{ "id": 1904370, "name": "Zealous Allen JONES v. STATE of Arkansas", "name_abbreviation": "Jones v. State", "decision_date": "1992-03-09", "docket_number": "CR 91-134", "first_page": "555", "last_page": "560", "citations": [ { "type": "official", "cite": "308 Ark. 555" }, { "type": "parallel", "cite": "826 S.W.2d 233" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "301 Ark. 513", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885538 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0513-01" ] }, { "cite": "296 Ark. 370", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892731 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0370-01" ] }, { "cite": "292 Ark. 116", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871420 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0116-01" ] }, { "cite": "285 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877668 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0440-01" ] }, { "cite": "802 S.W.2d 917", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1881078 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0311-02" ] }, { "cite": "304 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881035, 1881078 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0311-01", "/ark/304/0311-02" ] }, { "cite": "295 Ark. 357", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893823 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "363-64" }, { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/ark/295/0357-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "32 S.W.2d 619", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1930, "opinion_index": 0 }, { "cite": "182 Ark. 738", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389768 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/ark/182/0738-01" ] }, { "cite": "305 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916844 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0511-01" ] }, { "cite": "776 S.W.2d 359", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1989, "opinion_index": 0 }, { "cite": "300 Ark. 84", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886855 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0084-01" ] }, { "cite": "305 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916736 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0296-01" ] }, { "cite": "305 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916754 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0112-01" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] } ], "analysis": { "cardinality": 465, "char_count": 8694, "ocr_confidence": 0.916, "pagerank": { "raw": 1.0695147622297934e-07, "percentile": 0.559425665357324 }, "sha256": "c261f2b816bdd2f277d1d2b82c0603e712995a7ad351cbd479dc92bb15de62ec", "simhash": "1:8e5193347a2edd78", "word_count": 1486 }, "last_updated": "2023-07-14T18:22:40.186541+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Zealous Allen JONES v. STATE of Arkansas" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nAppellant was charged with first degree murder, pleaded not guilty, was given a jury trial, and was found guilty of second degree murder. He retained new counsel and filed a motion for a new trial in which he alleged ineffective assistance of trial counsel pursuant to A.R.Cr.P. Rule 36.4, which has been superseded by Rule 37.1. The trial court denied his motion for a new trial. He appeals from both the judgment of conviction and the denial of the motion for a new trial. There is no merit in either appeal.\nI.\nPursuant to Anders v. California, 386 U.S. 738 (1967), appellant\u2019s new counsel has filed a motion asking to be relieved as counsel and, in the motion, states that there is no merit in the direct appeal of the judgment of conviction. Appellant was notified of his right to file a pro se brief within thirty days. See Rule 11 (h) of the Rules of the Supreme Court and Court of Appeals. He did not respond. The State concurs that the direct appeal has no merit.\nAppellant\u2019s trial attorney challenged the sufficiency of the evidence at the close of the State\u2019s case, but failed to renew the motion at the close of all the evidence. Thus, the issue of the sufficiency of the evidence was waived. A.R.Cr.P. Rule 36.21(b); Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).\nAppellant\u2019s trial attorney moved for a continuance three days before the trial and stated that he had not been able to examine the ballistics reports and the medical examiner\u2019s report and that the medical examiner was not available for questioning about his report. The trial court denied the motion. A trial court\u2019s denial of a motion for a continuance will not be reversed absent a clear abuse of discretion, and appellant has the burden of proof in showing the abuse of discretion. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Appellant has not met this burden. The record reflects that he was not prejudiced because his attorney received the reports and had an opportunity to review them before trial.\nDefense counsel objected to the admission of photographs of the victim at the crime scene. It would unduly lengthen this opinion to describe each of the photographs. It is sufficient to state that the photographs show the nature and extent of the wounds. The trial court did not err in admitting them. Williams v. State, 300 Ark. 84, 776 S.W.2d 359 (1989).\nDefense counsel also objected to the admission of the murder weapon and the shells spent from it. The decision to admit physical evidence is discretionary with the trial court and will be upheld absent an abuse of that discretion. Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). The murder weapon, if clearly identified, is competent evidence in a prosecution for homicide. Barber v. State, 182 Ark. 738, 32 S.W.2d 619 (1930). There is no dispute that the weapon introduced at trial was the weapon the appellant used, nor is there any dispute that the shells were spent from it. The trial court did not abuse its discretion in admitting into evidence the murder weapon and its spent shells.