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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-16-940

                                                   Opinion Delivered: May   11, 2017

STEVEN RUSSELL, JR.
                                 APPELLANT APPEAL FROM THE PULASKI
                                           COUNTY CIRCUIT COURT
V.                                         [NO. 60CR-09-4519]

STATE OF ARKANSAS                            HONORABLE WENDELL
                                    APPELLEE GRIFFEN, JUDGE

                                                   AFFIRMED.


                            SHAWN A. WOMACK, Associate Justice


        Steven Russell appeals from the Pulaski County Circuit Court’s order denying his

 petition for postconviction relief due to ineffective assistance of counsel under Arkansas

 Rule of Criminal Procedure 37.1 (2015). Russell was convicted of capital murder for the

 death of his girlfriend. He received a sentence of life without parole and a 15-year sentence

 enhancement for the use of a firearm in the commission of the crime. We affirmed his

 conviction on direct appeal. Russell v. State, 2013 Ark. 369. For the reasons discussed below,

 we affirm the circuit court’s denial of Russell’s petition.

        We review the circuit court’s decision on Rule 37.1 petitions for clear error. Adkins

 v. State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (per curiam). A finding is clearly

 erroneous when, although there is evidence to support it, the appellate court, after reviewing

 the entirety of the evidence, is left with the definite and firm conviction that a mistake has

 been committed. Id. This court has adopted the United States Supreme Court’s test from
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Strickland v. Washington, 466 U.S. 668 (1984), to determine whether counsel was ineffective.

Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. The Strickland test requires both (1)

that the petitioner’s counsel’s performance was deficient and (2) that the petitioner was

prejudiced by that deficient performance. Strain v. State, 2012 Ark. 42, at 2, 394 S.W.3d

294, 297 (per curiam). Failing either prong of Strickland is independently fatal to a Rule 37.1

petition. See, e.g., Pennington v. State, 2013 Ark. 39, at 2 (per curiam). The first prong

requires more than a mere hindsight-driven criticism of an attorney’s conduct. To be

deficient, trial counsel’s conduct must be outside “the wide range of reasonable professional

assistance.” See, e.g., Russell v. State, 2016 Ark. 109, at 2, 490 S.W.3d 654, 658. Similarly,

the second prong is not satisfied by a bare contention that the trial counsel’s conduct might

have conceivably impacted the trial; we look instead for a reasonable probability that the jury

would have reached a different result without the counsel’s errors. Watson v. State, 2014

Ark. 203, at 3–4, 444 S.W.3d 835, 839. A reasonable probability is one “sufficient to

undermine confidence in the outcome of the trial.” Id.

       First, Russell argues that his counsel was deficient for allowing the jury to view

unredacted medical records, which contained information about an incident in which

Russell broke a prior girlfriend’s jaw. Before the trial, his attorney sought and obtained a

ruling preventing the State from introducing evidence about the episode under Arkansas

Rule of Evidence 404(b), which prohibits raising past crimes or bad acts “to prove the

character of a person in order to show that he acted in conformity therewith.” The 404(b)

ruling is not, however, relevant to the circumstances in which the medical records were

introduced to the jury here. Instead of the prosecution introducing the broken-jaw incident


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to demonstrate a character defect, the information was critical to establish Russell’s own

contention that his post-traumatic stress disorder (“PTSD”) negated his culpability for the

homicide. All three expert reports weighing in on Russell’s PTSD defense referenced the

battery and the mental-health treatment Russell received afterward. The reports of Dr.

Ronald Faupel and Dr. James R. Moneypenny ultimately reached favorable conclusions for

Russell on the question of criminal responsibility. Because the Rule 404(b) ruling that

Russell relies on is not applicable to medically relevant information bearing on Russell’s

own defense, Russell cannot now establish the necessary prejudice for Strickland. The

evidence was both admissible and cumulative of other evidence, and as such there is no

reasonable probability that additional efforts by the trial counsel to limit introduction of the

medical records would have altered the outcome of the trial.

       Next, Russell contends that the failure of his trial counsel to preserve an objection

regarding the circuit court’s “gatekeeper function” merits Rule 37.1 relief. On direct appeal,

we fully addressed the claim that the trial court should have acquitted Russell based on the

evidence of PTSD presented by the experts. See Russell, 2013 Ark. 369, at 4–5. What we

declined to address—and therefore the only point Russell could be criticizing his trial

counsel for not preserving—was the argument that the State should not have been allowed

to get an evaluation from Dr. Bradley Diner after the initial evaluation by Dr. Ronald Faupel

determined that Russell was mentally incapacitated by his PTSD at the time of the crime.

Dr. Diner ultimately testified that Russell was not mentally incapacitated by his PTSD at

the time of the crime. The circuit court did not, however, address this narrow point in its

order on Russell’s petition for postconviction relief, and we will not address an argument


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for which the appellant failed to obtain a ruling below in a postconviction case. See Howard

v. State, 367 Ark. 18, 31, 238 S.W.3d 24, 35 (2006).

       Russell argues next that his trial counsel was deficient for failing to state the grounds

for a mistrial in his oral motion requesting that remedy. After just over an hour of

deliberations on Thursday, January 26, 2011, and one full day of deliberations on the

following day, the jurors reported to the circuit court that they were at an impasse. One

juror was set on convicting Russell of capital murder while the others were set on first-

degree murder. The circuit court sent a note back asking if the jury “may be able to

deliberate toward a verdict after a night of rest.” Russell’s trial counsel moved for a mistrial

in response, and the motion was denied. Shortly after receiving the note, the jury returned

a unanimous verdict for capital murder.

       Russell argues that because the communication occurred on a Friday afternoon, it

effectively asked the jurors whether they were willing to “give up their weekend for this

self-professed killer and come back and work some more on Saturday.” Russell’s argument

on this point fails Strickland’s second prong. We have consistently held that a mistrial is an

“extreme and drastic remedy.” See, e.g., Moore v. State, 355 Ark. 657, 666, 144 S.W.3d 260,

266 (2004). Courts in Arkansas are permitted to give juries the “Allen charge,” which stresses

the importance of reaching a verdict and the monetary and social costs of delayed justice.

See Walker v. State, 276 Ark. 434, 637 S.W.2d 528 (1982). By comparison, the court’s

communication here was—despite Russell’s characterization to the contrary—an utterly

unremarkable assurance that the jury could take more time to reach a verdict if necessary

after an hour of deliberations on one day followed by a single full day. Because Russell has


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not demonstrated any credible basis on which the disfavored remedy of a mistrial might

have been granted even if his trial counsel had preserved the issue for appellate review, we

hold that he has not demonstrated prejudice for the purposes of Strickland.

       Finally, Russell attempts to argue in his postconviction appeal that the trial court

erred in not excluding Dr. Diner’s testimony. He claims that Dr. Diner’s report and

conclusions were outside the accepted scientific consensus on PTSD and had “no basis in

medicine or science.” As the circuit court noted, this is a claim of trial error rather than

ineffective assistance of counsel. A postconviction Rule 37.1 motion is not the appropriate

medium for collateral attack on the trial court’s rulings. As we have consistently held,

allegations of trial error must be made at trial and on direct appeal. See, e.g., Watson v. State,

2012 Ark. 27, at 3. We therefore decline to consider his claim here.

       Because any errors demonstrated by Russell are either nonprejudicial under Strickland

or inappropriate for postconviction consideration, we hold that the circuit court did not

clearly err in denying his petition.

       Affirmed.

       Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

       Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.




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