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DOB: October 21, 1964
Race: African American
Gender: Male
Crime and Trial
County of conviction: Miller
Number of counts: 1
Race of victim:
Gender of victim: Female
Date of crime: July 12, 1993
Date of sentencing: March 3, 1994
Trial Counsel:
Charles Potter
Legal status
Current proceedings:
Motion for Certificate of Appealability pending
in U.S. District Court, Western District of Arkansas, No. 4:00-cv-04036-HFB,
(Harry F. Barnes, J.)
Last judicial decision:
Motion to Alter or Amend Judgment Denied by
District Court in Sasser v. Norris, 2007 WL 1159634 (April
18, 2007).
Current counsel:
Bruce Eddy
Federal Public Defender Office
The Victory Building, Suite 490
1401 West Capitol Avenue
Little Rock, AR 72201
(501) 324-6113
Reported Opinions:
Motion to Alter or Amend Judgment Denied by
District Court in Sasser v. Norris, 2007 WL 1159634 (April
18, 2007).
Petition for Writ of Habeas Corpus Denied in its
entirety by State v. Norris, 2007 WL 63765 (Jan. 9, 2007).
Following U.S. District Court's denial of habeas,
Eighth Circuit granted appellant's motion to remand the petition to
allow litigation of Mr. Sasser's Atkins claim and to assess
whether such a claim has been exhausted in state court (unpublished
orders dated Aug. 15, 2003, Mar. 9, 2004).
Denial of post-conviction relief affirmed by
Sasser v. State, 993 S.W.2d 901 (Ark. 1999).
Sentence and conviction affirmed on direct appeal
by Sasser v. State, 902 S.W.2d 773 (Ark. 1995).
Significant legal issues:
claim of mental retardation under Atkins v.
Virginia
omission of actus reus element from
attempted rape and kidnapping instructions (these offenses were
predicates for felony murder), and trial counsel's failure to object
to the instructions on this basis
trial court's admission of previous rape offense
for purpose of showing common scheme or modus operandi.
CR 97-1246 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered July 8, 1999
2. Criminal procedure -- postconviction relief --
exception to trial-error rule. -- Arkansas Rule of Criminal Procedure
37 is a postconviction remedy, and as such, does not provide a method
for the review of mere error in the conduct of the trial or to serve
as a substitute for appeal; the supreme court has made an exception,
however, for errors that are so fundamental as to render the judgment
of conviction void and subject to collateral attack; when the supreme
court reviews a fundamental or structural error either on direct
appeal or through the trial-error exception, the fundamental nature of
the error precludes application of the harmless-error analysis.
3. Criminal procedure -- postconviction relief --
omission of actus reus element from instructions not structural
error -- argument as to omission cannot be considered for first time
in Rule 37 proceeding. -- The United States Supreme Court has held
that the omission of an element from a jury instruction in a criminal
trial is notstructural error and thus can be subject to the harmless-error
standard of review; the Arkansas Supreme Court has also observed that
this is an error subject to the harmless-error standard of review;
accordingly, the court concluded that the omission of the actus
reus element from instructions for attempted rape and attempted
kidnapping was not structural error, and, therefore, an argument
assigning error to the omission cannot be considered for the first
time in an Ark. R. Crim. P. 37 proceeding.
4. Criminal procedure -- ineffective-assistance
claim -- factors required to prevail. -- According to the standard
enunciated in Strickland v. Washington, 466 U.S. 668 (1984), to
prevail on a claim of ineffective assistance of counsel, a petitioner
must show first that counsel's performance was deficient; this
requires showing that counsel made errors so serious that counsel was
not functioning as the "counsel" guaranteed the petitioner by the
Sixth Amendment; a court must indulge in a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance; second, the petitioner must show that the
deficient performance prejudiced the defense, which requires showing
that counsel's errors were so serious as to deprive the petitioner of
a fair trial; unless a petitioner makes both showings, it cannot be
said that the conviction resulted from a breakdown in the
adversarialprocess that renders the result unreliable; the petitioner
must show there is a reasonable probability that, but for counsel's
errors, the factfinder would have had a reasonable doubt respecting
guilt, i.e., the decision reached would have been different absent the
errors; a reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial; in making a
determination on a claim of ineffectiveness, the totality of the
evidence before the judge or jury must be considered.
5. Attorney & client -- ineffective-assistance
claim -- denial of relief not clearly erroneous where appellant failed
to satisfy prejudice prong of Strickland analysis. -- The
supreme court concluded that the circuit court was not clearly
erroneous when it denied relief on appellant's ineffective-assistance-of-counsel
claim; although there was little doubt that appellant's trial counsel
rendered deficient performance when he failed to object to the
omission of the actus reus element in the attempt felonies, the
court found that appellant had failed to fulfill the prejudice prong
of the Strickland analysis, or, more specifically, that there
was a reasonable probability that the outcome of his trial would have
been different had his attorney objected to the erroneous instructions;
the court reached this finding because the jury was properly
instructed on the complete offense of kidnapping, which was supported
byample evidence in the record; additionally, the court found that had
appellant's attorney objected and the actus reus been included
in the attempt instructions, there was sufficient evidence to support
attempted rape and attempted kidnapping as the underlying felonies.
