Case Number: 2018 Ark. 89
Judge: KAREN R. BAKER
Court: SUPREME COURT OF ARKANSAS
Description: A Union County jury found appellant, Courtney Jerrel Douglas, guilty of first
degree murder and possession of a firearm. Douglas was sentenced to a term of life
imprisonment for the murder conviction plus an additional fifteen yearsí imprisonment for
the use of a firearm. For his possession-of-a-firearm charge, Douglas was sentenced to forty
yearsí imprisonment and a fine of $15,000. Douglasís probation was also revoked on three
controlled-substance offenses, and he was sentenced to a total of fifty yearsí imprisonment
to be served consecutively to his other sentences. We affirmed his convictions and
sentences in Douglas v. State, 2017 Ark. 70, 511 S.W.3d 852. Subsequently, Douglas filed a
timely petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of
Criminal Procedure. The circuit court denied Douglasís petition without a hearing and
Douglas now brings this appeal.1 Our jurisdiction is pursuant to Rule 37 and Arkansas
Supreme Court Rule 1-2(a)(8). We affirm in part and reverse and remand in part.
Douglasís convictions and sentences stem from an altercation between the victim,
Terrance Billings, and Douglas. On August 5, 2015, Douglas and Billings got into a verbal
altercation at Douglasís home. After the altercation, Billings returned to his home. After
Billings had left to go home, Douglas retrieved a firearm and drove to Billingsís home.
Jennifer Henry, Billingsís girlfriend, testified that Douglas came to their home uninvited,
and when she answered the door, ď[Billings] pushed [Douglas] back outside the door and
turned back around. I heard the gunshot. Then [Douglas] came and finished shooting
inside the house where [Billings] fell on the floor and died. [Douglas] still stood there and
shot when there wasnít no more bullets in the gun . . . I kept hearing the gun clicking.Ē
D.H., Jenniferís fourteen-year-old son, testified that when Douglas came to their home, he
witnessed Billings and Douglas as they ďtussledĒ on the porch. D.H. further testified that
Billings was inside the home when Douglas began shooting Billings. John Henry,
Jenniferís father, testified that he witnessed Douglas and Billings scuffling on the porch as
well. John further testified that it looked like Billings had Douglas in a headlock and
1 On June 27, 2017, the Union County Circuit Clerk prepared separate records for the probation revocation, 70CR-11-661, and the homicide case, 70CR-15-324. On June 29, 2017, the records were lodged in this court. The probation revocation appeal was assigned case number CR-17-546 and the homicide case was assigned case number CR-17547. Douglas filed a motion to consolidate the two cases. On November 9, 2017, we granted Douglasís motion to consolidate, closing case number CR-17-547 and noting that all further proceedings will be identified and filed in CR-17-546.
Jennifer was standing behind them. Sergeant Jim Sanders with the Union County Sheriffís
Office testified that upon arriving at the crime scene, it was his duty to immediately begin
taking photographs. Sergeant Sanders testified that there did not appear to be any blood,
tissue, or other bodily fluids on the porch or door. However, inside the threshold, but not
on the threshold itself, there appeared to be bodily fluid. Further, Sergeant Sanders
testified that there was no indication that Billingsís body had been moved. Chief
Investigator Ricky Roberts, also with the Union County Sheriffís Office, testified that there
was no indication of blood on the porch, and based on the evidence, it was apparent that
Billings was shot while standing inside the house.
In his petition for postconviction relief, Douglas argued that trial counsel was
ineffective in failing to present the proper jury instructions on (1) justification and (2)
extreme emotional disturbance manslaughter. Douglas contended that based on these
failures, he received ineffective assistance of counsel and was prejudiced. Douglas now
appeals, arguing that the circuit court erred in denying relief on these claims without a
Law & Analysis
ďOn appeal from a trial courtís ruling on a petitionerís request for Rule 37 relief,
this court will not reverse the trial courtís decision granting or denying postconviction
relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406
(2001). 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.Ē Prater v. State, 2012 Ark. 164, at 8, 402
S.W.3d 68, 74. ďThe benchmark for judging a claim of ineffective assistance of counsel
must be Ďwhether counselís conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.í
Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].Ē
Henington v. State, 2012 Ark. 181, at 3Ė4, 403 S.W.3d 55, 58. 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 ďcounselĒ guaranteed the petitioner by the Sixth Amendment to
the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A
petitioner making an ineffective-assistance-of-counsel claim must show that his counselís
performance fell below an objective standard of reasonableness. Springs v. State, 2012 Ark.
