Decay v. State , 2014 Ark. LEXIS 507 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CR-13-992
GREGORY DECAY Opinion Delivered September 25, 2014
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. CR07-999-1]
STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY,
APPELLEE JUDGE
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Gregory Christopher Decay appeals from the order of the Washington
County Circuit Court denying and dismissing his petition for postconviction relief pursuant
to Arkansas Rule of Criminal Procedure 37.5 (2010). Decay was convicted of two counts of
capital murder and was sentenced to death; this court affirmed his convictions and sentence.
See Decay v. State, 2009 Ark. 566, 352 S.W.3d 319 (Decay I). Decay then filed a Rule 37.5
petition for postconviction relief. The circuit court denied and dismissed his petition, and
Decay appealed. We reversed and remanded for the entry of a written order containing
specific findings of fact and conclusions of law as required under Rule 37.5(i). See Decay v.
State, 2013 Ark. 185 (Decay II). The circuit court entered such an order, and Decay now
appeals from that order, asserting five points on appeal: (1) that he was denied effective
assistance of counsel when his trial counsel failed to investigate, develop, and present
mitigation evidence; (2) that he was denied effective assistance of counsel when his trial
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counsel failed to object to the prosecutor’s comment on his failure to testify; (3) that he was
denied effective assistance of counsel when his trial counsel failed to object to the prosecutor’s
statement that Decay may become eligible for release if sentenced to life imprisonment
without parole; (4) that he was denied effective assistance of counsel when his trial counsel
failed to advance the defense of his choice; and (5) that the circuit court erred in its denial of
relief as it related to his defense-of-choice claim because prejudice should have been
presumed. We affirm the order of the circuit court.
In Decay II, this court limited the circuit court’s findings of fact and conclusions of law
on remand to “only those issues raised on appeal,” which included (1) that he was denied
effective assistance of counsel when his trial counsel failed to investigate, develop, and present
mitigation evidence during his trial; (2) that he was denied effective assistance of counsel when
his trial counsel failed to properly object to the prosecuting attorney’s comment on Decay’s
failure to testify; (3) that he was denied effective assistance of counsel when his trial counsel
failed to properly object to the prosecuting attorney’s statement to the jury that Decay may
become eligible for release if sentenced to life imprisonment without parole; and (4) that he
was denied effective assistance of counsel when his trial counsel failed to advance the defense
that Decay did not commit the act that resulted in the deaths of the victims. 2013 Ark. 185,
at 2. In its order following remand, the circuit court concluded that (1) trial counsel’s
investigation, development, and presentation of mitigating evidence was not deficient and did
not prejudice Decay; (2) that trial counsel’s failure to object to the prosecuting attorney’s
comment on Decay’s remorse was not deficient and did not prejudice Decay; (3) that the
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prosecuting attorney’s statement regarding life imprisonment without parole was a correct
statement of the law and was not objectionable; and (4) that there was no basis in law or fact
that would have supported a defense that Decay did not commit the acts that resulted in the
victims’ deaths and trial counsel’s performance was therefore not deficient and did not result
in prejudice to Decay.
This court does not reverse the denial of postconviction relief unless the circuit court’s
findings are clearly erroneous. See Golden v. State, 2013 Ark. 144, 427 S.W.3d 11. 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 made. See id. In making a determination on a claim of ineffective assistance of counsel,
this court considers the totality of the evidence. See id. Our standard of review 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 v. Washington, 466 U.S. 668. See id.
In asserting ineffective assistance of counsel under Strickland, the petitioner must show
that counsel’s performance was deficient. See 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. See id. The reviewing
court must indulge in a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance. See 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
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been the result of reasonable professional judgment. See id.
In order to satisfy the second prong of the Strickland test, the petitioner must show that
counsel’s deficient performance prejudiced the defense, which requires showing that counsel’s
errors were so serious as to deprive the petitioner of a fair trial. See id. In doing so, the
petitioner must show that there is a reasonable probability that the fact-finder’s decision would
have been different absent counsel’s errors. See id. A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the trial. See id.