6. Attorney & client -- ineffective-assistance
claim -- no reasonable probability that objection from appellant's
attorney would have changed outcome of trial. -- Where there was ample
evidence in the record to support a finding of either kidnapping,
attempted kidnapping, or attempted rape as the underlying felony for
the capital murder charge, the supreme court held that there was no
reasonable probability that a proper objection from appellant's
attorney would have changed the outcome of the trial.
7. Attorney & client -- ineffective-assistance
claim -- failure to object during closing argument within wide range
of permissible professional legal conduct. -- The supreme court
concluded that the circuit court's denial of relief on appellant's
ineffective-assistance-of-counsel claim with respect to counsel's
failure to object to the prosecutor's comments was not clearly
erroneous; experienced advocates might differ about when, or if,
objections are called for because, as a matter of trial strategy,
further objections from counsel may have succeededin making the
prosecutor's comments seem more significant to the jury; because many
lawyers refrain from objecting during opening statement and closing
argument, absent egregious misstatements, the failure to object during
closing argument and opening statement is within the wide range of
permissible professional legal conduct.
8. Attorney & client -- ineffective-assistance
claim -- counsel was not ineffective for failing to lodge due process
objection. -- The supreme court found no merit to appellant's claim
that his trial counsel was ineffective for failing to lodge a due
process-based objection to the admission of another victim's testimony
because it was unlikely that a due process-based objection would have
achieved any more than counsel's objections based on the Arkansas
Rules of Evidence; in fact, such an objection would have been
redundant because fairness to the party who opposes the admission of
the evidence is built in to Ark. R. Evid. 403 and 404(b).
9. Attorney & client -- ineffective-assistance
claim -- no reasonable probability outcome of trial would have been
different had counsel obtained limiting instruction. -- Where there
was ample evidence, even excluding another victim's testimony, to
support a conviction for capital felony murder with either kidnapping,
attempted kidnapping, or attempted rape as the underlying felony,
therewas no reasonable probability that the outcome of the trial would
have been different had appellant's attorney obtained a limiting
instruction with regard to the admission of another victim's testimony.
10. Attorney & client -- ineffective-assistance
claim -- allegation of trial court error would not have led to
reversal. -- Regarding appellant's allegation that counsel's failure
to request a limiting instruction prejudiced appellant on appeal, the
supreme court was obliged to evaluate the likelihood of success
attached to an allegation that the trial court erred in refusing the
instruction when it was requested; the court concluded that such an
allegation would not have led to a reversal because even if the trial
court refused to give the instruction once it was requested, the error
would have been harmless in light of the overwhelming evidence,
excluding another victim's testimony, that was introduced against
appellant.
11. Appeal & error -- postconviction relief --
conclusory allegations cannot be basis for. -- Where appellant made no
specific allegation as to how the absence of a second attorney
affected his trial counsel's performance or how he was prejudiced by
the fact that he was represented by one attorney, the supreme court
affirmed the trial court's denial of relief on the issue; conclusory
allegations cannot be a basis for postconvictionrelief.
Appeal from Miller Circuit Court; Phillip B.
Purifoy, Judge; affirmed.
Deborah R. Sallings, for appellant.
Winston Bryant, Att'y Gen., by: Todd L.
Newton, Ass't Att'y Gen., and James Gowen, Law Student No.
301 Admitted to Practice Pursuant to Rule XV(E)(1)(b) of the Rules
Governing Admission to the Bar of the Supreme Court and Under the
Supervision of Kelly K. Hill, Dep. Att'y Gen., for appellee.
Per Curiam.
The appellant, Andrew Sasser, was convicted of
capital felony murder and sentenced to die by lethal injection. We
affirmed the conviction and sentence in Sasser v. State, 321
Ark. 438, 902 S.W.2d 773 (1995). Sasser subsequently filed a timely
petition for postconviction relief pursuant to Arkansas Criminal
Procedure Rule 37. In that petition, Sasser raised several claims of
ineffective assistance of counsel. The Circuit Court, after a hearing,
entered written findings of fact and conclusions of law in which it
denied relief. Sasser now appeals from that order. We affirm.
The facts giving rise to Sasser's conviction were
set out in detail in our opinion in the direct appeal. Because the
resolution of one of Sasser's ineffective-assistance-of-counsel claims
requires our determination of the sufficiency of the evidence to
support one of the felonies underlying the capital felony murder
charge, we will now reiterate the background facts.
