FROM THE UNION COUNTY CIRCUIT COURT [NOS. 70CR-11-661 &
70CR-15-324] HONORABLE HAMILTON H. SINGLETON, JUDGE
Resenzweig, for appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
County jury found appellant, Courtney Jerrel Douglas, guilty
of first-degree murder and possession of a firearm. Douglas
was sentenced to a term of life imprisonment for the murder
conviction plus an additional fifteen years' imprisonment
for the use of a firearm. For his possession-of-a-firearm
charge, Douglas was sentenced to forty years'
imprisonment and a fine of $15, 000. Douglas's probation
was also revoked on three controlled-substance offenses, and
he was sentenced to a total of fifty years' imprisonment
to be served consecutively to his other sentences. We
affirmed his convictions and sentences in Douglas v.
State, 2017 Ark. 70, 1 S.W.3d 852');">511 S.W.3d 852. Subsequently,
Douglas filed a timely petition for postconviction relief
pursuant to Rule 37 of the Arkansas Rules of Criminal
Procedure. The circuit court denied Douglas's petition
without a hearing and Douglas now brings this
appeal. Our jurisdiction is pursuant to Rule 37
and Arkansas Supreme Court Rule 1-2(a)(8). We affirm in part
and reverse and remand in part.
convictions and sentences stem from an altercation between
the victim, Terrance Billings, and Douglas. On August 5,
2015, Douglas and Billings got into a verbal altercation at
Douglas's home. After the altercation, Billings returned
to his home. After Billings had left to go home, Douglas
retrieved a firearm and drove to Billings's home.
Jennifer Henry, Billings's girlfriend, testified that
Douglas came to their home uninvited, and when she answered
the door, "[Billings] pushed [Douglas] back outside the
door and turned back around. I heard the gunshot. Then
[Douglas] came and finished shooting inside the house where
[Billings] fell on the floor and died. [Douglas] still stood
there and shot when there wasn't no more bullets in the
gun . . . I kept hearing the gun clicking." D.H.,
Jennifer's fourteen-year-old son, testified that when
Douglas came to their home, he witnessed Billings and Douglas
as they "tussled" on the porch. D.H. further
testified that Billings was inside the home when Douglas
began shooting Billings. John Henry, Jennifer's father,
testified that he witnessed Douglas and Billings scuffling on
the porch as well. John further testified that it looked like
Billings had Douglas in a headlock and Jennifer was standing
behind them. Sergeant Jim Sanders with the Union County
Sheriff's Office testified that upon arriving at the
crime scene, it was his duty to immediately begin taking
photographs. Sergeant Sanders testified that there did not
appear to be any blood, tissue, or other bodily fluids on the
porch or door. However, inside the threshold, but not on the
threshold itself, there appeared to be bodily fluid. Further,
Sergeant Sanders testified that there was no indication that
Billings's body had been moved. Chief Investigator Ricky
Roberts, also with the Union County Sheriff's Office,
testified that there was no indication of blood on the porch,
and based on the evidence, it was apparent that Billings was
shot while standing inside the house.
petition for postconviction relief, Douglas argued that trial
counsel was ineffective in failing to present the proper jury
instructions on (1) justification and (2) extreme emotional
disturbance manslaughter. Douglas contended that based on
these failures, he received ineffective assistance of counsel
and was prejudiced. Douglas now appeals, arguing that the
circuit court erred in denying relief on these claims without
appeal from a trial court's ruling on a petitioner's
request for Rule 37 relief, this court will not reverse the
trial court's decision granting or denying postconviction
relief unless it is clearly erroneous. Kemp v.
State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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." Prater v.
State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. "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 [v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]."
Henington v. State, 2012 Ark. 181, at 3-4, 403
S.W.3d 55, 58. Pursuant to Strickland, we assess the
effectiveness of counsel under a two-prong standard. First, a
petitioner raising a claim of ineffective assistance must
show that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the
petitioner by the Sixth Amendment to the United States
Constitution. Williams v. State, 369 Ark. 104, 251
S.W.3d 290 (2007). A petitioner making an
ineffective-assistance-of-counsel claim must show that his
counsel's performance fell below an objective standard of
reasonableness. Springs v. State, 2012 Ark. 87, 387
S.W.3d 143. A 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 so prejudiced petitioner's defense that he
was deprived of a fair trial. Id. The petitioner
must show there is a reasonable probability that, but for
counsel's errors, the fact-finder would have had a
reasonable doubt respecting guilt, i.e., the decision reached
would have been different absent the errors. Howard v.
State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable
probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id. Unless a
petitioner makes both showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial
process that renders the result unreliable. Id.
Additionally, conclusory statements that counsel was
ineffective cannot be the basis for postconviction relief.
Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
to the merits, we note that the circuit court did not hold an
evidentiary hearing. Rule 37.3 of the Arkansas Rules of
Criminal Procedure provides that an evidentiary hearing
should be held in a postconviction proceeding unless the
files and record of the case conclusively show that the
prisoner is entitled to no relief. Wooten v. State,
338 Ark. 691, 1 S.W.3d 8 (1999) (citing Bohanan v.
State, 327 Ark. 507, 939 S.W.2d 832 (1997) (per
curiam)). If the files and the record show that the
petitioner is not entitled to relief, the circuit court is
required to make written findings to that effect. Ark. R.
Crim. P. 37.3(a).
first point on appeal, Douglas argues that the circuit court
erred in denying his claim, without a hearing, that trial
counsel was ineffective in failing to present the proper jury
instruction on justification. Douglas contends that due to
trial counsel's failure, he was prejudiced. At trial,
Douglas asserted the defense of justification. However, trial
counsel proffered justification instruction AMI Crim. 2d 704,
which is the jury instruction for non-deadly force. As
Douglas points out, AMI Crim. 2d 704 is inapplicable in a
homicide case. Douglas contends that the proper jury
instruction would have been AMI Crim. 2d 705, which is the
justification jury instruction for the use of deadly force.
Douglas argues that there were assertions-based on his own
statement and the testimony of John Henry-that Billings
physically attacked Douglas first and had him in a headlock.
Thus, Douglas argues that he was ...