Rose v. State

Cite as 2017 Ark. App. 355

ARKANSAS COURT OF APPEALS
DIVISION III
No.CR-16-1067
Opinion Delivered: May 31, 2017
LORI J. ROSE
APPELLANT
APPEAL FROM THE POLK
COUNTY CIRCUIT COURT
V. [NO. 57CR-13-158]

HONORABLE TED C.
STATE OF ARKANSAS CAPEHEART, JUDGE
APPELLEE
AFFIRMED

ROBERT J. GLADWIN, Judge

Lori Rose appeals the Polk County Circuit Court’s order denying her Rule 37

petition for postconviction relief. Ark. R. Crim. P. 37.1 (2016). We assumed jurisdiction

of this appeal pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511 S.W.3d 845 (per

curiam). Rose contends that the trial court erred in denying her petition because trial

counsel was ineffective for failing to (1) file a motion to suppress; (2) introduce a text

message; (3) meet with Rose to prepare for trial; (4) present witnesses on Rose’s behalf; and

(5) involve Rose in the jury selection and voir dire. We affirm.

Rose was convicted by a Polk County jury of aggravated residential burglary,

domestic battering in the second degree, aggravated assault, and terroristic threatening. At

the trial on those charges, the victim, Billy Vaught, testified that he and Rose had been in

a romantic relationship for approximately two years until they broke up on November 19,

2013. Two days later, Rose’s teenage daughter phoned and asked him to stay at her home
 Cite as 2017 Ark. App. 355

because she was home alone and could not reach her mother. After Rose returned, Vaught

stayed overnight on Rose’s couch and left the following day. That night, he went to bed

early but woke up around midnight when Rose entered his bedroom, turned on the light,

and stated that he should “prepare to die.” She was under the impression that Vaught had

molested her daughter. Vaught said that he could tell that the hammer of the gun had been

cocked and that Rose had been drinking, so he kicked the gun with his left leg. The rifle

went off and shot Vaught in the right leg just below the knee. They briefly struggled over

the gun, but he shoved it under the bed. He called his sister, who drove him to the hospital,

and Rose left before Vaught’s sister arrived. Vaught’s kneecap and femur bone were broken,

and he had to have knee-replacement surgery. Vaught said that during their relationship,

he and Rose frequently stayed at each other’s homes, and that it was not necessary for them

to have an explicit invitation to do so. Vaught said that he had not told Rose that she was

no longer welcome in his home prior to the shooting.

Rose gave two statements to police after her arrest. In her first statement, which was

played for the jury, Rose admitted that she had filed a police report against Vaught for

alleged sexual abuse of her daughter, but she denied that she had been to his home or that

she had shot him that night. The arresting officer testified that Rose did not appear to be

highly intoxicated at the time he obtained her statement, although he could smell alcohol

on her. Rose gave a second statement on the following day that was also played at trial.

Rose claimed that she was scared and intoxicated and had not told the truth in her first

interview. She admitted that she had gone to Vaught’s home and that she had been

drinking. She said that someone had told her that Vaught had also acted inappropriately

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toward his son in the past, so she went to Vaught’s home with the intention of taking his

son home with her. She did not expect Vaught to be at home, but when she realized that

he was asleep, she said that she grabbed the rifle sitting by the front door and went to speak

to him. She had borrowed the same rifle from Vaught and returned it to his house after

they had broken up earlier in the week. She said that the rifle was pointed down, not at

Vaught, but when she asked him why he had hurt her daughter, he kicked the gun and it

went off and shot him in the leg. She handed Vaught his cell phone, and he asked her to

leave.

At the conclusion of the trial, Rose was found guilty of aggravated residential

burglary, second-degree domestic battery, aggravated assault, and terroristic threatening.

The jury recommended that she be sentenced to a total of seventy-two years, but the trial

court sentenced her to a total of thirty-six years’ imprisonment. This court affirmed Rose’s

convictions in Rose v. State, 2015 Ark. App. 563, 472 S.W.3d 167, and the mandate was

entered on October 24, 2015.