The state charged Sasser with capital felony murder
for causing the death of Ms. Jo Ann Kennedy, on or about July 12,
1993, in the course of or in immediate flight from his commission or
attempt to commit the victim's rape or kidnapping under circumstances
manifesting extreme indifference to the value of human life. At the
time of her death, the victim was working alone as the store clerk at
the E-Z Mart in Garland. The autopsy report showed the victim died of
multiple stab and cutting wounds and blunt-force head injuries, and
that no anal or vaginal injury or any spermatozoa were present.
Following voir dire and immediately preceding the
trial's commencement, the State announced, in camera, that it intended
to offer evidence of prior crimes committed by Sasser in 1988 at an
E-Z Mart in Lewisville against its store clerk, Ms. Jackie Carter, for
which he was convicted of second-degree battery, kidnapping and rape.
The State relied upon Rule 404(b) and this court's decision reported
as Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987), and
offered the evidence to prove appellant's modus operandi and
intent. The State enumerated several points of similarity between the
circumstances of the present crime and the 1988 crimes. Appellant
objected, arguing "one previous crime does not a pattern make" and
that the evidence had no probative value, only prejudicial effect. The
trial court held Thrash was controlling, found the proposed
testimony to be "more (probative) than prejudicial," and ruled it
admissible. We affirmed this ruling. Sasser v. State, 321 Ark.
at 447.
At the jury trial, Sasser stipulated that he caused
the deathof the victim while in the possession of and while driving
his brother's pickup truck. Other stipulated facts included: Sasser
stopped at the E-Z Mart in Garland City two or three times to buy
chips and to use the telephone between the hours of 3:00 p.m. on July
11, 1993 and approximately 12:00 a.m. on July 12, 1993; the victim was
discovered nude from the waist down; and the pants and panties found
in the E-Z Mart's men's bathroom were hers.
The State's first witness at trial, Jeanice Pree,
testified she and her mother, Gloria Jean Williams, lived across the
street from the Garland City E-Z Mart. Pree testified she had an
unobstructed view of the store. Pree testified she also worked at the
E-Z Mart and believed its front door was locked at 12:00 midnight and
thereafter customers were required to use a drive-through window. Pree
testified she was sitting on her couch watching television when she
looked out her window, saw the victim and a man behind the store
counter and assumed he was a friend of the victim. Pree testified she
looked back and saw the victim and the man coming to the store's front
door. Pree testified she could tell the victim was being forced to
come out because it looked like her hands were behind her back. Pree
testified she telephoned 911. The police dispatcher testified he
received Pree's 911 telephone call at approximately 12:46 a.m. on July
12, 1993, and that she stated "there was a woman that she believed was
being killed at the E-Z Mart, being drug through the window."
Williams testified she watched the E-Z Mart from
the window in her house while her daughter (Pree) telephoned 911.
Williamstestified she saw a truck leave the store, and then the victim
"came around from the side of the E-Z Mart. She reached for the door
and she just collapsed, right there."
Miller County Sheriff's Deputy Jim Nicholas
testified the victim was found lying just outside the E-Z Mart door on
the sidewalk, and appeared to be dead. Nicholas testified the victim
was nude from the waist down, and what appeared to be her panties and
pants were located in the men's restroom of the store. Nicholas
testified one of the victim's shoes was in the front aisle and one
behind the counter, and a large wad of hair was found behind the cash
register near the drive-through window. Nicholas testified blood
spatters were observed at the drive-through window, on the store's "outside
aisles," counter, and on the men's bathroom wall. Nicholas testified
the drive-through window was open. Numerous items of physical evidence
and photographs were introduced into evidence through the testimony of
Nicholas and Miller County Sheriff's Department Investigator Toby
Giles, including a photograph of the drive-through window and cash
register area showing two plastic containers of nachos.
Arkansas State Police Investigator Robert Neal
testified he and Miller County Sheriff H.L. Phillips interrogated
Sasser at the Lafayette County Sheriff's Office in Lewisville for
approximately two hours beginning around 7:45 p.m., on July 12, 1993.
Sasser's tape recorded statement and a transcript of the same were
introduced at trial and provided as follows. Sasser stated he drove up
to the window at the Garland City E-Z Mart and ordered nachosfrom the
victim. He described the victim as a "lady . . . [who] had an attitude"
and was angry because someone else had ordered nachos, then failed to
pick up the order. Sasser stated the victim tried to sell him two
orders of nachos, but he declined. He stated they argued and the
victim slammed the drive-through window on his hand. Sasser stated he
jerked the window open whereupon the victim cut him with an knife-like
object with a blade. Sasser stated he grabbed the victim and she
jerked him through the drive-through window. He stated they scuffled,
moving from the drive-through window area, down the counter area, out
into the store's interior, back to the store office at the rear of the
store, and up to the potato chip rack at the front of the store.
