Burnett v. State

• Decision Date: 06 July 1992
• Docket Number: No. CR,CR
• Citation: 832 S.W.2d 848,310 Ark. 202
• Parties: John A. BURNETT, Appellant, v. STATE of Arkansas, Appellee. 92-68.
• Court: Arkansas Supreme Court

Page 848

832 S.W.2d 848

310 Ark. 202

John A. BURNETT, Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-68.

Supreme Court of Arkansas.

July 6, 1992.

Q. Byrum Hurst, Jr., Hot Springs, for appellant.

Catherine Templeton, Asst. Atty. Gen., Little Rock, for appellee.

PER CURIAM.

The appellant, John A. Burnett, was convicted of first degree murder in the death of his wife and sentenced to life imprisonment. We affirmed. Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). The appellant subsequently filed in this court a petition for post-conviction relief pursuant to Criminal Procedure Rule 37. We granted the petition in part to permit appellant to apply for an evidentiary hearing in the trial court on the question of whether appellant's trial attorney rendered effective assistance of counsel. Specifically, we directed that the circuit court determine whether the petitioner's attorney was ineffective for failing to object to the prosecutor's questioning of appellant about appellant's decision to remain silent after he was arrested; and, if so, whether that failure to object constituted ineffective assistance of counsel to such an extreme degree that appellant was denied counsel under the Sixth Amendment to the United States Constitution. We noted that the criteria for assessing the effectiveness of counsel had been enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel he must show that counsel's representation fell below an objective standard of reasonableness and that but for counsel's errors the result of the trial would have been different. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of counsel's performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. A court hearing a claim of ineffective assistance of counsel must consider the totality of the evidence before the jury. After a hearing, the trial court denied post-conviction relief. It is from that ruling that appellant brings this appeal. We find no error and affirm.

Appellant was cross-examined by the state at trial in the following manner:

Q. Now, Mr. Burnett, have you've told this story of what happened that night. You didn't tell the police that, did you?

A. I didn't tell the police anything, sir.

Q. In fact, you just refused to talk to them, didn't you?

A. Yes, sir.

Q. When they read your rights, you refused to talk to them and wanted a lawyer, didn't you?

A. Yes, sir.

Q. If you're innocent, cared for your wife, wanted to see whoever did this to her caught, why did you tell the police this story?

A. I didn't feel I had to at the time, sir.

Q. You didn't feel you had to at the time, okay.

A. No, sir.

The appellant argued in his petition that his attorney erred in not objecting to the prosecutor's questions because the questions focused to an impermissible degree on appellant's constitutional right to remain silent after arrest.

It is fundamentally unfair and a deprivation of due process of law for an arrested person's silence to be used to impeach an explanation subsequently offered by him at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Although such questioning may be harmless error in some instances where there is no prosecutorial focus or repetitive questioning or arguing centered on a defendant's silence and where the evidence of guilt is overwhelming, we granted a hearing in appellant's case because the error was not harmless in light of the clear focus on the fact that appellant remained silent after his arrest. See Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1986).

At the hearings that were held on the petition for post-conviction relief in the circuit court, the appellant presented a criminal lawyer who testified that in his opinion the state's questioning at trial was objectionable and that had the defense attorney objected, a different verdict could have resulted or the case would have been reversed on appeal. The appellant's attorney told the trial judge that another attorney, Jack Lassiter, had reviewed the transcript and was prepared to testify that the questions were objectionable and counsel was ineffective under Strickland v. Washington, for failing to object, but that Lassiter was not able to appear at any of the hearings. When the appellant's original attorney was asked why he failed to object when the appellant was cross-examined by the prosecutor about his post-arrest silence, the attorney answered:

We discussed that and several other matters about whether he would testify or not during the sheriff's investigation. There were several statements made by several witnesses and then another person was arrested based upon those statements. After that, several witnesses gave conflicting statements with the previous statements and Mr. Burnett was then arrested. Based upon those statements in which they indicated that Mr. Burnett would not talk to the police, we felt like it would be best if he did not talk to the...