Jordan v. State

Cite as 2013 Ark. 469

SUPREME COURT OF ARKANSAS
No. CR-13-497

Opinion Delivered November 14, 2013
BRIAN TAYLOR JORDAN PRO SE MOTION FOR EXTENSION
APPELLANT OF TIME TO FILE BRIEF [BENTON
COUNTY CIRCUIT COURT, 04CR-10-
v. 1004, HON. BRAD KARREN, JUDGE]
STATE OF ARKANSAS
APPELLEE
APPEAL DISMISSED; MOTION
MOOT.

PER CURIAM

In 2011, appellant Brian Taylor Jordan was found guilty of rape and sentenced as a

habitual offender to life imprisonment. On appeal, appellant did not challenge the sufficiency

of the evidence. Instead, he argued that the trial court erred in allowing prior offenses into

evidence and that he was entitled to a new trial due to the trial court’s bias against him. This

court affirmed. Jordan v. State, 2012 Ark. 277, ___ S.W.3d ___. The mandate issued on August

14, 2012.

Prior to issuance of the mandate, appellant filed in the trial court a pro se petition for

relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011), alleging that he had not

been afforded effective assistance of counsel. In accordance with Arkansas Rule of Criminal

Procedure 37.2(c)(ii), the trial court treated the petition as filed on the day after the mandate

issued. Thereafter, the State filed its response to the petition. In a written order, the trial court

found that documents in support of the allegations submitted by appellant directly to the trial

judge’s office would be reviewed by the court and directed that the documents be filed as an
 Cite as 2013 Ark. 469

attachment to the order. In the same order, the trial court granted leave to appellant to file an

amended petition for the sole purpose of setting out the relevance of each submitted document

to the claims raised in the petition. Subsequently, appellant filed the amended petition, and the

State filed its response. On February 5, 2013, the trial court denied the petition without a

hearing.1 Appellant timely lodged this appeal. Now before us is appellant’s motion for

extension of time to file his brief.

We need not consider the merits of the motion for extension of time because it is clear

from the record that appellant could not prevail if an appeal were permitted to go forward. An

appeal from an order that denied a petition for postconviction relief will not be allowed to

proceed where it is clear that the appellant could not prevail. Holliday v. State, 2013 Ark. 47 (per

curiam); Bates v. State, 2012 Ark. 394 (per curiam); Martin v. State, 2012 Ark. 312 (per curiam).

Accordingly, the appeal is dismissed, and the motion is moot.

A review of the petitions and the order reveals no error in the trial court’s decision to

deny relief. When considering an appeal from a trial court’s denial of a Rule 37.1 petition based

on ineffective assistance of counsel, the sole question presented is whether, based on a totality

of the evidence under the standard set forth by the United States Supreme Court in Strickland

1
Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should
be held in postconviction proceedings unless the files and record of the case conclusively show
that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State,
2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1
petition without an evidentiary hearing, it “shall make written findings to that effect, specifying
any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark. R.
Crim. P. 37.3(a); see Eason, 2011 Ark. 352. In the instant case, the circuit court’s order denying
postconviction relief complies with the requirements of Rule 37.3.

2
 Cite as 2013 Ark. 469

v. Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s

performance was not ineffective. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.

The benchmark for judging a claim of ineffective assistance of counsel must be “whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to

Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner

raising a claim of ineffective assistance must show that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment

to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There

is a strong presumption that trial counsel’s conduct falls within the wide range of professional

assistance, and an appellant has the burden of overcoming this presumption by identifying

specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the

time of the trial, could not have been the result of reasonable professional judgment. Henington

v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per

curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced

petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, ___

S.W.3d ___. A petitioner making an ineffective-assistance-of-counsel claim must show that his

counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State,

2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable

probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt

respecting guilt, i.e., the decision reached would have been different absent the errors. Howard

3
 Cite as 2013 Ark. 469

v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient

to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the

trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in

sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction

resulted from a breakdown in the adversarial process that renders the result unreliable. Id.

