MITCHEM v. State of Ark., 2011 Ark. 148
| Decision Date | 07 April 2011 |
| Docket Number | No. CR 08-951,2011 Ark. 148,CR 08-951 |
| Citation | 2011 Ark. 148 |
| Parties | ROBERT MITCHEM, Appellant v. STATE OF ARKANSAS, Appellee |
| Court | Arkansas Supreme Court |
A jury found appellant Robert Mitchem guilty of attempted rape and kidnapping and sentenced him to an aggregate term of 240 months' imprisonment. The Arkansas Court of Appeals affirmed. Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 623 (2006). Appellant timely filed through counsel a petition in the trial court seeking postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2007). After a hearing on the petition, the trial court denied relief, and appellant lodged this appeal. The trial court's findings below were not clearly erroneous, and we affirm the order denying postconviction relief.
O n appeal, appellant raises two points. In the first, he asserts trial counsel was ineffective for failing to object to testimony from a police officer that referenced a photograph of appellant taken at the jail. Appellant asserts in his second point that trial counsel was ineffective for failing to pursue a motion to suppress a statement appellant made while in custody and preserve the issue for appeal. The trial court found that counsel made a strategic decision not to object to the testimony about the booking photograph and that appellant failed to demonstrate that he was prejudiced by counsel's failure to suppress the statement.
This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Shipman v. State, 2010 Ark. 499 (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. Hawthorne v. State, 2010 Ark. 343 (per curiam).
This court assesses the effectiveness of counsel under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Wallace v. State, 2010 Ark. 485 (per curiam). Under the Strickland test, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Id. (citing Joiner v. State, 2010 Ark. 309 (per curiam)). In addition, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. A defendant who would prevail on an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced the defense. Hampton v. State, 2010 Ark. 330 (per curiam).
During appellant's trial, a police officer testified that he had interviewed the victim and that, after hearing her story, he determined that the man she only knew as "Robert" was appellant. The officer further testified that he obtained a photograph of appellant from the jail and that he then showed the photograph to the victim. The photo was referenced by the witness a number of additional times.
At the hearing on the Rule 37.1 petition, trial counsel testified that the statement from the witness took him by surprise, and, if he had realized that the witness was going to reference the fact that the photo was taken from the jail, he would have sought to keep that fact from coming in at trial. He stated that he decided to "leave it alone" and indicated that he did not want to draw any more attention to the statement.
Appellant argues that counsel's conduct was not tactical because the reference to jail and a booking photo was so prejudicial that it would have warranted a strong admonition or even a mistrial if counsel had objected. He contends that the fact that the photo was referenced three times would have supported the more drastic remedy and that counsel could not have made a strategic decision. Appellant alleges that the justification was a post hoc rationalization of counsel's conduct.
Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then such a decision is not a proper basis for relief under Rule 37.1. Anderson v. State, 2010 Ark. 404,___S.W.3d___(per curiam); Smith v. State, 2010 Ark. 137,___S.W.3d___(per curiam). Although the photo was referenced multiple times, the witness only alluded to the fact that it was taken while appellant was at the jail once. Although prejudicial, a passing reference to the fact that a photo was taken on booking or at the jail is not so prejudicial as to warrant a mistrial. See Burks v. State, 2009 Ark. 598,___S.W.3d___(remarks that amount to inadvertent references to previous illegal conduct may be cured by admonition). Under the circumstances here, the trial court was not clearly erroneous in finding that the decision was one of trial strategy, or in finding that the decision not to call further attention to the remark by seeking an admonition was supported by reasonable professional judgment.
In its ruling on appellant's second point, the trial court found that the admission of appellant's statements did not prejudice the defense, and it found that the statements would have come in for impeachment purposes even if otherwise excluded. We agree that appellant failed to carry his burden of proof to show that the second prong of the Strickland test was satisfied, but we do so because the record here does not provide substantiation for any finding that a motion to suppress the statement would have been successful.
Appellant testified at the hearing on the Rule 37.1 petition that he was not given warnings as required by Miranda v. Arizona, 384 U.S.435 (1966). The police officer, in his testimony at trial, indicated that appellant was given those warnings. There is nothing, however, in that testimony that indicates at what point following appellant's arrest the warnings were given. In the order denying postconviction relief, the trial court appears to have...
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