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Reams v. State

Supreme Court of Arkansas

November 8, 2018

KENNETH REAMS APPELLANT/CROSS-APPELLEE
v.
STATE OF ARKANSAS APPELLEE/CROSS-APPELLANT

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-1993-301] HONORABLE JOHN W. COLE, JUDGE

          Jin Hee Lee, NAACP Legal Defense & Educational Fund, Inc. (New York), pro hac vice; Christopher Kemmitt and Ajmel Quereshi, NAACP Legal Defense & Educational Fund, Inc. (Washington DC), pro hac vice; Squire Patton Boggs (US) LLP, by: George H. Kendell and Corrine Irish, pro hac vice; and John W. Walker, P.A., by: John W. Walker, for appellant.

          O'Melveny & Myers LLP (New York), by: Danielle C. Gray, pro hac vice, amicus curiae for National Association for Public Defense.

          Leslie Rutledge, Att'y Gen., by: David Raupp, Sr. Ass't Att'y Gen.; and Kent G. Holt, Ass't Att'y Gen., for appellee.

          KAREN R. BAKER, ASSOCIATE JUSTICE

         A Jefferson County Circuit Court jury found appellant, Kenneth Reams, guilty of capital murder. Reams was sentenced to death for his capital-murder conviction. We affirmed his conviction and sentence in Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995). Subsequently, Reams filed an unverified petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The circuit court denied Reams's petition in part and granted it in part. Reams now brings this appeal, and the State has filed a cross-appeal. Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1-2(a)(8).

         The following facts are pertinent to this appeal. Reams's conviction and sentence stem from the May 5, 1993 shooting death of Gary Turner. As recounted by this court on direct appeal, Reams, charged as an accomplice of Alford Goodwin's in the murder of Turner, testified that he and Goodwin planned to commit aggravated robbery at an ATM in Pine Bluff because Goodwin "needed the money for graduation." Reams admitted that he and Goodwin, who was armed with a .32 revolver, waited at a local ATM for someone to drive up so they could rob them. Reams further testified that he and Goodwin approached Turner's vehicle at the ATM and that Goodwin shot Turner. On December 1, 1993, prior to Reams's trial, Goodwin pleaded guilty to capital murder and was sentenced to life without parole. After a three-day trial, Reams was convicted of capital murder and sentenced to death on December 15, 1993.

         On January 31, 1997, Reams filed his petition for postconviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. In his petition, Reams asserted 14 claims: (1) the trial court failed to move Reams's case to a jurisdiction that was not contaminated with prejudicial publicity and gossip; (2) Reams's arrest by Pine Bluff authorities occurred in the absence of sufficient and reliable information; (3) evidence illegally seized from Reams's home was admitted at his trial; (4) Reams's custodial statements were improperly admitted because they were involuntary; (5) Reams's involvement in several unrelated crimes was improperly admitted; (6) prejudicial hearsay was improperly admitted at his trial; (7) the jury system in Jefferson County systematically underrepresented African American citizens in trial jury venires, including the venire at Reams's trial; (8) in this mixed-race case, the prosecution exercised its peremptory challenges in a racially discriminatory manner; (9) the prosecution failed to prove the extreme-indifference element of capital murder; (10) the trial court failed to instruct the jury on what constitutes "extreme indifference" under the capital-murder statute; (11) Reams is ineligible for the death penalty due to his intellectual disability; (12) the jury's reliance on the pecuniary-gain aggravating circumstance was an improper "double counting" on that circumstance; (13) the jury improperly failed to consider and weigh the unrebutted mitigating evidence that Reams was mentally retarded and only eighteen years old at the time of the offense; and (14) Reams received ineffective assistance of counsel both at trial and on appeal. On March 28, 1997, the State filed its response to Reams's Rule 37 petition, asserting that Reams's only cognizable claim was his ineffective-assistance-of-counsel claim. However, the State argued that his ineffective-assistance claim was improperly raised in his petition.