Sasser stated the victim opened the store's front door, they exited
the store and the victim followed him to his pickup truck, still
fighting. Sasser stated he entered the vehicle and left.
Sasser stated he did not recall going into the E-Z
Mart's restrooms but that he "had to go back there." He stated the
victim repeatedly hit him with her fists while they scuffled. Sasser
stated he wrested the victim's knife-like object from her and used it
to hit her, finally dropping the object near the pickup truck. Sasser
stated he did not know why the victim's clothes were removed. When
asked whether he did not remove the victim's clothes or did not
remember doing so, he replied: "No sir." Sasser stated he did not try
to rape the victim or to rob her.
The State's final witness, Ms. Carter, testified
appellant attacked and raped her on April 22, 1988 at the E-Z Mart
Store inLewisville. Carter testified she was the only employee on duty
when appellant entered the store at approximately 1:00 a.m. and
purchased cigarettes, returned fifteen minutes later and purchased a
soft drink, then returned five minutes later, asked to use the
telephone and stated he had had a wreck on his motorcycle. Carter
testified appellant then stood in the store after stating he was
waiting on his wife to pick him up. Carter testified that, at
approximately 1:35 a.m., a truck drove up and appellant went outside
to talk to its occupants. Carter testified she moved from behind the
cash register and began putting up items in the freezer when appellant
approached her from behind and hit her on the back of the head with a
soft-drink bottle. Carter testified she and appellant struggled and he
continued to hit her, then forced her to a utility/bathroom located at
the back of the store. Carter testified another man approached and
appellant decided to take her out of the store. Carter testified
appellant forced her out of the store, picked up his bicycle, and
pushed Carter and the bicycle into an alley. Carter testified that,
when the other man drove by, appellant forced her across the street,
told her to pull down her clothes, pulled down his own clothes, and
raped her. Carter testified appellant then told her he should not have
done it and should kill her, whereupon she begged him not to and
agreed to say a truck had dropped her off and appellant had found her.
Carter testified appellant forced her back to the store where the
police were waiting. Carter testified that, when she gained the
opportunity to speak privately to a policeman, she identifiedappellant
as her attacker.
The abstract of the trial indicates that the jury
was instructed to weigh Sasser's guilt according to instructions for
capital felony murder and first degree felony murder. As indicated
above, the jury was instructed that, in order to convict Sasser of
either degree of felony murder, they had to find that he committed one
of four possible underlying felonies: kidnapping, attempted kidnapping,
rape, or attempted rape. The trial court, with no objection from
Sasser's attorney, submitted erroneous jury instructions for the
crimes of attempted kidnapping and attempted rape. Specifically, the
jury was instructed that the attempt crime was completed when Sasser
formed the mental state to commit the rape or kidnapping. The actus
reus, or the portion of the instruction that required the jury to
find that Sasser also took a "substantial step" toward completing the
crime, was omitted from all of the instructions for the attempt
felonies.
For the first part of his argument, Sasser contends
that the erroneous instructions, because they omit an essential
element of the attempt crimes, constitute "structural" trial error,
and as such, can be reviewed for the first time under Rule 37. Sasser
argues that the trial error is structural because the submission of
the erroneous instructions affected his fundamental right to a trial
by jury, or, as the Supreme Court enunciated in In re Winship,
397 U.S. 358 (1970), "the right of an accused to not be convicted
except upon proof beyond a reasonable doubt of each element of the
crime."
We have previously held that even constitutional
issues must be raised in the trial court and on direct appeal, rather
than in Rule 37 proceedings. Finley v. State, 295 Ark. 357, 748
S.W.2d 643 (1988). Rule 37 is a postconviction remedy, and as such,
does not provide a method for the review of mere error in the conduct
of the trial or to serve as a substitute for appeal. Hulsey v.
State, 268 Ark. 312, 595 S.W.2d 934 (1980). We have made an
exception, however, for errors that are so fundamental as to render
the judgment of conviction void and subject to collateral attack.
Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996). In
Collins, for example, we held that the right to trial by a twelve-member
jury is a fundamental right that fell with in the exception. When we
review a "fundamental" or "structural" error either on direct appeal
or through the exception just explained, the fundamental nature of the
error precludes application of the "harmless-error" analysis.
To support his contention that the omission of the
actus reus element from the attempt instructions was structural
error, Sasser draws an analogy between his case and Sullivan v.
Louisiana, 508 U.S. 275, (1993), in which the Supreme Court held
that an erroneous "reasonable doubt" instruction was structural error,
and therefore not subject to the "harmless-error" analysis.
In Sullivan, the Court noted that in a case
where the jury convicts according to an erroneous instruction about
the State's burden of proof, there has been no actual finding of guilt
as required by the Sixth Amendment. The harmless-error standard of
review could not be applied because to do so would force the appellate
court, inappropriately, to speculate about what a jury would have done
had it been properly instructed. Sullivan v. Louisiana, 508 U.S.
at 280.
