Nunn v. State

2015 Ark. 394, 473 S.W.3d 16, 2015 Ark. LEXIS 596
CourtSupreme Court of Arkansas
DecidedOctober 29, 2015
DocketCR-14-687
StatusPublished

This text of 2015 Ark. 394 (Nunn 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
Nunn v. State, 2015 Ark. 394, 473 S.W.3d 16, 2015 Ark. LEXIS 596 (Ark. 2015).

Opinion

PER CURIAM'

hln 2012, appellant Ike Shawndale Nunn was found guilty by a jury of first-degree murder and was sentenced to 480 months’ imprisonment. At trial, the State introduced into evidence the blood-stained baseball bat used to kill the victim, photographs depicting a bloody crime scene, and autopsy photographs of the victim. On appeal, Nunn did not challenge the sufficiency of the evidence. Instead, he contended that the trial court erroneously denied his motion to exclude the autopsy photographs. The Arkansas Court of Appeals affirmed. Nunn v. State, 2013 Ark. App. 282, 2013 WL 1857927.

Subsequently,' Nunn timely filed a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) in the circuit court. He argued that his trial counsel was ineffective for the following reasons: counsel failed to present evidence that Nunn did not kill his stepfather with malice aforethought to support a finding of guilty for first-degree murder; counsel failed to investigate an “emotional disturbance defense[;]” counsel did not have Dr. McCo-nochie, a psychiatrist, testify about his psychiatric ■ disorder and physical | ¡¿impairments; counsel caused him to be prejudiced by counsel’s cross-examination of the Toledo Hospital’s witnesses;, counsel failed to object to text messages to Peggy Nunn; counsel did not subpoena phone records; .and counsel failed to object to the. prosecutor’s closing argument. The circuit court denied the petition without a hearing, 1 and Nunn timely lodged an appeal of that order in this court.

When considering an appeal from a circuit court’s denial of 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 so 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 |a290 (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. Hen-ington 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 errors.. 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'; Nunn argues that his trial counsel was ineffective for failing to investigate the | ramifications of his psychiatric impairment, for failing to hire or" investigate the need for bloodspatter and DNA experts, for failing to hire an investigator to idéntify and interview potential witnesses, and for failing to investigate “mitigating circumstances at [the] sentencing phase of trial.” "Contrary to' Nunn’s arguments, he failed to establish that he was entitled to postconvictioñ relief' oh ány of his claims.

Regarding Nunn’s claim that trial counsel was ineffective for failing to investigate the. ramifications of his psychiatric impairment, Nunn appears to quote extensively a decision from the Social Security Administration, which referred to an evaluation made by the consultative examiner, Dr. William McConochie. Although a report by Dr. McConochie was referenced in Nunn’s petition below — with no report attached below or on appeal — it was a bare allegation without any substantiation or any specific assertion outside a generalized claim that the testimony would support a finding that he suffered from mental-health impairments. Allegations alone do not meet the burden of establishing an ineffective-assistance claim. See Camp v. State, 2015 Ark. 90, 457 S.W.3d 276. Outside of his assertion that Dr. McConochie’s report would reference his mental and physical impairments for Social Security purposes, Nunn’s assertions are concluso-ry, and conclusory allegations unsupported by facts do not provide a basis for postcon-viction relief. See Adams v. State, 2013 Ark. 174, 427 S.W.3d 63.

Moreover, even had -Nunn provided some evidence of the existence of an evaluation by Dr. McConochie, he still bore the burden of proving it would support the affirmative defense of mental’ disease or defect below, had his counsel raised it as a defense below and thus he was prejudiced. See Kaufman v. State, 2013 Ark. 126, 2013 WL 1279077; see also Williams v. State, 2009 Ark. 433, at 3, 373 S.W.3d 237, 239 (While appellant was granted a mental evaluation, he did not raise the defense | fiof mental disease or defect during trial.). Additionally, Nunn makes no argument or assertion of how an administrative decision by the federal government that he was entitled to assistance amounted to proof that he had a . mental disease or defect. See generally Bowden v. State, 328 Ark. 15, 940 S.W.2d 494 (1997). Bald statements of a history of psychiatric treatment and alcoholism or other addiction are not sufficient to establish the existence of a mental disease or defect. See Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999).

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Harshaw v. State
39 S.W.3d 753 (Supreme Court of Arkansas, 2001)
Williams v. State
251 S.W.3d 290 (Supreme Court of Arkansas, 2007)
Nance v. State
4 S.W.3d 501 (Supreme Court of Arkansas, 1999)
Howard v. State
238 S.W.3d 24 (Supreme Court of Arkansas, 2006)
Jamett v. State
2010 Ark. 28 (Supreme Court of Arkansas, 2010)
Moore v. State
2014 Ark. 231 (Supreme Court of Arkansas, 2014)
Wertz v. State
2014 Ark. 240 (Supreme Court of Arkansas, 2014)
Camp v. State
2015 Ark. 90 (Supreme Court of Arkansas, 2015)
McCraney v. State
2010 Ark. 96 (Supreme Court of Arkansas, 2010)
Williams v. State
2009 Ark. 433 (Supreme Court of Arkansas, 2009)
Hayes v. State
2011 Ark. 327 (Supreme Court of Arkansas, 2011)
Abernathy v. State
2012 Ark. 59 (Supreme Court of Arkansas, 2012)
Henington v. State
2012 Ark. 181 (Supreme Court of Arkansas, 2012)
Holloway v. State
2013 Ark. 140 (Supreme Court of Arkansas, 2013)
Taylor v. State
2013 Ark. 146 (Supreme Court of Arkansas, 2013)
Adams v. State
2013 Ark. 174 (Supreme Court of Arkansas, 2013)
Bowden v. State
940 S.W.2d 494 (Supreme Court of Arkansas, 1997)

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Bluebook (online)
2015 Ark. 394, 473 S.W.3d 16, 2015 Ark. LEXIS 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunn-v-state-ark-2015.