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Turner v. State

Supreme Court of Arkansas

March 10, 2016

TROZZIE LAVELLE TURNER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Page 758

          APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT. NO. 14CR-06-79-5. HONORABLE DAVID W. TALLEY, JR., JUDGE.

         John Wesley Hall, Jr., and Sarah M. Pourhosseini, for appellant.

         Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

         HOWARD W. BRILL, Chief Justice. GOODSON and WOOD, JJ., join in this dissent.

          OPINION

Page 759

          HOWARD W. BRILL, Chief Justice

         Appellant Trozzie Lavelle Turner appeals the order of the circuit court denying his petition for postconviction relief. Turner was found guilty by a Columbia County jury of possession of cocaine with intent to deliver, possession of methamphetamine with intent to deliver, and maintaining a drug premises, for which he was sentenced to an aggregate total of eighty-six years in the Arkansas Department of Correction. Turner appealed, and the court of appeals affirmed. See Turner v. State, 2009 Ark.App. 822.

         Thereafter, counsel for Turner filed a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. The circuit court denied the petition without a hearing. Turner contends on appeal that the circuit court erred in denying his petition for postconviction relief because (1) trial counsel was ineffective in failing to object to certain statements made by the prosecutor during closing argument, and (2) trial counsel was ineffective in failing to make a motion to dismiss for lack of a speedy trial and in failing to make an adequate record that the time for speedy trial had run before the trial started. We affirm in part and reverse and remand in part.

          This court does not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. Taylor v. State, 2015 Ark. 339, at 4, 470 S.W.3d 271, 275. 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 committed. Id., 470 S.W.3d at 275.

          On review of claims of ineffective assistance of counsel, this court follows 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):

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

Page 760

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.

Id. at 687.

          Unless a defendant makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. " [T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.

          I. Prosecutor's Comments During Closing Argument

         Turner contends that trial counsel was ineffective in failing to object to certain statements made by the prosecutor in his rebuttal to trial counsel's closing argument. First, Turner claims that, during rebuttal, the prosecutor improperly shifted the burden of proof and implied that a defendant has an obligation to refute evidence. The prosecutor stated,

If I had been defending this case and I knew that I was going to come in here and tell twelve folks that I lived down in Emerson, do you know what I would have given you folks? I'd have given you stacks of utility bills from Emerson, stacks and stacks of phone bills and electric bills and gas bills and cable bills. I'd have gotten my neighbors in here and said, " Yeah, I see him there every day."

         The State responds that the prosecutor's remarks were not improper because they were directly connected to both the testimony elicited by trial counsel and trial counsel's closing argument. We agree.

         Turner's charges stemmed from the execution of a search warrant on a residence in Magnolia, Arkansas, during which law enforcement officers seized cocaine and methamphetamine. Part of Turner's defense was that he did not live at the Magnolia residence from which illegal drugs were being sold. During the trial, trial counsel elicited testimony from Turner's brother, among others, that Turner lived in Emerson, Arkansas, when the drugs were discovered. In closing argument, trial counsel reiterated that Turner lived in Emerson, not Magnolia. In closing argument, counsel may argue any plausible inference that can be drawn from the testimony at trial. See, e.g., Jackson v. State, 368 Ark. 610, 615, 249 S.W.3d 127, 130 (2000). Moreover, this court has held that the State is allowed to comment on matters raised by the defense in its closing argument. Biggers v. State, 317 Ark. 414, 426, 878 S.W.2d 717, 723 (1994). In making his statement, the prosecutor did not improperly shift the burden to Turner. Failure to make a meritless objection is not an instance of ineffective assistance of counsel. Decay v. State, 2014 Ark. 387, at 10, 441 S.W.3d 899, 907.

         Second, Turner claims that trial counsel was ineffective in failing to object to the following comment by the prosecutor: " You folks know there's a lot more going on that you didn't get to hear." In support of his claim, Turner makes conclusory allegations that the prosecutor's statement suggested that there was inadmissible evidence favorable to the State, and he provides a string cite to cases from other jurisdictions. This court does not consider assignments of error that are unsupported by convincing argument or authority. E.g.,Y ...


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