Nunn v. State , 473 S.W.3d 16 ( 2015 )

Cite as 2015 Ark. 394
SUPREME COURT OF ARKANSAS
No. CR-14-687
IKE SHAWNDALE NUNN Opinion Delivered October 29, 2015
APPELLANT
PRO SE APPEAL FROM THE
V. JACKSON COUNTY CIRCUIT COURT
[NO. 34CR-11-124]
STATE OF ARKANSAS HONORABLE HAROLD S. ERWIN,
APPELLEE JUDGE
AFFIRMED.
PER CURIAM
In 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.
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. McConochie, a psychiatrist, testify about his psychiatric disorder and physical
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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 (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.
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
1
Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should
be held in postconviction proceedings unless the files and record of the case conclusively show
that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State,
2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1
petition without an evidentiary hearing, it “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.” Ark. R.
Crim. P. 37.3(a); see Eason, 2011 Ark. 352. In the instant case, the circuit court’s order denying
postconviction relief complies with the requirements of Rule 37.3.
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290 (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. Henington 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.
On appeal, Nunn argues that his trial counsel was ineffective for failing to investigate the
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ramifications of his psychiatric impairment, for failing to hire or investigate the need for blood-
spatter and DNA experts, for failing to hire an investigator to identify 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
postconviction relief on any 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 conclusory, and conclusory allegations unsupported by facts do not provide a basis for
postconviction 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; 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
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of 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). Nunn has failed to establish he was entitled
to postconviction relief based on his claim that counsel was ineffective for failing to investigate
the ramifications of his purported psychiatric impairment.
Nunn also mentions for the first time on appeal the findings of Dr. Ahmad J. Janjua, who
evaluated him at the Toledo Hospital upon his admission after the murder. This argument was
not presented to the circuit court in Nunn’s original Rule 37 petition. All grounds for relief
pursuant to Rule 37 must be asserted in the original or an amended petition. Ark. R. Crim. P.
37.2. We do not consider issues that are raised for the first time on appeal. Jamett v. State, 2010
Ark. 28, 358 S.W.3d 874 (per curiam).
Nunn also claims that his counsel was ineffective for failing to investigate the need for
a blood-spatter or DNA expert. Nunn makes a conclusory claim that a blood-spatter expert
“would be able to prove [the] prosecution[’]s theory of death false[,]” and that his counsel failed
to present evidence or cross-examine witnesses regarding his blood as a secondary contributor
on the bat. These are both arguments raised for the first time in this appeal, and we will not
consider issues raised for the first time on appeal. Jamett, 2010 Ark. 28, 358 S.W.3d 874 (per
curiam). Furthermore, Nunn makes no assertion of how a blood-spatter expert’s testimony
would contradict the State’s evidence or inure to his benefit somehow changing the outcome of
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his trial, and his conclusory allegations unsupported by facts do not provide a basis for
postconviction relief. See Adams, 2013 Ark. 174, 427 S.W.3d 63. His claim regarding counsel’s
lack of evidence or cross-examination of witnesses regarding the DNA evidence is also of no
import, as the trial record reflects that counsel did cross-examine the State’s forensic DNA
examiner.2 Notwithstanding his claims to the contrary, such evidence would serve no purpose
in Nunn’s case, as he relied upon justification as the theory for his defense at trial, which
required that he admit the commission of the act itself. See, e.g., Harshaw v. State, 344 Ark. 129,
135, 39 S.W.3d 753, 757 (2001) (Upon charge of second-degree murder, the trial court could not
instruct the jury on manslaughter because appellant’s justification defense meant the appellant
admitted to at least knowingly shooting the victim.).
Nunn’s last two claims on appeal, trial counsel’s failure to hire an investigator to
interview potential witnesses and counsel’s failure to investigate “mitigating circumstances at
sentencing phase of trial[,]” are also raised for the first time on appeal, and we will not consider
issues raised for the first time on appeal. Jamett, 2010 Ark. 28, 358 S.W.3d 874. Moreover, both
of these claims of trial counsel’s failure to further investigate are vague and conclusory at best,
as he contends additional witnesses and testimony could have evinced his character and mind-set
during the period of time around the murder. However, the witnesses he states should have
been called to testify knew nothing of the crime itself and could only have purportedly offered
some information about his custodial situation with his children—hardly evidence that would
establish a different outcome at his first-degree murder trial. See Wertz v. State, 2014 Ark. 240,
2
This court takes judicial notice of the record on direct appeal, and it is not necessary to
supplement the record where the trial record provides an adequate record of what was
considered below. Davis v. State, 2013 Ark. 118 (per curiam).
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434 S.W.3d 895. Accordingly, the court’s denial of postconviction relief was not clearly
erroneous.
Based on the Strickland standard, we cannot say that 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. As stated, this court will uphold the judgment of the circuit court denying
postconviction relief unless the appellant demonstrates that the judgment was clearly erroneous.
To establish that the circuit court erred in finding that counsel was not ineffective, the petitioner
has the burden of overcoming the presumption by identifying specific acts and omissions that,
when viewed from counsel’s perspective at the time of trial, could not have been the result of
reasonable professional judgment. Thompson v. State, 2013 Ark. 179 (per curiam); see also Moore
v. State, 2014 Ark. 231 (per curiam). Nunn has not met that burden. Accordingly, the circuit
court’s order is affirmed.
Affirmed.
Ike Shawndale Nunn, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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