Gordon v. State

cr99-492

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 29, 2001

ROBERT GORDON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 99-492

APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY, NO. CR 99-492, HONORABLE ROBERT W. McCORKINGDALE, II, JUDGE

AFFIRMED

Appellant Robert Gordon and his co-defendant, John Michael Priest, were tried jointly for attempted capital murder and manufacture of a controlled substance. Appellant was convicted of both offenses and sentenced to thirty-five years' imprisonment and a $10,000 fine. Mr. Priest was convicted of manufacture of a controlled substance and received a four-year suspended sentence. We affirmed appellant's convictions and sentence but reversed Mr. Priest's conviction in Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996).

Appellant subsequently filed a timely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37, alleging that his trial counsel, Dale E. Adams, had provided ineffective assistance. The circuit court denied the petition after a hearing. In this appeal, appellant submits that the circuit court erred in denying him relief. We find no error and affirm.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant 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. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, 342 Ark. at 38, 26 S.W.3d at 125.

Because the resolution of one of appellant's ineffective assistance of counsel claims requiresour determination of the sufficiency of the evidence underlying his convictions, we first reiterate the background facts that were set out in detail in our opinion in the direct appeal. See Sasser v. State, 338 Ark. 375, 379, 993 S.W.2d 901, 903 (1999). On Thursday, August 18, 1994, the Marion County Sheriff's office received a report concerning the discovery of a large marijuana plot. Investigator Carr was the first to respond to the call. Upon entering the marijuana field, Mr. Carr noticed a strand of monofilament line, a type of fishing line, running to a piece of pipe. Suspecting a trap-gun, he attempted to relay his discovery to other approaching officers. While attempting to radio the other officers, he set-off a second, unseen trap-gun which was loaded with buckshot. The resulting blast struck Mr. Carr's leg. Although severely wounded, he managed to crawl out of the field. He was found by other officers and rushed to the hospital. The officers recovered 402 marijuana plants and two trap guns constructed of galvanized pipe and rat traps.

The State's primary witness was Kenneth Godat, an accomplice. According to Mr. Godat, the marijuana plot belonged to Mr. Gordon and Mr. Priest. Mr. Godat testified that he heard the two men discussing the necessity of keeping law enforcement officials out of the plot, and that he saw the components for the trap-guns on a nearby picnic table immediately after the discussion. He claimed that he saw a trap-gun, identical to the ones found in the marijuana plot, at the cabin shared by the two men. Mr. Godat also stated that he transported the two men to the plot on the day the trap-guns were installed. The other evidence produced by the State consisted of testimony from individuals who stated they knew the marijuana patch belonged to Mr. Gordon, that he talked of protecting it with booby-traps, and that he had a partner, although the partner was not named. For the reasons below, we conclude that the circuit court did not clearly err in denying appellant's petition.

Failure to Move for a Directed Verdict based upon a

Lack of Corroboration of Accomplice Testimony

At trial, appellant's co-defendant, Mr. Priest, moved for a directed verdict based in part upon a lack of sufficient corroboration of Mr. Godat's accomplice testimony. The trial court denied the motion and allowed the case to proceed to the jury. Appellant's counsel did not make a similar motion. On appeal, we reversed and dismissed Mr. Priest's conviction, holding that the State had failed to produce evidence other than the accomplice's testimony to establish that Mr. Priest had manufactured a controlled substance. Gordon, 326 Ark. at 95-97, 931 S.W.2d at 94-95.

Appellant claims that if his trial counsel had moved for a directed verdict based upon a lack of corroboration of Mr. Godat's testimony, his convictions, like Mr. Priest's, would have been reversed and dismissed on appeal. In denying relief on this claim, the circuit court held that such a motion by appellant's trial counsel would have lacked merit and been futile because corroborating evidence of Mr. Godat's testimony was presented.

