Montgomery v. State

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SUPREME COURT OF ARKANSAS
No. CR-12-1129
JAMES E. MONTGOMERY Opinion Delivered March 20, 2014
APPELLANT
APPEAL FROM THE GREENE
V. COUNTY CIRCUIT COURT
[NO. CR-08-129]
STATE OF ARKANSAS HONORABLE BARBARA HALSEY,
APPELLEE JUDGE
REVERSED AND REMANDED.
PAUL E. DANIELSON, Associate Justice
Appellant James Montgomery appeals from the order of the circuit court denying his
petition for postconviction relief that he filed pursuant to Arkansas Rule of Criminal
Procedure 37.1 (2010). Montgomery was convicted for the rape of his granddaughter, K.M.,
who at the time was six years old. He was sentenced to twenty-five years’ imprisonment in
the Arkansas Department of Correction; the court of appeals affirmed his conviction and
sentence. See Montgomery v. State, 2010 Ark. App. 501 (Montgomery I). Following his appeal,
Montgomery filed a timely petition for postconviction relief, which the circuit court denied
without holding a hearing. Montgomery appealed the circuit court’s order of denial, and this
court affirmed in part and reversed and remanded in part for a hearing because it was not
apparent from the face of the petition or the record that Montgomery was not entitled to
relief on some of his claims. See Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189
(Montgomery II). In accord with our mandate, the circuit court held a hearing on those Rule
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37 claims of Montgomery’s specified in our opinion and entered its order denying him relief.
Montgomery now appeals that order and asserts two points on appeal: (1) that the circuit
court erred in its finding that his trial counsel did not render ineffective assistance of counsel
when counsel failed to object to various witnesses’ testimony that he claimed improperly
bolstered the child victim’s credibility, and (2) that the circuit court erred in its finding that
his trial counsel was not ineffective for failing to object to inadmissible testimony regarding
the behaviors of child sexual-abuse victims. We reverse and remand for a new trial.
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, ___ S.W.3d ___. 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 (1984). 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
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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
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.
For his first point on appeal, Montgomery argues that the circuit court erred in failing
to find his trial counsel, Mark Rees, ineffective, because Mr. Rees failed to object to
testimony that Montgomery contends served to improperly bolster the credibility of the child
victim. Montgomery claims that he was prejudiced by the repeated, improper and
inadmissible opinions on the child’s credibility in that the case against him relied almost solely
on the credibility of the child victim. Montgomery challenges the circuit court’s findings
with respect to several witnesses. We conclude that Montgomery was prejudiced by his trial
counsel’s failure to object to certain testimony by Trish Smith, and it is on this basis that we
reverse and remand for a new trial.
Here, Montgomery challenges the trial testimony of Trish Smith, a social worker at
Arkansas Children’s Hospital, who was questioned about the allegations by K.M. that
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Montgomery’s inappropriate touching of her took place while K.M. and Montgomery were
under a blanket watching television, with K.M.’s grandmother sitting on the other side of
Montgomery:
PROSECUTOR: Well, let me ask you, Trish, based upon your experience in
dealing with victims of sexual abuse and [K.M.] is telling you a
scenario about how it’s her, it’s the alleged perpetrator, and then
this other lady. Is that believable? Is that plausible on any other
cases that you’ve ever worked that involved digital penetration
or any type of sexual abuse?
MS. SMITH: Well, it doesn’t require a whole lot of motion or even necessarily to
take her clothes off. He could have been reaching inside of her pajamas
or her panties without disturbing anything else while you’re watching
TV.
PROSECUTOR: Anything about the incident that she describes about that
occurring, anything to cause you to believe that, that is not real,
that could not have happened just because of another person
being in possible close proximity?
MS. SMITH: No. And I don’t know that grandmother was awake, I mean, that she
was present. She could have fallen asleep. I don’t know. And I don’t
know that [K.M.] knew.
He also takes issue with Ms. Smith being questioned regarding her thoughts on whether
K.M.’s mother, Vonda Montgomery, had coerced K.M. into making the allegations against
him:
PROSECUTOR: Based upon your conversation that you had with the mother, do
you feel that she in any way coerced the child into the statements
that she made to you?
MS. SMITH: No. I don’t think she did and [K.M.] didn’t act like this was anything
that was coerced at all.
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Montgomery asserted that Mr. Rees should have objected in each instance.1 At the
Rule 37 hearing, Mr. Rees acknowledged that there was “probably some opinion [testimony]
in there” about both the credibility of the accusations and “how people generally respond in
child abuse cases.” He testified that, at the time, he was under the assumption that Ms. Smith
could testify “to her opinion and to what the child told her” pursuant to a pretrial ruling by
the circuit court. He admitted that he did not object to the testimony. In addition, Mr. Rees
testified that he did not know if “opinion evidence of coercion” was admissible. In its order,
the circuit court found that Mr. Rees’s failure to object to Ms. Smith’s testimony on the basis
that it went to K.M.’s credibility was a matter of trial strategy.