“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both

components of the inquiry if the defendant makes an insufficient showing on one.” Strickland,

466 U.S. at 697.

In his petitions, appellant argued that counsel did not provide effective assistance based

on the failure to introduce certain evidence and raise arguments related to the evidence to

support his defense that the victim had offered him money in exchange for sex. The evidence

and related arguments advocated by appellant consisted of allegedly false statements by

investigators in a police report with regard to the May 27, 2010 interview of Cleo Horton; claims

of police intimidation of Mr. Horton during his May 27, 2010 interview, resulting in the

recanting of his statement that the victim had offered him money in exchange for sex on several

occasions; a letter allegedly written by Mr. Horton in September 2010 in which Mr. Horton

confessed to being untruthful in May 2010 when he recanted his statement, along with the

explanation that he lied to cover up his participation in robbing the victim on the same night as

the rape and because he was promised probation; grievances in which appellant complained of

police assaulting him in an attempt to force him to confess to committing the rape and to writing

the Horton letter; and an email sent by the victim that appellant claimed evidenced the family

4
 Cite as 2013 Ark. 469

relationship between an investigator and the victim. We find no merit to appellant’s arguments.

The documents submitted by appellant in support of his petitions included an “Affidavit

of Probable Cause to Obtain an Arrest Warrant” in which Investigator Kenneth Paul of the

Benton County Sheriff’s Office attested that, on February 27, 2010, the sheriff’s office began

an investigation into the rape of a seventy-five-year-old victim that led to the arrest of appellant.

Investigator Paul further attested that on May 28, 2010, appellant, while an inmate in the Benton

County jail, gave investigators the name of Cleo Horton, who was also an inmate in the jail, as

a witness to the victim offering money in exchange for sex. During the interview, Mr. Horton

told Investigator Paul that appellant was his cousin and that the victim had offered him $375 in

exchange for sex on three or four occasions. According to the affidavit, Investigator Paul

continued the interview and then turned off the audio recording in preparation of taking Mr.

Horton back to jail. After determining that Mr. Horton’s narrative was strikingly similar to

appellant’s statement, Investigator Paul told Mr. Horton that he would be charged if it was

determined that he was being untruthful and that this was his opportunity to tell the truth.

According to Investigator Paul, Mr. Horton then stated that he made up the story because

appellant told him that if he could get appellant out of jail, appellant would post his bond. Mr.

Horton stated that appellant had told him that the victim had never offered sex to anyone, and

he apologized for lying. According to the affidavit, Mr. Horton stated that appellant asked him

to lie “to try to cover up what he did.” Appellant also included several incident reports prepared

by the sheriff’s office in the documents submitted in support of his petitions. One report

referred to a September 2010 letter received by the prosecuting attorney’s office allegedly written

5
 Cite as 2013 Ark. 469

by Mr. Horton. The letter stated that Mr. Horton lied when he recanted his statement in the

May interview in order to cover up his participation in the robbery of the victim and because he

was promised probation by Investigator Paul. In the letter, Mr. Horton’s name was spelled

incorrectly. Investigators then interviewed Mr. Horton, who stated that he did not write the

letter. Appellant also included two affidavits, dated August 24 and 25, 2011, and allegedly

prepared by Mr. Horton. In one affidavit, the affiant stated that investigators coerced him into

recanting his statement in May that the victim had offered him money in exchange for sex. In

a second affdavit, the affiant stated that investigators coerced him into denying that he wrote the

September letter. Finally, the documents included an email sent by the victim as well as

grievances submitted by appellant in which he stated that he had been attacked by a member of

law enforcement while he was in jail.

Because the evidence supporting appellant’s claims related to Mr. Horton and alleged

police misconduct was tenuous, at best, counsel made a strategic decision not to introduce the

evidence or raise related arguments. Where a decision by counsel was a matter of trial tactics

or strategy, and that decision is supported by reasonable professional judgment, then counsel’s

decision is not a basis for relief under Rule 37.1. Bryant v. State, 2013 Ark. 305, ___ S.W.3d ___

(per curiam); Adams v. State, 2013 Ark. 174, ___ S.W.3d ___. Counsel is allowed great leeway

in making strategic and tactical decisions. Leak v. State, 2011 Ark. 353 (per curiam).

Additionally, appellant’s claim of a family relationship between an investigator and the victim

could not have been considered as it was conclusory. The referenced email does not support

the allegation of a family relationship, and appellant did not state how the two individuals were

6
 Cite as 2013 Ark. 469

related or what effect such relationship had on the outcome of the case. Neither conclusory

statements nor allegations without factual substantiation are sufficient to overcome the

presumption that counsel was effective, nor do they warrant granting postconviction relief.

Wedgeworth v. State, 2013 Ark. 119 (per curiam); Crain v. State, 2012 Ark. 412 (per curiam).

In addition, appellant did not show that any failure to introduce the aforementioned

evidence or raise related arguments was so prejudicial that it tainted appellant’s trial to the degree

that the proceeding was unfair. On February 27, 2010, the Benton County Sheriff’s Department

responded to a call that a seventy-five-year-old female had been sexually assaulted in her home.

