Conley v. State , 433 S.W.3d 234 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CR-13-21
VERNELL R. CONLEY Opinion Delivered April 17, 2014
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. CR2009-2046-1]
STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY,
APPELLEE JUDGE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART WITH
DIRECTIONS.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Vernell R. Conley appeals the order entered by the Washington County
Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of
Criminal Procedure 37.1. For reversal, he contends that the circuit court erred in finding
that he did not receive ineffective assistance of counsel when his trial attorney (1) failed to
produce testimony that was promised in opening statement; (2) neglected to make proper
motions for directed verdict; and (3) failed to request a severance of the charges. We affirm
on the first point; reverse and remand on the second issue with directions to dismiss the
charges for possession of a controlled substance and possession of drug paraphernalia; and we
do not reach the third point.
By amended felony information, the prosecuting attorney in Washington County
charged Conley with delivery of a controlled substance (crack cocaine); possession of a
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controlled substance (marijuana) with intent to deliver; and possession of drug paraphernalia
(digital scales). The information also alleged that Conley was an habitual offender with more
than four previous felony convictions. Conley stood trial before a jury in the circuit court on
August 26, 2010. The State’s evidence disclosed that Conley delivered 0.5813 grams of crack
cocaine to undercover police officers, who were associated with the drug task force in
Madison and Washington Counties. According to the testimony, the delivery occurred on
the evening of September 15, 2009, at a park in Fayetteville. However, the officers did not
arrest Conley until November 6, 2009. On that date, the officers also executed a search
warrant at Conley’s home, where they discovered 32.5 grams of marijuana in a plastic bag and
a set of digital scales. Both the marijuana and the scales were located in the laundry room on
top of a cabinet above the washer and dryer. One officer testified that marijuana was also
found in the master bedroom of the home, but there was no further testimony indicating
where the marijuana was located in that room. Neither Conley nor any of his family
members were at home when the officers arrived to execute the warrant, although the police
later transported Conley to the home during the search. An officer also testified that
additional surveillance was conducted of the home following Conley’s arrest and that no
further drug activity was observed.
The jury found Conley guilty of delivery of crack cocaine and possession of the digital
scales, as drug paraphernalia. The jury acquitted Conley of possession of marijuana with
intent to deliver and instead found him guilty of the lesser-included offense of possession of
marijuana. At the sentencing phase of trial, the State introduced evidence that Conley had
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previously been convicted of twelve felonies. As an habitual offender, he received sentences
of sixty years for delivery, six years for possession of a controlled substance, and thirty years
for possession of drug paraphernalia. The circuit court directed the possession offenses to run
concurrently and that those convictions be served consecutively to the delivery conviction.
Conley appealed the convictions and sentences to the Arkansas Court of Appeals, which
affirmed. Conley v. State, 2011 Ark. App. 597, 385 S.W.3d 875. Notably, the court of
appeals refused to reach the merits of Conley’s sufficiency-of-the-evidence arguments after
determining that his directed-verdict motions were not specific enough to preserve the issues
raised on appeal.
Thereafter, Conley filed a timely petition for postconviction relief pursuant to Rule
37.1. The circuit court subsequently granted him leave to file an amended petition. In the
amended petition, Conley asserted that he was denied effective assistance of counsel because
his attorney failed to present a witness after counsel had informed the jury in opening
statement that he would produce a witness to testify that the marijuana and the paraphernalia
found in Conley’s home did not belong to Conley; because his attorney did not make
adequate motions for directed verdict; and because his attorney failed to move for a severance
of the possession offenses from the charge of delivery of a controlled substance.1 After a
hearing, the circuit court denied the petition. In its order dated September 18, 2012, the
1
Although Conley raised additional allegations of ineffective assistance of counsel in
his petition and amended petition, he has not pursued them on appeal. Therefore, those
issues are deemed abandoned. Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727.
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court found that trial counsel’s decision not to call the proposed witness was a matter of trial
strategy that was in compliance with the provisions of the Arkansas Rules of Professional
Conduct. The circuit court also ruled that Conley suffered no prejudice from trial counsel’s
failure to seek a severance of the offenses or to make sufficient motions for directed verdict.
Conley filed a timely notice of appeal from the circuit court’s order.