Rose filed a timely petition for relief under Rule 37 on December 21, 2015, with

the Polk County Circuit Court. The petition alleged numerous errors by trial counsel,

Greg Klebanoff, and contained a proper verification. An amended petition for Rule 37

relief was filed on April 6, 2016, and a hearing was held on June 23, 2016. Lori Rose

testified that she had received a text message from Vaught somewhere between November

19 and 21, 2013, wherein Vaught said that she was welcome in his home at any time. The

incident occurred on November 23, 2013. She said that she had showed this text message

to Klebanoff, and he did not produce the message for the jury. She also said that she did

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not have a defense-strategy discussion with him. She said Klebanoff was more concerned

with his payment than about trial strategy. She said that the trial court had granted a motion

in limine that the word “victim” was not to be used during the course of the trial, but when

it was used, Klebanoff never objected. She said that she had received several letters from

Klebanoff, one of which stated that if she had paid him more she would have had a better

defense, but she could not produce that letter. She said that Klebanoff did not use the

witnesses who were willing to testify on her behalf, and she thought that if they had been

used during the sentencing phase, she might have made a more favorable impression on the

jury.

Greg Klebanoff testified that he had represented Rose, that he was aware that Rose

had been given a portable breath test on the night she was arrested, and that she registered

.17, which is more than twice the legal limit. He said that he did not bring up the test result

during trial and did not move to suppress the first statement that she gave. He said Rose

testified that she was intoxicated, hysterical, and upset. He said that he had thought about

filing a motion to suppress based on intoxication, but he decided there was not much dispute

about what had happened, and if he wanted a positive result for Rose, he would have to

get it through jury nullification.

Klebanoff said that jury nullification requires sympathy, and he thought her first

statement showed that she was confused, distressed, and intoxicated, and the jury would

have sympathy for her. He said that he supposed Rose could have added input on selecting

the jury, but he had never had his clients participate in jury selection. He said that he did

not object when the word “victim” was used and did not move for a mistrial because a

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mistrial is a drastic remedy, and a bench instruction to disregard is normally sufficient. He

said that objecting to something that was prohibited would call more attention to it. He

also said that he did not think the text message that Rose was welcome in Vaught’s home

at any time was important because it was superfluous. He said that Rose’s character had

been called into question, and he did not call the witnesses because he knew that Rose had

assaulted her ex-husband with a gun. Klebanoff thought that calling the character witnesses

that Rose had referred to would have opened the door for the State to bring out that in

2003 she had chased her husband through the woods with a deer rifle, shooting at him.

After taking the petition under advisement at the conclusion of the hearing, the trial

court denied Rose’s petition and filed its findings of fact and conclusions of law on August

30, 2016. The trial court stated in each of its conclusions of law that Rose had shown

neither deficient performance of counsel nor actual prejudice to her case as required by

Strickland v. Washington, 466 U.S. 668 (1984). A notice of appeal was timely filed on

September 26, 2016, and this appeal followed, wherein Rose argues that the trial court erred

in denying her petition for Rule 37 relief based on ineffective assistance of her counsel.

We do not reverse the denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. 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. Id. In making a determination on a claim of ineffective assistance of counsel,

this court considers the totality of the evidence. Id.

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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,

supra. Conley, supra. In asserting ineffective assistance of counsel under Strickland, the

petitioner must first demonstrate that counsel’s performance was deficient. Sartin v. State,

2012 Ark. 155, 400 S.W.3d 694. 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. Id. The reviewing court must indulge in a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance. Id. 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. Id.

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. Conley, supra. 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. Id. A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the trial. Id.

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. Id. 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

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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). The concept of cumulative error is not recognized

in Rule 37.1 proceedings when assessing whether a petitioner was afforded effective

assistance of counsel. Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); State v.

Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001) (holding that it was reversible error for the trial

court to consider cumulative error in assessing claims of ineffective assistance of counsel).

