Turner v. State

Cite as 2016 Ark. 96

SUPREME COURT OF ARKANSAS
No. CR-15-572

TROZZIE LAVELLE TURNER Opinion Delivered March 10, 2016
APPELLANT
APPEAL FROM THE COLUMBIA
V. COUNTY CIRCUIT COURT
[NO. 14CR-06-79-5]

STATE OF ARKANSAS HONORABLE DAVID W. TALLEY,
APPELLEE JR., JUDGE

AFFIRMED IN PART; REVERSED
AND REMANDED IN PART.

HOWARD W. BRILL, Chief Justice

Appellant Trozzie Lavelle Turner appeals the order of the circuit court denying his

petition for postconviction relief. Turner was found guilty by a Columbia County jury of

possession of cocaine with intent to deliver, possession of methamphetamine with intent to

deliver, and maintaining a drug premises, for which he was sentenced to an aggregate total

of eighty-six years in the Arkansas Department of Correction. Turner appealed, and the court

of appeals affirmed. See Turner v. State, 2009 Ark. App. 822.

Thereafter, counsel for Turner filed a timely petition for postconviction relief pursuant

to Arkansas Rule of Criminal Procedure 37.1. The circuit court denied the petition without

a hearing. Turner contends on appeal that the circuit court erred in denying his petition for

postconviction relief because (1) trial counsel was ineffective in failing to object to certain

statements made by the prosecutor during closing argument, and (2) trial counsel was
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ineffective in failing to make a motion to dismiss for lack of a speedy trial and in failing to

make an adequate record that the time for speedy trial had run before the trial started. We

affirm in part and reverse and remand in part.

This court does not reverse a denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. Taylor v. State, 2015 Ark. 339, at 4, 470 S.W.3d 271, 275. A

finding is clearly erroneous when, although there is evidence to support it, the appellate

court, after reviewing the entire evidence, is left with the definite and firm conviction that

a mistake has been committed. Id., 470 S.W.3d at 275.

On review of claims of ineffective assistance of counsel, this court follows the standard

set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668

(1984):

A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction or death sentence has two components. First, the
defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.

Id. at 687.

Unless a defendant makes both Strickland showings, it cannot be said that the

conviction resulted from a breakdown in the adversary process that renders the result

unreliable. “[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, 466 U.S. at 697.

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I. Prosecutor’s Comments During Closing Argument

Turner contends that trial counsel was ineffective in failing to object to certain

statements made by the prosecutor in his rebuttal to trial counsel’s closing argument. First,

Turner claims that, during rebuttal, the prosecutor improperly shifted the burden of proof

and implied that a defendant has an obligation to refute evidence. The prosecutor stated,

If I had been defending this case and I knew that I was going to come in here
and tell twelve folks that I lived down in Emerson, do you know what I would have
given you folks? I’d have given you stacks of utility bills from Emerson, stacks and
stacks of phone bills and electric bills and gas bills and cable bills. I’d have gotten my
neighbors in here and said, “Yeah, I see him there every day.”

The State responds that the prosecutor’s remarks were not improper because they were

directly connected to both the testimony elicited by trial counsel and trial counsel’s closing

argument. We agree.

Turner’s charges stemmed from the execution of a search warrant on a residence in

Magnolia, Arkansas, during which law enforcement officers seized cocaine and

methamphetamine. Part of Turner’s defense was that he did not live at the Magnolia

residence from which illegal drugs were being sold. During the trial, trial counsel elicited

testimony from Turner’s brother, among others, that Turner lived in Emerson, Arkansas,

when the drugs were discovered. In closing argument, trial counsel reiterated that Turner

lived in Emerson, not Magnolia. In closing argument, counsel may argue any plausible

inference that can be drawn from the testimony at trial. See, e.g., Jackson v. State, 368 Ark.

610, 615, 249 S.W.3d 127, 130 (2000). Moreover, this court has held that the State is

allowed to comment on matters raised by the defense in its closing argument. Biggers v. State,

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317 Ark. 414, 426, 878 S.W.2d 717, 723 (1994). In making his statement, the prosecutor did

not improperly shift the burden to Turner. Failure to make a meritless objection is not an

instance of ineffective assistance of counsel. Decay v. State, 2014 Ark. 387, at 10, 441 S.W.3d

899, 907.