At the outset, we note that this court does not reverse the denial of postconviction
relief unless the circuit court’s findings are clearly erroneous. Montgomery v. State, 2011 Ark.
462, 385 S.W.3d 189. A finding is clearly erroneous when, although there is evidence to
support it, after reviewing the entire evidence, we are left with the definite and firm
conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d
694. In making a determination on a claim of ineffective assistance of counsel, this court
considers the totality of the evidence. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.
Our standard of review also requires that we assess the effectiveness of counsel under
the two-prong standard set forth by the Supreme Court of the United States in Strickland v.
Washington, 466 U.S. 668 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In
asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate
that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228.
This requires a showing that counsel made errors so serious that counsel was not functioning
as the “counsel” guaranteed the petitioner by the Sixth Amendment. Adams v. State, 2013
Ark. 174, ___ S.W.3d ___. The reviewing court must indulge in a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance. Scott v.
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State, 2012 Ark. 199, 406 S.W.3d 1. The defendant claiming ineffective assistance of counsel
has the burden of overcoming that presumption by identifying the acts and omissions of
counsel which, when viewed from counsel’s perspective at the time of trial, could not have
been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403
S.W.3d 55.
Second, the petitioner must show that the deficient performance prejudiced the
defense, which requires a demonstration that counsel’s errors were so serious as to deprive the
petitioner of a fair trial. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231. This requires the
petitioner to show that there is a reasonable probability that the fact-finder’s decision would
have been different absent counsel’s errors. White v. State, 2013 Ark. 171, ___ S.W.3d ___.
A reasonable probability is a probability sufficient to undermine confidence in the outcome
of the trial. Golden v. State, 2013 Ark. 144, ___ S.W.3d ___.
Unless a petitioner makes both Strickland showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial process that renders the result
unreliable. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___. We also recognize that “there
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.” Anderson
v. State, 2011 Ark. 488, at 3–4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697).
As his first point on appeal, Conley argues that he was denied effective assistance of
counsel when his attorney failed to produce a witness after telling the jury in opening
statement “that you’re also gonna listen to a witness of ours come up and testify as to why the
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marijuana was not Mr. Conley’s and the drug paraphernalia, okay.” He asserts that counsel’s
failure to fulfill this promise constitutes deficient performance that diminished counsel’s
credibility in the eyes of the jury and thus damaged his defense on all charges.
At the postconviction hearing, trial counsel identified the omitted witness as Conley’s
wife, Monica. Counsel explained that he did not call her as a witness because the prosecutor
advised that, if she were to testify that the contraband was hers, he would charge her with the
felony offenses of possession with intent to deliver and possession of drug paraphernalia.
Counsel also stated that Conley had admitted early on that he was guilty and that counsel
could not tender Monica as a witness to give perjured testimony. In his testimony at the
hearing, Conley confirmed that he and his counsel discussed the strategy of having Monica
testify to take responsibility for the marijuana and the scales and that counsel advised against
it because she would be charged if she so testified.
The failure to produce evidence promised in opening statement can be an unreasonable
and prejudicial decision that denies a defendant effective assistance of counsel. Dunlap v.
People, 173 P.3d 1054 (Colo. 2007); see also Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002);
Harris v. Reed, 894 F.2d 871 (7th Cir. 1990); Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988);
State v. Moorman, 358 S.E.2d 502 (N.C. 1987). The rationale for considering a failure to
produce promised evidence as deficient performance is that when counsel primes the jury to
hear a different version of events from what he ultimately presents, one may infer that
reasonable jurors would think the witness to which counsel referred in his opening statement
was unwilling or unable to deliver the testimony he promised. McAleese v. Mazurkiewicz, 1
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F.3d 159 (3rd Cir. 1993). In other words, a jury is likely to conclude that counsel could not
live up to the claims made in opening statement. Harris, supra. Courts also recognize that the
failure to produce promised evidence undermines the credibility of the defense. Moorman,
supra; State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991).
