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, Atty Gen., by: Adam Jackson, Asst Atty Gen., for
appellee.
OPINION
COURTNEY
RAE HUDSON, Associate Justice
Appellant Nicholas Roos appeals from the Baxter County
Circuit Courts 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 counsels 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 Mynks
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
Mynks 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
Mynks residence. According to Roos, Mynk and Grayham buried
the Canik 9 mm pistol near a shed on Rooss fathers
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 Rooss
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 witnesss 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 prosecutions
evidence, and not filing motions to suppress.
The
circuit court granted Rooss 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 Rooss 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 Rooss 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
Rooss 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, Rooss 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 Rooss 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, ...