APPEAL FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-11-129]
HONORABLE DON GLOVER, JUDGE
D. Johnson, pro se appellant.
Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
F. WYNNE, ASSOCIATE JUSTICE.
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.
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.
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.
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.
Counsel's Failure to Contemporaneously Object to
Testimony Regarding Divorce Action
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. 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
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).
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).
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.