For instance, in Anderson, supra, the defendant stabbed his estranged wife numerous
times after finding her with another man. He admitted that he had killed his wife but argued
as his defense that he was guilty of lesser-included offenses to the charge of first-degree
murder. In opening statement, counsel promised to call two expert witnesses who would
testify regarding the defendant’s mental state that the defendant was “walking unconsciously
toward a psychological no exit . . . like a robot programmed on destruction.” Anderson, 858
F.2d at 17. Although the statement was based on the reports of the experts who were
available to testify, the defense rested the following day without calling the experts. In
concluding that counsel’s promise had irreparably damaged the defense case, the First Circuit
reasoned that “[t]he first thing that the ultimately disappointed jurors would believe, in the
absence of some other explanation, would be that the doctors were unwilling, viz., unable,
to live up to their billing. This they would not forget.” Id. The court likened the failure
to call the experts to a “speaking silence” that weakened the “vitals of the defendant’s
defense.” Id. at 18.
On the other hand, the course of a trial can affect and alter an original defense strategy
and may lead to reasonable decisions not to call witnesses who were mentioned in opening
statement. Williams v. Bowersox, 340 F.3d 667 (8th Cir. 2003). The determination of
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whether counsel was ineffective depends on such factors as the nature and extent of the
promises made in opening statement, any strategic justifications for the subsequent decision
not to produce the evidence, the explanation provided to the jury for the failure to produce
the evidence, the presentation of other evidence supporting the promised theory, and
generally, the impact upon the defense at trial and upon the jury. Edwards v. United States,
767 A.2d 241 (D.C. 2001). Determining whether the failure to call a promised witness is
ineffective assistance of counsel depends on the facts and circumstances of each case. United
States v. McGill, 11 F.3d 223 (1st Cir. 1993).
This court has addressed the issue on one occasion. In Chenowith v. State, 341 Ark.
722, 19 S.W.3d 612 (2000) (per curiam), there was no record of opening statements made,
but at a hearing on postconviction relief, Chenowith testified that his trial attorney had told
the jury in opening statement that he would call three witnesses to establish an alibi defense
to charges of kidnapping and rape. Chenowith’s trial counsel could not recall what he had
said in his opening statement, and he testified that the defense strategy that he had pursued
was one of consent. Counsel said that he did not offer an alibi defense because he thought
it would be inconsistent with the defense that the encounters had been consensual. We found
that there was no ineffective assistance of counsel on the ground that counsel’s failure to
pursue the alibi defense was a reasonable defense strategy.
In the present case, we cannot conclude that Conley suffered any prejudice from trial
counsel’s remark in opening statement. Conley’s defense to the charges of possession of
marijuana with intent to deliver and possession of drug paraphernalia was that he was not in
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possession of those items. Through cross-examination of the State’s witnesses, trial counsel
emphasized that Conley was not the only occupant of the residence and that Conley was not
at home when the officers arrived to conduct the search. When considered in context, trial
counsel’s statement was an isolated remark, counsel did not identify the witness, nor did
counsel disclose in any detail the substance of the proposed testimony. We also note that the
jury found Conley guilty of the lesser-included offense of possession of marijuana, which
indicates that counsel’s statement had little, if any, impact on the jury. On this record, we are
not convinced that the failure to produce the witness undermines confidence in the outcome
of the trial. Therefore, we affirm on this point.
Conley next asserts that his trial counsel provided ineffective assistance based on
counsel’s failure to make motions for directed verdict sufficient to challenge the sufficiency
of the evidence on the charges of possession of a controlled substance with intent to deliver
and possession of drug paraphernalia. Noting the court of appeals’ holding that the directed-
verdict motions made by counsel were insufficient, he contends that counsel’s deficient
performance resulted in prejudice because the State failed to produce substantial evidence that
he possessed the marijuana or the digital scales. Conley asserts that this is a case of
constructive possession involving the joint occupancy of a home and that the State failed to
present any evidence linking him to the contraband.
Where it is asserted that counsel was ineffective for the failure to make a motion or
argument, the petitioner must show that the motion or argument would have been
meritorious because the failure to make an argument that is meritless is not ineffective
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assistance of counsel. Mitchell v. State, 2012 Ark. 242. In the instant case, therefore, Conley
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 convictions for that
reason. Strain v. State, 2012 Ark. 42, 394 S.W.3d 294. Because the circuit court determined
that no prejudice resulted from the failure to make the directed-verdict motions, the appeal
of that decision requires us to review whether there was sufficient evidence to support the
verdicts.
