Roos v. State

         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., Little Rock, for appellant.

         Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.

          OPINION

         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, ...