         On October 13, 2006, Reams filed his supplement and memorandum of law in support of his previously filed Rule 37 petition, which provided additional details about the claims Reams had raised in his 1997 petition and added a new claim regarding execution by lethal injection. The State responded on November 13, 2006. On December 29, 2006, Reams replied and requested summary judgment on his intellectual-disability claim. On April 25, 2007, the circuit court denied Reams's motion for summary judgment. The circuit court also noted that Rule 37(d) of the Arkansas Rules of Criminal Procedure directs the clerk not to accept for filing any petition that fails to comply with the affidavit requirement of subsection (c). However, the circuit court acknowledged that, despite this mandatory language, the clerk "has accepted and filed what seems to be an unverified Petition." Reams verified his petition on May 31, 2007.

         After a hearing held on May 1, 2007, the circuit court entered a written order on May 31, 2007. The order scheduled an evidentiary hearing on Reams's Rule 37 petition to begin on August 20, 2007. The circuit court ruled that several of Reams's claims were not cognizable under Rule 37 and limited the evidentiary hearing to Reams's claim of mental retardation and ineffective assistance of counsel.

         The evidentiary hearing on Reams's Rule 37 petition commenced on August 20, 2007, and concluded on January 5, 2015.[1] At the hearing, Maxie Kizer, Reams's trial counsel, testified that in 1993 he was a part-time public defender and also had a part-time civil practice. Kizer testified that his caseload covered "sixty-percent of the filings in Jefferson County where people ended up . . . being found indigent and afforded an attorney." Kizer testified that he has handled approximately eight to ten death-penalty cases but stated, "I can't remember . . . This may have been my first one, to tell you the truth." Kizer testified that he did not start "the basic stuff" for Reams's trial until November 1993, or one month before Reams's trial. Kizer testified that "[his] theory of defense is that they couldn't prove who shot the individual who was shot." When asked whether Kizer sought to interview witnesses to support the non-triggerman theory, Kizer testified that Alford Goodwin was represented by counsel. Kizer further testified that he did not recall whether he had approached counsel for Goodwin but that he did not have a good working relationship with Goodwin's counsel.

         Gene McKissic, a Jefferson County attorney who previously worked in the prosecutor's office, testified about the custom and practice of racial discrimination in the jury selection. Specifically, McKissic testified that while he was a prosecutor in Jefferson County, it was the practice of the prosecutor's office to exercise peremptory strikes to exclude African Americans from juries. McKissic testified that, to avoid the appearance of racism, it was common to select at least one African American juror who the prosecutors knew would vote a particular way.

         Jesse Kearney, another Jefferson County attorney and former circuit court judge, testified regarding jury composition and the juror-selection process in Jefferson County. Kearney testified that in the courtrooms of the two Caucasian judges with Caucasian bailiffs, African Americans were underrepresented on venires. However, in the courtroom of the only African American judge with an African American bailiff, the jury pool more closely reflected a fair cross-section of Jefferson County's population. Kearney testified that "it wouldn't take long for a bailiff to start recognizing names that they've used . . . the purpose would be to get good jurors. And I would guess that the bailiff knows certain people and think they're good jurors and would just tend to call them. Black bailiff [sic] would tend to call people who were black that they know and trust them as good jurors; white bailiffs tended to call white people."

         Goodwin, Reams's codefendant testified, that on May 5, 1993, he shot Turner. Goodwin testified that before Turner's arrival at the ATM, Reams gave Goodwin the gun. Originally, the plan was for Goodwin to go to the passenger side and try to turn the vehicle off, and Reams was supposed to go the driver's side and hold the driver up with the gun. However, Goodwin testified that when a big truck pulled up, "I told [Reams] that he was too little because he ain't going to be able to reach the window, so give me the gun." Goodwin testified that, based on their prior plans, once Goodwin gained possession of the gun, Reams automatically knew he would need to position himself by the passenger-side door. Goodwin testified that when Turner pulled up to the ATM, Goodwin went around to the driver's side and Reams went around to the passenger side. When Goodwin walked up, Turner looked at Goodwin and asked, "What the hell you want?" At this point, Turner did not see Reams entering from the passenger side. As Reams got into Turner's truck, Turner turned his head toward Reams, and Goodwin shot him. Goodwin testified that he initially told police that he did not shoot Turner and also sent letters to Turner's family stating that he did not shoot Turner. Goodwin's August 14, 1996 affidavit and a transcribed interview from the same day were entered into evidence. In his 1996 interview and affidavit, Goodwin admitted that he had shot Turner. Goodwin further stated that his lawyer never told him that Kizer was trying to get in touch with him about what happened on May 5, 1993. Further, no one asked Goodwin to testify in Reams's case. Goodwin testified that if he had been asked to testify in 1993, he would like to think that he would have testified that he was the shooter. However, he testified that he was a different person back then. On cross-examination, Goodwin testified that he was not asked to testify, but if he had been asked, he would have testified. Goodwin further testified, "Just like I told [Reams's] legal team, I was such a different person back then . . . I couldn't honestly just sit here and tell you what I would've said because of the type of person I was then."

