Minnie Pryor v. Larry Norris ( 1997 )

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No. 96-1996
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Minnie Pryor, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Larry Norris, Director, * Eastern District of Arkansas.
Arkansas Department of *
Correction, *
*
Appellee. *
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Submitted: November 20, 1996
Filed: January 9, 1997
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Before MAGILL and MORRIS SHEPPARD ARNOLD, Circuit Judges, and LONGSTAFF,1
District Judge.
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MAGILL, Circuit Judge.
Minnie Pryor brought this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (1994), arguing that her trial counsel was
ineffective. The district court2 denied her petition, holding that
counsel's alleged ineffectiveness had not prejudiced Pryor. We affirm.
1
The HONORABLE RONALD E. LONGSTAFF, United States District
Judge for the Southern District of Iowa, sitting by designation.
2
The Honorable John F. Forster, Jr., United States Magistrate
Judge for the Eastern District of Arkansas, presiding by agreement
of the parties pursuant to 28 U.S.C. § 636(c) (1994).
I.
On April 20, 1992, Minnie Pryor was convicted by a jury in Arkansas
state court on two counts of delivering cocaine. Pryor was sentenced as
an habitual offender to consecutive terms of imprisonment totalling 55
years. Evidence at trial indicated that on November 22 and 23, 1991, Pryor
had sold crack cocaine to Sammy White, who was working with the police as
a confidential informant. White wore a body microphone during the drug
transactions, and the tapes of the transactions with Pryor were played to
the jury during her trial. Pryor's conviction was subsequently affirmed
on direct appeal. See Pryor v. State, 861 S.W.2d 544 (Ark. 1993).
Pryor complains of four acts of alleged ineffective assistance of
counsel at trial and on direct appeal. First, Pryor alleges that her trial
counsel improperly failed to make a timely objection to the chain of
custody of the crack cocaine allegedly purchased from Pryor. A quantity
of crack cocaine allegedly sold by Pryor to White consisting of
"approximately three [rocks] and some crumbs," Trial Tr. at 173, reprinted
in I Appellee's App. at 233 (testimony of Kim Brown, Arkansas State Crime
Laboratory chemist), was introduced as evidence at trial.3 After the
evidence was introduced and the state had rested, trial counsel objected
because the police officer who actually delivered the crack cocaine to the
state crime laboratory had not testified regarding the chain of
3
During Ms. Brown's cross-examination, defense counsel noted
that police officers and the evidence submission form indicated
that six rocks of crack cocaine had been recovered. See Trial Tr.
at 174, reprinted in I Appellee's App. at 234. When asked about
this apparent disparity, Ms. Brown testified that:
Well, different people look at that and say there are a
different numbers of rocks. Some people count each
little piece of a crumb as a piece of the off-white
substance but I just count the bigger ones as a piece.
Id. (testimony of Kim Brown).
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custody. The trial court overruled the objection. On appeal, the Arkansas
Supreme Court held that the issue had not been preserved for appeal because
the objection was made after the evidence had been admitted. See Pryor,
861 S.W.2d at 546.
Second, Pryor complains that her trial counsel rendered ineffective
assistance by failing to request a mistrial immediately following allegedly
improper and prejudicial testimony from White. When asked by the state why
Pryor would sell crack cocaine to him, White testified that his sister had
purchased crack cocaine from Pryor and that his sister had given her
children's clothes and Christmas presents to Pryor in exchange for drugs.
See id. at 546-47 (quoting trial testimony). Defense counsel objected to
this question and answer, and the trial court admonished the jury not to
consider White's response. Id. After the state rested, defense counsel
moved for a mistrial because of the allegedly prejudicial testimony. The
motion was overruled, and on appeal the Arkansas Supreme Court held that
the issue had been waived because the motion for mistrial was not made at
the first opportunity. Id. at 547.
Third, Pryor argues that her trial counsel rendered ineffective
assistance by opening the door to prejudicial remarks made by prosecuting
counsel during closing arguments. Pryor faced a range of punishment for
each count of delivering cocaine of 20 years to life imprisonment and a
$50,000 fine. During defense counsel's closing arguments, counsel urged
the jury to give Pryor the minimum sentence of 20 years imprisonment,
noting that Pryor was 42 years old, and that "[i]n 20 years she will be 62
years old. Sixty years from now she'll be 102 years old." Id. (quoting
defense counsel). In response, the prosecutor tried to rebut this argument
by referring to parole, stating that "[i]f she gets 60 years and stays
clean, she'll be back in 20. Let's not play any games about it. You give
her 20 years, she'll be back in 5 to 10." Id. (quoting prosecuting
counsel).
