Gordon v. State

539 S.W.3d 586

Ivor GORDON, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–968

Supreme Court of Arkansas.

Opinion Delivered March 8, 2018

Ivor Gordon, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

Appellant Ivor Gordon appeals from the denial of his pro se petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016), which alleged the following grounds for relief: (1) that his trial counsel failed to seek suppression of Gordon's custodial statement; (2) that trial counsel was ineffective for failing to conduct an adequate pretrial investigation; (3) that trial counsel failed to interview witnesses, "allege codefendants," and investigate all statements and notes that were a part of the record or discovery, i.e., counsel failed to investigate Gordon's only possible defense; (4) that trial counsel was ineffective for failing to call or interview Danny Brown, Quentin Jones, or T. Brown; (5) that trial counsel failed to "properly introduce Mr. Jones to the jury as a witness in the case against [ ] Gordon[,]" although Jones was alluded to several times during the trial; (6) that trial counsel was ineffective for making remarks during voir dire, counsel was "fact qualifying" for the jury, and trial counsel showed hostility toward Gordon's "case in chief during [v]oir [d]ire"; (7) and that trial counsel was ineffective for failing to object to improper jury instructions. The trial court denied the petition without an evidentiary hearing, noting that the record demonstrated that the petition failed to allege explicit grounds for postconviction relief.¹ We affirm.

Standard of Review

This court reviews the trial court's decision on Rule 37.1 petitions for clear error. Russell v. State , 2017 Ark. 174, 518 S.W.3d 674. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the totality of the evidence, is left with the definite and firm conviction that a mistake has been committed. Polivka v. State , 2010 Ark. 152, 362 S.W.3d 918.

Procedural History

Gordon was convicted of capital murder and criminal attempt to commit capital murder, for which he was sentenced as a habitual offender to life imprisonment without parole and life imprisonment, respectively, with enhancements for using a firearm and committing the offenses in the presence of a child. Gordon v. State , 2015 Ark. 344, 470 S.W.3d 673. His attorney, Patrick Benca, filed a no-merit brief pursuant to Arkansas Supreme Court Rule 4–3(k) and Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting no nonfrivolous issues for appeal, as well as filing a motion to withdraw as counsel. Gordon filed pro se points for reversal. After the State responded and certified that all adverse rulings were included in appellant's brief and stated that there were no other issues that involved potentially prejudicial error to Gordon, we reviewed the record, briefs, and pro se points, and affirmed the convictions and granted counsel's motion to withdraw. Gordon , 2015 Ark. 344, 470 S.W.3d 673.

The evidence presented at trial, briefly summarized, included that this was a murder-for-hire case. According to Gordon's statement to police, Gordon was hired by Danny Brown to kill Edwina Martin, Brown's ex-girlfriend and mother of his children.² Gordon and Quentin Jones,³ waited for Martin outside her mother's apartment, and when Martin and her boyfriend, Daniel Hill, arrived, Gordon and Jones followed them into the apartment, where Martin's mother and ten-year-old nephew were present. Once inside, Gordon shot Martin, at which point Hill tackled Gordon and took the gun away. Jones then shot Hill in the head. Hill died and Martin survived gunshot wounds to her chest and hip. Gordon was paid $250 before the shooting and was to later receive a 2002 Chevrolet Suburban and an additional $220. Walmart video-surveillance cameras and phone records confirmed that Gordon had been in contact with Brown. Both Martin and her nephew identified Gordon from photographic lineups as the shooter. Trial counsel's defense strategy "was to convince the jury that Gordon was not guilty of capital murder but, instead, of first- or second-degree murder." Gordon , 2015 Ark. 344, at 3, 470 S.W.3d at 675.

Ineffective Assistance of Counsel

Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rasul v. State , 2015 Ark. 118, 458 S.W.3d 722. 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, 104 S.Ct. 2052. To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Van Winkle v. State , 2016 Ark. 98, 486 S.W.3d 778. Unless a petitioner makes both showings, the allegations do not meet the benchmark on review for granting relief on a claim of ineffective assistance. Houghton v. State , 2015 Ark. 252, 464 S.W.3d 922.

To satisfy the first prong of the Strickland test, the petitioner must show that counsel's performance was deficient by a showing 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. Van Winkle , 2016 Ark. 98, 486 S.W.3d 778. Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington v. State , 2012 Ark. 181, 403 S.W.3d 55. A petitioner has the burden of overcoming the presumption that counsel is effective 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. Id.

To satisfy the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Van Winkle , 2016 Ark. 98, 486 S.W.3d 778. 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 the sentencing. Id.

Unless a petitioner makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Therefore, there is no reason for a court to address both components of the inquiry if the petitioner fails to make a sufficient showing on one. Id.

I. Motion to Suppress Custodial Statement

For his first point on appeal, Gordon argues that trial counsel was ineffective for failing to object and file a motion to suppress his "Miranda rights form and custodial statement in violation of [his] [F]ifth and Sixth Amendment Rights to the United States Constitution and Rule 4.5 (Limitation on Questioning), of the Arkansas Rules of Criminal Procedure." He further argues that being "identified by two eye witnesses is a point that is irrelevant and should not have been considered [because he] does not contest being at the scene or even committing the crime." Gordon contends he was entitled to an evidentiary hearing to prove his claims and prejudice.⁴

A petitioner seeking postconviction relief on a claim of ineffective assistance that is based on a failure 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. See Greene v. State , 356 Ark. 59, 146 S.W.3d 871 (2004). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Id.

Here, although Gordon contends that the recording of his custodial interview was stopped at his request because he invoked his right to remain silent, the record from the direct appeal indicates otherwise.⁵ Prior to the recording being stopped for the first time, Detective John White and Detective DeWanna Phillips confirmed Gordon's basic information, that he had been read his Miranda rights, that he was able to read and write, that he had not been threatened or promised anything, that he could stop the interview at any point, and that he had signed the waiver form.⁶ After confirming this information, Detective White asked Gordon, "You saying you don't want to record it now?" Gordon responded by stating, "I don't want it recorded." Detective White turned off the recording, and after a few minutes, the second recording was made. Detective White acknowledged on the second recording that they took a break from recording because Gordon had concerns about the safety of his family and that Gordon wished the interview "would be sealed until ... [p]eople were picked up." These recordings were played at trial.

The trial court found that there was no evidence in the record to suggest that Gordon was not properly advised of his rights or that he did not give a knowing and intelligent waiver of those rights. The trial court further found that Gordon's argument disregarded that two eyewitnesses had identified him, and that he was not entitled to relief.

Here, the record demonstrates that Gordon admitted he committed the offenses, and the eyewitness testimony confirmed that he committed the offenses notwithstanding the admission of his statements. The record further demonstrates that Gordon did not invoke his right to remain silent. Gordon simply requested that his statement not be recorded at that time, which does not rise to the level of...