Dixon v. State , 2014 Ark. 97 ( 2014 )

Cite as 2014 Ark. 97SUPREME COURT OF ARKANSAS
No. CR-12-421
KEVIN DIXON Opinion Delivered February 27, 2014
APPELLANT
PRO SE APPEAL FROM THE MILLER
V. COUNTY CIRCUIT COURT
[NO. 46CR-09-392]
STATE OF ARKANSAS HONORABLE KIRK D. JOHNSON,
APPELLEE JUDGE
AFFIRMED.
PER CURIAM
In 2010, appellant Kevin Dixon was found guilty by a jury in the Miller County Circuit
Court of capital felony murder, with aggravated robbery as the underlying felony, and sentenced
to life imprisonment without the possibility of parole. This court affirmed. Dixon v. State, 2011
Ark. 450, 385 S.W.3d 164. Appellant subsequently filed in the trial court a timely, verified pro
se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1
(2010), alleging that he was denied effective assistance of counsel at trial. The trial court denied
the petition without a hearing,1 and appellant timely lodged this appeal. Our jurisdiction is
pursuant to Rule 37 and Arkansas Supreme Court Rule 1-2(a)(8) (2014).
This court does not reverse a decision granting or denying postconviction relief unless
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). When 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 trial court’s order denying
postconviction relief complies with the requirements of Rule 37.3.
Cite as 2014 Ark. 97the trial court’s findings are clearly erroneous. Ellis v. State, 2014 Ark. 24 (per curiam); Banks v.
State, 2013 Ark. 147. 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. Hickey v. State, 2013 Ark. 237, __ S.W.3d __ (per
curiam).
A review of the petition and the order reveals no error in the trial court’s decision to deny
relief. When considering an appeal from a trial 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 trial court clearly erred in holding that counsel’s
performance was not ineffective. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.
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 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
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Cite as 2014 Ark. 97time 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, ___
S.W.3d ___. 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.
In his first point on appeal, appellant makes the conclusory claims for the first time on
appeal that counsel did not provide effective assistance because he failed to “conduct an
adequate or thorough investigation of the facts surrounding the charge against him, including
possible defenses,” failed to “conduct an independent investigation of events before, during, or
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Cite as 2014 Ark. 97after the alleged murder and arrest,” and spent little time preparing for trial. In support of his
claims, appellant contends that counsel should have conducted an independent evaluation of
ballistic and forensic evidence and interviewed and called as witnesses the individuals named in
the police report. Because arguments raised for the first time on appeal could not have been
considered by the trial court, they will not be addressed by this court. Green v. State, 2013 Ark.
455 (per curiam); Williams v. State, 2013 Ark. 375 (per curiam). Issues raised for the first time
on appeal are not grounds to reverse a trial court’s order. Green, 2013 Ark. 455; Williams, 2013
Ark. 375. Accordingly, we do not consider any argument raised by appellant for the first time
on appeal.
The only contention raised in the first point on appeal that could potentially be construed
to have been raised in appellant’s Rule 37.1 petition below is the failure-to-investigate argument
as it relates to the State’s witness, Torin Smith. While appellant does not specifically identify
Smith in connection with his failure-to-investigate argument on appeal, he made the claim in his
petition that counsel was ineffective for failing to investigate and attack the credibility of Smith
based on the allegation that Smith testified on behalf of the State in exchange for a reduction of
the charge filed against him. To the extent that this issue has been sufficiently raised for review
by this court, the trial court did not clearly err in finding that appellant is not entitled to relief
based on any failure of counsel to investigate or attack the credibility of Smith. The record is
replete with evidence that counsel attempted to challenge Smith’s credibility, and appellant fails
to state how any further investigation of Smith would have been fruitful.
