Feuget v. State , 454 S.W.3d 734 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CR-13-885
MICHAEL ARLIE FEUGET Opinion Delivered February 12, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-2010-594]
STATE OF ARKANSAS
APPELLEE HONORABLE J. LEON JOHNSON,
JUDGE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
Michael Feuget appeals the denial of his petition for postconviction relief under
Arkansas Rule of Criminal Procedure 37. Feuget contends he received ineffective
assistance of counsel during his trial because: (1) his attorneys failed to present certain
witness testimony to corroborate his affirmative defense of involuntary intoxication and
impeach the testimony of an adverse witness; and (2) his attorneys failed to request a jury
instruction on a lesser-included offense. We affirm the circuit court’s ruling.
I. Relevant Facts
Feuget robbed a bank on January 15, 2010. At trial, he defended on the theory that
he was involuntarily intoxicated at the time of the robbery due to the combination of
prescription medications he was taking. Feuget testified that in addition to taking Zoloft
and Adderall, his psychiatrist, Dr. Joe Bradley, prescribed the drug Deplin approximately
one week before the robbery. Feuget’s expert, Dr. Bob Gale, opined that the combination
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of Zoloft and Deplin caused Feuget to enter a toxic state in which he was unable to
conform his conduct to the requirements of the law.
Dr. Bradley testified extensively about Feuget’s treatment and prescription history
over the three previous years. Dr. Bradley explained that he gave Feuget Deplin samples
in an effort to boost the effectiveness of Feuget’s Zoloft regimen. Dr. Bradley testified that
he gave Feuget a month’s worth of Deplin samples in December 2009, but that he did not
remember actually writing a prescription for the drug. He readily acknowledged that it
was possible he did also prescribe it. Dr. Bradley also testified that he saw Feuget a week
before the robbery and that Feuget reported very minimal benefit from taking the Deplin.
The conflicting testimony regarding the Deplin prescription is at the heart of the
first contention on appeal. Feuget’s wife testified in rebuttal that she handled all of
Feuget’s medications. She testified that Feuget received a Deplin prescription and that she
had filled it a week before the robbery. Feuget’s counsel attempted to admit the
prescription bottle into evidence, but it was excluded due to the State’s hearsay objection.
After the jury began deliberations, Feuget obtained a copy of the written prescription and
moved for a mistrial. The motion was denied, and Feuget was convicted of theft of
property and two counts of aggravated robbery.
Feuget subsequently requested a new trial, relying on the prescription copy and
other pharmacy records corroborating the testimony that there was a prescription for
Deplin in addition to the samples. At the hearing on the motion, Dr. Bradley admitted
that his testimony at trial was apparently inaccurate and that he must have given Feuget
the prescription. Dr. Bradley further testified that clinical studies have shown that the
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dosage of Deplin that he prescribed is no more effective than a placebo. The court denied
the motion for a new trial, and the court of appeals affirmed Feuget’s conviction. Feuget v.
State, 2012 Ark. App. 182, 394 S.W.3d 310.
Feuget next sought postconviction relief, alleging that he received ineffective
assistance of counsel because his attorneys failed to subpoena the prescription records from
the pharmacy and failed to subpoena a pharmacy employee who could authenticate the
records. Feuget also claimed that he was denied effective assistance of counsel because his
attorneys did not request a jury instruction on the lesser-included offense of robbery,
causing Feuget to be convicted of the greater offense of aggravated robbery. The circuit
court denied Feuget’s petition, and this appeal followed.
II. Standard of Review
We do not reverse the grant or denial of postconviction relief unless the circuit
court’s findings are clearly erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. 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.
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).
Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must
first show that counsel’s performance was deficient. Id. This requires a showing that
counsel made errors so serious that counsel deprived the petitioner of the counsel
guaranteed to the petitioner by the Sixth Amendment. Id. Second, the deficient
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performance must have resulted in prejudice so pronounced as to have deprived the
petitioner a fair trial whose outcome cannot be relied on as just. Wainwright v. State, 307
Ark. 569, 823 S.W.2d 449 (1992). Both showings are necessary before it can be said that
the conviction resulted from a breakdown in the adversarial process that renders the result
unreliable. Id.
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance, and the petitioner 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. Id. Even if counsel’s conduct is shown to be professionally
unreasonable, the judgment will stand unless the petitioner demonstrates that the error had
a prejudicial effect on the actual outcome of the proceeding. Henington v. State, 2012 Ark.
181, 403 S.W.3d 55. 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, or in other words, that the decision reached would have been different absent the
errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the
outcome of the trial. Id. In making this determination, the totality of the evidence before
the fact-finder must be considered. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).
