Conley v. State

Cite as 2014 Ark. 172

SUPREME COURT OF ARKANSAS
No. CR-13-21

VERNELL R. CONLEY Opinion Delivered April 17, 2014
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. CR2009-2046-1]

STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY,
APPELLEE JUDGE

AFFIRMED IN PART; REVERSED
AND REMANDED IN PART WITH
DIRECTIONS.

COURTNEY HUDSON GOODSON, Associate Justice

Appellant Vernell R. Conley appeals the order entered by the Washington County

Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of

Criminal Procedure 37.1. For reversal, he contends that the circuit court erred in finding

that he did not receive ineffective assistance of counsel when his trial attorney (1) failed to

produce testimony that was promised in opening statement; (2) neglected to make proper

motions for directed verdict; and (3) failed to request a severance of the charges. We affirm

on the first point; reverse and remand on the second issue with directions to dismiss the

charges for possession of a controlled substance and possession of drug paraphernalia; and we

do not reach the third point.

By amended felony information, the prosecuting attorney in Washington County

charged Conley with delivery of a controlled substance (crack cocaine); possession of a
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controlled substance (marijuana) with intent to deliver; and possession of drug paraphernalia

(digital scales). The information also alleged that Conley was an habitual offender with more

than four previous felony convictions. Conley stood trial before a jury in the circuit court on

August 26, 2010. The State’s evidence disclosed that Conley delivered 0.5813 grams of crack

cocaine to undercover police officers, who were associated with the drug task force in

Madison and Washington Counties. According to the testimony, the delivery occurred on

the evening of September 15, 2009, at a park in Fayetteville. However, the officers did not

arrest Conley until November 6, 2009. On that date, the officers also executed a search

warrant at Conley’s home, where they discovered 32.5 grams of marijuana in a plastic bag and

a set of digital scales. Both the marijuana and the scales were located in the laundry room on

top of a cabinet above the washer and dryer. One officer testified that marijuana was also

found in the master bedroom of the home, but there was no further testimony indicating

where the marijuana was located in that room. Neither Conley nor any of his family

members were at home when the officers arrived to execute the warrant, although the police

later transported Conley to the home during the search. An officer also testified that

additional surveillance was conducted of the home following Conley’s arrest and that no

further drug activity was observed.

The jury found Conley guilty of delivery of crack cocaine and possession of the digital

scales, as drug paraphernalia. The jury acquitted Conley of possession of marijuana with

intent to deliver and instead found him guilty of the lesser-included offense of possession of

marijuana. At the sentencing phase of trial, the State introduced evidence that Conley had

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previously been convicted of twelve felonies. As an habitual offender, he received sentences

of sixty years for delivery, six years for possession of a controlled substance, and thirty years

for possession of drug paraphernalia. The circuit court directed the possession offenses to run

concurrently and that those convictions be served consecutively to the delivery conviction.

Conley appealed the convictions and sentences to the Arkansas Court of Appeals, which

affirmed. Conley v. State, 2011 Ark. App. 597, 385 S.W.3d 875. Notably, the court of

appeals refused to reach the merits of Conley’s sufficiency-of-the-evidence arguments after

determining that his directed-verdict motions were not specific enough to preserve the issues

raised on appeal.

Thereafter, Conley filed a timely petition for postconviction relief pursuant to Rule

37.1. The circuit court subsequently granted him leave to file an amended petition. In the

amended petition, Conley asserted that he was denied effective assistance of counsel because

his attorney failed to present a witness after counsel had informed the jury in opening

statement that he would produce a witness to testify that the marijuana and the paraphernalia

found in Conley’s home did not belong to Conley; because his attorney did not make

adequate motions for directed verdict; and because his attorney failed to move for a severance

of the possession offenses from the charge of delivery of a controlled substance.1 After a

hearing, the circuit court denied the petition. In its order dated September 18, 2012, the

1
Although Conley raised additional allegations of ineffective assistance of counsel in
his petition and amended petition, he has not pursued them on appeal. Therefore, those
issues are deemed abandoned. Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727.

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court found that trial counsel’s decision not to call the proposed witness was a matter of trial

strategy that was in compliance with the provisions of the Arkansas Rules of Professional

Conduct. The circuit court also ruled that Conley suffered no prejudice from trial counsel’s

failure to seek a severance of the offenses or to make sufficient motions for directed verdict.