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Upon defense counsel's request, the trial court admonished the jury
not to consider the prosecution's remarks but denied a mistrial. Pryor was
ultimately assessed a $25,000 fine and sentenced to concurrent terms of 20
years and 35 years imprisonment. On appeal, the Arkansas Supreme Court
held that, while the prosecutor's remarks were improper, defense counsel
had "opened the door and invited a response to his absolute statement that
Pryor would be in prison for all of the time assessed." Id. at 547-48.
Finally, Pryor argues that her counsel rendered ineffective
assistance on appeal by not challenging the introduction of a transcript,
rather than the original tapes, of the drug transactions between Pryor and
White. At trial, the state introduced transcripts of the November 22 and
23 transactions between Pryor and White. Although the tapes themselves
were not introduced as evidence, they were played for the jury. Defense
counsel objected to the introduction of the transcripts, but was overruled.
Counsel elected not to pursue this issue on appeal.
Pryor raised these four issues in a petition for postconviction
relief under Arkansas Rule of Criminal Procedure 37 in the Cross County,
Arkansas Circuit Court. The court denied relief on May 17, 1994,
concluding that Pryor had suffered no prejudice from any of the alleged
acts of ineffective assistance. In an unpublished opinion, the Arkansas
Supreme Court affirmed. See Pryor v. State, No. CR 94-860 (Ark. May 1,
1995) (per curiam). Pryor then brought this federal habeas petition, which
was denied by the district court. This appeal followed.
II.
Pryor's claim of ineffective assistance of counsel "presents a mixed
question of law and fact; we review the district court's factual findings
for clear error and its legal conclusions de
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novo." Dodd v. Nix, 48 F.3d 1071, 1073 (8th Cir. 1995). We shall defer
to a state court's finding of fact if fairly supported by the record. See
28 U.S.C. § 2254(d) (1994).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
described a two-part formula for determining if trial counsel rendered
constitutionally-ineffective assistance:
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 unreliable. Unless a defendant makes both
showings, it cannot be said that the conviction or the
[sentence] resulted from a breakdown in the adversary process
that renders the result unreliable.
Id. at 687. We need not reach the performance prong if we determine that
the defendant suffered no prejudice from the alleged ineffectiveness. See
id. at 697 ("If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so,
that course should be followed.").
The Strickland Court explained that "actual ineffectiveness claims
alleging a deficiency in attorney performance are subject to a general
requirement that the defendant affirmatively prove prejudice." Id. at 693.
It is not sufficient, however, "for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding. Virtually
every act or omission of counsel would meet that test, and not every error
that conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding." Id. (citation omitted).
Instead, "[t]he defendant must show that there is a reasonable probability
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that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694.
We conclude, as the district court and the Arkansas state courts have
held, that Pryor has failed to demonstrate any reasonable probability that
the outcome of the trial or appeal would have been different but for any
of her attorney's alleged errors. By failing to object immediately to the
admission of the crack cocaine, Pryor's trial counsel failed to force the
prosecution to carry its burden of proving the chain-of-custody of the
crack cocaine. There is no reason to believe, however, that the
prosecution would have failed to meet this burden if counsel had made a
timely objection. Indeed, in considering this claim, the Arkansas Supreme
Court held that:
In denying [Pryor's petition for post-conviction relief], the
trial judge found that the objection would not have been
sustained even if it had been made at the correct time. As the
court stated in the appellant's case on direct appeal, "It is
not necessary that the state eliminate every possibility of
tampering; instead the trial court must be satisfied that in
all reasonable probability, the evidence has not been tampered
with." Pryor v. State, [861 S.W.2d at 546]. Since the trial
judge would not have sustained the objection even had it been
made at a timely manner, the appellant is unable to show that
his counsel's failure to object at the time the cocaine was
introduced had an adverse effect on the outcome of the trial.
Pryor, No. CR 94-860, slip op. at 3. We find this analysis compelling, and
we agree that Pryor has failed to show any prejudice on this point.
