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SUPREME COURT OF ARKANSAS
No. CR-16-940
Opinion Delivered: May 11, 2017
STEVEN RUSSELL, JR.
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
V. [NO. 60CR-09-4519]
STATE OF ARKANSAS HONORABLE WENDELL
APPELLEE GRIFFEN, JUDGE
AFFIRMED.
SHAWN A. WOMACK, Associate Justice
Steven Russell appeals from the Pulaski County Circuit Court’s order denying his
petition for postconviction relief due to ineffective assistance of counsel under Arkansas
Rule of Criminal Procedure 37.1 (2015). Russell was convicted of capital murder for the
death of his girlfriend. He received a sentence of life without parole and a 15-year sentence
enhancement for the use of a firearm in the commission of the crime. We affirmed his
conviction on direct appeal. Russell v. State, 2013 Ark. 369. For the reasons discussed below,
we affirm the circuit court’s denial of Russell’s petition.
We review the circuit court’s decision on Rule 37.1 petitions for clear error. Adkins
v. State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (per curiam). A finding is clearly
erroneous when, although there is evidence to support it, the appellate court, after reviewing
the entirety of the evidence, is left with the definite and firm conviction that a mistake has
been committed. Id. This court has adopted the United States Supreme Court’s test from
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Strickland v. Washington, 466 U.S. 668 (1984), to determine whether counsel was ineffective.
Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. The Strickland test requires both (1)
that the petitioner’s counsel’s performance was deficient and (2) that the petitioner was
prejudiced by that deficient performance. Strain v. State, 2012 Ark. 42, at 2, 394 S.W.3d
294, 297 (per curiam). Failing either prong of Strickland is independently fatal to a Rule 37.1
petition. See, e.g., Pennington v. State, 2013 Ark. 39, at 2 (per curiam). The first prong
requires more than a mere hindsight-driven criticism of an attorney’s conduct. To be
deficient, trial counsel’s conduct must be outside “the wide range of reasonable professional
assistance.” See, e.g., Russell v. State, 2016 Ark. 109, at 2, 490 S.W.3d 654, 658. Similarly,
the second prong is not satisfied by a bare contention that the trial counsel’s conduct might
have conceivably impacted the trial; we look instead for a reasonable probability that the jury
would have reached a different result without the counsel’s errors. Watson v. State, 2014
Ark. 203, at 3–4, 444 S.W.3d 835, 839. A reasonable probability is one “sufficient to
undermine confidence in the outcome of the trial.” Id.
First, Russell argues that his counsel was deficient for allowing the jury to view
unredacted medical records, which contained information about an incident in which
Russell broke a prior girlfriend’s jaw. Before the trial, his attorney sought and obtained a
ruling preventing the State from introducing evidence about the episode under Arkansas
Rule of Evidence 404(b), which prohibits raising past crimes or bad acts “to prove the
character of a person in order to show that he acted in conformity therewith.” The 404(b)
ruling is not, however, relevant to the circumstances in which the medical records were
introduced to the jury here. Instead of the prosecution introducing the broken-jaw incident
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to demonstrate a character defect, the information was critical to establish Russell’s own
contention that his post-traumatic stress disorder (“PTSD”) negated his culpability for the
homicide. All three expert reports weighing in on Russell’s PTSD defense referenced the
battery and the mental-health treatment Russell received afterward. The reports of Dr.
Ronald Faupel and Dr. James R. Moneypenny ultimately reached favorable conclusions for
Russell on the question of criminal responsibility. Because the Rule 404(b) ruling that
Russell relies on is not applicable to medically relevant information bearing on Russell’s
own defense, Russell cannot now establish the necessary prejudice for Strickland. The
evidence was both admissible and cumulative of other evidence, and as such there is no
reasonable probability that additional efforts by the trial counsel to limit introduction of the
medical records would have altered the outcome of the trial.
Next, Russell contends that the failure of his trial counsel to preserve an objection
regarding the circuit court’s “gatekeeper function” merits Rule 37.1 relief. On direct appeal,
we fully addressed the claim that the trial court should have acquitted Russell based on the
evidence of PTSD presented by the experts. See Russell, 2013 Ark. 369, at 4–5. What we
declined to address—and therefore the only point Russell could be criticizing his trial
counsel for not preserving—was the argument that the State should not have been allowed
to get an evaluation from Dr. Bradley Diner after the initial evaluation by Dr. Ronald Faupel
determined that Russell was mentally incapacitated by his PTSD at the time of the crime.
Dr. Diner ultimately testified that Russell was not mentally incapacitated by his PTSD at
the time of the crime. The circuit court did not, however, address this narrow point in its
order on Russell’s petition for postconviction relief, and we will not address an argument
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for which the appellant failed to obtain a ruling below in a postconviction case. See Howard
v. State, 367 Ark. 18, 31, 238 S.W.3d 24, 35 (2006).
Russell argues next that his trial counsel was deficient for failing to state the grounds
for a mistrial in his oral motion requesting that remedy. After just over an hour of
deliberations on Thursday, January 26, 2011, and one full day of deliberations on the
following day, the jurors reported to the circuit court that they were at an impasse. One
juror was set on convicting Russell of capital murder while the others were set on first-
degree murder. The circuit court sent a note back asking if the jury “may be able to
deliberate toward a verdict after a night of rest.” Russell’s trial counsel moved for a mistrial
in response, and the motion was denied. Shortly after receiving the note, the jury returned
a unanimous verdict for capital murder.
Russell argues that because the communication occurred on a Friday afternoon, it
effectively asked the jurors whether they were willing to “give up their weekend for this
self-professed killer and come back and work some more on Saturday.” Russell’s argument
on this point fails Strickland’s second prong. We have consistently held that a mistrial is an
“extreme and drastic remedy.” See, e.g., Moore v. State, 355 Ark. 657, 666, 144 S.W.3d 260,
266 (2004). Courts in Arkansas are permitted to give juries the “Allen charge,” which stresses
the importance of reaching a verdict and the monetary and social costs of delayed justice.
See Walker v. State, 276 Ark. 434, 637 S.W.2d 528 (1982). By comparison, the court’s
communication here was—despite Russell’s characterization to the contrary—an utterly
unremarkable assurance that the jury could take more time to reach a verdict if necessary
after an hour of deliberations on one day followed by a single full day. Because Russell has
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not demonstrated any credible basis on which the disfavored remedy of a mistrial might
have been granted even if his trial counsel had preserved the issue for appellate review, we
hold that he has not demonstrated prejudice for the purposes of Strickland.
Finally, Russell attempts to argue in his postconviction appeal that the trial court
erred in not excluding Dr. Diner’s testimony. He claims that Dr. Diner’s report and
conclusions were outside the accepted scientific consensus on PTSD and had “no basis in
medicine or science.” As the circuit court noted, this is a claim of trial error rather than
ineffective assistance of counsel. A postconviction Rule 37.1 motion is not the appropriate
medium for collateral attack on the trial court’s rulings. As we have consistently held,
allegations of trial error must be made at trial and on direct appeal. See, e.g., Watson v. State,
2012 Ark. 27, at 3. We therefore decline to consider his claim here.
Because any errors demonstrated by Russell are either nonprejudicial under Strickland
or inappropriate for postconviction consideration, we hold that the circuit court did not
clearly err in denying his petition.
Affirmed.
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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