McDaniels v. State

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SUPREME COURT OF ARKANSAS
No. CR-13-301
WILLIE AUTHOR MCDANIELS Opinion Delivered April 24, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
[NO. CR-09-187]
STATE OF ARKANSAS HONORABLE HERBERT THOMAS
APPELLEE WRIGHT, JR., JUDGE
AFFIRMED.
JIM HANNAH, Chief Justice
Appellant, Willie Author McDaniels, appeals from the denial of his petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. Appellant was
convicted of two counts of rape of his step-granddaughter, Q.A., and sentenced to a total of
480 months in the Arkansas Department of Correction. The court of appeals affirmed on
direct appeal. See McDaniels v. State, 2012 Ark. App. 219. Appellant then filed a petition for
postconviction relief, which the circuit court denied without an evidentiary hearing. On
appeal, Appellant contends that the circuit court clearly erred in rejecting without a hearing
his claims that (1) trial counsel was ineffective for failing to object to defective charging
language and jury instructions, and (2) trial counsel was ineffective for failing to adequately
investigate and utilize evidence of a third party’s semen found on the victim’s pants. We
affirm the circuit court’s order.
On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this
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court will not reverse the circuit court’s decision granting or denying postconviction 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.
The criteria for assessing the effectiveness of counsel were enunciated by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In asserting ineffective
assistance of counsel under Strickland, the petitioner must first show that counsel’s
performance was deficient. Williams v. State, 2011 Ark. 489, at 4, 385 S.W.3d 228, 232. 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., 385 S.W.3d at 232.
The reviewing court must indulge in a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Id., 385 S.W.3d at 232. Second, 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. Id., 385 S.W.3d at 232. In doing so, the petitioner must show that there is a reasonable
probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt
respecting guilt, which means that the decision reached would have been different absent the
errors. Id., 385 S.W.3d at 232. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Id., 385 S.W.3d at 232–33. Unless a
petitioner makes both Strickland showings, it cannot be said that the conviction resulted from
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a breakdown in the adversarial process that renders the result unreliable. Id., 385 S.W.3d at
233.
In his first point on appeal, Appellant contends that the circuit court clearly erred in
rejecting without a hearing his claim that trial counsel was ineffective for failing to object to
defective charging language and jury instructions. Count Two of the felony information
charged Appellant with committing rape, in violation of Arkansas Code Annotated section
5-14-103, and alleged that on or about June 23, 2007, through October 17, 2008, Appellant
“unlawfully, feloniously, did engage in sexual intercourse or deviate sexual activity with Q.A.
. . . who was less than eighteen (18) years of age, and the actor was the victim’s guardian, to
wit: step-grandparent, against the peace and dignity of the State of Arkansas.” At trial, the
circuit court instructed the jury that, to sustain the charge of rape as to Count Two, the State
had to prove beyond a reasonable doubt (1) that Appellant engaged in sexual intercourse or
deviate sexual activity with Q.A.; (2) that Q.A. was less than eighteen years old at the time
of the offense; and (3) that Appellant was Q.A.’s guardian or step-grandparent. Appellant
alleged in his petition for postconviction relief that trial counsel was ineffective for failing to
object to the language in the charging document because the definition of “guardian” found
in Arkansas Code Annotated section 5-14-101 does not specifically include a step-
grandparent. He also claimed that there was insufficient evidence presented at trial to
demonstrate that he was Q.A.’s guardian. Appellant contended that the felony information
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showed that he was charged pursuant to the “guardian” subsection1 of the rape statute and
that, “[o]nce the trial commenced without amendment to the information, any evidence or
references accusing the Defendant of rape for being in the position of ‘step-grandparent’
should have been objected to by trial counsel.” He further contended that trial counsel was
ineffective for failing to object to the language in the jury instruction “making reference to
the Defendant as ‘step-grandparent.’”
The circuit court found that trial counsel committed error by failing to object to the
language of Count Two. Nevertheless, the circuit court found that under Arkansas Code
Annotated section 5-14-103, Appellant could be convicted of rape for engaging in sexual
intercourse or deviate sexual activity with Q.A. if he was either Q.A.’s guardian or her step-
grandparent, and the circuit court found that the evidence at trial demonstrated that
Appellant met the definition of both. The circuit court further found that, had trial counsel
objected to the use of the term “guardian” in Count Two of the felony information, “based
solely on the defendant’s status as step-grandparent, the information could have been
amended at any point prior to the submission of the case to the jury to reflect that he was
being charged as a step-grandparent and the jury so instructed, as there would have been no
change in the nature or degree of the charge.” Accordingly, the circuit court found that
Appellant had not “suffered such prejudice as a result of his attorney’s error as to warrant
relief” pursuant to Rule 37.
