Wright v. State, CR-21-383

2022 Ark. App. 381

653 S.W.3d 803

Noah Douglas WRIGHT, Appellant

v.STATE of Arkansas, Appellee

No. CR-21-383

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 5, 2022

Noah Douglas Wright, pro se appellant.

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

ROBERT J. GLADWIN, Judge

Appellant Noah Wright appeals the Craighead County Circuit Court's order denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2022). Wright argues two points on appeal: that his trial counsel was ineffective and that the circuit court erred in its rulings. We affirm the circuit court's denial of Wright's petition for postconviction relief.

I. Procedural History

A. Direct Appeal

On September 7, 2018, Wright was convicted of battery in the first degree for stabbing Danny Painter in the neck with a knife and was sentenced as a habitual offender to thirty-five years’ imprisonment. Wright's sole issue on direct appeal challenged the circuit court's ruling that Painter would not be allowed to read the results of a blood-alcohol test contained in his medical records that already had been admitted into evidence because the test results were not in a form that would be commonly understood by a jury.

This court affirmed Wright's conviction in an opinion issued on September 11, 2019.¹ See Wright v. State , 2019 Ark. App. 364, at 6–7, 584 S.W.3d 711, 714. Specifically, we held that Wright's claims of due-process and confrontation-clause violations were not preserved for appeal. We also noted that his claim that the circuit court erred under Arkansas Rule of Evidence 403 by finding that the testimony would be more prejudicial than probative was preserved. Nonetheless, we held that this preserved argument was unavailing because there was a danger that the jury would confuse the results number with the more common measurement of blood-alcohol content and because there was no expert to explain the differences. Id. at 7, 584 S.W.3d at 714–15. We further held that the testimony would have been more prejudicial than probative because the drug and alcohol use of a victim when justification is at issue typically is inadmissible when the defendant is unaware of the fact. Id. at 7–8, 584 S.W.3d at 715. Finally, we stated that even if the circuit court's ruling was in error, the error was harmless because Painter confirmed he had consumed two or three beers that day, and Wright's trial counsel was able to argue about the results of the blood-alcohol test in the medical records during closing argument. Id. at 8, 584 S.W.3d at 714.

B. Rule 37 Petition and Amended Petition

Wright filed a timely pro se petition for relief under Rule 37 on December 3, 2019, with the Craighead County Circuit Court, alleging that trial counsel was ineffective for allowing the medical report to be entered into evidence without an expert witness, for allowing the prosecutor to "testify" by reading portions of the medical report to the jury without objection, and for failing to procure an expert witness to testify regarding the results of the blood-alcohol test.

The State did not file a response to Wright's pro se Rule 37 petition. The circuit court held a hearing on the matter on August 19, 2020, with Wright participating via Zoom. Wright's trial counsel, William Stanley, testified at the hearing that he had informed Wright of his opinion as to the merits of a self-defense claim and that the minimum sentence if a jury found him guilty would be thirty years’ imprisonment because he was a habitual offender. On this basis, trial counsel advised Wright to take the State's plea offer of fifteen years’ imprisonment, but Wright refused.

Trial counsel also testified that he did not see an evidentiary basis for excluding the medical records based on relevance and the Hospital Records Act of 1995, codified at Ark. Code Ann. § 16-46-108 (Repl. 1999), which states that medical records kept as required by Arkansas Rule of Evidence 803(6) (2022) shall be admissible in evidence if accompanied by an affidavit of the custodian of the records and proper notice is given to the opposing party.

Trial counsel noted that Wright was adamant that he had a right to defend himself; thus, the trial strategy was to present a justification defense. Pursuant to this strategy, trial counsel chose not to hire an expert to testify as to blood-alcohol content because such testimony would have shown that Painter's blood-alcohol content was quite low—sixty-four times less than the legal limit for intoxication while driving. Instead, he chose to argue during closing that Painter's blood-alcohol content was outside the normal range delineated in the medical records. He explained that an expert would have made clear that Painter had very little alcohol in his system; however, without an expert, Stanley could assert that the testing indicated significant alcohol consumption. In addition, trial counsel noted that he attempted to emphasize the test result through the testimony of Painter; but, as previously discussed, this was ruled inadmissible by the circuit court.