This court treats a motion for a directed verdict as a challenge to the sufficiency of the
evidence. Green v. State, 2013 Ark. 497, ___ S.W.3d ___. In addressing this issue, we
consider all of the evidence, including that which may have been inadmissible, in the light
most favorable to the State. Fondren v. State, 364 Ark. 498, 221 S.W.3d 333 (2006). The test
for determining the sufficiency of the evidence is whether the verdict is supported by
substantial evidence. Wells v. State, 2013 Ark. 389, ___ S.W.3d ___. Substantial evidence
is evidence that is forceful enough to compel a conclusion one way or the other beyond
suspicion or conjecture. Stevenson v. State, 2013 Ark. 100, ___ S.W.3d ___.
In drug cases, it is not necessary for the State to prove that an accused physically held
the contraband, as possession of contraband can be proved by constructive possession, which
is the control or right to control the contraband. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47
(2007). Constructive possession can be implied when the contraband is found in a place
immediately and exclusively accessible to the defendant and subject to his control. Loggins v.
State, 2010 Ark. 414, 372 S.W.3d 785. However, joint occupancy of the premises alone will
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not be sufficient to establish possession or joint possession unless there are additional factors
from which the jury can infer possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251
(1982). Those additional factors include (1) that the accused exercised care, control, or
management over the contraband; and (2) that the accused knew the matter possessed was
contraband. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. This control and knowledge
can be inferred from the circumstances, such as the proximity of the contraband to the
accused, the fact that it is in plain view, and the ownership of the property where the
contraband is found. Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785.
In this case, there was testimony that neither Conley nor any of his family members
were at home when the officers arrived to conduct the search. Therefore, it is reasonable to
conclude that Conley was not the sole occupant of the home. See Osborne v. State, 278 Ark.
45, 643 S.W.2d 251 (1982) (stating that it was reasonable to assume that the defendant shared
the home with his wife, although there was no direct testimony that the wife lived there).
The record in this case also shows that the digital scales, which are flat, and the bag of
marijuana were on top of a cabinet in the laundry room. The top of the cabinet was recessed.
To further obscure the contraband from sight, the marijuana and the scales were situated
behind a decorative object consisting of an axiom made of wooden letters. The evidence thus
discloses that the contraband was hidden from view. Based on this evidence, unless there are
other factors linking Conley to the possession of the scales and the marijuana, the evidence
is not sufficient to support Conley’s convictions for possessing those items. The State
maintains that Conley is connected to the contraband because marijuana was also found in the
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master bedroom. However, the testimony did not disclose where the marijuana had been
found in that room. Other than the fact that marijuana was found there, there is no evidence
linking Conley to the possession of that marijuana. Thus, the discovery of marijuana in the
bedroom does not establish Conley’s possession of the contraband in the laundry room. The
State also relies on the testimony that, once Conley had been arrested, no further drug activity
was observed at the home. However, we do not regard this evidence as establishing a
connection between Conley and the possession of the marijuana and the scales that were
hidden in the laundry room. Consequently, we conclude that the evidence is not sufficient
to support Conley’s convictions for possession of a controlled substance and possession of drug
paraphernalia. In turn, we hold that trial counsel’s performance was deficient and prejudicial,
because had trial counsel made a proper motion for directed verdict, the sufficiency-of-the-
evidence argument raised on appeal would have been successful. Accordingly, we reverse and
remand with directions to dismiss the charges of possession of a controlled substance and
possession of drug paraphernalia. See State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000)
(recognizing that the Double Jeopardy Clause prohibits retrial after a conviction has been
reversed because of insufficiency of the evidence). See also, e.g., Walker v. State, 288 Ark. 52,
701 S.W.2d 372 (1986) (reversing denial of collateral relief and dismissing the charges when
counsel deemed ineffective for failing to advance a meritorious motion to dismiss based on
the lack of a speedy trial; Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984) (same); Clark
v. State, 274 Ark. 81, 621 S.W.2d 857 (1981) (same).
Conley’s final argument is that trial counsel was deficient for not moving to sever the
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possession offenses from the delivery charge. This issue is solely directed to the possession
offenses. Because we have already found counsel’s performance deficient with regard to those
convictions, and because those charges are to be dismissed, we need not address this claim of
ineffective assistance of counsel.2 See Rackley v. State, 2014 Ark. 39; Wicoff v. State, 321 Ark.
