McNeil-Lewis v. State

696 S.W.3d 300

2024 Ark. 127

Sir Jeffery MCNEIL-LEWIS, Appellant

v.STATE of Arkansas, Appellee

No. CR-24-243

Supreme Court of Arkansas.

Opinion Delivered: September 19, 2024

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-21-104], HONORABLE RANDY F. PHILHOURS, JUDGE

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Tim Griffin, Att’y Gen., by: David L. Eanes Jr., Ass’t Att’y Gen., for appellee.

RHONDA K. WOOD, Associate Justice

₁This is an appeal from the denial of postconviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. The petition asserted many claims of ineffective assistance of counsel, but the circuit court rejected them all. We affirm the circuit court’s judgment.

I. Factual Background

Sir Jeffery McNeil-Lewis was convicted of first-degree murder, first-degree battery, eight counts of terroristic threatening, and firearm enhancements. McNeil-Lewis received life in prison plus fifteen years. The convictions arose from a shooting at an abandoned house in West Memphis. Along with an accomplice, McNeil-Lewis fired shots at Jarvis Moore and Stacy Abram, who were sitting in front of the house on a lunch break from repairing the house. Moore died from a gunshot wound to the head. Abram survived and identified McNeil-Lewis as one of the shooters.

₂Other evidence tied McNeil-Lewis to the crimes. McNeil-Lewis was apprehended at the crime scene and had been seen leaving his sister’s house from across the street. Guns were recovered from the sister’s house; expert testimony tied these guns to the shootings. McNeil-Lewis had gunshot residue on his hands. Another eyewitness also identified McNeil-Lewis as the shooter. This testimony was introduced via dashcam footage from a police car because the eyewitness was unavailable for trial.

On direct appeal, McNeil-Lewis argued that admission of the dashcam footage and separate 911 calls violated the Confrontation Clause of the Sixth Amendment. We affirmed after finding the admission of the dashcam footage harmless because it was, among other things, cumulative to other evidence of guilt, such as the identification by the victim Stacy Abram. McNeil-Lewis v. State, 2023 Ark. 54, at 9, 661 S.W.3d 195, 200. We declined to address several arguments because they had been raised either belatedly or for the first time on appeal. These arguments included the following: (1) the dashcam footage and 911 calls were inadmissible hearsay; (2) the prosecutor’s closing argument during the sentencing hearing included inflammatory and prejudicial statements; and (3) a posttrial motion about a juror who failed to disclose she was the child of the former and now-deceased county sheriff.

After we issued the mandate in the direct appeal, McNeil-Lewis petitioned for relief under Rule 37 of the Arkansas Rules of Criminal Procedure. McNeil-Lewis alleged multiple grounds of ineffective assistance of counsel. The circuit court held a hearing on the petition. Multiple witnesses testified, including McNeil-Lewis and his defense counsel at trial, Addie Burks. The circuit court denied the petition. Broadly, the court concluded ₃McNeil-Lewis both failed to prove that his defense counsel had been ineffective and failed to prove prejudice. The court specifically found that McNeil "failed to prove that but for any deficiencies committed by trial counsel the outcome of the case would have been different."

The circuit court made the following specific findings on eight claims of ineffective assistance. First, about the 911 calls, the court found that defense counsel made a reasonable strategic decision to pursue the Confrontation Clause argument rather than the hearsay argument. Second, similarly, the court ruled defense counsel’s failure to raise the justification of self-defense was a strategic decision that, according to defense counsel, both she and McNeil-Lewis had agreed on before trial.

Third, regarding counsel’s failure to object during closing arguments during sentencing, the circuit court found an objection would not have affected the outcome nor "would [the sentence] have been different." Fourth, the court ruled that defense counsel’s failure to move to suppress evidence found during the search of McNeil-Lewis’s sister’s house was not prejudicial because, even without the fruits of that search, at least two other eyewitnesses identified McNeil-Lewis as the shooter, and the gunshot residue on his hands tied McNeil-Lewis to the shooting.

Fifth, on the juror-misconduct issue, the court found that McNeil-Lewis offered no proof of the juror’s actual bias, a burden necessary to sustain a Rule 37 claim about juror misconduct.