Because the circuit court determined that it would have denied the directed verdict motion had appellant's trial counsel so moved, and thus no prejudice resulted from the failure to make the motion, the appeal of that decision results in our review of whether there was sufficient evidence corroborating Mr. Godat's testimony for presentation of the case to the jury. See Thomas, 330 Ark. at 449, 954 S.W.2d at 258. Arkansas Code Annotated § 16-89-111(e)(1) (1987) provides:

(e)(1) A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

The corroboration must be sufficient standing alone to establish the commission of the offense and tend to connect the defendant with it. Flowers v. State, 342 Ark. 45, 51, 25 S.W.3d 422, 424 (2000). The test for determining the sufficiency of corroborating evidence is whether, if the testimony ofthe accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id. Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. McGehee v. State, 338 Ark. 152, 159, 992 S.W.2d 110, 115 (1999). Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id. Corroboration may be furnished by the acts, conduct, declarations or testimony of the accused. Daniels v. State, 308 Ark. 53, 58, 821 S.W.2d 778, 780 (1992). In a case based upon circumstantial evidence, relevant circumstances include the presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation, and possession of instruments used in the commission of the offense. Thomas, supra. Upon reviewing the totality of the evidence, we conclude that there was sufficient evidence corroborating the testimony of appellant's accomplice.

In addition to Officer Carr, the State presented other witnesses at trial who were not accomplices. Douglas Sauers testified that he had a conversation with appellant in which appellant stated that he, appellant, would have had some marijuana if Officer Carr had not messed things up. Mr. Sauers further testified that appellant told him that Officer Carr should have died, that he learned about booby traps from a book, and that it could sometimes get "hairy" because a person never knew when a booby trap would blow up. Mr. Sauers finally testified that appellant threatened to have him killed if Sauers said anything.

Mark Fisk testified that he overheard appellant state that Officer Carr should not have been in there, and that he got what he deserved. Bill Beach of the Arkansas State Police seized pipe wrenches and threaders belonging to appellant from a building owned by Rick Smith. Examination of the seized tools by the Arkansas State Crime Lab revealed that two of the wrenches could have produced the markings on the booby traps discovered at the marijuana plot, although the results werenot conclusive.

Barbara Belyea, appellant's ex-wife, allowed Mr. Beach to search an area of her house where appellant stored some of his belongings. Mr. Beach found and seized a book titled "Expedient Hand Grenades" and a six inch section of marijuana stalk. Ms. Belyea testified that appellant was familiar with the area where Officer Carr had been shot, and that appellant had commented to her that it would be a good place to grow marijuana. She stated that appellant had also talked about protecting marijuana patches by setting traps using three-prong fishing hooks. Ms. Belyea also testified that appellant had threatened her about testifying at his trial.

Jerry Don Haynes testified that in the Summer before Officer Carr was shot, he had bush-hogged some nearby property and destroyed several marijuana plants in the process. While doing so, one of his tractor windows was blown out by an unknown force. Haynes subsequently had a conversation with appellant. According to Haynes, appellant stated that bush-hogging so close was a good way to get your legs shot out from under you.

In light of the foregoing, appellant did not demonstrate that he was prejudiced by counsel's failure to make a directed verdict motion based upon a lack of evidence corroborating his accomplice's testimony. Ms. Belyea's testimony regarding appellant's familiarity with the area where Officer Carr was injured and the marijuana was found, and appellant's declarations to Mr. Sauers and Ms. Belyea before and after the crimes constitute sufficient corroborating evidence of the accomplice's testimony. Moreover, appellant's threats against Mr. Sauers and Ms. Belyea are alone sufficient corroborating evidence. See Sargent v. State, 272 Ark. 336, 339, 614 S.W.2d 503, 504 (1981)(holding that "proof of ill will and threats" sufficiently corroborates accomplice testimony). While appellant was not able to directly appeal any challenge to the sufficiency of the evidence, we hold that the State presented sufficient evidence to corroborate the testimony of Mr.Godat.

