Abernathy v. State

• Decision Date: 09 February 2012
• Docket Number: No. CR 10–941.,CR 10–941.
• Citation: 386 S.W.3d 477,2012 Ark. 59
• Court: Arkansas Supreme Court
• Parties: Routy ABERNATHY, Appellant v. STATE of Arkansas, Appellee.

2012 Ark. 59

386 S.W.3d 477

Routy ABERNATHY, Appellant

v.STATE of Arkansas, Appellee.

No. CR 10–941.

Supreme Court of Arkansas.

Feb. 9, 2012.

John Ragan Van Winkle, Fayetteville, for appellant.

Dustin McDaniel, Atty. Gen., Brad Newman, Little Rock, for appellee.

PER CURIAM.

Appellant Routy Abernathy filed in the trial court a pro se petition under Arkansas Rule of Criminal Procedure 37.1 (2011), in which he sought postconviction relief from his 2009 convictions on two counts of rape. Appellant lodged this appeal of an order denying the petition and raises four points of asserted error in the trial court's failing to find ineffective assistance of counsel. We find no reversible error and affirm.

The offenses at issue in appellant's trial involved two girls, ten and eleven years old, who were daughters of his wife's sister. The girls testified to incidents of digital and penile penetration and penetration with a dildo by appellant that occurred while the girls were staying at appellant's home in Greenwood. A third child, the daughter of a woman with whom appellant had had an affair while he and his family lived in Oklahoma, also testified that appellant had on one occasion inserted his finger into her anus. The previous incident that occurred in Oklahoma was not prosecuted.

On direct appeal, appellant challenged the admission of the testimony concerning the Oklahoma incident, and the Arkansas Court of Appeals affirmed. Abernathy v. State, 2009 Ark. App. 702, 2009 WL 3460705. Appellant filed a timely, verified, pro se petition under Rule 37.1 that raised a number of claims of ineffective assistance of counsel. The court appointed counsel to represent appellant in the proceedings and, following a hearing on the petition, denied the relief sought in a written order that set forth findings of fact and conclusions of law.

Appellant raises four points ¹ on appeal that each allege error in the trial court's failure to find ineffective assistance of counsel. Those points are based upon the following assertions of error by trial counsel: (1) failing to investigate, consult with, or call a medical expert; (2) telling the jury in his opening statement that he would not allow appellant to take the stand if he did not believe that the State had proven its case beyond a reasonable doubt; (3) failing to object to the prosecution's question to a defense witness about whether she believed the third victim from Oklahoma; (4) failing to file a motion to introduce evidence concerning a previous claim by one of the victims against her grandfather that was alleged to be false.

On the claim in the first point, the trial court found that counsel had consulted a nurse. The court further found that, in the Rule 37.1 proceeding, appellant had not presented an expert witness who would have testified, and, as a consequence, appellant had not demonstrated prejudice from a failure to call such a witness or further investigate the medical aspects of the case. On the claim in the second point, the trial court found that counsel made the comment at issue during opening statements as a tactical maneuver, that the attorneys later presented arguments as to the correct burden of proof, and that the jury was advised of the proper burden of proof in instructions. On the claim in the third point, the court found that counsel had admitted error in failing to object to the prosecutor's question as alleged, but the court concluded that Rule 37.1 did not provide a means to review that error or serve to substitute for appeal. Concerning the claim in the last point, that counsel failed to make a motion to introduce evidence concerning the allegations appellant alleged were false, the trial court found that trial counsel had not made the motion after correctly concluding that the evidence would not have been admissible.

This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam); Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228 (per curiam); Dunlap v. State, 2010 Ark. 111, 2010 WL 746185 (per curiam). 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. Payton, 2011 Ark. 217, 2011 WL 1805340;Hawthorne v. State, 2010 Ark. 343, 2010 WL 3721972 (per curiam); Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per curiam).

At issue are only claims of ineffective assistance of counsel. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. We assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hale v. State, 2011 Ark. 476, 2011 WL 5437541 (per curiam).

Under the Strickland test, a petitioner raising a claim of ineffective assistance must first 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. Id. In addition, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. A defendant making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Miller v. State, 2011 Ark. 114, 2011 WL 913206 (per curiam). In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Delamar v. State, 2011 Ark. 87, 2011 WL 693579 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

Appellant's first point alleging error asserts ineffective assistance on the basis that counsel did not consult with or call a medical expert and failed to investigate adequately the aspects of the case concerning the lack of physical evidence. On appeal, appellant contends that there were important medical issues that “clearly called for medical expert testimony;” that counsel was ineffective if he failed to seek medical expert testimony where it was appropriate; that, where there was substantial contradiction in a given area of expertise, it may be vital for counsel to elicit expert testimony rebutting the state's expert testimony; that counsel failed to become adequately versed in the subject matter; and that counsel did not seek expert testimony to establish that, had appellant done what the victims alleged, there would have been physical damage.

We need not determine whether the trial court may have correctly concluded that the first prong of the Strickland test was met by counsel's consultation with a nurse. Both prongs of the test must be satisfied, and we agree that the trial court correctly concluded that appellant failed to demonstrate prejudice as to any error in failing to investigate the medical aspects of the case or the need for expert testimony.

The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption, and such statements and allegations will not warrant granting postconviction relief. Payton, 2011 Ark. 217, 2011 WL 1805340. Appellant testified at the hearing on the Rule 37.1 petition that he had found information on the internet that would have contradicted testimony by the State's witness, a nurse who performed sexual assault examinations, and a defense witness, a nurse with similar training and duties, concerning the commonness of normal examinations following a sexual assault on a child. Appellant did not provide evidence at the hearing in support of that allegation, and, despite appellant's apparent position that prejudice was obvious, we cannot say that evidence to contradict the nurses was readily available or that appellant made a demonstration that it was.

If a petitioner claims ineffective assistance based on a failure to call a witness, the petitioner must name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Fernandez v. State, 2011 Ark. 418, 384 S.W.3d 520 (per curiam). In order to demonstrate prejudice, appellant was required to establish that there was a reasonable probability that, had counsel performed further investigation and presented a witness that would have been located as a result of that further investigation, the outcome of the trial would have been different. Id. Appellant provided no more than his conclusory statements in that regard, and he did not provide information concerning what specific testimony would have been elicited from an expert witness had trial counsel investigated further. He did not identify any witness who would have been available to testify at trial that physical evidence was normal under the circumstances presented, as appellant contends, nor did he submit any summary concerning the specific testimony that such a witness would have provided. Without more, appellant's allegations of prejudice did not support relief.

Appellant's second claim concerns what is characterized as a comment that prejudiced the jury by indicating that trial counsel believed that the prosecution had made its case if appellant took the stand to testify. In opening statement, trial counsel stated that he had not decided whether to “let” appellant take the stand and that he had “a duty to do my job and not allow him to take the stand if I don't believe the State has proven its case beyond a...