Hartman v. State
| Decision Date | 19 January 2017 |
| Docket Number | No. CR–16–420,CR–16–420 |
| Citation | 508 S.W.3d 28 |
| Parties | Samuel HARTMAN, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Jeff Rosenzweig, Little Rock, for appellant.
Leslie Rutledge, Att'y Gen., by: Kent Holt, Ass't Att'y Gen., Little Rock, for appellee.
Samuel Hartman appeals from an order of the Franklin County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015) filed following his conviction for rape. Appellant argues on appeal that the circuit court erred in denying his petition because (1) his trial counsel made disparaging remarks about him during closing arguments and (2) his trial counsel was ineffective for failing to object to certain trial testimony as hearsay. Appellant also argues that the matter should be remanded to the circuit court for that court to consider additional evidence regarding his claim that his trial counsel was ineffective for failing to present evidence at trial that he had a sexually-transmitted disease
and the victim did not. We affirm.
Appellant was tried before a Franklin County jury on charges of rape and tampering with physical evidence. The victim was his stepdaughter. Among the evidence submitted at trial was testimony that appellant admitted to police that he had touched the victim's genital area. Appellant was found guilty and sentenced to life imprisonment. Appellant's conviction for rape was affirmed by this court.1 Hartman v. State , 2015 Ark. 30, 454 S.W.3d 721. After appellant's direct appeal concluded, he filed a petition for relief under Rule 37 in the circuit court. Following a hearing, the circuit court entered an order denying appellant's petition. Appellant subsequently filed a motion for reconsideration in which he alleged that he had found evidence that contradicted testimony given at the hearing. The motion for reconsideration was denied. This appeal followed.
This court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Adkins v. State , 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (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. When considering an appeal from a trial court's denial of a postconviction petition based on a claim of ineffective assistance of counsel, the sole question presented is whether under the standard announced in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court clearly erred when it held that counsel was not ineffective. Hooks v. State , 2015 Ark. 258, at 3–4, 465 S.W.3d 416, 419 (per curiam). Under the Strickland test, a petitioner must show that counsel's performance was deficient, and a petitioner must demonstrate that he was prejudiced by counsel's deficient performance. Pennington v. State , 2013 Ark. 39, at 1–2, 2013 WL 485660per curiam). A defendant making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Miller v. State , 2011 Ark. 114, 2011 WL 913206 (per curiam). 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; a reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Delamar v. State , 2011 Ark. 87, 2011 WL 693579 (per curiam).
Appellant first argues that the trial court erred by denying his petition because his trial counsel made derogatory comments about him during closing arguments in the guilt phase. At the onset of his closing argument to the jury during the guilt phase, appellant's trial counsel, Ernest Witt, made the following remarks:
Witt testified at the hearing on appellant's petition that he made the statements in an effort to build empathy with the jury and get it to understand that, while appellant had admitted engaging in conduct that could be termed perverse, the State had failed to prove that he had committed the offense of rape with which he was charged. In its order denying the petition, the trial court found that counsel was not ineffective for making the statements because, given the proof which included appellant's own statements to police, counsel had no choice but to pursue a strategy of differentiating to the jury the conduct admitted to by appellant and the elements of the offense with which he was charged.2 Appellant argues in his brief that the trial court erred by finding that there was a proper strategic or tactical basis for making the comments to the jury.
Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for finding ineffective assistance of counsel. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006). The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694. We conclude that counsel's strategy was reasonable given the particular circumstances presented. Appellant admitted to police that he had engaged in sexual contact with the victim, although he never admitted to penetration, which is required to establish the offense of rape. The prosecution indicated in its closing that the evidence showed that appellant had engaged in perverse behavior. Faced with appellant's admissions, counsel was left with a difficult task. If he defended his client from the allegation by the prosecution that he had engaged in perverse behavior, he might lose credibility with the jury, as appellant had clearly admitted to sexual contact with a young girl. If he ignored appellant's statements to police, he created an opportunity for his client to be convicted based on his admission to conduct that did not meet the requirements for the offense of rape. The trial court was correct that the only avenue available to counsel given the evidence was to distinguish appellant's admitted conduct from the requirements of the offense charged. In order for such a strategy to have any chance of succeeding, the jury had to see counsel as a reasonable, credible person. While counsel's tactical choices might have been different with the benefit of hindsight, the strategy guiding his decision was reasonable. The fact that the strategy was unsuccessful does not render counsel's assistance...
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