Dixon v. State

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                   SUPREME COURT OF ARKANSAS
                                           No.   CR-12-421

KEVIN DIXON                                           Opinion Delivered February 27, 2014
                                  APPELLANT
                                                      PRO SE APPEAL FROM THE MILLER
V.                                                    COUNTY CIRCUIT COURT
                                                      [NO. 46CR-09-392]

STATE OF ARKANSAS                                     HONORABLE KIRK D. JOHNSON,
                                    APPELLEE          JUDGE

                                                      AFFIRMED.


                                           PER CURIAM

       In 2010, appellant Kevin Dixon was found guilty by a jury in the Miller County Circuit

Court of capital felony murder, with aggravated robbery as the underlying felony, and sentenced

to life imprisonment without the possibility of parole. This court affirmed. Dixon v. State, 

, 

. Appellant subsequently filed in the trial court a timely, verified pro

se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1

(2010), alleging that he was denied effective assistance of counsel at trial. The trial court denied

the petition without a hearing,1 and appellant timely lodged this appeal. Our jurisdiction is

pursuant to Rule 37 and Arkansas Supreme Court Rule 1-2(a)(8) (2014).

       This court does not reverse a decision granting or denying postconviction relief unless

       1
         Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should
be held in postconviction proceedings unless the files and record of the case conclusively show
that the prisoner is entitled to no relief. Eason v. State, 

 (per curiam); Hayes v. State,

, 

 (per curiam). When the circuit court dismisses a Rule 37.1
petition without an evidentiary hearing, it “shall make written findings to that effect, specifying
any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark. R.
Crim. P. 37.3(a); see Eason, 

. In the instant case, the trial court’s order denying
postconviction relief complies with the requirements of Rule 37.3.
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the trial court’s findings are clearly erroneous. Ellis v. State, 

 (per curiam); 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. Hickey v. State, 

, __ S.W.3d __ (per

curiam).

       A review of the petition and the order reveals no error in the trial court’s decision to deny

relief. 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

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



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

v. State, 

, 

; 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. 

“[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 the conclusory claims for the first time on

appeal that counsel did not provide effective assistance because he failed to “conduct an

adequate or thorough investigation of the facts surrounding the charge against him, including

possible defenses,” failed to “conduct an independent investigation of events before, during, or



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after the alleged murder and arrest,” and spent little time preparing for trial. In support of his

claims, appellant contends that counsel should have conducted an independent evaluation of

ballistic and forensic evidence and interviewed and called as witnesses the individuals named in

the police report. 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); Williams v. State, 

 (per curiam). Issues raised for the first time

on appeal are not grounds to reverse a trial court’s order. Green, 

; Williams, 

. Accordingly, we do not consider any argument raised by appellant for the first time

on appeal.

       The only contention raised in the first point on appeal that could potentially be construed

to have been raised in appellant’s Rule 37.1 petition below is the failure-to-investigate argument

as it relates to the State’s witness, Torin Smith. While appellant does not specifically identify

Smith in connection with his failure-to-investigate argument on appeal, he made the claim in his

petition that counsel was ineffective for failing to investigate and attack the credibility of Smith

based on the allegation that Smith testified on behalf of the State in exchange for a reduction of

the charge filed against him. To the extent that this issue has been sufficiently raised for review

by this court, the trial court did not clearly err in finding that appellant is not entitled to relief

based on any failure of counsel to investigate or attack the credibility of Smith. The record is

replete with evidence that counsel attempted to challenge Smith’s credibility, and appellant fails

to state how any further investigation of Smith would have been fruitful.

       At trial, Smith, who was incarcerated with appellant at the Miller County jail where they



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shared the same pod, testified that appellant had confessed to him that he had robbed and killed

the victim. Smith’s testimony included details regarding appellant’s commission of the crime

that, according to Smith’s testimony, appellant related to him while they were both in jail. A

detective involved in investigating the murder testified that the information furnished by Smith

as to what appellant had stated could only have been known by someone who was involved in

the murder of the victim. On direct examination, Smith testified that he had a pending theft

charge and that he had not been promised anything in exchange for his testimony. Both on

cross-examination and in closing arguments, counsel attempted to discredit Smith’s testimony

based on an expectation of being rewarded for his testimony. In addition, counsel called a

witness to attack Smith’s credibility. Thus, we agree with the trial court that the record does not

support appellant’s claim that counsel failed to challenge Smith’s credibility.