At trial, Smith, who was incarcerated with appellant at the Miller County jail where they
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Cite as 2014 Ark. 97shared the same pod, testified that appellant had confessed to him that he had robbed and killed
the victim. Smith’s testimony included details regarding appellant’s commission of the crime
that, according to Smith’s testimony, appellant related to him while they were both in jail. A
detective involved in investigating the murder testified that the information furnished by Smith
as to what appellant had stated could only have been known by someone who was involved in
the murder of the victim. On direct examination, Smith testified that he had a pending theft
charge and that he had not been promised anything in exchange for his testimony. Both on
cross-examination and in closing arguments, counsel attempted to discredit Smith’s testimony
based on an expectation of being rewarded for his testimony. In addition, counsel called a
witness to attack Smith’s credibility. Thus, we agree with the trial court that the record does not
support appellant’s claim that counsel failed to challenge Smith’s credibility.
Appellant’s allegation that counsel was ineffective based on the failure to investigate
whether Smith testified for the State in exchange for a reduction of the charge filed against him
is also without merit. Counsel has a duty to make a reasonable investigation or to make a
reasonable decision that makes particular investigations unnecessary; but, where a petitioner
under Rule 37.1 alleges ineffective assistance for failure to perform adequate investigation, he
must delineate the actual prejudice that arose from the failure to investigate and demonstrate a
reasonable probability that the specific materials that would have been uncovered with further
investigation could have changed the trial outcome. Bryant v. State, 2013 Ark. 305, __ S.W.3d
__ (per curiam). 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
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Cite as 2014 Ark. 97factual substantiation are sufficient to overcome the presumption that counsel was effective, and
such statements and allegations will not warrant granting postconviction relief. Abernathy v. State,
2012 Ark. 59, 386 S.W.3d 477 (per curiam). Here, appellant’s argument is limited to conclusory
allegations, and he fails to provide any facts to support his claim or show how further
investigation would have been fruitful.
In his second point on appeal, appellant again makes a number of conclusory and
disjointed claims for the first time on appeal. As we have stated, arguments raised for the first
on appeal could not have been considered by the trial court and will not be addressed by this
court. Green, 2013 Ark. 455; Williams, 2013 Ark. 375. Moreover, an entirely conclusory claim
is not a ground for postconviction relief. Nelson v. State, 2014 Ark. 28 (per curiam).
To the extent that two of the arguments raised by appellant in his second point on appeal
can possibly be construed to have been argued below, the trial court was not clearly erroneous
in denying relief. First, appellant summarily states on appeal that counsel failed to challenge the
admissibility of statements made by Felicia Robertson to police officers. In his Rule 37.1
petition, appellant argued that counsel failed to challenge the admissibility of oral and written
statements that Robertson made to Detective Paul Nall as hearsay. However, at trial, counsel
objected to the State’s examination of Detective Nall regarding the statements made to him by
Robertson on the basis that the testimony was hearsay. The trial court overruled the objection,
and the issue was raised on direct appeal. On appeal, we held that we did not need to decide
whether Detective Nall’s testimony was hearsay because any error in its admission was harmless
due to the availability of Robertson for cross-examination. Dixon, 2011 Ark. 450, 385 S.W.3d
6Cite as 2014 Ark. 97164. Thus, as found by the trial court, the record does not support the argument of counsel, and
the law-of-the-case doctrine bars consideration of the claim.2 See Strong v. Hobbs, 2013 Ark. 376(per curiam) (explaining that, where the merits of a claim were addressed and adjudicated in a
prior appellate decision, that issue is settled and may not be revisited in a subsequent appeal).
Next, appellant states on appeal that “counsel did not set any specific ground rules with the
Prosecutor for evaluating the worth of any statements” made in the case or initiate discussions
with the prosecutor about reducing the capital-murder charge if appellant were to make a
statement. In his petition, appellant argued that counsel did not “promptly” negotiate with the
prosecutor and convince him not to seek the sentence of life without parole.3 To the extent that
appellant has stated a claim on appeal that was raised below as to any ineffectiveness of counsel
2
In his second point on appeal, appellant also vaguely contends that counsel failed to
challenge the admissibility of the statements of other named witnesses to police officers. The
only one of these other claims that could possibly be construed to have been raised below
involved Smith and alleged hearsay evidence based on a brief statement in the petition. In the
petition, appellant stated that counsel failed to adequately protect his rights pertaining to the
admission of witness Smith’s “uncorroborated hearsay testimony . . . [when] Smith had every
reason to lie to the police to have his charges reduced or dismissed.” Appellant does not seem
to be attempting to make the same argument on appeal as he did below in his petition with
regard to the alleged admission of Smith’s statement, as necessary for this court to review the
argument. In any event, such a conclusory claim is not a ground for relief. A petitioner seeking
postconviction relief on a claim of ineffective assistance that is based on the failure of counsel
to make a motion or objection must show that counsel could have made a successful argument
in order to demonstrate the prejudice required under the Strickland test. Hogan v. State, 2013 Ark.
