Stiggers v. State , 2014 Ark. LEXIS 247 ( 2014 )

Cite as 2014 Ark. 184
SUPREME COURT OF ARKANSAS
No. CR-13-223
ROBERT LEANDER STIGGERS Opinion Delivered April 24, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT, FIFTH
DIVISION
[NO. CR2003-793]
STATE OF ARKANSAS
APPELLEE HONORABLE WENDELL LEE
GRIFFEN, JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
On June 16, 2005, a Pulaski County jury convicted appellant, Robert Leander
Stiggers, of first-degree murder and first-degree battery. He was sentenced to forty years
imprisonment for the murder conviction and twenty years imprisonment for the battery
conviction with the sentences to run consecutively. Stiggers’s convictions and sentences
were affirmed in Stiggers v. State, CACR 05-1399 (Ark. App. May 31, 2006) (unpublished).
Stiggers’s convictions and sentences stem from a January 10, 2003 shooting that
occurred in the Hollingsworth Courts neighborhood in Little Rock. Raynaud Muldrew and
Wardell Newsome were both shot. Muldrew was found in a vehicle, and Newsome was
lying near it. Muldrew died as a result of his injuries. Despite being shot in the back of the
head, Newsome survived his injuries. Immediately after the shooting and at trial, Newsome
identified Stiggers as the shooter. The relevant facts, as recounted by the court of appeals in
Stiggers’s direct appeal are as follows:
Cite as 2014 Ark. 184
Sergeant Sidney Allen . . . discovered Wardell Newsome lying on the ground near the
vehicle. He had been shot four times in the right shoulder and once behind his right
ear. While at the scene, Newsome told Sgt. Allen that [Stiggers] was the person who
shot him.
. . . Detectives Eric Knowles and Keith Cockrell questioned Newsome about
the incident while he was undergoing treatment at UAMS. Newsome explained that
he had borrowed a friend’s car earlier in the evening and picked up Muldrew. He told
the detectives that Muldrew had purchased marijuana and then the two of them went
to a liquor store to purchase cigarettes and a couple of Swisher cigars. While there,
they saw [Stiggers] who asked for a ride to Hollingsworth Courts. [Stiggers] was
riding directly behind Newsome in the back seat of the car, and during the ride,
[Stiggers] apparently became aggressive and started yelling. Newsome stated that, at
one point, he turned around and noticed that [Stiggers] was holding a small handgun.
While following [Stiggers’s] directions into the Hollingsworth Courts neighborhood,
Newsome testified that [Stiggers] told them to “say goodnight” and “say your
prayers” because he was going to kill them. Newsome indicated that he did not think
[Stiggers] was serious because they had known each other and been friends for years.
Newsome explained that, as he pulled into an alley in the residential complex
at [Stiggers]’s request, [Stiggers] shot him behind the right ear. He pointed out that
he lost consciousness immediately, and when he regained consciousness, he noticed
Muldrew slumped over in the front passenger seat. Newsome explained that he then
crawled out of the vehicle to look for help, and a neighbor called the police.
Newsome recognized [Stiggers]’s picture in a group of photos presented by Detectives
Knowles and Cockrell, and he again identified him as the shooter.
Stiggers, CACR 05-1399, slip op. at 1.
After the court of appeals issued its mandate, on August 20, 2006, Stiggers filed his
initial Rule 37.1 petition in Pulaski County Circuit Court. After several continuances due
to issues related to Stiggers’s representation, on July 2, 2012, Stiggers filed an amended
petition and the circuit court held a hearing that same day. On November 16, 2012, the
circuit court denied Stiggers’s petition. Stiggers now brings this appeal and presents one issue
for review: the circuit court erred by denying Stiggers’s Rule 37.1 petition because Stiggers
received unconstitutional ineffective assistance of counsel when his counsel failed to interview
2
Cite as 2014 Ark. 184
and call certain witnesses.
“On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this
court will not reverse the circuit court’s decision granting or denying post-conviction relief
unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. 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., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1–2, ___
S.W.3d ___, ___.
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 (1984). Claims of ineffective assistance of counsel are reviewed
under the following standard:
A convicted defendant’s claim that counsel’s assistance was so defective as to require
reversal of a conviction 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.
Unless a defendant makes both showings, it cannot be said that the conviction resulted
from a breakdown in the adversary process that renders the result unreliable.
Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S.
at 687).
The reviewing court must indulge in a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. Id. The petitioner claiming
ineffective assistance of counsel has the burden of overcoming that presumption by identifying
3
Cite as 2014 Ark. 184
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. See id. Therefore,
Stiggers must first show that counsel’s performance fell below an objective standard of
reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id.
Stiggers must satisfy both prongs of the test, and it is not necessary to determine whether
counsel was deficient if Stiggers fails to demonstrate prejudice as to an alleged error. Abernathy
v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).
Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision
of trial counsel to call a witness, such matters are generally trial strategy and outside the
purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective
assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner
to name the witness, provide a summary of the testimony, and establish that the testimony
would have been admissible into evidence. Moten v. State, 2013 Ark. 503 (per curiam);
Stevenson v. State, 2013 Ark. 302 (per curiam) (citing Hogan v. State, 2013 Ark. 223 (per
curiam)). In order to demonstrate prejudice, the petitioner is required to establish that there
was a reasonable probability that, had counsel performed further investigation and presented
the witness, the outcome of the trial would have been different. See Carter v. State, 2010 Ark.
231, 364 S.W.3d 46 (per curiam). Trial counsel must use his or her best judgment to
determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic
decisions must still be supported by reasonable professional judgment. Id. Finally, “[w]hen
assessing an attorney’s decision not to call a particular witness, it must be taken into account
4
Cite as 2014 Ark. 184
that the decision is largely a matter of professional judgment which experienced advocates
could endlessly debate, and the fact that there was a witness or witnesses that could have
offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Huls
v. State, [301 Ark. 572, 785 S.W.2d 467 (1990)]; Dumond v. State, 294 Ark. 379, 743 S.W.2d
779 (1988).” Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996).
We now turn to the sole issue raised by Stiggers. Stiggers’s allegation of ineffective
assistance of counsel is that his trial counsel failed to interview four potential witnesses in
preparation for Stiggers’s defense or call them as a witness at trial: Eddie Pride, Temika
Donley, Kristopher Johnson, and Damika Mitchell. Stiggers contends that these witnesses
would have supported his argument that another person, a person named “Jason,”1 was the
shooter. He further asserts that the witnesses’ testimony was admissible under hearsay
exceptions but that his trial counsel did not interview or call the witnesses at trial to determine
what exceptions applied. Stiggers asserts that the witnesses’s testimony would have impeached
the State’s witness. Finally, Stiggers asserts that he was prejudiced by his defense counsel’s
failure to call these witnesses.
Stiggers’s theory at trial was as follows: while he was purchasing drugs from the two
victims, two unnamed men came up to the vehicle and shot the victims. Stiggers testified at
trial that the two men approached the vehicle and let Stiggers run away prior to the shooting,
and that as he was running away he heard the gunshots. In sum, Stiggers’s theory of the case
was that someone else was the shooter.
1
The record does not reflect Jason’s last name.
5
Cite as 2014 Ark. 184
Prior to trial, on April 8, 2005, the circuit court conducted a pretrial hearing. The State
made a Zinger motion to prohibit Stiggers from eliciting testimony from witnesses regarding
“Jason” because the testimony was inadmissible hearsay.2 The circuit court granted the
motion. Stiggers acquiesced to the circuit court’s ruling and agreed that the “Jason” testimony
was hearsay, but explained that there could be a chain of events in the testimony where
Stiggers could elicit such testimony. Stiggers complied with the circuit court’s ruling but
reserved the right to approach the bench if such circumstances arose. At trial, defense counsel
did not call Pride, Mitchell, Donley, or Johnson as witnesses.
In his petition, Stiggers asserted that counsel was ineffective for not interviewing or
calling the four witnesses, three of which he alleges would have provided “Jason” testimony.
2
A Zinger motion refers to Zinger v. State, 313 Ark. 70, 75–76, 852 S.W.2d 320, 323
(1993), where we held that the standard for admissibility of evidence tending to incriminate
other persons in the crime being charged is as follows:
A defendant may introduce evidence tending to show that someone other than the
defendant committed the crime charged, but such evidence is inadmissible unless it
points directly to the guilt of the third party. Evidence which does no more than create
an inference or conjecture as to another’s guilt is inadmissible.
[T]he rule does not require that any evidence, however remote, must be admitted to
show a third party’s possible culpability . . . . [E]vidence of mere motive or
opportunity to commit the crime in another person, without more, will not suffice to
raise a reasonable doubt about a defendant’s guilt: there must be direct or
circumstantial evidence linking the third person to the actual perpetration of the crime.
Id. (quoting State v. Wilson, 367 S.E.2d 589 (N.C. 1988) and People v. Kaurish, 802 P.2d 278
(Cal. 1990)).
6
Cite as 2014 Ark. 184
At the postconviction hearing, Stiggers introduced statements from two of the “Jason”
witnesses: Donley and Johnson. The third “Jason” witness, Pride, also provided a statement;
however, the circuit court did not accept Pride’s statement because Pride was not known at
trial, there was no statement in the case file, and Pride had not testified at a previous hearing.
Stiggers did not introduce a statement from Mitchell. At the Rule 37 hearing, defense counsel
testified that he did not recall interviewing the four witnesses and did not call them as
witnesses.