Conley filed a timely notice of appeal from the circuit court’s order.

At the outset, we note that this court does not reverse the denial of postconviction

relief unless the circuit court’s findings are clearly erroneous. Montgomery v. State, 2011 Ark.

462, 385 S.W.3d 189. A finding is clearly erroneous when, although there is evidence to

support it, after reviewing the entire evidence, we are left with the definite and firm

conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d

694. In making a determination on a claim of ineffective assistance of counsel, this court

considers the totality of the evidence. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.

Our standard of review also requires that we assess the effectiveness of counsel under

the two-prong standard set forth by the Supreme Court of the United States in Strickland v.

Washington, 466 U.S. 668 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In

asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate

that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228.

This requires a showing that counsel made errors so serious that counsel was not functioning

as the “counsel” guaranteed the petitioner by the Sixth Amendment. Adams v. State, 2013

Ark. 174, ___ S.W.3d ___. The reviewing court must indulge in a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance. Scott v.

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State, 2012 Ark. 199, 406 S.W.3d 1. The defendant claiming ineffective assistance of counsel

has the burden of overcoming that presumption by identifying the acts and omissions of

counsel which, when viewed from counsel’s perspective at the time of trial, could not have

been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403

S.W.3d 55.

Second, the petitioner must show that the deficient performance prejudiced the

defense, which requires a demonstration that counsel’s errors were so serious as to deprive the

petitioner of a fair trial. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231. This requires the

petitioner to show that there is a reasonable probability that the fact-finder’s decision would

have been different absent counsel’s errors. White v. State, 2013 Ark. 171, ___ S.W.3d ___.

A reasonable probability is a probability sufficient to undermine confidence in the outcome

of the trial. Golden v. State, 2013 Ark. 144, ___ S.W.3d ___.

Unless a petitioner makes both Strickland showings, it cannot be said that the

conviction resulted from a breakdown in the adversarial process that renders the result

unreliable. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___. We also recognize that “there

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.” Anderson

v. State, 2011 Ark. 488, at 3–4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697).

As his first point on appeal, Conley argues that he was denied effective assistance of

counsel when his attorney failed to produce a witness after telling the jury in opening

statement “that you’re also gonna listen to a witness of ours come up and testify as to why the

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marijuana was not Mr. Conley’s and the drug paraphernalia, okay.” He asserts that counsel’s

failure to fulfill this promise constitutes deficient performance that diminished counsel’s

credibility in the eyes of the jury and thus damaged his defense on all charges.

At the postconviction hearing, trial counsel identified the omitted witness as Conley’s

wife, Monica. Counsel explained that he did not call her as a witness because the prosecutor

advised that, if she were to testify that the contraband was hers, he would charge her with the

felony offenses of possession with intent to deliver and possession of drug paraphernalia.

Counsel also stated that Conley had admitted early on that he was guilty and that counsel

could not tender Monica as a witness to give perjured testimony. In his testimony at the

hearing, Conley confirmed that he and his counsel discussed the strategy of having Monica

testify to take responsibility for the marijuana and the scales and that counsel advised against

it because she would be charged if she so testified.

The failure to produce evidence promised in opening statement can be an unreasonable

and prejudicial decision that denies a defendant effective assistance of counsel. Dunlap v.

People, 173 P.3d 1054 (Colo. 2007); see also Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002);

Harris v. Reed, 894 F.2d 871 (7th Cir. 1990); Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988);

State v. Moorman, 358 S.E.2d 502 (N.C. 1987). The rationale for considering a failure to

produce promised evidence as deficient performance is that when counsel primes the jury to

hear a different version of events from what he ultimately presents, one may infer that

reasonable jurors would think the witness to which counsel referred in his opening statement

was unwilling or unable to deliver the testimony he promised. McAleese v. Mazurkiewicz, 1

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F.3d 159 (3rd Cir. 1993). In other words, a jury is likely to conclude that counsel could not

live up to the claims made in opening statement. Harris, supra. Courts also recognize that the

failure to produce promised evidence undermines the credibility of the defense. Moorman,

supra; State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991).