I. Failure to Investigate, Develop, and Present Mitigating Evidence
For his first point on appeal, Decay argues that the circuit court erred in denying his
claim that his trial counsel were ineffective in failing to investigate, develop, and present
mitigation evidence. He asserts that, despite being assigned a mitigation specialist, the
specialist did not perform his job duties, and he therefore did not receive the benefit of having
had the specialist. To that end, he contends, his trial counsel were ineffective in failing to
“supervise and control” the specialist. Additionally, Decay submits, the minimal testimony
by his family members during the sentencing phase was insufficient in its mitigating effect and
further demonstrates his trial counsel’s deficiencies. Decay maintains that the prejudice is
apparent, as none of the mitigating circumstances presented to the jury were found by the jury
to exist.
The State responds that Decay failed to show any deficient performance on the part
of his trial counsel, when the testimony at the postconviction hearing demonstrated that his
trial counsel actively sought mitigating evidence, prepared for the sentencing phase by
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meeting with each other repeatedly, meeting with Decay, inquiring about his childhood and
family history, requesting Decay’s records, talking with his family members, and even
obtaining a continuance to further develop any mitigation evidence. It states that, to the
extent the mitigation specialist failed to investigate, Decay’s trial counsel dealt with that failure
and completed the investigation. Moreover, the State avers, Decay failed to show in his
petition or during the hearing any other mitigation that trial counsel could, and should, have
sought or developed. The State contends that Decay has shown neither deficient performance
by his trial counsel nor prejudice and therefore urges us to affirm the circuit court’s order.
Here, Decay claims that his trial counsel were ineffective in failing to investigate,
develop, and present mitigation evidence in the sentencing phase of his trial and that the
circuit court erred in denying his petition on this basis. The sum of his argument is that the
mitigation evidence presented by his trial counsel “was a weak attempt to show the jury the
real picture of Gregory Christopher Decay’s life that is worth living.” The circuit court,
however, found that “all available mitigation evidence was developed by Petitioner’s trial
counsel,” and that trial counsel’s mitigation efforts were not deficient and did not result in
prejudice to Decay. We agree.
It is undisputed that the guarantee of effective assistance of counsel clearly encompasses
the penalty phase of a criminal trial, and this court has recognized that the failure to present
any testimony during the mitigation phase of the trial fails to pass constitutional muster. See,
e.g., Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. Counsel is obligated to conduct an
investigation for the purpose of ascertaining mitigating evidence, and the failure to do so is
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error. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003). Such error, however, does
not automatically require reversal unless the petitioner shows that, but for counsel’s errors,
there is a reasonable probability that the sentence would have been different. See id.; Coulter
v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). When reviewing a claim of ineffectiveness based
on a failure to present adequate mitigating evidence, we must view the totality of the
evidence—both that adduced at trial and that adduced in the postconviction hearing. See
Coulter, 343 Ark. 22, 31 S.W.3d 826.
To the extent that Decay argues that additional mitigating evidence was not
investigated, developed, or presented, our review of the record reveals that Decay wholly
failed to identify to the circuit court any additional evidence or witnesses that should have
been presented during the sentencing phase of his trial by his trial counsel but were not. In
his petition, Decay merely stated that “[t]rial counsel was ineffective for failing to properly
investigate and present mitigation evidence at the sentencing phase of the trial,” and at the
hearing, Decay relied solely on the testimony of his trial counsel, neglecting to identify any
other witnesses or evidence that would have been relevant to mitigation. When a petitioner
fails to show what was omitted and how it could have changed the outcome, we will not
grant postconviction relief for ineffective assistance of counsel. See Wooten v. State, 351 Ark.
241, 91 S.W.3d 63 (2002).
