APPEAL
FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40CR-2013-13-5]
HONORABLE JODI RAINES DENNIS, JUDGE
Bill
Luppen, for appellant.
Leslie
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
KAREN
R. BAKER, Associate Justice.
Appellant
Kenneth Hinton appeals the denial of his petition for
postconviction relief pursuant to Rule 37 of the Arkansas
Rules of Criminal Procedure. Hinton was convicted of one
count of first-degree battery and one count of second-degree
battery and sentenced to thirty years' imprisonment and
fifteen years' imprisonment respectively. Hinton's
convictions and sentences were affirmed in Hinton v.
State, 2017 Ark. 107, 515 S.W.3d 121. Following this
court's decision, Hinton timely filed a petition for
postconviction relief pursuant to Rule 37 of the Arkansas
Rules of Criminal Procedure. After a hearing, the circuit
court entered its order denying Hinton's petition. We
affirm.
Hinton's
convictions stem from a disturbance at the Varner Unit of the
Arkansas Department of Correction ("ADC") on
October 28, 2012, in which Hinton and other inmates were
involved. Hinton was charged in the disturbance for injuring
Warden Joe Page and shift lieutenant Stephen Simmons.
Initially, Hinton was named as a codefendant with Karl
Pearce, Demetrius Woods, Desmond Holliman, Charles Jester,
and Antonio Smith. On December 15, 2014, a jury trial was
held and resulted in a mistrial on December 16. On April 25,
2016, the case proceeded to trial for a second time.
During
Hinton's trial, Lieutenant Simmons testified that on the
day of the incident, he had been working at the Varner Unit
for a little over two years and was familiar with Hinton.
Lieutenant Simmons testified that at the time of the incident
there was tension in the chow hall because the inmates
realized that an illegal phone had been confiscated from one
of the barracks. A riot broke out with several inmates
assaulting the staff. Lieutenant Simmons testified that
Hinton struck him in the back of his head. Lieutenant Simmons
testified that he was certain Hinton was the inmate who had
struck him because "that's a face I will never, ever
forget." Lieutenant Simmons testified that after Hinton
struck him, Hinton immediately ran and struck Warden Page.
During his testimony, Lieutenant Simmons reviewed videos and
still photographs of the incident and identified Hinton as
the inmate who had struck him and Warden Page. With regard to
Warden Page's condition after he was struck by Hinton,
Lieutenant Simmons testified that Warden Page was
unresponsive. Lieutenant Simmons testified that as a result
of the incident, he prepared an incident report in which he
stated that Hinton ran out of the main chow hall and hit him
with a closed fist on the left side of his face. On
cross-examination, Lieutenant Simmons testified that he did
not document Hinton's striking Warden Page in the
incident report.
Sergeant
Kenneth Ridgell, a field rider with the ADC, testified that
he was familiar with Hinton because Hinton previously worked
on his utility squad. Sergeant Ridgell testified that on the
day of the incident, he witnessed Hinton blindside Warden
Page with a closed fist, knocking him unconscious. Sergeant
Ridgell testified that as a result of the incident, he
prepared an incident report. In Ridgell's incident
report, he did not list Hinton as one of the inmates involved
in the riot. Sergeant Ridgell testified that while he did not
identify Hinton as the inmate who had knocked Warden Page to
the ground, this information should have been in his incident
report.
Warden
Page testified that because of his traumatic brain injury, he
cannot recall any of the events from the day of the incident.
Hinton
was convicted and sentenced as set forth above. Following
this court's affirmance of his convictions and sentences,
Hinton timely filed his petition for postconviction relief
pursuant to Rule 37 of the Arkansas Rules of Criminal
Procedure. In his petition, Hinton argued that his trial
counsel was ineffective in failing to investigate and call
witnesses who would have testified that Hinton did not hit
Warden Page or Lieutenant Simmons.[1] On June 12, 2018, a hearing
was held on Hinton's Rule 37 petition. During the
hearing, Hinton testified that he informed his trial
attorney, Jason Files, that he did not participate in the
assault on Warden Page and the other officers. Hinton
testified that he discussed with Mr. Files the following
witnesses that could be called to testify on his behalf:
Antonio Smith, Desmond Holliman, Carlos McFerrin, Demetrius
Woods, and Eric Ticey.[2] Hinton testified that he wrote Mr. Files
"a letter, an affidavit, letting him know that the way
the first trial went, we was on the wrong page because he
didn't call none of the witnesses that I asked him to
call. So I basically wrote it out in affidavit form to call
witness on my behalf and to do a better investigation
job." With regard to the affidavit he sent to Mr. Files,
Hinton testified that he informed Mr. Files that the
witnesses would be able to testify that he was in Barracks 9
when the incident took place, which is two barracks away from
the chow hall. Hinton testified the Mr. Files could have
easily interviewed the potential witnesses because they were
inmates in the ADC.
The
five inmate-alibi witnesses, Smith, Holliman, McFerrin,
Woods, and Ticey testified that they were either charged
criminally or received disciplinary actions in relation to
the battery of Warden Page and Lieutenant Simmons. The
witnesses testified that Hinton was not present when the
incident occurred. Additionally, each witness testified that
he had not been contacted by Hinton's trial counsel about
what he saw or whether Hinton was present during the
incident. However, each witness testified that if he had been
contacted, he would have been willing to testify on
Hinton's behalf at his trial.
Jason
Files testified that based on his case file, Hinton requested
that he call only three witnesses-Charles Jester, Desmond
Holliman, and Karl Pearce.[3] Mr. Files testified that he contacted
the attorneys of all three witnesses before trial. Mr. Files
was told by all three attorneys that their clients would be
willing to testify on behalf of Hinton but that their clients
would be committing perjury if they testified that Hinton was
not present during the riot. Additionally, Mr. Files
testified that he elected not to the call the inmate
witnesses because their serious criminal histories would
become an issue. Despite Hinton's decision to not testify
at his trial, Mr. Files was concerned it would become
apparent to the jury that "this was a max unit and
anybody in there was there for a serious crime." Mr.
Files testified that his defense strategy was to present the
riot as a very quick and traumatic incident, which would then
allow him to challenge the accuracy of the prison guards'
recollection of the events. Mr. Files further explained that
"if we then call in inmates to say here's what
really happened, we create a dichotomy of these guys know
exactly what happened and they are right and they saw
everything correctly versus . . . if they could see it all
correctly . . . that means the guards probably saw it all
correctly too." Mr. Files testified that the use of the
inmates' testimony would have forced the jury to make a
credibility determination between convicted inmates and law
enforcement officers, which Mr. Files thought would result in
an unfavorable outcome for Hinton. Mr. Files testified that
by the second trial, the former codefendant witnesses had
already pleaded guilty. In Mr. Files's opinion, their
guilty pleas would have affirmed the prison guard's
testimony.
On
August 9, 2018, the circuit court entered its written order
denying Hinton's petition. The circuit court found in
pertinent part:
All of petitioner's witnesses admitted that since October
2012, until the hearing, they had not told officials that
Hinton was not present during the riot. The testimony lacked
the factual substantiation necessary to overcome the
presumption that trial counsel's investigation fell below
the wide range of reasonable professional assistance. The
decision to call a witness is a matter of trial strategy. Mr.
Files testified that in his professional opinion, presenting
to a jury an inmate's testimony that completely
contradicts the testimony of the ADC officers, would not
benefit his client. Mr. Hinton was identified as one of the
inmates who struck Warden Page and Officer Simmons. The jury
viewed the video security recording of the incident. The jury
was directed to observe Hinton in the recording as he
participated in the riot. Mr. Files' trial strategy may
have been instrumental ...