Boatwright v. State

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                  SUPREME COURT OF ARKANSAS
                                       No.   CR-12-207

CHARLES ALVIN BOATRIGHT                           Opinion Delivered   February 13, 2014
                    APPELLANT
                                                  PRO SE APPEAL FROM THE
V.                                                MADISON COUNTY CIRCUIT COURT
                                                  [NO. 44CR-09-77]

STATE OF ARKANSAS                                 HONORABLE WILLIAM A. STOREY,
                                 APPELLEE         JUDGE

                                                  AFFIRMED.


                                        PER CURIAM


       In 2010, appellant Charles Alvin Boatright was found guilty by a jury of one count of

rape and ten counts of possessing matter depicting sexually explicit conduct involving a child.

He was sentenced to 480 months’ imprisonment for the rape conviction and 60 months’

imprisonment for each count of possessing child pornography. The trial court ordered the

sentence for the rape conviction to be served consecutively with two of the child-pornography

convictions and concurrently with the remaining convictions, resulting in an aggregate sentence

of 600 months’ imprisonment. The Arkansas Court of Appeals affirmed. Boatright v. State, 

, 

.

       At trial, Officer Russell Alberts of the Madison County Sheriff’s Office testified that,

after receiving a report involving the molestation of a child by appellant and interviewing the

victim, he obtained a search warrant to search the house where appellant lived with his sister

based on information that the rape may have been recorded. He stated that, during the search,

CDs containing child pornography were discovered in appellant’s bedroom. The rape victim,
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who was eleven years old at the time of the trial, testified that appellant put his tongue in her

vagina when she was five or six years old. Appellant, who had previously given a statement

confessing that he had “rubbed [the victim], maybe a little, with my finger” and that he owned

the CDs with child pornography, denied committing any act against the victim or owning the

CDs. Boatright, 

, 

. Appellant’s sole argument for reversal on

direct appeal was that the trial court improperly denied him the right to fully develop his defense

that someone planted the offending CDs in his room. He contended that he was prevented on

a number of occasions from developing evidence that his family had a financially motivated

vendetta against him. 

 Affirming the trial court’s finding that the evidence was not relevant,

the court of appeals held that the issue of whether the CDs had been planted was too removed

from the issue of appellant’s guilt to be relevant and that there was nothing to substantiate

appellant’s theory that the CDs had been planted. The court further held that any error would

have been harmless because the evidence that appellant knowingly possessed the CDs containing

child pornography was overwhelming. 

       After the court of appeals affirmed the judgment-and-commitment order, appellant filed

in the trial court a timely pro se petition for postconviction relief pursuant to Arkansas Rule of

Criminal Procedure 37.1 (2010). Following a hearing, the trial court denied and dismissed the

petition, addressing each of appellant’s claims of ineffective assistance of counsel. As to

appellant’s claim that he was entitled to relief based on the deputy prosecuting attorney’s failure

to disqualify himself from the case, the trial court found that the deputy prosecuting attorney’s

representation of appellant’s mother’s estate was unrelated to the case and did not constitute a



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conflict of interest or prejudice to appellant.1

       The grounds advanced by appellant for reversal consist of a series of allegations that he

was not afforded effective assistance of counsel.2 This court has held that it will reverse the

circuit court’s decision granting or denying postconviction relief only when that decision is

clearly erroneous. Pankau v. State, 

; Banks v. State, 

. 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. Sartin v. State, 

, ___ S.W.3d ___.

       When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on

ineffective assistance of counsel, the sole question presented is whether, based on a totality of

the evidence under the standard set forth by the United States Supreme Court in Strickland v.

Washington, 

 (1984), the trial court clearly erred in holding that counsel’s

performance was not ineffective. Taylor v. State, 

, ___ S.W.3d ___.

