Chris Anthony Arnold v. State of Arkansas , 2022 Ark. 191 ( 2022 )

Cite as 2022 Ark. 191SUPREME COURT OF ARKANSAS
No. CR-22-176
Opinion Delivered: October 27, 2022
CHRIS ANTHONY ARNOLD
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-17-534]
STATE OF ARKANSAS
APPELLEE HONORABLE HERBERT T. WRIGHT,
JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
On September 20, 2017, a Pulaski County Circuit Court jury convicted appellant,
Chris Anthony Arnold, of first-degree murder in the death of Maureen Jones and sentenced
him to life imprisonment. We affirmed his conviction and sentence in Arnold v. State, 2018
Ark. 343, at 1–3, 561 S.W.3d 727, 728–29. The relevant facts as we recounted in Arnold’s
direct appeal are as follows:
Pauline Arnold (“Pauline”), Arnold’s mother and Maureen’s friend, regularly
attended a bible study at Indianhead Baptist Church in Sherwood on Wednesday
nights. Pauline stated that she and Maureen sat together at the bible study on
Wednesday, November 30, 2016, and then Maureen headed home. The next
morning, Pauline received a call from Lois Olsen (“Lois”), the church secretary,
because Maureen had not attended a church breakfast meeting. Pauline proceeded to
Maureen’s home to check on her. When Pauline arrived at the residence, she entered
through an unlocked back door and found Maureen in the hallway lying face down
and partially clothed with a feminine-hygiene pad between her legs. Pauline stated
that Maureen’s body felt cold, and she called 911. Lois and Gary Brewer (“Gary”) also
entered the home. Pauline and Gary covered Maureen with a blanket because “she
[wasn’t] decent.”
Officers from the Sherwood Police Department were dispatched to the
victim’s home to investigate a homicide. Detective Kisha Slaton testified at a pretrial
hearing that Pauline stated, “Well, my son was just over here [at the house fishing]
last night, and he didn’t say there was anything wrong with her.” Detective Slaton
asked Pauline to call Arnold and then told Arnold to meet the officers at the police
department for an interview. Emergency personnel later arrived and pronounced
Maureen dead at the scene. Officers observed bruising, blood, and possible trauma
to Maureen’s face. A dark-colored scarf was tied around her neck, and her
undergarments were found lying approximately five feet away. Officers also noticed a
chemical odor consistent with bleach. They retrieved an off-white piece of a latex glove
and a small blue piece of plastic and sent the two objects to the Arkansas State Crime
Laboratory for testing. An autopsy revealed that Maureen’s cause of death was ligature
strangulation. Subsequent testing revealed that Arnold’s DNA was present on both
of Maureen’s hands. Tests also confirmed the presence of Arnold’s DNA on the
pieces of latex glove and plastic.
Detective Slaton and Detective Frank Spence interviewed Arnold at the
Sherwood Police Department. In a statement to police, Arnold related that Maureen
had allowed him to use her flat-bottomed boat and that he had been fishing at her
house on the night of the murder. Arnold stated that he had seen Maureen feed her
cats and then fall down the back-porch steps. He also stated that her face was bleeding
and that he picked her up, carried her onto the porch, and placed her in front of a
chair so that she could sit down. He claimed that Maureen slapped him and said,
“[Y]ou don’t need to do this. I don’t need help[.]” According to Arnold, Maureen
walked into the house and began arguing with someone. He told the officer, “[S]he
was arguing with somebody, I don’t know who the hell it was. But I told Maureen I
was getting the hell out of there because she was getting cranky.”
