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State v. Thompson

Supreme Court of Arkansas

February 23, 2017

STATE OF ARKANSAS APPELLANT
v.
MARIO D. THOMPSON APPELLEE

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NOS. CR-2012-709-1; CR-2014-776-1] HONORABLE MARK LINDSAY, JUDGE

          Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellant.

          Ernie Witt, for appellee.

          ROBIN F. WYNNE, Associate Justice.

         The State of Arkansas appeals from a decision of the Washington County Circuit Court to grant a petition for postconviction relief alleging ineffective assistance of counsel filed by appellee Mario Thompson. The State makes the following arguments on appeal: (1) the circuit court clearly erred in ruling that trial counsel's decision not to introduce proof of a guardianship of appellee by his parents was deficient performance; (2) the circuit court erred in finding that appellee established prejudice with respect to the guardianship; (3) the circuit court's deficient-performance ruling with respect to certain decisions by trial counsel during the sentencing phase was clearly erroneous; and (4) as a matter of law, appellee cannot establish prejudice as to either of his sentences because he received less than the maximum sentence; alternatively, the circuit court's rulings regarding prejudice were clearly erroneous. Because the trial court's findings that appellee established prejudice from his trial counsel's allegedly deficient performance were clearly erroneous, we reverse and dismiss.

         In May 2012, appellee was charged with two counts of sexual assault in the second degree for engaging in deviate sexual activity with a child under the age of fourteen on two separate occasions between 2007 and 2008. The investigation apparently began after appellee contacted the mother of one of the victims to apologize for having intercourse with her daughter. He filed a notice of intent to raise mental disease or defect as a defense. In a report dated October 26, 2012, Dr. Robin Ross concluded that appellee had a mental defect and lacked the capacity to assist in his defense. As a result, appellee was committed to the State Hospital pending restoration of his fitness to proceed. In November 2012, appellee's parents, Laverne Thompson and Ledell Thompson, filed a petition to be appointed as appellee's guardians. In support of their petition, they referenced Dr. Ross's evaluation of appellee. The petition was granted by the probate division of the Washington County Circuit Court and appellee's parents were appointed his permanent guardians.

         Appellee was subsequently charged with rape of a second juvenile. Dr. Ross performed a second evaluation of appellee in January 2013 in connection with the rape charge. Following the second evaluation, Dr. Ross concluded that appellee was fit to proceed, had a mental defect, did not lack the capacity to appreciate the criminality of his conduct, and did not lack the capacity to conform his conduct to the requirements of the law. She explained the difference between her two evaluations of appellee as being the result of appellee giving better effort during the second evaluation, resulting in it better reflecting his actual level of functioning.

         In July 2013, appellee was reevaluated by Dr. Michael Simon who concluded that, while appellee suffered from a mental defect, he was fit to proceed, he did not lack the capacity to appreciate the criminality of his conduct, did not lack the capacity to conform his conduct to the requirements of the law, and did not lack the capacity to form the required culpable mental state. Dr. Richard Back performed an additional evaluation of appellee at the behest of appellee's trial counsel. Dr. Back concluded that appellee did not have the capacity to understand the proceedings against him, nor did he have the capacity to effectively assist his attorney on his behalf. Dr. Back also concluded that appellee had a mental defect, lacked the capacity for the culpable mental states required for the offenses charged, lacked the capacity to appreciate the criminality of his conduct, and lacked the capacity to conform his conduct to the requirements of the law. Following a hearing on appellee's competency to stand trial, the trial court found that appellee was competent.

         Appellee was tried on the charges of second-degree sexual assault and rape before a Washington County jury. Prior to trial, appellee's counsel attempted unsuccessfully to be allowed to admit Dr. Ross's October 2012 report without also being required to admit her January 2013 report. At trial, appellee pursued a defense of lack of capacity due to mental disease or defect. Appellee's trial counsel did not introduce evidence of the guardianship obtained by appellee's parents during the trial. Dr. Ross's reports were not introduced; however, Dr. Back and Dr. Simon both testified. The jury convicted appellee on all counts.

         During the sentencing phase, appellee's parents testified regarding appellee's intellectual disability as well as their fears of what would happen to him in prison. Trial counsel had been provided with a list of potential character witnesses for the sentencing phase that included a former principal, neighbors, and coworkers of appellee; however, he elected not to call any witnesses other than appellee's parents. During its deliberations on sentence, the jury asked two questions of the trial court regarding (1) who was to determine whether the sentences imposed ran concurrently or consecutively and (2) how much time appellee would have to serve on each offense before becoming eligible for parole. Although a model jury instruction covered each question, the trial court, with the assent of the parties, answered the questions in plain language and did not read the instructions to the jury.

         The jury recommended sentences of ten years on each count of second-degree sexual assault and twenty-five years on the count of rape. The jury did not give a recommendation regarding whether the sentences should run concurrently or consecutively. The trial court imposed the sentences recommended by the jury. The trial court ordered that the sentences on the two counts of sexual assault run concurrently and that those sentences run consecutively to the sentence imposed for the sole count of rape, for a total sentence of thirty-five years' imprisonment. Appellee appealed from his convictions to our court of appeals, which affirmed the convictions. Thompson v. State, 2015 Ark.App. 275, 461 S.W.3d 368.

         Appellee subsequently filed original and amended petitions for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 in which he claimed that his trial counsel provided ineffective assistance. Among the myriad claims of ineffective assistance of counsel contained in the petitions were claims that the performance of appellee's trial counsel was deficient because he (1) failed to introduce evidence of the guardianship during trial, (2) failed to call character witnesses during the sentencing phase, and (3) allowed the trial court to answer the jury's sentencing-phase queries in plain language instead of insisting that the applicable jury instructions be provided and failed to ensure that the jury received Stage Two Verdict Form 9318-VF, wherein the jury makes a recommendation as to whether sentences on multiple offenses are to be served concurrently or consecutively. Appellee made corresponding claims that he was prejudiced by trial counsel's deficient performance.

         At the hearing on the petitions, James E. Evans, Jr., appellee's trial counsel, testified that he did not insist on the jury instruction on consecutive-vs.-concurrent sentences because he was satisfied with the trial court's explanation to the jury. He also felt that the trial court's explanation regarding transfer eligibility was satisfactory. He was also concerned that the jury might not understand the instructions. Evans stated that he did not want Dr. Ross's second report to come in at trial because of the indication in that report that appellee did not give full effort during the first examination. There were also statements in the report indicating that appellee denied having committed the offenses, which Evans felt was inconsistent with a defense of mental defect. He testified that he was afraid Dr. Ross would "gut" the defense if she testified at trial. According to Evans, he did not introduce the guardianship at trial because he did not think it was relevant. He stated that he did not call additional character witnesses because he was concerned that it might be damaging to the mental-defect defense to have a group of people referencing things that appellee was capable of doing. He was also concerned about what might happen when the State confronted the witnesses with the acts appellee had just been convicted of committing.

         Following the hearing, the trial court entered an order granting the original and amended petitions for postconviction relief. Relevant to the points on appeal, the trial court made the following findings: (1) there was no valid reason not to introduce the guardianship at trial, and introducing the documents "could have significantly impacted the jury's opinion of [appellant's] diminished capacity"; (2) counsel was ineffective for failing to interview or call certain mitigation witnesses during the sentencing phase, and if he had done so "the outcome of the sentencing may well have been different"; and (3) counsel's failure to require that the jury be read the sentencing-phase instructions applicable to their queries to the trial court and ensure that the jury received ...


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