Cite as 2013 Ark. 374
SUPREME COURT OF ARKANSAS No. CR-09-315
ARMON HOUSTON Opinion Delivered October 3, 2013 APPELLANT PRO SE APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, 60CR-05- 2702, HON. HERBERT T. WRIGHT, JR., STATE OF ARKANSAS JUDGE APPELLEE
REVERSED AND REMANDED.
PER CURIAM
Appellant Armon Houston was convicted of first-degree murder in the shooting death
of Melvin Lunnie and sentenced to 480 months’ imprisonment. The Arkansas Court of Appeals
affirmed the judgment. Houston v. State, CACR-06-1043 (Ark. App. Jun. 13, 2007) (unpublished).
Appellant filed a petition for relief under Arkansas Rule of Criminal Procedure 37.1 (2007). He
now appeals the denial of that petition.
Appellant raises three points on appeal. In the first, he asserts error in the trial court’s
failure at the hearing on the Rule 37.1 petition to admit into evidence a proffered tape of an
interview with a witness. In the remaining two points, appellant contends that trial counsel was
ineffective for failing to adequately investigate a defense casting blame for the murder on
another person, Corey Bealer, and for failing to have tested a gun discovered in Bealer’s
possession months after the murder.1 Because we hold that there was error in the trial court’s
1 The issues that appellant raises in these two points are often repetitive, not well delineated, and intertwined. The State has addressed some additional claims in its brief, but these are the only two issues set out in these two points for which appellant received a ruling. We accordingly limit our review to these two issues, and we do not address the claims for which Cite as 2013 Ark. 374
findings as to appellant’s claim of ineffective assistance of counsel for failing to have the gun
tested, we need not address the first two points.
Under the general standard of review for an order that denies postconviction relief, the
court does not reverse unless the trial court’s findings are clearly erroneous. See Davis v. State,
2013 Ark. 118 (per curiam). 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. Id.
To prevail on a claim of ineffective assistance of counsel, the petitioner must show that
(1) counsel’s performance was deficient and (2) the deficient performance prejudiced his
defense. Banks v. State, 2013 Ark. 147 (citing Strickland v. Washington, 466 U.S. 668 (1984)). A
defendant making an ineffective-assistance-of-counsel claim must show that his counsel’s
performance fell below an objective standard of reasonableness. Hennington v. State, 2012 Ark.
181, 403 S.W.3d 55; Miller v. State, 2011 Ark. 114 (per curiam). In order to meet the second
prong of the test, a claimant must show that there is a reasonable probability that the fact-
finder’s decision would have been different absent counsel’s errors. Delamar v. State, 2011 Ark.
87 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in
the outcome of the trial. Id.
In making a determination on a claim of ineffective assistance of counsel, this court
considers the totality of the evidence. Anderson v. State, 2010 Ark. 404, 373 S.W.3d 876 (per
the court did not provide a ruling. See Norris v. State, 2013 Ark. 205, ___ S.W.3d ___ (per curiam) (holding that failure to obtain a ruling on an issue, including a constitutional issue, precludes review on appeal).
2 Cite as 2013 Ark. 374
curiam). This court indulges in a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. White v. State, 2013 Ark. 171, ___ S.W.3d ___. The
defendant claiming ineffective assistance of counsel has the burden of overcoming that
presumption by identifying the acts and omissions of counsel which, when viewed from
counsel’s perspective at the time of trial, could not have been the result of reasonable
professional judgment. Id. A claimant must satisfy both prongs of the Strickland test, and it is
not necessary to address both prongs if petitioner fails on one. Thompson v. State, 2013 Ark. 179
(per curiam). For claims such as this one, based on a failure to investigate, a petitioner must
demonstrate how a more searching pretrial investigation would have changed the results of his
trial. Fernandez v. State, 2011 Ark. 418, 384 S.W.3d 520 (per curiam).
Appellant’s second ineffective-assistance claim concerned trial counsel’s failing to have
tested a gun that was found in Bealer’s possession six months after the murder. Trial counsel
testified at the hearing on the Rule 37.1 petition that he had decided not to have the gun found
on Bealer tested prior to a pretrial hearing. The pretrial hearing concerned a motion in limine
by the State to exclude evidence of third-party culpability, including evidence that Bealer was
found in possession of a weapon of the same type as the murder weapon. No gun had been
introduced into evidence at trial as the murder weapon.
Counsel testified at the Rule 37.1 hearing that he made the decision not to have testing
done because he was concerned that, if the test results were negative, he could not argue that
Bealer was the killer. He further testified that he did not want to jeopardize what he saw as a
strong defense case with potentially negative results from testing the weapon. The court ruled
3 Cite as 2013 Ark. 374
in the State’s favor on the motion in limine because the gun was not directly linked to the
murder.