On February 23, 2019, Arnold filed his Rule 37 petition alleging five grounds for
relief. Also on February 23, Arnold filed a motion for leave to file amended petition for
postconviction relief pursuant to Rule 37 stating that counsel had recently been retained and
the petition was filed as a “placeholder” petition in order to meet the deadline and requested
a 120-day extension. On April 9, the circuit court granted Arnold’s motion for leave to file
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an amended petition until May 15. On April 17, Arnold filed a motion to reconsider his
motion for leave requesting the full 120 days to file an amended petition. On April 24, the
circuit court denied Arnold’s motion to reconsider, and May 15 remained the deadline. On
June 13, the State responded to Arnold’s February 23rd Rule 37 petition. On June 18, the
circuit court granted Arnold an extension to file his reply. On July 3, Arnold filed a motion
to strike the State’s response or, alternatively, for extension of time to reply to the State’s
response. On July 8, Arnold filed a second motion to reconsider the circuit court’s April 9
order granting eighty-one days to file his amended petition. In the motion, Arnold stated
that he suspected prison officials were interfering with legal mail to Arnold, trial counsel had
not acted expeditiously in responding to Arnold’s requests, and counsel’s out-of-the-country
trip and professional obligations afforded him little time to comply with the May 15
deadline. On July 25, the circuit court denied Arnold’s second motion to reconsider and
motion to strike the State’s response and granted an extension of time for Arnold to reply.
On October 3, without holding an evidentiary hearing, based on Arnold’s petition
and the State’s response, the circuit court denied the following claims: (1) trial counsel was
ineffective for failing to investigate and present testimony by an independent DNA expert;
(2) trial counsel was ineffective for failing to present proof of Arnold’s physical disabilities
and limitations; (3) trial counsel was ineffective for failing to object to an improper closing
argument for the State;1 and (4) trial counsel was ineffective for failing to call witnesses to
1
Arnold did not appeal the circuit court’s denial of relief on this claim.
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testify regarding Arnold’s character. The circuit court set a hearing for Arnold’s remaining
claim alleging that trial counsel was ineffective for failing to investigate other possible
suspects, Robert Ozments and Tasha Bowling.
On November 8, 2021, the circuit court held a hearing on Arnold’s remaining claim
and on November 30, the circuit court entered an order denying Arnold’s claim regarding
counsel’s failure to investigate Ozments and Bowling as possible suspects. Arnold brings this
timely appeal and presents three points: (1) the circuit court erred in refusing to grant
Arnold’s repeated requests for a reasonable period of time to file an amended petition for
Rule 37 relief; (2) the circuit court erred in finding that Arnold received effective assistance
of counsel; and (3) the circuit court erred in denying three of Arnold’s claims without
holding an evidentiary hearing. We affirm.
I. Standard of Review
“On appeal from a trial court’s ruling on a petitioner’s request for Rule 37 relief, this
court will not reverse the trial court’s decision granting or denying postconviction relief
unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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.” Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74.
“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 [v. Washington,
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466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].” Henington v. State, 2012 Ark. 181,
at 3–4, 403 S.W.3d 55, 58. 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 290 (2007). A petitioner making an ineffective-
assistance-of-counsel claim must show that his counsel’s performance fell below an objective
standard of reasonableness. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. A court must
indulge in a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id.Second, the petitioner must show that counsel’s deficient performance so prejudiced
petitioner’s defense that he was deprived of a fair trial. Id. The petitioner must show 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. 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. Additionally,
conclusory statements that counsel was ineffective cannot be the basis for postconviction
relief. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783. Hinton v. State, 2019 Ark. 136, 7–
8, 572 S.W.3d 381, 386–87.