Second, Turner claims that trial counsel was ineffective in failing to object to the

following comment by the prosecutor: “You folks know there’s a lot more going on that

you didn’t get to hear.” In support of his claim, Turner makes conclusory allegations that the

prosecutor’s statement suggested that there was inadmissible evidence favorable to the State,

and he provides a string cite to cases from other jurisdictions. This court does not consider

assignments of error that are unsupported by convincing argument or authority. E.g., Young

v. State, 370 Ark. 147, 156, 257 S.W.3d 870, 878 (2007); see also Hester v. State, 362 Ark. 373,

386, 208 S.W.3d 747, 754 (2005) (stating that this court does not research or develop

arguments for appellants). Accordingly, we do not address this claim.

Third, Turner contends that trial counsel was ineffective in failing to object when the

prosecutor made a veiled reference to his failure to testify at trial:

If you find this man guilty, remember the suggestion in this case is that, “I wasn’t there. It ain’t
my house. I don’t live there. It’s my sister’s furniture, but it doesn’t matter, because the
police planted the dope anyway. That’s his case.”

(Emphasis added.)

An allegedly improper comment on the defendant’s failure to testify usually occurs

during the prosecutor’s closing argument when the evidence is closed and the defendant’s

opportunity to testify has passed. Decay, 2014 Ark. 387, at 8, 441 S.W.3d at 907. Under

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those circumstances, a comment that draws attention to the defendant’s failure to testify is

improper because it creates the risk that the jury will surmise that the defendant’s failure to

testify was an admission of guilt. Id. at 8–9, 441 S.W.3d at 907. Consequently, the comment

has the effect of making the defendant testify against himself in violation of the Fifth

Amendment. Id. at 9, 441 S.W.3d at 907. In determining whether a prosecutor has

improperly commented on a defendant’s failure to testify, this court conducts a two-step

review. Id., 441 S.W.3d at 907. First, we determine whether the comment itself is an

improper comment on the defendant’s failure to testify. Id., 441 S.W.3d at 907. The basic

rule is that a prosecutor may not draw attention to the fact of, or comment on, the

defendant’s failure to testify. Id., 441 S.W.3d at 907. A veiled reference to the defendant’s

failure to testify is improper, as well. Id., 441 S.W.3d at 907. If we determine that the

prosecutor’s closing argument statement did indeed refer to the defendant’s choice not to

testify, we then determine whether it can be shown beyond a reasonable doubt that the error

did not influence the verdict. Id., 441 S.W.3d at 907.

Closing arguments must be confined to questions in issue, the evidence introduced

at trial, and all reasonable inferences and deductions that can be drawn therefrom. E.g., Leaks

v. State, 339 Ark. 348, 357, 5 S.W.3d 448, 454 (1999). When an attorney’s comment during

closing arguments is based on, or may be inferred from, testimony at trial, there is no error.

See Hendrix v. State, 2011 Ark. 122, at 10–11. Further, when the defense, by adopting a

particular strategy, opens the door for the prosecution to respond to evidence submitted or

statements made by defense counsel, statements made by the prosecution to rebut the defense

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strategy are not necessarily impermissible references to the defendant’s failure to testify. See

Rounsaville v. State, 2011 Ark. 236, at 3–4 (per curiam). Here, through witness testimony and

arguments of trial counsel, the defense maintained that Turner did not live at the Magnolia

residence. The prosecutor’s statement during rebuttal was not a veiled reference to Turner’s

choice not to testify; rather, the statement was a challenge to the defense’s theory of the case.

Moreover, the jury was instructed that opening statements, remarks of counsel during

the trial, and closing arguments of the attorneys were not evidence and to disregard any

argument, statements, or remarks of attorneys that had no basis in the evidence. The jury was

also instructed that Turner had an absolute constitutional right not to testify and the fact that

he did not testify was not evidence of his guilt. This court presumes that jurors follow the

circuit court’s instructions. E.g., Dunlap v. State, 292 Ark. 51, 65, 728 S.W.2d 155, 162

(1987).

