FROM THE COLUMBIA COUNTY CIRCUIT COURT. NO. 14CR-06-79-5.
HONORABLE DAVID W. TALLEY, JR., JUDGE.
Wesley Hall, Jr., and Sarah M. Pourhosseini, for appellant.
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
W. BRILL, Chief Justice. GOODSON and WOOD, JJ., join in this
W. BRILL, Chief Justice
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.
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.
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.
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 "
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.
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
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
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."
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.
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.
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 ...