         Goodwin's friend Phillip Curry also testified that Goodwin had killed Turner. Curry was not present when Turner was killed; however, pursuant to his testimony at the 2014 Rule 37 hearing and his November 21, 2006 affidavit, Curry discussed the shooting with Reams and Goodwin the day after the shooting. Curry testified that Reams told him that while he was trying to turn the car off, he heard a gunshot. Curry testified that Goodwin told him that Reams and Turner were "tussling in the car, and [he] couldn't see what was going on, and [he] just shot."

         The State presented one witness, Flora Cook, who is the Chief Deputy Clerk of the Jefferson County Circuit Clerk's Office. Cook testified that the initial selection of jurors is through voter-registration rolls and the use of a jury wheel.

         Following the Rule 37 hearing, both Reams and the State submitted posthearing briefs from September 30, 2015, through September 23, 2016. On April 13, 2017, the circuit court entered its order granting in part Reams's Rule 37 petition. Pertinent to the present appeal, the circuit court denied Reams's claims that counsel was ineffective during the guilt/innocence phase. With regard to Reams's claims that counsel was ineffective during the penalty phase of trial, the circuit granted his petition and vacated Reams's death sentence.

         On May 10, 2017, Reams timely filed his notice of appeal, and the State timely filed its notice of cross-appeal on May 12, 2017. With this lengthy procedural history in mind, we move to the merits of Reams's appeal and the State's cross-appeal.

         I. Standard of Review

         When reviewing 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. 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. "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 (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.

         Second, 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.

         II. Guilt/Innocence Phase

         On direct appeal, Reams presents two arguments regarding the guilt/innocence phase of his trial: (1) his trial counsel was ineffective during the guilt/innocence phase of trial, and thus, he must receive a new trial; and (2) his claims of jury discrimination were cognizable in his Rule 37 proceedings.

         As to Reams's arguments regarding trial counsel's ineffectiveness during the guilt/innocence phase, only two of his subpoints are properly before us: (1) trial counsel was ineffective at trial for failing to object to evidence of other crimes; and (2) trial counsel was ineffective for failing to challenge the systematic underrepresentation of African American potential jurors pursuant to Duren v. Missouri, 439 U.S. 357 (1979).[2] With regard to these claims, the circuit court specifically found as follows:

The 2006 Memorandum of Law contains 14 claims lettered "a" through "n." The first 13 of these repeat claims made in the original Rule 37 petition, and none of them is cognizable because they are claims that could have been raised at trial and on direct appeal. See generally, e.g., Howard v. State, 367 Ark. 18, 26, 238 S.W.3d 24, 32 (2006). Even as ineffective-assistance allegations, however, they do not support relief as they are conclusory. See, e.g., Jackson v. State, 352 Ark. 359, 371, 105 S.W.3d 352, 360 (2003). The petitioner's mere addition of a sentence that counsel was ineffective with respect to these many otherwise-not-cognizable claims cannot support relief. Thus, these claims ("a" through "m") are denied for that reason.[3]
Given the petitioner's trial testimony admitting to the planning and commission of the crime-the robbery at gunpoint of a stranger at an ATM at night resulting in his shooting death-(Tr. R. 731-79), Reams v. State, 322 Ark. 336, 339, 909 S.W.2d 324, 326 (1995), his guilt-phase ineffective-assistance claims do not merit any relief. In the face of such an admission, there simply is nothing to suggest the reasonable probability of a different outcome-i, e., acquittal of capital murder. Cf. generally Strickland v. Washington, 466 U.S. 668, 697 (1984) ("[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."). All of the petitioner's guilt-phase claims are rejected for want of a showing of prejudice generally in light of his admission at trial to his complicity in the crime.
d. 404(b), Prior Crimes Evidence . . .; Dixon v. State, 2014 Ark. 97, at 7-8 (per curiam) (where evidence admissible as res gestae, counsel not ineffective); Sasser v. State, 338 Ark. 375, 391-92, 993 S.W.2d 901, 910-11 (1999) (per curiam) (objection to prior-evidence as to 404(b) not deficient for failure to independently raise due-process objection).
f. Fair cross section - Jury Challenges . . . Wainwright v. State, 307 Ark. 569, 577-78, 823 S.W.2d 449, 453 (1992) (per curiam) (fair cross section ineffective-assistance claim fails in absence of showing of prejudice).
Batson - Jury Challenges . . . Wooten v. State, 351 Ark. 241, 247-48, 91 S.W.3d 63, 67 (2002) (failure to show relief would have been granted had Batson challenge been made); Reams, 322 Ark. at 340-43, 909 S.W.2d at 327-328 (Batson claim raised on direct appeal).