Finally, even if Turner has demonstrated that trial counsel’s performance was deficient

when he failed to object to the comments, Turner has failed to demonstrate prejudice.

Before a petitioner can prevail on an allegation that counsel failed to object during closing

argument, he must establish that he was denied a fair trial by counsel’s failure to object. See,

e.g., Hayes v. State, 280 Ark. 509, 509-F, 660 S.W.2d 648, 653 (1983). Turner has not done

so in this case.1 The circuit court did not err in ruling that trial counsel was not ineffective

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Turner contends that, standing alone, the prosecutor’s comments are egregious, but
when taken together, they are even more egregious and prejudicial. Inasmuch as Turner is
making a cumulative-error argument, we do not address it because this court does not
recognize cumulative error in allegations of ineffective assistance of counsel. E.g., Noel v.
State, 342 Ark. 35, 42, 26 S.W.3d 123, 128 (2000).

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in failing to object to the prosecutor’s comments during rebuttal.

II. Speedy Trial

Turner contends that trial counsel was ineffective in failing to move for dismissal for

lack of a speedy trial and in failing to make an adequate record that the time for speedy trial

had run before the trial started. Pursuant to Arkansas Rule of Criminal Procedure 28.1 and

28.2, a defendant must be brought to trial within twelve months of the date of his arrest

unless there are periods of delay that are excluded under Rule 28.3. If the defendant is not

brought to trial within the requisite time, the defendant is entitled to have the charges

dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 28.1(c), 30.1.

Turner was arrested on March 9, 2006. He was brought to trial on October 8, 2008,

which was 944 days after the time for speedy trial had begun to run. Accordingly, if trial

counsel had moved for a dismissal, he would have made a prima facie showing of a violation

of the rule, and the burden would have shifted to the State to show good cause for the delay.

Camargo, 346 Ark. at 126, 55 S.W.3d at 261. Whether counsel was ineffective, therefore,

depends on whether the State would have been able to prove that there were excluded

periods sufficient to bring Turner’s trial within the twelve-month period. Id., 55 S.W.3d at

261.

In its order denying postconviction relief, the circuit court found no merit in Turner’s

argument that trial counsel was ineffective in failing to make a motion to dismiss for lack of

a speedy trial and in failing to make an adequate record that the time for speedy trial had run

before the trial started. The court stated,

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The record is clear the Defendant agreed to continuances with extended periods for
speedy trial purposes and he specifically agreed for the time to be excluded until the
date of his jury trial. The matter was set for trial several times; the majority, if not all,
of the continuances were at the request of the Defendant.

Turner asserts that the circuit court’s order is deficient because it did not include

specific factual findings regarding periods excludable for speedy trial, but merely determined,

in conclusory fashion, that the majority, if not all, of the continuances were at the request

of the defendant. We agree. When no hearing is held on a Rule 37.1 petition, the trial court

has an obligation to provide written findings that conclusively show that the petitioner is

entitled to no relief. Camacho v. State, 2011 Ark. 235, at 1 (per curiam); see also Ark. R. Crim.

P. 37.3. In doing so, the court shall specify “any parts of the files, or records that are relied

upon to sustain the court’s findings.” Ark. R. Crim. P. 37.3.

This court has affirmed the denial of a Rule 37.1 petition notwithstanding the circuit

court’s failure to make sufficient findings under Rule 37.3(a) only in two circumstances: (1)

when it can be determined from the record that the petition is wholly without merit, or (2)

when the allegations in the petition are such that it is conclusive on the face of the petition

that no relief is warranted. See Davenport v. State, 2011 Ark. 105, at 5 (per curiam). However,

it is not incumbent on this court to scour the record to affirm. Id. Sufficient written findings

by the circuit court are required to demonstrate to this court that Turner was entitled to no

relief on his speedy-trial-ineffective-assistance claim. See Walden v. State, 2014 Ark. 10, at 2

(per curiam). The circuit court’s findings are insufficient for our review. Accordingly, we

reverse and remand the dismissal of the speedy-trial-ineffective-assistance claim for

compliance with Rule 37.3. On remand, the circuit court shall make specific findings as to

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which periods of delay are excludable under our speedy-trial rules and shall specify the parts

of the files or record relied upon to sustain those findings.