Finally, we decline to review appellant's claim to the extent that it purports to challenge Mr. Godat's designation as an accomplice at trial, Mr. Godat's credibility, and the sufficiency of the evidence supporting his convictions. Rule 37 is a postconviction remedy, and as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Kennedy v. State, 338 Ark. 125, 129, 991 S.W.2d 606, 608 (1999). Appellant's trial counsel did not challenge the designation of Mr. Godat as an accomplice at trial, and appellant did not allege in his Rule 37 petition that he was ineffective in failing to do so. Likewise, Rule 37 is a means for collaterally attacking a judgment, whereas the credibility of a witness is a matter for trial because it constitutes a direct attack. Wainwright v. State, 307 Ark. 569, 580, 823 S.W.2d 449, 455 (1992). Sufficiency challenges cannot be raised in Rule 37 proceedings. Sanford v. State, 342 Ark. 22, 28, 25 S.W.3d 414, 418 (2000). The denial of relief on this claim is affirmed.

Failure to Challenge Ms. Belyea's

Testimony on Grounds of Marital Privilege

Appellant claims that his trial counsel was ineffective in failing to challenge his ex-wife's testimony concerning appellant's declarations that the area where Officer Carr was eventually shot was a good place to grow marijuana and that he planned to booby trap his marijuana patches with fishing hooks. Appellant contends that those declarations were made during his marriage to Ms. Belyea, and were therefore subject to exclusion under Ark. R. Evid. 504, Husband-wife privilege. The circuit court denied this claim below, finding that no proof was presented on the existence of the marriage and that clients do not always advise their attorneys accurately as to when the bonds of matrimony are dissolved. In order for appellant to prevail on this claim on appeal, he must show that his counsel's failure to object constituted deficient performance, and that, but for the deficientperformance, there is a reasonable probability that the jury would have reached a different decision. Thomas, supra.

Ms. Belyea testified that she was married to appellant for three years, and that they were divorced in July of 1994. The events giving rise to the crimes in this case occurred approximately one month later, on August 18, 1994. Ms. Belyea testified that in the Summer of 1993, appellant told her that he was thinking about protecting his marijuana patches by setting booby traps using three-prong fishing hooks. She also testified that she and her ex-husband trapped minnows near the area where Officer Carr was shot, and that during the time she was married to appellant, he commented to her that the area would be a good place to grow marijuana. Therefore, we hold that the circuit court clearly erred in concluding that the evidence failed to show that appellant was married to Barbara Belyea at the time he made the above declarations.

We also hold that appellant's trial counsel's performance was deficient in failing to challenge Ms. Belyea's testimony concerning the declarations on the ground of spousal privilege. Arkansas Rule of Evidence 504(a) states, "A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person." See also Trammel v. United States, 445 U.S. 40, 51 (1980); Blau v. United States, 340 U.S. 332, 333 (1951). Rule 504 is a rule of evidence providing a testimonial privilege to an accused in a criminal proceeding. Kidd v. State, 330 Ark. 479, 487, 955 S.W.2d 505, 508 (1997). Marital communications are presumptively confidential absent a showing that the communication, because of its nature or the circumstances under which it was made, was not intended to be as such. Wolfe v. United States, 291 U.S. 7, 14 (1934); Blau, 340 U.S. at 333-34; Findley v. State, 307 Ark. 53, 62, 818 S.W.2d 242, 247 (1991). For example, the spousal privilege may be waived by voluntary disclosure to someone other than a spouse, or if overheard by a third person. Ark. R. Evid. 510;Dansby v. State, 338 Ark. 697, 720, 1 S.W.3d 403, 416 (1999).

Ms. Belyea testified against appellant at his trial, and it was undisputed that the declarations underlying this claim were made during her marriage to appellant. No evidence was introduced indicating that appellant disclosed the communications to a third party, and the declarations by their nature do not indicate that they were to be so disclosed. There was no proof that any other person was present when appellant made the declarations. Appellant's declarations were thus presumptively confidential, and his trial counsel was deficient in that he should have raised an objection pursuant to Ark. R. Evid. 504 and excluded Ms. Belyea's testimony concerning the declarations.