The omission of a single element of a jury
instruction in a case where the jury is instructed on multiple
offenses, however, differs from the situation in Sullivan v.
Louisiana, in which the error affected the basic burden of proof
in a criminal case, and therefore, was more insidious than the error
in this case. In Sullivan, the harmless-error analysis could
not be applied because the erroneous burden-of-proof instruction, an
instruction upon which the proper application of all other
instructions depends, rendered a reliable finding of guilt impossible.
In this case, the jury was properly instructed according to the
complete offense for kidnapping, and, therefore, it is still possible
that there was a reliable finding of guilt on capital felony murder in
this case.
The distinction between the error that occurred in
this case and the error in Sullivan v. Louisiana has recently
been recognized by the Supreme Court in Neder v. United States,
527 U.S. (Slip Opinion, June 10, 1999), a case whose holding is
directly on point for the case at bar. See also California v. Roy,
519 U.S. 2 (1996). In Neder, the Supreme Court held that the
omission of an element from a jury instruction in a criminal trial is
not "structural error" and, therefore, can be subject to the harmless-error
standard of review. We have also previously observed that this is an
error that is subject to the harmless-error standard of review.
Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996). Accordingly,
the omission of the actus reus element from the instructions
for attempted rape and attempted kidnapping is not "structural error,"
and therefore, an argument assigning error to the omission cannot be
considered for the first time in a Rule 37 proceeding.
Sasser makes the alternative argument, however,
that his trial counsel was ineffective for failing to object to the
erroneous instructions. We measure the effectiveness of trial counsel
according to the standard enunciated in Strickland v. Washington,
466 U.S. 668 (1984). According to that standard, the petitioner must
show first that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the petitioner by the Sixth
Amendment. A court must indulge in a strong presumption that counsel's
conduct falls within the wide range of reasonableprofessional
assistance. Second, the petitioner must show that the deficient
performance prejudiced the defense, which requires showing that
counsel's errors were so serious as to deprive the petitioner of a
fair trial. 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. The petitioner must show
there is a reasonable probability that, but for counsel's errors, the
factfinder would have had a reasonable doubt respecting guilt, i.e.,
the decision reached would have been different absent the errors. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. In making a determination on a
claim of ineffectiveness, the totality of the evidence before the
judge or jury must be considered.
We conclude that the Circuit Court was not clearly
erroneous when it denied relief on the ineffective-assistance-of-counsel
claim. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).
While we have little doubt that Sasser's trial counsel rendered
deficient performance when he failed to object to the omission of the
actus reus element in the attempt felonies, we find that Sasser
has failed to fulfill the prejudice prong of the Strickland
analysis, or more specifically, that there is a "reasonable
probability" that the outcome of his trial would have been different
if his attorney had objected to the erroneous instructions. We reach
this finding because the jury was properly instructed on the complete
offense of kidnapping, which, as we willsoon explain, is supported by
ample evidence in the record. Additionally, we find that if Sasser's
attorney had objected and the actus reus was included in the
attempt instructions, there was sufficient evidence to support
attempted rape and attempted kidnapping as the underlying felonies.
Sasser argues, however, that we cannot determine if
he has satisfied the prejudice prong of the Strickland analysis
by evaluating the sufficiency of the evidence to support either the
complete offense of kidnapping or the attempt felonies, if they had
been properly submitted to the jury, because of the analysis we
applied in Hall v. State, supra. Sasser contends that we
can only determine prejudice according to the harmless-error analysis
that we explained in Hall. That is, that the State can
demonstrate that the submission of an erroneous instruction was
harmless by showing that the jury was not demonstrably misled because
the jury rejected the theory of the erroneous instruction. We further
explained that the State can also show that the erroneous instruction
was harmless because it was cured by another instruction. Hall v.
State, 326 Ark. at 323. Sasser suggests that if we go beyond that
harmless-error analysis, we would impermissibly substitute our
judgment in place of the jury on the sufficiency of the evidence.
As an initial matter, we must take this opportunity
to draw a clear distinction between the analysis that takes place on
direct appeal when an erroneous instruction is submitted to the jury,
and the analysis that we apply to evaluate an ineffective-assistance-of-counsel
claim. As explained above, the "harmless-error"standard of review is
applied on direct appeal.
The prejudice prong of an ineffective-assistance-of-counsel
claim, however, involves a different inquiry. There, we must determine
whether but-for counsel's error, there is a "reasonable probability"
that the outcome of the trial would be different. A "reasonable
probability" is a probability sufficient to undermine confidence in
the outcome. While we may resolve this issue by using the harmless-error
standards enunciated above, our analysis is not limited to those
criteria. We may also evaluate other factors to determine if there is
a "reasonable probability" that the outcome of the trial would be
different.