\nWe grant the motion of appellant\u2019s new attorney and affirm the judgment of conviction and relieve the attorney from further representation of appellant in that part of the case.\nII.\nAppellant secondly contends that the trial court erred in denying his motion for a new trial on the ground of ineffective assistance of counsel. A claim of ineffective assistance of counsel must be examined in light of the criteria set out in Strickland v. Washington, 466 U.S. 668 (1984). Those criteria require a showing that counsel\u2019s performance was so deficient, and that counsel made an error so serious, that he was not functioning as the \u201ccounsel\u201d guaranteed by the Sixth Amendment to the Constitution; and the deficient performance must have resulted in prejudice so pronounced that it deprived the petitioner of a fair trial whose outcome can be relied on as just. Finely v. State, 295 Ark. 357, 363-64, 748 S.W.2d 643, 646 (1988). Under the second part of the Strickland standard, a defendant must show that there is a reasonable probability that, but for counsel\u2019s error, the result of the trial would have been different. Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991).\nAppellant argues that his trial counsel made four errors that were so serious they deprived him of a fair trial. First, he argues that his counsel had constructive notice of the existence of a video tape that showed the crime scene on the day of the murder, but counsel failed to discover it. The tape shows the victim lying on his back with a pool of blood to the left of his head, which would indicate that either he moved or was moved after appellant shot him in the back. Appellant contends that the tape corroborates his testimony that he and the victim were wrestling on the ground, with the victim on top, when he shot the victim. However, other evidence at the trial corroborated that part of appellant\u2019s version of the fray. One of the State\u2019s witnesses testified that the victim was on top of appellant when appellant shot him, and he then rolled off the top of appellant. Also, a photograph of the victim at the crime scene shows blood to the left of his head which indicates that either he moved or was moved after he was shot. Thus, appellant has not shown that there is a reasonable probability that, but for counsel\u2019s error in failing to discover the video tape, the outcome of the trial would have been different.\nSecond, appellant contends that his trial counsel was ineffective in failing to timely file a motion for a continuance. He contends that if the motion had been timely filed and granted, he would have had additional time for plea bargaining. We could summarily end this argument by stating that there is nothing in the record to indicate that the motion for a continuance was denied because it was not timely filed. However, in addition, appellant\u2019s attorney testified that the State made a plea offer of eight years, which the appellant rejected, and the appellant admitted that just before the trial he was told by his attorney that the victim\u2019s family wanted a trial and the prosecutor said there would be no further plea negotiations.\nThird, appellant argues that his trial counsel failed to engage in timely plea negotiations and failed to communicate a plea offer to him. The decision on whether to enter into plea negotiations is a matter of strategy beyond the purview of post-conviction relief. Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985). Furthermore, appellant has not shown that there is a reasonable probability that the outcome of the proceeding would have been any different if counsel had earlier entered into plea negotiations, since the prosecutor offered to recommend a sentence of eight years if the appellant would plead guilty, and appellant rejected it. Further, appellant admitted that just before trial his counsel told him that the prosecutor said there would be no further plea negotiations.\nAppellant\u2019s trial attorney testified that he told appellant about the State\u2019s offer of eight years, and appellant rejected the offer. Appellant contends that the offer was never communicated to him, and therefore a new trial should be granted. Conflicts in the testimony are for the factfinder to resolve, and the factfinder is not required to believe the testimony of any witness, especially the defendant, who is an interested party. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987).\nFourth, appellant argues that trial counsel failed to call a witness from the medical examiner\u2019s office. Appellant did not raise this claim in his motion for a new trial but, instead, made the allegation for the first time at the post-trial hearing. The trial court did not rule on the issue. On appeal, we will not consider matters which are outside the scope of the petition for post-conviction relief. Morgan v. State, 296 Ark. 370, 757 S.W.2d 530 (1988). Further, the failure to call the witness did not affect the outcome of the trial.\nAppellant argues that the errors of trial counsel, considered cumulatively, so prejudiced him that he was denied a fair trial. We do not recognize cumulative error in allegations of ineffective assistance of counsel. Parks v. State, 301 Ark. 513, 785 S.W.2d 213 (1990). We affirm the trial court\u2019s denial of appellant\u2019s motion for a new trial.\nAffirmed on direct and post-conviction appeals.", "type": "majority", "author": "Robert H. Dudley, Justice." } ], "attorneys": [ "Tim A. Womack, P.A., by: Tim A. Womack, for appellant.", "Winston Bryant, Att\u2019y Gen., Catherine Templeton, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Zealous Allen JONES v. STATE of Arkansas\nCR 91-134\n826 S.W.2d 233\nSupreme Court of Arkansas\nOpinion delivered March 9, 1992\nTim A. Womack, P.A., by: Tim A. Womack, for appellant.\nWinston Bryant, Att\u2019y Gen., Catherine Templeton, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0555-01", "first_page_order": 583, "last_page_order": 588 }