Britt v. State

2020 Ark. App. 486

612 S.W.3d 175

Larry BRITT, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-839

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: October 21, 2020

Rehearing Denied December 2, 2020

Hancock Law Firm, Little Rock, by: Charles D. Hancock, for appellant.

Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

MIKE MURPHY, Judge

Appellant Larry Britt, Jr., appeals from an order of the Boone County Circuit Court denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. Britt raises eight points on appeal claiming ineffective assistance by his trial counsel. We affirm.

On January 28, 2016, Arkansas State Police trooper William Clements initiated a traffic stop with Britt for speeding. After initiating the stop, Clements determined that Britt had a warrant for his arrest for failure to appear. Britt informed Clements that the vehicle was rented and that he had been the only person to drive it, but he could not produce a valid rental contract. Britt originally told Clements that he did not have any weapons on him and there was nothing in the car that could get him in trouble. Britt then consented to a search of the vehicle and told Clements that he had a gun under the front passenger seat and that he is a felon. Clements placed Britt under arrest. As a result of the search, a handgun, a plastic bag with sixteen pills that were identified and later tested positive by the Arkansas State Crime Laboratory as hydrocodone, and a backpack containing both a substance that tested positive for marijuana and drug paraphernalia were all found in the vehicle. Britt admitted to Clements that the backpack was his. At the jury trial, Clements testified how polite and cooperative Britt was even after being placed under arrest. The jury had the benefit of an audio/video recording of the traffic stop, which contained Britt's admission that he had a gun, that he is a felon, and that the backpack was his.

On February 15, 2017, the jury convicted Britt of simultaneous possession of drugs and a firearm, possession of hydrocodone, felon in possession of a firearm, possession of marijuana, possession of drug paraphernalia, and a speeding violation. He was sentenced to fifty-six years in the Arkansas Department of Correction on the three felony convictions, concurrent sentences of six months on the misdemeanors, and a total fine of $10,050. Britt timely filed a notice of appeal and retained appellate counsel, but he voluntarily dismissed his direct appeal on January 25, 2018. On February 8, 2018, he filed a petition for postconviction relief under Rule 37, claiming ineffective assistance of trial counsel and asking for a new trial. After a hearing, the trial court entered an order denying Rule 37 relief on May 3, 2019. Britt now timely appeals from that order.

When reviewing a trial court's ruling on a Rule 37.1 petition, we will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Sorum v. State , 2019 Ark. App. 354, at 3–4, 582 S.W.3d 18, 22. 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 mistake has been committed. Id.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In asserting ineffective assistance of counsel under Strickland the petitioner must first demonstrate that counsel's performance was deficient. Gould v. State , 2019 Ark. App. 418, 585 S.W.3d 182. 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 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. 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. Vaughn v. State , 2017 Ark. App. 241, 519 S.W.3d 717. 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. Id.

At the evidentiary hearing on Britt's petition, Clements and Phillip Moon, Britt's trial counsel, testified. Clements testified to the events of the traffic stop and stated that he would have arrested Britt regardless of his admissions because Britt had an outstanding warrant. Moon testified concerning his representation of Britt below and stated that he was hired specifically to take the case to trial. Moon testified that he discussed with Britt from the beginning that he would need to testify if he wanted to go to trial. Moon testified that during his representation, he communicated with Britt about twenty-five times. In order to get Britt the lightest sentence possible, his strategy was to have Britt admit being a felon in possession of a firearm and possession of marijuana and drug paraphernalia but not admit possession of the hydrocodone pills. Moon elaborated that his strategy was for the jury to find that Britt was a credible witness and that while he was guilty of the other offenses, he was telling the truth that the hydrocodone pills were not his. The gist of the defense was that since the car was rented, Britt did not know that the hydrocodone pills were in the vehicle because the pills were found on the floor between the driver's seat and console, separate from the backpack. If the jury believed him and found him not guilty on that charge, he would have been found not guilty on the simultaneous-possession charge and the possession-of-hydrocodone charge—the two crimes most likely to draw the heaviest penalties. Moon testified that his strategy fell apart when Britt decided midtrial that he no longer wanted to testify.

When asked why he did not file a motion to sever the possession-of-a-firearm-by-certain-person charge, Moon testified he did it as a strategy decision because he believed Britt would testify in his defense. He stated that he explained to Britt that he would have to admit certain things regarding his prior record to lend himself credibility. Moon testified that he chose not to stipulate to the previous convictions because there was always the possibility the State could have messed up in attempting to get the conviction introduced. Moon testified that he did not move to suppress or file a motion in limine to exclude any admissions or prejudicial statements made by Britt because in his experience, it would not have been successful.

Britt's postconviction counsel also asked Moon why he did not move for a directed verdict on the simultaneous-possession charge because counsel claimed the State failed to meet the elements of the crime, specifically, that Britt was in possession of a firearm. Moon explained that he believed the State had met its burden because he relied on the jury instruction and that the situation met the definition of a firearm as contained in the jury instruction. Additionally, Britt's postconviction counsel asserted that Moon should have attacked the State's case because it failed to prove "the nexus" between the drugs and the firearm. Moon explained that "the nexus" is not an element of the crime, and regardless, the gun and the drugs were found within a foot or two of each other thus establishing a sufficient connection. Accordingly, Moon believed the State had proved its prima facie case. Moon also referred to his defense strategy that Britt was not in simultaneous possession because the hydrocodone pills were not his.

Concerning Britt's habitual-offender status, Moon testified that he argued prior to trial that because Britt had previously been sentenced under Act 346, he was not, in fact, a convicted felon.¹ He explained that the trial court overruled his argument but that he preserved it. Moon testified that if he had been successful in convincing the jury that Britt was not in possession of the hydrocodone pills, he would not have been convicted of the simultaneous-possession-of-drugs-and-firearm and possession-of-hydrocodone charges; further, if his Act 346 argument was appealed and found to be correct that potentially Britt would be exonerated of everything except the misdemeanors.

In a thirteen-page order, the trial court denied Britt's Rule 37 petition. The trial court found that Moon is an experienced criminal trial lawyer with thirty-four years of practice, has rapport with Boone County juries, and that he had given "very credible" testimony concerning his trial strategy.

On appeal, Britt first argues that his trial counsel was ineffective for not severing the possession-of-a-firearm-by-certain-person offense from the other charges in the case. He contends that a presumed prejudice resulted.

Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for finding ineffective assistance of counsel. Hartman v. State , 2017 Ark. 7, at 4, 508 S.W.3d 28, 32. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

Here, Britt admitted...