For instance, in Anderson, supra, the defendant stabbed his estranged wife numerous

times after finding her with another man. He admitted that he had killed his wife but argued

as his defense that he was guilty of lesser-included offenses to the charge of first-degree

murder. In opening statement, counsel promised to call two expert witnesses who would

testify regarding the defendant’s mental state that the defendant was “walking unconsciously

toward a psychological no exit . . . like a robot programmed on destruction.” Anderson, 858

F.2d at 17. Although the statement was based on the reports of the experts who were

available to testify, the defense rested the following day without calling the experts. In

concluding that counsel’s promise had irreparably damaged the defense case, the First Circuit

reasoned that “[t]he first thing that the ultimately disappointed jurors would believe, in the

absence of some other explanation, would be that the doctors were unwilling, viz., unable,

to live up to their billing. This they would not forget.” Id. The court likened the failure

to call the experts to a “speaking silence” that weakened the “vitals of the defendant’s

defense.” Id. at 18.

On the other hand, the course of a trial can affect and alter an original defense strategy

and may lead to reasonable decisions not to call witnesses who were mentioned in opening

statement. Williams v. Bowersox, 340 F.3d 667 (8th Cir. 2003). The determination of

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whether counsel was ineffective depends on such factors as the nature and extent of the

promises made in opening statement, any strategic justifications for the subsequent decision

not to produce the evidence, the explanation provided to the jury for the failure to produce

the evidence, the presentation of other evidence supporting the promised theory, and

generally, the impact upon the defense at trial and upon the jury. Edwards v. United States,

767 A.2d 241 (D.C. 2001). Determining whether the failure to call a promised witness is

ineffective assistance of counsel depends on the facts and circumstances of each case. United

States v. McGill, 11 F.3d 223 (1st Cir. 1993).

This court has addressed the issue on one occasion. In Chenowith v. State, 341 Ark.

722, 19 S.W.3d 612 (2000) (per curiam), there was no record of opening statements made,

but at a hearing on postconviction relief, Chenowith testified that his trial attorney had told

the jury in opening statement that he would call three witnesses to establish an alibi defense

to charges of kidnapping and rape. Chenowith’s trial counsel could not recall what he had

said in his opening statement, and he testified that the defense strategy that he had pursued

was one of consent. Counsel said that he did not offer an alibi defense because he thought

it would be inconsistent with the defense that the encounters had been consensual. We found

that there was no ineffective assistance of counsel on the ground that counsel’s failure to

pursue the alibi defense was a reasonable defense strategy.

In the present case, we cannot conclude that Conley suffered any prejudice from trial

counsel’s remark in opening statement. Conley’s defense to the charges of possession of

marijuana with intent to deliver and possession of drug paraphernalia was that he was not in

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possession of those items. Through cross-examination of the State’s witnesses, trial counsel

emphasized that Conley was not the only occupant of the residence and that Conley was not

at home when the officers arrived to conduct the search. When considered in context, trial

counsel’s statement was an isolated remark, counsel did not identify the witness, nor did

counsel disclose in any detail the substance of the proposed testimony. We also note that the

jury found Conley guilty of the lesser-included offense of possession of marijuana, which

indicates that counsel’s statement had little, if any, impact on the jury. On this record, we are

not convinced that the failure to produce the witness undermines confidence in the outcome

of the trial. Therefore, we affirm on this point.

Conley next asserts that his trial counsel provided ineffective assistance based on

counsel’s failure to make motions for directed verdict sufficient to challenge the sufficiency

of the evidence on the charges of possession of a controlled substance with intent to deliver

and possession of drug paraphernalia. Noting the court of appeals’ holding that the directed-

verdict motions made by counsel were insufficient, he contends that counsel’s deficient

performance resulted in prejudice because the State failed to produce substantial evidence that

he possessed the marijuana or the digital scales. Conley asserts that this is a case of

constructive possession involving the joint occupancy of a home and that the State failed to

present any evidence linking him to the contraband.

Where it is asserted that counsel was ineffective for the failure to make a motion or

argument, the petitioner must show that the motion or argument would have been

meritorious because the failure to make an argument that is meritless is not ineffective

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assistance of counsel. Mitchell v. State, 2012 Ark. 242. In the instant case, therefore, Conley

must demonstrate that the appellate court would have found that the evidence adduced at trial

was insufficient to support a conviction and would have overturned his convictions for that

reason. Strain v. State, 2012 Ark. 42, 394 S.W.3d 294. Because the circuit court determined

that no prejudice resulted from the failure to make the directed-verdict motions, the appeal

of that decision requires us to review whether there was sufficient evidence to support the

verdicts.