Moreover, it is clear from the record that Decay’s trial counsel did in fact investigate,
develop, and present mitigating evidence. During the sentencing phase of Decay’s trial,
Decay’s older brother, sister, mother, and the mother of his other brother’s son each testified
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on his behalf. Decay’s lead counsel, Denny Hyslip, testified at the postconviction hearing
that, while the mitigation specialist did not perform well, he and co-counsel, Julie Tolleson,
prepared for sentencing and mitigation. He testified that they spoke with Decay’s family
about his “childhood, his education, any particular injuries he might have had, [and] how he
did in school,” and that no one gave them “an avenue or a witness or anything for
mitigation” that they did not check out. In addition, Ms. Tolleson testified that they met
with Decay, and later his family, and went through a thirty-page mitigation questionnaire in
an attempt to discover any mitigating evidence concerning Decay’s birth, childhood,
development, schooling, participation in sports, religious convictions, and prior “trouble.”
She testified that, while they also sought out Decay’s school, hospital, and medical records
from Louisiana, where Decay grew up, the records were unavailable because of Hurricane
Katrina, and the standardized test scores and work records that they did obtain were not
helpful. In addition, Decay’s trial counsel moved for, and were granted, a continuance to
further prepare for the sentencing phase of Decay’s trial.
In light of the foregoing, we simply cannot say that the circuit court clearly erred in
finding that trial counsel’s performance was not deficient with respect to mitigation. Nor
need we address Decay’s argument that prejudice is apparent. “[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.” Anderson v. State, 2011 Ark. 488, at
3–4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697). We affirm the circuit court’s
finding.
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II. Failure to Object to the Prosecutor’s Comment on Decay’s Failure to Testify
For his second point on appeal, Decay argues that his trial counsel were ineffective for
failing to object to statements made by the prosecutor that he claims referenced a lack of
remorse and a failure to testify and apologize on his part. The State argues that remorse was
an issue raised by Decay himself and that the failure to object by trial counsel was within the
wide range of permissible, professional legal conduct. Furthermore, the State contends, the
statement by the prosecutor was not a reference to Decay’s failure to testify, but was the
prosecutor’s interpretation of Decay’s pretrial statements and his actions after the murders that
demonstrated a lack of remorse.1
During closing arguments, the prosecutor made the following statements:
And, in that five page statement he still blames Kevin and Kendall for what he had to
do. He still blames them. There’s no—that’s not remorse.
There’s no remorse in that letter. There’s no remorse in the last parts of the statement
because he’s not talking about Kevin and Kendall. He’s not talking about how bad I
feel for them.
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. See Johnson v. State, 2013 Ark. 494, 430 S.W.3d 755. Under 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 was an
1
The State additionally argues that this issue is not preserved for this court’s review;
however, in Decay II, this court directed the circuit court to make factual findings and legal
conclusions on this issue. We therefore address the merits of Decay’s argument.
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admission of guilt. See id. Consequently, the comment has the effect of making the
defendant testify against himself in violation of the Fifth Amendment. See id. Under the Fifth
Amendment to the United States Constitution, made applicable to the states by the
Fourteenth Amendment, a defendant has the privilege of deciding whether to testify. See id.
In determining whether a prosecutor has improperly commented on a defendant’s failure to
testify, this court employs a two-step review:
First, we determine whether the comment itself is an improper comment on the
defendant’s failure to testify. The basic rule is that a prosecutor may not draw
attention to the fact of, or comment on, the defendant’s failure to testify, because this
then makes the defendant testify against himself in violation of the Fifth Amendment.
A veiled reference to the defendant’s failure to testify is improper, as well. Should we
determine that the prosecutor’s closing argument statement did indeed refer to [the
defendant’s] choice not to testify, we would then determine whether it can be shown
beyond a reasonable doubt that the error did not influence the verdict.
Jones v. State, 340 Ark. 390, 402, 10 S.W.3d 449, 456 (2000) (alteration in original) (quoting
Gates v. State, 338 Ark. 530, 538, 2 S.W.3d 40, 44 (1999)).
