FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-12-993]
HONORABLE CHARLES E. CL AWSON, J R ., JUDGE.
Lambert, for appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
BRANDON J. HARRISON, JUDGE.
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.
Standard of Review
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.
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.
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.
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.
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.
Arguments on Appeal
these standards in mind, we turn to the issues Burnside
raises here. He asserts that the circuit court erred on nine
Failure of Appellate Counsel to Raise a Preserved Challenge
to Hearsay Testimony
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.
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.
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.
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 ...