State v. Franklin, 02-409.

• Decision Date: 21 November 2002
• Docket Number: No. 02-409.,02-409.
• Citation: 89 S.W.3d 865,351 Ark. 131
• Parties: STATE of Arkansas v. Kevin FRANKLIN.
• Court: Arkansas Supreme Court

Page 865

89 S.W.3d 865

351 Ark. 131

STATE of Arkansas v. Kevin FRANKLIN.

No. 02-409.

Supreme Court of Arkansas.

November 21, 2002.

Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellant.

Etoch & Halbert Law Firm, by: Louis A. Etoch, Helena, for appellee.

RAY THORNTON, Justice.

The State appeals from the circuit court's decision to grant the motion of appellee Kevin Franklin for a new trial due to ineffective assistance of his counsel, Kenneth Haynes. The State argues that the defense did not present evidence of prejudice relating to Mr. Haynes's alleged errors in representing Mr. Franklin and that the circuit court erroneously relied on cumulative error in making its determination. Mr. Franklin responds that evidence of prejudice was presented, and the circuit court properly granted the new trial based on six separate instances of attorney error and prejudice to Mr. Franklin resulting from each error. We hold that the circuit court's decision was clearly erroneous, and we reverse.

Mr. Franklin was convicted of first-degree murder and sentenced to a term of 480 months in the Arkansas Department of Correction. His conviction was affirmed by the court of appeals. Franklin v. State, CACR 99-962, 2000 WL 639712 (Ark.App. May 17, 2000). On July 17, 2000, Mr. Franklin filed a motion for new trial seeking post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. On November 17, 2001, the circuit court held a hearing and on January 18, 2002, the court entered an order granting appellee's motion. The circuit court found that Mr. Franklin was entitled to post-conviction relief based on the following six grounds: failure to permit Mr. Franklin to testify, trial counsel was ineffective due to lack of preparation, failure to request AMCI 202 instruction, failure to challenge the gunshot-residue test or results, counsel's ineffectiveness during the sentencing phase, and cumulative effect of errors. The State filed a notice of appeal from the trial court's order granting post-conviction relief on January 28, 2002.

This case is properly before us because post-conviction proceedings under Arkansas Criminal Procedure Rule 37 are civil in nature, and therefore the State is entitled to appeal from an order granting post-conviction relief. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999).

We will not reverse the trial court's decision granting or denying post-conviction relief unless it is clearly erroneous. Id. A trial court's 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. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). 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. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001). We defer to the findings of the circuit court because the resolution of credibility issues is within the province of the trial court. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

The issue the State presents for this appeal is whether the circuit court erred by finding that Mr. Franklin was entitled to post-conviction relief due to ineffectiveness of counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the standard for measuring the effectiveness of counsel:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id.

We review each of the six findings by the circuit court to determine whether the conviction should be set aside based upon an analysis of the two prongs established by Strickland, supra.

I. Mr. Franklin's failure to testify at trial

The State argues that Mr. Franklin's failure to testify at trial does not constitute valid grounds for declaring counsel ineffective. Mr. Franklin contends that he did not knowingly, voluntarily or intelligently waive his right to testify, as required by Rule 1.2. of the Model Rules of Professional Conduct and that the circuit court was correct in finding grounds for ordering a new trial based on Mr. Franklin's failure to testify.

Rule 1.2 states that "[i]n a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." Id. Case law has confirmed this tenet of the scope of representation. In Dansby, supra, this court held:

The first prong of the Strickland test is whether counsel's performance was deficient because Mr. Dansby testified in his own behalf. We have consistently held that whether or not a defendant testifies is not a basis for postconviction relief. "The accused has the right to choose whether to testify in his own behalf. Counsel may only advise the accused in making the decision. The decision to testify is purely one of strategy." Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000).

Dansby, supra. Furthermore, the defendant must state specifically what his testimony would have been and demonstrate that his failure to testify resulted in prejudice to his defense. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).

In Chenowith, supra, there was conflicting testimony as to whether the defendant made the decision not to testify on the advice of his attorney, or whether the attorney agreed that the defendant would testify, then refused to introduce his testimony during the trial. Id. The circuit court resolved the conflict and found that Chenowith's attorney advised him not to testify, that defendant took that advice. Id. This court deferred to the trial court's superior position to resolve credibility issues. Id.

In the instant case, Mr. Haynes never testified that he refused to allow Mr. Franklin to testify in his own behalf. Mr. Franklin and his mother confirmed at the post-trial hearing that he expressed to Mr. Haynes that he wanted to testify at his trial. Mr. Haynes testified at the post-trial hearing that he did not "recall telling him [Mr. Franklin] that he had an absolute right to testify" and that he did recall that it "was simply my advice that he not testify."

While the circuit court was not clearly erroneous in finding that Mr. Haynes erred and did not properly inform his client of his right to testify and did not elicit a proper waiver of his right to testify, the petitioner made an insufficient showing of prejudice. Petitioner did not make any showing as to what evidence would have been presented if Mr. Franklin had been allowed to testify, other than his statement that he had a clean record and that he had, no involvement with the shooting. The evidence included Rico Anderson's testimony that Mr. Franklin and Joe Stevenson argued and that after the argument, Mr. Franklin ordered Anderson to shoot Stevenson. Anderson further testified that Mr. Franklin would kill him if he did not shoot Stevenson. Frank Hampton, a passerby driving his car along the street where the shooting occurred on the same night, testified that two men tried to get inside his car and that one of them, identifled by him as Mr. Franklin, pulled out a pistol and handed the gun to the other man who fired shots at the car as Mr. Hampton sped away. A gunshot-residue test showed that Mr. Franklin had gunpowder on both of his hands. The only testimony by the defense witness was by Pedro Bryant, who testified that he did not see Mr. Franklin give Anderson a gun, but that Mr. Franklin had a gun just before the shooting, and Bryant also admitted that he had previously told the police that Mr. Franklin did give Anderson the gun. Mr. Haynes testified at the post trial hearing that Mr. Franklin did not understand accomplice liability, and when Mr. Haynes asked questions of Mr. Franklin that he believed the prosecutor would ask, Mr. Franklin incriminated himself and demonstrated that he was indeed an accomplice and indicated his belief that if he did not fire the fatal shot, he could not be convicted of a crime.

Notwithstanding the trial court's finding that Mr. Haynes erred in failing to properly inform his client of his right to testify and in failing to elicit a proper waiver of his right to testify, the petitioner did not demonstrate that prejudice resulted from Mr. Haynes's error. There was little showing of what his testimony would have been had he been allowed to testify. We cannot conclude that his error was prejudicial in light of the overwhelming evidence that Mr. Franklin furnished the gun to the shooter, Anderson, and that Mr. Franklin told Anderson to fire the gun. We find that this error did not cause a breakdown in the adversarial process that renders the resulting conviction unreliable.

II. Lack of preparation

The trial court's order states that Mr. Haynes was ineffective on the basis that he did not prepare for trial. The order stated:

Trial counsel Mr. Haynes admitted he filed no motions of any kind on defendant's behalf. Mr. Haynes filed no motion for discovery. Kenneth Haynes filed no evidentiary motions of any kind.

However, the petitioner did not make a showing of both error and...