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With respect to an ineffective-assistance-of-counsel claim regarding the decision of
trial counsel to call a witness, such matters are generally trial strategy and outside the purview
of Rule 37.1. Banks v. State, 2013 Ark. 147, 2013 WL 1491272. When a petitioner alleges
ineffective assistance of counsel for failure to call witnesses, it is incumbent on the petitioner
to name the witness, provide a summary of the testimony, and establish that the testimony
would have been admissible into evidence. Wertz v. State, 2014 Ark. 240, at 4, 434 S.W.3d
895, 900 (citing Moten v. State, 2013 Ark. 503, 2013 WL 6327549 (per curiam)). To
demonstrate prejudice, the petitioner is required to establish that there was a reasonable
probability that, had counsel performed further investigation and presented the witness, the
outcome of the trial would have been different. Hickey v. State, 2013 Ark. 237, 428 S.W.3d
446. Trial counsel must use his or her best judgment to determine which witnesses will be
beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by
reasonable professional judgment. Id. Finally, “[w]hen 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 which experienced advocates could endlessly debate, and the fact that
there was a witness or witnesses that could have offered testimony beneficial to the defense
is not in itself proof of counsel’s ineffectiveness.” Johnson v. State, 325 Ark. 44, 49, 924
S.W.2d 233, 236 (1996) (internal citations omitted). “To review the circuit court’s order and
correctly determine this issue, we must look at all the evidence adduced at trial and at the
Rule 37 hearing. Howard, 367 Ark. 18, 238 S.W.3d 24.” Hinton v. State, 2019 Ark. 136, at
8–9, 572 S.W.3d at 387–88.
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With regard to a circuit court’s denial of an extension of time to file an amended
petition, “our rules of criminal procedure do allow for the amendment of a Rule 37 petition,
but only with leave of the court. Ark. R. Crim. P. 37.2(e). Our standard of review as to the
denial of leave to amend is abuse of discretion; we determine whether the circuit court’s
decision was arbitrary or groundless.” Adams v. State, 2013 Ark. 174, at 11–12, 427 S.W.3d
63, 70 (internal citations omitted). Abuse of discretion is a high threshold that does not
simply require error in the trial court’s decision, but requires that the trial court act
improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91, 161
S.W.3d 785 (2004); O’Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004).
Finally, “when a Rule 37 petition is denied without a hearing, the circuit court ‘shall
make written findings to that effect, specifying any parts of the files, or records that are relied
upon to sustain the court’s findings.’ See Marshall v. State, 2020 Ark. 66, 594 S.W.3d 78;
Ark. R. Crim. P. 37.3(a). Failure to make such findings is reversible error except when it can
be determined from the record that the petition is wholly without merit or when it is
conclusive on the face of the petition that no relief is warranted. Id.” Rayburn v. State, 2021
Ark. 98, at 8, 622 S.W.3d 155, 161–62. With these standards in mind, we turn to Arnold’s
appeal.
II. Points on Appeal
A. The Circuit Court Erred in Refusing to Grant Arnold’s Repeated Requests for a
Reasonable Period of Time to File an Amended Petition for Rule 37 Relief
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For his first point on appeal, Arnold contends that the circuit court erred in refusing
to grant Arnold’s requests for additional time to amend his Rule 37 petition. Arnold
requested 120 days, and the circuit court granted Arnold 81 days to amend his petition. In
its order denying postconviction relief, the circuit court denied Arnold’s request for
additional time:
If the Defendant had actual issues, he was given time to present them simply.
If they had merit, the Court would consider them and allow Defendant and counsel
to present evidence and facts in a Rule 37 hearing. . . . [I]nstead, counsel wished to
conduct a fishing expedition for cognizable issues that he might discover–not ones
that were already apparent. . . . The Court gave him a limited amount of time in
which he could have developed these “other potential issues as well.” Counsel for the
Defendant ultimately made no use of the additional time . . . nor did he file any reply
to the State’s Response. . . . The Court is convinced by counsel’s failure to make use
of the time given him–though it was less than requested–that he has identified no
additional issues beyond those presented in his initial Petition.
On appeal, Arnold contends that the time allotted was insufficient in a first-degree
murder case that was tried to a jury with multiple lawyers and involves a life sentence. Arnold
asserts the following to support his argument: his initial petition was filed by counsel without
the benefit of a review of the trial transcript; the eighty-one days granted is “bizarre”; and the
circuit court held firm to its deadline for his amended petition to be filed by May 15, 2019,
but then permitted the State to file its response in violation of the twenty-day deadline
imposed by Rule 37.2(f) of the Arkansas Rules of Criminal Procedure. Arnold further
contends that his counsel provided legitimate reasons why additional time was needed,
including, but not limited to, counsel being contacted to represent Arnold six days before
the deadline for the petition to be filed; counsel prepared and filed Arnold’s placeholder
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petition two days prior to the deadline without reviewing the transcript; counsel was hired
on March 7, 2019; counsel mailed Arnold multiple release forms for records from Arnold’s
trial counsel to sign and return which were delayed in transit and counsel did not receive
access to those files until June 17; and the circuit court granted time for Arnold to reply to
the State’s response but declined to allow Arnold to raise new issues or a “backdoor
expansion of the petition.” Based on this, Arnold contends that the circuit court abused its
discretion when it imposed an unreasonable deadline for counsel to file an amended
petition.