In Jones, this court applied this two-step review and held that a comment by the
prosecutor was not a veiled reference to the defendant’s failure to testify. See id. Instead, this
court reasoned, “the prosecutor was referring to Jones’s lack of remorse as evidenced by his
statements to his brother and to the police and by his actions after the murders.” Id. at 402,
10 S.W.3d at 456. In addition, the court pointed out, Jones had invited the statements at
issue and opened the door to them; therefore, he was precluded from complaining about
them. See id.
Likewise, in the instant case, it is clear that the prosecutor stated that Decay expressed
no remorse in his writings, not that he failed to express remorse to the jury. See Johnson, 2013
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Ark. 494, 430 S.W.3d 755; Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). “This was
evidence, completely aside from [Decay’s] own non-appearance on the witness stand, on
which the prosecutor was free to comment.” Jones, 340 Ark. at 402, 10 S.W.3d at 456. The
statements therefore were not improper.
Our review of the record reveals that the prosecutor’s statements regarding Decay’s
lack of remorse, as evidenced by his writings, were not improper comments on his failure to
testify, and therefore any objection made by trial counsel would have been without merit.
Failure to make a meritless objection is not an instance of ineffective assistance of counsel.
See Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). For this reason, we affirm the
circuit court’s finding on this point.
III. Failure to Object to the Prosecutor’s Comment on Decay’s Eligibility for Release
For his third point on appeal, Decay argues that his trial counsel were ineffective in
failing to object, move for mistrial, or move that the jury panel be quashed, after the
prosecutor commented during voir dire that Decay might become eligible for release if
sentenced to life imprisonment without parole. He contends that the comment was meant
to discourage jurors from meaningfully considering a sentence of life imprisonment without
parole and operated to lead reasonable jurors to think he would be eligible for release if so
sentenced.
The State contends that, even if an objectionable ground existed, trial counsel did not
object because they were operating under the belief that the prosecutor was only clarifying
the legal definition of life imprisonment without parole. The State further claims that it
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would require speculation to conclude that the statement conveyed to the jury a preference
for the death penalty because Decay could potentially be released if sentenced to life
imprisonment without parole.
During voir dire, the following colloquy occurred without objection by Decay’s trial
counsel:
TRIAL COUNSEL: You understand when [the prosecutor] talked to you about
Capital Murder and the death penalty, do you understand that he
would get – Mr. Decay, if you found him guilty, and you give
him life without parole, that that is in fact what that means, life
without parole?
PROSECUTOR: Your Honor, for clarification, I believe it would mean that it
would be life unless paroled, pardoned, or commutation by a
governor. Your Honor, I believe that’s the actual definition.
And I have no problem with him saying that part, Your Honor.
The thrust of Decay’s argument is that his trial counsel’s failure to object to the prosecutor’s
statement resulted in a jury being empaneled that was predisposed to reject a sentence of life
imprisonment without parole.
It is clear to this court, however, that Decay has failed to meet the second prong of
Strickland. Decay seems to assert that he was prejudiced by his trial counsel’s failure to object
to the prosecutor’s statement because it resulted in the jury being predisposed to a sentence
of death. Jurors, however, are presumed to be unbiased and are presumed to follow the
instructions given to them by the court. See Echols v. State, 360 Ark. 332, 201 S.W.3d 890
(2005). A petitioner asserting ineffective assistance of counsel has the burden of proving that
the prejudice resulting from an alleged error was real and had some demonstrable, detrimental
effect and not some abstract or theoretical effect. See Springs, 2012 Ark. 87, 387 S.W.3d 143.
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Here, the jury had before it both possible sentences, life imprisonment without parole and
death, and, while it chose the latter, Decay has not demonstrated any facts to support his claim
that it did so because it was influenced by the statement at issue. A petitioner seeking
postconviction relief must do more than allege prejudice; he must demonstrate it with facts.
See Stiggers v. State, 2014 Ark. 184, 433 S.W.3d 252. We therefore affirm the circuit court’s
order denying relief on this point.
