Hickey v. State

• Decision Date: 30 May 2013
• Docket Number: No. CR–11–60.,CR–11–60.
• Citation: 2013 Ark. 237,428 S.W.3d 446
• Parties: George HICKEY, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2013 Ark. 237

428 S.W.3d 446

George HICKEY, Appellant

v.STATE of Arkansas, Appellee.

No. CR–11–60.

Supreme Court of Arkansas.

May 30, 2013.

George Hickey, pro se appellant.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

PER CURIAM.

In 2009, appellant George Hickey was found guilty by a jury of rape, kidnapping, and first-degree terroristic threatening. He was sentenced to an aggregate term of life imprisonment. We affirmed. Hickey v. State, 2010 Ark. 109, 2010 WL 745919. Following the issuance of our mandate, appellant timely filed a pro se petition for postconviction relief in the circuit court pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). ¹ In his petition, appellant asserted that defense counsel was ineffective in failing to do the following: (1) consult with and call as a witness a medical expert regarding the lack of appellant's DNA evidence found on the victim; (2) investigate, develop, and present to the jury the lack of physical evidence in the case; (3) investigate, develop, and present to the jury a timeline of the incident; (4) call appellant as a witness on his own behalf. The circuit court denied the relief requested without an evidentiary hearing, and appellant now appeals from the circuit court's order. We affirm.

In an appeal from a circuit court's denial of a petition under Rule 37.1, the question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel's performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). 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.Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

The Strickland standard is a two-prong test. When a convicted defendant complains of ineffective assistance of counsel, he must first show that counsel's performance was deficient through a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. 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. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam).

There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel, which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Burton v. State, 367 Ark. 109, 238 S.W.3d 111 (2006). The petitioner must show that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt and that the decision reached would have been different absent the errors. Id.

Arkansas Rule of Criminal Procedure 37.3(a) provides, “If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings.” The trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). If the trial court fails to make findings as required by Rule 37.3(a), it is reversible error, unless the record before this court conclusively shows that the petition was without merit. Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000).

I. Failure to Obtain and Present Testimony of a Medical Expert

Appellant first argues that the circuit court erred in denying his claim that defense counsel was ineffective in failing to consult with and elicit the testimony of a medical expert regarding the lack of appellant's DNA found on the victim. In his petition for postconviction relief, appellant alleged that a medical expert would have testified that appellant's DNA was not found on the victim and to the probability of whether a perpetrator's DNA evidence would be found on a victim after being vaginally and orally raped for hours, as the victim in the instant case testified. The circuit court found this allegation to be conclusory and denied relief. We agree.

The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Jones v. State, 2011 Ark. 523, 2011 WL 6091468;Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam). In the instant case, appellant failed to offer any evidence that his counsel was ineffective for failing to elicit the testimony of a medical expert regarding the lack of his DNA found on the victim and further failed to establish that a reasonable probability existed that the outcome of the trial would have been different had his attorney done so. To the contrary, the facts to which appellant contends a medical expert would have testified were fully developed and presented to the jury without the necessity of presenting the testimony of a medical expert. The victim testified that appellant vaginally and orally raped her before ejaculating on her face and that appellant made her wipe his seminal fluid off her face with a towel that he provided. Further, the jury was apprised of the fact that appellant's DNA was not found on the victim through the testimony of the detective and the physician who supervised the rape-kit administration, both of whom testified that the analysis of the rape kit revealed no DNA matching that of appellant. In her opening statements, the prosecutor also made the jury aware of the absence of appellant's DNA on the victim.

As appellant failed to offer any evidence that his counsel was ineffective for failing to consult with and call as a witness a medical expert regarding the lack of DNA evidence on the victim and failed to establish that a reasonable probability existed that the outcome of the trial would have been different had his counsel pursued the issue, he did not meet the standard under Strickland for a showing of ineffective assistance of counsel.

Moreover, the decision of whether to call particular witnesses is a matter of trial strategy that is outside the purview of Rule 37. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. When assessing counsel's decision not to call a particular witness, we must take into account that the decision is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Id. Where the prosecutor did not refute and, in fact, admitted that evidence of appellant's DNA was not found on the victim, we cannot say that it was not a well-reasoned, tactical decision of defense counsel to not consult with and present testimony of a separate medical expert; nor can we say that appellant's defense was prejudiced as a result of his defense counsel's failure to do so. Accordingly, the circuit court properly denied relief on this claim without a hearing. See Scott v. State, 303 Ark. 197, 795 S.W.2d 353 (1990); Rheuark v. State, 299 Ark. 243, 771 S.W.2d 777 (1989).

II. Failure to Investigate

Appellant next argues that the circuit court erred in denying his claim that defense counsel was ineffective in failing to investigate and present to the jury the lack of physical evidence in his case. Specifically, appellant asserts that the prosecution relied solely on the victim's testimony and that had defense counsel conducted a proper investigation, he could have presented to the jury a “reasonable explanation” for the lack of physical evidence.

In Flores, we explained the duty of trial counsel to investigate:

[T]rial counsel had a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Strickland, supra. However, “when the appellant shows that defense counsel failed to exercise the customary skills and diligence that a reasonably competent attorney would exhibit under similar circumstances, that presumption must fail.” Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994).

350 Ark. 198, 212–13, 85 S.W.3d 896, 905.

In his petition for postconviction relief, appellant contended that if the rape had occurred as the victim alleged, “[a]mple physical evidence would have been found” and that the outcome of the trial would have been different if defense counsel had properly investigated and presented the lack of physical evidence to the jury. However, as previously discussed, the jury was apprised of the evidence in the case, or lack thereof, as it pertained to DNA evidence. Further, appellant fails to delineate the actual prejudice that arose as a result of the alleged ineffectiveness. As the jury was made aware that appellant's DNA was not found on the victim; that Derrick Baker, who was present in appellant's residence at the time of the rape, did not witness appellant having sex with the victim; and that Baker did witness appellant and the victim going into a separate room, but did not hear a...