The State responds that despite being afforded additional time to file his amended
petition and additional time to file a reply to the State’s response, Arnold did not file an
amended petition or a reply. Further, the State responds that Rule 37.2(b) of the Arkansas
Rules of Criminal Procedure does not provide for placeholder petitions; rather, pursuant to
the rule, grounds for relief must be raised in the original petition unless the petition is denied
without prejudice. Finally, the State responds that, notwithstanding counsel’s reliance on
having been recently hired, counsel is an experienced attorney in this area, and the eighty-
one additional days was a reasonable amount of time to prepare an amended petition, and
the circuit court did not abuse it discretion.
Rule 37.2(b) provides in pertinent part: “[a]ll grounds for relief available to a
petitioner under this rule must be raised in his or her original petition unless the petition
was denied without prejudice.” Ark. R. Crim. P. 37.2 (2021) (emphasis added). Further, in
Walker v. State, 367 Ark. 523, 525, 241 S.W.3d 734, 737 (2006), we explained that in
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preparation of a postconviction petition, “a defendant’s own knowledge of discussions with
trial counsel, in combination with the record, would seem to provide a sufficient basis to
articulate any areas of concern as to counsel’s performance.” We held that the circuit court
did not abuse its discretion by requiring Walker to state with specificity the areas of concern
about trial counsel’s performance before it requires trial counsel to provide the files. In
Walker, Walker did not gain access to trial counsel’s files at all.
Here, counsel met with Arnold multiple times. Also, despite eventually obtaining
trial counsel’s files, Arnold failed to identify any claim that could have been brought if he
had been granted more time. Despite extensions of time to file an amended petition and a
reply to the State’s response, Arnold did not file additional pleadings after his initial petition,
nor did he identify how additional time would have aided in his preparation. Finally, Arnold
contends that the circuit court played favorites by allowing the State to file a response 110
days after he filed his original petition. However, the State was not required to file a response,
and the State’s response was filed twenty-nine days after the deadline for filing the amended
petition. Based on the record before us, we do not find merit in Arnold’s argument that the
circuit court abused its discretion when it granted Arnold eighty-one days to file his amended
petition. We affirm the circuit court on this point.
B. The Circuit Court Erred in Finding that Arnold Received Effective
Assistance of Counsel and the Circuit Court Erred in
Denying Claims Without an Evidentiary Hearing
We now turn to Arnold’s claims of ineffective assistance of counsel. For his second
and third points on appeal, Arnold asserts that the circuit court erred in denying relief by
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finding that Arnold received effective assistance of counsel on four claims and also asserts
that the circuit court erred when it denied relief without holding an evidentiary hearing on
three of the four claims.
1. Claim A: DNA expert
For his first subpoint, Arnold contends that the circuit court erred in finding that he
failed to show that counsel was ineffective for failing to present an independent DNA expert
to support Arnold’s third-party-guilt theory. Arnold further contends that the circuit court
erred when it denied his claim without holding a hearing. The circuit court denied the claim
as follows:
Defendant does not suggest who this DNA might have belonged to. He simply
asserts that calling a rebuttal expert would have met both prongs of Strickland. The
Court is not convinced that it meets either prong. . . . Defendant has not named any
potential DNA expert who would have testified to what he alleges, he provides no
summary, and he offers nothing to show that this theoretical testimony would have
been admissible. This claim fails the first prong of Strickland . . . Without showing
what this testimony would have been beyond simply pointing to an illusory third
party, the Court finds that any further such testimony would simply have been
cumulative. It would not have changed the result at trial, and thus the second prong
of Strickland is likewise not satisfied.