1
The felony information cites the rape statute, Arkansas Code Annotated section 5-14-
103, but it does not cite a specific subsection of that statute.
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A person commits rape if he or she engages in sexual intercourse or deviate sexual
activity with another person who is less than eighteen years of age and the actor is the
victim’s guardian, see Ark. Code Ann. § 5-14-103(a)(4)(A)(i) (Repl. 2006), or step-
grandparent, see id. § 5-14-103(a)(4)(A)(ii). A “guardian” is defined as “a parent, stepparent,
legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement
is placed in an apparent position of power or authority over a minor.” Id. § 5-14-101(3) (Repl. 2006)
(emphasis added). The State contends that, in this case, although it is not entirely clear from
the felony information whether the State intended to charge Appellant with rape under part
(i) or part (ii) of Arkansas Code Annotated section 5-14-103(a)(4)(A), the circuit court
correctly found that any error by trial counsel in failing to object to the charging language
did not prejudice Appellant in light of evidence presented by the State that Appellant was
both Q.A.’s guardian and her step-grandparent.
Appellant did not contest the fact that he was Q.A.’s step-grandfather. He testified at
trial that he had been married to Q.A.’s grandmother, Gloria McDaniels, for thirty-three
years. Q.A. testified at trial that Appellant was her step-grandfather, and that she called him
“Paw Paw” while growing up. As to the allegation that Appellant was also Q.A.’s guardian,
there was testimony at trial from Q.A., Q.A.’s relatives, and Appellant himself that Q.A. had
spent a great deal of time at Appellant’s home from the time she was a young child. Yolanda
Allen, Appellant’s stepdaughter, testified that Q.A. was around Appellant “from birth,”
because she was the “first born grandchild,” and that Q.A. went places with Appellant and
rode in the car with him “all the time.” Bridget White, Q.A.’s mother, testified that Q.A.
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went on vacation with Appellant and Q.A.’s grandmother to Florida and that when Q.A.
moved back to Arkansas from Texas in the summer of 2007, Q.A. often spent the night with
them. White also testified that Appellant bought clothes and a cell phone for Q.A. Q.A.
testified that, when she returned from Texas, she lived at both her mother’s house and
Appellant’s house, stating that, if she had school the next day, she spent the night with
Appellant and her grandmother because Appellant “was like transportation . . . [a]nd my
mom didn’t have a car at the time, so that’s how we would get back and forth to school.”
Q.A. testified that her grandmother would leave for work around 6:00 a.m., and Appellant
would walk through the house to make sure everyone else was still sleeping and then he
would “come in [my] room . . . pull my pants down, . . . pull his pants off, and [he’d] take
his penis and stick it inside me.” Q.A. stated that Appellant bought her food and clothes, paid
her cell-phone bill, and gave her money and told her that, if she told anyone about the rapes,
he would “stop me from coming around my granny,” and “he’ll stop doing stuff for me.”
Q.A. also said that Appellant told her that if she accused him of rape, nobody would believe
her. Q.A.’s grandmother testified that Q.A. was at the McDaniels home “mostly . . . on the
weekends, and through the summer she was there all the time.” She also stated that, when
Q.A.’s mother was working at the state fair, Q.A. spent the night at the McDaniels home
during the school week. Q.A.’s grandmother also testified that she and Appellant bought
clothes and a cell phone for Q.A., stating that they “pretty much [did] the same thing for”
Q.A. that they did for their son, Jacob, who was a year younger than Q.A. Appellant testified
that he treated Jacob and Q.A. the same, stating, “I raised ‘em - - when I do something for
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one of ‘em, I do for all of ‘em. I wouldn’t do nothing for one if I didn’t do it for all of ‘em
‘cause I didn’t want ‘em thinking that I picked one out of, you know, just picked one and
not helping the other one.”
The State contends that, given the evidence presented at trial, Appellant could have
been convicted as either a “guardian” or a “step-grandparent.” As previously noted,
Appellant did not dispute that he was Q.A.’s step-grandparent. In his petition for
postconviction relief, however, Appellant contended that there was insufficient evidence that
he was Q.A.’s guardian. The circuit court found that there was testimony at trial from Q.A.
and Q.A.’s relatives, including Appellant, that Q.A. had spent a great deal of time at
Appellant’s home from the time she was a young child and that this visitation would often
include staying over nights and weekends. The circuit court also found that the pattern of
staying at Appellant’s residence would, due to its extended nature and repetition, qualify as
a “living arrangement” under Arkansas Code Annotated section 5-14-101(a)(4)(A)(i), and
would have placed Appellant in a position of power or authority over a minor, thus meeting
the definition of “guardian.” We conclude that the circuit court did not clearly err in finding
that there was sufficient evidence that Appellant was both Q.A.’s guardian and step-
grandparent.