Appellant, however, suffered no prejudice from the admittance of his declarations into evidence via Ms. Belyea's testimony. Appellant's accomplice testified that appellant owned the marijuana plot where Officer Carr was shot, that he overheard appellant discussing the necessity of keeping law enforcement officials out of the plot, that he saw trap-guns identical to the ones found in the plot at a cabin shared by appellant and Mr. Priest, and that he transported the two men to the plot on the day the trap-guns were installed. As we noted above, appellant's post-crime threats against Mr. Sauers and Ms. Belyea alone corroborate the testimony of appellant's accomplice. In light of this sufficiently corroborated evidence, we hold that there is no reasonable probability that the jury's decision would have been different had appellant's counsel raised a proper spousal privilege objection to Ms. Belyea's testimony. We affirm the denial of Rule 37 relief on this claim.

Failure to Object to Introduction of Reading Material

Appellant claims that his trial counsel was ineffective in failing to object, pursuant to the First Amendment, to the introduction into evidence of the book "Expedient Hand Grenades" that was identified as belonging to him. The circuit court denied relief on this claim, concluding that ifa motion in limine had been filed it would not have been successful.

The introduction into evidence of the book in question was clearly relevant. In discussing the shooting of Officer Carr, appellant told Mr. Sauers that he had learned how to make booby-traps from a book obtained by a friend. Ms. Belyea's testified that appellant had talked about protecting his marijuana patches with booby-traps. The Supreme Court has held that the introduction of evidence of beliefs and associations violates a defendant's constitutional rights when there is no connection between those beliefs and associations and the crime. Echols v. State, 326 Ark. 917, 955-56, 936 S.W.2d 509, 528 (1996). In this case, however, the book was relevant to the crimes charged, and it was a matter for the jury to resolve the inconsistency between the construction of the booby-trap that shot Officer Carr and the instructions in the book that detailed how to construct hand grenades. See Bell v. State, 334 Ark. 285, 298, 973 S.W.2d 806, 812 (1998). In any event, appellant suffered no prejudice because there was sufficient evidence supporting his crimes. We cannot say that the circuit court clearly erred in denying relief on this claim.

Failure to Present Alibi Defense

Appellant next claims that his trial counsel was ineffective in failing to investigate and present an alibi defense. He contends that if the alibi evidence had been presented, it would show that appellant could not have set the booby-traps during the period of time in which the State contended they were set. The circuit court denied relief on this claim, noting that appellant failed to present any witnesses at his Rule 37 hearing regarding the alleged alibi.

In support of his alibi claim, appellant introduced canceled checks written by him which he contends support his testimony at the Rule 37 hearing, and which prove as untrue his accomplice's testimony concerning the dates in question. Again, the credibility of witnesses is a matter for the jury to resolve. Wainwright, supra. Appellant's accomplice was cross-examined on his version ofthe events, including the dates regarding when the booby-traps could have been set. Thus, even if appellant's counsel had introduced the canceled checks at trial, there is no reasonable probability that the jury would have disregarded his accomplice's testimony. Moreover, the circuit court was not required to accept appellant's testimony at the Rule 37 hearing when he is the person most interested in the outcome of the proceedings. Sanders v. State, 317 Ark. 328, 334, 878 S.W.2d 391, 395 (1994). Appellant has not sustained the burden of overcoming the presumption that his counsel was competent, Seek v. State, 330 Ark. 833, 836, 957 S.W.2d 709, 711 (1997), or that his counsel was ineffective in refraining to call any witness or present an alibi defense. See Chenowith v. State, 341 Ark. 722, 733, 19 S.W.3d 612, 617 (2000).

Failure to Move in Limine to

Exclude Irrelevant and Prejudicial Evidence

Appellant claims that his trial counsel should have moved in limine to exclude allegedly irrelevant and prejudicial evidence introduced during the testimony of three of the State's witnesses Appellant first contends, as he did in his Rule 37 proceeding, that his counsel was ineffective for failing to exclude or limit Mr. Haynes' testimony concerning the shooting of his tractor when he unknowingly bush-hogged a marijuana patch. The circuit court did not rule on this issue in denying appellant's petition. It is the appellant's obligation, however, to obtain a ruling in order to properly preserve an issue for review. Beshears v. State, 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000). Therefore, we decline to consider this claim on appeal.