223 (per curiam) (citing Lowe v. State, 2012 Ark. 185, __ S.W.3d __ (per curiam)). Failure to
make a meritless objection or motion does not constitute ineffective assistance of counsel.
Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).
3
The punishment for capital murder is death or life imprisonment without parole. Ark.
Code Ann. § 5-10-101 (Supp. 2009). At a pretrial hearing, the prosecuting attorney informed
the trial court that the State was waiving the death penalty based on a lack of sufficient evidence
to establish the necessary aggravating circumstances.
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Cite as 2014 Ark. 97based on error relating to plea negotiations, the trial court was not clearly erroneous in denying
relief on this basis. The decision whether to enter into plea negotiations is a matter of strategy
beyond the purview of postconviction relief. Jones v. State, 308 Ark. 555, 826 S.W.2d 233 (1992).
Furthermore, appellant failed to factually support his claim that there was any attorney error to
justify relief in dealing with plea negotiations. As found by the trial court, appellant has not
shown how he was prejudiced in the plea negotiations or made any plausible suggestion as to
what actions counsel could have taken to convince the prosecuting attorney to reduce the charge
of capital murder to a lesser-included offense.
In his third point on appeal, appellant contends that counsel was ineffective for failing
to obtain a ruling on his objection to evidence of appellant’s drug activity based on Arkansas
Rule of Evidence 403 (2010). In order to demonstrate prejudice for a claim that counsel was
ineffective for failing to preserve an argument for appeal, a claimant must necessarily show that
the argument would have been successful. Croy v. State, 2011 Ark. 284, 383 S.W.3d 367 (per
curiam). Trial counsel cannot be ineffective for failing to make an objection or argument that
is without merit. Id. Here, appellant did not demonstrate that counsel could have successfully
challenged the admission of the evidence on appeal based on a Rule 403 argument.
At trial, based on Arkansas Rule of Evidence 403 and 404(b) (2010), appellant objected
to the testimony of two police detectives and Smith regarding appellant’s admission that he sold
drugs. The trial court denied the motion on the basis that testimony regarding appellant’s drug
activity was part of the circumstances of the crime, and it ruled that any testimony regarding
appellant’s drug activities was limited to the particular time frame surrounding the death of the
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Cite as 2014 Ark. 97victim. On appeal, we affirmed the ruling of the trial court because the testimony was admissible
under the res gestae exception to Rule 404(b) to establish the facts and circumstances
surrounding the alleged commission of the offense. We further held that, because the Rule 403
argument was not preserved, we would not address that argument. Dixon, 2011 Ark. 450, 385
S.W.3d 164.
Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Ark. R. Evid. 403. The balancing mandated by Rule 403 is a matter
left to the trial court’s sound discretion, and an appellate court will not reverse the trial court’s
ruling absent a showing of manifest abuse. Lard v. State, 2014 Ark. 1, __ S.W.3d __ . 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. Id.This court has noted that evidence offered by the State is often likely to be prejudicial to the
accused, but the evidence should not be excluded unless the accused can show that it lacks
probative value in view of the risk of unfair prejudice. Chunestudy v. State, 2012 Ark. 222, 408
S.W.3d 55. In affirming the trial court’s finding on direct appeal that the testimony was
admissible pursuant to Rule 404(b), we reasoned that the testimony regarding drug activity
explained the scope and nature of the interactions between appellant and the victim. Based on
this reasoning, we conclude that, in fact, even if the argument had been preserved, the evidence
was highly probative for purposes of a Rule 403 analysis, and appellant fails to show that he
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Cite as 2014 Ark. 97could have prevailed on appeal based on an argument that such probative value was substantially
outweighed by any danger of unfair prejudice.
Affirmed.
Kevin Dixon, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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