Affirmed in part; reversed and remanded in part.

BAKER , GOODSON , and WOOD, JJ., dissent.

KAREN R. BAKER, Justice, dissenting. I dissent from the majority’s opinion

because it is fatally flawed for two reasons. First, rather than adhere to the standard in

Strickland v. Washington, 466 U.S. 668 (1984), the majority erroneously shifts the burden of

proof to the State. Second, the majority erroneously holds that the circuit court’s findings

were insufficient pursuant to Rule 37.3 of the Arkansas Rules of Criminal Procedure.

Burden of Proof

The majority correctly cites to Strickland and states that “[u]nless a defendant makes

both Strickland showings, it cannot be said that the conviction resulted from a breakdown in

the adversary process that renders the result unreliable.” However, despite correctly citing

the Strickland standard, the majority improperly shifts the burden of proof to the State to

demonstrate that the delay was the result of the defendant’s conduct or was otherwise justified.

Pursuant to Strickland, it is the petitioner’s burden to affirmatively prove prejudice, which

requires proof “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” 466 U.S. at 694.

Accordingly, it is Turner’s burden to affirmatively prove that there is a reasonable probability

that, had his trial counsel filed a motion to dismiss for the violation of the right to speedy trial,

Turner’s case would have been dismissed. Stated differently, Turner, not the State, must

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show that the speedy-trial rule was violated.

Whether trial counsel was ineffective under Strickland is predicated on whether Turner

was, in fact, tried in violation of the speedy-trial rule. See Camargo v. State, 346 Ark. 118, 55

S.W.3d 255 (2001). Pursuant to Rules 28.1(c) and 30.1 of the Arkansas Rules of Criminal

Procedure, if a criminal defendant is not brought to trial within a certain time set out in the

rule, the charges shall be dismissed with an absolute bar to prosecution. Rules 28.2 and 28.3

set out the calculation of time under the speedy-trial rule and authorize time periods to be

excluded from calculation that result from necessary delays.

Here, Turner was arrested on March 9, 2006. Rule 28.2(a) states that the time for trial

shall commence running from the date of arrest or service of summons. Thus, speedy trial

began to run on March 9, 2006. The State had twelve months from the time of Turner’s

arrest to bring him to trial, excluding only such periods of necessary delay as are authorized

in Rule 28.3. Ark. R. Crim. P. 28.1(c). Turner’s jury trial began on October 8, 2008, which

was 944 days after his arrest. While I recognize that if trial counsel had moved for a dismissal

below, he would have made a prima facie showing of a violation of the rule. At that point,

the burden would have shifted to the State to show that the delay was the result of the

defendant’s conduct or was otherwise justified. Branning v. State, 371 Ark. 433, 267 S.W.3d

599 (2007). However, we are reviewing the denial of a petition for postconviction relief. As

noted above, in postconviction proceedings, the burden is on the petitioner to show that a

speedy-trial violation occurred.

With the correct standard in mind, I will now consider the substance of Turner’s

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argument and whether he demonstrated that a speedy-trial violation occurred. Here, several

continuances were granted at the request of Turner’s counsel. Turner admits that 281 days

are properly excluded for continuances granted pursuant to his request. Rule 28.3 states that

the “following periods shall be excluded in computing the time for trial.” Rule 28.3(c)

provides:

The period of delay resulting from a continuance granted at the request of the
defendant or his counsel. All continuances granted at the request of the defendant or
his counsel shall be to a day certain, and the period of delay shall be from the date the
continuance is granted until such subsequent date contained in the order or docket
entry granting the continuance.

Turner’s argument focuses on three continuances which were granted at Turner’s

request but in which neither the order nor the docket entry contained a subsequent “day

certain” to which the matter was continued. The three orders at issue are (1) the April 25,

2007 order of continuance, continuing the May 10, 2007 trial; (2) the August 22, 2007 order

of continuance continuing the trial set for the same day; and (3) the November 30, 2007

order of continuance continuing the trial set for November 19, 2007.2 Turner contends that

these continuances are not a basis for tolling speedy trial. Turner cites this court to a court

of appeals opinion, Autrey v. State, 90 Ark. App. 131, 204 S.W.3d 84 (2005) and asserts that

Autrey should be overruled because it is inconsistent with the plain language of Rule 28.3.

