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Crippen v. State

Court of Appeals of Arkansas, Division III

May 22, 2019

JAMES EDWARD CRIPPEN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          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 ...


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