At the hearing on the Rule 37.1 petition, a firearms expert testified that, prior to the Rule
37.1 hearing, he had conducted tests on the gun. His testimony was that the tests indicated that
cartridge casings recovered from the murder scene had been fired from the weapon that had
been taken from Bealer. Appellant contended in his Rule 37.1 petition that, if trial counsel had
the gun tested prior to the pretrial hearing, he would have been able to establish a direct
connection between Bealer and the murder weapon and that the State’s motion to exclude third-
party culpability evidence would not have been granted.
The trial court found that counsel’s decision not to have the gun tested was reasonable,
even though the motion to exclude the evidence of the gun at trial was successful. The court
found that, because counsel had made a reasonable strategic decision, counsel was not
ineffective. Where a decision by counsel was a matter of trial tactics or strategy, and that
decision is supported by reasonable professional judgment, then counsel’s decision is not a basis
for relief under Rule 37.1. Adams, 2013 Ark. 174, ___ S.W.3d ___.
Judicial review of counsel’s performance must be highly deferential, and a fair assessment
of counsel’s performance under Strickland requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from counsel’s perspective at the time. Carter v. State, 2010 Ark. 231, 364
S.W.3d 46 (per curiam). Counsel testified at the hearing on the Rule 37.1 petition that he chose
not to test the gun because a negative result from the test would have effectively prohibited him
4 Cite as 2013 Ark. 374
Free access — add to your briefcase to read the full text and ask questions with AI
Cite as 2013 Ark. 374
SUPREME COURT OF ARKANSAS No. CR-09-315
ARMON HOUSTON Opinion Delivered October 3, 2013 APPELLANT PRO SE APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, 60CR-05- 2702, HON. HERBERT T. WRIGHT, JR., STATE OF ARKANSAS JUDGE APPELLEE
REVERSED AND REMANDED.
PER CURIAM
Appellant Armon Houston was convicted of first-degree murder in the shooting death
of Melvin Lunnie and sentenced to 480 months’ imprisonment. The Arkansas Court of Appeals
affirmed the judgment. Houston v. State, CACR-06-1043 (Ark. App. Jun. 13, 2007) (unpublished).
Appellant filed a petition for relief under Arkansas Rule of Criminal Procedure 37.1 (2007). He
now appeals the denial of that petition.
Appellant raises three points on appeal. In the first, he asserts error in the trial court’s
failure at the hearing on the Rule 37.1 petition to admit into evidence a proffered tape of an
interview with a witness. In the remaining two points, appellant contends that trial counsel was
ineffective for failing to adequately investigate a defense casting blame for the murder on
another person, Corey Bealer, and for failing to have tested a gun discovered in Bealer’s
possession months after the murder.1 Because we hold that there was error in the trial court’s
1 The issues that appellant raises in these two points are often repetitive, not well delineated, and intertwined. The State has addressed some additional claims in its brief, but these are the only two issues set out in these two points for which appellant received a ruling. We accordingly limit our review to these two issues, and we do not address the claims for which Cite as 2013 Ark. 374
findings as to appellant’s claim of ineffective assistance of counsel for failing to have the gun
tested, we need not address the first two points.
Under the general standard of review for an order that denies postconviction relief, the
court does not reverse unless the trial court’s findings are clearly erroneous. See Davis v. State,
2013 Ark. 118 (per curiam). 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. Id.
To prevail on a claim of ineffective assistance of counsel, the petitioner must show that
(1) counsel’s performance was deficient and (2) the deficient performance prejudiced his
defense. Banks v. State, 2013 Ark. 147 (citing Strickland v. Washington, 466 U.S. 668 (1984)). A
defendant making an ineffective-assistance-of-counsel claim must show that his counsel’s
performance fell below an objective standard of reasonableness. Hennington v. State, 2012 Ark.
181, 403 S.W.3d 55; Miller v. State, 2011 Ark. 114 (per curiam). In order to meet the second
prong of the test, a claimant must show that there is a reasonable probability that the fact-
finder’s decision would have been different absent counsel’s errors. Delamar v. State, 2011 Ark.
87 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in
the outcome of the trial. Id.
In making a determination on a claim of ineffective assistance of counsel, this court
considers the totality of the evidence. Anderson v. State, 2010 Ark. 404, 373 S.W.3d 876 (per
the court did not provide a ruling. See Norris v. State, 2013 Ark. 205, ___ S.W.3d ___ (per curiam) (holding that failure to obtain a ruling on an issue, including a constitutional issue, precludes review on appeal).