Appellant's other two claims under this point are that his counsel was ineffective in failing to move in limine to prevent Mr. Sauers from commenting that appellant had previously been in the "penitentiary," and to prevent his accomplice from testifying that appellant had used "crank" with two African-American prostitutes in New Orleans shortly before the date Officer Carr was shot. Thecircuit court found that Mr. Sauers comment was inadvertent and was not intentionally solicited by the State. It reasoned that appellant's trial counsel was thus confronted with moving for a mistrial and bringing attention to the comment, or with ignoring the comment and proceeding with the case before the present jury. The circuit court likewise concluded that the reference to appellant's use of crank was not intentionally elicited by the State. We cannot say that the circuit court clearly erred in refusing to grant relief on these claims.

Appellant's case is similar to Sasser in that he is arguing that his counsel should have sought to limit the admission of evidence of other crimes, wrongs or acts pursuant to Ark. R. Evid. 404(b). See 338 Ark. at 392-94, 933 S.W.2d at 911-12. As we noted in Sasser, we have no cases that decide whether the failure to limit such evidence could be a matter of trial strategy, but as in that case, the better approach is to resolve the issues according to the prejudice prong of the Strickland analysis. Id.

As we explained above, the testimony of appellant's accomplice regarding his growing marijuana and setting booby-traps in the location where Officer Carr was shot, sufficiently corroborated by appellant's post-crime threats, supports appellant's convictions. Moreover, unlike Sasser, there is no evidence that the State intentionally sought to introduce the allegedly prejudicial testimony. The crime underlying appellant's previous incarceration was never revealed, and counsel for appellant's co-defendant testified at the Rule 37 hearing that the State had agreed to instruct Mr. Sauers not to reveal the information, but that he blurted it out anyway. The fact that the women engaged by appellant in New Orleans were prostitutes was revealed during cross-examination of his accomplice by John Putnam, counsel for appellant's co-defendant. The testimony concerning appellant's use of crank was merely cumulative considering that ample evidence of appellant's involvement in the drug trade had already been presented. The contention that it was inherentlyprejudicial to identify the prostitutes as African-American because appellant's trial was held in an "all-white" county where a racist cult was once located is a conclusory allegation unsupported by compelling evidence or argument. See Sanford, 342 Ark. at 27, 25 S.W.3d at 417. Under these circumstances, there is no reasonable probability that the outcome of the trial would have been different if appellant's counsel had filed a motion in limine seeking to exclude the allegedly prejudicial testimony. See id.

Failure to Object to Hearsay Evidence

For his last point, appellant claims that his counsel should have objected to testimony that Ron and Brad McLean were eliminated as suspects on the basis that such testimony was hearsay that proved appellant guilty-by-elimination. We cannot say that the circuit court clearly erred in denying relief on this claim.

Officer Beach testified concerning his investigation of the crimes and how he interviewed witnesses and various suspects, including Ron and Brad McLean. During cross-examination, co-counsel Mr. Putnam elicited testimony from Officer Beach regarding the specific evidence as to why he developed the McLeans as suspects. Officer Beach stated that Brad McLean became a suspect based upon information concerning a marijuana theft in 1993 and the fact that he had hurriedly left town on the day Officer Carr was shot. Ron McLean was a suspect because of information that he had threatened to put loaded weapons in his patches during 1994. On re-direct, Officer Beach explained that he had further investigated Brad McLean's abrupt departure, and that based upon his interviews, he was satisfied that the departure was not related to the shooting of Officer Carr.

The cross-examination of Officer Beach opened the door to the testimony of which appellant now complains. An out-of-court statement is not hearsay if it is offered to show the basis of action. Martin v. State, 316 Ark. 715, 723, 875 S.W.2d 81, 86 (1994). Officer Beach's testimony duringre-direct was given in order to explain the basis of his action in dropping the McLeans as suspects. Because Officer Beach's testimony was proper testimony, appellant's counsel cannot be ineffective in failing to make an argument which has no merit. Sanford, 342 Ark. at 28, 25 S.W.3d at 418.

Affirmed.