Airsman v. State

Cite as 2015 Ark. 409

SUPREME COURT OF ARKANSAS
No. CR-15-268

DON AIRSMAN, JR. Opinion Delivered November 5, 2015
APPELLANT
PRO SE APPEAL FROM THE
V. HEMPSTEAD COUNTY CIRCUIT
COURT
[NO. 29CR-12-164]
STATE OF ARKANSAS
APPELLEE HONORABLE RANDY WRIGHT,
JUDGE

AFFIRMED.

PER CURIAM

In 2013, appellant Don Airsman, Jr. was found guilty by a Hempstead County jury of

first-degree murder and was sentenced to life imprisonment. This court affirmed. Airsman v.

State, 2014 Ark. 500, 451 S.W.3d 565.

Airsman subsequently filed a verified, pro se petition for postconviction relief pursuant

to Arkansas Rule of Criminal Procedure 37.1 (2015) in the trial court. He raised four claims for

relief. First, he claimed that a juror, who failed to disclose his inappropriate contact with six

deputies and Airsman, should have been removed from the jury and replaced with one of the

alternate jurors. His next three claims for relief centered on allegations of prosecutorial

misconduct which included the following: (1) that the prosecutor promised his father, Donnie

Airsman, immunity for testifying and that the prosecutor waved two pistols around the

courtroom, causing jurors to yell out; (2) that the prosecutor stated the investigation was ongoing

pending the trial, but the “investigator over the whole case testified at trial that it had been over
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and proved that it had been self defense[,]” and that the trial court should have ruled on this

finding of self-defense prior to trial; and (3) that the prosecutor did not play a video from the

beginning as ordered by the trial court, omitting a part that allegedly showed a “deal made by the

prosecutor with the witness.” The trial court denied Airsman’s request for Rule 37.1 relief,

finding that his allegations fell “short of meeting the requirement of a valid collateral attack” and

that Airsman was not entitled to an evidentiary hearing based on the conclusory nature of his

allegations.1 Airsman timely lodged an appeal of that order in this court.

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 v.

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

performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. 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

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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 trial 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 trial court’s order denying
postconviction relief complies with the requirements of Rule 37.3.
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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, 426

S.W.3d 462. 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

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,
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466 U.S. at 697.

On appeal, Airsman makes the following arguments supporting his claims for Rule 37.1

relief: (1) trial counsel did not point out an incident to the trial court between a juror and

deputies during a break which should have been addressed and that, when the trial court asked

if anyone had been affected by anyone talking to them, a comment was made that “[h]e[, Donnie

Airsman,] just whispered to the jury and said, [s]elf-[d]efense[,]” which tainted the jury; (2) the

prosecutor did not play a recording properly during the trial, and trial counsel did not object to

the prosecutor’s misconduct; (3) various claims of prosecutorial misconduct and ineffective

assistance of counsel because counsel allowed the prosecutorial misconduct to occur; (4) a

conflict of interest with trial counsel based on his failure to testify, lack of mitigation evidence,

and his interaction with counsel on an unrelated case when Airsman was a corrections or law-

enforcement officer; and (5) a catch-all argument that the jury was tainted. Contrary to

Airsman’s assertions, he failed to establish that he was entitled to postconviction relief on any

of his claims.

Airman’s arguments on appeal that Donnie Airsman improperly spoke to the jury during

the trial, that there was a conflict of interest with counsel, and that the jury was tainted were not

raised below for the trial court to consider. All grounds for relief pursuant to the Rule must be

asserted in the original or an amended petition. Ark. R. Crim. P. 37.2. We do not consider

issues that are raised for the first time on appeal. Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874

(per curiam).

With respect to Airsman’s first claim about the juror—which appears to be an

amalgamation of an ineffective-assistance-of-counsel claim or juror-misconduct claim for failure
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to point out an incident with a juror to the trial court and a claim regarding trial court error for

not removing the juror—Airsman did not make a clear argument below with respect to whether

he claimed the proposed error was made by the trial court, trial counsel, or the juror when he

argued the juror should have been removed and replaced with one of the alternates. While the

argument on appeal appears to be similar to the claim made in Airsman’s Rule 37.1 petition,

parties may not change on appeal the scope and nature of their arguments made below. Tester

v. State, 342 Ark. 549, 30 S.W.3d 99 (2000).