97, 900 S.W.2d 187 (1995); Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1988).
Affirmed in part; reversed and remanded in part with directions to dismiss the charges
of possession of a controlled substance and possession of drug paraphernalia.
HART, J., concurs.
JOSEPHINE LINKER HART, Justice, concurring. The majority properly reverses and
remands with directions to dismiss the charges of possession of a controlled substance and
possession of drug paraphernalia. Because the majority dismisses these charges, it did not need
to also address as to these charges the merits of Vernell R. Conley’s argument that his counsel
was ineffective for not presenting a witness when, during opening argument, trial counsel
stated that “you’re also gonna listen to a witness of ours come up and testify as to why the
marijuana was not Mr. Conley’s and the drug paraphernalia.”
If it were necessary to address the issue as it relates to the possession charges, I would
conclude that trial counsel was ineffective. Trial counsel’s failure to produce evidence that
counsel promised to produce during opening argument to the jury is a damaging failure
2
Conversely, it was necessary for this court to address the first issue on appeal because
Conley asserted under that point that trial counsel’s broken promise so damaged trial
counsel’s credibility that he was entitled to a new trial on the delivery charge, as well as the
possession offenses. Even though we rejected Conley’s argument that he was prejudiced by
the broken promise, the issue is one that we are required to consider.
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sufficient to support a claim of ineffectiveness of counsel. McAleese v. Mazurkiewicz, 1 F.3d
159, 166 (3d Cir. 1993) (citing Harris v. Reed, 894 F.2d 871, 879 (7th Cir. 1990), where trial
counsel failed to call witnesses who he claimed in opening argument would support the
defense’s version of a shooting, and Anderson v. Butler, 858 F.2d 16, 17–19 (1st Cir. 1988),
where trial counsel failed to present promised expert-medical testimony that defendant had
acted without cognizance of, or feeling for, his actions in a stabbing). When trial counsel
promises the jury that it will hear a different version of the events from what counsel
ultimately presents, one may infer that reasonable jurors would think that the witness to
which counsel referred in opening argument was unwilling or unable to deliver the promised
testimony. McAleese, 1 F.3d at 166–67.
Trial counsel’s remark referred to the possession charges. Trial counsel testified that he
did not present the testimony of Conley’s wife because it would have been perjured
testimony, as Conley had admitted his guilt to him early in his representation of Conley.
Conley testified that counsel had advised against his wife taking the stand because she would
have been charged. Trial counsel confirmed that he had been so advised by the prosecutor.
Trial counsel had determined prior to trial that he would not offer the testimony.
Thus, he should not have promised it to the jury, as the jury was left to conclude that, in this
constructive-possession case, no witness could explain why the contraband was not possessed
by Conley and was instead possessed by someone else. The prejudice is apparent and cannot
be ignored; the jury convicted Conley of the possession charges despite this court’s holding
today that the evidence was insufficient to support the possession convictions. Because we
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have instructed the circuit court to dismiss these convictions, however, there is no need to
address the merits of this issue.
Furthermore, after dismissing the possession charges, we need not address the merits
of this argument as it relates to the delivery charge. Conley concludes, as an afterthought and
without explanation, that the “magnitude of the error . . . also likely spilled over as evidence
on the delivery count,” and that the “credibility damage impacted the verdict on the delivery
charge as well.” The burden is entirely on the claimant to provide facts that affirmatively
support his or her claims of prejudice; neither conclusory statements nor allegations without
factual substantiation are sufficient to overcome the presumption that counsel was effective,
and such statements and allegations will not warrant granting postconviction relief. See, e.g.,
Abernathy v. State, 2012 Ark. 59, at 5, 386 S.W.3d 477, 482 (per curiam). Thus, Conley’s
conclusory allegations do not merit relief.
Nevertheless, after dismissing the possession charges, if we were still required to address
the merits of this argument as to the delivery charge, Conley could not demonstrate prejudice.
The testimony on the delivery charge was distinct from the testimony on the possession
charges, and trial counsel’s remark did not speak to the evidence presented on the delivery
charge but rather referred only to the efforts to rebut the possession charges.
James Law Firm, by: Lee D. Short, for appellant.
Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
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