III. Presenting Additional Witnesses and Evidence
For his first point, Feuget classifies Dr. Bradley’s testimony as false and claims that
the failure to call a records custodian and subpoena pharmacy records to verify that Feuget
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was given a prescription for Deplin a week before the robbery vitiated his defense of
involuntary intoxication. We disagree.
Under our jurisprudence, a petitioner claiming ineffective assistance of counsel is
required to state the substance of the omitted witness’s testimony and demonstrate that this
omitted testimony resulted in actual prejudice to his defense. Wainwright, 307 Ark. at 579,
823 S.W.2d at 454. In this case, Feuget has demonstrated that the pharmacy witness
would have authenticated his prescriptions and contradicted Dr. Bradley’s testimony;
however, we are not of the opinion that counsels’ failure to call the witness was such an
unreasonable lapse in professional judgment that Feuget was denied effective counsel.
The decision of whether or not to call a witness is generally a matter of trial
strategy that is outside the purview of Rule 37. Nelson v. State, 344 Ark. 407, 39 S.W.3d
791 (2001) (per curiam). An attorney’s decision not to call a particular witness is largely a
matter of professional judgment, and the fact that there was a witness or witnesses who
could have offered testimony beneficial to the defense is not, in itself, proof of
ineffectiveness. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. In this case, Dr. Bradley
testified at length concerning Feuget’s multiple medication changes over a three-year
period, and he readily acknowledged that it was possible he had also written Feuget a
prescription for Deplin in addition to providing him with samples of the drug. Feuget
presented rebuttal testimony from his wife that he had received and she had filled a
prescription for Deplin approximately one week before the robbery. Feuget, himself, also
testified to this fact. Feuget’s expert similarly testified that Feuget had been prescribed
Deplin and was taking it at the time of the robbery, as did Dr. Lisa Doguet, who
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performed a court-ordered evaluation of Feuget to determine his competency to stand
trial. In short, Feuget presented the same evidence to which a pharmacy witness would
have testified if one had been called, and we cannot conclude that failing to call an
additional witness on the topic rises to the level of ineffective assistance of counsel.
Furthermore, under our standard or review, Feuget must demonstrate actual
prejudice resulting from his counsel’s failure to call a witness to verify the date of his
prescription. Mere allegations that the jury would have been swayed by additional
testimony are conclusory. Wainwright, 307 Ark. at 579, 823 S.W.2d at 454. Feuget has
failed to show how presenting cumulative testimony regarding the date of his prescription
would have created a reasonable probability that the outcome of his trial would have been
different.
We cannot ignore that although Dr. Bradley admitted that he was mistaken about
whether he had actually written a prescription for Deplin, he also testified that studies had
shown that the dosage of Deplin he prescribed would only have had a placebo effect. He
also reiterated that Feuget reported that the Deplin had minimal effect. The other expert
witnesses at trial did not contest that Feuget was taking prescription Deplin at the time he
committed the robbery; they simply did not believe that the Deplin made a difference.
For example, Dr. Kim Light, a pharmacologist, testified that the Deplin would have had
no impact and that Feuget was not intoxicated on the drugs that he was taking at the time
of the robbery. Dr. Doguet accepted that Feuget was taking Deplin and that he was
intoxicated, but she still testified that Feuget clearly appreciated the criminality of his
actions and was capable of conforming his conduct to the law based on his behavior
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before, during, and after committing the crime. Feuget’s own expert, Dr. Gale, testified
that Feuget had been given a prescription for Deplin a few days prior to the robbery;
however, even Dr. Gale acknowledged that there was some dispute among the medical
community as to whether Deplin would enhance the effects of the other medications that
Feuget was taking. Considering the other evidence presented to the jury, Feuget is unable
to show the existence of a reasonable probability that additional testimony showing that
the prescription for Deplin was filled approximately one week before the robbery would
have resulted in a different outcome.
IV. Requesting Jury Instructions for a Lesser-Included Offense
For his next point, Feuget argues that there was scant evidence to support his use of
a weapon during the robbery and that defense counsel was ineffective because his
attorneys did not request a jury instruction for the lesser-included offense of robbery. The
circuit court’s order denying postconviction relief concedes that a jury instruction on
simple robbery would have been proper given the evidence.
Ultimately, this argument is to no avail. Matters of trial tactics and strategy are not
grounds for postconviction relief on the basis of ineffective assistance of counsel. Rankin v.
State, 365 Ark. 255, 227 S.W.3d 924. This court has long recognized that competent
counsel may elect not to request an instruction on lesser-included offenses as a matter of
strategy. Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984) (per curiam). This “all-
or-nothing” approach recognizes the strategic consideration that a jury may be more likely
to find in a defendant’s favor when the only options are guilty and not guilty, rather than a
possible compromise verdict on a lesser offense. Id. While the trial court may err to refuse
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instructions on a lesser-included offense where the defense is not inconsistent with those
instructions, counsel is not ineffective merely because an all-or-nothing strategy fails.
