Rasmussen v. State, CR
| Decision Date | 24 October 1983 |
| Docket Number | No. CR,CR |
| Citation | 280 Ark. 472,658 S.W.2d 867 |
| Parties | Paula C. RASMUSSEN, Petitioner, v. STATE of Arkansas, Respondent. 82-78. |
| Court | Arkansas Supreme Court |
Lessenberry & Carpenter by Jack Lessenberry, Little Rock, for petitioner.
Steve Clark, Atty. Gen. by Theodore G. Holder, Asst. Atty. Gen., Little Rock, for respondent.
Petitioner Paula C. Rasmussen was convicted of first degree murder and sentenced to a term of life imprisonment in the Arkansas Department of Correction. We affirmed. Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground that her counsel R. Wayne Lee was ineffective.
Petitioner alleges that after trial she learned that the deputy prosecuting attorney had spoken with Mr. Lee outside her presence and offered to recommend a sentence of 15 years imprisonment if she would plead guilty. She contends that the offer of a negotiated plea was never communicated to her. Petitioner has attached to her petition an affidavit of the deputy prosecutor in which he states that he made the offer to Lee. He avers that Lee rejected the offer immediately but said he would communicate it to his client. Lee later told the deputy prosecutor that petitioner had refused the offer.
A plea agreement is an agreement between the accused and the prosecutor, not between counsel and the prosecutor. See A.R.Cr.P. Rule 25.2. As such, counsel has the duty to advise his client of an offer of a negotiated plea. Here, however, petitioner does not allege that she would have accepted the plea or that she would now accept it. This is a significant point because, even if we found merit to petitioner's bare allegation that her plea was not communicated, there would be no grounds on which to set aside the finding of guilt or to order a new trial. The most that would be appropriate would be a simple reduction in sentence to 15 years. Accordingly, the petition is denied without prejudice with regard to the allegation.
In all other respects the petition is denied with prejudice. Petitioner alleges that several persons would have testified to her good character and "other matters" if subpoenaed. She contends further that no witnesses were subpoenaed. The record reflects that several witnesses testified for the defense. The decision to call some persons as witnesses while rejecting others is normally a matter of trial strategy. Questions relating to trial tactics about which experienced advocates could disagree are not grounds for relief under Rule 37. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).
Petitioner also asserts that counsel was ineffective in that he failed to obtain a police recording of petitioner's call to the police department after the victim was shot. She does not explain, however, why the recording was important to her defense or how she was prejudiced. Petitioner also fails to state specifically how she was prejudiced by counsel's failure to object to the prosecutor's asking whether the victim was intoxicated; his failure to obtain and introduce articles of petitioner's clothing; his failure to develop evidence that the gun which killed the victim was loaded with target bullets; his failure to adequately prepare a stipulation concerning some eyeglasses; his failure to adequately develop evidence as to petitioner's impaired vision; and his failure to prepare properly for trial. Before we grant postconviction relief, a petitioner has the burden of showing the relevancy of the allegation to petitioner's trial. It is unlikely that any two attorneys would conduct a defense in the same way. It is a simple matter to allege in hindsight that counsel would have been successful, that is, would have obtained a favorable verdict or a lesser sentence, had he developed certain evidence or objected to a particular question. Unless a petitioner can show, however, by clear and convincing evidence that he or she was prejudiced by counsel's representation and the prejudice was such that he was denied a fair trial, ineffective assistance of counsel has not been established. Pitcock...
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