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Douglas v. State

Supreme Court of Arkansas

March 7, 2019



          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Darnisa Evans Johnson, Deputy Att'y Gen., and Christian Harris, Ass't Att'y Gen., for appellee.


         Appellant Courtney Jerrel Douglas appeals the denial of his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. Douglas was convicted of first-degree murder and possession of a firearm and was sentenced to a term of life imprisonment for his 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. Douglas's convictions and sentences were affirmed in Douglas v. State, 2017 Ark. 70, 1 S.W.3d 852');">511 S.W.3d 852 (Douglas I). In Douglas v. State, 2018 Ark. 89, 540 S.W.3d 685 (Douglas II), Douglas appealed the denial of his petition for postconviction relief under Rule 37. The following facts relevant to the present appeal were set out in Douglas II:

Douglas's 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.

2018 Ark. 89, at 2-3, 540 S.W.3d 685, 687.

         In his petition for postconviction relief, Douglas argued that his trial counsel was ineffective in failing to present the proper jury instructions on (1) justification and (2) extreme-emotional-disturbance manslaughter. In Douglas II, we affirmed in part and reversed and remanded in part. Specifically, we affirmed the circuit court's denial of postconviction relief with regard to the justification jury instruction. However, as to the extreme-emotional-disturbance-manslaughter jury instruction, we held that the circuit court failed to make written findings in accordance with Rule 37.3(a) of the Arkansas Rules of Criminal Procedure. Accordingly, we reversed and remanded for written findings in compliance with Rule 37.3(a). On April 6, 2018, the circuit court entered its written order denying Douglas's petition without a hearing:

Concerning the alleged failure of trial counsel to request or proffer the jury charges pertaining to manslaughter under extreme emotional disturbance, the Court finds that there was lacking any reasonable or rational basis for so instructing the jury under the testimony presented at the trial of this cause. The proof was undisputed that defendant and the victim had a verbal confrontation at defendant's home at which time defendant armed himself with a handgun which he retrieved from a dresser drawer in a bedroom of his home. Any threat to defendant's person had fully concluded. The victim returned to his home and relaxed himself on a sofa, with his pregnant girlfriend inside and her minor son standing in the yard. Defendant, then armed and angry, drove to the victim's home and stormed onto the porch, calling out the victim. As found by the Supreme Court in affirming point one of the Petition, the victim who was unarmed was entitled to defend his home and premises by pushing the defendant away from the entrance doorway. Rather than retreat as required under A.C.A. 5-2-607, defendant then brandished his handgun and fired multiple shots into the victim, who was standing inside the doorway of his home, which gunshots resulted in his death. Defendant failed to retreat and he was the aggressor in this new physical confrontation on the premises occupied by the victim. It is not disputed that the victim was not armed or otherwise is possession of any weapon, deadly or otherwise. Defendant utilized such excessive force, i.e. deadly force, against such unarmed victim, in shooting the victim numerous times with the handgun as the aggressor in this murder. In overcoming the defendant's present claim, the Court finds, and it is critical to emphasize, that the undisputed proof is the initial confrontation had ended and the victim had removed himself completely from defendant's premises. The Court finds that "armed and angry" under the facts of this case does not constitute "extreme emotional disturbance."
. . . .
As set out above there is no prejudice arising out of this allegation inasmuch as the record is absolutely devoid of any factual basis upon which there existed any basis, rational or otherwise (except mere conjecture), which may have warranted that the Court instruct the jury on the lesser offense. The right to have the jury instructed on lesser included offenses is not a fundamental right that gives a basis for relief when raised for the first time in a Rule 37. Kennedy v. State, 338 Ark. 125, 991 S.W.2d 606 (1999). The defendant did not testify at trial. The voluntary statement of defendant to law enforcement, which was heard by the jury, did not create any factual or legal scenario which would have supported the giving of the jury instructions on the lesser offense. Defendant offered up no expert or lay testimony which might have remotely supported a claim of extreme emotional disturbance.
The Court finds that the language of AMCI 2d 301 specifically admonishes the jury as follows: "[i]f you have a reasonable doubt of the guilt of the defendant on the greater offense, you may find him guilty only of a lesser offense." The jury in its deliberation quickly found defendant guilty of Murder, 1st degree. The jury clearly followed the law and the instructions of the Court in its deliberation and in returning the guilty verdict on the charged criminal act, Murder 1st degree. Even if the lesser included offense had been included in the jury instructions, the jury would not have reached the lesser offense. Thus, there resulted no prejudice to defendant. In order to prevail on this claim, defendant must show that it was reasonably probable that the jury's decision would have been different if the jury instruction now asserted had been given. Eastin v. State, 2010 Ark. 275[;] Joiner v. State, [2010 Ark. 309]. No such showing has been or may hereafter be made. Thereafter in sentencing, the jury imposed life imprisonment, the greatest punishment available which is also clear evidence of the certainty of the jury's verdict and the lack of reasonable basis to have instructed on manslaughter.
The Court finds that defendant's argument and citation to Boyle v. State, 363 Ark 356, 214 S.W.3d 250 (2005), is misplaced. The Supreme Court specifically held that passion alone does not reduce a homicide from murder to manslaughter. As set forth above in the recitation of the undisputed facts, Defendant was challenged by the victim in the separate, earlier conflict in the presence of his girlfriend by the victim. He was incensed by the victim's verbal barrage at his home. That initial conflict had clearly ended when the victim left driving his car away from defendant's home. There was no evidence that the initial conflict had become physical. However, armed and angry, defendant chose to go to the victim's home to avenge an insult. He was the initial aggressor in a new confrontation. He was the only person armed with and shooting a handgun, killing his unarmed victim. These facts may well raise passion. However, the Court finds that such facts do not rise to an extreme emotional disturbance nor does defendant's conduct justify the use of deadly force.
The Court concludes that it must charge a jury on a lesser offense only if there is a rational basis for a verdict acquitting him of the charged offense. Herein, based upon undisputed facts, there was no rational basis to so charge the jury even if trial counsel had presented the correct jury instruction on the lesser offense. Thus, no prejudice resulted to defendant. Additionally, the Court concludes that the decision concerning a lesser offense was a matter of trial strategy. The Court may not label counsel ineffective merely because of possibly bad tactics or trial strategy.
The burden is upon the defendant to show that trial counsel's representation fell below an objective standard of reasonableness and that prejudice resulted from such errors. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992); Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986) and Douglas v. State, AR Supreme Court No. CR-17-546 @ p.7 (March 15, 2018). Defendant was represented by an attorney, not a magician. Trial counsel could not create new facts which might have conformed to the theories now raised in this petition. Additionally, there is a presumption that counsel was competent and the burden is upon defendant to establish more than mere errors, omissions, ...

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