Camargo v. State

• Decision Date: 27 September 2001
• Docket Number: 00-292
• Parties: RAFAEL CAMARGO, APPELLANT; VS. STATE OF ARKANSAS, APPELLEE.00-292 SUPREME COURT OF ARKANSAS 27 September 2001 APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT, NO. CR 94-313; HON. FLOYD G. ROGERS, JUDGE; AFFIRMED. DONALD L. CORBIN, Associate Justice This is a postconviction appeal from the denial of relief under Ark. R. Crim. P. 37. Appellant Rafael Camargo was convicted in the Crawford County Circuit Court of two counts of capital murder and sentenced to death for the October 1994 murders of Deanna Petree and her fifteen-month-old son, Jonathan Macias. This court affirmed the convictions, but reversed the death sentence and remanded for resentencing. See Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997). On remand, Appellant was again sentenced to death, and this court affirmed. See Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Appellant then filed a petition for relief under Rule 37. Following a hearing on the petition, the trial court denied relief. Appellant raises five points for reversal. The first three points concern alleged errors made by trial counsel and the trial court during jury selection in both the first trial and resentencing. The remaining two points are claims that counsel were ineffective for failing to move to dismiss for lack of a speedy trial and failing to properly investigate and present mitigating evidence during sentencing. We find no merit and affirm. We note at the outset the well-settled test for proving claims of ineffective assistance of counsel and the corresponding standard of review: To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 99, 3 S.W.3d at 325. Petitioner must also show that the defic
• Court: Arkansas Supreme Court

RAFAEL CAMARGO, APPELLANT VS STATE OF ARKANSAS, APPELLEE

No. CR 00-292

SUPREME COURT OF ARKANSAS

27 September 2001

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT, NO. CR 94-313; HON. FLOYD G. ROGERS, JUDGE; AFFIRMED.

DONALD L. CORBIN, Associate Justice

This is a postconviction appeal from the denial of relief under Ark. R. Crim. P. 37. Appellant Rafael Camargo was convicted in the Crawford County Circuit Court of two counts of capital murder and sentenced to death for the October 1994 murders of Deanna Petree and her fifteen-month-old son, Jonathan Macias. This court affirmed the convictions, but reversed the death sentence and remanded for resentencing. See Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997). On remand, Appellant was again sentenced to death, and this court affirmed. See Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Appellant then filed a petition for relief under Rule 37. Following a hearing on the petition, the trial court denied relief. Appellant raises five points for reversal. The first three points concern alleged errors made by trial counsel and the trial court during jury selection in both the first trial and resentencing. The remaining two points are claims that counsel were ineffective for failing to move to dismiss for lack of a speedy trial and failing to properly investigate and present mitigating evidence during sentencing. We find no merit and affirm.

We note at the outset the well-settled test for proving claims of ineffective assistance of counsel and the corresponding standard of review:

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 99, 3 S.W.3d at 325. Petitioner must also show that the deficient performance prejudiced his defense; this requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. Unless the petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith, 341 Ark. 722, 19 S.W.3d 612. This court will not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Jones, 340 Ark. 1, 8 S.W.3d 482; State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999).

Coulter v. State, 343 Ark. 22, 27, 31 S.W.3d 826, 829 (2000) (quoting Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000)). With this standard in mind, we review the issues raised by Appellant.

I. Jury Selection

Appellant's first three points concern alleged errors made by trial counsel and the trial court during jury selection in both his first trial and resentencing. He argues that: (1) the trial court erred in refusing to strike for cause three jurors during the first trial and one juror during resentencing; (2) trial counsel were ineffective in failing to challenge for cause two jurors during the first trial and five jurors during resentencing; and (3) trial counsel were ineffective for failing to preserve the jury-selection errors for appeal and in failing to pursue such errors on appeal. We discuss the first and third allegations of error together, as they are interrelated.

