Frazier v. State

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SUPREME COURT OF ARKANSAS.
No. CR-15-499

Opinion Delivered February 11, 2016
CORIE RODRIGUS FRAZIER
APPELLANT
PRO SE APPEAL FROM THE UNION
V. COUNTY CIRCUIT COURT
[NO. 70CR-12-0371]
STATE OF ARKANSAS
APPELLEE HONORABLE HAMILTON H.
SINGLETON, JUDGE

AFFIRMED.

PER CURIAM

This is an appeal from the denial of appellant Corie Rodrigus Frazier’s pro se petition

for postconviction relief filed pursuant to Rule 37.1 of the Arkansas Rules of Criminal

Procedure. For the reasons set forth below, the order of the circuit court is affirmed.

On April 23, 2013, Frazier, was convicted by a jury of attempted first-degree murder,

two counts of aggravated assault, and possession of a firearm. He was sentenced to an

aggregate term of 852 months’ imprisonment. The trial court directed a verdict on two

counts of aggravated assault, and the jury acquitted Frazier of one count of committing a

terroristic act. The convictions are the end result of an altercation that took place between

Frazier and his friend, Mark Watts, which culminated in Frazier shooting Mark Watts five

times, while Sharon Watts was in close proximity. Frazier contended at trial that Mark

Watts also had a gun, and Frazier, therefore, fired in self-defense. On direct appeal, the

sufficiency of the evidence was challenged with respect to Frazier’s conviction for the

aggravated assault of Sharon Watts. The Arkansas Court of Appeals affirmed the conviction
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on March 19, 2014. Frazier v. State, 2014 Ark. App. 191. The mandate was issued on April

8, 2014.

Frazier filed a properly verified, timely petition for postconviction relief on May 5,

2014, contending that he was deprived of effective assistance of counsel based on the

following allegations of error: (1) counsel failed to conduct a proper pretrial investigation

and an effective cross-examination of the State’s witnesses; (2) counsel failed to adequately

impeach the State’s key witness, Sharon Watts, failed to present evidence explaining the

trajectory of a certain bullet fragment, and, consequently, failed to file an adequate appeal

that challenged the evidence supporting his convictions on all counts; (3) counsel failed to

strike a juror for cause who was first cousin to an officer who was a witness for the

prosecution. The circuit court denied the petition without conducting an evidentiary

hearing and adopted, “in toto,” the findings and conclusions encompassed in the State’s

responsive pleading. In its adopted findings, the circuit court concluded that, in view of the

evidence adduced at trial, Frazier’s allegations of error were unsubstantiated and failed to

meet the two-prong burden of proof outlined in Strickland v. Washington, 466 U.S. 668

(1984).

On appeal, Frazier repeats the allegations of error described in his Rule 37 petition,

but also raises two new allegations. Frazier asserts that counsel erred by failing to petition

this court for review of the decision rendered by the court of appeals and also raises a new

allegation that counsel failed to challenge the prosecution, under Brady v. Maryland, 373

U.S. 83 (1963), for withholding evidence that consisted of pretrial statements given to

investigators by Sharon Watts.

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Our general rule is that specific allegations of ineffectiveness of counsel must be

pleaded, and specific issues of ineffectiveness of counsel cannot be raised for the first time

on appeal. Tisdale v. State, 311 Ark. 220, 227, 843 S.W.2d 803, 807 (1992). This court

will not consider new matters not raised in the Rule 37 petition for the first time on appeal,

unless they are so fundamental as to void the conviction. Nelson v. State, 344 Ark. 407, 415,

39 S.W.3d 791, 797 (2001) (per curiam).

Frazier contends that counsel failed to raise a Brady claim when it came to light, at

trial, that Sharon Watts had given investigators detailed statements describing the relevant

events. According to Frazier, Sharon Watts’s prior statements contained information that

contradicted her trial testimony, but Frazier does not identify which contradictions he is

referencing and does not point to any evidence contained in the trial record that the

prosecutor withheld these statements, or that his counsel was unaware that they existed. In

fact, Frazier asserted below in his Rule 37 petition that trial counsel was aware Sharon Watts

had made inconsistent statements to investigators, but failed to effectively use those

inconsistencies to impeach her testimony. Thus, not only did Frazier fail to raise a Brady

claim below, he affirmatively represented to the circuit court that counsel was aware of the

evidence that he now asserts in his appeal brief was withheld by the prosecution. Where a

petitioner offers nothing to show that information was concealed from the defense, and the

issue could have been determined with certainty at the time of trial, the petitioner has not

demonstrated a Brady violation. McClure v. State, 2013 Ark. 306, at 2 (per curiam).

