Michael Ryan Webb v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 1, 2001

MICHAEL RYAN WEBB

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-322

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY,

NO. CR 94-213.C

HONORABLE MARION HUMPHREY,

CIRCUIT JUDGE

AFFIRMED

Appellant, Michael Webb, was convicted by a jury of first-degree murder and first-degree battery. He was sentenced to a total of forty-six years in the Arkansas Department of Correction. We affirmed his conviction and sentence in Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). Subsequently, appellant filed a petition for post-conviction relief pursuant to Rule 37 . Before a hearing on his petition, appellant filed a petition for writ of error coram nobis with this court. We denied appellant's petition on June 30, 1997. After we denied appellant's petition for writ of error coram nobis, appellant maintained the same error coram nobis issue to the trial court in his Rule 37 petition. The trial court determined that it lacked jurisdiction to reach appellant's error coram nobis claim. The trial court also denied appellant's petition without a hearing. Subsequently, appellant appealed that decision, and we dismissed appellant's error coram nobis issue and reversed and remanded for specific written findings on his Rule 37 claims. We noted that appellant's issue regarding his amended petition was moot. See Webb v. State, CR 98-1295 (Ark. October 7, 1999). The circuit court entered specific written findings as directed by our opinion, and appellant has now appealed that decision.

Appellant's first argument in his brief challenges the trial court's refusal to consider his coram nobis petition. It appears that appellant has submitted the same argument on which we have previously ruled. The law-of-the-case doctrine does dictate that a decision made in a prior appeal may not be revisited in a subsequent appeal. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000); Mode v. State. 234 Ark. 46, 350 S.W.2d 675 (1961). We have long held that a decision in a prior appeal becomes the law of the case. Bowman v. State, 93 Ark. 168, 129 S.W. 80 (1909). In our 1999 decision, we dismissed this same argument and law-of-the-case prohibits any further discussion of this issue.

Next, appellant argues that counsel was ineffective for failing to seek out and present expert testimony to show that the bullet that killed the victim could not have come from the gun found in appellant's possession.

An allegation which is general in nature with no showing of actual prejudice to the defense is not deserving of post-conviction relief. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Here, appellant has set forth his conclusory version of the evidence presented at trial; appellant has failed to provide a summary of the alleged expert testimony or whether the testimony would have been admissible evidence. It is well settled that a ground for relief under Rule 37 which is entirely conclusory in nature is not sufficient to demonstrate that the petitioner is entitled to any relief under the rule. Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996); Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1989). Petitions which state only a conclusion are patently deficient in that there can be no showing of actual prejudice to the petitioner without factual support for the allegations made by him. A showing of actual prejudice is necessary to warrant relief under the rule. Wainwright v.State, 307 Ark. 569, 823 S.W.2d 449 (1992); Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989). Because appellant has failed to demonstrate prejudice, we affirm the trial court's finding on this point.

For his third point on appeal, appellant contends that counsel failed to preserve for appellate review the issue of the sufficiency of the State's proof. Appellant specifically argues that the proof at trial was insufficient to support appellant's convictions for murder or battery, therefore, there was a reasonable probability that the appellate court would have reversed if the issue had been preserved for appeal. We disagree.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced his defense. Judicial review of counsel's performance must be highly deferential, and a fair assessment of counsel's performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Id.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner mustshow that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair 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. In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Thomas, 322 Ark. 670, 911 S.W.2d 259.

The evidence clearly supports a conviction for accomplice liability. We have said that "when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both." Robinson v. State, 318 Ark. 33, 36, 883 S.W.2d 469, 471 (1994).

The jury heard extensive testimony from several State's witnesses concerning the altercation involving appellant. Several witnesses described the car that approached the fight from which shots were fired, and observed that Hatcher and McGarrity had been wounded immediately thereafter. McGarrity, the battery victim, told the jury about his fist fight with one of the codefendants, the volley of gunshots that took place soon after appellant's car arrived, McGarrity's gunshot wound, and Hatcher's fatal wound. The jury heard expert ballistics testimony regarding the weapons recovered from the defendants, and the conclusion that a handgun had been fired at the scene. A state medical examiner testified that Hatcher had died from the gunshot wound sustained at theshooting.

