Strain v. State

2012 Ark. 42, 394 S.W.3d 294, 2012 WL 309606, 2012 Ark. LEXIS 58
CourtSupreme Court of Arkansas
DecidedFebruary 2, 2012
DocketNo. CR 10-888
StatusPublished
Cited by20 cases

This text of 2012 Ark. 42 (Strain 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
Strain v. State, 2012 Ark. 42, 394 S.W.3d 294, 2012 WL 309606, 2012 Ark. LEXIS 58 (Ark. 2012).

Opinion

PER CURIAM.

hAppellant Rickey C. Strain, Jr., was convicted by a Jefferson County jury of first-degree murder and was sentenced to 300 months’ incarceration in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Strain v. State, 2009 Ark. App. 99, 2009 WL 898117 (unpublished). Appellant then filed a petition for review in this court, which was denied. Strain v. State, CR 09-219 (Ark. May 14, 2009) (unpublished per curiam order).

Appellant subsequently filed in the trial court a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009), in which he argued that trial counsel had been ineffective for failing (1) to make a complete and thorough argument for a directed verdict, (2) to seek the appropriate jury instructions regarding accomplice liability, (3) to seek severance of appellant’s trial from his codefendant’s trial, and (4) to properly argue that a witness’s prior inconsistent statement could not be considered by the jury for the truth of the matter stated. That petition was denied following an evi-dentiary hearing, and appellant now brings the instant appeal of that denial. Because appellant has not established that the circuit court’s denial was clearly erroneous, we affirm.

12This court does not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Reed v. State, 2011 Ark. 115, 2011 WL 913208 (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. In an appeal from a trial court’s denial of post-conviction relief on a claim of 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 trial court clearly erred in holding that counsel’s performance was not ineffective. Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam); Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam). Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Reese v. State, 2011 Ark. 492, 2011 WL 5589268 (per curiam) (citing State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007)). Under the Strickland test, a claimant must show that counsel’s performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to such an extent that the appellant was deprived of a fair trial. See id.

With respect to the requirement that prejudice be established, a petitioner must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this | ^presumption by identifying specific acts or omissions of trial counsel that, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Carter v. State, 2011 Ark. 226, 2011 WL 1896765 (per curiam).

For his first point on appeal, appellant argues that trial counsel was ineffective for failing to make a complete and thorough motion for directed verdict, which prevented the appellate court from ruling on the sufficiency of the evidence. In its opinion affirming appellant’s conviction, the Arkansas Court of Appeals found that appellant’s insufficiency-of-the-evidence argument was not preserved because trial counsel’s directed-verdict motion “[did] not specifically state how the evidence was insufficient or even mention what element of the crime was not proven.” Strain, 2009 Ark. App. 99, at 4, 2009 WL 398117. Trial counsel’s motion was conclusory and, in effect, only argued that there was not any evidence “that could be used against these two defendants.” Arkansas Rule of Criminal Procedure 33.1(a) (2009) specifies that a motion that merely states that the evidence is insufficient does not preserve for appeal issues relating to a specific' deficiency, such as insufficient proof on the elements of the offense.

According to appellant, had counsel made a more specific motion for directed verdict — pointing out that no witnesses had testified that appellant had fired a gun, that there were inconsistencies between one witness’s police report and his testimony at trial, and that another witness was a crack dealer with a lengthy arrest record — “[t]he circuit court would have granted a dismissal or a reduction on such grounds and, if not, the appellate court would have reversed and dismissed.”

To prevail on a claim of ineffective assistance of counsel based on counsel’s failure to | ¿preserve an issue for appeal, a petitioner must show that, had the issue been preserved, the appellate court would have reached a different decision. See generally Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam) (appellant required to establish actual speedy-trial violation to show ineffective assistance based on counsel’s failure to preserve speedy-trial issue for appeal); Sparkman, 373 Ark. 45, 281 S.W.3d 277 (failure to preserve issue of suppression of a custodial statement for appeal was ineffective assistance where statement was actually taken in violation of Sixth Amendment right to counsel). In the instant case, therefore, appellant must demonstrate that the appellate court would have found that the evidence adduced at trial was insufficient to support a conviction and would have overturned his conviction for that reason.

This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52 (citing Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004)). The appellate court reviews the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Id. (citing Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002)). This court affirms a conviction if substantial evidence exists to support it. Stone, 348 Ark. 661, 74 S.W.3d 591. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Campbell v. Payne
W.D. Arkansas, 2022
William Edward Gray v. State of Arkansas
2021 Ark. App. 406 (Court of Appeals of Arkansas, 2021)
Frank Paul Campbell v. State of Arkansas
2020 Ark. App. 480 (Court of Appeals of Arkansas, 2020)
Frankie Von Holt v. State of Arkansas
2019 Ark. App. 432 (Court of Appeals of Arkansas, 2019)
Jeran Kyler Sorum v. State of Arkansas
2019 Ark. App. 354 (Court of Appeals of Arkansas, 2019)
Williams v. State
2019 Ark. App. 58 (Court of Appeals of Arkansas, 2019)
Russell v. State
2017 Ark. 174 (Supreme Court of Arkansas, 2017)
Strain v. State
2017 Ark. 104 (Supreme Court of Arkansas, 2017)
Beverage v. State
2017 Ark. 23 (Supreme Court of Arkansas, 2017)
Stover v. State
2016 Ark. 167 (Supreme Court of Arkansas, 2016)
Sherman v. State
2014 Ark. 474 (Supreme Court of Arkansas, 2014)
Stewart v. State
2014 Ark. 419 (Supreme Court of Arkansas, 2014)
Chunestudy v. State
2014 Ark. 345 (Supreme Court of Arkansas, 2014)
Conley v. State
2014 Ark. 172 (Supreme Court of Arkansas, 2014)
Hayes v. State
2014 Ark. 104 (Supreme Court of Arkansas, 2014)
Adams v. State
2013 Ark. 174 (Supreme Court of Arkansas, 2013)
Lowe v. State
2012 Ark. 185 (Supreme Court of Arkansas, 2012)
Springs v. State
2012 Ark. 87 (Supreme Court of Arkansas, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
2012 Ark. 42, 394 S.W.3d 294, 2012 WL 309606, 2012 Ark. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strain-v-state-ark-2012.