LORI J. ROSE APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE POLK COUNTY CIRCUIT COURT [NO. 57CR-13-158]
HONORABLE TED C. CAPEHEART, JUDGE AFFIRMED
Witt, for appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
Abramson and Glover, JJ., agree.
J. GLADWIN, Judge
Rose appeals the Polk County Circuit Court's order
denying her Rule 37 petition for postconviction relief. Ark.
R. Crim. P. 37.1 (2016). We assumed jurisdiction of this
appeal pursuant to footnote 1 in Barnes v. State,
2017 Ark. 76, 511 S.W.3d 845 (per curiam). Rose contends that
the trial court erred in denying her petition because trial
counsel was ineffective for failing to (1) file a motion to
suppress; (2) introduce a text message; (3) meet with Rose to
prepare for trial; (4) present witnesses on Rose's
behalf; and (5) involve Rose in the jury selection and voir
dire. We affirm.
was convicted by a Polk County jury of aggravated residential
burglary, domestic battering in the second degree, aggravated
assault, and terroristic threatening. At the trial on those
charges, the victim, Billy Vaught, testified that he and Rose
had been in a romantic relationship for approximately two
years until they broke up on November 19, 2013. Two days
later, Rose's teenage daughter phoned and asked him to
stay at her home because she was home alone and could not
reach her mother. After Rose returned, Vaught stayed
overnight on Rose's couch and left the following day.
That night, he went to bed early but woke up around midnight
when Rose entered his bedroom, turned on the light, and
stated that he should "prepare to die." She was
under the impression that Vaught had molested her daughter.
Vaught said that he could tell that the hammer of the gun had
been cocked and that Rose had been drinking, so he kicked the
gun with his left leg. The rifle went off and shot Vaught in
the right leg just below the knee. They briefly struggled
over the gun, but he shoved it under the bed. He called his
sister, who drove him to the hospital, and Rose left before
Vaught's sister arrived. Vaught's kneecap and femur
bone were broken, and he had to have knee-replacement
surgery. Vaught said that during their relationship, he and
Rose frequently stayed at each other's homes, and that it
was not necessary for them to have an explicit invitation to
do so. Vaught said that he had not told Rose that she was no
longer welcome in his home prior to the shooting.
gave two statements to police after her arrest. In her first
statement, which was played for the jury, Rose admitted that
she had filed a police report against Vaught for alleged
sexual abuse of her daughter, but she denied that she had
been to his home or that she had shot him that night. The
arresting officer testified that Rose did not appear to be
highly intoxicated at the time he obtained her statement,
although he could smell alcohol on her. Rose gave a second
statement on the following day that was also played at trial.
Rose claimed that she was scared and intoxicated and had not
told the truth in her first interview. She admitted that she
had gone to Vaught's home and that she had been drinking.
She said that someone had told her that Vaught had also acted
inappropriately toward his son in the past, so she went to
Vaught's home with the intention of taking his son home
with her. She did not expect Vaught to be at home, but when
she realized that he was asleep, she said that she grabbed
the rifle sitting by the front door and went to speak to him.
She had borrowed the same rifle from Vaught and returned it
to his house after they had broken up earlier in the week.
She said that the rifle was pointed down, not at Vaught, but
when she asked him why he had hurt her daughter, he kicked
the gun and it went off and shot him in the leg. She handed
Vaught his cell phone, and he asked her to leave.
conclusion of the trial, Rose was found guilty of aggravated
residential burglary, second-degree domestic battery,
aggravated assault, and terroristic threatening. The jury
recommended that she be sentenced to a total of seventy-two
years, but the trial court sentenced her to a total of
thirty-six years' imprisonment. This court affirmed
Rose's convictions in Rose v. State, 2015
Ark.App. 563, 472 S.W.3d 167, and the mandate was entered on
October 24, 2015.
filed a timely petition for relief under Rule 37 on December
21, 2015, with the Polk County Circuit Court. The petition
alleged numerous errors by trial counsel, Greg Klebanoff, and
contained a proper verification. An amended petition for Rule
37 relief was filed on April 6, 2016, and a hearing was held
on June 23, 2016. Lori Rose testified that she had received a
text message from Vaught somewhere between November 19 and
21, 2013, wherein Vaught said that she was welcome in his
home at any time. The incident occurred on November 23, 2013.
She said that she had showed this text message to Klebanoff,
and he did not produce the message for the jury. She also
said that she did not have a defense-strategy discussion with
him. She said Klebanoff was more concerned with his payment
than about trial strategy. She said that the trial court had
granted a motion in limine that the word "victim"
was not to be used during the course of the trial, but when
it was used, Klebanoff never objected. She said that she had
received several letters from Klebanoff, one of which stated
that if she had paid him more she would have had a better
defense, but she could not produce that letter. She said that
Klebanoff did not use the witnesses who were willing to
testify on her behalf, and she thought that if they had been
used during the sentencing phase, she might have made a more
favorable impression on the jury.
Klebanoff testified that he had represented Rose, that he was
aware that Rose had been given a portable breath test on the
night she was arrested, and that she registered .17, which is
more than twice the legal limit. He said that he did not
bring up the test result during trial and did not move to
suppress the first statement that she gave. He said Rose
testified that she was intoxicated, hysterical, and upset. He
said that he had thought about filing a motion to suppress
based on intoxication, but he decided there was not much
dispute about what had happened, and if he wanted a positive
result for Rose, he would have to get it through jury
said that jury nullification requires sympathy, and he
thought her first statement showed that she was confused,
distressed, and intoxicated, and the jury would have sympathy
for her. He said that he supposed Rose could have added input
on selecting the jury, but he had never had his clients
participate in jury selection. He said that he did not object
when the word "victim" was used and did not move
for a mistrial because a mistrial is a drastic remedy, and a
bench instruction to disregard is normally sufficient. He
said that objecting to something that was prohibited would
call more attention to it. He also said that he did not think
the text message that Rose was welcome in Vaught's home
at any time was important because it was superfluous. He said
that Rose's character had been called into question, and
he did not call the witnesses because he knew that Rose had
assaulted her ex-husband with a gun. Klebanoff thought that
calling the character witnesses that Rose had referred to
would have opened the door for the State to bring out that in
2003 she had chased her husband through the woods with a deer
rifle, shooting at him.
taking the petition under advisement at the conclusion of the
hearing, the trial court denied Rose's petition and filed
its findings of fact and conclusions of law on August 30,
2016. The trial court stated in each of its conclusions of
law that Rose had shown neither deficient performance of
counsel nor actual prejudice to her case as required by
Strickland v. Washington, 466 U.S. 668 (1984). A
notice of appeal was timely filed on September 26, 2016, and
this appeal followed, wherein Rose argues that the trial
court erred in denying her petition for Rule 37 relief based
on ineffective assistance of her counsel.
not reverse the denial of postconviction relief unless the
circuit court's findings are clearly erroneous.
Conley v. State,2014 Ark. 172, 433 S.W.3d 234. A
finding is clearly erroneous when, although there is evidence
to support it, after reviewing the entire evidence, we are
left with the definite and firm conviction that a mistake has
been committed. Id. In making a ...