       Appellant’s allegation that counsel was ineffective based on the failure to investigate

whether Smith testified for the State in exchange for a reduction of the charge filed against him

is also without merit. Counsel has a duty to make a reasonable investigation or to make a

reasonable decision that makes particular investigations unnecessary; but, where a petitioner

under Rule 37.1 alleges ineffective assistance for failure to perform adequate investigation, he

must delineate the actual prejudice that arose from the failure to investigate and demonstrate a

reasonable probability that the specific materials that would have been uncovered with further

investigation could have changed the trial outcome. Bryant v. State, 

, __ S.W.3d

__ (per curiam). The burden is entirely on the claimant to provide facts that affirmatively

support his or her claims of prejudice; neither conclusory statements nor allegations without



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factual substantiation are sufficient to overcome the presumption that counsel was effective, and

such statements and allegations will not warrant granting postconviction relief. Abernathy v. State,

, 

 (per curiam). Here, appellant’s argument is limited to conclusory

allegations, and he fails to provide any facts to support his claim or show how further

investigation would have been fruitful.

       In his second point on appeal, appellant again makes a number of conclusory and

disjointed claims for the first time on appeal. As we have stated, arguments raised for the first

on appeal could not have been considered by the trial court and will not be addressed by this

court. Green, 

; Williams, 

. Moreover, an entirely conclusory claim

is not a ground for postconviction relief. Nelson v. State, 

 (per curiam).

       To the extent that two of the arguments raised by appellant in his second point on appeal

can possibly be construed to have been argued below, the trial court was not clearly erroneous

in denying relief. First, appellant summarily states on appeal that counsel failed to challenge the

admissibility of statements made by Felicia Robertson to police officers. In his Rule 37.1

petition, appellant argued that counsel failed to challenge the admissibility of oral and written

statements that Robertson made to Detective Paul Nall as hearsay. However, at trial, counsel

objected to the State’s examination of Detective Nall regarding the statements made to him by

Robertson on the basis that the testimony was hearsay. The trial court overruled the objection,

and the issue was raised on direct appeal. On appeal, we held that we did not need to decide

whether Detective Nall’s testimony was hearsay because any error in its admission was harmless

due to the availability of Robertson for cross-examination. Dixon, 

, 

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164. Thus, as found by the trial court, the record does not support the argument of counsel, and

the law-of-the-case doctrine bars consideration of the claim.2 See Strong v. Hobbs, 

(per curiam) (explaining that, where the merits of a claim were addressed and adjudicated in a

prior appellate decision, that issue is settled and may not be revisited in a subsequent appeal).

Next, appellant states on appeal that “counsel did not set any specific ground rules with the

Prosecutor for evaluating the worth of any statements” made in the case or initiate discussions

with the prosecutor about reducing the capital-murder charge if appellant were to make a

statement. In his petition, appellant argued that counsel did not “promptly” negotiate with the

prosecutor and convince him not to seek the sentence of life without parole.3 To the extent that

appellant has stated a claim on appeal that was raised below as to any ineffectiveness of counsel



       2
         In his second point on appeal, appellant also vaguely contends that counsel failed to
challenge the admissibility of the statements of other named witnesses to police officers. The
only one of these other claims that could possibly be construed to have been raised below
involved Smith and alleged hearsay evidence based on a brief statement in the petition. In the
petition, appellant stated that counsel failed to adequately protect his rights pertaining to the
admission of witness Smith’s “uncorroborated hearsay testimony . . . [when] Smith had every
reason to lie to the police to have his charges reduced or dismissed.” Appellant does not seem
to be attempting to make the same argument on appeal as he did below in his petition with
regard to the alleged admission of Smith’s statement, as necessary for this court to review the
argument. In any event, such a conclusory claim is not a ground for relief. A petitioner seeking
postconviction relief on a claim of ineffective assistance that is based on the failure of counsel
to make a motion or objection must show that counsel could have made a successful argument
in order to demonstrate the prejudice required under the Strickland test. Hogan v. State, 