Accordingly, we must determine if Sasser would have
been acquitted if, pursuant to the objection, the actus reus
element would have been included in the attempt instructions, or
however unlikely, the attempt instructions were pulled as alternatives
to give to the jury. We conclude that there is no reasonable
probability that Sasser would have been acquitted of capital felony
murder.
In this case, the jury was given the following
instruction with regard to kidnapping:
To prove kidnapping, the State must prove beyond
a reasonable doubt first, that Andrew Sasser did, without the
consent of Joanne Kennedy, restrain her so as to interfere
substantially with her liberty, and second, that Andrew Sasser
restrained Joanne Kennedy with the purpose of facilitating the
commissionof murder or the flight thereafter, or inflicting physical
injury upon her or engaging in sexual intercourse.
The jury was also instructed as follows regarding
the offense of rape:
To prove rape the State must prove beyond a
reasonable doubt first, that Andrew Sasser engaged in sexual
intercourse with Joanne Kennedy and second, that he did so by
forcible compulsion.
Furthermore, AMCI 2d 501, the model jury
instruction for criminal attempt that Sasser alleges should have been
given to the jury, provides that to prove an attempt, the State must
prove beyond a reasonable doubt:
First: That the defendant intended to
commit the offense of (rape or kidnapping);
Second: That the defendant purposely
engaged in conduct that was a substantial step in a course of
conduct intended to culminate in the commission of (rape or
kidnapping);
Third: That defendant's conduct was
strongly corroborative of the criminal purpose.
As we indicated earlier, we conclude that there is
ampleevidence in the record to support a finding of either kidnapping,
attempted kidnapping, or attempted rape as the underlying felony for
the capital murder charge. Through the testimony of eyewitnesses and
the investigating officers, the State introduced evidence that
indicated that Sasser forced his way into the convenience store
through the drive through window, engaged in an extensive struggle
with Ms. Kennedy that led to the back of the store and into the men's
bathroom, where her slacks and panties were found. Sasser then lead Ms.
Kennedy, with her arms restrained behind her and nude from the waist
down, through the front door of the store, and took her to the area
where his vehicle was parked. Sasser drove away and Ms. Kennedy walked
to the front of the store, fell to the ground, and died as the result
of several stab wounds. With this evidence in the record, there is no
reasonable probability that a proper objection from Sasser's attorney
would have changed the outcome of the trial.
Failure to Object to Prosecutor's Comments
Sasser alleges that the prosecutor made several
improper comments in his closing argument during the guilt phase.
Sasserfirst argues that the prosecutor improperly indicated that if he
thought that Sasser committed first-degree murder rather than capital
murder, he "would have considered doing something less." According to
Sasser, that remark expressed the prosecutor's personal opinion about
the crime for which Sasser should be convicted.
Sasser next argues that the prosecutor improperly
argued, apparently in response to the defense's argument that Jackie
Carter's testimony was not relevant, that Ms. Carter "wouldn't have
been over here testifying yesterday if that evidence hadn't been ruled
by the Court as relevant and probative of this guy's intent." Sasser
contends that this remark was inappropriate because it bolstered the
credibility of a State's witness and "directly added the court's
imprimatur to that testimony."
Sasser also contends that the prosecutor
inappropriately argued that Sasser failed to express remorse for
causing Joanne Kennedy's death. Specifically, Sasser argues that both
his right against self-incrimination and his right to a jury trial
were violated when the prosecutor asked the jury the following
rhetorical question: "Did you hear any sign of remorse from him? None."
Sasser argues that the prosecutor continued to make
improper remarks in his closing argument during the penalty phase of
the trial. Sasser alleges that the prosecutor again inappropriately
emphasized Sasser's apparent lack of remorse for Ms. Kennedy's death.
He also contends that the prosecutor erroneously declaredto the jury
that there is no role for mercy in the criminal justice system.
In the portion of its order that deals with this
claim, the Circuit Court first observes the following:
Several of these remarks look worse on paper than
they did in the courtroom. The prosecutor's statements that he would
have charged the petitioner with something else if he had been
guilty of anything else and his statement that mercy has no place in
the criminal justice system were more a way of speaking than a flat
statement and were understood as the prosecutor's opinion about the
evidence that was presented, which is permissible. It was the
prosecutor's opinion that the petitioner was guilty only of capital
murder and that there was no room for mercy in this case. Contrary
to the petitioner's argument, counsel are permitted to express their
opinions within reason: "Although it is not good practice for
counsel to inject their personal beliefs into the closing arguments,
mere expressions of opinion by counsel in closing argument are not
reversible error so long as they do not purposely arouse passion and
prejudice." Neff v. State, 287 Ark. 88, 696 S.W.2d 736, 740
(1985).