This court treats a motion for a directed verdict as a challenge to the sufficiency of the

evidence. Green v. State, 2013 Ark. 497, ___ S.W.3d ___. In addressing this issue, we

consider all of the evidence, including that which may have been inadmissible, in the light

most favorable to the State. Fondren v. State, 364 Ark. 498, 221 S.W.3d 333 (2006). The test

for determining the sufficiency of the evidence is whether the verdict is supported by

substantial evidence. Wells v. State, 2013 Ark. 389, ___ S.W.3d ___. Substantial evidence

is evidence that is forceful enough to compel a conclusion one way or the other beyond

suspicion or conjecture. Stevenson v. State, 2013 Ark. 100, ___ S.W.3d ___.

In drug cases, it is not necessary for the State to prove that an accused physically held

the contraband, as possession of contraband can be proved by constructive possession, which

is the control or right to control the contraband. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47

(2007). Constructive possession can be implied when the contraband is found in a place

immediately and exclusively accessible to the defendant and subject to his control. Loggins v.

State, 2010 Ark. 414, 372 S.W.3d 785. However, joint occupancy of the premises alone will

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not be sufficient to establish possession or joint possession unless there are additional factors

from which the jury can infer possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251

(1982). Those additional factors include (1) that the accused exercised care, control, or

management over the contraband; and (2) that the accused knew the matter possessed was

contraband. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. This control and knowledge

can be inferred from the circumstances, such as the proximity of the contraband to the

accused, the fact that it is in plain view, and the ownership of the property where the

contraband is found. Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785.

In this case, there was testimony that neither Conley nor any of his family members

were at home when the officers arrived to conduct the search. Therefore, it is reasonable to

conclude that Conley was not the sole occupant of the home. See Osborne v. State, 278 Ark.

45, 643 S.W.2d 251 (1982) (stating that it was reasonable to assume that the defendant shared

the home with his wife, although there was no direct testimony that the wife lived there).

The record in this case also shows that the digital scales, which are flat, and the bag of

marijuana were on top of a cabinet in the laundry room. The top of the cabinet was recessed.

To further obscure the contraband from sight, the marijuana and the scales were situated

behind a decorative object consisting of an axiom made of wooden letters. The evidence thus

discloses that the contraband was hidden from view. Based on this evidence, unless there are

other factors linking Conley to the possession of the scales and the marijuana, the evidence

is not sufficient to support Conley’s convictions for possessing those items. The State

maintains that Conley is connected to the contraband because marijuana was also found in the

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master bedroom. However, the testimony did not disclose where the marijuana had been

found in that room. Other than the fact that marijuana was found there, there is no evidence

linking Conley to the possession of that marijuana. Thus, the discovery of marijuana in the

bedroom does not establish Conley’s possession of the contraband in the laundry room. The

State also relies on the testimony that, once Conley had been arrested, no further drug activity

was observed at the home. However, we do not regard this evidence as establishing a

connection between Conley and the possession of the marijuana and the scales that were

hidden in the laundry room. Consequently, we conclude that the evidence is not sufficient

to support Conley’s convictions for possession of a controlled substance and possession of drug

paraphernalia. In turn, we hold that trial counsel’s performance was deficient and prejudicial,

because had trial counsel made a proper motion for directed verdict, the sufficiency-of-the-

evidence argument raised on appeal would have been successful. Accordingly, we reverse and

remand with directions to dismiss the charges of possession of a controlled substance and

possession of drug paraphernalia. See State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000)

(recognizing that the Double Jeopardy Clause prohibits retrial after a conviction has been

reversed because of insufficiency of the evidence). See also, e.g., Walker v. State, 288 Ark. 52,

701 S.W.2d 372 (1986) (reversing denial of collateral relief and dismissing the charges when

counsel deemed ineffective for failing to advance a meritorious motion to dismiss based on

the lack of a speedy trial; Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984) (same); Clark

v. State, 274 Ark. 81, 621 S.W.2d 857 (1981) (same).

Conley’s final argument is that trial counsel was deficient for not moving to sever the

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possession offenses from the delivery charge. This issue is solely directed to the possession

offenses. Because we have already found counsel’s performance deficient with regard to those

convictions, and because those charges are to be dismissed, we need not address this claim of

ineffective assistance of counsel.2 See Rackley v. State, 2014 Ark. 39; Wicoff v. State, 321 Ark.