 (per curiam) (citing Lowe v. State, 

, __ S.W.3d __ (per curiam)). Failure to
make a meritless objection or motion does not constitute ineffective assistance of counsel.
Greene v. State, 

, 

 (2004).
       3
          The punishment for capital murder is death or life imprisonment without parole. 

 (Supp. 2009). At a pretrial hearing, the prosecuting attorney informed
the trial court that the State was waiving the death penalty based on a lack of sufficient evidence
to establish the necessary aggravating circumstances.

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based on error relating to plea negotiations, the trial court was not clearly erroneous in denying

relief on this basis. The decision whether to enter into plea negotiations is a matter of strategy

beyond the purview of postconviction relief. Jones v. State, 

, 

 (1992).

Furthermore, appellant failed to factually support his claim that there was any attorney error to

justify relief in dealing with plea negotiations. As found by the trial court, appellant has not

shown how he was prejudiced in the plea negotiations or made any plausible suggestion as to

what actions counsel could have taken to convince the prosecuting attorney to reduce the charge

of capital murder to a lesser-included offense.

       In his third point on appeal, appellant contends that counsel was ineffective for failing

to obtain a ruling on his objection to evidence of appellant’s drug activity based on Arkansas

Rule of Evidence 403 (2010). In order to demonstrate prejudice for a claim that counsel was

ineffective for failing to preserve an argument for appeal, a claimant must necessarily show that

the argument would have been successful. Croy v. State, 

, 

 (per

curiam). Trial counsel cannot be ineffective for failing to make an objection or argument that

is without merit. 

 Here, appellant did not demonstrate that counsel could have successfully

challenged the admission of the evidence on appeal based on a Rule 403 argument.

       At trial, based on Arkansas Rule of Evidence 403 and 404(b) (2010), appellant objected

to the testimony of two police detectives and Smith regarding appellant’s admission that he sold

drugs. The trial court denied the motion on the basis that testimony regarding appellant’s drug

activity was part of the circumstances of the crime, and it ruled that any testimony regarding

appellant’s drug activities was limited to the particular time frame surrounding the death of the



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victim. On appeal, we affirmed the ruling of the trial court because the testimony was admissible

under the res gestae exception to Rule 404(b) to establish the facts and circumstances

surrounding the alleged commission of the offense. We further held that, because the Rule 403

argument was not preserved, we would not address that argument. Dixon, 

, 

.

       Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” Ark. R. Evid. 403. The balancing mandated by Rule 403 is a matter

left to the trial court’s sound discretion, and an appellate court will not reverse the trial court’s

ruling absent a showing of manifest abuse. Lard v. State, 

, __ S.W.3d __ . Abuse of

discretion is a high threshold that does not simply require error in the trial court’s decision, but

requires that the trial court act improvidently, thoughtlessly, or without due consideration. 

This court has noted that evidence offered by the State is often likely to be prejudicial to the

accused, but the evidence should not be excluded unless the accused can show that it lacks

probative value in view of the risk of unfair prejudice. Chunestudy v. State, 

, 

. In affirming the trial court’s finding on direct appeal that the testimony was

admissible pursuant to Rule 404(b), we reasoned that the testimony regarding drug activity

explained the scope and nature of the interactions between appellant and the victim. Based on

this reasoning, we conclude that, in fact, even if the argument had been preserved, the evidence

was highly probative for purposes of a Rule 403 analysis, and appellant fails to show that he



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could have prevailed on appeal based on an argument that such probative value was substantially

outweighed by any danger of unfair prejudice.

       Affirmed.

       Kevin Dixon, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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