Green v. State

2020 Ark. App. 130

595 S.W.3d 423

Quentin Kyle GREEN, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-711

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: February 19, 2020

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.

KENNETH S. HIXSON, Judge

Appellant Quentin Kyle Green appeals after the Miller County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. Appellant argues in five points on appeal that the circuit court erred in denying relief because his trial counsel had a conflict of interest that was not remedied by a valid written waiver and because trial counsel was ineffective. We affirm.

I. Background

Appellant was convicted by a Miller County Circuit Court jury of rape and sexual assault in the second degree. Before addressing the allegations of ineffective assistance of counsel, it is necessary to recite the evidence adduced at appellant’s trial. Lyndi Green, appellant’s former wife, testified that she has four children. K.B. is one of her middle children. Ms. Green testified that when K.B. was ten years old, K.B. told her that appellant, K.B.’s stepfather at the time, had touched her inappropriately under her pajamas and under her panties. Appellant denied the allegations after Ms. Green confronted him about the incident. Ms. Green testified that on that same night that she confronted appellant, appellant indicated that he thought about killing himself. After that incident, Ms. Green had K.B. stay with her grandparents and took K.B. to see a counselor. A few days later and after further conversations with Ms. Green about the ramifications of the allegations, K.B. recanted her story, apologized to appellant, and returned home. Additionally, the family went to an attorney, Michael Peek, and a video was taken of K.B. explaining that she had recanted her story. A few years later, K.B. told Ms. Green that she had lied when she had recanted her story. Additionally, K.B. told her biological father about the incident, and it was reported to law enforcement.

Officer Patsy DeHart testified that she was the investigator assigned to the case against appellant in 2016. Officer DeHart testified that law enforcement had received a call on the Arkansas State Police hotline with the allegations. Arkansas State Police Crimes Against Children Division took the initial report, and it was screened by the Arkansas Department of Human Services (DHS). Officer DeHart contacted the Children’s Advocacy Center (CAC) and arranged for K.B. to be interviewed.

Melanie Halbrook, a forensic interviewer at the CAC in Benton County, testified that she had interviewed K.B. K.B. was fifteen years old at the time of the interview. Ms. Halbrook testified that during the interview, K.B. disclosed that appellant had digitally penetrated her when she was ten or eleven years old. Although K.B. reported that the first time it happened when she was about ten years old, K.B. indicated that appellant had continued to inappropriately touch her on subsequent occasions. K.B. additionally disclosed to her that she had falsely recanted her story after the first incident because her mother did not believe her. Ms. Halbrook testified that over eighty-five percent of children will recant their statements when there is a lack of maternal support and the abuse is by a male caretaker. Ms. Halbrook further testified that of the eighty-five percent of children who recant, about ninety-three percent of them will later reaffirm those allegations. Regarding the video that was taken in Mr. Peek’s office, Ms. Halbrook testified that the interview was not conducted under the protocols used by her office. She testified that Mr. Peek used a lot of direct questions, forced multiple-choice answers, legal jargon, and hypothetical questions, all of which she avoids. Ms. Halbrook testified that after her interview, she opined that K.B.’s statement and body language were consistent with sexual abuse. Videos of both interviews were played for the jury.

Ky.B. testified that she is K.B.’s older sister. According to Ky.B., when K.B. was ten or eleven years old, K.B. told her about an incident in which appellant had come into K.B.’s room one night and inappropriately touched K.B.’s "girl parts." Ky.B. testified that her sister was "hysterically crying, like bawling her eyes out" when she told her about the incident.

D.H., K.B.’s friend, testified that in January or February 2016, she attended an overnight church retreat with K.B. That night, K.B. told D.H., along with several other girls in attendance, that appellant had inappropriately touched her when she was approximately ten years old. D.H. described K.B. as emotionally weak, hanging her head, and crying some while making the statement.

