Vickers v. State

• Decision Date: 08 May 1995
• Docket Number: No. CR,CR
• Citation: 320 Ark. 437,898 S.W.2d 26
• Parties: Dustin VICKERS, Appellant, v. STATE of Arkansas, Appellee. 94-1131.
• Court: Arkansas Supreme Court

Page 26

898 S.W.2d 26

320 Ark. 437

Dustin VICKERS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-1131.

Supreme Court of Arkansas.

May 8, 1995.

J. Blake Hendrix, Little Rock, for appellant.

Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Dustin Vickers, was convicted by a Pulaski County jury of first degree murder and sentenced to life imprisonment. This court affirmed the judgment of his conviction. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). Subsequent to the appeal, appellant filed a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37. The only claims presented in the petition which are relevant to this appeal are three collateral attacks on the sentence relating to a claim of ineffective assistance of counsel. See A.R.Cr.P. Rule 37.1(d). After conducting two hearings, the Pulaski County Circuit Court entered an order denying appellant's petition for post-conviction relief. Jurisdiction of this appeal from the denial of post-conviction relief is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(5).

We consider appellant's first and second points for reversal together, as they are so closely related. First, appellant contends his counsel was ineffective for failing to renew a motion to hold Dale Larque an accomplice as a matter of law. At the close of the state's case at trial, appellant's counsel moved to have Larque declared an accomplice as a matter of law. The trial court reserved its ruling on the motion and counsel never renewed the motion or obtained a ruling on it. Appellant's second point is that his counsel was ineffective for withdrawing an accomplice instruction. Counsel tendered an accomplice instruction, but later withdrew it believing it was not applicable. On direct appeal, appellant raised the issue of Larque's status as an accomplice. However, this court could not address the issue because the issue was not preserved for review. Vickers, 313 Ark. at 67, 852 S.W.2d at 789.

Appellant argues the evidence presented at his trial proves Larque was an accomplice as a matter of law. The significance of Larque's status as an accomplice derives from Ark.Code Ann. § 16-89-111(e)(1) (1987), which provides that a defendant cannot be convicted of a felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the crime. Appellant argues that it is undisputed that he and Larque agreed to drive from their hometown of Stuttgart to Little Rock to purchase drugs. Since there was testimony showing Larque intended to use a gun to kill anyone who tried to rip them off, appellant's argument continues, a natural and probable consequence of their agreement to purchase drugs was that someone might be killed, and Larque was therefore an accomplice to the murder. Appellant argues further that he was prejudiced because there was no evidence to corroborate Larque's testimony as required by section 16-89-111(e)(1), and but for counsel's failure to have Larque declared an accomplice, the jury would have entertained reasonable doubt as to appellant's guilt of first degree murder.

The state contends it is not the testimony at trial that is relevant to this appeal, rather it is the testimony of appellant's trial counsel at the Rule 37 hearing that we should consider. Contrary to the state's assertion, we may consider the testimony given and evidence received at trial and abstracted in appellant's brief because the entire trial transcript was admitted as an exhibit at the Rule 37 hearing. Although we have carefully considered the evidence presented at appellant's trial, we do not repeat it here due to its length and because, for the reasons developed below, resolution of appellant's claim of ineffective assistance of counsel does not require that we determine whether Larque was an accomplice as a matter of law.

Counsel, J.W. Green, Jr., testified at the Rule 37 hearing that he had practiced law for thirty years and had been a prosecuting attorney as well as public defender when he was retained by appellant. Counsel stated that in his early discussions with appellant, counsel eliminated self-defense as a possible defense theory due to the location of the victim's gunshot wounds. In later discussions with appellant in which appellant denied committing the murder, counsel determined the defense should be a complete denial of any participation in the murder. Counsel stated he thought complete denial would be the best theory of defense because, even though only Larque and appellant were present when the murder occurred, he thought the physical evidence would corroborate Larque's testimony. The state points out that appellant agreed to the defense of denial and chose to testify at trial. His trial testimony was wholly consistent with the defense of denial.

This court will reverse a trial court's denial of post-conviction relief only if its findings are clearly erroneous or clearly against the preponderance of the evidence. Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). This court summarized the standard of review applicable to ineffective assistance of counsel claims in Pogue v. State, 316 Ark. 428, 432-33, 872 S.W.2d 387, 389 (1994):

[C]laims of ineffective counsel ... must be examined in light of the standard set in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That standard provides a two-prong test that must be met: (1) that the deficient performance of counsel must have resulted in errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment, and (2) prejudice resulted which deprived the petitioner of a fair trial. Id. There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and the petitioner alleging differently has the burden of overcoming that presumption. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). In assessing trial counsel's performance, we make every effort to eliminate the distorting effects of hindsight. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992).

The state contends that appellant's argument amounts to second-guessing counsel's trial strategy. This court has repeatedly held that matters of trial tactics and strategy, which can be matters of endless debate by experienced advocates, are not grounds for post-conviction relief. Monts v. State, 312 Ark. 547, ...