Trotter v. Payne

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (Recommendation) has been sent to Judge James M. Moody Jr. Any party to this suit may file written objections. To be considered, objections must be filed with the Clerk of Court within 14 days. Objections should be specific and should include the factual or legal basis for the objection.

         If parties do not object, they may lose the right to appeal questions of fact. And, if no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record.

         II. Procedural Background:

         Petitioner Jonathan Trotter was twenty-eight years old when a jury convicted him of two counts of rape and two counts of second-degree sexual assault committed against a thirteen-year-old girl. Trotter v. State, 2018 Ark.App. 326, at 1. The jury sentenced Mr. Trotter to spend thirty years in the Arkansas Department of Correction (ADC). Id.

         Mr. Trotter raised two issues on direct appeal of his conviction. He first claimed that there was insufficient evidence to support his convictions; and second, he claimed that the trial court erred in denying his motion to declare Arkansas Code Annotated section 5-14-102, which bars a “mistake-of-age” defense unconstitutional. Id.

         The Arkansas Court of Appeals affirmed Mr. Trotter's conviction. Id. at 6. It found that there was sufficient evidence at trial to support his convictions. And, it held that it was without authority to overrule the Arkansas Supreme Court's decision that the statute in question did not violate the United States or Arkansas Constitutions. Id. at 5-6 (citing Gaines v. State, 354 Ark. 89 (2003)). The mandate issued on June 12, 2018.

         Mr. Trotter filed a petition under Rule 37 of the Arkansas Rules of Criminal Procedure on September 10, 2018 in the Hempstead County Circuit Court. (#10-7) In the unverified petition, Mr. Trotter asserted that Arkansas Rule of Criminal Procedure 37.2, which requires that a petition seeking post-conviction relief be filed within 60 days of the mandate, did not apply to his case. He went on to claim that his trial counsel was unconstitutionally ineffective for failing to call a witness; for not arguing that the victim falsely represented herself as an adult; for not arguing that the victim exhibited a pattern of untruthfulness with other adult males “for the purpose of sex”; and that the prosecutor abused her discretion in her charging decision. (#10-7)

         Mr. Trotter also filed a verified addendum to his Rule 37 petition. (#10-8) In the addendum, Mr. Trotter claimed that: (1) the prosecuting attorney purposely withheld information; (2) the court's denial of the mistake-of-age defense violated his due process rights under the Arkansas Constitution; (3) the court erred by not allowing him to argue that he was ignorant of the victim's age so that he could have been tried for a lesser-included offense; (4) the prosecutor purposely withheld information that would have mitigated the charges and punishment; (5) he was denied due process when the court failed to instruct the jury on lesser-included offenses; (6) the trial court improperly suppressed relevant evidence; and (7) the prosecutor erred by not reducing the charges based on the victim's prior sexual conduct. (#10-8) The circuit court denied the petition as untimely. (#10-10) Mr. Trotter did not appeal.

         III. Mr. Trotter's Claims:

         Mr. Trotter raises the following claims in his pending federal petition: (1) he was denied due process because there was insufficient evidence to support his conviction; (2) Arkansas's prohibition against a mistake-of-age defense is unconstitutional; (3) trial and appellate counsel were constitutionally ineffective: for failing to properly cross-examine the victim at trial to impeach her credibility; for failing to call a particular witness; for failing to argue lack of criminal intent; for failing to file a pre-trial motion to amend the information to charge him with the lesser charge of indecency-with-a-child; for failing to quash the information on grounds of double jeopardy; for failing to seek a change of venue; and, for failure of appellate counsel to raise “meritorious” arguments on appeal that had been denied by the trial court (i.e. motion to suppress, motion for disclosure of exculpatory evidence, motion to preclude undisclosed evidence, etc.). (#2)

         Director Payne has responded to the petition, arguing that Mr. Trotter's claims either lack merit or are procedurally defaulted. (#10 at 7-20)

         IV. Facts:

         At trial, the Arkansas Supreme Court summarized the evidence produced at trial as follows:

The State presented two witnesses at the jury trial. The first was Officer Jesus Coronado, and the second was the victim, R.S.

Officer Coronado investigated the case after receiving a report that Mr. Trotter had engaged in sexual intercourse with R.S. Officer Coronado interviewed R.S., and during the interview R.S. stated that she had sexual intercourse with Mr. Trotter in July 2016 and again in August 2016. On the following day, after administering Miranda warnings, Officer Coronado interviewed Mr. ...