87, 387 S.W.3d 143. A court must indulge in a strong presumption that counselís conduct
falls within the wide range of reasonable professional assistance. Id.
Second, the petitioner must show that counselís deficient performance so
prejudiced petitionerís defense that he was deprived of a fair trial. Id. The petitioner must
show there is a reasonable probability that, but for counselís 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, 367 Ark. 18, 238 S.W.3d 24 (2006). A
reasonable probability is a probability sufficient to undermine confidence in the outcome
of the trial. Id. 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. Id. Additionally, conclusory statements that counsel was ineffective cannot be
the basis for postconviction relief. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
Turning to the merits, we note that the circuit court did not hold an evidentiary
hearing. Rule 37.3 of the Arkansas Rules of Criminal Procedure provides that an
evidentiary hearing should be held in a postconviction proceeding unless the files and
record of the case conclusively show that the prisoner is entitled to no relief. Wooten v.
State, 338 Ark. 691, 1 S.W.3d 8 (1999) (citing Bohanan v. State, 327 Ark. 507, 939 S.W.2d
832 (1997) (per curiam)). If the files and the record show that the petitioner is not entitled
to relief, the circuit court is required to make written findings to that effect. Ark. R. Crim.
Justification Jury Instruction
For his first point on appeal, Douglas argues that the circuit court erred in denying
his claim, without a hearing, that trial counsel was ineffective in failing to present the
proper jury instruction on justification. Douglas contends that due to trial counselís
failure, he was prejudiced. At trial, Douglas asserted the defense of justification. However,
trial counsel proffered justification instruction AMI Crim. 2d 704, which is the jury
instruction for non-deadly force. As Douglas points out, AMI Crim. 2d 704 is inapplicable
in a homicide case. Douglas contends that the proper jury instruction would have been
AMI Crim. 2d 705, which is the justification jury instruction for the use of deadly force.
Douglas argues that there were assertionsóbased on his own statement and the testimony
of John Henryóthat Billings physically attacked Douglas first and had him in a headlock.
Thus, Douglas argues that he was entitled to AMI Crim. 2d 705, the justification
instruction for the use of deadly physical force. Douglas argues that had trial counsel
proffered the correct jury instruction, it would have been reversible error for the circuit
court to refuse it.
The State responds that trial counsel was not ineffective for failing to proffer AMI
Crim. 2d 705 because there was no rational basis for giving the instruction.
Notwithstanding trial counselís failure to submit AMI Crim. 2d 705, the State contends
that the circuit court rejected Douglasís request for an instruction on justification, finding
that there was no basis for doing so. In its June 21, 2017 order, the circuit court denied
Douglasís claim as follows:
The defendantís first contention is that his trial counsel was ineffective in failing to present the proper jury instruction on justification and because of that failure the defendant was prejudiced.
The defendant accurately quotes the colloquy between the Court, Mr. Reed (Trial Counsel) and Mr. Rogers (Chief Deputy Prosecuting Attorney). It is clear from this colloquy that the Court was not of the opinion that the instruction would be given if properly drafted.
ď. . . The instruction as presented is erroneous. It lacks necessary criteria. I submit to you and it is the position of this Court that there is not a reasonable basis to believe that Terrance Billings was about to use deadly physical force on this defendant because there is no evidence of such deadly physical force because the defendant is the one who provoked this incident by going to the residence of Terrence Billings and he is the only one that went to the residence or arrived at that residence with a firearm. I think it is unreasonable to believe that he can provoke this incident and then raise the defense of justification.Ē (Emphasis added[.])
