Roscoe Fletcher v. State of Arkansas

2019 Ark. App. 585

• Court: Court of Appeals of Arkansas
• Decided: December 11, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 585 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.09 11:57:45 DIVISION II -05'00' No. CR-19-199 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: December 11, 2019

ROSCOE FLETCHER APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. FOURTH DIVISION [NO. 60CR-16-1477] STATE OF ARKANSAS APPELLEE HONORABLE HERBERT T. WRIGHT, JR., JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Appellant Roscoe Fletcher 1 appeals from the Pulaski County Circuit Court’s denial

of his petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Fletcher raises

two points on appeal: (1) the trial court erred in failing to find that trial counsel was

ineffective when she failed to investigate alibi witnesses, failed to put on an alibi defense,

and failed to call alibi witnesses to testify at trial; and (2) the trial court erred when it abruptly

moved the date of his evidentiary hearing and would not allow him sufficient time to put a

witness on notice so she could attend and testify at the hearing. We affirm the denial of

postconviction relief.

1 Fletcher refers to himself as both “Roscoe Fletcher, Jr.” and “Roscoe Fletcher, Jr. III.” I. Ineffective Assistance of Counsel

In an appeal from a trial court’s denial of a petition for postconviction relief under

Rule 37.1, the sole question presented is whether, based on the totality of the evidence, the

trial court clearly erred in holding that counsel’s performance was not ineffective under the

standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the two-prong

Strickland test, a petitioner raising a claim of ineffective assistance of counsel must first show

that counsel made errors so serious that counsel was not functioning as the “counsel”

guaranteed by the Sixth Amendment. Bond v. State, 2013 Ark. 298, 429 S.W.3d 185. The

petitioner must also show that counsel’s performance fell below an objective standard of

reasonableness. Id. There is a strong presumption that trial counsel’s conduct falls within the

wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123

(2000). The appellant has the burden of overcoming that presumption by identifying the

acts and omissions of trial counsel, which, when viewed from counsel’s perspective at the

time of trial, could not have been the result of reasonable professional judgment. Hickey v.

State, 2013 Ark. 237, 428 S.W.3d 446.

With respect to the second prong of the Strickland test, the petitioner must show that

counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial.

Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. Such a showing requires that the

petitioner demonstrate a reasonable probability that the fact-finder’s decision would have

been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient

to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both

showings, it cannot be said that the conviction resulted from a breakdown in the adversarial

2 process rendering the result unreliable. Id. There is no reason for a court deciding an

ineffective-assistance-of-counsel claim to address both components of the Strickland standard

if the petitioner makes an insufficient showing on one of the prongs. Id.

II. Procedural History and Background

At trial, the testimony revealed that on the evening of March 20, 2016, Willie Wilson

was visiting in the home of his friend, Cassyophis Williams, when two men—a younger

man with dreadlocks and an older man wearing masks and carrying guns—entered

Williams’s residence and robbed them. At trial, Wilson identified Fletcher as the older

robber. A Pulaski County jury convicted Fletcher of aggravated residential burglary, theft

of property, and aggravated robbery. He was sentenced as a habitual offender to an aggregate

term of forty-one years’ imprisonment. We affirmed his convictions on direct appeal to this

court. Fletcher v. State, 2018 Ark. App. 113, 543 S.W.3d 547.

Fletcher then filed a petition for postconviction relief, arguing that trial counsel,

Brandy Turner, had provided ineffective assistance because she failed to investigate and

interview two potential witnesses: his girlfriend and alibi, Charlotte Garrett, and an alleged

co-perpetrator, Lisa Overton. 2

An evidentiary hearing was scheduled for October 3, 2018, but the date was later

changed to October 2. At the hearing, Turner and Garrett testified. Officer Matthew Peach

testified as well. Turner testified that she had reviewed Officer Peach’s incident report prior

to trial and saw that Garrett had told him that a young black male with light skin and

2 Fletcher contends that both victims alleged that Overton played a critical role in the robbery in that she had knocked on Williams’s door and allowed the robbers to push past her into the home.