(Footnotes omitted.)

         With regard to both jury challenges in subsection "f," the order contained the following footnote: "Judge Brown ruled that the claims in "f" must succeed together in order for the petitioner to obtain relief on them. As each fails on its own, they also fail together."

         A. Other Crimes

         For his first point on appeal from the guilt/innocence phase of his trial, Reams argues that his trial counsel was ineffective for failing to object to the admission of evidence of his other crimes. Reams asserts that references to his involvement in crimes unrelated to the capital-murder charge-the burglary of the dry cleaners, the robbery of a bus station, and the robbery at an ATM-were featured prominently throughout the guilt/innocence phase of his trial. Reams argues that the jury should never have heard any of this prejudicial, other-crimes evidence during the guilt/innocence phase of his trial. To support his position, Reams argues that this court has made clear that, under Rule 404(b) of the Arkansas Rules of Evidence, [4] other-crimes evidence can be admitted only if it is "independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal." Lockhart v. State, 2010 Ark. 278, at 9, 367 S.W.3d 530, 536.

         As quoted above, the circuit court found that Reams failed to demonstrate that he had been prejudiced. We agree that given Reams's trial testimony admitting the planning and commission of the crime, Reams has failed to demonstrate prejudice under the Strickland analysis. To establish prejudice, Reams must show a reasonable probability that the jury's decision would have been different absent counsel's alleged errors. Howard, supra. If a claim fails under the prejudice prong of Strickland, it is unnecessary to first evaluate whether counsel's performance was deficient in some respect. Strickland, 466 U.S. at 697 (stating that "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies"). Given Reams's testimony regarding his involvement in the planning and commission of the robbery and shooting death of the victim at an ATM, and given the circuit court's reliance on Reams's own testimony, we cannot say that the circuit court erred in its ruling. Thus, the circuit court did not clearly err in finding that Reams failed to demonstrate a reasonable probability that the jury's decision would have been different had the evidence of his other crimes been excluded. We affirm on this point.

         B. Jury Composition

         We now turn to the remainder of Reams's arguments on direct appeal, which occurred during the guilt/innocence phase of his trial and involve jury challenges. First, Reams argues that trial counsel was ineffective for failing to raise the fair-cross-section-of-the-jury violation based on the systematic underrepresentation of African American potential jurors pursuant to Duren v. Missouri, 439 U.S. 357 (1979). Second, Reams contends that the circuit court committed clear error in ruling that only Reams's claims of ineffective assistance of counsel were cognizable in his Rule 37 proceedings. Specifically, Reams argues that his Duren and Batson v. Kentucky, 476 U.S. 79 (1986), claims are cognizable because they are structural in nature. Thus, Reams urges this court to reverse the circuit court's ruling that his Rule 37 claims are limited to ineffective assistance of counsel and remand for adjudication of his Duren and Batson claims.

         1. Batson

         We first consider Reams's Batson claim. Reams has already presented Batson arguments on direct appeal, which were rejected by this court. However, Reams contends that his new Batson claim is structural in nature and cognizable because new evidence in support of this claim was obtained from the Rule 37 proceedings. However, we hold that Reams has already argued Batson challenges before this court, which were rejected in his direct appeal, and we decline to revisit his claims. See Reams, 322 Ark. 336, 909 S.W.2d 324. Because Reams's Batson claims were raised in his direct appeal and rejected by this court, Rule 37 does not provide an opportunity to reargue settled points. Coulter v. State, 343 Ark. 22, 31 ...


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