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Fletcher v. State

Court of Appeals of Arkansas, Division II

December 11, 2019

ROSCOE FLETCHER APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO. 60CR-16-1477] HONORABLE HERBERT T. WRIGHT, JR., JUDGE.

          Roscoe Fletcher, Jr., pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, Judge.

         Appellant Roscoe Fletcher[1] appeals from the Pulaski County Circuit Court's denial of his petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Fletcher raises two points on appeal: (1) the trial court erred in failing to find that trial counsel was ineffective when she failed to investigate alibi witnesses, failed to put on an alibi defense, and failed to call alibi witnesses to testify at trial; and (2) the trial court erred when it abruptly moved the date of his evidentiary hearing and would not allow him sufficient time to put a witness on notice so she could attend and testify at the hearing. We affirm the denial of postconviction relief.

         I. Ineffective Assistance of Counsel

         In an appeal from a trial court's denial of a petition for postconviction relief under Rule 37.1, the sole question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel's performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the two-prong Strickland test, a petitioner raising a claim of ineffective assistance of counsel must first show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Bond v. State, 2013 Ark. 298, 429 S.W.3d 185. The petitioner must also show that counsel's performance fell below an objective standard of reasonableness. Id. There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). The appellant has the burden of overcoming that presumption by identifying the acts and omissions of trial counsel, which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446.

         With respect to the second prong of the Strickland test, the petitioner must show that counsel's deficient performance so prejudiced his defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process rendering the result unreliable. Id. There is no reason for a court deciding an ineffective-assistance-of-counsel claim to address both components of the Strickland standard if the petitioner makes an insufficient showing on one of the prongs. Id.

         II. Procedural History and Background

         At trial, the testimony revealed that on the evening of March 20, 2016, Willie Wilson was visiting in the home of his friend, Cassyophis Williams, when two men-a younger man with dreadlocks and an older man wearing masks and carrying guns-entered Williams's residence and robbed them. At trial, Wilson identified Fletcher as the older robber. A Pulaski County jury convicted Fletcher of aggravated residential burglary, theft of property, and aggravated robbery. He was sentenced as a habitual offender to an aggregate term of forty-one years' imprisonment. We affirmed his convictions on direct appeal to this court. Fletcher v. State, 2018 Ark.App. 113, 543 S.W.3d 547.

         Fletcher then filed a petition for postconviction relief, arguing that trial counsel, Brandy Turner, had provided ineffective assistance because she failed to investigate and interview two potential witnesses: his girlfriend and alibi, Charlotte Garrett, and an alleged co-perpetrator, Lisa Overton.[2]

         An evidentiary hearing was scheduled for October 3, 2018, but the date was later changed to October 2. At the hearing, Turner and Garrett testified. Officer Matthew Peach testified as well. Turner testified that she had reviewed Officer Peach's incident report prior to trial and saw that Garrett had told him that a young black male with light skin and dreadlocks named Brandon had been at her house with Fletcher earlier on the evening of the robbery. Turner stated that this description matched a victim's description of one of the two robbers. Turner testified that, although she had spoken with Garrett at one of Fletcher's court appearances, she did not think calling Garrett to testify at trial was a good idea because her testimony could have hurt Fletcher's case. Turner pointed out that the only victim who was permitted to testify and could identify Fletcher was Wilson, who was a convicted drug dealer. The other victim was not permitted to testify because she had tested positive for cocaine. Turner testified that not calling Garrett was trial strategy because the State could have "impeached" Garrett with what she had initially told investigators.

         Turner testified that she did not interview Overton because she could not locate her. Turner stated that no one had an address or a phone number for Overton. Turner said that she, her investigator, and the prosecutor had tried to find Overton without success. When Fletcher asserted that Overton had been sent back to prison, Turner testified that she was unaware of that. Turner later testified that, even if she had found Overton, Overton could have potentially identified Fletcher as one of the robbers.

         Garrett testified that Fletcher was at home in bed with her when police came to search her house and that Fletcher had not left the house that night. She denied telling Officer Peach that Fletcher had a friend named Brandon who had visited before the robbery and denied giving a description of that friend. She ...


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