Pryor has also failed to carry her burden of showing that she was
prejudiced by her counsel's failure to request immediately a mistrial when
White made statements about his sister giving her
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children's clothing and presents to Pryor in exchange for drugs. The trial
court admonished the jury not to consider White's remarks. This kind of
corrective action is usually effective in curing any possible prejudice.
See Goins v. State, 890 S.W.2d 602, 608 (Ark. 1995) ("[A] cautionary
instruction to the jury can make harmless any prejudice that might
occur."). In light of this corrective action, and because mistrials are
extraordinary remedies under Arkansas law, see id. ("A mistrial is a
drastic remedy and proper only when the error is beyond repair and cannot
be corrected by any curative relief."), we agree with the Arkansas Supreme
Court that there was no basis for a mistrial. See Pryor, No. CR 94-860,
slip op. at 4. Because there was no basis for a mistrial, Pryor was not
prejudiced when her attorney failed to make a timely motion for one.
We also hold that Pryor has failed to show prejudice arising from her
counsel's argument for leniency, which opened the door to prosecution
comments regarding parole. Initially, we note that, as a strategy, arguing
for leniency may well have worked: Pryor, who could have received two life
sentences, received a minimum 20-year sentence on one count and a 35-year
sentence on the second count. Furthermore, the district court admonished
the jury not to consider the prosecutor's improper remarks,4 a corrective
action which is usually effective. See Goins, 890 S.W.2d at 608. Pryor
has failed to demonstrate that she was prejudiced by her counsel's argument
for leniency.
4
Although at the time of Pryor's trial it was improper for a
prosecutor to comment on the effect of parole on a sentence, see
Pryor, 861 S.W.2d at 547 ("There is no question but that comments
on parole by the State are to be avoided . . . ."), Arkansas law
now permits such comments. See Ark. Code Ann. § 16-97-103 (Michie
Supp. 1995) ("Evidence relevant to sentencing by either the court
or a jury may include . . . [t]he law applicable to parole,
meritorious good time, or transfer . . . .").
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Finally, Pryor did not suffer any prejudice from her counsel's
failure to appeal the admission of the transcript of the tapes of Pryor's
drug transactions rather than the tapes themselves. Police transcripts of
recorded statements, if accurate, are admissible in Arkansas courts. See
Childress v. State, 907 S.W.2d 718, 721 (Ark. 1995). The determination of
accuracy is left to the discretion of the trial court and will not be
disturbed on appeal by the Arkansas appellate courts absent abuse of
discretion. Id. at 721-22. In this case, the trial court, as well as the
jury, listened to the actual tapes, and a police officer testified to their
accuracy. With the accuracy of the transcripts thus supported, we cannot
say that the trial court so abused its discretion in admitting the
transcripts that there was any reasonable probability that an appeal of
this issue would have been successful and that the result of the appeal
would thereby have been different. Because it would have made no
difference if Pryor's appellate counsel had included this issue on appeal,
Pryor has failed to demonstrate constitutionally ineffective assistance of
appellate counsel. See Strickland, 466 U.S. at 694 (constitutional
standard for ineffective assistance of counsel).5
There is nothing in the record to support Pryor's allegations that
her counsel's supposed missteps prejudiced the outcome of her
5
Indeed, Pryor's counsel may well have served her better by
limiting the number of issues on appeal to those most likely to
succeed, rather than clouding meritorious points on appeal with a
host of frivolous arguments. As we have noted:
Law is an art, not a science, and many questions that
attorneys must decide are questions of judgment and
degree. Among the most difficult are decisions as to
what issues to press on appeal. Lawyers have often been
told that it is not good strategy to argue on appeal
every conceivable point contained in a record.
Simmons v. Lockhart, 915 F.2d 372, 375 (8th Cir. 1990).
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trial or direct appeal. Accordingly, we affirm the judgment of the
district court denying Pryor's petition for habeas relief.6
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
6
Pryor also argues that the cumulative effect of her trial
counsel's alleged errors resulted in prejudice. We have held,
however, that "cumulative error does not call for habeas relief, as
each habeas claim must stand or fall on its own." Girtman v.
Lockhart, 942 F.2d 468, 475 (8th Cir. 1991) (quotations and
citation omitted).
Finally, Pryor argues that her trial counsel had a conflict of
interest, because he had previously represented White, a witness
for the state. Pryor did not present this argument to the district
court and we will not consider it for the first time on appeal.
See Williams v. Lockhart, 849 F.2d 1134, 1139 (8th Cir. 1988).
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