Mason v. State

Steele Hays, Justice, dissenting. I believe this case should be affirmed. The trial judge obviously gave serious attention to these allegations of ineffective assistance. His written findings and conclusions dealt with the issues point by point and carefully noted the evidence pro and con. He explained his reasons for each finding in detail. It was he who presided over the trial and who heard the testimony at the Rule 37 hearing. His ability to judge the proof is unquestionably superior to ours and his findings on these disputed issues are not clearly erroneous. Thomas v. State, 277 Ark. 74 , 639 S.W.2d 353 (1982).

The majority opinion has cited the case law on ineffective assistance, which may be summarized by saying that no higher burden exists under the law than setting aside a criminal conviction based on ineffective assistance of counsel, and rightly so. These are serious charges and should not rest on inconsequential grounds. The appellant has compiled a long list of particulars against defense counsel. But the fact is, with one possible exception, the allegations appear more serious on the surface than, on closer inspection, they prove to be. In short, the Rule 37 petition, as well as the proof, produce a great deal of smoke but very little fire. Had it not been for trial counsel’s neglect of his duty to appeal so that the trial court had to remove him and appoint other counsel, I doubt the case would have given us much concern. But what happens after a trial is, after all, irrelevant to the issue of whether effective assistance has been rendered during the trial.

The majority opinion discusses only three of the allegations of ineffective assistance. From a dissenting point of view the others are notable for their lack of substance:

There is the charge that defense counsel was intoxicated and used drugs during the trial. These charges are admittedly groundless and the trial court so found. The sum and substance of the proof was that some of appellant’s family members said they smelled alcohol on counsel’s breath — once during a lunch break and once an hour after the trial had ended. The witnesses acknowledged the absence of any behavior consistent with intoxication and the trial judge commented that he detected nothing of the sort, even in close communication with counsel at bench conferences. The proof wholly failed to support the claim.

Appellant claims counsel advised him to give the police a statement before even talking with him. This charge was denied by the lawyer and the testimony of State Trooper Don Taylor refutes the contention. He said, “Well, I had been called down here to assist in the investigation and when I got to the jail they had — Mr. Mason had been arrested and he had requested an attorney before I interviewed him and sometime later his attorney showed up, and after he talked with his attorney I did take a statement from him in his attorney’s presence.”

Much is made of a particularly minor incident. Shortly after a noon recess counsel asked permission to go to the restroom. The trial judge estimated the interruption at two or three minutes and saw it as entirely insignificant. He was right.

There is the incident of the spectator saying, “No, sir” while a witness was being asked if Thurman Morse, the victim, had ever been in prison. The comment was not factually inaccurate, nor was it contradictory to the response given by the witness. The trial judge immediately instructed the spectators against any recurrence, and that was the end of it. To argue that it was ineffective assistance not to request a mistrial ignores the many times this court has said mistrials are an extreme and drastic remedy, to be granted only when prejudice is so manifest the trial cannot in justice continue. Combs v. State, 270 Ark. 496 , 606 S.W.2d 61 (1980). In this instance a motion for mistrial would have been a waste of time and perhaps tactically counterproductive.

One allegation is particularly disturbing — the accusation that defense counsel tried to convey to the jury the impression that appellant, his client, was lying on the witness stand. It is a wholesale distortion of the incident and brings no credit to those who make it. It is one thing to charge counsel with ineptness, but quite another thing to accuse him of a perfidious act toward his own client. While appellant was being cross-examined evidently defense counsel was nodding in agreement, at least the prosecutor perceived it that way and said, “Is your attorney nodding agreement?” The record itself makes it clear that appellant’s response was a denial of the implication that he was being coached, not an assertion that his lawyer was disagreeing with him:

Q. . . .Do. you reasonably — do you believe that the force that you used was tliat which is — was reasonably necessary under the circumstances to preserve your own life and the life of your loved ones?

