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Johnson v. State

Supreme Court of Arkansas

January 4, 2018

MARK DAVID JOHNSON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         PRO SE APPEAL FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-11-129] HONORABLE DON GLOVER, JUDGE

          Mark D. Johnson, pro se appellant.

          Rule Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

          ROBIN F. WYNNE, ASSOCIATE JUSTICE.

         Appellant Mark David Johnson appeals to this court from the Drew County Circuit Court's dismissal of his pro se petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1 (2012). Johnson entered a negotiated plea of guilty to two counts of first-degree murder, attempted capital murder, and first-degree battery. He elected to be sentenced by a jury, and terms were imposed of life imprisonment for each of the counts of first-degree murder and a total of 600 months for the other offenses. All sentences were ordered to be served consecutively. The charges arose out of an incident in which Johnson rammed into a vehicle carrying his estranged wife, Heather Johnson, and two passengers, one of whom was pregnant. The collision resulted in the death of the pregnant woman and her unborn child and serious injury to Heather and the other passenger. For reversal of the order, Johnson maintains that his attorneys were ineffective for failing to object to testimony by Heather in the sentencing proceeding that Johnson had molested her daughter; for not calling witnesses who could have testified that the collision with the car was an accident; and for advising him to plead guilty. We agree with the trial court that Johnson failed to establish that he was not afforded effective assistance of counsel. Accordingly, we affirm the trial court's order.

         This court does not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Williams v. State, 2016 Ark. 459, 504 S.W.3d 603. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the trial court made a mistake. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.

         Our standard of review requires that we assess counsel's effectiveness under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In asserting ineffective assistance of counsel pursuant to Strickland, the petitioner first must show that counsel's performance was deficient. McDaniels v. State, 2014 Ark. 181, 432 S.W.3d 644. This requires a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. Additionally, counsel is allowed great leeway in making strategic and tactical decisions, particularly when deciding not to call a witness. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). "[M]atters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for finding ineffective assistance of counsel." Howard v. State, 367 Ark. 18, 36, 238 S.W.3d 24, 39-40 (2006). The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

         Second, the petitioner must show that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown of the adversarial process that renders the result unreliable. Id. "[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendants make an insufficient showing on one." Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 786-87 (quoting Strickland, 466 U.S. at 697). The Strickland standard applies to allegations of ineffective assistance of counsel pertaining to possible prejudice in guilty-plea and sentencing proceedings. See Howard, 367 Ark. 18, 238 S.W.3d 24.

         I. Counsel's Failure to Contemporaneously Object to Testimony Regarding Divorce Action

         Johnson argues that the trial court erred by not finding that his attorneys were ineffective in the sentencing proceeding for failure to make a contemporaneous objection pursuant to Arkansas Rules of Evidence 401 and 404(b) (2011) to testimony by Heather that she had filed for divorce because she discovered that Johnson had been sexually molesting her minor daughter.[1] The trial court noted that Johnson had waived the issue of whether the testimony was admissible by pleading guilty, but because the testimony was given in the sentencing proceeding, counsels' failure to object was germane to the issue of whether counsels' representation was effective under Strickland in the sentencing proceeding.

         Arkansas Rule of Evidence 401 defines "relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 404(b) prohibits raising past crimes or bad acts "to prove the character of a person in order to show that he acted in conformity therewith." Russell v. State, 2017 Ark. 174, at 2, 518 S.W.3d 674, 676. Such evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Stanton v. State, 2017 Ark. 155, at 6, 517 S.W.3d 412, 415, reh'g denied (June 1, 2017). Arkansas Code Annotated section 16-97-103(5) and (6) (Repl. 2006) provides that relevant character evidence and aggravating and mitigating circumstances considered inadmissible during the guilt phase of a criminal trial may be admissible during the sentencing phase. Crawford v. State, 362 Ark. 301, 306, 208 S.W.3d 146, 149 (2005). Evidence of uncharged criminal conduct can be admissible in the penalty phase of a trial if it is relevant evidence of the defendant's character or as evidence of an aggravating circumstance. Brown v. State, 2010 Ark. 420, 378 S.W.3d 66. Further, the admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Pickens v. State, 347 Ark. 904, 910, 69 S.W.3d 10, 14 (2002); see also Kinsey v. State, 2016 Ark. 393, 503 S.W.3d 772, reh'g denied (Jan. 5, 2017).

         The test for establishing motive, intent, or plan is whether the prior bad act has independent relevance. Stevenson v. State, 2013 Ark. 100, at 12, 426 S.W.3d 416, 423. Under Rule 404(b), evidence is independently relevant and admissible if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Vance v. State, 2011 Ark. 243, at 20, 383 S.W.3d 325, 339-40. Any circumstance that links a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible under Rule 404(b). Creed v. State, 372 Ark. 221, 273 S.W.3d 494 (2008). Evidence is admissible if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Fells v. State, 362 Ark. 77, 84, 207 S.W.3d 498, 503 (2005).

         Here, there was testimony in the sentencing proceeding at Johnson's trial that Heather had served him with divorce papers two days before the collision, that she had done so because she discovered Johnson had sexually abused her daughter, that Johnson was extremely angry with Heather on the day of the collision because she had filed for divorce because of the alleged abuse, that Johnson had choked and threatened to kill her, and that he was also angry at the woman who was driving the car when the collision occurred. The testimony was relevant to establish motive in causing the collision and, with regard to intent, to disprove Johnson's assertion that the collision was a mere accident. We held in Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), a case in which the defendant pleaded guilty and was sentenced by a jury in a bifurcated proceeding, that facts and circumstances attendant to the crime are admissible so that the jury can fulfill its function of determining an appropriate sentence. A trial court has wide discretion in admitting evidence of other crimes or wrongs that pertain to the offense to which the defendant pleaded guilty. Id. at 415, 887 S.W.2d at 278. The evidence pertaining to Johnson's extreme anger and hostility pertaining to the allegation of sexual abuse that occasioned Heather's filing for divorce, as well as his conduct before the collision, was admissible under the circumstances of this case. Accordingly, the trial court did not err in finding that his attorneys' representation was not ineffective because counsel failed to make a contemporaneous objection to the testimony at issue. The petitioner under Rule 37.1 who raises the failure to object must show that there was a basis for a meritorious objection because failure to make a meritless objection is not ineffective assistance of counsel. Turner v. State, 2016 Ark. 96, at 4, 486 S.W.3d 757, 760.

         II. Counsel's ...


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