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Decay v. State

Supreme Court of Arkansas

September 25, 2014

GREGORY DECAY, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

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APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CR07-999-1. HONORABLE WILLIAM A. STOREY, JUDGE.

William A. McLean, for appellant.

Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., and Laura Shue, Ass't Att'y Gen., for appellee.

OPINION

Page 903

PAUL E. DANIELSON, Associate Justice.

Appellant Gregory Christopher Decay appeals from the order of the Washington County Circuit Court denying and dismissing his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5 (2010). Decay was convicted of two counts of capital murder and was sentenced to death; this court affirmed his convictions and sentence. See Decay v. State, 2009 Ark. 566, 352 S.W.3d 319 ( Decay I ). Decay then filed a Rule 37.5 petition for postconviction relief. The circuit court denied and dismissed his petition, and Decay appealed. We reversed and remanded for the entry of a written order containing specific findings of fact and conclusions of law as required under Rule 37.5(i). See Decay v. State, 2013 Ark. 185 ( Decay II ). The circuit court entered such an order, and Decay now appeals from that order, asserting five points on appeal: (1) that he was denied effective assistance of counsel when his trial counsel failed to investigate, develop, and present mitigation evidence; (2) that he was denied effective assistance of counsel when his trial counsel failed to object to the prosecutor's comment on his failure to testify; (3) that he was denied effective assistance of counsel when his trial counsel failed to object to the prosecutor's statement that Decay may become eligible for release if sentenced to life imprisonment without parole; (4) that he was denied effective assistance of counsel when his trial counsel failed to advance the defense of his choice; and (5) that the circuit court erred in its denial of relief as it related to his defense-of-choice claim because prejudice should have been presumed. We affirm the order of the circuit court.

In Decay II, this court limited the circuit court's findings of fact and conclusions of law on remand to " only those issues raised on appeal," which included (1) that he was denied effective assistance of counsel when his trial counsel failed to investigate, develop, and present mitigation evidence during his trial; (2) that he was denied effective assistance of counsel when his trial counsel failed to properly object to the prosecuting attorney's comment on Decay's failure to testify; (3) that he was denied effective assistance of counsel when his trial counsel failed to properly object to the prosecuting attorney's statement to the jury that Decay may become eligible for release if sentenced to life imprisonment without parole; and (4) that he was denied effective assistance of counsel when his trial counsel failed to advance the defense that Decay did not commit the act

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that resulted in the deaths of the victims. 2013 Ark. 185, at 2. In its order following remand, the circuit court concluded that (1) trial counsel's investigation, development, and presentation of mitigating evidence was not deficient and did not prejudice Decay; (2) that trial counsel's failure to object to the prosecuting attorney's comment on Decay's remorse was not deficient and did not prejudice Decay; (3) that the prosecuting attorney's statement regarding life imprisonment without parole was a correct statement of the law and was not objectionable; and (4) that there was no basis in law or fact that would have supported a defense that Decay did not commit the acts that resulted in the victims' deaths and trial counsel's performance was therefore not deficient and did not result in prejudice to Decay.

This court does not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. See Golden v. State, 2013 Ark. 144, 427 S.W.3d 11. 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. See id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. See id. Our standard of review requires that we assess the effectiveness of counsel under the two-prong 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. See id.

In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel's performance was deficient. See Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. 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. See id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. See id.

In order to satisfy the second prong of the Strickland test, the petitioner must show that counsel's deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. See id. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. See id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See id.

I. Failure to Investigate, Develop, and Present Mitigating Evidence

For his first point on appeal, Decay argues that the circuit court erred in denying his claim that his trial counsel were ineffective in failing to investigate, develop, and present mitigation evidence. He asserts that, despite being assigned a mitigation specialist, the specialist did not perform his job duties, and he therefore did not receive the benefit of having had the specialist. To that end, he contends, his trial counsel were ineffective in failing to " supervise and control" the specialist. Additionally, Decay submits, the ...


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