Dansby v. State

• Decision Date: 14 February 2002
• Docket Number: No. CR 00-1363.,CR 00-1363.
• Citation: 66 S.W.3d 585,347 Ark. 674
• Parties: Joe Louis DANSBY v. STATE of Arkansas.
• Court: Arkansas Supreme Court

66 S.W.3d 585

347 Ark. 674

Joe Louis DANSBY v. STATE of Arkansas.

No. CR 00-1363.

Supreme Court of Arkansas.

February 14, 2002.

William A. McLean, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., and Valerie L. Kelly, Ass't Att'y Gen., Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

A jury found Joe Louis Dansby guilty of two counts of capital murder and sentenced him to death on April 24, 1997. On direct appeal, we affirmed the capital-murder convictions and death sentence in Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999) (Dansby I). Pursuant to Ark. R.Crim. P. 37.5 (2001), Mr. Dansby filed a petition for postconviction relief in which he raised only one claim for relief: that his trial counsel were ineffective in permitting him to testify because doing so led to the State's use of rebuttal testimony from his wife that he confessed his crimes to her. The circuit court found that the decision to testify was a strategical and tactical decision made jointly by Mr. Dansby and his attorneys and denied his petition for postconviction relief. Mr. Dansby filed a notice of appeal from the denial of postconviction relief. He also filed a petition for writ of error coram nobis that this court denied. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam). Mr. Dansby's appeal from the denial of postconviction relief is now before this court, and we affirm the circuit court's decision.

The facts of this case were explained in detail in Dansby I, and need not be repeated here except at they relate to the Rule 37.5 hearing. Eugene D. Bramblett, one of Mr. Dansby's trial attorneys, was the only witness at the Rule 37.5 hearing. Mr. Bramblett testified on direct examination that, of all the evidence offered during the three-week trial, the testimony of Joe Dansby's wife was the most damaging to their case. Mrs. Dansby first testified during the State's case-in-chief. However, because Mr. Dansby's attorneys had prevailed on a motion to invoke the marital privilege, Mrs. Dansby was prohibited from testifying concerning a confession by her husband. After Mrs. Dansby's initial testimony, Jackie Cooper testified that, while he and Mr. Dansby were being held at the Nevada County jail, Mr. Dansby told him that he committed the murders. Mr. Cooper also admitted to a history of criminal activities, including "seven different stretches" in the penitentiary over the past twenty years. Other evidence introduced by the State included expert testimony matching (1) .22 shell casings found at the crime scenes with a shell casing found at Mr. Dansby's house; (2) the metal in the bullets used to kill the couple with the metal in the bullets found in Mr. Dansby's.22 rifle; and (3) the DNA from Mr. Dansby's blood sample with the DNA in semen recovered from the body of the murdered woman.

After the State rested its case-in-chief, Mr. Dansby testified in his own behalf. His attorneys examined him "with great care to make sure that none of the questions that we asked Mr. Dansby would ... open the door to a waiver of the marital privilege." Before the State cross-examined him, the trial court ruled that the confession to Mr. Cooper constituted a waiver of the marital privilege and allowed the State to question Mr. Dansby concerning the alleged confession to his wife, which he denied. The State then recalled Mrs. Dansby as a rebuttal witness, and she testified that her husband had confessed to her that he "killed the kids," referring to the murdered young couple. Mr. Dansby's attorneys then called other defense witnesses in an unsuccessful attempt to show that another man was a suspect and could have murdered the couple.

I. Standard of Review.

The standard for review of a denial of a petition for postconviction relief has been often recited and was recently summarized in Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001):

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court 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 counsel's deficient performance prejudiced his defense. Judicial review 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 conduct, and to evaluate the conduct from counsel's perspective at the time. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Id.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. 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 in that the decision reached would have been different absent the errors. Id; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Thomas, 322 Ark. 670, 911 S.W.2d 259.

Andrews v. State, 344 Ark. at 611-12, 42 S.W.3d at 487-88. On appeal, a trial court's denial of postconviction relief will not be reversed unless the ruling was clearly erroneous. Peebles v. State, 331 Ark. 188, 958 S.W.2d 533 (1998).

II. Deficient Performance of Counsel.

Mr. Dansby claims that if he had not testified, the State could not have asked him whether he confessed to his wife and then called his wife as a rebuttal witness to his denial of the confession. He argues that because his counsel failed to adequately research and comprehend the law of waiver of marital privilege, they failed to grasp the risks of allowing him to testify. Thus, he asserts that his counsel were ineffective in allowing him to testify.

The first prong of the Strickland test is whether counsel's performance was deficient because Mr. Dansby testified in his own behalf. We have consistently held that whether or not a defendant testifies is not a basis for postconviction relief. "The accused has the right to choose whether to testify in his own behalf. Counsel may only advise the accused in making the decision. The decision to testify is purely one of strategy." Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000) (citations omitted); Pogue v. State, 316 Ark. 428, 433, 872 S.W.2d 387, 389 (1994) ("This dispute over Pogue's taking the stand appears to be more a debate over trial strategy than evidence of ineffectiveness of counsel. Such matters do not form the basis of post-conviction relief."); Wainwright v. State, 307 Ark. 569, 580, 823 S.W.2d 449, 454-55 (1992) ("[T]he decision to advise a defendant not to take the stand, even if it proves improvident, is a tactical decision within the realm of counsel's professional judgment, and matters of trial tactics and strategy are not grounds for post-conviction relief."); Scott v. State, 303 Ark. 197, 201, 795 S.W.2d 353, 355 (1990) ("We might agree with Scott's argument that he had a right to testify in his own defense, but he has shown nothing to indicate the decision was other than a tactical one."); Isom v. State, 284 Ark. 426, 430, 682 S.W.2d 755, 758 (1985) ("[T]he decision to advise a client not to take the stand is a tactical one within the realm of counsel's professional judgment, and matters of trial tactics and strategy are not grounds for postconviction relief. Neither...