Noel v. State

• Decision Date: 14 September 2000
• Docket Number: CR 99-738
• Court: Arkansas Supreme Court

342 Ark. 35,

26 S.W.3d 123,

Riley Dobi NOEL v. STATE of Arkansas

CR 99-738

SUPREME COURT OF ARKANSAS

September 14, 2000, Opinion Delivered

Appeal from Pulaski Circuit Court, Fourth Division; John W. Langston.

Affirmed.

McLean Law Firm, by: William A. McLean, for appellant.

Mark Pryor, Att'y Gen., by: Joseph V. Svoboda, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

DONALD L. CORBIN

DONALD L. CORBIN, Justice. Appellant Riley Dobi Noel was convicted of three counts of capital murder and one count of attempted capital murder; he was sentenced to death by lethal injection and sixty years' imprisonment, respectively. This court affirmed his convictions and sentences in Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Noel then filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition. On appeal, Noel alleges four instances in which his trial counsel was ineffective: (1) failing to present alibi testimony; (2) eliciting from Noel on direct examination that he was testifying against the advice of counsel; (3) failing to call witnesses to testify about Noel's demeanor and activities in the days prior to the murders; and (4) failing to request funds for an expert on eyewitness identification. Our jurisdiction of this appeal is pursuant to Rule 37 and Ark. Sup. Ct. R. 1-2(a)(8). We find no error and affirm.

The trial record shows that on the evening of June 4, 1995, Noel and three other persons went to the home of Mary Hussian in Little Rock. Present in the home that night were Mrs. Hussian, three of her children, and Kyle Jones. The three children (Malak Hussian, age 10; Mustafa Hussian, age 12; and Marcel Young, age 17) were shot by Noel in the head as they lay on the living room floor. Meanwhile, a codefendant, Terry Carroll, attempted to shoot Mrs. Hussian with a shotgun. The shotgun jammed, however, and Mrs. Hussian was eventually able to wrestle it away from Carroll. Jones escaped unharmed through the bathroom window. It was the State's theory that Noel committed the murders in retaliation for the death of his brother, which had occurred approximately one week earlier. Noel apparently believed that his brother had been "set up" in a drive-by shooting by one of Mrs. Hussian's daughters.

In his petition for postconviction relief, Noel alleged nine instances in which his trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Weaver, 339 Ark. at 99, 3 S.W.3d at 325. Petitioner must also show that the deficient performance prejudiced his defense; this requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. Unless the petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith, 341 Ark. 722, 19 S.W.3d 612. This court will not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Jones, 340 Ark. 1, 8 S.W.3d 482; State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). With this standard in mind, we review the four allegations raised on appeal.

I. Alleged Alibi Witnesses

Noel argues that trial counsel was ineffective for failing to present the testimony of alibi witnesses. The trial record reflects that an in-camera hearing was held, wherein defense counsel reported that Noel had given him the names of several witnesses who would provide an alibi for him. During the course of interviewing those witnesses, it was discovered that they could not provide a genuine alibi for Noel; however, the witnesses indicated that they were prepared to lie for him. Based on this knowledge, counsel advised that he would not present the false testimony, as it would violate the Model Rules of Professional Conduct.

During the postconviction hearing, Noel failed to call these alleged alibi witnesses to the stand. Moreover, he made no attempt to proffer the substance of the testimony that they would have provided at trial. This alone is sufficient reason to affirm. This court does not grant postconviction relief for ineffective assistance of counsel where the petitioner has failed to show what the omitted testimony was and how it could have changed the outcome. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

Furthermore, the Supreme Court has recognized that as a matter of law, counsel is not ineffective for failing to present false testimony. In Nix v. Whiteside, 475 U.S. 157, 89 L. Ed. 2d 123, 106 S. Ct. 988 (1986), the defendant in a murder trial had consistently told his attorney that he had acted in self-defense in stabbing the victim. He told his attorney that although he had not actually seen a gun in the victim's hand, he was convinced that the victim had a gun. Shortly before the trial, however, the defendant told his attorney that he had seen something metallic in the victim's hand. When questioned about this new information, the defendant stated: "If I don't say I saw a gun, I'm dead." Nix, 475 U.S. at 161. Defense counsel warned that if he testified falsely, it would be counsel's duty to advise the court that he felt the defendant was committing perjury, and that counsel would seek to withdraw from his case. At his trial, the defendant testified without making reference to seeing anything in the victim's hand, and he was convicted. Following his conviction, he claimed that he had received ineffective assistance of counsel.

The Court disagreed, holding that counsel's conduct did not violate the reasonable professional standards contemplated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In reaching its decision, the Court discussed the need to balance the Sixth Amendment right to effective counsel with the ethical obligations attorneys have as officers of the court. The Court explained that counsel's duty of loyalty and his duty to zealously advocate the defendant's cause are "limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth." Nix, 475 U.S. at 166. Thus, "although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law." Id. The Court thus concluded that because there was no breach of any recognized professional duty, there was no deprivation of the right to effective assistance of counsel under Strickland. Finally, the Court held that "as a matter of law, counsel's conduct complained of here cannot establish the prejudice required for relief under the second strand of the Strickland inquiry." Nix, 475 U.S. at 175 (emphasis added).

The only difference between this case and Nix is that, here, the false testimony was not being supplied by the defendant, but by his sympathizers. Counsel in this case acted properly by declining to present the false alibi testimony; to do otherwise would have been a violation of his ethical obligations. Rule 3.3(a) of the Model Rules of Professional Conduct provides: "A lawyer shall not knowingly: … (4) offer evidence that the lawyer knows to be false." Subsection (c) provides: "A lawyer may refuse to offer evidence that the lawyer reasonably believes is false." Given these rules and the Supreme Court's recognition that a lawyer's duty of zealous representation extends only to legitimate, lawful conduct, we conclude that counsel was not ineffective for failing to present the false alibi testimony.

II. Informing Jury that Noel was Testifying Against Counsel's Advice

Noel contends that he was prejudiced when the jury was informed, during his direct examination, that he was testifying against the advice of counsel. The record reflects the following exchange between Noel and his trial counsel:

Q All right. Now, Riley, you're taking the stand here because you want to tell the jury your story. Is that correct?

A Yes, sir.

Q And that's over my advice?

A Yes, sir.

Q Against my advice?

A Yes, sir.

Noel urges that this was a comment on his credibility, or lack thereof, as a witness. He contends that by informing the jury that he was testifying against the advice of counsel, the jury could have concluded that even his own attorney did not believe he was telling the truth.

The State argues that this was a calculated trial tactic aimed at showing the jury that Noel was so insistent upon his innocence that he would risk taking the stand, where his prior felony convictions would be revealed and he would likely undergo an exhausting cross-examination. Trial counsel testified that he chose to reveal this information to show the jury how strongly Noel believed in...