Mercouri v. State

540 S.W.3d 328
CourtCourt of Appeals of Arkansas
DecidedJanuary 31, 2018
DocketNo. CR–17–284
StatusPublished
Cited by2 cases

This text of 540 S.W.3d 328 (Mercouri v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercouri v. State, 540 S.W.3d 328 (Ark. Ct. App. 2018).

Opinion

MIKE MURPHY, Judge

Appellant Michael Mercouri appeals after the Pulaski County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. For reversal, he contends that the circuit court erred because trial counsel was constitutionally ineffective (1) for failing to present a defense; (2) for failing to present evidence sufficient to call for a jury instruction on a lesser included offense; (3) for failing to seek the removal of a juror for cause; and (4) because appellate counsel was ineffective on Mercouri's behalf in his direct appeal.1 We affirm.

A. Relevant History

The supreme court explained the incident that led to this charge in Mercouri v. State , 2016 Ark. 37, at 1-2, 480 S.W.3d 864, 865.

In April 2013, Kelvin Perry, the general manager of Aaron's in North Little Rock, was leaving work for lunch and to make a deposit at the bank. As he was walking through the Aaron's parking lot, he heard someone yell his name. Perry saw Mercouri, a former temporary employee, sitting in his vehicle. Perry recognized Mercouri and walked over to him. Mercouri inquired why Perry had not asked him to work lately. Perry responded that he did not need any additional help. Mercouri then reached down, pulled out a gun, and placed it on his lap. Perry "didn't think anything of it" until Mercouri grabbed him by the sleeve of his jacket, tried to pull him through the car window, and said "[G]ive me your money." Mercouri grew angry and pointed the gun toward Perry when Perry responded that he did not have any money. Mercouri ordered Perry to get in the back seat of the vehicle. Perry opened the back door of the vehicle but, instead of getting in, he suddenly ran across the street. Mercouri immediately left the scene, and Perry called the police.

A Pulaski County jury convicted Mercouri of aggravated robbery and sentenced him to ten years' imprisonment in the Arkansas Department of Correction (ADC). On appeal, he contended sufficient evidence did not support the conviction. Our supreme court affirmed without reaching the merits because appellate counsel's specific argument was not preserved. Additionally, the court affirmed the denial of his motion to set aside his guilty verdict.

*332On April 22, 2016, Mercouri filed a properly verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. On December 14, 2016, without holding an evidentiary hearing, the circuit court denied Mercouri's petition in an eleven-page order. The circuit court denied relief on his first claim that counsel was ineffective for failing to investigate the case and present a coherent defense, stating that the vague allegation of general ineffectiveness does not offer specifics that could be analyzed under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1994)'s two prongs. The court denied relief on Mercouri's second claim that counsel was ineffective for failing to present evidence sufficient to warrant a jury instruction on the lesser-included offense of robbery. The court explained that Mercouri offered no other theoretical way that his attorney could have created a rational inference that there was no gun other than his own testimony; when Mercouri was asked directly if he wanted to testify, he responded that he did not. The court denied relief on his third claim that a juror-who expressed reservations during voir dire about a defendant who did not testify on his own behalf-should have been excused for cause. The court explained that although she (the juror) initially indicated she might have reservations, counsel pressed her further, and she stated on the record that she could be fair and afford the defendant the presumption of innocence and the right to remain silent. The court denied relief on Mercouri's final claim that his appellate counsel was ineffective in his direct appeal. Mercouri argued his counsel abandoned any and all other potentially meritorious issues and instead presented an argument "that was clearly not preserved for appeal." The court stated that Mercouri's speculation that there were other issues that could have been raised on appeal might be correct, but without identifying them specifically, the court could not apply the case law to them.

This timely appeal followed.

B. Standard of Review

We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Vaughn v. State , 2017 Ark. App. 241, at 7, 519 S.W.3d 717, 721. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.

Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Vaughn , 2017 Ark. App. 241, at 7, 519 S.W.3d at 721. In asserting ineffective assistance of counsel under Strickland , the petitioner must first demonstrate that counsel's performance was deficient. Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694. 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.

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Bluebook (online)
540 S.W.3d 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercouri-v-state-arkctapp-2018.