As to the argument attacking the statement that
the testimony of the previous victim was relevant and probative of
the petitioner's intent because the court had ruled that it was, the
statement was correct,...and the evidence wouldnot have been
admitted had the court not so ruled. Further, the juror (sic) were
instructed that they should accept without question the court's
rulings on the admissibility of the evidence. If there was a valid
objection to this remark, it was not that the remark was erroneous.
Likewise, the Circuit Court found that the
prosecutor's remarks during the penalty phase were also merely
expressions of the prosecutor's opinion. The Circuit Court did find,
however, the prosecutor's remarks about remorse to be "technically
objectionable," but suggested that they had little effect on the jury
because the evidence was overwhelming, and only the degree of homicide
was at issue.
To the extent that Sasser argues that the trial
court erred when it did not, on its own motion, seek to remedy the
alleged prejudice caused by the prosecutor's remarks, we conclude that
he cannot raise that argument for the first time in a Rule 37
proceeding. This is an allegation of trial error that should have been
raised on direct appeal. As we explained above, such an error can only
be raised for the first time under Rule 37 if it is so fundamental as
to render the judgment void and subject to collateral attack. In
Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983) we held that
a trial error involving a remark made by a prosecutor during closing
argument was not "fundamental." Accordingly, we may only consider
Sasser's claim that his counsel was ineffective for failing to object
toprosecutor's comments.
Regarding the ineffective-assistance-of-counsel
claim, the Circuit Court noted that during the postconviction hearing,
Sasser's defense counsel testified that he typically does not object
during closing arguments unless the comments are " `absolutely
outrageous' because to object to anything less only highlighted the
comment and made the jury, which might not have understood the
significance of the remark, pay attention to it." The Circuit Court
then concluded that Sasser's attorney did not object to the
prosecutor's comments as a matter of trial strategy, and therefore,
did not render deficient performance.
We conclude that the Circuit Court's denial of
relief on the ineffective-assistance-of-counsel claim is not clearly
erroneous. Catlett v. State, supra. Experienced advocates might
differ about when, or if, objections are called for since, as a matter
of trial strategy, further objections from counsel may have succeeded
in making the prosecutor's comments seem more significant to the jury.
Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Because many
lawyers refrain from objecting during opening statement and closing
argument, absent egregious misstatements, the failure to object during
closing argument and opening statement is within the wide range of
permissible professional legal conduct. Cohen v. United States,
996 F.Supp. 110 (D. Mass. 1998).
Failure to Lodge Due Process Objection
Carter's testimony, while evidence of a prior crime,
was ruled admissible because it had independent relevance toward
proving Sasser's modus operandi and intent in the crime against Joanne
Kennedy, and because its probative value was not outweighed by the
danger of unfair prejudice. Sasser now argues that his counsel, in
addition to arguing that Ms. Carter's testimony was inadmissible
pursuant to Rules 403 and 404(b) of the Arkansas Rules of Evidence,
should have also argued that the admission of the testimony would
violate the Due Process Clause. Sasser contends that his rights to due
process and a fair trial were violated because the probative value of
the testimony was substantially outweighed by the danger of unfair
prejudice, and that an appropriate objection during trial would have
either led to the exclusion of the evidence or a different outcome in
the direct appeal.
We find no merit to this claim because it is
unlikely that a due process-based objection would have achieved any
more than counsel's objections based on the Rules of Evidence. In fact,
such an objection would have been redundant because fairness to the
party who opposes the admission of the evidence is built in to Rule
403 and Rule 404(b). According to Rule 404(b), evidence of prior
crimes, wrongs, or acts is generally not admissible unless it has
independent relevance. Despite having independent relevance, however,
the evidence must still pass the balancingtest in Rule 403, which
provides that relevant evidence may be excluded if the probative value
is outweighed by, among other things, the danger of unfair prejudice.
The Advisory Committee Note to Rule 403 explains that "unfair
prejudice" within the context of the rule, means "an undue tendency to
suggest a decision on an improper basis, commonly, though not
necessarily, an emotional one." Accordingly, it is unlikely that a due
process-based objection would have been any more successful during
trial, or in the direct appeal, and counsel did not perform
deficiently by limiting the grounds for his objection to the Rules of
Evidence.
Failure to Seek Limiting Instruction
Sasser next argues that his trial counsel was
ineffective for failing to request a limiting instruction when Jackie
Carter's testimony was admitted. In the direct appeal, we concluded
that we could not reach Sasser's argument that the trial court erred
by not giving the jury a limiting instruction because Sasser did not
request such an instruction. Sasser now argues that he was "absolutely
entitled" to the limiting instruction, and that but for his attorney's
failure to request it, the outcome of the trial, or the appeal, would
have been different.