A. Yes, T most certainly did.

Q. That is your testimony? Is your attorney nodding agreement?

A. No, he is not.

Q. Okay.

MR. LOWE (Defense counsel): Your Honor — well, I’ll withdraw my objection. I’m not testifying here.

MR. SANFORD: Well, you have.

THE COURT: Go ahead.

There is the allegation that counsel did not know the correct standard of proof in criminal cases because on voir dire he asked several jurors if they would require clear and convincing proof of guilt. There is no need to quote excerpts from the record, but nothing suggests counsel did not know the law on this basic point, familiar even to laymen. He may have phrased his question simply to impress on the jury the high standard of proof the state must meet in criminal cases.

There is the charge that counsel met with appellant and defense witnesses for only an hour preparing for trial. This is a frequent complaint in Rule 37 cases because no matter how much time the lawyer spends, the client thinks it was not enough. But the fact is it affords very little likelihood of relief under Rule 37 as there is no way to gauge how much time must be spent on a given case. Here, we need look no further than the finding of the trial court that defense counsel met with appellant and the witnesses in excess of four hours and was adequately prepared.

There is the charge that defense counsel would not call character witnesses for the appellant. The trial court found this decision was not prejudicial and in view of the fact the appellant had a criminal record I cannot say that finding was clearly erroneous.

Appellant claims counsel did not tell him when the trial was to be held. But the proof was undisputed that appellant and defense witnesses gathered with defense counsel at appellant’s home at what they repeatedly referred to as “The night before the trial.” Evidently they were referring to the first day of the trial. Be that as it may, it is improbable the defendant and his witnesses would have gathered at defendant’s home if they were not well aware of the trial and the Rule 37 petition itself alleges that counsel told appellant to come to court after the jury was selected.

There is the point that counsel filed a motion for discovery only the day before trial. But there was proof, to the trial court’s satisfaction, that the prosecutor applied an open file policy to this case which defense counsel took advantage of and that defense counsel had completed discovery when the motion was filed.

There is the charge that counsel was inept because on four occasions he excused prospective jurors by peremptory challenge without waiting to see whether the prospect was acceptable to the state. Again, without some showing that such minor departures had an adverse effect on the outcome, they do not meet the stringent requirements of establishing ineffective assistance. The trial court rejected this point with the comment that it was evident the prospects would not have been challenged by the state.

There is the charge that counsel did not call individuals to testify to previous violent acts by the victim, particularly Elbert Frazier, who testified at the Rule 37 hearing that the victim was known to be belligerent and prone to get in fights. But counsel testified he had never heard the name Elbert Frazier mentioned and Frazier said appellant’s family was not aware of his knowledge because he had never talked to them about it, nor did he know whether appellant’s lawyer was aware he was a potential witness.

Three allegations: (1) That counsel stipulated to the introduction of several items of evidence without appellant’s knowledge or consent, 2) that counsel did not know how to examine the appellant and tried to introduce his statement to the police instead of having appellant testify firsthand about the events, and 3) counsel did not know the state’s purpose in introducing appellant’s statement to the police, proving his ineffectiveness) were summarily rejected by the trial court because there was no proof whatever to sustain them.

The lack of merit of appellant’s allegations is illustrated by the fact the majority opinion ignores all but three: the absence of the defendant at voir dire, the stipulation as to the cause of death and several questions posed on cross-examination of Steve Cox, the state’s trace metal expert.

As to the cross-examination of Cox, the objection seems to be that the questions were poorly phrased. I agree, but I do not agree that ineffective assistance is proved by a few clumsy questions. Of the brief excerpt quoted in the majority opinion, only two of the questions seem particularly awkward. Perhaps counsel should have thought through his questions more fully, but how can it possibly be said that this clearly affected the outcome of the trial? The trial court observed that Cox’s testimony contained nothing beneficial to the state nor harmful to the defense and that should end the matter.

