standard of review on appeal from a trial court’s denial of |apostconviction relief as to a claim of ineffective assistance of counsel is clear. We apply the standard that was 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), and, taking into consideration the totality of the evidence, we determine whether the trial court clearly erred in holding that counsel’s performance was not ineffective. French v. State, 2009 Ark. 443, 2009 WL 3047356 (per curiam); Small, 371 Ark. at 250, 264 S.W.3d at 515. Under the Strickland test, a claimant must show that counsel’s performance was deficient, and the claimant must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. French, 2009 Ark. 443, at 1; Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam).

A brief summary of the evidence presented at appellant’s trial is necessary to understand our analysis under this standard. In October of 2004, someone driving appellant’s car fled from an officer who attempted to make a traffic stop. The vehicle eventually hit a tree, the driver ran into the woods, and the police officer found appellant’s then girlfriend, Sarina Simpson, in the passenger seat. Ms. Simpson initially provided a false name for the driver of the car. Later, however, she told a police officer and testified that appellant was driving. A number of items found in the car were commonly used to manufacture methamphetamine. Months later, an officer serving the warrant arrested appellant, having found appellant hiding between the mattress and box springs of a bed in the house where Ms. Simpson at the time resided.

In his petition, appellant alleged that counsel was ineffective for failure to object to the admission of certain evidence relevant to the manufacture of methamphetamine, including locks Land matches, found at Ms. Simpson’s grandmother’s house. 1 The trial court found that appellant failed to show prejudice as to this claim. The trial court correctly determined that, considering the totality of the evidence in this case, appellant failed in his demonstration of prejudice. A petitioner must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Gaye v. State, 2009 Ark. 201, 307 S.W.3d 1 (citing Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008)). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

The evidence that appellant contends counsel should have opposed was unlikely to have changed the outcome of the trial. The items appellant contends should have been excluded were locks and matches, including some matches with the striker plates removed. There was evidence introduced from the search of the vehicle that, after testing, indicated the presence of phosphorous. Appellant’s defense at trial was to implicate his girlfriend, Ms. Simpson, rather than appellant, as the “meth cook.” The defense offered evidence that suggested that Ms. Simpson had borrowed the car and another man was driving. The trial court did not dearly err in finding that appellant failed to meet his burden to demonstrate a reasonable probability that the jury’s decision would have been different had the evidence from his girlfriend’s residence been excluded.

Appellant’s third point on appeal alleges that trial counsel was ineffective for failing to object to evidence outside the scope of the trial court’s initial ruling on a motion in limine. In | fihis petition, appellant alleged that counsel failed to object to testimony concerning two incidents in which appellant was apprehended, along with Ms. Simpson, and convicted of other crimes related to methamphetamine. 2 The trial court found that the grounds were raised on direct appeal.

Trial counsel did object to testimony concerning one of the two incidents, which concerned an arrest subsequent to the charges at issue.

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Bluebook (online)
2009 Ark. 569, 349 S.W.3d 290, 2009 Ark. LEXIS 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britt-v-state-ark-2009.