In an affidavit that he filed in the postconviction
proceeding, Sasser's trial counsel stated that at the time that Jackie
Carter's testimony was admitted, his strategy was to avoid drawing
more attention to its content. He suggested thisstrategy manifested
itself in both his decision to decline cross-examining Ms. Carter and
in his decision to refrain from seeking a limiting instruction. Sasser
responds, however, by arguing that his attorney's claim that he made a
tactical choice is belied by his decision to argue the absence of the
instruction as trial error in the direct appeal.
In its order, the Circuit Court resolved the
apparent conflict by finding that counsel engaged in legitimate trial
strategy when he chose not to seek the limiting instruction.
Specifically, the court seemed to find the decision to not
cross-examine Ms. Carter as corroboration that counsel's omission was
a matter of trial strategy rather than error. The order states as
follows:
In this case, petitioner's counsel was faced with
overwhelming evidence against petitioner, not the least of which was
evidence that petitioner had attacked another convenience store
clerk under very similar circumstances a few years earlier. Because
petitioner's counsel was unsuccessful in keeping this evidence out,
petitioner's counsel was forced to consider how to deal with it in
front of the jury. In an effort not to highlight Jackie Carter's
testimony, petitioner's counsel chose not to request the instruction
that petitioner now alleges would have been requested. Counsel's
strategy with respect to that instruction was the same as it was
with respect to her trialtestimony, which is evidenced by counsel's
decision not to cross-examine her.
Accordingly, the Circuit Court concluded that
counsel's choice not to seek the limiting instruction was a matter of
trial strategy that could not be a basis for a finding of ineffective
assistance of counsel.
We have no cases that decide the issue of whether
the failure to seek a limiting instruction upon the admission of
evidence of prior crimes could be a matter of trial strategy, and
therefore, not cognizable as an ineffective-assistance-of-counsel
claim. While the Circuit Court's conclusion is not without support
from other jurisdictions1, the better
approach is to resolve the issue according to the prejudice prong of
the Strickland analysis. In United States v. Liefer, 778
F.2d 1236 (7th Cir. 1985) for example, the defendant argued
that his trial counsel was ineffective for not seeking a limiting
instruction when evidence of the defendant's prior bad acts was
admitted. The Seventh Circuit Court of Appeals, in denying relief on
the ineffective-assistance-of-counsel claim, applied the second prong
of the Strickland analysis in the following manner: "(w)e need
not decide whether...counsel `fell below an objective standard of
reasonableness,' (citation omitted) because, in light of
thesubstantial evidence against (the defendant), there is no
probability that the outcome of his trial was prejudiced by the
alleged deficiency." See alsoUnited States v. Ramos,
971 F.Supp. 186 (E.D. Pa. 1997); Easley v. State, 978 S.W.2d
244 (Tex. App. 1998). Accordingly, we must determine whether but for
counsel's failure to request the instruction, the outcome of the trial
would have been different.
As we explained above, there was ample evidence,
even excluding Jackie Carter's testimony, to support a conviction for
capital felony murder with either kidnapping, attempted kidnapping, or
attempted rape as the underlying felony. Under these circumstances,
there is no reasonable probability that the outcome of the trial would
have been different if Sasser's attorney had obtained a limiting
instruction.
As for the allegation that the failure to request
the instruction prejudiced Sasser on appeal, we have to evaluate the
likelihood of success attached to an allegation that the trial court
erred in refusing to give the instruction when it was requested. We
conclude that such an allegation would not have led to a reversal
because even if the trial court refused to give the instruction once
it was requested, the error would have been harmless in light of the
overwhelming evidence, excluding Jackie Carter's testimony, that was
introduced against Sasser. See United States v. Randazzo, 80
F.3d 623 (1st Cir. 1996); United States v. King,
897 F.2d 911 (7th Cir. 1990).
Failure to Seek Appointment of Co-Counsel
In his final argument in this appeal, Sasser
contends that he did not receive effective assistance of counsel
during his trial because he was not represented by two attorneys as
required by the minimum standards promulgated by the Arkansas Public
Defender Commission and the Guidelines for Appointment and Performance
of Counsel in Death Penalty Cases issued by the American Bar
Association. Sasser argues that despite the existence of these
standards and guidelines, his attorney did not seek the appointment of
another attorney to assist him, nor did the trial court appoint an
attorney on its own motion. Sasser then makes the bare allegation that
because additional counsel was not appointed, he received ineffective
assistance of counsel.
We affirm the Circuit Court's denial of relief on
this claim. Sasser has not made any specific allegation as to how the
absence of a second attorney affected his trial counsel's performance,
or how he was prejudiced by the fact that he was represented by one
attorney. Conclusory allegations cannot be a basis for postconviction
relief. Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990).
Affirmed.
1 In Abbott v. State,726 S.W.2d 644
(Tex. App. 1987), the court held that "(a)lthough hindsight may
suggest a limiting instruction of some nature, it is reasonable that,
as a trial tactic, counsel did not wish to remind the jury of those
matters."