Arnold asserts that DNA evidence was crucial to the State’s case; that defense counsel
had a professional duty to investigate the presence of the DNA that was not Arnold’s; and
that counsel had a duty to seek DNA testing and utilize the results to demonstrate to the
jury that Arnold was not the only person present at the victim’s home the night of the
murder. Arnold contends that if counsel had done this there is a reasonable probability that
the result of the trial could have been different. Finally, Arnold asserts that the circuit court
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engaged in speculation that counsel made a strategic decision on this claim and urges this
court to reverse the circuit court.
Here, a review of the record demonstrates that defense counsel hired an independent
DNA expert, Dr. Robert Reese. The record further demonstrates that Dr. Reese was
identified and consulted during the trial, specifically during the testimony of the State’s DNA
expert witnesses. Further, Arnold has failed to explain how further investigation or
presentation of additional testimony may have supported his argument. Based on this,
Arnold has failed to meet his burden under the first Strickland prong because he has not
demonstrated that his trial counsel’s performance fell below an objective standard of
reasonableness. The record demonstrates that counsel did, in fact, consult with an
independent DNA expert. Because we conclude that the performance of Arnold’s trial
counsel was not deficient, we need not address the prejudice requirement, which is the
second prong under Strickland. Hinton, supra.
Finally, Arnold contends that the circuit court should have conducted an evidentiary
hearing on this issue. We do not find merit in this argument. Here, based on the record and
our discussion above, the circuit court specifically referred to the record relied upon.
Accordingly, the circuit court’s decision to deny Arnold’s petition on this point was not
clearly erroneous because the record demonstrates that Arnold’s claim is wholly without
merit and we affirm.
2. Claim B: other possible suspects
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For his second subpoint, Arnold contends that the circuit court erred when it rejected
his claim that his trial counsel was ineffective by failing to investigate other possible suspects,
specifically Robert Ozments and Tasha Bowling. Arnold alleged that Ozments and Bowling
lived near Maureen and the church; up until the murder, the two had been borrowing money
from Maureen which Maureen had recently put an end to; and after Maureen’s murder, the
two asked the pastor questions about what was found at the crime scene. Ozments and
Bowling also asked the pastor for funds to travel, and both left the State the day after the
murder. Arnold contends that both individuals informed church members that they would
not be returning to the state. Arnold alleges that trial counsel was made aware of these
suspicious activities but failed to conduct any independent investigation. Arnold further
alleged that additional unidentified individuals had been going to Maureen’s house in the
weeks prior to her death—harassing her by knocking on her windows and doors at night—
and trial counsel did not investigate this either. Arnold contends that trial counsel’s alleged
lack of investigation into other possible suspects was ineffective representation and that he
was prejudiced. After a hearing on this claim, the circuit court denied Arnold relief:
Defendant’s counsel at trial, . . . Qualls . . . testified that he made multiple
calls to the Defendant and visited him in the jail thirteen times during trial
preparations. His co-counsel [Lott Rolfe] generally accompanied him on these visits.
. . . He testified that he did investigate the Defendant’s claims about Ozments and
Bowling. . . . [Qualls] interviewed the deacon and pastor of the church about them.
Neither pastor nor deacon tied the couple to the red truck the Defendant claimed
was seen at the time of the crime. The Defendant’s mother informed Qualls the
couple had gone to a town in Mississippi that Qualls discovered did not exist. He
found a town with a very similar name where a church was located that the couple
were alleged to be attending or involved with in some manner. The pastor of this
church had never heard of the couple, and he received no useful information.
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...
