APPEAL
FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-14-461]
HONORABLE GARY COTTRELL, JUDGE
James
Edward Crippen, pro se appellant.
Leslie
Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE
James
Edward Crippen appeals the Crawford County Circuit
Court's order denying his petition for postconviction
relief filed pursuant to Arkansas Rule of Criminal Procedure
37.1. On appeal, Crippen argues that his trial counsel was
ineffective in failing to (1) object to the introduction of a
drug-task-force officer's testimony and an Arkansas State
Crime Laboratory report and (2) call the crime-lab chemist as
a witness at trial. We affirm.
On
September 22, 2014, Crippen was charged by felony information
as a habitual offender with simultaneous possession of drugs
and firearms, trafficking methamphetamine, possession of drug
paraphernalia, theft by receiving, fleeing, and possession of
a firearm by certain persons. At trial, drug-task-force
officer Lanny Reese testified that during a search incident
to Crippen's arrest, officers found a case containing
"around seven ounces of suspected methamphetamine."
Reese also testified that the package had some "big
crystal rocks in there" and that it was extremely white.
During
Reese's testimony, the State sought to introduce the
crime-lab report that described the substance tested as a
"clear crystalline substance" and concluded that
the substance was 200.4 grams of pure methamphetamine.
Counsel for Crippen stipulated to the admission of the
report, stating on the record that it was a tactical
decision.[1] Relevant to this appeal, the jury
convicted Crippen of trafficking methamphetamine pursuant to
Arkansas Code Annotated § 5-64-440(b)(1) (Repl. 2016),
which provides that a person engages in trafficking a
controlled substance if he or she possesses, possesses with
the purpose to deliver, delivers, or manufactures 200 grams
or more of methamphetamine. For this conviction, Crippen was
sentenced to twenty-five years'
imprisonment.[2] Thereafter, Crippen's counsel filed a
no-merit appeal and a motion to withdraw as counsel. On May
16, 2018, this court affirmed Crippen's convictions and
granted his counsel's motion to withdraw. Crippen v.
State, 2018 Ark.App. 315.
Crippen
then filed a timely petition for postconviction relief in the
circuit court. In that petition, he raised three claims of
ineffective assistance of counsel: (1) trial counsel was
ineffective for failing to investigate and perform pretrial
functions; (2) trial counsel was ineffective for failing to
call the crime-lab chemist as a witness at trial; and (3)
trial counsel was ineffective for failing to object to the
testimony of Reese and to the introduction of the crime-lab
report.
The
circuit court held a hearing on Crippen's Rule 37
petition. Crippen and his trial counsel, David Dunagin,
testified. At the conclusion of the hearing, the court denied
Crippen's petition. An order denying the petition was
entered on October 9, 2018. In the order, the court rejected
Crippen's arguments that his trial counsel was
ineffective for failing to conduct a pretrial investigation
and for failing to call the crime-lab chemist as a witness at
trial. The order did not address or rule on Crippen's
claim that his trial counsel was ineffective for failing to
object to Reese's testimony and to the introduction of
the crime-lab report. This appeal followed.
When
reviewing a circuit court's ruling on a Rule 37.1
petition, we will not reverse the circuit court's
decision granting or denying postconviction relief unless it
is clearly erroneous. Rayburn v. State, 2019
Ark.App. 79, at 2-3, 570 S.W.3d 516, 519. 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. at 3, 570 S.W.3d at 519.
The
benchmark question to be resolved in judging a claim of
ineffective assistance of counsel is 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. Id., 570 S.W.3d at
519. A Rule 37 petitioner's
ineffective-assistance-of-counsel claims are analyzed under
the two-prong standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), which requires a
petitioner to show that his or her counsel's
representation was deficient, and he or she suffered
prejudice as a result. "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." Rayburn, 2019 Ark.App. 79,
at 3, 570 S.W.3d at 520 (citing State v. Barrett,
371 Ark. 91, 96, 263 S.W.3d 542, 546 (2007)).
Pursuant
to Strickland and its 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. Id., 570 S.W.3d at 520. A petitioner
making an ineffective-assistance-of-counsel claim must show
that his or her counsel's performance fell below an
objective standard of reasonableness such that counsel
committed errors so serious as to not be functioning as
counsel at all. Id., 570 S.W.3d at 520. A court must
indulge in a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance. Id. at 4, 570 S.W.3d at 520. The burden
is on the petitioner to overcome this presumption by
identifying specific acts or omissions by counsel that could
not have been the result of reasoned professional judgment.
Id., 570 S.W.3d at 520.
Second,
the petitioner must show that, considering the totality of
the evidence before the fact-finder, counsel's deficient
performance so prejudiced petitioner's defense that he or
she was deprived of a fair trial. Id., 570 S.W.3d at
520. 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. Id., 570 S.W.3d at 520. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial.
Id., 570 S.W.3d at 520. 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., 570 S.W.3d at 520. A
petitioner bears the burden of providing sufficient facts to
affirmatively support any claims of ineffective assistance of
counsel. Id., 570 S.W.3d at 520. Thus, conclusory
statements, without more, cannot form the basis for
postconviction relief. Id. at 4-5, 570 S.W.3d at
520.
Crippen
raises two points on appeal. The first is that the circuit
court clearly erred in finding that his trial counsel was not
ineffective on the basis of Crippen's claim that he
failed to object to the testimony of Reese and to the
introduction of the crime-lab report because there were
discrepancies in his testimony and in the report.
Specifically, Crippen argues that Reese testified that
officers found "around seven ounces"[3] of
"extremely white" drugs, but the crime-lab report
concluded that it was 200.4 grams of a "clear
crystalline substance" that had been tested. Crippen
argues that "[t]he marked difference in the description
of the substance by the officer and the chemist leads . . .
to the conclusion that there is a significant possibility
that the evidence tested was not ...