Johnson v. State, 2009 Ark. 460, 344 S.W.3d 74 (per curiam).
The record reflects that counsel discussed with Feuget the possibility of moving to
reduce the charges and instructing the jury on the lesser-included offense of robbery and,
in fact, recommended this strategy. Counsel even went so far as to prepare the actual
instruction. However, the record reflects that Feuget intentionally chose to forego this
option because he believed the jury would acquit, and he did not want to give them
another option to convict him of a lesser-included offense. Feuget cannot now claim that
he received ineffective assistance of counsel when he made the very decision—about
which he now complains—against the advice of counsel.
Feuget also argues that it was incumbent upon his attorneys to pursue the lesser-
included offense even against his wishes; however, Feuget never presented this argument
to the circuit court. On appeal, an appellant is limited to the scope and nature of the
arguments he made below and that were considered by the circuit court in rendering its
ruling. Barker v. State, 2014 Ark. 467, 448 S.W.3d 197 (per curiam). We will not consider
new arguments raised for the first time on appeal. Id. Accordingly, we will not address this
argument.
Affirmed.
HANNAH, C.J., and DANIELSON, J., concur.
PAUL E. DANIELSON, Justice, concurring. I agree with the majority’s
conclusion to affirm the circuit court’s denial of Appellant Michael Arlie Feuget’s petition
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for postconviction relief but write separately to set forth facts necessary to a proper
understanding of the appeal, as well as what I believe is the correct analysis of Feuget’s first
point on appeal.
Feuget stood trial on two counts of aggravated robbery in connection with a
robbery of an IberiaBank branch in Little Rock. Feuget did not deny committing the
robberies; in fact, he testified that he was attempting to emulate the bank robber, John
Dillinger. At trial, Feuget raised the affirmative defenses of mental disease or defect and
involuntary intoxication. In asserting the defense of involuntary intoxication, Feuget
alleged that his action resulted from a toxic reaction to the medications Zoloft, Adderall,
and Deplin that he was taking at the direction of his treating psychiatrist, Dr. Joe Bradley.
The jury rejected his defense and found him guilty.
After Feuget was found guilty, he filed a motion for new trial, alleging inter alia
that Dr. Bradley testified for the first time at trial that he did not recall writing Feuget a
prescription for Deplin on January 6, 2010, and instructed Feuget to stop taking the
Deplin at that visit. Feuget stated that this claim was nowhere to be found in any of
Dr. Bradley’s notes or records, which had been relied on by the defense, the experts who
testified at trial, and had also been turned over to the State. Feuget stated that he tried to
obtain the actual prescription written by Dr. Bradley but was unable to locate it until after
his trial was over. Feuget asserted that the prescription proved that Dr. Bradley’s
testimony was inaccurate. And, he asserted that it was material evidence, in part, because
the State argued to the jury in closing arguments that Feuget had not met his burden of
proof on the defense of involuntary intoxication because Dr. Bradley had instructed him
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to stop taking the Deplin at the January 6 visit. Feuget asserted that he was entitled to a
new trial because the prescription was new evidence that would have impacted the
outcome of the case.
Following the denial of his motion for new trial and the court of appeals’s
affirmance of his direct appeal, Feuget filed a motion for postconviction relief, asserting
two claims of ineffective assistance of counsel. In his first claim, Feuget asserted that
counsel was ineffective in failing to properly subpoena and present Walgreens’ pharmacy
records to rebut the inaccurate testimony of Dr. Bradley or to at least seek a continuance
or a forthwith subpoena, if necessary, to the appropriate Walgreens’ keeper of the records
to testify in surrebuttal. He further asserted that this error prejudiced him because it
prevented him from proving his involuntary-intoxication defense and that had he rebutted
Dr. Bradley’s testimony, there is a reasonable probability that the outcome of his trial
would have been different. Feuget continues those same arguments on appeal.
Our standard of review 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). Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. In
asserting ineffective assistance of counsel under Strickland, the petitioner first must
demonstrate that counsel’s performance was deficient. Id. 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. Id. The reviewing court must
indulge in a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. The defendant claiming ineffective assistance of
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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. Id.
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. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial. Id.
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. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. We also recognize that
“[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.”
Anderson v. State, 2011 Ark. 488, at 3–4, 385 S.W.3d 783, 787 (quoting Strickland, 466
U.S. at 697).