To the extent that an allegation of a Brady violation may implicate a fundamental

error, Frazier’s allegations do not. Cf. Howard v. State, 2012 Ark. 177, at 7, 403 S.W.3d 38,

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44 (substantiated Brady claim meets the requirements for the issuance of a writ of error

coram nobis). The allegation that the prosecutor failed to disclose evidence that was

introduced during the trial is a claim of prosecutorial misconduct that could have been raised

at trial or on direct appeal and is therefore, not a claim that can be raised for the first time

in a Rule 37 petition. Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 33 (2006)(allegation

of prosecutorial misconduct that includes a failure to disclose evidence was not a

fundamental error that rendered the conviction void, but was an issue that should have been

raised at trial).

The allegation that counsel failed to file a petition for review of the opinion rendered

by the court of appeals was not raised below and will not be reviewed on appeal. Frazier’s

new allegation that counsel failed to raise a Brady violation contradicts the allegations

contained in his Rule 37 petition, and, otherwise fails to identify sufficient facts warranting

review on the basis that it implicates a fundamental error capable of rendering his conviction

void.

As to the ineffective-assistance-of-counsel claims raised and ruled on below, this

court has held that it will reverse the circuit court’s decision granting or denying

postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014

Ark. 172, at 4, 433 S.W.3d 234, 239. A finding is clearly erroneous when, although there

is evidence to support it, the appellate court, after reviewing the entire record, is left with

the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012

Ark. 155, at 3, 400 S.W.3d 694, 697.

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When considering an appeal from a circuit 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, 466 U.S. 668, the trial court clearly erred in holding that counsel’s performance

was not ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. Under

Strickland, the effectiveness of counsel is assessed under a two-pronged standard. First, a

petitioner 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, 108, 251 S.W.3d 290, 292–93 (2007). In

order to demonstrate counsel’s error, a petitioner must show that his counsel’s performance

fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59 at 4,

386 S.W.3d 477, 481 (per curiam). Furthermore, there is a strong presumption that trial

counsel’s conduct falls within the wide range of reasonable professional assistance, and a

petitioner 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. Bryant v. State,

2013 Ark. 305, at 2, 429 S.W.3d 193, 196 (per curiam).

The second prong requires petitioner to show that counsel’s deficient performance

so prejudiced his defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark.

140, at 5, 426 S.W.3d 462, 467. Consequently, a 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

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the errors. Breeden v. State, 2014 Ark. 159, at 2, 432 S.W.3d 618, 622 (per curiam). A

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

the trial. Id. Conclusory allegations unsupported by facts and which provide no showing

of prejudice are insufficient to warrant Rule 37 relief. Nelson v. State, 344 Ark. 407, 413,

39 S.W.3d 791, 795 (2001) (per curiam). The burden is on a petitioner to provide facts that

affirmatively prove his ineffective-assistance-of-counsel claims, and unsubstantiated

allegations cannot form the basis of postconviction relief. Watkins v. State, 2010 Ark. 156

at 10, 362 S.W.3d 910, 917.

For his first assignment of error, Frazier argues that counsel erroneously failed to

strike a juror, Ms. Magee, when it was revealed during voir dire that Magee was related to

Officer Griffin, a witness for the prosecution. Frazier cites Arkansas Code Annotated section

16-31-102(b), for the proposition that Magee should have been struck as a matter of law.

Frazier also cites to and relies upon the concurring opinion of Justice O’Connor in Smith v.

Phillips, 455 U.S. 209, 234 (1982), which discusses the doctrine of implied bias and noted

that most jurisdictions have statutes that set forth conduct or status that will automatically

disqualify prospective jurors, without regard to whether that person is actually biased. Id.

In Arkansas, our statute implies bias where a juror is related to either a party or to

counsel for either party, but it is not applicable to a relationship between a witness and a

prospective juror. See Ark. Code Ann. § 16-31-102(b)(1) (Supp. 2013). Even when a

prospective juror is related to either a party or an attorney in the pending case, the

prospective juror can nevertheless serve by consent of the parties. Id. Thus, under no

circumstance are parties compelled by law to exclude certain jurors because of their status.

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While our statute does not address bias with respect to a prospective juror’s relationship to

a witness, we have recognized the doctrine of implied bias where a juror is closely related

to a witness to a controverted issue, and a trial court refuses to strike the juror for cause.

Beed v. State, 271 Ark. 526, 534, 609 S.W.2d 898, 905 (1980)(decision under prior statute).

Here, Magee served by consent of the parties, and this is not a case where the trial court

refused to strike her for cause. Rather, Frazier challenges his counsel’s judgment for

consenting to Magee’s service.