Appellant first argues that the trial court erred in denying his motions to strike for cause a total of four jurors during both the first trial and the resentencing. We do not address this argument, as it should have been raised on appeal. This court has consistently held that Rule 37 does not provide a remedy when an issue could have been raised in the trial or argued on appeal. See, e.g., Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001); Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001); Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999) (per curiam). The only exception is where the questions raised are so fundamental as to render the judgment void and open to collateral attack. Id. That exception does not apply here. Accordingly, we will only consider Appellant's claim that his trial counsel were ineffective for failing to properly preserve this issue and raise it on appeal.

The law is well settled that to challenge a juror's presence on appeal, an appellant must demonstrate two things: (1) that he exhausted his peremptory challenges, and (2) that he was forced to accept a juror who should have been excused for cause. See Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). The record in this case reflects that none of the jurors sought to be removed for cause was seated on either jury; rather, each juror was removed by using a peremptory challenge. The record reflects further that Appellant did not exhaust his peremptory challenges during either trial. Trial counsel testified that they did not pursue on appeal a challenge to the trial court's refusal to strike the jurors offered for cause because they knew that they had not used all of their peremptory challenges. They stated that the decision of whether and when to use a peremptory challenge is a tactical decision. They explained that they do not purposely use up all of their peremptory challenges hoping to get a prejudiced juror just so they can challenge the trial court's rulings on appeal.

We agree with the trial court that counsels' actions did not amount to ineffective assistance of counsel. This court has consistently held that trial counsel is not ineffective for not pursuing on appeal an argument that is without merit. See, e.g., Noel, 342 Ark. 35, 26 S.W.3d 123; Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000); Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993). Accordingly, because the defense did not exhaust all of its peremptory challenges and because Appellant has not shown that he was forced to accept a juror who should have been excused for cause, any argument raised on appeal would have been without merit. Moreover, we agree with the trial court that the use of peremptory challenges is largely a matter of trial strategy. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000); Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998) (per curiam); Irons v. State, 272 Ark. 493, 615 S.W.2d 374 (1981). Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for a finding of ineffective assistance of counsel. Noel, 342 Ark. 35, 26 S.W.3d 123. We thus affirm the trial court's ruling on this issue.

For his last point regarding jury selection, Appellant argues that trial counsel were ineffective for failing to challenge for cause two jurors in the first trial and five jurors during resentencing. There is no merit to this argument regarding the two jurors not challenged in the first trial, as Appellant admits that both those jurors were removed with peremptory challenges. Appellant also admits that four of the five jurors who allegedly should have been challenged for cause during the resentencing were ultimately removed from the jury using peremptory challenges. That leaves only one juror, Jerry Marion, who was seated on the resentencing jury, that Appellant argues should have been challenged for cause.

Appellant's challenge to juror Marion stems from the fact that the juror admitted during voir dire that his sister-in-law had served as a juror on Appellant's first trial, wherein he was sentenced to death. The trial court asked juror Marion whether he had discussed the case with his sister-in-law. He admitted that he had discussed the case with her a little bit and that he did hear some things about it. He stated, however, that there was nothing about the situation that would keep him from being fair and impartial. Subsequently, defense counsel had the opportunity to discuss the matter with juror Marion. Again, the juror stated that there was nothing about the fact that his sister-in-law had served on the first jury that would influence him one way or the other.

Attorney Robert Marquette, who, along with Marvin Honeycutt, represented Appellant during the resentencing trial, testified that he had been the one who questioned juror Marion. Although he could not recall the particular reason that counsel chose not to strike him, Mr. Marquette stated that he remembered questioning juror Marion concerning his feelings about the capital-murder process and whether he could be fair with regard to listening to the defense's testimony about mental retardation. Mr. Marquette stated that the defense may have felt that juror Marion would be sympathetic to the evidence regarding Appellant's borderline or mild mental retardation. In any event, he stated that they felt that he would be a good and impartial juror, and that counsel never would have accepted him if they had thought that he would be prejudiced...