In advancing his first Strickland argument, Feuget asserts that his trial counsel was
ineffective in failing to present admissible evidence to properly challenge or impeach
Dr. Bradley’s testimony that he did not write Feuget a prescription for Deplin and, in fact,
advised him to stop the medication. I agree with the circuit court and the majority that
Feuget is not entitled to postconviction relief on this point, but I take issue with the
majority’s seeming conclusion that trial counsels’ decision not to further challenge or
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impeach Dr. Bradley was a matter of trial strategy or did not rise to the level of ineffective
assistance of counsel because there was other testimony presented on the issue.
Although not discussed by the majority, Feuget’s trial counsel both testified at the
Rule 37 hearing that they were surprised by Dr. Bradley’s testimony at trial. They both
admitted that the evidence that Feuget had taken the Deplin was necessary to his defense
because of his expert’s testimony that the drug had a multiplier effect on the other
medications. Neither attorney ever intimated that the decision to not put on rebuttal
evidence was one of trial strategy; rather, they both testified that they were under a time
crunch because they were near the end of the trial.
Ultimately, however, I think this issue is irrelevant. This court can affirm the
circuit court’s order on the second prong of Strickland because I do not believe that Feuget
has established that there is a reasonable probability that the outcome of his trial would
have been different, such that he can satisfy the prejudice requirement of Strickland.
Reviewing the record, it is clear that Feuget asserted the defense of involuntary
intoxication from the outset. His expert, Dr. Gale, testified that the combination of
medications prescribed to Feuget, in the absence of appropriate warnings and counseling,
caused Feuget to be intoxicated in a way that he could not conform his conduct to the
requirements of the law. Dr. Gale explained that he interviewed Feuget and according to
this interview and Dr. Bradley’s records that had been provided to him, he was aware that
Feuget was on Zoloft, Adderall, and Deplin three or four days prior to the robberies. Dr.
Gale explained that some medical studies indicate that Deplin may boost the effects of the
Zoloft and Adderall.
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The State countered Dr. Gale’s testimony, however, by putting forth evidence that
Feuget was able to conform his conduct to the law at the time of the robberies. Dr. Lisa
Doguet, a forensic fellow at the Arkansas State Hospital, testified that she examined Feuget
following his arrest and diagnosed him with intoxication and cyclothymic disorder but
opined that he was able to appreciate the criminality of his conduct.
The State also introduced the testimony of Dr. Kim Edward Light, a professor of
pharmacology at the University of Arkansas for Medical Sciences College of Pharmacy.
Dr. Light testified that Deplin had no effect on the absorption of Zoloft. He opined that
Feuget was not intoxicated from either the Adderall or the Zoloft he was taking at the
time of the robbery. He also stated that the addition of Deplin would not have had any
physiological or pharmacological effect on Feuget, unless he had been suffering from a
severe folic acid deficiency.
Finally, the State called Dr. Bradley as a rebuttal witness, who testified that he gave
Feuget about a month’s worth of samples of Deplin, on December 2, 2009, and instructed
him to return in a month so he could determine if the Deplin had helped. Dr. Bradley
further testified that he then saw Feuget on January 6, 2010, and that Feuget reported
minimal benefit from the Deplin, so the doctor instructed him to stop that medication. At
trial, Dr. Bradley stated that he did not recall giving Feuget a written prescription for the
Deplin.
In response to Dr. Bradley’s testimony, Feuget called his wife, Michelle Feuget, to
testify regarding his medications. She testified that she picked up her husband’s Deplin on
January 7, 2010, but that she could not find the written prescription. Feuget tried to
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introduce documents from Walgreens showing the prescription had been filled there, as
well as the prescription bottle, but the circuit court would not admit the items into
evidence.
No one in this case disputes the fact that Dr. Bradley’s testimony at trial that he had
not written a prescription for the Deplin and had instructed Feuget to stop the medication
since it had not helped him was mistaken. The critical question is what impact, if any, this
incorrect testimony had on Feuget’s defense of involuntary intoxication. Feuget asserts,
without any support, that the testimony of Dr. Bradley caused the jury to reject his
affirmative defense. The record simply does not support such a conclusion. Even absent
Dr. Bradley’s mistaken testimony, the jury had other evidence, as set forth above, which
may have led it to reject Feuget’s defense. The only testimony that supported the defense
theory was provided by Feuget’s own expert.
Based on the record before this court, I simply cannot say that the circuit court
clearly erred in concluding that Feuget failed to prove that he was prejudiced by any error,
such that there is a reasonable probability that the outcome of his trial would have been
different. Thus, I would affirm the denial of the Rule 37 petition because Feuget cannot
satisfy the second prong of Strickland, which renders any discussion of the first Strickland
prong unnecessary.
I respectfully concur.
HANNAH, C.J., joins.
Jeff Rosenzweig, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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