Nelson v. State

• Decision Date: 05 April 2001
• Docket Number: 99-634
• Parties: Hilliard NELSON v. STATE of Arkansas CR 99-634 Supreme Court of Arkansas
• Court: Arkansas Supreme Court

Hilliard NELSON v STATE of Arkansas

CR 99-634

Supreme Court of Arkansas

April 5, 2001

Appeal from Desha Circuit Court; Don E. Glover, Judge; affirmed.

1. Criminal law -- ineffective assistance of counsel -- two-prong test. -- To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient, which requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment; second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial; unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable.

2. Attorney & client -- claim of ineffective assistance -- proof required to rebut presumption that counsel's conduct falls within wide range of reasonable professional assistance. -- A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; the petitioner must show there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors; a reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

3. Attorney & client -- claim of ineffective assistance -- totality of evidence considered. -- In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered.

4. Criminal procedure -- decision to call witness -- outside purview of Rule 37. -- The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Ark. R. Crim. P. 37; trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client.

5. Attorney & client -- assessing decision not to call witness -- must be supported by reasonable professional judgment. -- When assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness; nonetheless, such strategic decisions must still be supported by reasonable professional judgment.

6. Attorney & client -- decision to call witness -- trial tactics. -- Decisions involving which witnesses to call to benefit a case lie purely within the realm of counsel's trial tactics.

7. Attorney & client -- claim of ineffective assistance -- bare allegation that witness could have been called insufficient. -- A bare allegation that there are witnesses that could have been called on petitioner's behalf will not support a claim of ineffective assistance of counsel.

8. Attorney & client -- decision not to call witness not shown to be professionally unreasonable -- trial court's decision not clearly against preponderance of evidence. -- Where, at the postconviction hearing, counsel testified that the witnesses appellant wanted called to testify were not going to provide the same information that appellant indicated, based on a thorough review of the record, it appeared that the witnesses would not have provided any evidence that would have changed the outcome of the trial, and the trial court found that appellant had failed to offer any evidence identifying any of the witnesses or their alleged testimony, appellant did not sustain his burden of proving that his attorney's strategic decision to refrain from calling those witnesses was professionally unreasonable; the trial court's decision was not clearly against the preponderance of the evidence because the decision by counsel was a matter of trial strategy.

9. Criminal procedure -- claim of ineffective assistance -- factual support required for allegation. -- When a petitioner under Rule 37 asserts that his counsel was ineffective, he is responsible for providing factual support for the allegation; counsel is presumed effective, and allegations without substantiation are insufficient to overcome the presumption.

10. Criminal procedure -- purpose of Rule 37 -- petitioner must provide facts to support his claims of prejudice. -- The purpose of Rule 37 is not to debate the possible effect of counsel's conduct but to provide a remedy when a petitioner has suffered actual prejudice; the burden is on the petitioner to provide facts to support his claims of prejudice.

11. Criminal procedure -- claim of ineffective assistance -- conclusory allegation not substantiated with facts. -- Where appellant argued that counsel failed to have his DNA typed to be matched against the semen found on the victim without elaborating on how this alleged error prejudiced him or affected the outcome of his trial, the allegation was conclusory and was not substantiated with facts.

12. Criminal procedure -- even without DNA evidence jury could have convicted appellant of first-degree murder -- trial court's decision that appellant failed to present evidence to show how DNA evidence would have tended to exonerate him not clearly erroneous. -- Where there was no indication whether the DNA evidence would have been exculpatory or incriminating, and appellant was not convicted of capital-felony murder but was found guilty of the lesser included offense of first-degree murder, yet there existed sufficient other evidence for the jury to have convicted appellant of first-degree murder without the requested DNA evidence, the supreme court could not say that the trial court's decision that appellant failed to present evidence to show how DNA evidence would have tended to exonerate him was clearly erroneous.

13. Criminal procedure -- manner of questioning witness matter of trial strategy -- such matters not grounds for postconviction relief. -- The manner of questioning a witness is by and large a very subjective issue about which different attorneys could have many different approaches; even if a decision proves unwise, matters of trial tactics and strategy are not grounds for post-conviction relief.

14. Witnesses -- jury determines credibility as well as weight & value of testimony. -- It is the sole province of the jury to determine not merely the credibility of the witnesses, but the weight and value of their testimony

15. Criminal law -- claim of ineffective assistance -- appellant failed to show that outcome of trial would have been different had counsel submitted evidence at trial. -- Although the witness's credibility may have been adversely affected by evidence that rain fell on the day of the murder, counsel's failure to obtain such evidence was not so prejudicial that it tainted appellant's entire trial to the degree that the proceeding was unfair; there was no indication that the trier of fact would have resolved this credibility determination in appellant's favor; thus, appellant failed to demonstrate that the outcome of the trial would have been different had counsel submitted evidence at trial that it rained on the day of the murder.

16. Attorney & client -- conflict of interest -- when prejudice presumed. -- Prejudice will be presumed from a conflict of interest only when the defendant demonstrates that an actual conflict of interest adversely affected his lawyer's performance; petitioner has the burden of proving a conflict of interest and showing its adverse effects; a petitioner is not entitled to relief under the Cuyler test unless he satisfies both prongs of the test; the prejudice must be real and have some demonstrable detrimental effect and not merely have some abstract or theoretical effect.[Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 33, 100 S. Ct. 1708 (1980)]

17. Attorney & client -- claim of ineffective assistance --petitioner has burden of providing factual support to demonstrate that conflict of interest adversely affected counsel's performance. -- As with any claim of ineffective assistance of counsel, the petitioner has the burden of providing factual support to demonstrate that the conflict of interest adversely affected counsel's performance.

18. Attorney & client -- claim of ineffective assistance --petitioner did not provide factual support to demonstrate that conflict of interest adversely affected counsel's performance. -- Petitioner failed to meet his burden of providing factual support to demonstrate that the conflict of interest adversely affected counsel's performance; there was no indication from the record that counsel refused to raise issues on appeal or that those issues had merit; thus, appellant failed to establish that an actual conflict existed.

19. Appeal & error -- issue not argued below -- issue not considered. -- Where appellant did not argue the issue below at the Rule 37 hearing but changed his grounds on appeal, and since if meritorious, the issue was not so fundamental that it would have voided the conviction, the supreme court would not consider it.

20. Appeal & error -- no authority given to support argument -- argument not reached. -- Where the cases relied upon by appellant were inapplicable and appellant did not cited to any authority that extended due process protection for delays to postconviction proceedings, which are civil in nature, the supreme court declined to reach appellant's argument. [cme]

Cross, Kearney, & McKissic, by: Jesse L. Kearny, for appellant.

Mark Pryor, Att'y Gen., by: Mac Golden, Ass't Att'y Gen., for appellee.

Per Curiam.

Appellant, along with Charles Colbert and Ricky Dillard, was charged with the capital felony murder of ...