APPEAL
FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CR-15-358]
HONORABLE GORDON WEBB, JUDGE
James
Law Firm, by: Michael K. Kaiser and William O.
"Bill" James, Jr., for appellant.
Leslie
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
COURTNEY RAE HUDSON, ASSOCIATE JUSTICE
Appellant
Nicholas Roos appeals from the Baxter County Circuit
Court's denial of his petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1. For
reversal, Roos argues that (1) the circuit court clearly
erred by finding that trial counsel's failure to obtain a
forensic evaluation prior to his pleading guilty was not
ineffective assistance; (2) the circuit court clearly erred
in finding that trial counsel was not ineffective by failing
to file any pretrial motions to suppress or motions in limine
before allowing him to enter his plea; and (3) the circuit
court erred by applying the wrong legal standard in ruling on
his petition. We affirm.
Roos
was charged on December 4, 2015, with two counts of capital
murder, two counts of arson, aggravated robbery, Class B
theft of property, and Class D theft of property. The
criminal information alleged the following facts in support
of the charges. On November 7, 2015, Baxter County law
enforcement responded to reports of a residential fire in
Midway. Human remains that were later identified as the
homeowners, Donald and LaDonna Rice, were found at the
residence. One of the Rices' vehicles was also missing
from the residence, and it was discovered the next day in a
field, abandoned and burned. On November 11, 2015, Mike
Pierson, who lived near where the vehicle was found, notified
law enforcement that two males had approached his residence
on the afternoon of November 7 and asked for a ride. They
claimed that a girlfriend had dropped them off nearby to look
for a "fishing hole," although Pierson noticed that
they were not carrying any fishing equipment. Pierson gave
them a ride home. After hearing about the burned residence
and vehicle a couple of days later, Pierson became suspicious
and decided to notify police. He took officers to the house
where he had dropped off the two males, and as they drove by,
Pierson saw one of those males getting into a car with a
female. When officers turned around to get the license plate
number of the car, it drove off at a high rate of speed. The
officers eventually caught up to the vehicle and conducted a
traffic stop. The driver was identified as Mikayla Mynk, and
the passenger was Roos.
A
search warrant was obtained for the vehicle and for
Mynk's residence. Officers located numerous pieces of
jewelry, a large-screen television, a .32-caliber pistol, and
multiple items of drug paraphernalia at the home. Additional
pieces of jewelry, including two rings with the initials
"DRD," a .38 caliber revolver, and power tools,
among other items, were found in the vehicle.
On
November 13, 2015, Roos agreed to give a statement to police.
He admitted that Mynk had dropped him and Zach Grayham off at
the victims' house and that Roos had shot the victims
with a Canik 9 mm pistol that a friend had purchased. Roos
and Grayham then loaded items from the Rices' home, such
as a large-screen television, valuables from the victims'
safe, tools, a .38-caliber revolver, and other possessions
into the Rices' truck, set the home on fire, and drove
the truck to Mynk's house, where they unloaded the stolen
items. Roos indicated that they had abandoned the truck and
set it on fire, then got a ride from an elderly gentleman
back to Mynk's residence. According to Roos, Mynk and
Grayham buried the Canik 9 mm pistol near a shed on
Roos's father's property. Officers later located this
pistol, along with a box of ammunition, near where Roos had
described. The criminal information further alleged that
Grayham had given a statement to police that was virtually
identical to Roos's confession.
Roos
entered a negotiated plea of guilty to all charges on May 24,
2016. He was sentenced to concurrent sentences of life
without parole for the capital murders, and he received 30
years' imprisonment for each count of arson, 30 years for
aggravated robbery, 20 years for Class B theft of property,
and 6 years for Class D theft of property, with these
sentences to be served concurrently to each other and to his
life sentences.[1]
On July
27, 2016, Roos filed a motion for appointment of counsel and
a Rule 37.1 petition for postconviction relief. He claimed in
his petition that his due process rights were violated
because a witness's identification of him was unduly
suggestive and that his guilty plea was coerced. Roos further
argued that his attorneys were ineffective for not obtaining
a mental evaluation, not investigating the prosecution's
evidence, and not filing motions to suppress.
The
circuit court granted Roos's motion for appointment of
counsel, and a hearing was held on his Rule 37.1 petition on
March 28, 2017. Roos presented three witnesses on his behalf
at the hearing, in addition to his own testimony. Levi
Clipper and Zach Alexander, two of Roos's longtime
friends, testified that Roos had suffered from extreme
paranoia in the months preceding the murders and believed
that people were following him. Clipper stated that when Roos
stayed with him for a few days in September 2015, he noticed
Roos's unusual behavior, such as looking out the window
every time he heard a noise and believing that there were
people on the roof attempting to break in to the apartment.
Clipper admitted, however, that Roos was "certainly high
on something," which he assumed was methamphetamine, and
that people who use methamphetamine often behave in a
paranoid manner.
Alexander
testified that Roos had stayed with him during the nine-month
period prior to the murders. Alexander stated that Roos's
behavior changed after he returned from the mental-health
facility in April 2015 and that Roos suffered from paranoia
and hallucinations that people were out to get him. Alexander
agreed that Roos was drinking heavily during this time and
using methamphetamine on a daily basis. Alexander indicated
that he did not see Roos in the two weeks prior to the
murders.
Mary
Hauf, Roos's grandmother, testified that in April 2015,
Roos attempted to commit suicide and was taken to the
hospital. She further testified that she had witnessed his
paranoia. After he was arrested, Roos tried to harm himself
in jail, and Hauf stated that she had asked Roos's trial
counsel to have him undergo a mental evaluation, although one
was never performed. Hauf testified that Roos had admitted
using "all kinds of different drugs."
Roos
stated that he was admitted to a psychiatric treatment
facility for several days in April 2015 after his suicide
attempt and that he had also tried to kill himself in jail
and was subsequently held in solitary confinement on suicide
watch. He testified that he had never had a mental evaluation
subsequent to his arrest despite requesting one from his
trial attorneys. Roos stated that he entered his guilty plea
despite not having had the evaluation because he was told by
his attorneys that his plea bargain would not be accepted if
he raised the issue. He further testified that he had asked
his counsel to file motions to suppress, ...