Pigg v. State

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SUPREME COURT OF ARKANSAS.
No. CR-15-519

EARL DELMAR PIGG Opinion Delivered March 10, 2016
APPELLANT
PRO SE APPEAL FROM THE
V. CRAWFORD COUNTY CIRCUIT
COURT
STATE OF ARKANSAS [NOS. 17CR-12-35 & 17CR-12-417]
APPELLEE
HONORABLE GARY COTTRELL,
JUDGE

AFFIRMED.

PER CURIAM

In 2013, appellant Earl Delmar Pigg was found guilty of eleven counts of rape of a

victim who was less than fourteen years of age and one count of interference with custody.

Pigg received consecutive life sentences for all eleven counts of rape and an additional term

of 120 months’ imprisonment, also to be served consecutively to the life sentences, for the

interference charge. This court affirmed the judgment. Pigg v. State, 2014 Ark. 433, 444

S.W.3d 863. Pigg filed in the trial court a petition for postconviction relief under Arkansas

Rule of Criminal Procedure 37.1 (2015). Following an evidentiary hearing, the court

denied relief, considering both the original petition and a supplemental petition, and Pigg

brings this appeal. We affirm the order denying postconviction relief.

This court will not reverse a trial court’s decision granting or denying postconviction

relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. A

finding is clearly erroneous when, although there is evidence to support it, the appellate
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court, after reviewing the entire evidence, is left with the definite and firm conviction that

a mistake has been committed. Id. Pigg alleges seven points for reversal. 1

In his first point on appeal, Pigg contends that the trial court failed to provide the

findings of fact and conclusions of law required under Arkansas Rule of Criminal Procedure

37.3. When the trial court does not summarily deny relief on a Rule 37.1 petition without

a hearing under Rule 37.3(a), the court must determine the issues and make written findings

of fact and conclusions of law with respect to those issues. Ark. R. Crim. P. 37.3(c). This

court has consistently remanded when the trial court failed to enter any written findings

following a hearing, and we remand when the findings provided are not adequate for our

review. Magness v. State, 2015 Ark. 185, 461 S.W.3d 337 (per curiam).

When the trial court provides written findings on at least one, but less than all of the

claims in the petition, however, the appellant has an obligation to obtain a ruling on any

omitted issues to be considered on appeal. Id. Any claim on which the appellant failed to

obtain a ruling is procedurally barred from our review. Fisher v. State, 364 Ark. 216, 217

S.W.3d 117 (2005). The trial court provided written findings. Although Pigg contends

that the trial court’s findings on the issues were conclusory, as we discuss in turn below, the

court’s findings are adequate for our review of those remaining issues that were addressed

by the trial court and raised on appeal.

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Pigg raises additional points and issues in his reply brief. We decline to address those
issues. This court has repeatedly held that an argument cannot be raised for the first time in
a reply brief. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).
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The other points raised in Pigg’s brief-in-chief address his claims of ineffective

assistance of counsel. Our standard for ineffective-assistance-of-counsel claims is the two-

prong analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). Rasul v. State, 2015

Ark. 118, 458 S.W.3d 722. To prevail on a claim of ineffective assistance of counsel, the

petitioner must show that (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced his defense. Mister v. State, 2014 Ark. 446. Unless a petitioner

makes both showings, the allegations do not meet the benchmark for assessing a claim of

ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.

Counsel is presumed effective, and allegations without factual substantiation are

insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d

55. A petitioner, in claiming deficiency, must show that counsel’s representation fell below

an objective standard of reasonableness, and this court must indulge in a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.

A petitioner has the burden of overcoming the presumption that counsel is effective 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. Id.

A claimant must show that there is a reasonable probability that the fact-finder’s

decision would have been different absent counsel’s alleged errors in order to meet the

second prong of the test. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A reasonable

probability is a probability sufficient to undermine confidence in the outcome of the trial.

Id. In assessing prejudice, courts “must consider the totality of the evidence before the

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judge or jury.” Rasul, 2015 Ark. 118, at 7, 458 S.W.3d at 727 (quoting Strickland, 466 U.S.

at 695).