Monica Parker testified that she was at Shawn Johnson's apartment the night of the shooting. She said that appellant, Chad Jones, Jason Carter, and Jason Wilbanks came to the apartment between twelve and twelve thirty. According to Ms. Parker, appellant came in carrying a long-barreled gun over his shoulder, and he made the comment, "I shot someone but the bad thing about it is I had to throw my taco supreme at them." Jessica Fleming, who was also present at the apartment, testified that appellant was carrying a gun and stated that he thought he got one.

The evidence is abundant that appellant participated as an accomplice to the murder and the battery. An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, or coerces the other person to commit the offense, or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993); see also Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996). We have said that relevant factors in determining the connection of an accomplice to a crime are "the presence of the accused in proximity of the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation." Banks v. State, 315 Ark. 666, 673, 869 S.W.2d 700, 704 (1994). The State presented evidence by which the jury could conclude that appellant aided in the commission of these offenses; therefore, his culpability was not affected by which bullets actually killed Hatcher and wounded McGarrity. Robinson v. State, 318 Ark. at 36, 883 S.W.2d at 471; Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

Based on the foregoing, appellant did not demonstrate that he was prejudiced by counsel's error in failing to renew his directed verdict motion. While appellant was not able to directly appeal the sufficiency of the evidence, there was substantial evidence to support the verdict. Appellant didnot prove the second prong of the Strickland test and was thus not denied the right to a fair trial.

Next, appellant contends that counsel was ineffective for failing to argue and preserve for appellate review the argument that the trial court erred in failing to give a "mere presence" jury instruction.

DEFENDANT'S REQUESTED INSTRUCTION NO. 2

Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice. Therefore, if you find that Ryan Webb was only present while a crime was being committed and did not have a legal duty to act, then he is not an accomplice. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988).

Defense counsel requested the instruction; however, the State objected arguing that the instruction was not an AMCI instruction. The trial court noted that it was inclined to give AMCI instructions and that the definition of accomplice in AMCI was sufficient.

Appellant argues that the "mere presence" instruction was warranted in this case and that it violated due process to refuse it. Appellant notes that on direct appeal we refused to address appellant's due process argument because appellant had failed to federalize the argument in the trial court. Therefore, appellant contends that counsel was ineffective for failing to preserve the issue.

We disagree with appellant's interpretation of our previous opinion on direct appeal. We clearly held that:

In these circumstances, we conclude Webb would not have been entitled to a "mere presence" instruction even if it had been in AMCI2d. In addition, we emphasize, too, that our law is well settled that, when a trial court determines that the jury be instructed on an issue, the model criminal instructions shall be used unless the trial court concludes it does not accurately state the law. Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). Here, AMCI2d 401 on accomplice liability was clearly applicable to the facts of this case, and required no further explanation of the law.

We addressed the issue and determined that appellant was not entitled to the "mere presence" instruction. Because of our previous finding, appellant has failed to show how he was prejudicedby his attorneys' failure to preserve the issue.

Appellant's fifth point challenges counsel's failure to call witnesses on appellant's behalf. Appellant argues that counsel should have called Jim King, Bonnie Gross, Benton Parker, and Brad Duke. According to appellant, Mr. King could have testified that Ms. Parker was not sure if appellant had made the statement "I think I got one." It is appellant's contention that Ms. Gross would have corroborated Mr. King's testimony. Appellant also claims that Mr. Parker and Mr. Duke could have testified that the deceased was hit by one of the first two shots that were fired.

Upon review of this issue, we note that appellant has failed to submit any affidavits of the alleged witnesses' testimony. We only have appellant's statement as to how these witnesses would testify. A bare allegation that there are witnesses that could have been called in the petitioner's behalf will not support a claim of ineffective assistance of counsel. Decisions involving which witnesses to call to benefit a case lie purely within the realm of counsel's trial tactics. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). The petitioner has not shown that counsel's decision not to call any particular witness amounted to more than a strategy decision and, as a result, the allegation provides no basis for Rule 37 relief. In addition, we would note that appellant has failed to demonstrate that counsel's errors undermined the confidence in the outcome of the trial. The petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

Appellant's remaining points on appeal were not raised in his Rule 37 petition. Additionally, the points that were raised in appellant's amended petition are not before us because the trial court denied appellant leave to amend. Appellant also failed to renew his request to amend his petitionafter we reversed and remanded this case previously. See Webb v. State, CR 98-1295 (Ark. October 7, 1999). We have consistently held that issues not before the lower court will not be addressed here for the first time. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995); Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974). Consequently, we do not reach the merits of appellant's arguments on appeal.

Affirmed.