APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, NO. 47CR-2009-193. HONORABLE JOHN N. FOGLEMAN, JUDGE.
Dustin McDaniel, Att'y Gen., by: Nicana C. Sherman, Ass't Att'y Gen., for appellant.
John Wesley Hall and Sarah M. Pourhosseini, for appellee.
COURTNEY HUDSON GOODSON, Associate Justice. DANIELSON, J., concurs. HANNAH, C.J., and BAKER and HART, JJ., dissent.
COURTNEY HUDSON GOODSON, Associate Justice
The State appeals a Mississippi County Circuit Court decision granting Shawn Trevell Rainer's petition for a new trial based on Arkansas Rule of Criminal Procedure 37. The circuit court granted a new trial based on its belief that, at trial, it had incorrectly excluded evidence pertinent to Rainer's defense of accident. For reversal, the State contends that the circuit court clearly erred in finding that Rainer's trial counsel was ineffective for failing to renew a challenge to the circuit court's decision granting the State's pretrial motion in limine regarding certain evidence of the victim's prior acts of violence. In addition, the State contends that the circuit court's failure to record the pretrial hearing on the motion in limine does not amount to a due-process violation that would render Rainer's judgment of conviction void. As a threshold matter, we consider whether the State has properly brought its appeal pursuant to Ark. R. App. P.--Crim. 3 (2007). State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). We have held that because Rule 37 petitions are civil in nature, the State is not required to satisfy Rule 3. Id. In order to prevail on a Rule 37 petition, the petitioner must demonstrate that trial counsel was ineffective for not advancing a meritorious argument. Because the circuit court's initial decision to exclude the evidence was not in error, we must reverse the grant of postconviction relief.
The State charged Rainer with first-degree murder for the death of Takina Douglas, who died as a result of a single stab wound to the chest. A jury convicted Rainer of second-degree murder and sentenced him to eighty years' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed his conviction. Rainer v. State, 2012 Ark.App. 588. Subsequently, Rainer filed a motion for postconviction relief, alleging two points: (1) trial counsel was ineffective for failing to appeal a pretrial ruling granting the State's motion in limine to prohibit Rainer from mentioning that the victim had previously stabbed Rainer with a knife and had been involved in other altercations involving knives; and (2) trial counsel was ineffective for failing to object when the case was presented as involving a " serious violent offender," despite the fact that Rainer had been charged as a " small habitual offender."
With regard to his first point, Rainer contended that his trial counsel's failure to appeal the trial court's ruling granting the State's motion in limine was ineffective assistance because it " denied petitioner due process and a fair opportunity to present a complete defense." Additionally, Rainer contended that the trial court's ruling resulted in prejudice because the testimony would have been relevant to show that the victim often used knives; made his theory, that the victim tripped and fell and stabbed herself, more likely; and, it would have shown why the victim had a knife in the first place. Finally, Rainer asserted that the failure to appeal the circuit court's ruling excluding the evidence
constituted ineffective assistance because it denied him due process and a fair opportunity to defend against the State's accusations.
During a hearing on Rainer's Rule 37 petition, Rainer pointed out that the pretrial motion-in-limine hearing had not been not recorded. Consequently, the circuit court made a " bystander's affidavit" in an attempt to recreate what had occurred during the hearing. Trial counsel testified that, prior to trial, he had notified the prosecuting attorney that he intended to call two City of Gosnell police officers to testify about three prior incarcerations of the victim, all of which involved knife violence. Trial counsel testified that he intended to use that evidence to show that it was not outside the victim's character to stab people or to have a knife. In addition, trial counsel sought to introduce testimony that the victim had stabbed Rainer previously but was not prosecuted because Rainer would not cooperate. According to trial counsel, either the day of or the day before trial, the prosecutor filed a motion in limine regarding testimony concerning the victim's history of knife violence. Trial counsel testified that he did not have time to prepare a written response, but he did respond orally to the motion and the case was continued. Trial counsel further testified that during the pretrial hearing, the circuit court excluded the testimony under Arkansas Rule of Evidence 404 and ruled that he could not use the victim's criminal history to support Rainer's defense of accident.
The circuit court then asked the prosecutor about the " level of detail" that trial counsel had provided regarding the victim's prior offenses. The prosecutor testified that " one had to do with a prior case that actually we had on her for stabbing Mr. Rainer." The prosecutor could not remember the details of the other cases. Trial counsel testified that he felt " confident that [he] would have given the Court the details, especially knowing the odds of the Court ruling against [him] that day."