In his first claim of ineffective assistance, Pigg appears to concede that the trial court

correctly determined counsel was not ineffective for failing to request a hearing for

admission of evidence under the rape-shield statute. In its order denying relief, the trial

court found that counsel had sought such a hearing, and, albeit unsuccessfully, sought to

have the evidence admitted. The record supports that conclusion.

Pigg consolidates his arguments for his next two points on appeal. Both concern

Pigg’s allegations that trial counsel failed to perform an adequate investigation into potential

witness testimony or defenses. The trial court found that the witnesses that Pigg contended

counsel should have investigated and called were identified to counsel only after trial had

begun and that the witnesses’ testimony would have been inadmissible hearsay. The trial

court further found that Pigg never identified another defense that counsel might have

pursued. On appeal, Pigg contends that, contrary to the trial court’s findings, he

demonstrated that counsel could have used these witnesses in support of a defense theory

positing that the victim had concocted the accusations against Pigg in retaliation for Pigg’s

having caused charges to be brought against a youth minister who was convicted of a sex

offense involving the victim. Although Pigg contends the trial court erred in failing to find

counsel’s actions were not ineffective, we conclude that the trial court correctly found that

Pigg did not demonstrate prejudice.

In reviewing an assertion of ineffective assistance of counsel based on failure to

investigate, a petitioner must describe how a more searching pretrial investigation would

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have changed the results of his trial. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The

burden is entirely on the claimant to provide facts that affirmatively support his claims of

prejudice. Id. Under the circumstances of this case, Pigg failed to meet this burden. He

did not demonstrate that presenting the defense that he contends counsel should have

investigated and presented would have changed the outcome of the trial.

The evidence at Pigg’s trial included testimony from A.S. and her younger sister,

W.S., who were friends with Pigg’s daughter. A.S. testified that she had an ongoing sexual

relationship with Pigg that began when she was eleven or twelve. A.S. testified that Pigg

proposed marriage and gave her a ring on a trip to Fayetteville that she took with Pigg,

Pigg’s daughter, and W.S. W.S. and Pigg’s daughter both testified to having witnessed the

marriage proposal and to having previously witnessed oral sex between Pigg and A.S. W.S.

testified that she had been digitally penetrated by Pigg. Pigg’s daughter’s mother also

described the relationship between Pigg and A.S., and, consistently with the girls’ testimony,

she stated that she had noticed inappropriate behavior between the two that was indicative

of a sexual relationship. She testified that Pigg had demanded that she begin sleeping in a

guest room so that A.S. could sleep with Pigg.

An investigating detective, Jonathan Wear, testified that A.S. was wearing a ring that

she said Pigg had given her, and the ring was introduced into evidence. Wear also testified

that Pigg had fled on his motorcycle when Wear and another officer tried to arrest him, that

Pigg crashed the motorcycle, and that a phone was confiscated at the crash scene. The

phone had numerous pictures of A.S., texts with A.S., and a video of A.S. dancing that were

all introduced into evidence.

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One of the girls’ friends testified that she had accompanied Pigg and A.S. on a trip

to Branson, Missouri, where she observed A.S. holding hands with Pigg and A.S. dancing

in the video. The friend testified that they had told A.S.’s grandmother, who was A.S.’s

guardian, that they were going to visit an aunt of the friend because A.S. was not supposed

to be with Pigg. They had taken a picture with a stranger to aid in this deception. Her

description of the trip was consistent with the other witnesses’ testimony.

In addition, there was expert testimony that A.S. had physical signs suggesting sexual

abuse, and testimony from Pigg’s niece that Pigg had molested her when she was eight years

old. As we noted in our opinion on direct appeal, the evidence of guilt at trial was

overwhelming.