The victim identified her attacker as appellant, a former neighbor who had recently begun

visiting her. Jordan, 2012 Ark. 277, ___ S.W.3d ___. Appellant’s defense was that he did not

rape the victim, rather that she offered him $100 to have sex with her. Id. During his direct

examination, appellant admitted that he had four prior felony convictions—arson, terroristic

threatening, first-degree carnal abuse, and failure to register as a sex offender. Id. Other

evidence at trial included the testimony of the nurse who examined the victim for sexual assault,

who testified that the victim sustained injuries beyond the labia majora and that penetration must

have occurred to sustain such injuries. Finally, the DNA analyst with the State Crime Lab who

performed the DNA testing testified that DNA recovered from a swab of the victim’s right

breast was consistent with DNA from the saliva sample from appellant. The jury determines,

not merely the credibility of witnesses, but the weight and value of their testimony. Nelson v.

State, 344 Ark. 407, 39 S.W.3d 791 (2001). In light of the overwhelming evidence of guilt

presented at trial, appellant did not carry his burden to show that the outcome of his trial would

7
 Cite as 2013 Ark. 469

have been different if the evidence that he advocated had been introduced.

In a related argument, appellant contended that counsel was deficient in not providing

him with a copy of statements taken by investigators or a copy of the September 2010 letter

allegedly written by Mr. Horton. Appellant further contended that counsel was ineffective in

refusing to investigate the authorship of the letter. He argued that if the letter had been

provided to him, he could have then introduced it into evidence and, thereby, been found not

guilty of rape. As held herein, counsel made a strategic decision outside the purview of Rule

37.1 not to pursue introduction of the September 2010 letter, and appellant did not meet his

burden of proving that the outcome of the trial would have been different if the letter had been

introduced. Likewise, even if the allegation is true, appellant failed to show that the outcome

of the trial would have been different if he had been provided with a copy of statements taken

by investigators.

Several of appellant’s claims of ineffective assistance stem from allegations that counsel

failed to effectively cross-examine the rape victim. Specifically, he alleged that counsel was

deficient in not questioning the victim regarding allegedly conflicting statements, in refusing to

ask the victim whether the injuries evidencing penetration of the labia majora could have been

caused by masturbation or other events, and in refusing to question the victim as to whether she

offered to pay appellant in exchange for sex on the night before the rape. The manner of

questioning a witness is by and large a very subjective issue about which different attorneys

could have many different approaches. Clarks v. State, 2011 Ark. 296 (per curiam). Those

decisions are a matter of professional judgment, and matters of trial tactics and strategy are not

8
 Cite as 2013 Ark. 469

grounds for postconviction relief on the basis of ineffective assistance of counsel, even if a

decision proves unwise. Clarks, 2011 Ark. 296; Leak, 2011 Ark. 353. Here, counsel’s decision

not to impeach the rape victim or ask potentially inflammatory questions was a matter of trial

tactics and outside the purview of Rule 37.1.

Appellant also argued that counsel was deficient in failing to object to the introduction

of a photograph of the crime scene, the victim’s bedroom, that “focused” on a picture of a Bible

in the room. Appellant argued that the photograph served no purpose except to inflame the jury

because the picture was not taken on the night of the rape. In order to demonstrate prejudice

for a failure to object, appellant must submit facts to support the proposition that counsel could

have raised a specific, meritorious argument and that failing to raise that specific argument would

not have been a decision supported by reasonable professional judgment. Simmons v. State, 2012

Ark. 58 (per curiam). Appellant did not identify any meritorious argument that counsel might

have made to have to prevent the introduction of the photograph of the crime scene.

Appellant contended that counsel was ineffective in not objecting when the State cross-

examined him regarding the details of his prior convictions. Prior to trial, appellant filed a

motion in limine seeking to prevent the introduction of his prior felonies. Jordan, 2012 Ark. 277,

___ S.W.3d ___. The trial court found that the State would be allowed to impeach appellant’s

credibility with his prior convictions if he chose to testify at trial. Id. Against the advice of

counsel, appellant chose to testify in his own defense at trial. During direct examination,

appellant admitted that he had four prior felony convictions. Id. According to the record,

appellant testified as to the details of the crimes in an attempt to minimize his culpability in each

9
 Cite as 2013 Ark. 469

crime. In response to appellant’s efforts to reduce the severity of the crimes, the State, on cross-

examination, questioned appellant regarding details of the specific nature of the crimes without

objection from counsel. On appeal, we held that the trial court did not abuse its discretion in

finding that the prior convictions were more probative than prejudicial and, thus, admissible

pursuant to Arkansas Rule of Evidence 609 (2011). We did not reach the issue of whether the

trial court erred in allowing the State to elicit specific information about the nature of the

offenses because the issue was raised for the first time on appeal. Jordan, 2012 Ark. 277, ___

S.W.3d ___.