Qualls [also] testified that he [investigated] . . . the victim’s alleged harassment
by an unknown party. He and co-counsel canvassed the neighborhood interviewing
the victim’s neighbors trying to find information about this harassment but were
unsuccessful. . . . Qualls testified that the details given by the Defendant regarding
[a] red truck changed constantly and that the neighbors never saw any truck other
than the Defendant’s which was parked behind the home around the time of the
murder instead of his customary practice of parking in front of the house.
...
[Rolfe’s] testimony matched Qualls’ in that he stated he made many visits to
the Defendant . . . that he canvassed the neighborhood with Qualls, and that nobody
had seen any red truck. Rolfe testified that Qualls investigated the couple and hit a
dead-end in Mississippi. Rolfe testified that they considered every scenario but none
of the Defendant’s theories of the case lined up with the evidence or struck them as
credible.
The circuit court also found Arnold’s counsel’s decision not to procced further was a
reasonable strategic decision and even if counsel had proceeded, the outcome would not
have been different.
Arnold contends that his counsel should have conducted a more thorough
investigation and traveled to Mississippi where it was alleged the couple were residing.
Arnold alleges that despite visiting with Arnold multiple times in jail prior to trial, counsel’s
investigation consisted of one phone call, and such was not a strategic or reasonable decision.
Rather, Arnold contends that counsel’s investigation was negligent, that it was not effective
representation, and that Arnold suffered prejudice and but for counsel’s errors and
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omissions, there is a reasonable probability that the jury would have found there were other
likely suspects in this case.
Here, counsel testified that they investigated Ozments and Bowling and other
suspects by canvassing Maureen’s neighborhood multiple times and interviewing witnesses.
Counsel also testified that they contacted the church in Mississippi where the two individuals
were reportedly going and spoke with two different church personnel who reported not
knowing Ozments and Bowling or their whereabouts. Counsel further testified that they
followed up on Arnold’s mother’s report of individuals harassing Maureen at night and
Arnold’s report about the red truck. Counsel testified that after multiple attempts to identify
information about Ozments, Bowling, and other witnesses, they reached a dead end on their
investigation. Based on the record before us, we cannot say the circuit court erred. Arnold
has failed to prove that his counsel’s performance fell below an objective standard of
reasonableness. Because we conclude that the performance of Arnold’s trial counsel was not
deficient, we need not address the prejudice requirement. See Hinton. Accordingly, we affirm
the circuit court on this point.
3. Claim C: Arnold’s physical disabilities
For his third subpoint, Arnold contends that the circuit court erred in denying his
claim that he received ineffective assistance of counsel when his counsel failed to present
evidence of Arnold’s physical disabilities. The circuit court denied Arnold’s claim, stating in
pertinent part,
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[T]he testimony presented at trial was that the Defendant did odd jobs around
the house for the victim, that he could drive and fish, and that he occasionally
performed caretaking duties at the church he attended with the victim. Additionally,
the victim herself was in frail condition. . . . It strains credulity that the Defendant
would not have been able to strangle a frail, elderly woman, regardless of his own
alleged infirmities. The only allegation regarding the Defendant’s current physical
condition in the Petition is that he sometimes walks with a cane. The Defendant has
provided no further evidence of this purported physical disability. The Court cannot
say that failure to advance this theory, if a failure at all, would have changed the result
at trial.
Arnold claims that his counsel failed to present proof of Arnold’s physical disabilities
and limitations, which would have prevented him from inflicting the type of attack that
occurred in this case. Arnold asserts that the evidence in this case suggested that the attack
on Maureen required physical strength that Arnold did not have. Arnold asserts that trial
counsel was aware of Arnold’s physical limitations but, inexplicably, never followed up on
the issue; never explored the possibility that his physical limitations prevented him from
attacking Maureen; and never looked at Arnold’s medical records or consulted with Arnold
or a medical expert to render an opinion. Arnold alleges that his counsel’s failures in this
case were therefore not based on reasonable strategy or trial tactics, and regardless of whether
the jury believed Arnold was present that evening, proof of Arnold’s physical condition
would have created reasonable doubt as to whether Arnold was physically capable of
committing the crime. The State responds that the record establishes Arnold performed odd
jobs, operated Maureen’s flat-bottom boat and fished on the lake and helped Maureen—
whom Arnold described as “quite heavy”—up onto the porch after she had fallen.
