Bryant v. State

• Decision Date: 05 September 2013
• Docket Number: No. CR–11–481.,CR–11–481.
• Citation: 429 S.W.3d 193,2013 Ark. 305
• Court: Arkansas Supreme Court
• Parties: Lloyal Willie BRYANT, Appellant v. STATE of Arkansas, Appellee.

2013 Ark. 305

429 S.W.3d 193

Lloyal Willie BRYANT, Appellant

v.STATE of Arkansas, Appellee.

No. CR–11–481.

Supreme Court of Arkansas.

Sept. 5, 2013.

Lloyal Willie Bryant, pro se appellant.

Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.

PER CURIAM.

Appellant Lloyal Willie Bryant was convicted in the Boone County Circuit Court on two counts of rape and two counts of second-degree sexual assault, and he received an aggregate sentence of life plus forty years' imprisonment on the charges. This court affirmed the judgment. Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152. Appellant filed in the trial court a timely pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2012). The court appointed counsel, held a hearing on the petition, and entered an order denying the petition. Appellant, now pro se, appeals. We find no error and affirm.

Under our standard of review, this court does not reverse an order that denies postconviction relief unless the trial court's findings are clearly erroneous. Thompson v. State, 2013 Ark. 179, 2013 WL 1776683 (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. Id.

Appellant groups his arguments on appeal into two points. In both points, appellant alleges that counsel was ineffective. The benchmark question to be resolved in 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. Norris v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam). We assess the effectiveness of counsel under a two-prong standard as 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). Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (per curiam). Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy both prongs of the test, and it is not necessary to examine both components of the inquiry if the petitioner fails to satisfy either requirement. See Pennington v. State, 2013 Ark. 39, 2013 WL 485660 (per curiam).

A petitioner claiming 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. Walton v. State, 2013 Ark. 254, 2013 WL 2460191 (per curiam). There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumptionby identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id.

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.

In his first point, appellant asserts that counsel was ineffective in his representation, causing a conflict. Appellant does not develop that argument further, but he also raises claims in this first point that trial counsel failed to conduct an adequate investigation, consult with his client, or interview the prosecution's witnesses. Appellant argues that any strategy counsel adopted was not reasonable, that counsel did not obtain a witness's recorded statement, and that counsel did not effectively cross-examine the witnesses at trial. Appellant asserts that he demonstrated prejudice, and he contends that, in determining prejudice, the court must consider the cumulative effect of counsel's errors.

In his second point on appeal, appellant asserts that counsel failed to adequately attack inconsistencies in the victim's testimony. In this point, appellant alleges that there was insufficient corroboration of intent and that counsel should have challenged inconsistencies in the time and place the incidents occurred.

The State in its response correctly notes that not all of appellant's arguments on appeal were raised below or addressed by the trial court. An appellant in a Rule 37.1 proceeding is limited to the scope and nature of his arguments below, and he cannot raise new arguments on appeal. Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam). In an appeal of the denial of a Rule 37.1 petition, failure to obtain a ruling on an issue, including a constitutional issue, precludes review on appeal. Norris, 2013 Ark. 205, 427 S.W.3d 626. We accordingly limit our review of appellant's arguments to those issues for which the trial court provided a ruling.

In the order denying postconviction relief, the trial court provided rulings on three issues that relate to appellant's arguments in his first point. The first of these issues was appellant's claim in the Rule 37.1 petition that counsel did not adequately cross-examine witnesses or remove the “taint” of the State's questioning. The trial court interpreted this as a broad claim that counsel had not vigorously cross-examined any of the witnesses, and it found that counsel made appropriate motions and objections to challenge the introduction of the evidence, that counsel did cross-examine most witnesses, and that counsel chose not to cross-examine the remaining witnesses as a matter of trial strategy.¹

The second issue was that counsel failed to impeach and adequately cross-examine two witnesses who testified concerning appellant'sprior second-degree sexual-assault conviction in Montgomery County on a guilty plea. On this issue, the trial court found that counsel had made a tactical decision not to cross-examine these witnesses because he did not wish to emphasize the testimony and believed that there were grave risks involved in additional questioning. The trial court ruled that counsel's decision was a reasonable strategic choice.

The last issue addressed by the trial court was whether counsel was ineffective for failing to perform sufficient investigation to obtain a statement by the victim in the prior Montgomery County case. The trial court found that counsel did perform a substantial amount of discovery on the matter and that appellant had not established the existence of the statement that appellant alleged had been made by the victim. The court further found that appellant was not prejudiced because counsel's decision not to cross-examine the victim in the Montgomery County case was a reasonable strategic decision.

Although appellant included in his first point on appeal some references to counsel's failure to interview other witnesses, appellant's allegations of error that are relevant to the three rulings all concern only two witnesses, the victim and the mother of the victim from the Montgomery County case. Appellant's arguments for reversal concerning these three rulings are that counsel did not make strategic decisions not to cross-examine the two witnesses or to limit pretrial investigation of the Montgomery County case, that counsel's decision not to cross-examine the witnesses was not reasonable, and that prejudice resulted from counsel's failure to cross-examine the witnesses. He also asserts that the court should have considered the cumulative effect of all errors in determining prejudice. The concept of cumulative error, however, is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was afforded effective assistance of counsel. Nickelson v. State, 2013 Ark. 252, 2013 WL 2460147 (per curiam).

The trial court found that counsel had made a strategic decision not to cross-examine the two witnesses. Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel's decision is not a basis for relief under Rule 37.1. 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)). Counsel is allowed great leeway in making strategic and tactical decisions. Leak v. State, 2011 Ark. 353, 2011 WL 4092217 (per curiam). On review, if we determine that the trial court correctly found that the decision not to cross-examine the two witnesses was a strategic decision supported by reasonable professional judgment, there is no need to examine whether appellant was prejudiced. The trial court's finding that a reasonable strategic decision had been made is in essence a finding that appellant did not demonstrate deficient conduct in the failure to cross-examine the witnesses so as to satisfy the first prong of the Strickland standard.

Counsel testified at the Rule 37.1 hearing that he wanted to minimize the impact of the negative testimony concerning the Montgomery County victim's case. He indicated that he did not cross-examine the witnesses because any questions would have emphasized the testimony and had more detrimental impact than beneficial. We cannot say that the trial court was clearly erroneous in ruling that counsel made a reasonable, professional strategic decision, based on the information that counsel had at the time, not to cross-examine the two witnesses.

Counsel testified that he had reviewed the prosecution's files on the case. During the Rule 37.1 hearing, the State introduced documents from those files that included reports with statements from the...