First, Rose claims that her trial counsel was ineffective for failing to file a motion to

suppress the first statement she gave to police because she was intoxicated when she gave it.

She cites Moore v. State, 2010 Ark. App. 771, for the proposition that a custodial statement

is presumptively involuntary, and the burden is on the State to prove that it was given

voluntarily and was knowingly and intelligently made. She also cites Sparkman v. State, 373

Ark. 45, 281 S.W.3d 277 (2008), which held that the nature of a confession shows that the

introduction of a videotaped statement at trial will likely, if not certainly, impact the

outcome. Based on these cases, she argues that counsel’s failure to file a motion to suppress

her statement was not proper trial strategy and led to her conviction because the prosecutor

was able to attack her credibility. She claims that all strategic decisions must still be

supported by reasonable professional judgment, Wicoff v. State, 321 Ark. 97, 900 S.W.2d

187 (1995), and there was no reasonable professional judgment here.

As the trial court noted in its rejection of Rose’s claim, failure to file a suppression

motion is not ineffective assistance of counsel absent a showing that the motion was

warranted and would have succeeded. Harrison v. State, 371 Ark. 474, 268 S.W.3d 324

(2007). At the Rule 37 hearing, Rose presented no testimony from a police officer

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regarding the circumstances of her statements and did not testify about her statements to

police. Therefore, the trial court correctly ruled that Rose had not established that a

suppression motion was warranted and would have succeeded.

Second, Rose claims that her trial counsel was ineffective for failing to introduce the

text message she had received from Vaught that said she was welcome at his place any time.

Her counsel said that he had seen no need to introduce it. Rose argues that the court of

appeals relied on the fact that the message was not introduced, calling her statement that she

had been given permission “self-serving.” See Rose, supra (referring to the text message, this

court held that the jury was not required to believe Rose’s self-serving testimony, nor was

it required to set aside its common sense and experience in reaching a verdict; as such, the

jury could have reasonably found from the evidence that Rose no longer had a license or

privilege to enter Vaught’s home on the night of the shooting, especially late at night when

he was asleep). Rose acknowledges that an attorney’s decision not to call a witness is a

matter of professional judgment and that the witness could have offered beneficial testimony

is not proof of counsel’s ineffectiveness. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334

(2001). However, in Lee, the defendant told the trial court that he had discussed with his

counsel his right to testify and the implications of that. Id. Here, Rose contends that there

was no proof that counsel exercised proper professional judgment. See Wicoff, supra (all

strategic decisions must still be supported by reasonable professional judgment).

Although the text message was not introduced into evidence, Rose testified to the

text message, and Vaught testified that he did not require an explicit invitation for Rose to

visit his home. Further, Rose’s counsel argued this point to the jury in closing arguments.

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Rose has not shown how presenting cumulative testimony in the form of a text message

would have created a reasonable probability of a different outcome at her trial. Feuget v.

State, 2015 Ark. 43, 454 S.W.3d 734. Mere allegations that the jury would have been

swayed by additional testimony are conclusory and will not support an assertion that counsel

was ineffective. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).

Further, in Arkansas, although one may hold a license or privilege to enter a home,

he does not continue to have that privilege or license once he inflicts injury upon the owner.

See Holt v. State, 2011 Ark. 391, 384 S.W.3d 498; Young v. State, 371 Ark. 393, 266 S.W.3d

744 (2007). Thus, Rose’s claim that she had a “license” is meritless, and counsel is not

required to raise frivolous or meritless arguments to be effective. Cook v. State, 361 Ark.

91, 204 S.W.3d 532 (2005).

Third, Rose claims that her trial counsel’s failure to present witnesses on her behalf

amounted to ineffective assistance. Our supreme court held as follows:

[T]he decision of trial counsel to call a witness is generally a matter of trial strategy
that is outside the purview of Rule 37.1. Nelson v. State, 344 Ark. 407, 39 S.W.3d
791 (2001). Trial counsel must use her best judgment to determine which witnesses
will be beneficial to her client. Id. When assessing an attorney’s decision not to call
a particular witness, it must be taken into account that the decision is largely a matter
of professional judgment that experienced advocates could endlessly debate. The fact
that there was a witness or witnesses who could have offered testimony beneficial to
the defense is not in itself proof of counsel’s ineffectiveness. Id. Nonetheless, such
strategic decisions must still be supported by reasonable professional judgment. Id.
Even if a decision proves unwise, matters of trial tactics and strategy are not grounds
for postconviction relief. Id.