       The benchmark for judging a claim of ineffective assistance of counsel must be “whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Strickland, 

. Pursuant to



       1
         The reference in the trial court’s order to the deputy prosecuting attorney representing
appellant’s mother’s estate appears to be a misstatement. In both appellant’s Rule 37.1 petition
and at the hearing, appellant’s claim was that the deputy prosecuting attorney had a conflict of
interest because he had represented appellant’s father, specifically that he had prepared a will for
appellant’s father, who died in 2004.
       2
         All arguments made below but not raised on appeal are abandoned. Abernathy v. State,

, 

 (per curiam); Shipman v. State, 

 (per curiam) (citing
State v. Grisby, 

, 

 (2007)).
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Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner

raising a claim of ineffective assistance must show that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment

to the United States Constitution. Williams v. State, 

, 

 (2007). There

is a strong presumption that trial counsel’s conduct falls within the wide range of professional

assistance, and an appellant has the burden of overcoming this presumption by identifying

specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the

time of the trial, could not have been the result of reasonable professional judgment. Henington

v. State, 

, ___ S.W.3d ___; McCraney v. State, 

, 

 (per

curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced

petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 

, ___

S.W.3d ___. A petitioner making an ineffective-assistance-of-counsel claim must show that his

counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State,

, 

 (per curiam). 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, i.e., the decision reached would have been different absent the errors. Howard

v. State, 

, 

 (2006). A reasonable probability is a probability sufficient

to undermine confidence in the outcome of the trial. 

 The language, “the outcome of the

trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in

sentencing. 

 Unless a petitioner makes both showings, it cannot be said that the conviction

resulted from a breakdown in the adversarial process that renders the result unreliable. 

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“[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.” Strickland,

.

       In his first point on appeal, appellant makes a number of conclusory claims, namely that

counsel did not conduct an adequate or thorough investigation of the facts surrounding the

charges filed against him; did not conduct an independent investigation of “the events before,

during or after the rape” or the search of his house and arrest; and did not obtain information

or investigate any mitigating facts. In support of these claims, appellant contends that counsel

was ineffective based on the failure to file a motion to suppress CDs and DVDs containing child

pornography found at his home. He argues that a motion to suppress this evidence would have

been meritorious based on his claim that the search warrant was defective because it did not

include his name.3 Appellant also attempts to support his claims with the contention that

counsel was deficient in failing to interview or call witnesses who had knowledge of the events

giving rise to the charges against him and information regarding his character and social history.

       The majority of appellant’s claims are conclusory or lack any substantiating facts to show

prejudice, and he does not show that further investigation would have been fruitful. See Daniels

v. State, 

 (per curiam). Conclusory allegations unsupported by factual information


       3
         In an apparent attempt to further support his argument that counsel was ineffective for
failing to file a motion to suppress, appellant also makes several other allegations for the first
time on appeal that he contends would have supported the motion. Because arguments raised
for the first time on appeal could not have been considered by the trial court, they will not be
addressed by this court. Green v. State, 

 (per curiam). Issues raised for the first
time on appeal are not grounds to reverse a trial court’s order. Williams v. State, 

(per curiam). Accordingly, we do not consider any argument raised by appellant for the first
time on appeal.
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of counsel’s ineffectiveness do not provide a basis for postconviction relief. Garcia v. State, 

 (per curiam); Bond v. State, 

, __ S.W.3d __ (per curiam).

        Moreover, appellant’s claims are not supported by the evidence presented at the Rule

37.1 hearing. While appellant contends that counsel was ineffective for not filing a motion to

suppress based on the validity of the search warrant, he does not show that counsel could have

made any meritorious argument in support of such a motion. Failure to make a meritless

objection does not constitute ineffective assistance of counsel. Moten v. State, 

 (per

curiam). The warrant describes the place to be searched and the things to be seized, as required

by Arkansas Rule of Criminal Procedure 13.1(b) (2009). The Rule does not require that a

person’s name be included on the warrant, as claimed by appellant. See 

       As to counsel’s alleged failure to interview or call witnesses, counsel testified at the Rule

37.1 hearing that he did contact potential defense witnesses and that they were all hostile toward

appellant. We have stated that the decision of trial counsel to call a witness is generally a matter

of trial strategy that is outside the purview of Rule 37.1. Banks, 

. Trial counsel

must use his or her best judgment to determine which witnesses will be beneficial to the client.