IV. Failure to Advance the Defense of Decay’s Choice
Decay next argues that he received ineffective assistance of counsel when his trial
counsel failed to advance the defense that he desired. He urges that he was entitled to have
the defense of his choice presented to the jury, despite his trial counsel’s feelings on the
matter, and that the critical stage of his trial was when the State rested its case and trial counsel
failed to put on any evidence in his defense. Specifically, Decay avers that his desired defense
of denial demanded an explanation why he might have made incriminating statements to
police and that his trial counsel were ineffective for failing to so defend him.
The State responds that Decay’s trial counsel’s conduct fell within the wide range of
reasonable professional assistance, as evidenced by the record. It further states that Decay has
shown neither deficient performance, nor prejudice, resulting from an alleged failure on the
part of his trial counsel to present his desired defense.
Trial counsel’s decisions regarding what theory of the case to pursue represent the
epitome of trial strategy. See Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). When a
decision by trial counsel is a matter of trial tactics or strategy and that decision is supported
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by reasonable professional judgment, then such a decision is not a proper basis for relief under
Rule 37. See Mason v. State, 2013 Ark. 492, 430 S.W.3d 759. This is true even where the
chosen strategy was improvident in retrospect. See Sartin, 2012 Ark. 155, 400 S.W.3d 694;
Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228 (per curiam). With respect to this claim, the
circuit court found that any failure on the part of trial counsel to advance Decay’s desired
defense did not fall below an objective standard of reasonable assistance, was not deficient, and
did not result in any prejudice to Decay. We agree.
Decay first takes issue with what he claims was his trial counsel’s failure to employ the
defense that a third party had committed the crimes. At the Rule 37 hearing, however,
Hyslip testified that an “[i]t wasn’t me” defense was used, but that the alibi witness, whose
name was provided by Decay, did not back up Decay’s statement. Likewise, Tolleson testified
that Decay wanted to take the position of a general denial; however, he was unable to provide
his counsel with the necessary leads to develop that defense. Tolleson also noted that the
defense was hampered by Decay’s confession and his jailhouse calls, as they corresponded with
the physical evidence against him. In addition, Hyslip testified that all the evidence pointed
to Decay as the shooter “and that there was no one else the evidence pointed to” but a co-
defendant, as the driver.
Decay further claims that his defense of denial “demanded” that his trial counsel
explain why he would have given incriminating statements to the police. Yet, Decay himself
chose not to testify, and Hyslip explained how that made the defense that he was not present
more difficult. Moreover, while Decay seems to take issue with his trial counsel’s failure to
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put on any evidence after the State rested, Decay has failed to specifically identify any other
possible witnesses that trial counsel could have called in his defense or what testimony they
could have provided that would have changed the outcome. See, e.g., Noel v. State, 342 Ark.
35, 26 S.W.3d 123 (2000) (observing that this court does not grant postconviction relief for
ineffective assistance of counsel where the petitioner has failed to show what the omitted
testimony was and how it could have changed the outcome).
In sum, Decay bases his claim of ineffective assistance of counsel on the notion that he
was entitled to the defense of his choice whether his trial counsel thought it wise or unwise;
but that is simply not the case. As we have previously observed, an attorney need not advance
every argument urged by his client. See Sartin, 2012 Ark. 155, 400 S.W.3d 694. Moreover,
even though another attorney may have chosen a different course, trial strategy, even if it
proves unsuccessful, is a matter of professional judgment. See Noel, 342 Ark. 35, 26 S.W.3d
123. Based on the record before us and having indulged in the strong presumption that trial
counsel’s conduct falls within the wide range of reasonable professional assistance as we must,
Decay has simply failed to demonstrate that the defense provided to him by trial counsel was
not supported by reasonable professional judgment.
While Decay also argues that prejudice should be presumed in a claim such as his, we
need not address his argument, because he has failed to demonstrate that trial counsel’s
performance was deficient with respect to the defense he received. As we have previously
stated, “[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.”
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Anderson, 2011 Ark. 488, at 3–4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697).
We therefore affirm the circuit court’s order.
Affirmed.
William A. McLean, for appellant.
Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., and Laura Shue,
Ass’t Att’y Gen., for appellee.
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