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McCulley v. State

Court of Appeals of Arkansas, Division I

May 17, 2017

TROY LAURENCE MCCULLEY APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

         APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT [NO. 56CR-12-50] HONORABLE BRENT DAVIS, JUDGE

          Troy Laurence McCulley, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, Judge

         Appellant Troy Laurence McCulley filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2015), which was denied by the circuit court. McCulley was represented by counsel in the proceedings below, and after lodging an appeal, his postconviction counsel filed a motion to be relieved, which was granted by the Arkansas Supreme Court on December 10, 2015. McCulley v. State, No. CR-817 (Ark. Dec. 10, 2015) (order granting motion to be relieved). McCulley subsequently filed a pro se appellant's brief, appellee responded, and McCulley filed a pro se reply brief. After the issues on appeal were thoroughly briefed, McCulley filed a motion for appointment of counsel. For the reasons stated below, we affirm the circuit court's denial of postconviction relief, and McCulley's motion for appointment of counsel is therefore denied.

         A jury convicted McCulley of one count of rape, three counts of felony possession of drug paraphernalia, and one count of misdemeanor possession of drug paraphernalia. He was sentenced to thirty years' imprisonment for rape, and a $1000 fine was imposed for each of the drug offenses. This court affirmed his convictions on direct appeal. McCulley v. State, 2014 Ark.App. 330.

         McCulley filed a timely petition for postconviction relief and made numerous allegations of ineffective assistance of counsel, contending that his trial counsel failed to gain suppression of certain physical evidence, failed to object to the admission of a drug-screen analysis, and failed to object to the admission of irrelevant evidence and testimony. A hearing was conducted by the circuit court. The circuit court relied on the arguments presented at the hearing as well as an extensive review of the trial record and concluded that the arguments and objections that McCulley alleged trial counsel had erroneously failed to raise would have been meritless and otherwise would not have changed the outcome of his trial. On appeal, McCulley repeats some, but not all, of the claims raised below and argues that the circuit court erred by denying these claims for relief. The arguments that were made below but not raised on appeal are considered abandoned. State v. Grisby, 370 Ark. 66, 69, 257 S.W.3d 104, 107 (2007).

         Our jurisdiction is pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam). The appellate court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Walden v. State, 2016 Ark. 306, at 2-3, 498 S.W.3d 725, 728-29 (per curiam); Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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. Walden, 2016 Ark. 306, at 2-3, 498 S.W.3d at 728-29.

         When considering an appeal from a circuit court's denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred in holding that counsel's performance was not ineffective. Id. Under the two-prong standard outlined in Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Id. The reviewing court must indulge in a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. The second prong requires a petitioner to show that counsel's deficient performance so prejudiced his defense that he was deprived of a fair trial. Id. Consequently, the petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.

         In order to demonstrate the prejudice required under the Strickland test, a person seeking postconviction relief on a claim of ineffective assistance that is based on the failure of counsel to make a motion or objection must show that counsel could have made a successful argument. Breeden v. State, 2014 Ark. 159, at 6-7, 432 S.W.3d 618, 624 (per curiam). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Id.; Greene v. State, 356 Ark. 59, 70, 146 S.W.3d 871, 880 (2004).

         Before addressing McCulley's arguments on appeal, it is necessary to review the evidence adduced at his trial. The trial record demonstrates that McCulley's girlfriend, Loretta Collette, lured her sixteen-year-old niece, A.R., to McCulley's residence. According to the testimony of A.R., after arriving at McCulley's residence, she was drugged and taken to an outbuilding behind the main house, stripped naked, bound by her hands and feet, and raped by Collette and McCulley. A.R. was returned to her mother hours after she had been due home. Because of her unusual behavior, a drug test was administered by a local physician, and the test was positive for amphetamines. Eventually, A.R. reported to investigators that not only had she been drugged by McCulley and Collette, but that she had also been sexually assaulted by them. Subsequently, Collette admitted to police that she had participated in the assault, and based on Collette's admissions, a search warrant for McCulley's residence was obtained and executed. The search included the outbuilding described by A.R. The police seized numerous items as a result of the search, including, among other things, drug paraphernalia and pornographic videotapes.

         In his first point on appeal, McCulley argues that the circuit court erred by rejecting his ineffective-assistance-of-counsel claim that counsel had erroneously failed to gain the suppression of all evidence seized in the search of his residence and the outbuilding. According to McCulley, trial counsel failed to move to suppress this evidence on the basis that the warrant was deficient because the warrant was signed by the presiding judge before the affidavit establishing probable cause had been presented. McCulley maintains that all evidence seized would have been suppressed but for the failure of his counsel to challenge the manner in which the search warrant had been issued.[1]

         The record of the suppression hearing demonstrates that the affiant, Officer Erik Willbanks, testified that he had appeared before Judge Ron Hunter at 6:12 p.m. on January 16, 2012, and swore to the facts contained in the affidavit. The affidavit itself shows that it was signed by Willbanks at 6:12 p.m.; the affidavit originally reflected that it was signed and sworn before Judge Hunter at 6:00 p.m., but the number six was crossed out and replaced with the number seven. On the other hand, the related warrant signed and issued by Judge Hunter bears a typewritten time of 6:15 p.m.

         Based on the time discrepancy on the affidavit, McCulley argues that the search warrant was invalid, and all items seized as a result of its issuance should have been suppressed. The Arkansas Supreme Court rejected a similar argument that a search warrant was invalid based on a discrepancy between the date that appeared on the affidavit and the date the warrant was issued in Nance v. State, 323 Ark. 583, 597, 918 S.W.2d 114, 120-21 (1996). In that case, the supreme court affirmed the lower court's conclusion that the warrant was valid despite an "apparent misprision" in the documents because the affiant had testified that he had appeared before the judge and sworn to the facts contained in the affidavit on the same date that the warrant had been issued. Id. Likewise, Willbanks testified at the suppression hearing that the affidavit was signed in the presence of the judge. When an affidavit states sufficient facts to establish probable cause for a search, discrepancies in the date or time the affidavit was executed will not invalidate a search warrant if the affiant appeared and provided sworn testimony that cures such errors. Nance, 323 Ark. at 597, 918 S.W.2d at 120-21; Johnson v. State, 2015 Ark. 387, at 4-5, 472 S.W.3d 486, 488-89. The circuit court did not clearly err when it ...


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