2 Cite as 2013 Ark. 374
curiam). This court indulges in a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. White v. State, 2013 Ark. 171, ___ S.W.3d ___. The
defendant claiming ineffective assistance of counsel has the burden of overcoming that
presumption by identifying the acts and omissions of counsel which, when viewed from
counsel’s perspective at the time of trial, could not have been the result of reasonable
professional judgment. Id. A claimant must satisfy both prongs of the Strickland test, and it is
not necessary to address both prongs if petitioner fails on one. Thompson v. State, 2013 Ark. 179
(per curiam). For claims such as this one, based on a failure to investigate, a petitioner must
demonstrate how a more searching pretrial investigation would have changed the results of his
trial. Fernandez v. State, 2011 Ark. 418, 384 S.W.3d 520 (per curiam).
Appellant’s second ineffective-assistance claim concerned trial counsel’s failing to have
tested a gun that was found in Bealer’s possession six months after the murder. Trial counsel
testified at the hearing on the Rule 37.1 petition that he had decided not to have the gun found
on Bealer tested prior to a pretrial hearing. The pretrial hearing concerned a motion in limine
by the State to exclude evidence of third-party culpability, including evidence that Bealer was
found in possession of a weapon of the same type as the murder weapon. No gun had been
introduced into evidence at trial as the murder weapon.
Counsel testified at the Rule 37.1 hearing that he made the decision not to have testing
done because he was concerned that, if the test results were negative, he could not argue that
Bealer was the killer. He further testified that he did not want to jeopardize what he saw as a
strong defense case with potentially negative results from testing the weapon. The court ruled
3 Cite as 2013 Ark. 374
in the State’s favor on the motion in limine because the gun was not directly linked to the
murder.
At the hearing on the Rule 37.1 petition, a firearms expert testified that, prior to the Rule
37.1 hearing, he had conducted tests on the gun. His testimony was that the tests indicated that
cartridge casings recovered from the murder scene had been fired from the weapon that had
been taken from Bealer. Appellant contended in his Rule 37.1 petition that, if trial counsel had
the gun tested prior to the pretrial hearing, he would have been able to establish a direct
connection between Bealer and the murder weapon and that the State’s motion to exclude third-
party culpability evidence would not have been granted.
The trial court found that counsel’s decision not to have the gun tested was reasonable,
even though the motion to exclude the evidence of the gun at trial was successful. The court
found that, because counsel had made a reasonable strategic decision, counsel was not
ineffective. Where a decision by counsel was a matter of trial tactics or strategy, and that
decision is supported by reasonable professional judgment, then counsel’s decision is not a basis
for relief under Rule 37.1. Adams, 2013 Ark. 174, ___ S.W.3d ___.
Judicial review of counsel’s performance must be highly deferential, and a fair assessment
of counsel’s performance under Strickland requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from counsel’s perspective at the time. Carter v. State, 2010 Ark. 231, 364
S.W.3d 46 (per curiam). Counsel testified at the hearing on the Rule 37.1 petition that he chose
not to test the gun because a negative result from the test would have effectively prohibited him
4 Cite as 2013 Ark. 374
from ethically trying to portray Bealer as the possible murderer and because he did not want to
jeopardize what he saw as a strong case for the defense. The trial court found this decision was
reasonable. Yet, tying the gun to Bealer would have provided a stronger defense, and negative
results would not have jeopardized what trial counsel cited as a strong defense.
Although counsel testified that he believed that appellant had a strong case, after the
motion in limine was granted, he ultimately opted not to portray Bealer as the killer and, instead,
presented a number of alibi witnesses who gave testimony that the jury simply did not find
credible. Counsel indicated that he also used other witnesses to establish that there was
someone else at the crime scene and that a different vehicle from the one appellant was in was
seen at the crime scene.
Based on what counsel described as a strong defense case, counsel’s position that results
showing that the gun was not the murder weapon would cause great damage was not well-
founded. Even if the gun did not tie Bealer to the murder, appellant would have had the alibi
defense that he later chose to pursue, although unsuccessfully. If the gun did tie Bealer to the
murder, then appellant would have had a viable third-party culpability defense as well. Negative
results from testing the gun may have eliminated Bealer as a potential alternate suspect, but it
would not have destroyed what counsel testified he viewed as a strong case that there was
another killer.
The trial court was clearly erroneous in finding that the decision not to test the gun was
reasonable. The additional evidence linking Bealer to the murder would have bolstered that
defense, and therefore may have changed the outcome of the trial. Appellant satisfied both
5 Cite as 2013 Ark. 374
prongs of the Strickland test, and we hold that counsel therefore provided ineffective assistance
by failing to have the gun tested. We accordingly reverse and remand for the trial court to enter
an order that is consistent with this opinion.
Armon Houston, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.