3 dreadlocks named Brandon had been at her house with Fletcher earlier on the evening of

the robbery. Turner stated that this description matched a victim’s description of one of the

two robbers. Turner testified that, although she had spoken with Garrett at one of Fletcher’s

court appearances, she did not think calling Garrett to testify at trial was a good idea because

her testimony could have hurt Fletcher’s case. Turner pointed out that the only victim who

was permitted to testify and could identify Fletcher was Wilson, who was a convicted drug

dealer. The other victim was not permitted to testify because she had tested positive for

cocaine. Turner testified that not calling Garrett was trial strategy because the State could

have “impeached” Garrett with what she had initially told investigators.

Turner testified that she did not interview Overton because she could not locate her.

Turner stated that no one had an address or a phone number for Overton. Turner said that

she, her investigator, and the prosecutor had tried to find Overton without success. When

Fletcher asserted that Overton had been sent back to prison, Turner testified that she was

unaware of that. Turner later testified that, even if she had found Overton, Overton could

have potentially identified Fletcher as one of the robbers.

Garrett testified that Fletcher was at home in bed with her when police came to

search her house and that Fletcher had not left the house that night. She denied telling

Officer Peach that Fletcher had a friend named Brandon who had visited before the robbery

and denied giving a description of that friend. She likewise denied later telling Detective

Goree that Fletcher had been with a man named Brandon.

After Garrett was excused, Fletcher said that he would like to call Overton to the

stand but did not see her in the courtroom. The trial court asked whether he had subpoenaed

4 her, and Fletcher said that he thought the prosecutor had. The prosecutor launched into a

lengthy explanation detailing his unsuccessful efforts to locate Overton. When the

prosecutor said that he was able to locate Garrett to notify her of the new hearing date,

Fletcher said, “If I’m not mistaken, I want to say Miss Overton thinking it’s tomorrow, too,

‘cause they was totally thinking it was the third.” The trial court asked Fletcher whether he

had communicated with Overton, and he responded, “I talked to her son, and her son said

that she was gonna be here on the third, but that was before we knew it was gonna be

today. And I had no way of calling her once I left, you know, prison.” The hearing

proceeded without Overton.

Officer Peach testified that Fletcher admitted being at the victim’s house before the

robbery but insisted that he had left shortly afterward, which was contrary to Garrett’s earlier

testimony. He also said that Fletcher had asserted that the two victims owed money to drug

dealers and that it was drug dealers who had robbed the victims. Officer Peach testified that

Fletcher claimed to have seen two men running from the direction of the victim’s home

but did not explain how he could have seen them when he was in bed asleep with the blinds

closed, as testified to by Garrett. Officer Peach said that Fletcher had denied knowing

anyone named Brandon but said that his friend, “Mack,” had visited earlier that evening. 3

In its November 6, 2018 order, the trial court denied Fletcher’s claim as it related to

Garrett because not calling her to testify was a matter of trial strategy in that the witness

3 Fletcher argues in his brief on appeal that, without both a written and recorded statement from him and without a Miranda-rights waiver form signed by him, Officer Peach’s testimony about statements he (Fletcher) made were inadmissible hearsay, to which Turner should have objected at trial. Because Fletcher is making this argument for the first time on appeal, we do not consider it. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003).

5 would have been confronted with her prior statements given to police. The trial court also

denied Fletcher’s claim with respect to Overton. The court noted that there was no trial

strategy involved in the decision—trial counsel simply had no access to Overton because

she could not be located.

III. Discussion

A. Alibi Witnesses

Fletcher argues that he had given Turner the names of both Garrett and Overton

and had asked her to interview them and call them as alibi witnesses at his trial. According

to Fletcher, trial counsel was ineffective for not investigating and calling these witnesses to

testify. The decision of trial counsel to call a witness is generally a matter of trial strategy

that is outside the purview of Rule 37.1. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).

