Neff v. State, CR

• Decision Date: 30 September 1985
• Docket Number: No. CR,CR
• Citation: 287 Ark. 88,696 S.W.2d 736
• Parties: Wesley Kent NEFF a/k/a Kent Wesley Neff, Appellant, v. STATE of Arkansas, Appellee. 85-156.
• Court: Arkansas Supreme Court

Page 736

696 S.W.2d 736

287 Ark. 88

Wesley Kent NEFF a/k/a Kent Wesley Neff, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-156.

Supreme Court of Arkansas.

Sept. 30, 1985.

Ralph C. Hamner, Little Rock, David C. Godry, Little Rock, Mo., for appellant.

Steve Clark, Atty. Gen., Little Rock, for appellee.

PER CURIAM.

Petitioner Wesley Kent Neff was found guilty by a jury of delivery of cocaine, a controlled substance. The trial court sentenced petitioner to a term of six years imprisonment in the Arkansas Department of Correction and a $6,000 fine. The Court of Appeals affirmed. Neff v. State, CACR 85-15 (July 10, 1985). Petitioner now seeks permission to proceed in circuit court for an evidentiary hearing pursuant to A.R.Cr.P. Rule 37 on the ground that his counsel at trial was generally ineffective. He cites nine specific examples of inadequate representation.

Petitioner first alleges that the prosecutor was permitted without objection to ask a series of questions in voir dire of the jury which amounted to a lengthy sermon on the evils of drug use and which created such bias that the petitioner's entrapment defense was discredited before the trial began.

The jury is presumed unbiased, and the burden is on the petitioner to demonstrate actual bias on the part of the jury. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Although petitioner contends that the jurors and the prosecutor were effectively wed by the close of voir dire, the record indicates that counsel for the petitioner also questioned the venirepersons so as to impress upon them views contrary to those suggested by the state. It is not unusual or improper for either counsel as a matter of trial tactics to question prospective jurors on their attitudes as well as their understanding of the elements of the crime. The range of permissible inquiry and the diversity of legitimate questions are so great as to make it impossible to lay down rigid rules governing counsel's examination of jurors; Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984), but to raise a successful challenge to counsel's questioning of the jurors, the petitioner must establish that counsel's conduct resulted in such prejudice that he was denied a fair trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner has not demonstrated any actual prejudice from any act or omission on counsel's part.

In his opening statement, the prosecutor referred to the defense of entrapment as an "admission" that the crime had been committed. He later declared again that the offense had been admitted. He also related to the jury the expected content of an undercover officer's testimony as to what she was told by one of the state's witnesses. Petitioner argues that counsel should have objected to the reference to entrapment as an admission of guilt and to the "double hearsay" in recounting the officer's expected testimony.

Counsel objected in the first part of the State's opening statement to the prosecutor's arguing the case. Counsel objected a second and a third time and the court also interjected a comment about the prosecutor's arguing. Experienced advocates might differ about when, or if, objections were called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor's comments seem more significant to the jury. In any event, the jury was instructed that opening statements and closing arguments are not evidence, and petitioner was not denied effective assistance of counsel as guaranteed by the Sixth Amendment by counsel's failure to object at the points now suggested by petitioner. Unless petitioner can demonstrate actual prejudice so serious as to deprive him of a fair trial, he has not proven counsel's performance deficient. Strickland v. Washington, see also Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1982).

Petitioner next cites several points during the undercover officer's testimony where counsel could have objected on some ground and further faults counsel for agreeing to admit into evidence an evidence submission sheet from the state crime laboratory which he alleges contained hearsay statements regarding his arrest. Petitioner also contends that the laboratory analysis report identifying the drug delivered by him to be cocaine had a clerical error and could have been excluded on timely objection.

The questioning of witnesses and the decision about when to object are ordinarily subjective matters about which there could be endless discussion. For this reason, counsel's examination of witnesses will not be dissected by this Court. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). More importantly, even when a petitioner can state a sound basis for an objection, Rule 37 was not designed for the review of mere error made by either the trial court or counsel. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). The convicted defendant is presumed to have received effective assistance of counsel, Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980), and a petitioner must meet the heavy burden of showing that counsel's conduct was outside the wide range of reasonably professional assistance and sufficiently deficient to have denied petitioner a fair trial. Strickland v. Washington.

Petitioner next contends that the jury may have been swayed by the presence in the courtroom and at a conference in chambers of an attorney who represented his co-defendant. He alleges that the attorney relayed messages between the co-defendant, who was not present and did not testify, and the prosecutor. Petitioner does not contend that the jury knew whom the attorney represented. There is nothing to indicate that the attorney's presence created any impression in the minds of the jury which prejudiced the petitioner.

Clint Bell, who had agreed to assist the police in the undercover operation which led to petitioner's arrest, was called by petitioner's counsel to testify. Petitioner now argues that Bell's testimony was so harmful to the defense that counsel must be considered incompetent for calling him.

Counsel attempted to elicit from Bell that he helped entrap the petitioner. Evidence may have been elicited through Bell which proved detrimental to the defense, but it is not ineffective assistance of counsel for an attorney as a matter of trial strategy to call a witness whose testimony is not entirely favorable to the defense. Rule 37 does not provide a forum to debate trial strategy even if it proves improvident. Watson v. State, 282 Ark. 246, 667 S.W.2d...