Isom v. State, CR

• Decision Date: 21 January 1985
• Docket Number: No. CR,CR
• Citation: 682 S.W.2d 755,284 Ark. 426
• Parties: Tad Anthony ISOM, Petitioner, v. STATE of Arkansas, Respondent. 83-84.
• Court: Arkansas Supreme Court

Page 755

682 S.W.2d 755

284 Ark. 426

Tad Anthony ISOM, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 83-84.

Supreme Court of Arkansas.

Jan. 21, 1985.

Tad Anthony Isom, pro se.

Steve Clark, Atty. Gen. by Matthew Wood Fleming, Asst. Atty. Gen., Little Rock, for respondent.

PER CURIAM.

Petitioner Tad Anthony Isom was found guilty by a jury of rape and sentenced to a term of 20 years imprisonment and a $5,000 fine. We affirmed. Isom v. State, 280 Ark. 131, 655 S.W.2d 405 (1983). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground that he was not afforded effective assistance of counsel at trial.

During voir dire venireman Hill said that if he were on trial he would want to testify. He also said that he worked with the victim's boyfriend. Petitioner contends that counsel was ineffective in failing to exercise a peremptory challenge to exclude Mr. Hill from the jury.

To prevail on an allegation of ineffective assistance of counsel, the petitioner must establish that the conduct of counsel prejudiced him so as to undermine the proper functioning of the adversarial process. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The object of a review of a claim of ineffectiveness of assistance of counsel is not to grade counsel's performance but to find actual prejudice. Strickland v. Washington. Petitioner has not shown that he was prejudiced by counsel's representation.

Hill said that he had not discussed the case with the victim's boyfriend and that he could make a decision in the case without any "feeling one way or the other." He was not asked to elaborate about wishing to testify if it were his trial, but he did answer "yes" when asked if he understood that petitioner was not required to testify and that the failure to testify should not be held against him. Hill also said he could give petitioner a fair and impartial trial and would hold the state to its burden of proving guilt beyond a reasonable doubt.

Petitioner also contends that three other jurors, Newman, Branch and Dunlop, were either employed with relatives of the prosecutrix or acquainted with her family. He does not, however, demonstrate any actual bias on the part of any juror.

Jurors are presumed unbiased and qualified to serve. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). The petitioner has the burden of proving that a juror was biased. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). The mere fact that a juror may have been acquainted with the victim's friends or family does not give rise to a presumption of bias. Petitioner here has not established that any juror was biased or that any actual prejudice arose from counsel's decision not to challenge a particular juror.

Counsel did not object to the testimony of Officer Charles Cater concerning the chain of custody of the "rape kit" until after his testimony was fully completed. We held on appeal that the objection, which was made on the ground that Cater's name had not been supplied in response to a motion for discovery, was not timely. Petitioner alleges that counsel was incompetent for not lodging the objection soon enough to prevent the testimony.

Cater was not the only witness to testify about the rape kit and petitioner has not shown that it could not have been admitted into evidence even without Cater's testimony. As we noted on appeal, there was no real possibility of substitution since only one kit came from the hospital in Jefferson County and there was no evidence of tampering. Moreover, even if Cater's testimony would have been stricken on timely objection and the rape kit not admitted as a result, there is nothing to indicate that the conduct of counsel in not making the objection undermined the proper functioning of adversarial process. See Strickland v. Washington. There was ample evidence of petitioner's guilt even without the evidence related to the rape kit.

Petitioner next alleges that the trial judge, the prosecutor and his attorney all entered the jury room during the jury's deliberations because the jury requested additional instructions. He argues that counsel should have objected since he was not also taken into the jury room. The record does not reflect a request by the jury for further instructions, but petitioner has attached to his petition the affidavits of several persons who state that counsel and the judge entered the jury room.

Although petitioner argues that he was materially prejudiced by the fact that counsel and the court may have met with the jury without him, an evidentiary hearing is not required where a petitioner cannot...