This colloquy and all other discussion about the jury instructions were held outside the presence of the jury.
As the State accurately points out, the proof in this case is undisputed. The victim had a verbal confrontation with the defendant at the defendantís house. The victim left the defendantís house and traveled to his, the victimís own house. As the State urges, it is important to note the initial confrontation between the victim and the defendant had fully concluded. There was no further threat to the defendant. Throughout the initial confrontation there is no mention or concern of either the victim or the defendant being armed with a firearm.
After the victim left the defendantís house and went to his own house the undisputed proof was that the victim was relaxing on his sofa. His girlfriend was in the house with the victim, and her young son was outside standing in the yard.
The defendant, not satisfied with the way the initial confrontation concluded, retrieved a handgun he had kept in a dresser drawer at his house and traveled to the victimís house. The defendant walked onto the victimís front porch and called out the victim. The victim, who was unarmed and entitled to defend himself, tried to push the defendant away from the front door. The defendant then pulled out his firearm and shot the victim multiple times while the victim was standing in his front doorway.
A person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating. Additionally, this defense is not applicable when one arms himself and goes to a place in anticipation that the other will attack him. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002).
Like Kemp, there is no rational basis for giving the jury instruction for selfdefense even if it correctly followed the language of the law. Thus, failing to offer such an instruction is not evidence of ineffective assistance of counsel. Counsel is not ineffective for failing to make a motion or argument that is without merit. Flemons v. State, 2016 Ark. 460, 505 S.W.3d 196.
Other than being convicted, the defendant has failed to show how he has been prejudiced. The revocations are NOT (emphasis added) pendent upon the conviction in 70CR-15-324. The burden of proof is a mere preponderance of the evidence.
Based on Strickland, Douglas must demonstrate that trial counselís failure to proffer
AMI Crim. 2d 705 amounted to a deficient performance that fell below an objective
standard of reasonableness that so prejudiced Douglas as to deprive him of a fair trial. In
Sims v. State, we explained that ď[t]o show prejudice under Strickland based on trial
counselís failure to request a specific instruction, the United States Supreme Court has
held that an appellant must establish that it was Ďreasonably likely that the instruction
would have made any difference [in the outcome of the trial] in light of all the other
evidence of guilt.í Berghuis v. Thompkins, 560 U.S. 370, 390, 130 S. Ct. 2250, 176 L. Ed. 2d
1098 (2010).Ē 2015 Ark. 363, at 10, 472 S.W.3d 107, 115. Further, there must be a
rational basis in the evidence to warrant the giving of an instruction. Allen v. State, 326
Ark. 541, 932 S.W.2d 764 (1996). A party is entitled to an instruction on a defense if there
is sufficient evidence to raise a question of fact or if there is any supporting evidence for
the instruction. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996).
A person may not use deadly physical force in self-defense if he knows that he can
avoid the necessity of using that force with complete safety by retreating. See Ark. Code
Ann. ß 5-2-607(b)(1). Additionally, this defense is not applicable when one arms himself
and goes to a place in anticipation that another will attack him. Girtman v. State, 285 Ark.
13, 684 S.W.2d 806 (1985). One who claims self-defense must show not only that the
person killed was the aggressor, but also that the accused used all reasonable means within
his power and consistent with his safety to avoid the killing. Ricketts v. State, 292 Ark. 256,
729 S.W.2d 400 (1987) (citing Martin v. State, 290 Ark. 293, 718 S.W.2d 938 (1986)).
Here, as found by the circuit court, despite trial counselís failure to proffer AMI
Crim. 2d 705, there was no rational basis for giving this instruction. The record
demonstrates that Douglas and Billings got into a dispute at Douglasís home. After the
argument, Billings returned to his home. After the initial confrontation had fully
concluded, Douglas retrieved a handgun and traveled to Billingsís home with the firearm.