Even if properly raised on appeal and if Airsman intended to make a claim of juror

misconduct, such a claim is not cognizable in a Rule 37.1 petition. See Hayes v. State, 2011 Ark.

327, at 7, 383 S.W.3d 824, 830 (per curiam). This court has held that a Rule 37 proceeding does

not provide a means to challenge the constitutionality of a judgment where the issue could have

been raised to the trial court, and “a defendant’s remedy for alleged juror misconduct is to

directly attack a verdict by requesting a new trial[.]” Howard, 367 Ark. at 29, 238 S.W.3d at

33–34.

If Airsman’s juror-related claim is one regarding trial court error from the trial court

permitting the juror to remain on the jury or from the trial court failing to further inquire about

the juror, such a claim could have been raised at trial. Allegations of trial error that could have

been raised at trial or on appeal may not be raised in a Rule 37.1 proceeding. Robertson v. State,

2010 Ark. 300, 367 S.W.3d 538 (per curiam); see Britt v. State, 2009 Ark. 569, at 7, 349 S.W.3d

290, 297 (per curiam). Because this argument was not raised at trial or on appeal and because

Airsman has failed to argue an error so basic that it rendered the judgment a nullity, Airsman did

not demonstrate he was entitled to postconviction relief. See id.
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To the extent Airsman claims trial counsel was ineffective for failing to challenge the

continued seating of the juror on the jury, his claim would still fail. Airsman was the only

witness to the acts that allegedly occurred with the juror and deputies. No proof, outside of

Airsman’s own self-serving claims, was otherwise provided that the incident occurred nor had

he provided evidence that trial counsel was aware of the juror incident. Arguments based upon

self-serving statements do not meet the burden of establishing an ineffective-assistance claim.

See Camp v. State, 2015 Ark. 90, 457 S.W.3d 276. Airsman failed to meet his burden of showing

any type of juror misconduct or that counsel should have been aware of the juror misconduct.

See Wedgeworth v. State, 2013 Ark. 119, at 5 (per curiam). “An appellant must do more than allege

prejudice, he must demonstrate it with facts.” Id. at 5–6 (citing Wallace v. State, 2010 Ark. 485

(per curiam)).

Airsman’s multiple claims of prosecutorial misconduct, including arguments that the

prosecutor misplayed the recording to the jury, the prosecutor promised immunity to Donnie

Airsman, and the prosecutor “withheld from the court and the Defense that self-defense had

been proven” are not cognizable in a Rule 37.1 proceeding. Scott v. State, 2012 Ark. 199, at 6,

406 S.W.3d 1, 4. Claims of prosecutorial misconduct are claims that should be raised at trial or

on direct appeal and are not claims that may be raised for the first time in a Rule 37 petition.

Howard, 367 Ark. at 27, 238 S.W.3d at 32 (citing Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904

(2000)). Moreover, Airsman’s argument that trial counsel was ineffective for permitting the

prosecutor’s misconduct must also fail. Airsman failed to describe what action counsel should

have taken or how any action taken by trial counsel would have changed the result of his trial.

Instead, he merely states that trial counsel’s failure to prevent the alleged acts of prosecutorial
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misconduct constituted ineffective assistance of counsel. Again, ‘[s]uch conclusory statements,

wholly lacking in allegations of prejudice, fall far short of meeting the Strickland standard, and

are insufficient to warrant Rule 37 relief.” Howard, 367 Ark. at 34, 238 S.W.3d at 37.

Based on the Strickland standard, we cannot say that 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. As stated, this court will uphold the judgment of the trial court denying

postconviction relief unless the appellant demonstrates that the judgment was clearly erroneous.

To establish that the trial court erred in finding that counsel was not ineffective, the petitioner

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

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

reasonable professional judgment. Thompson v. State, 2013 Ark. 179 (per curiam); see also Moore

v. State, 2014 Ark. 231 (per curiam). Airsman has not met that burden. Accordingly, the trial

court’s order is affirmed.

Affirmed.

Don Airsman, Jr., pro se appellant.

Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.

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