In Autrey, the court stated:

Appellant’s only argument on appeal is that this continuance cannot be charged against
him because the trial court did not enter an order or a docket entry specifying a date

2
The order was dated November 13, 2007, but it was not file marked until
November 30, 2007.

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certain in literal compliance with Ark. R. Crim. P. 28.3(c). Yet, excluded periods
without a written order or docket entry will be upheld when the record clearly
demonstrates that the delays were attributable to the accused or legally justified and
where the reasons were memorialized in the proceedings at the time of the occurrence.
See Miles, supra. This is true even when the date is not specified. See Burrell v. State, 65
Ark. App. 272, 986 S.W.2d 141 (1999).

90 Ark. App. at 138, 204 S.W.3d at 87. Autrey comports with this court’s decisions regarding

Rule 28.3(c) compliance. Specifically, in Standridge v. State, we explained,

[A]lthough a trial court should enter written orders, or make docket notations at the
time continuances are granted to detail the reason for the continuances and to specify
to a date certain the time covered by such excluded periods, a trial court’s failure to
comply with Rule 28.3 does not result in automatic reversal. See McConaughy, supra;
Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). We have held that when a case
is delayed by the accused and that delaying act is memorialized by a record taken at the
time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3.
Id. This is based on the familiar principle that a defendant may not agree with a ruling
by the trial court and then attack that ruling on appeal. Goston v. State, 326 Ark. 106,
930 S.W.2d 332 (1996).

357 Ark. 105, 117–18, 161 S.W.3d 815, 821 (2004). Here, Turner’s argument is based solely

upon the alleged deficiencies in the circuit court’s orders. However, these continuances were

requested by Turner’s counsel. Because all three of these orders granting Turner’s motions

for continuances were attributable to the defense, these continuances are excluded from the

speedy-trial calculation. Thus, Turner has failed to establish that his right to a speedy trial was

violated.

Rule 37.3 Findings

Next, Turner argues that the circuit court’s order denying relief on this point did not

contain sufficient factual findings as required by Rule 37.3. The circuit court found:

The record shows that there was no speedy trial violation. The defense counsel cannot
be ineffective for not raising and making a record that speedy trial had run when it had

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not. The record is clear the Defendant agreed to continuances with excluded periods
for speedy trial purposes and he specifically agreed for the time to be excluded until
the date of his jury trial.

The majority explains that “[t]his court has affirmed the denial of a Rule 37.1 petition

notwithstanding the circuit court’s failure to make sufficient findings under Rule 37.3(a) only

in two circumstances: (1) when it can be determined from the record that the petition is

wholly without merit, or (2) when the allegations in the petition are such that it is conclusive

on the face of the petition that no relief is warranted.” See Davenport v. State, 2011 Ark. 105,

at 5 (per curiam). However, the majority proceeds to erroneously hold that “[t]he circuit

court’s findings are insufficient for our review. Accordingly, we reverse and remand the

dismissal of the speedy-trial-ineffective assistance claim for compliance with Rule 37.3.”

The record does not support the majority’s analysis. The circuit court’s findings were

clearly sufficient because the record demonstrates that each of the orders granting a

continuance were made at the request of Turner’s counsel. Because the record demonstrates

that the delays were attributable to Turner, the record is sufficient to satisfy the requirements

of Rule 28.3 and this court’s holding in Standridge. Therefore, the order denying Turner’s

petition for postconviction relief contained sufficient findings for this court’s review.

In sum, because the majority departed from the Strickland standard and improperly

shifted the burden of proof to the State, and because the circuit court’s order denying Turner’s

petition contained sufficient findings, I must respectfully dissent.

GOODSON and WOOD, JJ., join in this dissent.

John Wesley Hall, Jr., and Sarah M. Pourhosseini, for appellant.
Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

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