Stiggers first asserts that Eddie Pride would have testified that Newsome told Pride that
Stiggers was not the shooter but that it was “Jason.” Second, Stiggers asserts that Donley,
Muldrew’s girlfriend, would have testified that Muldrew told her that “Jason” had threatened
to kill Muldrew, Muldrew’s child, and the child’s mother. Third, Stiggers asserts that Johnson
would have testified that “Jason” had threatened to kill Muldrew. He contends that Johnson
would have testified that he overheard Muldrew on the phone with “Jason” four or five days
before the shooting, and heard “Jason” discussing a “bad drug deal” or “theft of drugs”
involving “Jason’s” drugs, and threatening to kill Muldrew and others. Fourth, Stiggers
contends that Mitchell would have testified that she saw both victims prior to the shooting and
that the vehicle’s lights were off, which was contrary to the State’s witness’s testimony.
First, with regard to Pride, although Stiggers testified that he informed his counsel about
Pride, defense counsel testified that prior to trial he had likely heard Pride’s name, but did not
recall knowledge of Pride’s allegations that Newsome had told Pride that Stiggers was not the
shooter. Defense counsel further testified that,
7
Cite as 2014 Ark. 184
that certainly would have been something . . . very important. . . . I don’t recall that
ever being told to me. If I had been given that information, that would certainly would
have been the diligent thing to do, to look for Mr. Pride. I would say if I had recognized
that there was possibly a prior statement out there saying that someone else had done it
coming from a living witness, I would have absolutely asked him about it.
With regard to Donley and Johnson, defense counsel testified that after reviewing
Donley and Johnson’s police statements in the file, he considered both witnesses’s testimony to
be in the group of people he categorized as Zinger witnesses and concluded that their testimony
would have been inadmissible hearsay. Defense counsel said “My analysis was that it didn’t
come in because of Zinger and there were hearsay issues obviously, but beyond that, even
beyond the hearsay, the Zinger issue kept it out.”
Finally, with regard to Mitchell’s testimony, defense counsel testified that although he
could “see there was some argument” that Mitchell’s testimony regarding the lights in the car
being off at the time of the shooting would have helped Stiggers, he did not recall interviewing
Mitchell or making a strategic decision to not interview her. Defense counsel testified that he
cross-examined every witness that came near the vehicle regarding the facets of the vehicle,
including the surviving witness, Newsome. Defense counsel further testified that there “was
a huge amount of discrepancies” in the testimony from witnesses regarding whether the lights
were on or off and that he cross-examined every witness.
Here, Stiggers fails to substantiate his claim that counsel was ineffective based on the
failure to interview or call the “Jason” witnesses. Stiggers has failed to meet his burden under
the first prong of Strickland because he has not demonstrated that his counsel’s performance fell
below an objective standard of reasonableness. Additionally, Stiggers has failed to demonstrate
8
Cite as 2014 Ark. 184
that the “Jason” testimony would have been admissible hearsay and makes conclusory
allegations that it may have fit under an exception to hearsay. Further, the record supports that
defense counsel’s decision to not interview or call the witnesses was based on reasonable
professional judgment. The testimony was inadmissible pursuant to Zinger, as it did no more
than create an inference or conjecture as to “Jason’s” involvement, the testimony was hearsay,
and Stiggers failed to demonstrate that it was admissible. Nor has Stiggers met the second prong
under Strickland because he has failed to demonstrate that he was prejudiced by defense counsel’s
failure to interview the witnesses. Stiggers must do more than allege prejudice; he must
demonstrate it with facts. Walton v. State, 2013 Ark. 254 (per curiam). Here, Stiggers provides
no evidence that he suffered any prejudice as a result of counsel’s failure to call the “Jason”
witnesses. We find no merit in Stiggers’s claim regarding Pride, Donley, or Johnson.
Finally, with regard to Mitchell’s testimony, as discussed above, our law requires that
Stiggers name the witness, provide a summary of the testimony, and establish that the testimony
would have been admissible into evidence. Moten v. State, supra. The objective in reviewing
an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses
is to determine whether this failure resulted in actual prejudice that denied the petitioner a fair
trial. Woody v. State, 2009 Ark. 413 (per curiam). In order to demonstrate prejudice, Stiggers
must establish that there was a reasonable probability that, had counsel performed further
investigation and presented the witness, the outcome of the trial would have been different. Id.
While Stiggers claims that Mitchell’s testimony regarding the vehicle would have
discredited Newsome’s testimony, defense counsel testified that he cross-examined every
9
Cite as 2014 Ark. 184
witness that came into contact with the vehicle. Based on the record, we are not persuaded that
had defense counsel interviewed and called Mitchell as a witness regarding the lights of the car,
the outcome of the trial would have been different.
Stiggers simply did not provide any support for his conclusory claims that counsel was
ineffective and made no showing that counsel committed any specific error that prejudiced the
defense. See Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996) (“[T]he fact that
there was a witness or witnesses that could have offered testimony beneficial to the defense is
not in itself proof of counsel’s ineffectiveness.”). In reviewing the record before us, we
conclude that Stiggers has not met his burden.
Based on the discussion above, we do not find that the circuit court erred.
Affirmed.
Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.
10