In addition, trial counsel testified that he did not appeal on that issue because, " I thought there was a transcript, a more detailed transcript. . . .Truthfully, I didn't realize there wasn't a record on it until the transcript came back." Trial counsel testified that because there was no record on the motion-in-limine argument, he did not include it in the appeal. Rainer testified that he was " not around at the hearing when the record was supplemented."
After the circuit court had created the " bystander's affidavit," Rainer argued that the court erred in excluding the evidence of the victim's prior acts of knife violence and that the evidence was admissible under Arkansas Rules of Evidence 401, 402, 403, 404, and 406. He contended that these specific instances of the victim's conduct were relevant, explained why she had a knife, and were necessary for his defense. Rainer requested that the circuit court grant him a new trial pursuant to Rule 37. The State responded that the evidence of the victim's prior bad acts " still has to be relevant to the defense." The State asserted that the evidence of the victim's prior use of knives was not relevant because Rainer was not claiming self-defense, instead, he was claiming that the victim " had a knife in her hand, tripped and fell on the knife." The State asserted that " her reason for having the knife I think is irrelevant to the defense of accident." Rainer acknowledged that his defense was accident, but he argued that the victim's " own propensity to have knives, to use knives explains the whole crime, alleged crime, that there was no crime, it was an accidental death." When asked how this issue " fit within Rule 37," Rainer replied that " defense counsel did not appeal that issue. There was no record
to appeal it because the record wasn't made." At that point, the circuit court stated that the responsibility to make a record falls on the court. Rainer then orally amended his petition to say " it's a straight process issue because now we know why it wasn't appealed, there was no record on it."
The circuit court announced from the bench that it would grant the motion for a new trial because, " at the very least, the prior incident between the two, I would have allowed into evidence had it been fresh on my mind and it had not been presented in the way it was presented." In addition, the circuit court stated:
I don't know that [trial counsel] was ineffective for not appealing my ruling, even had there been a record because frankly the Supreme Court and the Court of Appeals on those kinds of issues give such deference to the trial court. However, of course, that doesn't at least end it. There is a question of having a fair trial. . . . And in reviewing it I remember how I was on the borderline of granting a directed verdict in regard to second-degree murder because I wasn't sure there was sufficient proof to meet the elements of second-degree murder at the time. Now, the Court of Appeals apparently had no problem with that, but I was troubled by it. And I have to believe that had the motion been made on the record and had it been fresh on my mind [I] would have, I don't know for certain that I would have allowed it in evidence. . . . If trial counsel made a mistake, it was in not renewing the motion after I've heard testimony where it's in my mind where I could properly weigh it.
After this oral pronouncement, the circuit court entered a written order granting Rainer's petition for Rule 37 relief and granting him a new trial. In its written order, the circuit court acknowledged that the court has a duty under Administrative Order No. 4 to record trial proceedings. The circuit court also noted that the record was supplemented at the Rule 37 hearing with the testimony of trial counsel, the prosecutor, and the recollections of the trial court. The circuit court concluded that at the end of the State's case, " the motion should have been renewed because the context was more apparent, and the court likely would have granted it." Finally, the circuit court concluded that the testimony regarding the victim's propensity to use knives was likely more relevant than prejudicial and " likely would have come in under A.R.E. 403." The circuit court granted Rainer's petition for Rule 37 relief on the basis that he was " denied a fair trial" because of the failure to record the pretrial motion-in-limine hearing. The circuit court ruled that the second issue, regarding Rainer's status as a " small habitual offender," was moot.
On appeal, the State contends that the circuit court's grant of Rainer's petition was clearly erroneous because the " alleged incorrectness of the evidentiary ruling," does not reach the level sufficient to render the judgment a complete nullity. In addition, the State asserts that Rainer " has not shown that counsel's representation was ineffective; rather, what he has shown is that the trial court decided that it had made an error in excluding the evidence." Further, the State maintains that a petitioner seeking postconviction relief on an ineffective-assistance claim due to the failure to make a motion or an objection must show that " counsel could have made a successful argument in order to demonstrate. . . prejudice." Finally, the State contends that even questions of constitutional dimension must be raised in the trial court in accordance with the controlling procedural rules, unless they are so fundamental as to void the judgment entirely. Thus, the State argues that because
Rainer has failed to identify any fundamental ground sufficient to void his judgment and conviction, the circuit court clearly erred in granting his postconviction petition.
We do not reverse the grant or denial of postconviction relief unless the trial court's findings are clearly erroneous. Barrett, supra (citing Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004)). 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 ...