Randy W. Duck v. State of Arkansas

Cite as 2020 Ark. App. 161
Reason: I attest to the accuracy
and integrity of this document ARKANSAS COURT OF APPEALS
Date: 2021-07-01 12:18:16 DIVISION II
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No. CR-19-110

Opinion Delivered: March 4, 2020
RANDY W. DUCK
APPELLANT APPEAL FROM THE UNION
COUNTY CIRCUIT COURT
[NO. 70CR-15-71]
V.
HONORABLE HAMILTON H.
SINGLETON, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Randy Duck appeals the order of the Union County Circuit Court

denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules

of Criminal Procedure (2019).1 Appellant, appearing pro se, raises eight points on appeal;

however, none require reversal. We affirm.

Appellant was convicted by a Union County Circuit Court jury of the rape of B.P.,

his stepdaughter, in violation of Arkansas Code Annotated section 5-14-103(a)(2)(B) (Supp.

2019), which provides that a person commits the crime of rape if he or she engages in sexual

1
We dismissed appellant’s previous pro se appeal of the circuit court’s denial of his
request for postconviction relief because the record reflected that he was still represented by
counsel. See Duck v. State, 2019 Ark. App. 556. On January 29, 2020, this court granted
counsel’s motion to be relieved and reinstated appellant’s pro se appeal that is the subject of
this opinion.
intercourse or deviate sexual activity with another person who is incapable of consent

because he or she is mentally defective. At the time of the rape, B.P. was seventeen years

old but had the mental age of a four-to seven-year-old. Following a jury trial, appellant was

found guilty and sentenced to fifteen years’ imprisonment in the Arkansas Department of

Correction. We affirmed his conviction on direct appeal.2

Appellant then filed in the circuit court a pro se petition for postconviction relief.

The circuit court denied the petition without holding an evidentiary hearing. Appellant

now brings this appeal.

On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief,

this court will not reverse the circuit court’s decision granting or denying postconviction

relief unless it is clearly erroneous.3 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.4

The benchmark for judging a claim of ineffective assistance of counsel is “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.”5 Pursuant to Strickland, we assess

the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim

2
See Duck v. State, 2016 Ark. App. 596, 509 S.W.3d 5.
3
Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001).
4
Id.
5
Strickland v. Washington, 466 U.S. 668 (1984).

2
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.6 A petitioner making an ineffective-assistance-of-counsel claim

must show that counsel’s performance fell below an objective standard of reasonableness.7

A court must indulge in a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.8

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

petitioner’s defense that he or she was deprived of a fair trial.9 The petitioner must show

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.10 A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the trial.11 Unless a petitioner makes both showings, it cannot

be said that the conviction resulted from a breakdown in the adversarial process that renders

6
Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007).

7
Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).
8
Id.
9
Id.
10
Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).
11
Id.

3
the result unreliable.12 Additionally, conclusory statements that counsel was ineffective

cannot be the basis of postconviction relief.13

For his first point on appeal, appellant argues that the circuit court erred in finding

that his counsel was not ineffective for failing to challenge the sufficiency of the proof that

B.P. was “mentally defective” as required under Arkansas Code Annotated section 5-14-

103(a)(2)(B).14 “Mentally defective” is defined as suffering from a mental disease or defect

that renders the person incapable of understanding the nature and consequences of a sexual

act or unaware a sexual act is occurring.15 Appellant contends that no testimony was

presented to establish that B.P. was either incapable of understanding the nature and

consequences of a sexual act or unaware that a sexual act was occurring. He argues that due

to the State’s failure to “present evidence sufficient to satisfy requirements of” Arkansas

Code Annotated section 5-14-103(a)(2)(B), counsel should have moved for a directed

verdict, and the failure to do so was “professionally unreasonable” and amounted to

ineffective assistance.

As an initial matter, we note that on direct appeal, appellant challenged the

sufficiency of the evidence to support his rape conviction.16 In affirming, this court found

12
Id.
13
Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
14
(Supp. 2019).
15
Ark. Code Ann. § 5-14-101(4)(A)(i) & (ii).
16
See Duck, 2016 Ark. App. 596, 509 S.W.3d 5.