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Here, the record demonstrates that Arnold failed to present witnesses or evidence
regarding his physical disabilities. Instead, the only allegation regarding Arnold’s current
physical condition is that at times, Arnold walks with a cane. Arnold provided no further
evidence of his alleged physical limitations. It is incumbent on the petitioner to name the
witness, provide a summary of the testimony, and establish that the testimony would have
been admissible into evidence. See Wertz. Accordingly, based on our standard of review and
the record before us, Arnold has failed to meet the first prong of the Strickland standard.
Because we conclude that the performance of Arnold’s trial counsel was not deficient, we
need not address the prejudice requirement. See Hinton.
Finally, Arnold contends that the circuit court should have conducted an evidentiary
hearing on this issue. We are unpersuaded. Here, based on the record and our discussion
above, the circuit court specifically referred to the record relied upon. Accordingly, the
circuit court’s decision to deny Arnold’s petition on this point was not clearly erroneous,
and we affirm.
4. Claim E: Arnold’s character
For his fourth subpoint, Arnold contends that the circuit court erred when it denied
relief, alleging that his trial counsel was ineffective for failing to call witnesses to testify
regarding Arnold’s character. Arnold contends that if counsel had called witnesses
“including Gary Brewer, Pastor Mike Boyd, and others[,]” they all could have testified that
Arnold worked at the church; that he had a good relationship with Maureen; Maureen was
a close friend of Arnold’s mother; that he often took care of Maureen ’s husband prior to
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his death; and that Arnold had no violent tendencies. Arnold contends that his counsel’s
failure to call these character witnesses was ineffective representation, and but for counsel’s
errors, there is a reasonable probability that the jury would have reached a different result.
In denying this claim, the circuit court found in pertinent part: “Defendant names two
witnesses and speculates about others, recites what their testimony ‘could’ have been, and
makes no showing that it would have been admissible. . . the Defendant has not overcome
his burden in showing that such testimony, if presented, would have changed the outcome.”
Here, the record demonstrates that Arnold named two witnesses and identified what
their testimony could have been but did not provide a summary of their testimony or address
admissibility. Further, the witnesses would have been subject to cross-examination as prior
evidence of Arnold’s bad acts would have been allowed on cross-examination. Reel v. State,
288 Ark. 189, 702 S.W.2d 809 (1996). Although Arnold contends that the circuit court’s
comments about the existence of any such bad acts is “rank speculation and conjecture,” a
forensic evaluation revealed that he had methamphetamine, marijuana, and drug
paraphernalia in his home and that Arnold pled no contest to theft by receiving in 2004.
We also note that during the guilt phase at trial, the jury heard from Lisa Olsen, who testified
that Maureen was Pauline’s best friend. During the sentencing phase, Pauline Arnold,
Arnold’s mother, testified regarding Arnold’s peaceful nature, that he was a member of the
church, that Arnold had helped Maureen’s disabled husband get in and out of bed prior to
his death; and that he had never hurt anyone. Ritchie Arnold, Arnold’s brother, also testified
during sentencing that Arnold was a good person, would help anybody and do anything for
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people, and was trustworthy and a hard worker. Jeanine Arnold, Arnold’s wife, testified that
Arnold was a good father and a good, sweet person. Accordingly, based on our discussion
above, Arnold has failed to meet his burden under the first Strickland prong because he has
not demonstrated that his trial counsel’s performance fell below an objective standard of
reasonableness. Finally, Arnold contends that the circuit court should have conducted an
evidentiary hearing on this issue. We disagree. The record demonstrates that the circuit court
specifically referred to the record relied upon. Accordingly, based on the record before us,
we do not find error and affirm the circuit court on this point.
Based on our standard of review, the circuit court did not err in denying Arnold’s
petition for post-conviction relief, and we affirm.
Affirmed.
Craig Lambert, for appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.
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