Pree v. State, CR-22-81

2022 Ark. 187

653 S.W.3d 347

Zavier Marquis PREE, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-81

Supreme Court of Arkansas.

Opinion Delivered: October 13, 2022

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

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

ROBIN F. WYNNE, Associate Justice

Zavier Pree appeals from the denial of his Rule 37.1 petition following an evidentiary hearing in Pulaski County Circuit Court. On appeal, Pree argues that the circuit court clearly erred by finding the following actions of trial counsel not ineffective: (1) failing to challenge the admissibility of Pree's unrecorded statements or obtain a ruling on them; (2) failing to investigate or present evidence about Pree's alleged cognitive deficiencies; (3) calling witness Khayam Thomas despite being aware that Thomas intended to offer damaging testimony against Pree; (4) failing to review the redacted recording of Pree's statement before trial and permitting an excluded portion to be played in front of the jury; (5) failing to elicit exculpatory testimony from State's witness Caitlyn Uekman; and (6) failing to elicit evidence that no gunshot residue was recovered from Pree's hands. We affirm.

Background

In 2017, a Pulaski County jury found Pree guilty of capital murder, aggravated robbery, and a firearm enhancement for the shooting death of Aaron Crawford and the theft of his vehicle.¹ Pree was sentenced to life imprisonment without parole, forty years (concurrent), and ten years (consecutive) in the Arkansas Department of Correction. We affirmed Pree's convictions on direct appeal, Pree v. State , 2019 Ark. 258, 583 S.W.3d 380, setting out the circumstances surrounding the early-morning shooting as follows:

Pree posted a Facebook status asking if anyone wanted to make quick money. The victim, Aaron Crawford, "liked" Pree's post, and the two started communicating through private messaging. Pree promised Crawford that he would pay him $300 if he gave him a ride from Jacksonville to Little Rock. On July 9, 2015, Crawford picked up Pree and drove him to the U.S. Bank ATM in North Little Rock.

While parked at the ATM, Pree shot Mr. Crawford five times. Crawford crawled out of the car and ran across the street where witnesses called 911. North Little Rock police arrived a few minutes later. Crawford was covered in blood. Although he was in and out of consciousness, Crawford told police that he had been shot and his car was stolen.

While processing the crime scene, officers found Crawford's cell phone. When they opened the cell phone, a Google Maps page popped up. The map showed directions from Pree's apartment in Jacksonville to the ATM at U.S. Bank. Crawford's phone also revealed Facebook messages between Pree and him. On the morning of the murder, Pree messaged Mr. Crawford and told Crawford to tell him when he arrived in Jacksonville.

Officers went to Pree's address and saw Crawford's stolen car nearby. Subsequently, Pree and two females got into the stolen vehicle. Pree was immediately arrested.

Id. at 1–2, 583 S.W.3d at 381–82.

After his convictions were affirmed on direct appeal, Pree filed a petition for relief under Arkansas Rule of Criminal Procedure 37 and, with the circuit court's permission, an amended petition for relief under Rule 37. The circuit court held an evidentiary hearing on July 7, 2021, hearing the testimony of Pree's mother, Darlene Pree; trial witness Caitlyn Uekman; psychologist James Moneypenny, Ph.D.; and trial counsel Sonia Fonticiella and Omar Greene. Greene and Fonticiella testified regarding the defense strategy at trial, which was that a third person, Anthony "A.J." Burnett, Jr., had been in the vehicle and had been the shooter—not Pree. The parties stipulated that Pree's parents would have testified that Greene informed them that Dr. Moneypenny was unable to testify at trial due to a medical issue. They further stipulated that Pree himself would have testified that he was not consulted with regard to the decision to call Khayam Thomas as a defense witness. After posthearing briefs were filed, the circuit court entered a detailed order denying the petition. This appeal followed.

Standard of Review

When considering an appeal from a circuit court's denial of a Rule 37 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 circuit court clearly erred in holding that counsel's performance was not ineffective. Henington v. State , 2012 Ark. 181, at 3–4, 403 S.W.3d 55, 58. 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 made. Howard v. State , 367 Ark. 18, 26, 238 S.W.3d 24, 31 (2006). 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." Henington , supra (citing Strickland , 466 U.S. at 686, 104 S.Ct. 2052 ).

Pursuant to Strickland , 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. Maiden v. State , 2019 Ark. 198, at 3–4, 575 S.W.3d 120, 123–24. A petitioner making an ineffective-assistance-of-counsel claim bears the heavy burden of demonstrating that his counsel's performance fell below an objective standard of reasonableness. Id. 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 that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Sartin v. State , 2012 Ark. 155, at 3, 400 S.W.3d 694, 697. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. As a consequence, we need not consider the first prong of the Strickland test if we determine that counsel's alleged deficiency did not prejudice the defendant. Davenport v. State , 2013 Ark. 508, at 6, 431 S.W.3d 204, 208. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. (quoting Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ).

I. Unrecorded Statements

Turning to the points on appeal, Pree first argues that his trial counsel was ineffective for failing to challenge the admission of his unrecorded statements to Detective Gary Jones or obtain a ruling on them. Pree made these unrecorded statements as he was being transported from the detective division of the North Little Rock Police Department following a lengthy interview, which was recorded, to the county jail. On direct appeal, Pree argued that the circuit court erred by denying his motion to suppress unrecorded custodial statements to Detective Jones; however, this court held that the issue was not preserved for appeal. Pree , 2019 Ark. 258, at 8, 583 S.W.3d at 385. In this unrecorded statement Pree admitted that he shot the victim. He told Detective Jones that he got nervous and shot Crawford because of a post Crawford had made on Facebook about a shooting in Dixie. Pree argues that absent the unrecorded statements, there is a reasonable probability that the jury would have acquitted him or convicted him of a lesser offense. He contends that introduction of the unrecorded statements "shattered" trial counsel's argument, based on Pree's recorded statements, that A.J. Burnett was the shooter and that Pree was merely present.

Regardless of whether the suppression argument Pree now advances would have been meritorious on direct appeal if preserved, the circuit court did not clearly err in finding that, in light of the totality of the evidence presented at trial, Pree had not met his burden under the prejudice prong of Strickland . In Pree's recorded statement, he initially told Detective Dane Pedersen that he had borrowed the vehicle from his friend Tank to go visit his daughter. He then told the detective that an unknown person had approached the car while they were in North Little Rock and shot Tank, and Pree drove away in fear. Pree later said that he had shot Tank in self-defense after Tank pulled out a gun, or what he thought was a gun. Finally, Pree said that A.J. had been in the car and was the shooter. Pree glosses over these inconsistent stories he told during his interview when he argues that the unrecorded statements undermined the defense theory that A.J. was the shooter. In addition to the inconsistent statements to police, the evidence against Pree was compelling and included the Facebook messages between Pree and Crawford, the Google map on Crawford's phone that led back to Pree's residence, Burnett Sr.’s testimony that A.J. was at home the morning of the shooting, and Thomas's identification of Pree as the sole occupant of Crawford's vehicle as it drove away. Given the totality of the evidence, we cannot say the circuit court clearly erred in finding no reasonable probability of a different outcome at trial had the unrecorded statement been suppressed. Accordingly, we affirm on this point.

II. Cognitive Deficiencies

Pree argues next that the circuit court clearly erred by...