As to the defendant’s absence at voir dire, I am as puzzled as the majority and the trial judge over this unorthodox tactic. But while I have never heard of its use in criminal cases, I cannot say it is so plainly without redemption that it provides, per se, the basis for ineffective assistance. Some lawyers advocate the avoidance of overexposing the client to the jury. They believe the jury becomes weary of looking at the individual on whom all the attention of a trial is centered, that his or her presence in the courtroom should be limited as much as possible. Whether that was the motivation here I don’t know, but defense counsel testified that he discussed this tactic with appellant prior to trial. The trial court concluded there was no prejudice and I believe he was correct. The two women jurors cited by the majority testified they knew neither the defendant nor the victim and would try the issues fairly on the evidence. There is no showing to the contrary. More importantly, this issue concerns strategy and we have said again and again we will not substitute our own notions of strategy for those of the practitioner in Rule 37 cases. Knappenberger v. State, 283 Ark. 210 , 672 S.W.2d 54 (1984); Hayes v. State, 280 Ark. 509 , 660 S.W.2d 648 (1983). We should adhere to those precedents.

Finally, there is the matter of the stipulation to the cause of death. It is on this issue that I disagree most emphatically with the majority. In the first place there is not a shred of evidence from which to argue that death may have been attributable to some intervening cause. The medical report said simply that the cause of death was homicide, resulting from a .00 buckshot striking the victim in the left eye and entering his brain. Eleven days later he died. Appellant relies entirely on a “rumor” that Thurman Morse was brain-dead and “his family pulled the plug” when he developed pneumonia. But pneumonia frequently accompanies such injuries, and taking the rumor at face value it still does not provide the slightest basis for an inference that death was attributable to anything other than a lethal head wound. It is pure speculation to suppose that by refusing to stipulate counsel could have uncovered evidence pointing to an intervening cause — a lead .00 buckshot in the brain is cause enough, whether death is instantaneous or prolonged. What bothers me most is for this court to hold, based entirely on speculation, that by stipulating to the cause of death defense counsel was guilty of ineffective assistance. The holding is bound to have a chilling effect on the defense bar, as the obvious message is ‘don’t stipulate to the cause of death’ lest ineffective assistance claims may follow. Thus a sensible and favorable option to the defense is lost. Sensible because it saves time and resources, favorable because there are many times, when the cause of death is clear, that it is better for the defense for the jury not to have to hear the specific details of the victim’s death. That there was no doubt about the cause of this victim’s death is attested to by the appellant’s own words. At trial the first question he was asked on cross-examination was:

Q. Birch (appellant), there is no question you killed Thurman Morse by your own act with the use of this 12 gauge shotgun, is there?

A. No, there isn’t.

Nor is there any basis for the suggestion the buckshot may have ricocheted off another surface. The occupants of the car with Thurman Morse testified the appellant kicked open the door, drew the shotgun to his shoulder, aimed and fired directly at the car. Photographs of the vehicle corroborate this testimony. They show the blast was direct rather than glancing by reflecting a circular pattern of shot on the side of the car where some eight or nine buckshot pierced the metal door cleanly at ninety degree angles.

When any defense counsel’s performance is examined under a magnifying glass from the advantage of hindsight it is easy to find fault. The representation in this case may not have been notably skillful, but who can say with certainty? The result favors the contrary. Having found the defendant guilty (a predictable outcome given the proof) the jury could have imposed a sentence of not less than ten nor more than forty years. It chose twenty, closer to the minimum than to the maximum. Even if the defense was only marginal, it was still above the level contemplated by Rule 37. Our law inveighs against setting aside a conviction except where the representation falls below any acceptable standard of performance. That was not the case here.

The appellant took the life of another human being on less than mitigating circumstances. He was tried fairly and a jury of his peers exacted twenty years, which doubtless would prove to be considerably less. He was provided an appeal by a court appointed lawyer and he was given a thorough hearing under Rule 37. In none of these proceedings was his position sustained. Now a majority of this court, on questionable grounds, is holding the entire process must be repeated. I respectfully disagree.

Hickman, J., joins in this dissent.