Banks v. State, 2013 Ark. 147, at 4.

Rose argues that by failing to present witnesses it appears the defense just threw away

all defenses. She contends that because she included it in her amended petition and the

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prosecutor agreed what the testimony would be at the hearing, it is known what the

witnesses’ testimony would have been. Their testimony would have shown her state of

mind on the night of the incident, given justification for her conduct, and given evidence

of motivation for such conduct, lending weight to her credibility. She claims that they

could have testified at either the guilt or penalty stages, and the failure to call them shows

counsel’s abandonment and was not reasonable or professionally justified.

The State contends that Rose has expanded her argument that counsel was ineffective

for failing to call these alleged character witnesses to include allegations that all of the

witnesses could have testified about the alleged sexual assault of Rose’s daughter and how

that assault had affected Rose’s state of mind on the day in question. She also newly asserts

that the witnesses could have provided justification for her conduct. These expanded

arguments are not preserved for appeal. See Williams v. State, 2012 Ark. App. 310, 420

S.W.3d 487.

At the Rule 37 hearing, counsel stated that he did not present character testimony

because he successfully had moved in limine to exclude several instances of Rule 404(b)

conduct and was fearful that, by presenting character evidence, he would be opening the

door for questioning on the excluded evidence. Ark. Rule of Evid. 404(b) (2016). This

was a reasonable exercise of professional judgment by trial counsel. See Echols v. State, 354

Ark. 530, 127 S.W.3d 486 (2003) (decision not to cross-examine witness for fear of opening

door to the trial court’s changing its ruling excluding evidence was an exercise of reasonable

professional judgment).

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Fourth, Rose argues that counsel failed to prepare a defense because they met three

times prior to trial, and his desire to be done with the case created a conflict of interest that

adversely affected his performance and rendered his assistance ineffective. Cuyler v. Sullivan,

446 U.S. 335 (1980) (conflict of interest at issue was one lawyer representing multiple

clients). However, a claim that counsel did not meet often enough with petitioner is not a

sufficient ground for ineffective assistance of counsel. Dansby v. State, 350 Ark. 60, 84

S.W.3d 857 (2002). Further, as the trial court indicated in its order, Rose failed to

demonstrate what additional information would have been discovered with more meetings

and that the information would have changed the outcome of trial. Conclusory statements

cannot be the basis for postconviction relief. Anderson v. State, 2011 Ark. 488, 385 S.W.3d

783.

Fifth, Rose contends that counsel’s failure to include her in voir dire and to conduct

proper jury selection rendered his assistance ineffective. She cites Snyder v. Commonwealth

of Massachusetts, 291 U.S. 97 (1934), and United States v. Gordon, 829 F.2d 119 (1987), for

the proposition that a defendant’s presence at voir dire is substantially related to his defense

because it allows him an opportunity to give advice or suggestions to his lawyers. Rose

argues that her counsel clearly violated these tenets when he failed to involve her in the

selection of the jury.

To prevail on an ineffective-assistance-of-counsel claim with regard to jury selection,

a petitioner must first overcome the presumption that jurors are unbiased. Wheeler v. State,

2015 Ark. 233, 463 S.W.3d 678. Counsel admitted that he did not include Rose in the

jury-selection process, but Rose did not establish that this practice amounted to deficient

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performance or that she was prejudiced by this failure. The trial court found that Rose

failed to raise any concerns about any of the jurors as they were being selected. Thus, Rose

has failed to establish deficient performance or prejudice.

Affirmed.

ABRAMSON and GLOVER, JJ., agree.

Ernie Witt, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.

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