 Nonetheless, such strategic decisions must still be supported by reasonable professional

judgment. 

 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,

; Stevenson v. State, 

 (per curiam) (citing Hogan v. State, 

(per curiam)). Appellant fails to substantiate his claim that counsel was ineffective based on the



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failure to interview or call any witness. Moreover, he does not name any particular individual

that counsel should have interviewed or called as a witness or what information a particular

witness may have provided.

       Appellant next contends that he received ineffective assistance because counsel did not

spend sufficient time discussing the case and developing trial strategy with him. Appellant does

not show that there was a different and more successful strategy that counsel could have

adopted.4 As stated herein, conclusory allegations not supported by factual information do not

provide a basis for relief. Garcia, 

; Bond, 

, __ S.W.3d __. Moreover,

counsel testified that he met with appellant on 15-20 occasions and that he investigated every

defense that appellant proposed. He further stated that appellant’s decisions to testify on his

own behalf and to refuse a plea offer were against his advice. Appellant conceded that counsel

met with him numerous times and put “a lot of time in on his case.”

       Appellant’s final argument on appeal is unclear, but he appears to contend that counsel

was ineffective for failing to investigate an alleged conflict of interest of the deputy prosecuting

attorney based on the attorney’s representation of appellant’s family in probate matters and his

knowledge of the hostility between appellant and his sister.5 However, in his petition and at the


       4
        In an apparent attempt to argue that counsel was ineffective in failing to raise the issue,
appellant states in his reply brief that, according to the lab report, there was no child
pornography found on the CDs/DVDs. Appellant does not raise this argument in his brief-inchief, and the report from the State Crime Lab clearly states that images consistent with child
pornography were found on the CDs. See Tavron v. State, 

 (per curiam) (An issue
may not be raised for the first time in a reply brief.).
       5
         Appellant also contends for the first time on appeal that counsel was ineffective for
failing to investigate and introduce evidence of his troubled relationship with his family and their
fabrication of the events giving rise to the charges filed against him. As stated herein, because
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Rule 37.1 hearing, appellant’s argument was that he was entitled to relief due to the deputy

prosecuting attorney’s failure to disqualify himself from the case based on the attorney’s

preparation of appellant’s father’s will several years ago. To the extent that appellant is arguing

on appeal that he received ineffective assistance based on the failure to investigate the alleged

conflict of interest, this conclusory allegation was not contained in appellant’s verified Rule 37.1

petition or supported by any evidence presented at the hearing, and it will not be considered for

the first time on appeal. See Green, 

. In fact, counsel testified that he was aware

that appellant claimed a conflict of interest of the prosecuting attorney and that, in his

professional judgment, he did not believe that there was any conflict. To the extent that

appellant is raising the argument on appeal that the deputy prosecuting attorney erred in failing

to disqualify himself from the case, this contention is not a claim that is cognizable in a Rule 37.1

proceeding. See Meek v. State, 

 (per curiam) (holding that claims of prosecutorial

misconduct are claims of trial error and are not cognizable in a Rule 37.1 petition).

       Affirmed.

       Charles Alvin Boatwright, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.



arguments raised for the first time on appeal could not have been considered by the trial court,
they will not be addressed by this court. Green, 

. We also recognize that the court
of appeals addressed a similar argument on direct appeal. On direct appeal, appellant argued
that the trial court prevented him from developing evidence that his family had a financially
motivated vendetta against him and that they planted the offending CDs in his bedroom. The
court of appeals affirmed the trial court’s finding that the evidence was not relevant, and it
further held that any error was harmless due to the overwhelming evidence that appellant
knowingly possessed the CDs containing child pornography. Boatright, 

, 

.
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