Trial counsel must use his or her best judgment to determine which witnesses will be

beneficial to his or her client. Id. When assessing an attorney’s decision not to call a particular

witness, it must be taken into account that the decision is largely a matter of professional

judgment that experienced advocates could endlessly debate. Adams v. State, 2013 Ark. 174,

427 S.W.3d 63. The fact that there was a witness or witnesses who could have offered

testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Id. Even

if another attorney may have chosen a different course, trial strategy is a matter of

professional judgment even if it proves unsuccessful. Hickey, supra.

Fletcher notes that Turner admitted she would not have called Garrett to testify,

even if she had interviewed her, because of contradictory statements Garrett had allegedly

given to police. Fletcher points out that those statements in Officer Peach’s incident report

6 had not been recorded and that Garrett had not written and signed the statements herself.

He contends that Officer Peach’s testimony at trial about what Garrett told him would have

been inadmissible hearsay—likewise with Detective Goree. Fletcher asserts that, in any

event, the jury could have believed Garrett, who had no criminal record, instead of Officer

Peach and a victim with a criminal record.

We agree with the trial court that not calling Garrett to testify amounted to

reasonable trial strategy on Turner’s part. Garrett’s testimony could have hurt Fletcher’s case.

Officer Peach’s incident report contained statements attributed to Garrett, which were made

contemporaneously with the opening of the investigation into the crimes. One of those

statements contained a detailed description of Fletcher’s friend, which matched a victim’s

description of one of the two robbers. Moreover, Garrett testified that she is still Fletcher’s

girlfriend. We cannot say that the trial court clearly erred in finding that trial counsel was

not ineffective for not calling Garrett as an alibi witness because she had an obvious bias,

and her credibility could have been damaged with prior statements she had given to police.

Fletcher did not raise an argument below that Officer Peach’s testimony about Garrett’s

statements would have been inadmissible hearsay. An appellant cannot change the grounds

supporting a claim of ineffective assistance of counsel for the first time on appeal. Pollard v.

State, 2014 Ark. 226 (per curiam).

Although Fletcher also refers to Overton as an alibi witness on appeal, he did not

characterize her as such in his Rule 37 petition. Indeed, she could not have provided an

alibi for Fletcher. According to Fletcher, Overton would have testified only that she did not

participate in any robbery and knew absolutely nothing about the robbery. Fletcher surmises

7 that, because the State did not charge Overton with a crime in connection to the robbery,

the State must have believed that she had not committed a crime. Fletcher concludes that

Overton’s testimony, together with the State’s refusal to charge her with a crime, would

have created a “major discrepancy” in the victims’ statements and would have undermined

the testimony of the only victim to testify at trial.

We agree with the trial court’s decision not to fault Turner for failing to interview

Overton and call her as a witness at trial because Turner had no access to Overton.

According to Turner’s testimony, she and her investigator did attempt to locate Overton.

The prosecutor searched for Overton as well. Turner could not interview and call as a

witness someone who appeared to be evading detection. It also appears from Fletcher’s

comments to the trial court that he was generally aware of Overton’s whereabouts but did

not share that information with trial counsel. We agree with the trial court that Turner was

not ineffective for not interviewing and calling to testify a witness she could not find.

B. Continuance

Fletcher argues that Overton did not get the opportunity to give her testimony

because the trial court did not provide her with notice of the new hearing date. Fletcher

states that, no matter who is at fault for not ensuring that Overton received notice, the trial

court could have easily set another hearing date. Fletcher asserts that he was denied his right

to develop the factual bases for his claims because the trial court did not continue the

hearing. Fletcher, however, did not request a continuance to secure Overton’s presence at

the hearing. The trial court could not have erred in failing to grant relief that was not sought.

Affirmed.

8 GRUBER, C.J., and HARRISON, J., agree.

Roscoe Fletcher, Jr., pro se appellant.

Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.