Norris v. State

2013 Ark. 205

427 S.W.3d 626

Paul Anthony NORRIS, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–37.

Supreme Court of Arkansas.

May 16, 2013.

Paul Anthony Norris, pro se appellant.

Dustin McDaniel, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., for appellee.

PER CURIAM.

In 2009, appellant Paul Anthony Norris was found guilty by a jury of capital murder, battery in the first degree, and two counts of aggravated robbery. He was sentenced by the court to an aggregate sentence of life imprisonment. We affirmed. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52.

Appellant subsequently filed in the trial court a timely, verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009).¹ The petition was denied, and appellant brings this appeal. Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1–2(a)(8) (2012).

This court has held that it will reverse the circuit court's decision granting or denying postconviction relief only when that decision is clearly erroneous. Pankau v. State, 2013 Ark. 162, 2013 WL 1694909;Banks v. State, 2013 Ark. 147, 2013 WL 1491272. 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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.

In his petition under the Rule, appellant contended that he was not afforded effective assistance of counsel at trial. When considering an appeal from a trial court's denial of a Rule 37.1 petition, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29, 2013 WL 1488574.

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. 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 court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.

Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that 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. The language “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. 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. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Appellant raises five points on appeal. He argued in his petition that the felony information filed in his case was “duplicitous” in that it charged three separate offenses, i.e. capital murder, first-degree battery, and aggravated robbery, that occurred in one course of conduct. He contended that trial counsel should have asked for a bill of particulars that would have forced the prosecution to state the specific acts that it was relying on for a conviction on each charge. In a related claim, appellant contended that counsel should have been aware of “cross-count prejudice,” which he asserted can arise where a jury confuses the evidence for each offense, treats the evidence for the separate offenses as cumulative, and finds the accused guilty of all offenses rather than considering the evidence for each offense individually. He further contended that the counsel had a duty to object to the jury instructions that mentioned robbery when robbery was not one of the offenses specifically charged in the information. While appellant did not contend that his attorney should have sought severance of the charges for trial, he stated that he was denied the right to defend against a robbery charge and the right to assert his privilege against self-incrimination on one offense but not the others.

We cannot say that the trial court erred in denying appellant's claims with respect to the information and jury instructions. There was a three-page felony information filed in appellant's case and an additional three-page amended felony information. The four offenses of which appellant was charged, including aggravated robbery, were described. Counsel for appellant also filed a motion for discovery to which the State responded. The function of a bill of particulars is to require the State to set forth the alleged criminal act in detail and with sufficient certainty to apprise the defendant of the crime charged and enable him to prepare his defense. Grant v. State, 2010 Ark. 286, 365 S.W.3d 894 (per curiam); see alsoArk.Code Ann. § 16–85–301(a) (Repl.2005). Where the information is definite in specifying the offense being charged, the charge itself constitutes a bill of particulars. See Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). Further, even where no bill of particulars is filed, there is no prejudice to the accused on that account when the State complies with its discovery obligation. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992).

Here, appellant did not demonstrate that the defense was unaware of the offenses charged and the conduct that was alleged to have given rise to the charges. The information and amended information, taken together, spelled out the offenses with which appellant was charged, the statutes alleged to have been violated, which included a statement of the definition of aggravated robbery, and the victim of each offense. Appellant did not offer a convincing argument that there could have been any doubt as to the meaning of robbery in the context of the information or in the jury instructions, and he failed to state a valid ground on which counsel could have objected to either the information or the jury instructions as either pertained to robbery. An attorney cannot be found to be ineffective for failure to make an objection that the petitioner in a postconviction proceeding is unable to establish would have had merit. See Mitchell v. State, 2012 Ark. 242, 2012 WL 1950257.

The trial court noted in its order that appellant's challenges to the information and the jury instructions, while couched as allegations of ineffective assistance of counsel, were attempts to contest the sufficiency of the evidence against him. The court was correct that claims challenging the sufficiency of the evidence, even if framed as an allegation of ineffective assistance of counsel, are a direct attack on the judgment and are not cognizable in Rule 37.1 petitions. Davis v. State, 2013 Ark. 118, 2013 WL 1091189 (per curiam); Scott v. State, 2012 Ark. 199, 406 S.W.3d 1.

It should be noted that, if appellant is arguing on appeal that he receivedmultiple punishments for the same offense, he did not obtain a ruling on the issue; thus, he did not preserve the issue for appeal. See Howard, 367 Ark. 18, 31, 238 S.W.3d 24, 35;see also Fisher v. State, 364 Ark. 216, 217 S.W.3d 117 (2005) (It is the appellant's obligation to obtain a ruling in order to preserve an issue for appellate review.). Failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001) (per curiam).

Furthermore, assuming that appellant may have intended the claim to be an assertion that he was placed in double jeopardy, he offered no fact that supported the claim. While a fundamental claim that would render the judgment in a criminal case void is grounds for relief under Rule 37.1, even fundamental claims must be supported by facts to demonstrate that a fundamental right was denied to a particular petitioner under the facts of his or her case. Wedgeworth v. State, 2013 Ark. 119, 2013 WL 1093052 (per curiam); Crain v. State, 2012 Ark. 412, 2012 WL 5378266 (per curiam); Wells v. State, 2012 Ark. 308, 2012 WL 3364120 (per curiam).

Appellant was charged and convicted of capital murder in the death of victim Derrick Kellems, whom appellant struck on the head with a two-by-four; first-degree battery of victim Alex Ragan, whom he also struck with the two-by-four; and one count each of aggravated robbery of both Kellems and Ragan. This court found on appeal that the convictions were supported by substantial evidence, and while the robbery of Kellems was included in the capital-murder charge, a separate conviction and...