We also conclude that the circuit court did not clearly err in finding that even if trial
counsel had objected to the language used in the information or in the subsequent jury
instruction, the State could have corrected any mistake by amending the information. It is
axiomatic that the State is entitled to amend an information at any time prior to the case
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being submitted to the jury as long as the amendment does not change the nature or degree
of the offense charged or create unfair surprise. E.g., Rueda v. State, 2012 Ark. 144, at 9, 400
S.W.3d 226, 231. In the instant case, amending the information would not have changed the
nature or degree of the crime charged in Count Two because the victim was less than
eighteen years old, and Appellant was the victim’s guardian or step-grandparent.2 Moreover,
Appellant has failed to demonstrate that an amendment would have created an unfair surprise
or prevented him from preparing an adequate defense. Appellant knew before trial that the
State intended to offer evidence that he was Q.A.’s guardian and step-grandparent because
the felony information alleged that he was both. See, e.g., Madewell v. State, 290 Ark. 580,
582–83, 720 S.W.2d 913, 914–15 (1986) (holding that trial counsel was not ineffective in
failing to object when the information charged appellant with three counts of aggravated
robbery, a Class Y felony, but the prosecutor listed the statute for robbery, a Class B felony);
Andrews v. State, 265 Ark. 390, 404, 578 S.W.2d 585, 592 (1979) (holding that listing the
wrong statutory subsection in the felony information was harmless error when (1) it was
apparent that the mistake was a typing error, (2) the trial court correctly stated the substance
of the charge when instructing the jury, and (3) there was no showing by the appellant that
he was in any way prejudiced by the mistake in the information); Ridgeway v. State, 251 Ark.
157, 158–59, 472 S.W.2d 108, 109 (1971) (rejecting appellant’s argument that there was a
2
Pursuant to Arkansas Code Annotated section 5-14-103(a)(4)(A), a person commits
rape if he or she engages in sexual intercourse or deviate sexual activity with another person
who is less than eighteen years of age and the actor is the victim’s (i) guardian, (ii) uncle,
aunt, grandparent, step-grandparent, or grandparent by adoption; (iii) brother or sister of the
whole or half blood or by adoption; or (iv) nephew, niece, or first cousin.
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fatal variance between an information and the proof entitling him to a directed verdict when
the information charging him with assault with the intent to kill asserted that the assault had
been made with a deadly weapon, namely, a knife, but the State’s proof at trial was that
appellant shot the victim with a pistol, because appellant did not plead surprise and if
appellant had objected, the defect in the information could readily have been corrected).
Even assuming that counsel erred in failing to object to the language in the information,
Appellant has failed to show that counsel’s error prejudiced the defense to the extent that
there is a reasonable probability that, but for counsel’s error, the jury would have had a
reasonable doubt respecting his guilt.3
In addition, we find no merit in Appellant’s argument that he was entitled to an
evidentiary hearing to “explore” whether the State would have amended the charge in
response to an objection from trial counsel and because it “may well be discovered that trial
counsel was unaware of the defect and would have approached the trial completely
differently had trial counsel not have overlooked the error.” This court will not grant an
evidentiary hearing on an allegation that is not supported by specific facts from which it can
be concluded that the petitioner suffered some actual prejudice. E.g., Whitmore v. State, 299
Ark. 55, 66, 771 S.W.2d 266, 271 (1989). To the extent that Appellant argues that a hearing
3
We note that Appellant also contends that trial counsel was ineffective in failing to
object to the jury’s consideration of evidence that he was Q.A.’s step-grandparent, “despite
the fact that he could not be guilty of rape as a step-grandparent under the provision he was
charged with.” Although raised in Appellant’s petition, the circuit court’s order denying
relief does not contain a ruling on this claim. It is the appellant’s obligation to obtain a ruling
on any omitted issues in order to preserve those issues for appeal. E.g., Beshears v. State, 340
Ark. 70, 72–73, 8 S.W.3d 32, 34 (2000).
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should have been held to bolster the conclusory allegations contained in his petition, the
strong presumption in favor of counsel’s effectiveness cannot be overcome by a mere
possibility that a hearing might produce evidence to support an allegation contained in a
petition for postconviction relief. E.g., Hickey v. State, 2013 Ark. 237, at 7, ___ S.W.3d ___,
___ (per curiam). In sum, the circuit court did not clearly err in rejecting without a hearing
Appellant’s claim that trial counsel was ineffective for failing to object to defective charging
language and jury instructions.