4
that there was sufficient evidence to support each element of the offense pursuant to

Arkansas Code Annotated section 5-14-103(a)(2)(B).17 To the extent that appellant raises

this “mental defect” argument as a challenge to the sufficiency of the evidence, we decline

to address it as such.18

Furthermore, appellant’s argument that trial counsel was ineffective for failing to

move for a directed verdict is without merit. When a petitioner asserts that counsel is

ineffective for the failure to make a motion or an argument, the petitioner must show that

the motion or argument would have been meritorious because the failure to make an

argument that is meritless is not ineffective assistance of counsel.19

Here, despite appellant’s contention to the contrary, there was substantial testimony

relating to B.P.’s mental deficits. Dr. Michael Scott Chanler, B.P.’s doctor, testified that

B.P. has a “medical history of some retardation, cerebral palsy, a history of limited seizure

activity later in life.” He opined that B.P.’s mental age ranged from four to seven years old.

Dr. Chanler also testified that, in his opinion, B.P. was incapable of making her own medical

and financial decisions or holding a job. Additionally, at trial, Renae Duck, B.P.’s mother,

testified that her daughter had been diagnosed with cerebral palsy with some global brain

damage. She stated that she obtained a guardianship over B.P. and that B.P. has the mental

age of approximately six years old.

17
See Duck, 2016 Ark. App. 596, 509 S.W.3d 5.
18
See Scott v. State, 2012 Ark. 199, 406 S.W.3d 1 (a direct challenge to the sufficiency
of the evidence is not cognizable in Rule 37.1 proceedings).
19
Chunestudy v. State, 2014 Ark. 345, 438 S.W.3d 923.
5
We hold that counsel’s failure to move for directed verdict challenging the proof of

mental defect resulted in no prejudice to appellant; considering the testimony of B.P.’s

doctor and mother, the motion would have been denied. Counsel cannot be ineffective

for failing to make a meritless motion.

Appellant next argues that the circuit court erred in denying his request for

postconviction relief based on his claim that counsel was ineffective for failing to move to

strike two jurors. He argues that two particular jurors have close ties with the prosecuting

attorney’s office—one with familial ties and the other through employment relations—and

consequently were not qualified to serve as jurors. This court has previously held that a

claim of ineffective assistance for failure to object to the seating of a juror is a challenge to

the qualifications of the particular juror to serve, and such a claim is a direct attack on the

verdict and not a cognizable claim in a petition for Rule 37.1 relief.20

For his next point on appeal, appellant argues that the circuit court erred by denying

relief on his claim that counsel was ineffective for failing to challenge the chain of custody

of certain evidence. Renae testified that on the night of January 19, 2015, she woke up and

found her husband, appellant, not in bed with her; she found him in B.P.’s room, clothed

and “propped up” beside B.P. Renae later returned to B.P.’s room; appellant was then

“beneath the covers on the other side” of B.P., and B.P.’s panties and pajama bottoms were

on the floor. When she questioned B.P. about why her clothes were on the floor, B.P. said,

20
See Anderson v. State, 2009 Ark. 493.

6
“[Y]ou need to ask D that mamma and [appellant] said shut up [B.P.]”21 B.P. later told

Renae that appellant was “loving on [her].”

Renae testified that she thereafter saw appellant’s boxers in the bathroom and noticed

a “brownish stain at the front area on the inside of the underwear where his penis would be

located.” She then placed the boxers in a bag. Renae also separately bagged B.P.’s panties

when she discovered “the same colored stains on [B.P.’s] panties as [on appellant’s]

underwear.” Renae testified that she then placed the separately bagged items in a closet.

Detective Jim Sanders of the Union County Sheriff’s Office testified that following Renae’s

report of the incident, he went to appellant’s home and retrieved the separately bagged items

that were located in the closet, just as Renae had indicated.

On appeal, appellant asserts that there were contradictions in the witnesses’ testimony

regarding the storage of the items. In support of his argument, he directs the court’s

attention to Renae’s testimony wherein she testified to placing the items in paper bags;

however, Detective Sanders testified that he found them in plastic bags. Relying on Crisco

v. State,22 appellant contends that counsel’s failure to object to the admission of the bloody

underwear and panties on chain-of-custody grounds amounted to ineffective assistance.