Pigg’s arguments—his assertion that he was prejudiced by counsel’s failure to present

evidence that A.S. was motivated to lie because of her belief that Pigg had reported the

youth minister to the police—fail because A.S.’s testimony was abundantly supported by

independent evidence. As we previously determined, the evidence in this case was so

overwhelming that no prejudice would have resulted from the failure to present evidence

of A.S.’s motivation to lie or from a failure to use the theory of defense that Pigg contends

would have been successful. See Pigg, 2014 Ark. 433, at 3–5, 444 S.W.3d at 864–66.

Moreover, trial counsel unsuccessfully sought to introduce additional evidence in support

of this defense in a pretrial motion, but this court upheld the trial court’s ruling that the

evidence was inadmissible under the rape-shield statute. Id. As a consequence, Pigg’s

allegations failed to provide facts that affirmatively supported his claims of prejudice.

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In his next point on appeal, Pigg again appears to concede the issues. Pigg takes the

position that there was no error in the trial court’s findings that Pigg did not support his

claim of a conspiracy by trial counsel with the prosecution and police and that Pigg failed

to present any evidence at the hearing to substantiate the allegations. As the trial court

noted, trial counsel testified that the allegations were not true. We defer to the fact-finder

concerning the credibility of the witnesses. Young v. State, 2015 Ark. 65. Pigg did not

demonstrated clear error on this point.

Next, Pigg asserts that counsel was ineffective during the penalty phase of the trial

for failing to have admitted into evidence a medical record with a notation that Pigg had

complained of erectile dysfunction. The trial court found that counsel had attempted to

introduce the document but that a hearsay objection was sustained, that Pigg had testified

that he suffered from erectile dysfunction, and that Pigg had not been willing to discuss with

counsel the use of any evidence for the penalty phase.

Pigg does not point to any argument counsel might have advanced in the penalty

phase to overcome a hearsay objection. 2 Where it is asserted that counsel was ineffective

for 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 assistance of counsel. Sims v. State, 2015 Ark. 363, 472 S.W.3d

107. In addition, the trial court correctly determined that the medical report would have

been cumulative to Pigg’s testimony.

2
The objection to the report’s admission was made during Pigg’s testimony in the
guilt phase.
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The record reflects that Pigg testified at trial that he suffered from erectile

dysfunction. Although Pigg asserts the medical record would have bolstered this testimony,

the document proffered in the record was contradicted by the witnesses’ testimony, just as

Pigg’s statement that he was not capable of the alleged rapes was. The trial court was not

clearly erroneous to conclude that Pigg failed to satisfy the prejudice prong of the Strickland

test.

In Pigg’s last point on appeal, he alleges trial counsel was ineffective for failing to

suppress evidence admitted under Rule of Evidence 404(b) and for failing to move for a

mistrial. The trial court found that counsel had unsuccessfully challenged Rule 404(b)

evidence. It also found that Pigg had testified that he asked counsel to move for a mistrial

because he had witnessed Detective Wear speaking to a juror but that the detective testified

that no such encounter had occurred.

Pigg failed to demonstrate clear error. The trial court correctly found that Pigg did

not identify any meritorious argument that counsel might have made to object to the Rule

404(b) evidence or to move for a mistrial. While Pigg asserted that counsel should have

filed a motion in limine to have the evidence excluded, he did not describe the motion he

would have had counsel file with any further specificity. The record reflects that, as the

trial court found, counsel did move unsuccessfully to exclude certain evidence, including

the testimony by Pigg’s niece. Pigg does not point to any argument that counsel could have

successfully employed to oppose admission of the evidence under the pedophile exception,

and he does not identify any other evidence that should have been included in the motion.

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At the Rule 37 hearing, the State countered Pigg’s claim that counsel could have

presented a successful argument for mistrial with testimony from Detective Wear. The trial

court was not clearly erroneous in finding that the detective was more credible that Pigg,

and that the motion would have been unsuccessful if made.

The trial court was not clearly erroneous in finding that Pigg failed to meet his

burden to identify specific acts or omissions that would overcome the presumption that

counsel was effective. Nor did Pigg carry his burden to provide factual substantiation for

his claims of prejudice. Accordingly, we affirm the denial of postconviction relief.

Affirmed.

Earl Delmar Pigg, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

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