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Burnside v. State

Court of Appeals of Arkansas, Division IV

December 13, 2017

MATTHEW BRIAN BURNSIDE APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-12-993] HONORABLE CHARLES E. CL AWSON, J R ., JUDGE.

          Craig Lambert, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, JUDGE.

         In 2014, a Faulkner County jury convicted Matthew Burnside of raping and sexually assaulting a twelve-year-old girl. His convictions were affirmed on direct appeal by this court in 2015. Burnside v. State, 2015 Ark.App. 550, 472 S.W.3d 497. He filed a timely petition for postconviction relief in the circuit court in December 2015 pursuant to Arkansas Rule of Criminal Procedure 37.1. The court granted Burnside's motion to amend his petition, and he filed an amended petition in July 2016. The court entered an order denying Burnside's petition in November 2016. No evidentiary hearing was held on the matter, and Burnside has filed a timely notice of appeal.

         I. Standard of Review

         On appeal from a circuit court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Wood v. State, 2015 Ark. 477, 478 S.W.3d 194. 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.

         When evaluating a circuit court's denial of a Rule 37 petition, the sole question presented is whether, based on a 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. Henington v. State, 2012 Ark. 181, at 3, 403 S.W.3d 55, 58. The totality of the evidence must be considered. Id. The benchmark for judging a claim of ineffective assistance of counsel must be "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

         Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland. Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. Under that standard, 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 or her defense. Flemons v. State, 2016 Ark. 460, at 5-6, 505 S.W.3d 196, 203. Unless a petitioner makes both showings, the allegations do not meet the benchmark on review for granting relief on a claim of ineffective assistance. Id.

         Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. A petitioner claiming deficient performance must show that counsel's representation fell below an objective standard of reasonableness, and this court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is effective by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

         Additionally, when a Rule 37 petition is denied without a hearing pursuant to Rule 37.3(a), we review the circuit court's written findings setting forth that the petition is wholly without merit or that it is conclusive on the face of the record that the petitioner is entitled to no relief for clear error. Wood, supra.

         II. Arguments on Appeal

         With these standards in mind, we turn to the issues Burnside raises here. He asserts that the circuit court erred on nine separate grounds.

         A. Failure of Appellate Counsel to Raise a Preserved Challenge to Hearsay Testimony

         Burnside first argues that his direct-appeal counsel was ineffective for failing to argue on appeal that the circuit court committed reversible error by allowing the State to introduce hearsay testimony by witness A.W., a minor. A.W. testified that she had been friends with the victim, M.H., since sixth grade. She told the jury that M.H. was crying during lunch at school, that M.H. told her that her "mom's boyfriend tried to rape her the night before, " and that the girls went to the school counselor. The court admitted A.W.'s testimony over Burnside's hearsay objection, ruling that it was an excited-utterance or present-sense impression exception to hearsay. Trial counsel argued that the two rape counts alleged by the State had occurred more than a year before the lunchtime conversation between the two girls.

         A convicted defendant has the right to effective assistance of counsel on appeal under the Sixth Amendment. Watson v. State, 2014 Ark. 203, at 9, 444 S.W.3d 835, 842. A hallmark of appellate advocacy is the process of assessing arguments and focusing on those likely to prevail. Id. An appellate attorney need not advance every possible argument, regardless of merit. Id. Appellate counsel's failure to raise a specific issue must have amounted to error of such magnitude that it rendered appellate counsel's performance constitutionally deficient under the Strickland criteria. Wooten v. State, 2016 Ark. 376, at 6, 502 S.W.3d 503, 508. The petitioner must show that there could have been a specific issue raised on appeal that would have resulted in the appellate court's declaring reversible error. Id. It is the petitioner's responsibility in a Rule 37.1 petition to establish that the issue was raised at trial, that the trial court erred in its ruling on the issue, and that an argument concerning the issue could have been raised on appeal to merit appellate relief. Id.

         Arkansas Rule of Evidence 803(2) provides an exception to the hearsay rule for excited utterances, regardless of the availability of the declarant. For the exception to apply, there must be an event that startles or excites the declarant. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008). Our supreme court has held that sexual abuse of a child is a startling event within the meaning of Rule 803(2). Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). In addition, it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation. Fudge v. State, 341 Ark. 759, 769, 20 S.W.3d 315, 320 (2000). The statements must be uttered during the period of excitement and must express the declarant's reaction to the event. See id. Whether the statement made was an excited utterance of sexual abuse rather than after intervening reflection and deliberation is a matter included within the circuit court's discretion to admit or exclude evidence, and an appellate court will not reverse the circuit court's decision regarding the admission of evidence absent a manifest abuse of discretion. Frye v. State, 2009 Ark. 110, at 4-5, 313 S.W.3d 10, 13.

         There are several factors to consider when determining if a statement falls under the excited-utterance exception in Rule 803(2): the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990). When adopting these factors from the decision in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), our supreme court observed that the lapse of time between the startling event and the out-of-court statement, although relevant, is not ...


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