As noted above, Arkansas Code Annotated section 5-2-607(b)(1) prohibits one from using
deadly physical force in self-defense if he knows he can avoid the necessity of using deadly
force with complete safety by retreating. Although Billings might have been the initial
aggressor, the record is clear that the initial dispute had fully concluded, with Billings
leaving the scene and returning to his home. However, Douglas, with a firearm in tow,
initiated the second encounter at Billingsís home. Further, Billings attempted to flee from
Douglas by running back into the house. Accordingly, Douglas could not rationally argue
that the use of deadly force was necessary to protect himself. In light of all the other
evidence of Douglasís guilt, pursuant to Sims, Douglas has failed to establish that it was
reasonably likely that the AMI Crim. 2d 705 instruction would have made any difference
in the outcome of his trial. Thus, because Douglas has failed to prove either Strickland
prong, he has failed to establish a claim for ineffectiveness of counsel on this point. In
sum, we hold that the circuit courtís decision was not clearly erroneous, and we affirm.
Extreme-Emotional-Disturbance-Manslaughter Jury Instruction
For his second point on appeal, Douglas argues that the circuit court erred in
denying his claim, without a hearing, that trial counsel was ineffective in failing to present
the proper jury instruction on extreme-emotional-disturbance manslaughter. Douglas
contends that due to trial counselís failure, he was prejudiced. However, prior to delving
into the merits of his argument, Douglas asserts that the circuit court failed to comply with
the dictates of Rule 37 of the Arkansas Rules of the Criminal Procedure. We agree.
Pursuant to Arkansas Rule of Criminal Procedure 37.3(a), the circuit court has the
discretion to decide whether the files and records are sufficient to sustain the courtís
findings without a hearing. Rule 37.3(a) states that ď[i]f the petition and the files and
records of the case conclusively show that the petitioner is entitled to no relief, the trial
court 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.Ē (Emphasis added.) This court has
previously interpreted Rule 37.3 to provide that an evidentiary hearing should be held in a
postconviction proceeding unless the files and record of the case conclusively show that the
prisoner is entitled to no relief. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). When
the trial court concludes, without a hearing, that the petitioner is not entitled to relief,
Rule 37.3(a) requires the trial court to make written findings specifying the parts of the
record that form the basis for the trial courtís decision. Id. This court has, on occasion,
affirmed the denial of a Rule 37 petition notwithstanding the circuit courtís failure to
make written findings under Rule 37.3(a), but we have done so only in two circumstances:
(1) where it can be determined from the record that the petition is wholly without merit, or
(2) where the allegations in the petition are such that it is conclusive on the face of the
petition that no relief is warranted. Reed v. State, 375 Ark. 277, 280, 289 S.W.3d 921, 923
Here, as to Douglasís argument regarding the jury instruction on extreme-emotional
disturbance manslaughter, the circuit court entered the following one-sentence finding:
ďThe Court adopts in Ďtotoí the argument of the State in its response in Topics No. 5 and
No. 6.Ē This finding does not comport with Rule 37.3(a). We cannot reach the merits of a
postconviction claim for relief absent the circuit courtís written findings of fact because, on
review, we determine whether the findings are supported by a preponderance of evidence.
Id. Likewise, we cannot say that Douglasís argument as to the jury instruction on extreme
emotional-disturbance manslaughter is so conclusive on the face of the petition or on the
face of the record as to show that no relief is warranted. Further, it is not incumbent on
this court to scour the record in a Rule 37 appeal to determine if the petition is wholly
without merit when there are no written findings. Id. That is the circuit courtís function if
no hearing is held. Id.
Outcome: Based on the foregoing, because the circuit court failed to make written findings in accordance with Rule 37.3(a), we reverse and remand the case to the circuit court for written findings in compliance with Rule 37.3(a). It may well be that the circuit court will want to hold a hearing on Douglasís petition pursuant to Rule 37.3(c), following which the circuit court must make findings of fact and conclusions of law. Id. If the circuit court does
not conduct a hearing and instead dismisses Douglasís petition, the court shall make written findings for this court to review under Rule 37.3(a). Id. In either instance, the circuit court shall enter findings with respect to Douglasís extreme-emotional-disturbance manslaughter jury instruction claim.
Affirmed in part; reversed in part and remanded.