Smith v. State

• Decision Date: 18 March 2010
• Docket Number: No. CR 08–900.,CR 08–900.
• Citation: 361 S.W.3d 840,2010 Ark. 137
• Parties: Ricky L. SMITH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 137

361 S.W.3d 840

Ricky L. SMITH, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 08–900.

Supreme Court of Arkansas.

March 18, 2010.

J. Sky Tapp, Hot Springs, for appellant.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

PER CURIAM.

In 2005, following a jury trial, appellant Ricky L. Smith was found guilty of second-degree murder ¹ and sentenced to twenty years' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Smith v. State, CACR 06–169, 2007 WL 1765540 (Ark.App. June 20, 2007) (unpublished). Appellant filed a timely petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2009), and, following a hearing, that petition was denied.

Now before us is appellant's appeal from the trial court's May 16, 2008 order denying postconviction relief. Appellant raises five points on appeal, alleging that trial counsel was ineffective for (1) failing to call two known alibi witnesses to testify, (2) failing to hire independent DNA or forensic experts, (3) failing to properly investigate or interview witnesses, (4) failing to request adequate time to prepare after receiving last-minute statements that were possibly exculpatory, and (5) failing to preserve certain issues for appeal. We find no error, and we affirm.

This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam) (citing Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (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. Jamett, 2010 Ark. 28, 358 S.W.3d 874; Anderson v. State, 2009 Ark. 493, 2009 WL 3235533 (per curiam); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact-finder must be considered. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). We defer to the trial court's determination of credibility on Rule 37.1 appeals. Id. at 95, 263 S.W.3d at 546.

In an appeal from a trial court's denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence, under the standard set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. French v. State, 2009 Ark. 443, 2009 WL 3047356 (per curiam); Small, 371 Ark. 244, 264 S.W.3d 512. Under the two-pronged Strickland test, a petitioner making a claim of ineffective assistance must first 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. Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007); Barrett, 371 Ark. at 95–96, 263 S.W.3d at 546. In doing so, the claimant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Barrett, 371 Ark. at 96, 263 S.W.3d at 546.

As to the second prong of the test, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Jamett, 2010 Ark. 28, at 3–4, 358 S.W.3d 874; Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). Such a showing requires that the petitioner demonstrate a reasonable probability that the factfinder's decision would have been different absent counsel's errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

Appellant's first point on appeal is that trial counsel was ineffective for failing to call two “known alibi witnesses” to testify. For ineffective assistance claims based on failure to call a witness, this court has held that it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Weatherford v. State, 363 Ark. 579, 215 S.W.3d 642 (2005) (per curiam) (citing Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004)). Appellant satisfies this first requirement, in that he proffers the testimony of his mother and stepfather, and he avers that both witnesses would have testified that appellant was at home with them at the time the murder occurred. Appellant contends that trial counsel's performance was deficient because, based on the totality of the circumstances, a reasonable attorney would have put these witnesses on the stand. He further alleges prejudice in that he would not have been convicted had the witnesses been called.

Based on the testimony of trial counsel and the alibi witnesses at appellant's Rule 37.1 hearing, the trial court found that trial counsel's decision not to call the witnesses was a strategic decision, that the witnesses' testimony was not credible, and that the jury would likely have found the testimony so unbelievable as to actually work against appellant's defense. In response, appellant cites Barrett, 371 Ark. 91, 263 S.W.3d 542, wherein we held that even strategic decisions can amount to ineffective assistance of counsel if they are not supported by reasonable professional judgment. This case is easily distinguishable from Barrett, however.

In Barrett, we affirmed the trial court's granting of postconviction relief based on the failure of the defense attorney to develop any theory of defense, to voir dire the jury on the elements or requisite mental states of the crime, to present any evidence or witnesses regarding Barrett's mental state or intent, or to even mention the defendant's theory of defense or possible lack of specific intent during closing arguments. Barrett, 371 Ark. at 98–99, 263 S.W.3d at 548. We noted that the failure to present any substantive defense combined with the failure to explain the requisite mental states for the various levels of murder amounted to prejudice under Strickland because Barrett was “sympathetic [and] believable” and, had defense counsel presented a theory of accidental death, “there was a reasonable probability that the jury would have had reasonable doubt.” Id. at 99, 263 S.W.3d at 548. Unlike the circumstances in Barrett, however, there is nothing in the record here to suggest that trial counsel failed to adequately voir dire the jury, failed to make a proper closing argument, or otherwise did anything demonstrating such poor professional judgment that would rise to the level of “egregious” failure. Barrett, 371 Ark. at 99, 263 S.W.3d at 548.

At the Rule 37.1 hearing, trial counsel testified that the decision not to call the witnesses in question was based on his determination that they were not credible, which was based both on the fact that appellant had initially claimed that he was in the woods hunting when the murder occurred and had said nothing about being at home with his parents as well as the fact that both witnesses gave trial counsel multiple and conflicting versions of the alibi. Trial counsel was concerned that presenting this noncredible testimony to the jury would do appellant more harm than good.² Rather than demonstrating a lack of reasonable judgment, counsel's decision not to proffer the testimony here demonstrated a well-reasoned choice regarding trial strategy. 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. McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144; Johnson v. State, 2009 Ark. 460, 344 S.W.3d 74. Barrett is simply inapposite to appellant's case, and his citation to Barrett is therefore unavailing.

Nor are we persuaded by appellant's citation to Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995). At issue in Wicoff was defense counsel's failure to call a witness who would have directly and substantially impeached the credibility of two child victims whose testimony was the only evidence against the defendant, his failure to request a rape-shield hearing to explore the possible relevance of the victims' prior sexual conduct, and his failure to admit readily available substantial evidence that would have further undermined the credibility of the two victims' testimony, including a report from the Arkansas Department of Human Services that would have explained how the young victim-witnesses could have had explicit sexual knowledge. Id. Even if these decisions were strategic, we found that they were not reasonable under a totality of the circumstances because there was a reasonable probability that the outcome of the trial would have been different had defense counsel fully explored information concerning the victims' prior sexual contact and, in particular, had he called the witness to testify that one of the victims admitted fabricating the story. Id. We reversed the trial court's denial of postconviction relief and remanded for a new trial. Id.

Appellant's case does not present a scenario like Wicoff. The witness in Wicoff would have testified that one of the victims admitted that she had made up the accusations against the defendant, and there was also extrinsic evidence in the form a of a Department of Human Services report that would have supported the witness's testimony. In the instant case, the testimony of appellant's mother and stepfather did not speak to the fabrication of the alleged crime, but only attempted to place appellant away from the crime scene, and this testimony was unsupported by any other...