Appellant contends that Crisco was reversed and remanded for “visual discrepancies” similar

to those in the case at hand. We disagree. The holding in Crisco was much narrower than

appellant’s argument indicates.

21
B.P. referred to appellant as “D.”
22
328 Ark. 388, 943 S.W.2d 582 (1997).

7
Keith Crisco was convicted of delivery of methamphetamine. 23 On appeal, he

argued that there were discrepancies related to the evidence: an officer testified that the

substance was an off-white powder, while the forensic chemist described the drug as a tan,

rock-like substance.24 Crisco argued that because of the discrepancies, there was a possibility

that a break in the chain of custody occurred and that the circuit court abused its discretion

in allowing into evidence an exhibit that was not properly authenticated.25 The Crisco court

reversed and remanded for the “marked difference[s]” in the descriptions of the substance

and the “readily interchangeable” nature of the substance.26 That is not the circumstance

before this court. Here, the difference in description was minor—paper or plastic—not

marked differences as in Crisco, and the one minor difference was related to the storage of

the items and not the items of evidence themselves. Additionally, appellant’s underwear

and B.P.’s panties, both with bloodstains, are not readily interchangeable items. Minor

uncertainties in the proof of chain of custody are matters to be argued by counsel and

weighed by the jury, but they do not render the evidence inadmissible as a matter of law.27

Therefore, despite appellant’s urging to the contrary, we find no reversible error on this

point.

23
Id.
24
Id.
25
Id.
26
Id.
27
McLaughlin v. State, 2015 Ark. 335, 469 S.W.3d 360.

8
For his next point on appeal, appellant argues that counsel was ineffective for failing

to call certain witnesses during the guilt phase of his trial. He claims that he was prejudiced

by counsel’s refusal to call witnesses to testify regarding his “good character and reputation

for truthfulness” as well as to advance a theory that he was “set-up” and that Renae

“orchestrat[ed] a false rape allegation in order to gain leverage in their divorce proceedings.”

The decision of whether to call a witness is generally a matter of trial strategy that is outside

the purview of Rule 37.1.28

When assessing an attorney’s decision not to call a particular witness, it must be taken

into account that the decision is largely a matter of professional judgment that experienced

advocates could endlessly debate, and the fact that there was a witness or witnesses who

could have offered testimony beneficial to the defense is not in and of itself proof of counsel’s

ineffectiveness.29 When a defendant produces a character witness, he or she may open the

door to evidence that might be inadmissible otherwise.30 Once the door has been opened,

the State may question the witness regarding his or her knowledge of specific instances of

conduct, and there is no limit, other than relevancy, on the kind of instances of misconduct

with respect to which cross-examination may occur.31

28
Nelson v. State, 334 Ark. 407, 39 S.W.3d 791 (2001) (per curiam).
29
Id.
30
Johnson v. State, 2010 Ark. App. 606, 378 S.W.3d 152.
31
Id.

9
Here, despite appellant’s contention that certain witnesses had “intimate knowledge”

of his good character, the record demonstrates that putting on character witnesses would

have opened the door to damaging testimony. The following statement in appellant’s brief

supports this finding: “The Court itself confirmed the fact that Renae Duck was a witness

with obvious motive against Duck, being the alleged shooting of a firearm at her and other

abusive conduct toward Renae Duck . . . .” As such, we hold that appellant has failed to

overcome the strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance.32

Appellant also argues that the circuit court erred in denying relief on his allegation

that counsel provided ineffective assistance by failing to call the aforementioned witnesses

to testify during the sentencing phase of his trial. Again, the decision not to call a particular

witness is generally a matter of trial strategy and therefore is not cognizable in a Rule 37.1

proceeding.33 Moreover, although appellant argues that he was prejudiced by counsel’s

failure to call certain witnesses, we are unpersuaded. Appellant was charged with a Class Y

felony, which subjected him to a sentence range of ten to forty years, or life; however,

appellant was sentenced to serve fifteen years’ incarceration. We find no reversible error in

the circuit court’s denial of relief on this point.