K.B. testified and described in detail two incidents in which appellant inappropriately touched her. K.B. testified that on at least one occasion, appellant digitally penetrated her vagina. K.B. admitted that she recanted her story after telling her mother about one of the incidents and that she had lied during the video that was recorded in Mr. Peek’s office. She explained that her mother did not believe her story at that time and that she felt the counselor also did not believe her. In 2016, after Ms. Green and appellant had divorced in 2015, K.B. attended a church retreat. K.B. testified that she told her friends at the event that appellant had, in fact, inappropriately touched her despite her prior statements to the contrary. Afterward, she told Ms. Green and her biological father that she had not made up the story about the incidents.

Appellant testified and denied the allegations. Appellant indicated that when K.B. made the initial allegations, she was angry with her mother and wanted to live with her biological father. He did not know why she realleged the allegations. Appellant further denied that he had ever threatened suicide to Ms. Green.

Mr. Peek testified that he had interviewed K.B. after appellant and Ms. Green hired him. At that time, K.B. had initially accused appellant of inappropriately touching her and then recanted her story. Mr. Peek explained that it was not his duty to find out the truth but to protect his client who paid him. Mr. Peek testified that he does not necessarily model his interview on CAC’s protocols. However, he does try to avoid leading questions on all material parts and felt that he did so during K.B.’s interview.

Appellant finally offered two character witnesses on his behalf. Appellant’s grandmother testified that appellant had never touched anyone inappropriately to her knowledge or do anything that would cause her concern. Furthermore, appellant’s pastor testified that he did not have any concerns about appellant being around either of his children or his grandchildren.

After all evidence had been presented, including the videos from both interviews, the jury found appellant guilty of rape and sexual assault in the second degree, and appellant was sentenced to serve consecutively 300 months and 60 months in the Arkansas Department of Correction, respectively. After appellant’s conviction, he appealed, arguing that the trial court abused its discretion in refusing to allow defense counsel to inquire of an expert witness concerning her previous testimony in an unrelated case. We affirmed on direct appeal because we were precluded from addressing appellant’s arguments. Green v. State , 2018 Ark. App. 38, 2018 WL 523256.

II. Petition for Postconviction Relief and Rule 37 Hearing

Following our affirmance, appellant filed his petition for postconviction relief alleging that he was entitled to relief because (1) defense counsel had a conflict of interest not remedied by a valid waiver; (2) trial counsel was ineffective by his failure to object to inadmissible testimony from Melanie Halbrook of the CAC; (3) counsel was ineffective by his failure to object to testimony of witnesses quoting the accuser and not seeking an instruction that their testimony was not being admitted for the truth of the matter asserted; (4) counsel was ineffective for failure to object to improper impeachment of a defense witness; and (5) counsel was ineffective by his failure to present or seek to present testimony concerning the accuser’s source or inspiration to make the original claim of abuse.¹

An evidentiary hearing on appellant’s petition was held, and appellant was represented by counsel at the hearing. Appellant’s trial counsel, Joseph Tyler, testified that he had represented appellant three or four times before this case. At the time of appellant’s trial, Mr. Tyler’s law partner, "Shorty" Barrett, was dating the elected prosecuting attorney, Stephanie Potter Black, who prosecuted appellant in this case. The two subsequently married. Although Mr. Barrett refrained from practicing criminal defense in her circuit to avoid any appearance of impropriety, Mr. Tyler did not think he had any conflict of interest under the Arkansas Model Rules of Professional Conduct. Therefore, Mr. Tyler did not obtain a written waiver, but he did make appellant aware of his partner’s relationship with Ms. Black. Mr. Tyler did not initially think Ms. Black would be participating in the trial at the time of his first conversation with appellant. However, Mr. Tyler explained that he had a second conversation with appellant approximately one month before trial after he found out that Ms. Black would be participating. Regardless, Mr. Tyler explained that at no time has he felt that his law partner’s relationship with Ms. Black affected his representation or gave him either a favorable or unfavorable edge. He further testified that he did not think Mr. Barrett’s personal interest with Ms. Black limited his representation of appellant, and Mr. Barrett was not involved in appellant’s defense in any manner.

Regarding Ms. Halbrook’s testimony,...