The trial record reveals that Magee stated during voir dire that, even though she was

related to Griffin, the two of them had no social interaction whatsoever and that she would

not give Griffin’s testimony more weight than that of any other witness. Moreover, Griffin

merely took pictures, measurements, and collected evidence from the crime scene; he was

not an eyewitness to the shooting, and his testimony was not controverted. The record

further reveals that Frazier was present during jury selection, and he was, therefore, aware

that counsel had consented to Magee as a juror.

Once jurors are selected by consent of the parties, they are presumed unbiased, and

the burden of demonstrating actual bias is on the petitioner. Howard v. State, 367 Ark. 18,

37, 238 S.W.3d 24, 39 (2006); Huls v. State, 301 Ark. 572, 580, 785 S.W.2d 467,471–72

(1990). Moreover, this court will not label counsel ineffective because of possible bad

tactics in jury selection. Howard, 367 Ark. at 37, 238 S.W.3d at 39. In sum, Frazier fails to

allege sufficient facts or to present any evidence in the trial record to overcome the

presumption that Magee was unbiased, or that counsel’s judgment regarding Magee’s

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competence to serve impartially was unreasonable. The circuit court did not clearly err by

dismissing this claim.

Frazier further argues on appeal that counsel was “grossly ineffective” for submitting

an inadequate direct appeal to the court of appeals. However, Frazier’s allegation of error

raised on appeal in support of his ineffective-appeal claim differ from the allegation raised

below. Specifically, in his Rule 37 petition, Frazier alleged that counsel failed to challenge,

on direct appeal, the sufficiency of the evidence supporting his convictions on all counts

and, instead, challenged only one aggravated-assault count. Frazier does not raise this

allegation in his appellate argument. Frazier’s failure to make this allegation on appeal

precludes review of the issue. Davis v. State, 375 Ark. 368, 375, 291 S.W.3d 164, 169

(2009). To the extent that Frazier’s new allegations of error are preserved on appeal, they

are without merit. Frazier’s ineffective-appeal claim rests on an assertion that counsel failed

to develop sufficient evidence at trial to ensure reversal of his convictions on direct appeal.

Such conclusory allegations are insufficient to establish a claim that counsel was ineffective

on direct appeal.

A petitioner who claims that appellate counsel was ineffective bears the burden of

making a clear showing that counsel failed to raise some meritorious issue on appeal. State

v. Rainer, 2014 Ark. 306 at 13, 440 S.W.3d 315, 323 (citing Moore v. State, 2011 Ark. 269

(per curiam)). Counsel’s failure to raise a specific issue must have amounted to error of

such magnitude that it rendered appellate counsel’s performance constitutionally deficient

under the Strickland criteria. The petitioner must show that there could have been a specific

issue raised on appeal that would have resulted in the appellate court’s declaring reversible

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error. Id. (citing Walton v. State, 2013 Ark. 254 (per curiam)). It is petitioner’s responsibility

to establish that the issue was raised at trial, that the trial court erred in its ruling on the issue,

and that an argument concerning the issue could have been raised on appeal to merit

appellate relief. Id. Here, Frazier does not identify any meritorious issue raised at trial and

denied by the trial court which could have been raised on appeal. Instead, Frazier asserts

that his convictions would have been reversed on appeal, if certain facts had been developed

at trial. Such speculative allegations are not sufficient to establish a claim for relief under a

theory that counsel was ineffective on direct appeal. Rainer, 2014 Ark. 306, at 13, 440

S.W.3d at 323.

In his final claim of ineffective assistance of counsel, Frazier contends that counsel

failed to adequately investigate and was therefore unprepared to conduct an effective cross-

examination of Sharon Watts. Frazier contends that, due to counsel’s lack of preparation,

the testimony of the State’s only key witness was not discredited. To prevail on a claim that

trial counsel was ineffective for failing to adequately investigate and prepare for trial, the

petitioner must show how a more searching pretrial investigation or better preparation

would have changed the results of the trial. Bond v. State, 2013 Ark. 298, at 9, 429 S.W.3d

185, 192 (per curiam). Specifically, the petitioner must delineate the actual prejudice that

arose from the alleged failure to investigate and prepare for trial and demonstrate a reasonable

probability that additional preparation and the information that would have been uncovered

with further investigation could have changed the outcome of the trial. See, e.g., Bryant v.

State, 2013 Ark. 305, at 9, 429 S.W.3d 193, 200 (per curiam). This court has stated that, as

with any other claim of ineffective assistance of counsel, a petitioner cannot succeed merely

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by alleging that counsel was not prepared. Camargo v. State, 346 Ark. 118, 129, 55 S.W.3d

255, 263 (2001).

