Joyner v. State

2021 Ark. 78

621 S.W.3d 124

Timothy Justin JOYNER, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-245

Supreme Court of Arkansas.

Opinion Delivered: April 15, 2021

The Seddiq Law Firm, by: Justin Eisele, Benton, for appellant.

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

KAREN R. BAKER, Associate Justice

On December 13, 2007, a Stone County Circuit Court jury convicted appellant, Timothy Justin Joyner, of four counts of rape and one count of terroristic threatening. Joyner was sentenced to forty years on each count of rape and six years on the count of terroristic threatening, all to run concurrently. We affirmed his convictions and sentences in Joyner v. State , 2009 Ark. 168, at 1, 303 S.W.3d 54, 55. Joyner was convicted of raping his girlfriend's daughter, S.O. The relevant facts as we recounted in Joyner's direct appeal are as follows:

On May 17, 2006, an information was filed charging Appellant with four counts of rape, each of which was a class "Y" felony in violation of Arkansas Code Annotated § 5-14-103. Each count charged him with unlawfully and feloniously engaging in sexual intercourse or deviate sexual activity with S.O., who was less than fourteen years of age.

On April 25 and December 13, 2007, Appellant filed motions to admit evidence of prior sexual conduct of S.O., specifically evidence that she had made prior allegations of sexual assault against other males in a familial relationship. Appellant alleged that S.O. was the victim of two prior sexual assaults. He claimed that the evidence of two prior sexual assaults could be the cause of injury to S.O.’s vaginal area. The two alleged incidents involved a man named Lavelle in 2000 and a man named Chuck McGhee in 2001.

On December 17, 2007, the Stone County Circuit Court held an in camera hearing on the rape-shield motion. Appellant called Tammy Mosley, the mother of S.O.’s best friend, D.D., who testified that she had knowledge of previous sexual abuse of S.O. Appellant also presented an affidavit of Tammy stating that she had "first-hand knowledge of the molestation of [S.O.] by Mr. [McGhee] in 2001" and that "[S.O.] was not a virgin when she accused [Appellant] of rape." Appellant also offered the affidavit of D.D., Tammy's daughter. The affidavit was excluded on hearsay grounds, but was proffered into the record. D.D.’s affidavit stated that both she and S.O. were touched in their private areas by Lavelle, that S.O. was molested many times in 2000 and 2001, and that S.O. was not a virgin when she accused Appellant of rape. It was reported to Human Services that S.O.’s mother walked in on Chuck McGhee having sex with S.O. After the testimony of Tammy and D.D., Appellant asked to call S.O. to testify in the in camera hearing.

Relying on Sterling v. State , 267 Ark. 208, 590 S.W.2d 254 (1979), the circuit court ruled that there is no requirement for S.O. to present herself for questioning by the accused and denied Appellant's request to call S.O. to the stand. The circuit court ruled that Appellant did not offer proof that the alleged prior act occurred and that the rape-shield statute precluded any inquiry into the prior sexual conduct of S.O.

On the first day of trial, Jennifer Beaty, the DNA analyst from the Arkansas Crime Lab, testified that DNA found on a pair of S.O.’s underwear belonged to S.O. within a reasonable degree of scientific certainty. At the beginning of Appellant's cross-examination of Beaty, he moved for a mistrial on the grounds that she had changed her opinion and that he would not be able to effectively cross-examine her due to the sudden change in her opinion. The circuit court denied the motion for mistrial on the basis that it was not timely made and because all of the materials from Beaty's file had been supplied to Appellant.

On December 20, 2007, Appellant moved for a new trial pursuant to Arkansas Code Annotated section 16-89-130 and Arkansas Rule of Criminal Procedure 33.3(a), arguing again that he never received notice of Beaty's changed opinion. The circuit court reaffirmed its previous ruling that the motion for mistrial was not timely and denied Appellant's motion for new trial.

Joyner , 2009 Ark. 168, at 1–4, 303 S.W.3d 54, 55–56 (alterations in original).

On February 1, 2010, Joyner timely filed his original Rule 37 petition alleging five grounds for relief. On December 21, 2011, Joyner filed a motion for expanded Rule 37 petition. On October 13, 2015, the circuit court denied the motion for expanded petition. On February 24, 2017, Joyner filed a motion for leave to amend Rule 37 petition and attached his proposed amended petition, which had six grounds for relief. The State responded, filed a motion to dismiss based on delay and failure to prosecute, and filed a motion to strike Joyner's amended petition, and Joyner replied. The circuit court denied the State's motion to strike and allowed the amended petition. On May 23, 2019, the circuit court held a Rule 37 hearing. On February 6, 2020, the circuit court denied Joyner's petition.

Joyner now brings this timely appeal and presents five points on appeal: (1) the circuit court clearly erred in finding that trial counsel was not deficient for failing to secure a mistrial when undisclosed expert-opinion testimony was first revealed during trial in violation of the Arkansas rules of discovery; (2) the circuit court clearly erred in finding that trial counsel was not deficient for failure to secure admissible relevant evidence; (3) the circuit court clearly erred in finding that trial counsel was not deficient for failure to give effective assistance of counsel during plea negotiations; (4) trial counsel was ineffective based on the cumulative errors in the case; and (5) the circuit court abused its discretion in striking the testimony of Joyner's expert witness, Thomas Pavlinic. We affirm.

I. Standard of Review

"On appeal from a trial court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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. " Prater v. State , 2012 Ark. 164, at 8, 402 S.W.3d 68, 74.

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 [v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984) ]." Henington v. State , 2012 Ark. 181, at 3–4, 403 S.W.3d 55, 58. 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). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Springs v. State , 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show 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. 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. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783 ; Hinton v. State , 2019 Ark. 136, at 7–8, 572 S.W.3d 381, 386–87.

"With respect to an ineffective-assistance-of-counsel claim regarding the decision of trial counsel to call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Banks v. State , 2013 Ark. 147, 2013 WL 1491272. When a petitioner alleges ineffective assistance of counsel for failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Wertz v. State , 2014 Ark. 240, at 4, 434 S.W.3d 895, 900 (citing Moten v. State , 2013 Ark. 503, 2013 WL 6327549 (per curiam)). To demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Hickey v. State , 2013 Ark. 237, 428 S.W.3d 446. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Finally, ‘[w]hen assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the...