97, 900 S.W.2d 187 (1995); Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1988).

Affirmed in part; reversed and remanded in part with directions to dismiss the charges

of possession of a controlled substance and possession of drug paraphernalia.

HART, J., concurs.

JOSEPHINE LINKER HART, Justice, concurring. The majority properly reverses and

remands with directions to dismiss the charges of possession of a controlled substance and

possession of drug paraphernalia. Because the majority dismisses these charges, it did not need

to also address as to these charges the merits of Vernell R. Conley’s argument that his counsel

was ineffective for not presenting a witness when, during opening argument, trial counsel

stated that “you’re also gonna listen to a witness of ours come up and testify as to why the

marijuana was not Mr. Conley’s and the drug paraphernalia.”

If it were necessary to address the issue as it relates to the possession charges, I would

conclude that trial counsel was ineffective. Trial counsel’s failure to produce evidence that

counsel promised to produce during opening argument to the jury is a damaging failure

2
Conversely, it was necessary for this court to address the first issue on appeal because
Conley asserted under that point that trial counsel’s broken promise so damaged trial
counsel’s credibility that he was entitled to a new trial on the delivery charge, as well as the
possession offenses. Even though we rejected Conley’s argument that he was prejudiced by
the broken promise, the issue is one that we are required to consider.

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sufficient to support a claim of ineffectiveness of counsel. McAleese v. Mazurkiewicz, 1 F.3d

159, 166 (3d Cir. 1993) (citing Harris v. Reed, 894 F.2d 871, 879 (7th Cir. 1990), where trial

counsel failed to call witnesses who he claimed in opening argument would support the

defense’s version of a shooting, and Anderson v. Butler, 858 F.2d 16, 17–19 (1st Cir. 1988),

where trial counsel failed to present promised expert-medical testimony that defendant had

acted without cognizance of, or feeling for, his actions in a stabbing). When trial counsel

promises the jury that it will hear a different version of the events from what counsel

ultimately presents, one may infer that reasonable jurors would think that the witness to

which counsel referred in opening argument was unwilling or unable to deliver the promised

testimony. McAleese, 1 F.3d at 166–67.

Trial counsel’s remark referred to the possession charges. Trial counsel testified that he

did not present the testimony of Conley’s wife because it would have been perjured

testimony, as Conley had admitted his guilt to him early in his representation of Conley.

Conley testified that counsel had advised against his wife taking the stand because she would

have been charged. Trial counsel confirmed that he had been so advised by the prosecutor.

Trial counsel had determined prior to trial that he would not offer the testimony.

Thus, he should not have promised it to the jury, as the jury was left to conclude that, in this

constructive-possession case, no witness could explain why the contraband was not possessed

by Conley and was instead possessed by someone else. The prejudice is apparent and cannot

be ignored; the jury convicted Conley of the possession charges despite this court’s holding

today that the evidence was insufficient to support the possession convictions. Because we

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have instructed the circuit court to dismiss these convictions, however, there is no need to

address the merits of this issue.

Furthermore, after dismissing the possession charges, we need not address the merits

of this argument as it relates to the delivery charge. Conley concludes, as an afterthought and

without explanation, that the “magnitude of the error . . . also likely spilled over as evidence

on the delivery count,” and that the “credibility damage impacted the verdict on the delivery

charge as well.” The burden is entirely on the claimant to provide facts that affirmatively

support his or her claims of prejudice; neither conclusory statements nor allegations without

factual substantiation are sufficient to overcome the presumption that counsel was effective,

and such statements and allegations will not warrant granting postconviction relief. See, e.g.,

Abernathy v. State, 2012 Ark. 59, at 5, 386 S.W.3d 477, 482 (per curiam). Thus, Conley’s

conclusory allegations do not merit relief.

Nevertheless, after dismissing the possession charges, if we were still required to address

the merits of this argument as to the delivery charge, Conley could not demonstrate prejudice.

The testimony on the delivery charge was distinct from the testimony on the possession

charges, and trial counsel’s remark did not speak to the evidence presented on the delivery

charge but rather referred only to the efforts to rebut the possession charges.

James Law Firm, by: Lee D. Short, for appellant.

Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.

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