Appellant next argues that counsel provided ineffective assistance based on the failure

to present evidence of “doctor shopping” by Renae and that the circuit court clearly erred

32
See Taylor v. State, 2015 Ark. 339, 470 S.W.3d 271.
33
Nelson, supra.

10
in finding to the contrary. Specifically, appellant alleges that Renae took B.P. to be

examined by three medical professionals; two, a doctor and a nurse, both unnamed,

concluded that B.P. displayed no physical evidence of sexual abuse or penetration.

Appellant contends that had counsel properly cross-examined Renae and elicited this

testimony, there is a “reasonable probability that the jury would have concluded that no

sexual activity took place at all between Duck and the alleged victim.”34

The circuit court found that counsel’s decision not to cross-examine Renae on the

alleged doctor shopping was a matter of trial strategy. We agree. Where a decision by

counsel was a matter of trial strategy, and that decision is supported by reasonable

professional judgment, counsel’s decision does not provide a basis for Rule 37.1 relief.35

Moreover, Carla Thomas, a sexual-assault nurse examiner at Children’s Advocacy Center,

testified that B.P.’s hymen had an abnormal notch that was indicative of abuse. Thomas

further testified that the injury is consistent with sexual intercourse; “[s]omething had to

pass through the labia and all the way to get into the vagina.” In his argument, appellant

does not provide any timeline as to when the examinations by the unidentified doctor and

nurse occurred. We are left to speculate as to whether Thomas’s examination was first, last,

or in between and what, if any, significance that has. Appellant additionally fails to identify

34
The State mischaracterizes appellant’s argument on this point, addressing it as a
failure to call witnesses (doctor and nurse) to testify; however, appellant’s argument is
presented as a failure to properly cross-examine Renae about the alleged examinations
performed by the unnamed doctor and nurse.
35
Adams v. State, 2013 Ark. 174, 427 S.W.3d 63 (citing Abernathy v. State, 2012 Ark.
59, 386 S.W.3d 477 (per curiam)).

11
the doctor and nurse and does not provide any details as to their alleged findings. Therefore,

due to the lack of facts supporting his argument, we cannot say that counsel’s decision was

not based on reasonable professional judgment. Conclusory statements without supporting

facts do not support the granting of postconviction relief.36

Appellant also argues that the circuit court erred in finding that his counsel was not

ineffective for failing to poll the jury after the trial was concluded. He contends that

following trial, his counsel informed him that two of the jurors expressed that they felt

pressured by the jury foreperson and that the verdict was a “compromise verdict.”

When the jury delivered its verdict finding appellant guilty of rape, the circuit court

asked, “Ladies and gentlemen of the jury, is this your verdict, each of you so say all of you?”

The record reflects that the jurors responded, “Yes.” Given that affirmative response from

the jurors, appellant’s counsel declined to poll the jury.

Although appellant asserts that he was prejudiced by counsel’s failure to poll the jury,

he only speculates as to what may have occurred had the jury been polled. He fails to

provide facts establishing prejudice. Appellant does not contend that any of the individual

jurors, during the collective response affirming the guilty verdict, showed outward signs of

equivocation as to their vote. Bare assertions of ineffectiveness are not enough, and

conclusory statements that counsel was ineffective will not sustain a Rule 37 petition. 37 We

36
Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618.
37
Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.

12
are unconvinced by appellant’s assertion that, had the jury been polled, there was a

“reasonable probability that a mistrial would have been granted.”

Lastly, appellant contends that the circuit court erred in denying his Rule 37.1

petition without making sufficient written findings. 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. When the circuit court denies relief without holding 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.”38 When the circuit court fails to make such findings,

it is reversible error, except in cases where it can be determined from the record that the

petition is wholly without merit or which the allegations in the petition are such that it is

conclusive on the face of the petition that no relief is warranted.39

First, we observe that in its order denying appellant’s petition for postconviction

relief, the circuit court made extensive findings as to each of appellant’s claims of ineffective

assistance of counsel. Second, other than making the conclusory statement that the circuit

court did not make the required sufficient written findings, appellant failed to direct this

court’s attention to any specific respect in which the written findings were insufficient.

Therefore, we do not consider the issue further.

Based on the foregoing, we hold that the circuit court did not err in denying

appellant’s petition for Rule 37.1 relief.

38
Ark. R. Crim. P. 37.3(a); see Johnson v. State, 2014 Ark. 74.
39
Johnson, supra.
13
Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Randy Duck, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

14