Appellant next contends that the circuit court clearly erred in rejecting without a
hearing his claim that trial counsel was ineffective for failing to adequately investigate and
utilize evidence of a third party’s semen found on the victim’s pants. North Little Rock
Police Detective Julie Rose testified at trial that she took Q.A.’s initial statement that led to
the rape charges against Appellant. Q.A. testified that she thought a pair of ROTC pants she
was wearing during one of the assaults might have Appellant’s DNA on them because
something that “[c]omes out of him got on the pants on the bed.” Rose testified that a pair
of ROTC pants and other clothing were brought to her by Q.A.’s mother. Rose then
submitted the clothing to the Arkansas State Crime Laboratory for testing. Forensic serologist
Tonia Silas testified that she examined the clothing submitted for testing and that she
discovered semen on the ROTC pants. Forensic DNA examiner Mary Simonson compared
the DNA from the semen found on the ROTC pants with Appellant’s DNA. Simonson
testified that after she compared the DNA samples, she excluded Appellant as a contributor
of the DNA found on the ROTC pants.
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In his petition for postconviction relief, Appellant contended:
Although trial counsel reached a stipulation to introduce the results of the test, she
failed to fully investigate and introduce evidence related to the circumstances related
to this discovery which was pivotal to the motivation and the credibility of the alleged
victim and an explanation for the victim’s alleged “disclosure” that the Defendant had
engaged in sexual intercourse with her.
As this case fell squarely upon the testimony of the alleged victim, her
credibility was a pivotal matter. Trial counsel’s failure to fully investigate and
introduce evidence on her reasons and motivations and explanation for the semen
found upon her pants was ineffective and prejudiced the Defendant by depriving the
jury of information relevant to their credibility assessment.
In rejecting this claim, the circuit court made the following findings:
The defendant does not state what use could or should have been made of this
evidence by defendant’s trial counsel, other than referencing the victim’s credibility
and her “reasons and motivations and explanation for the semen found upon her
pants.”
Evidence was put before the jury of the existence of semen found on the
victim’s clothing which was not that of the defendant. The allegation that trial counsel
was ineffective in her use of this evidence is a conclusory allegation. Furthermore,
there is no showing that there was any additional evidence available regarding the
circumstances of how the semen got on the pants, or that any such evidence or
testimony would have been admissible even had it existed. The determination of what
use to make of the evidence and testimony regarding the testing of the ROTC pants
was a matter of trial tactics and strategy, and the defendant has not demonstrated
ineffective assistance in this regard.
On appeal, Appellant asserts that “[t]he issues of who produced the semen, when it
was produced, how it arrived there, and possible lies regarding [it] being [Appellant’s] semen
were never probed by trial counsel.” He further asserts that he “was entitled to a hearing on
the failure to fully investigate and utilize this information.” When a petitioner alleges
ineffective assistance of counsel for failure to perform adequate investigation, he or she must
delineate the actual prejudice that arose from the failure to investigate and demonstrate a
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reasonable probability that the information that would have been uncovered with further
investigation could have changed the trial outcome. E.g., Mason v. State, 2013 Ark. 492, at
8, ___ S.W.3d ___, ___. The burden is entirely on the petitioner to provide facts that
affirmatively support his or her claims of prejudice; neither conclusory statements nor
allegations without factual substantiation are sufficient to overcome the presumption that
counsel was effective, and such statements and allegations will not warrant granting
postconviction relief. E.g., Bryant v. State, 2013 Ark. 305, at 9–10, ___ S.W.3d ___, ___ (per
curiam). In this case, the jury was made aware, through the testimony of Simonson, that the
DNA extracted from the semen found on Q.A.’s pants did not match Appellant’s DNA.
Appellant fails to delineate the actual prejudice that arose as a result of trial counsel’s alleged
ineffectiveness, and his bare assertion of prejudice is a conclusory allegation that cannot form
the basis of relief. E.g., Eastin v. State, 2010 Ark. 275, at 4.
Finally, Appellant has failed to demonstrate that he was entitled to a hearing on his
failure-to-investigate claim. There is no requirement that the court grant an evidentiary
hearing on an allegation other than one of specific facts from which it can be concluded that
the petitioner suffered some actual prejudice. E.g., Preston v. State, 306 Ark. 408, 410, 815
S.W.2d 389, 390 (1991). Furthermore, the supporting facts must appear in the petition, and
the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a
hearing is held. Id., 815 S.W.2d at 390. Postconviction relief is not available to the petitioner
who wishes to have a hearing in the hopes of finding some ground for relief. E.g., Hayes v.
State, 280 Ark. 509, 509–C, 660 S.W.2d 648, 651 (1983). The circuit court did not clearly
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err in rejecting without a hearing Appellant’s claim that trial counsel was ineffective for
failing to adequately investigate and utilize evidence of a third party’s semen found on the
victim’s pants.
Affirmed.
James Law Firm, by: Lee D. Short, for appellant.
Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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