Frazier insists that Sharon Watts incorrectly testified that, shortly before the shooting,

Frazier drove up to the Wattses’ house and rolled down the driver’s side window of his car.

According to Frazier, the driver’s side window of his car was inoperable and, therefore,

could not have been rolled down at the time of the shooting. Frazier asserts that had counsel

conducted an adequate pretrial investigation, documentary proof of the window’s defect

could have been produced to impeach this testimony. Frazier cites no other contradictory

information presented by Sharon Watts, or any other State witness, that trial counsel failed

to discover or effectively utilize for impeachment.

A review of the record shows that Sharon Watts did not testify that Frazier rolled

down the driver’s side window. Rather, she testified that Frazier was sitting on the passenger

side of the car with another individual sitting in the driver’s seat when the window was

rolled down. It is not clear from her trial testimony which window she indicated had been

rolled down, but the record shows that Mark Watts testified that the driver’s side window

was down at the time of the shooting. In any event, Frazier pointed out in his testimony

that the driver’s side window was inoperable and, thus, was able to present this issue to the

jury for its consideration. Clearly the jury resolved the conflict in favor of conviction. Price

v. State, 373 Ark. 435, 438–39, 284 S.W.3d 462, 465 (2008)(The trier of fact is free to

believe all or part of any witness’s testimony and may resolve questions of conflicting

testimony and inconsistent evidence.).

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In support of his claim that counsel was unprepared, Frazier presumes that

documentary evidence establishing the condition of the driver’s side window was material

evidence and its introduction would have undermined the credibility of all the evidence

presented, including the testimony of both Sharon and Mark Watts. Evidence is material if

there is a reasonable probability that its disclosure would have changed the outcome of the

trial. State v. Larimore, 341 Ark. 397, 404, 175 S.W.3d 87, 91 (2000) (quoting Strickler v.

Green, 537 U.S. 263 (1999)). Frazier’s contention that the testimony of Sharon Watts was

key to his convictions is belied by the trial record, which includes the testimony of a

neighbor, Delores Ross, who observed Frazier standing over Mark Watts and firing while

Watts was attempting to crawl to safety inside his home. Finally, Frazier testified during

cross-examination that he pursued Watts and fired the first shot while Watts was on the

ground allegedly attempting to retrieve his weapon which, according to Frazier, had been

dropped on the ground and had fallen underneath a parked vehicle. No evidence was

presented at trial to corroborate Frazier’s testimony that Mark Watts had a gun. However,

even assuming that Watts was armed, Frazier’s own testimony that he chased Watts down

and shot while Watts was prostrate tends to abrogate a self-defense claim, in that deadly

force is justified as self-defense only if the use of force cannot be avoided by retreating.

Heinze v. State, 309 Ark. 162, 166, 827 S.W.2d 658, 660 (1992); Ark. Code Ann. § 5-2-

607(b) (Repl. 2006). In view of the testimony and other evidence presented by the State,

combined with a consideration of Frazier’s own description of the incident, Frazier’s

allegations do not give rise to a reasonable probability that additional preparation could have

changed the outcome of the trial. Bryant, 2013 Ark. 305, at 9, 429 S.W.3d at 200.

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For his last assignment of error, Frazier contends that the circuit court did not comply

with the requirements of Arkansas Rule of Criminal Procedure 37.3(a) (2014), because the

order lacks the proper findings of fact. Here, the circuit court entered a one-page order

that summarily denied relief. However, in its order, the court adopted “in toto” the

findings and conclusions found in the State’s responsive pleading. These adopted findings

set forth each allegation raised by Frazier and specifically concluded that in view of the

evidence adduced at trial, Frazier’s allegations of error pertaining to jury selection, trial

preparation, and inadequate cross-examination lacked merit in that Frazier failed to

demonstrate that counsel’s representation was unprofessional and prejudicial under the facts

contained in the record. In sum, the circuit court complied with Rule 37.3(a) when it

adopted the State’s findings and conclusions. When the lower court adopts an instrument

as its own, it makes no difference who drafted it, and the adopted order is in compliance

with the law. Scott v. State, 267 Ark. 628, 631, 593 S.W.2d 27, 29 (1980). Even assuming

that the findings failed to adequately specify the parts of the record that form the basis of the

circuit court’s decision under Rule 37.3(a), we will still affirm if the record conclusively

shows that the petition is without merit. Greene v. State, 356 Ark. 59, 65, 146 S.W.3d 871,

877 (2004). Here, the findings adopted by the circuit court met the requirements of the

Rule, and, to the extent that it failed to cite with particularity the parts of the record that

supported its conclusion, a review of the record on appeal demonstrates that the petition is

without merit. The circuit court’s order is affirmed.

Affirmed.

Corie Rodrigus Frazier, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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