On December 4, 2020, the circuit court entered a three-page written amended order that denied relief.² The order restated Wright's claims that his counsel was ineffective when he (a) agreed to the medical records being admitted without objection and (b) did not call an expert to explain the "125H < 10" result. The circuit court specifically found the following:

11. Mr. Wright's counsel allowed the records into evidence without objection and then argued to the jury that the victim's blood alcohol proved he was intoxicated.

12. This was a trial tactic decided by counsel. Counsel used the test results to his client's full advantage.

13. Had an expert been called by Mr. Wright's counsel, it would have worked to his detriment because the expert would have explained the meaning of the reading was just a trace amount of alcohol.

14. Mr. Wright's arguments regarding the confrontation clause are without merit because the victim was questioned regarding his alcohol use that day, and his state of mind, and the blood alcohol results were admitted and were argued to Petitioner's benefit in an attempt to mislead the jury to believe the victim had a blood alcohol level in excess of (.08%) or that he was intoxicated.

15. A reading of the Court of Appeal's opinion shows that [Mr. Wright] brought up the same issues on Appeal. Opinion attached hereto as Exhibit "A."

16. [Mr. Wright] was granted a post-conviction hearing on the issues in this opinion on August 19, 2020.

17. Due to Covid-19 concerns, [Mr. Wright] appeared at the hearing via video appearance.

18. [Mr. Wright] was allowed to question witnesses and make arguments during the hearing.

19. During the hearing [Mr.] Wright's Attorney, Bill Stanley testified that he knew the victim's blood alcohol level of "125H" was positive for some alcohol via the hospital test but, at the same time he knew it was below the (.08) required for intoxication for the "legal" test and that he and his client's strategy was to create a question in the minds of the jury regarding the victim's intoxication.

20. Mr. Stanley, attempted to have the victim read the results and was overruled, that ruling was upheld on appeal.

21. Mr. Stanley then argued to the jury in closing that the victim was intoxicated.

22. There was no evidence that the victim was intoxicated other than the test results.

23. Even though [Mr. Wright] could not meet the threshold requirement of showing that he knew the victim was intoxicated, the evidence of intoxication test result was allowed into evidence for other reasons (justification defense).

24. [Mr.] Wright argued that his attorney should have called an expert witness to explain the blood alcohol test results to the jury. However, Mr. Stanley testified that an expert witness would have explained the victim's blood alcohol was a minute level and less than the (.08) required for intoxication and that would have hurt his case and he wouldn't have been able to argue intoxication to the jury.

The circuit court noted that in a Rule 37 proceeding, the burden of proof is on the petitioner to prove his allegations for postconviction relief., see Ali v. State , 2021 Ark. App. 482, at 5, 2021 WL 5818883. The circuit court concluded: "After hearing counsel's arguments, this [c]ourt finds that not only did [Mr. Wright] not meet his burden of proof for Rule 37 relief but, [Mr. Wright] provided no proof at all that his counsel erred or was ineffective on his behalf." Wright filed a timely notice of appeal on December 22, 2020.

II. Standard of Review and Applicable Law

We recently reiterated the standard of review in postconviction-relief cases in Avery v. State , 2022 Ark. App. 248, at 6–7, 645 S.W.3d 374, 379–80 (quoting Baumann v. State , 2021 Ark. App. 58, at 6–7, 2021 WL 479781 ):

When reviewing a circuit court's ruling on a petitioner's request for Rule 37.5 relief, this court will not reverse the circuit 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 made. Id. , 60 S.W.3d at 406.

When considering an appeal from a circuit court's denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the Supreme Court of the United States 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. Sparkman v. State , 373 Ark. 45, 281 S.W.3d 277 (2008). In making this determination, we must consider the totality

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