Mason v. State

2013 Ark. 492, 430 S.W.3d 759, 2013 WL 6327537, 2013 Ark. LEXIS 589
CourtSupreme Court of Arkansas
DecidedDecember 5, 2013
DocketCR-12-218
StatusPublished
Cited by24 cases

This text of 2013 Ark. 492 (Mason 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
Mason v. State, 2013 Ark. 492, 430 S.W.3d 759, 2013 WL 6327537, 2013 Ark. LEXIS 589 (Ark. 2013).

Opinion

JIM HANNAH, Chief Justice.

| Appellant, Frederick Dwayne Mason, appeals from the denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. Appellant was convicted of two counts of aggravated robbery, two counts of theft of property, and one count of second-degree battery, and he was sentenced to a total of 660 months in the Arkansas Department of Correction. The court of appeals affirmed on direct appeal. See Mason v. State, 2009 Ark. App. 794, 2009 WL 4377825. Appellant then filed a petition for postcon-viction relief, which the circuit court denied following a hearing. Appellant alleges the following errors on appeal: (1) that trial counsel was ineffective for failing to move for a directed verdict, (2) that trial counsel was ineffective for “opening the door” to prejudicial testimony, and (3) that trial counsel was ineffective for failing to investigate and prepare for trial. We affirm the circuit court’s order.

On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this |2court will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. 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., 402 S.W.3d at 74.

The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In asserting ineffective assistance of counsel under Strickland, the petitioner must first show that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, at 4, 385 S.W.3d 228, 232. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id., 385 S.W.3d at 232. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id., 385 S.W.3d at 232. Second, the petitioner must show that counsel’s deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id., 385 S.W.3d at 232. In doing so, 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, which means that the decision reached would have been different absent the errors. Id., 385 S.W.3d at 232. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id., 385 S.W.3d at 232-33. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial | .^process that renders the result unreliable. Id., 385 S.W.3d at 233.

In his first point on appeal, appellant contends that trial counsel was ineffective because he failed to move for a directed verdict at trial. He claims that the proof presented at trial was insufficient to support a conviction because there was no direct evidence of his involvement in the crimes. Specifically, he contends that victim Lionel Hampton’s identification of him as a perpetrator was unreliable because Hampton could testify only that he saw appellant exiting a residence some distance away from the crime scene and driving away in a vehicle that resembled the dark Taurus that he saw on his street after he had been robbed. According to appellant, Hampton’s cousin told Hampton that appellant was the culprit and that Hampton did not actually see appellant during the commission of the crimes.

At trial, Hampton testified that after he had been robbed in his home, he looked out the window and saw a dark-colored, or black, Taurus exiting his street. Hampton stated that he then called his cousin for a ride, and they drove around for about an hour looking for the vehicle. Hampton testified that they located the vehicle parked at a nearby house and saw appellant walk out of the house and toward the vehicle. Hampton said that his cousin “pretty much identified him for me.” Little Rock Police Detective Robert Martin testified that Hampton contacted him the day after the robbery and told him that he had been robbed by a man in his neighborhood named “Pig.” Martin contacted several officers who worked in that neighborhood, and one of the officers told him that “Pig” was known to police as Fred Mason. Martin included a photo of appellant in a lineup shown to Hampton, and according to Martin, Hampton “immediately and positively identified Mr. Mason as ... one of the Rthree that robbed him.” Hampton also testified that he picked appellant from a photo lineup as one of the three men who had robbed him. According to Hampton, appellant put a gun to his chest, held him down on a couch, and asked him for his keys.

Appellant’s trial counsel, John May, testified at the postconviction hearing that he did not move for a directed verdict because appellant had been identified as one of the robbers, and it was for the jury to decide if that identification was credible. The State contends that trial counsel was correct, that the circuit court could not have granted a directed verdict even if trial counsel had moved for one, and that the appellate court could not have reversed appellant’s conviction based on insufficient evidence. We agree. When a witness makes a positive identification of a suspect, any challenge to the reliability of the identification becomes a matter of credibility for the fact-finder to determine. E.g., Stipes v. State, 315 Ark. 719, 721, 870 S.W.2d 388, 389 (1994). The circuit court is not to assess credibility or resolve conflicts in the testimony in considering a directed-verdict motion. E.g., Smith v. State, 337 Ark. 239, 245, 988 S.W.2d 492, 495 (1999); see also State v. Long, 311 Ark. 248, 251, 844 S.W.2d 302, 304 (1992) (“[W]hen a trial court exceeds its duty to determine the sufficiency of the evidence by judging the credibility of the evidence, it commits an error that requires correction.”). Any inconsistencies in testimony are for the jury to resolve, and the weight to be given to witness-identification testimony is for the jury to decide. See, e.g., Davenport v. State, 373 Ark. 71, 78, 281 S.W.3d 268, 273 (2008). Here, because a directed-verdict motion would not have been successful, appellant cannot demonstrate that trial counsel was ineffective for failing to make that motion. See Lowe v. State, 2012 Ark. 185, at 7, 423 S.W.3d 6, 13 [ s(per curiam) (stating that trial counsel cannot be ineffective for failing to make an argument or objection that is without merit). Accordingly, he is not entitled to post-conviction relief on that basis.

Appellant next contends that trial counsel was ineffective for “opening the door” to prejudicial testimony when he asked Hampton on cross-examination if he had once reported to the police that he had been robbed by appellant and appellant’s brother, Nicholas Mason.

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Bluebook (online)
2013 Ark. 492, 430 S.W.3d 759, 2013 WL 6327537, 2013 Ark. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mason-v-state-ark-2013.