While appellant argued that counsel was deficient in not objecting to cross-examination

regarding the details of his prior convictions, the testimony regarding the prior convictions was

initiated by the appellant on direct examination, in an apparent attempt by counsel to minimize

the effect of the prior convictions. His testimony went beyond merely admitting to prior crimes.

The State’s questioning of appellant regarding these prior convictions was in direct response to

appellant’s testimony on direct examination. Where a defendant, himself, initiates discussion of

a certain subject, he opens the door to a line of questioning by the State. Williams v. State, 304

Ark. 218, 800 S.W.2d 713 (1990); see also Gilliland v. State, 2012 Ark. 175, at 4 (“An appellant

suffers no prejudice from the admission of the testimony where he or she opens the door to the

line of questioning.”).2 Accordingly, appellant failed to state a basis for a meritorious objection.

2
Appellant cited Burnett v. Fowler, 315 Ark. 646, 869 S.W.2d 694 (1994) in support of the
argument that his testimony on direct examination with regard to his prior convictions did not
open the door to the line of questioning by the State. However, in Burnett, the issue was whether
a party whose motion in limine had been overruled could be the first to broach the subject of
the motion without waiving the error.

10
 Cite as 2013 Ark. 469

Counsel cannot be ineffective for failing to make an objection or argument that is without merit.

Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508.

Appellant next claimed that counsel was ineffective for not raising the allegation that the

prosecuting attorney gave a letter allegedly written by appellant to appellant’s mother in an

apparent attempt to persuade her not to testify on behalf of the defense. With the submitted

documents, appellant included an affidavit of his mother stating that the prosecuting attorney

gave her the letter, but he did not include a copy of the alleged letter. He contended that if

counsel had informed the court of the prosecuting attorney’s actions, the court could have

investigated the matter to see if other witnesses had been approached by the prosecution. He

also argued that the information would have raised doubt as to his guilt. Even if the allegation

were true, appellant did not raise any meritorious argument that the letter had any effect on the

outcome of his case as is necessary to obtain relief pursuant to Rule 37.1. In fact, he admitted

in his petition that his mother testified on behalf of the defense that he was at her home at the

time of the rape. Accordingly, appellant was not entitled to relief on the claim.

Finally, appellant alleged that when the jury began its deliberations following the guilt

phase of the trial, counsel directed his four family members to go home and told them that she

would contact them to let them know the outcome of the trial. In his documents submitted in

support of his petition, appellant attached an affidavit of his mother attesting to the same.

According to appellant, after the jury verdict of guilty was read, he asked counsel about his

family members because he had intended for them to testify as character witnesses during the

penalty phase of the trial. Appellant stated that counsel informed him that his family had to

11
 Cite as 2013 Ark. 469

leave because his father was not feeling well. During the penalty phase, counsel did not call

mitigating witnesses. In closing argument, counsel stated that appellant would like the jury to

keep in mind that he has a family and his parents are elderly and that he feels like they need him

at home to help them in their older years. Even if the allegations are true, appellant has failed

to state a claim for relief.

We recognize that an attorney can be ineffective for failing to present mitigating

evidence. State v. Smith, 368 Ark. 620, 249 S.W.3d 119 (2007). However, when a petitioner

under the Rule asserts that his attorney was ineffective for failure to call a witness or witnesses,

it is incumbent on the petitioner to name the witness, provide a summary of that witness’s

testimony, and establish that the testimony would have been admissible. James v. State, 2013 Ark.

290 (per curiam). Because appellant failed to provide a summary of the witness’s testimony or

establish that the testimony would have been admissible, the allegation was conclusory and did

not merit further consideration. See id. A conclusory claim is not a ground for postconviction

relief. Glaze v. State, 2013 Ark. 141 (per curiam). The burden is entirely on the petitioner in a

Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Thacker

v. State, 2012 Ark. 205 (per curiam); Jones v. State, 2011 Ark. 523 (per curiam); Payton v. State, 2011

Ark. 217 (per curiam). Conclusory statements without factual substantiation are not sufficient

to overcome the presumption that counsel was effective. Crain, 2012 Ark. 412.

Appeal dismissed; motion moot.

Brian Taylor Jordan, pro se appellant.

No response.

12