Sixth, the court rejected a claim that defense counsel failed to make a timely Batson challenge because a timely challenge would not have been meritorious— after the untimely ₄challenge at trial, the State proffered a race-neutral reason for striking the juror. Seventh, the court ruled defense counsel was not ineffective for not calling witnesses during sentencing because, according to counsel, McNeil-Lewis told her he didn’t want anyone else involved and declined to testify on his own behalf. The court also credited counsel’s strategic decision to avoid calling witnesses who might have been required to testify about McNeil-Lewis’s criminal history. Last, the court addressed McNeil-Lewis’s claim that defense counsel failed to tell him about a plea offer for second-degree murder. The court rejected this claim, crediting testimony from defense counsel that she had indeed relayed the State’s offer before trial to McNeil-Lewis, who rejected it.

McNeil-Lewis appeals all eight of these rulings. As explained below, many of McNeil-Lewis’s arguments on appeal fail to address the merits of the circuit court’s order. Arguments should directly address the substance of the circuit court’s ruling. We affirm because the circuit court did not commit clear error when it rejected the claims.

II. Law and Analysis

A. Background Law

[1–5] We review ineffective-assistance-of-counsel claims using the two-prong test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires the petitioner show both that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense. Harmon v. State, 2023 Ark. 179, at 4, 678 S.W.3d 390, 393. Our review of counsel’s performance begins with the presumption that counsel was effective. Id. To overcome this presumption and show a deficiency in counsel’s conduct, the petitioner has the burden of identifying specific acts and omissions that, when viewed from counsel’s ₅perspetive at the time of trial, could not have been the result of reasonable professional judgment. Id. at 4–5. Even if other counsel would disagree with certain trial strategy decisions, those decisions do not mean that counsel was ineffective if they constituted reasonable professional judgment. Noel v. State, 342 Ark. 35, 41, 26 S.W.3d 123, 127 (2000). Regrettable hindsight for decisions made during trial do not, alone, equate to deficient representation.

[6–9] Even when counsel’s conduct and professional judgment were deficient, the petitioner’s ineffective-assistance claim will fail unless petitioner can show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Harmon, 2023 Ark. 179, at 5, 678 S.W.3d at 393. A court does not need to decide both prongs of an ineffective-assistance claim once it has found the defendant failed to prove one of them. See Gentry v. State, 2022 Ark. 203, at 3, 654 S.W.3d 661, 665. Conclusory allegations unsupported by facts justify denying postconviction relief. See Barber v. State, 2016 Ark. 54, at 9, 482 S.W.3d 314, 322. We will not reverse unless the circuit court’s findings were clearly erroneous.

Holland v. State, 2022 Ark. 138, at 2, 645 S.W.3d 318, 321.

B. Summarily Affirm - Trial Strategy

[10, 11] The circuit court rejected two of McNeil-Lewis’s Rule 37 claims because the court concluded defense counsel’s decision stemmed from reasonable trial strategy. These rejected claims were (1) that defense counsel should have objected to the 911 calls based on hearsay in addition to the Confrontation Clause and (2) that counsel should have pursued the justification of self-defense. On appeal, McNeil-Lewis fails to specifically articulate how the ₆circuit court erred when it concluded these were reasonable strategic decisions. These sections of the brief contain, at best, conclusory statements on this point. We will not make an appellant’s argument for him, and it is incumbent on appellate counsel to present developed arguments that address how the circuit court’s specific decision was clearly erroneous. See Hendrix v. Black, 373 Ark. 266, 269, 283 S.W.3d 590, 593 (2008); Teris, LLC v. Chandler, 375 Ark. 70, 86, 289 S.W.3d 63, 75 (2008). Thus, we summarily affirm the circuit court’s decision on both points.

C. Summarily Affirm - No Prejudice

[12, 13] The circuit court also rejected two claims because McNeil-Lewis could not show a reasonable probability of a different outcome—i.e., prejudice. These rejected claims were that counsel should have objected to inflammatory statements during the State’s closing argument at sentencing and that counsel should have filed a motion to suppress the search of McNeil-Lewis’s sister’s house.

On appeal from the sentencing comments, McNeil-Lewis focuses on the argument "that the trial court clearly erred in finding this error was reasonable strategy" and makes only a cursory mention of prejudice. The argument challenging the ruling on the motion-to-suppress issue also focuses on the deficiency argument and gives a cursory mention to why there would have been prejudice.

Both of these points on appeal fail to directly contest the circuit court’s detailed no-prejudice findings. The circuit court made clear findings about the substantial proof that existed at trial....