In order to demonstrate prejudice for a failure to object, Montgomery must have
submitted facts to support the proposition that Mr. Rees could have raised a specific,
meritorious argument and that failing to raise that specific argument would not have been a
decision supported by reasonable professional judgment. See, e.g., Lambert v. State, 2012 Ark.
150 (per curiam). Relying on the decisions of this court in Buford v. State, 368 Ark. 87, 243
S.W.3d 300 (2006); Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000); and Logan v.
State, 299 Ark. 255, 773 S.W.2d 419 (1989), Montgomery claims that this court has deemed
inadmissible any testimony by a witness that expresses an opinion on the truthfulness of other
testimony, such as the testimony by Ms. Smith.
This court has consistently recognized that an expert’s or a witness’s testimony opining
1
We note that while Mr. Rees received assistance from another attorney with
Montgomery’s case, Mr. Rees served as lead counsel, and Montgomery’s allegations of
ineffective assistance are directed toward Mr. Rees’s representation only.
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or directly commenting on the truthfulness of a victim’s statement or testimony is generally
inadmissible. See, e.g., Keck v. State, 2012 Ark. 145; Buford, 368 Ark. 87, 243 S.W.3d 300;
Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Logan, 299 Ark. 255, 773 S.W.2d 419.
See also Purdie v. State, 2010 Ark. App. 658, 379 S.W.3d 541; Cox v. State, 93 Ark. App. 419,
220 S.W.3d 231 (2005). The rationale behind this rule is that such testimony invades the
province of the jury. See, e.g., Buford, 368 Ark. 87, 243 S.W.3d 300. Indeed, the jury alone
determines the credibility of the witnesses and apportions the weight to be given to the
evidence. See id.
At first blush, Ms. Smith’s testimony regarding K.M.’s allegations might not appear to
directly comment on K.M.’s credibility or truthfulness; however, a closer inspection reveals
that her testimony not only conveys Ms. Smith’s opinion that K.M.’s version of events was
conceivable or possible, but that K.M.’s allegations were believable as well. In other words,
the “essence” of Ms. Smith’s testimony is that she thought that K.M. was telling the truth.
E.g., Logan, 299 Ark. at 257, 773 S.W.2d at 420 (holding that it was clear from the
hypotheticals posed to the doctor-witnesses that the doctors were informing the jury of their
opinions that the victim was telling the truth). Similarly, Ms. Smith’s testimony that she did
not believe K.M. had been coerced by her mother can only be considered an opinion
pertaining to K.M.’s credibility.
In light of our precedent, it is clear to this court that Mr. Rees could have raised a
specific, meritorious argument as to Ms. Smith’s testimony set forth above and that
Montgomery has therefore met the first requirement of Strickland by showing that Mr. Rees’s
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performance was deficient for failing to do so. Mr. Rees’s testimony at the Rule 37 hearing
makes evident that his failure to object was not a matter of trial strategy as the circuit court
found but was the result of his misunderstanding of the circuit court’s pretrial ruling regarding
Ms. Smith’s testimony and his incognizance of this court’s prior decisions. Simply put, Mr.
Rees’s failure to raise the specific, meritorious argument was not a decision supported by
reasonable professional judgment.
We further hold that Montgomery has also satisfied Strickland’s second requirement that
Mr. Rees’s deficient performance prejudiced Montgomery’s defense. We observed in
Montgomery II that Montgomery’s “case turned on the credibility of the child-victim.” 2011
Ark. 462, at 19, 385 S.W.3d at 203. See also Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391
(1987) (observing that the uncorroborated testimony of a child rape victim is sufficient
evidence to sustain a conviction). As such, we are compelled to conclude that, because Ms.
Smith’s testimony included her impermissible opinion on K.M.’s truthfulness and the
credibility of K.M.’s claims, there is a reasonable probability that the jury’s decision would
have been different absent Mr. Rees’s failure to object. Accordingly, it is on the basis of this
testimony by Ms. Smith that we reverse the circuit court’s order denying relief under Rule
37 and remand for a new trial.
While Montgomery asserts other instances in which he claims that his counsel’s
assistance was ineffective, we need not address the merits of those claims, as we have already
determined that Montgomery is entitled to a new trial on the foregoing basis. See, e.g.,
Rackley v. State, 2014 Ark. 39; Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996).
Reversed and remanded.
Jeff Rosenzweig, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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