Dumond v. State

• Decision Date: 25 January 1988
• Docket Number: No. CR,CR
• Citation: 743 S.W.2d 779,294 Ark. 379
• Parties: Wayne E. DUMOND, Petitioner, v. STATE of Arkansas, Respondent. 86-50.
• Court: Arkansas Supreme Court

Page 779

743 S.W.2d 779

294 Ark. 379

Wayne E. DUMOND, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 86-50.

Supreme Court of Arkansas.

Jan. 25, 1988.

John Wesley Hall, Little Rock, for petitioner.

Theodore Holder, Asst. Atty. Gen., Little Rock, for respondent.

PER CURIAM.

In August 1985 the petitioner Wayne E. Dumond was convicted of kidnapping and rape and sentenced to consecutive terms of twenty years and life in the Arkansas Department of Correction. We affirmed. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). Petitioner Dumond now seeks an evidentiary hearing in circuit court pursuant to Criminal Procedure Rule 37.1, alleging that he did not receive effective assistance of counsel.

In assessing the effectiveness of counsel, we adhere to the standard set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the court held:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. [ Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.]

There is a strong presumption that counsel's conduct at trial falls within a wide range of reasonable professional assistance, and the petitioner has the heavy burden of overcoming that presumption. A court hearing an ineffectiveness claim must consider the totality of the evidence before the jury and must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, supra, at 690, 104 S.Ct. at 2066. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. A reasonable probability that, but for counsel's conduct, the result of the proceeding would have been different is a probability sufficient to undermine confidence in the outcome. Strickland, supra; Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

Petitioner was represented by two attorneys at trial--Larry Horton and William McArthur. Petitioner states that Horton retained McArthur less than a week before trial to assist him and that McArthur had little to do with preparation for trial and was not fully informed as to all the issues in the case. The record, however, reflects that at a pre-trial hearing on April 12, 1984, more than four months before trial, Horton advised the court that he had associated McArthur as co-counsel and requested that the court enter his name of record. To what extent McArthur participated prior to trial is not evident, but, as co-counsel of record for four months before trial and in light of his extensive participation in the trial itself, McArthur as well as Horton must be considered responsible for the quality of the defense afforded petitioner.

Petitioner's initial allegation of counsel error concerns scientific testing of evidence. At trial a serologist at the Arkansas State Crime Laboratory testified for the state that he had examined semen stains on the victim's clothing and body fluids obtained from the victim in a medical examination of her shortly after the attack. The serologist testified that the semen contained no spermatozoa and was from a man with type A blood. He further said that the blood type could be ascertained because the man was a secretor; that is, one of approximately seventy percent of the population who secrets his ABO blood grouping into all his body fluids. (The victim was determined to be a type O secretor.) Relying on estimates that forty percent of the population has type A blood and seventy percent are secretors, the serologist concluded that only twenty-eight percent of the population could have produced the semen. When the incidence of males having undergone a vasectomy was figured in, the percentage of male persons who could have produced the semen was narrowed to .6 percent. As petitioner had type A blood, was a secretor and had undergone a vasectomy, the evidence by the state serologist suggesting that he could have been the rapist was strong. Petitioner's assertion of ineffective assistance of counsel arises out of his attorneys' failure to counter the state's serological evidence with serological evidence favorable to the defense. First, petitioner asserts that there was a test not conducted by the state crime lab which would have excluded him as the rapist. According to petitioner, the test, immunoglobulin allotyping, has been available since the early 1970's and can be used to genetically type body fluids that are several years old. As support for the allegation that counsel was ineffective for not arranging for the allotyping test to be conducted before trial, petitioner states that in mid-1987 he obtained the original semen samples and submitted them to an independent serological expert who performed the allotyping and concluded that the semen was genetically inconsistent with petitioner and could not have come from him.

We need not be concerned with whether the serological expert's report (appended to the petition) is as conclusive as petitioner claims since the report clearly constitutes new evidence and as such will not be considered. Petitioner as well as the state, which has joined in the request for an evidentiary hearing on the allotyping evidence, place great significance on the outcome of the test despite the fact that evidence obtained after a conviction is not a basis in itself for postconviction relief. A claim of new evidence is a direct rather than a collateral attack on the judgment and not within the purview of our postconviction rule. Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981). The issue therefore is not whether the new evidence is reliable but rather whether counsel's conduct in not seeing to it that allotyping was done before trial was reasonable. As noted, in deciding an ineffectiveness claim the reasonableness of counsel's challenged conduct must be judged on the facts of the particular case when viewed as of the time of counsel's conduct. It must be determined whether in light of all the circumstances the identified acts or omissions were outside the wide range of professionally competent assistance. While counsel's function is to make the adversarial process work in a particular case, it must be recognized that counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. A decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel's judgments. Strickland, supra.

We cannot say that the failure of counsel to secure allotyping on the semen samples in this case constituted an unreasonable professional decision given the relative obscurity of the test and its general lack of availability. Petitioner himself acknowledges that allotyping, which was not available at the State Crime Laboratory, was also unavailable at Roche Labs in North Carolina where the experts he had consulted were employed. In fact, petitioner says very little about the specific availability or recognition of the tests by serological experts at the time of trial, although he makes the blanket statement that highly discriminatory genetic tests were available at the time of trial. Petitioner does cite one treatise to support his statement that PGM testing is highly discriminatory and has been known since 1964, but he fails to cite any recognized treatise on the availability and generally recognized definitiveness of allotyping. There are numerous scientific tests which could be conducted on physical evidence in a criminal trial and failure of counsel to seek a particular test will not amount to a denial of the counsel guaranteed by the sixth amendment unless it can be concluded that the test was one which any competent attorney under the same circumstances would have sought. Petitioner has not met his burden of demonstrating that allotyping was reasonably available and widely recognized at the time of his trial and generally accepted in the relevant scientific community and therefore should reasonably have been made a part of his defense. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

Petitioner notes that McArthur asked the state's expert whether PGM testing had been done and mentioned the failure of the state to do the test in his closing argument, indicating that he recognized its significance. As with allotyping, neither the state nor Roche Lab did the test but he contends that it was readily available at other labs.

Petitioner states that counsel consulted Dr. Jim Geyer and Dr. Ron Barwich of Roche Labs who had performed the same ABO testing done by the state's expert. Geyer was unavailable to testify because of a reaction to a bee sting, and petitioner contends that counsel was remiss in not calling Dr. Barwich who was present at trial to contradict the state's expert who testified there was a 99.4% probability that the semen was petitioner's. He further alleges that Geyer and Barwich could both have testified that 25% of the...