Williams v. State

• Decision Date: 17 November 2011
• Docket Number: No. CR 11–178.,CR 11–178.
• Citation: Williams v. State, 2011 Ark. 489, 385 S.W.3d 228 (Ark. 2011)
• Parties: Gary Lonnie WILLIAMS, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 489

385 S.W.3d 228

Gary Lonnie WILLIAMS, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–178.

Supreme Court of Arkansas.

Nov. 17, 2011.

John Wesley Hall, Jr., Little Rock, for appellant.

Dustin McDaniel, Atty. Gen., Leaann J. Irvin, Little Rock, for appellee.

ROBERT L. BROWN, Justice.

This is an appeal from the denial of a petition for postconviction relief filed under Rule 37.1 of the Arkansas Rules of Criminal Procedure. The appellant, Gary Lonnie Williams (Williams), appeals the denial on two grounds. We find no error and affirm.

The facts supporting his conviction and sentence, as set out by the court of appeals, are as follows. On the evening of January 9, 2006, Marvin Perkins and Williams were at Perkins's apartment in Conway with a number of guests. Williams agreed to take one of the guests home. When he did not return the vehicle that he was driving to its parking spot, Perkins went outside to investigate. He saw Williams having a conversation with someone. Perkins returned to his home, thinking that Williams would soon return. Perkins waited a few minutes and walked outside again. This time, he saw Williams walking toward him with Heath Rodgers following closely behind. Williams told Perkins that Rodgers had a gun, which had been stolen from a pawn shop. Perkins had a gun as well. When Williams and Rodgers went inside the residence, Rodgers said that he wanted to talk about a car. Perkins, who had had problems with Rodgers in the past, asked Rodgers to leave. Rodgers refused to do so. When Perkins attempted to slam the door in Rodgers's face, Rodgers kicked the door open, and the argument became more heated. Rodgers and Perkins soon began fighting and hitting each other with their guns. Williams eventually joined the fight. While they were fighting, Rodgers dropped his weapon. Williams and Perkins gained the advantage over Rodgers and began taking turns beating him with Perkins's gun. They beat him multiple times, and he died. Perkins pled guilty to a number of charges, including second-degree murder. He was sentenced to thirty years in prison for second-degree murder and testified against Williams.

On March 9, 2007, a jury found Williams guilty of first-degree murder, possession of drug paraphernalia, and possession of marijuana and sentenced him to forty years for first-degree murder, ten years for possession of drug paraphernalia, and one year for possession of marijuana, the sentences to run concurrently. His convictions were affirmed by the court of appeals. See Williams v. State, CACR07–945, 2008 WL 4277461 (Ark.App. Sept. 17, 2008) (unpublished).

On December 5, 2008, Williams filed his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1. In his Rule 37 petition, he alleged that his trial counsel was ineffective for failing to call witnesses and for misadvisinghim concerning his right to testify. ¹ On his right to testify, Williams also claimed that he had a fundamental right under both the federal constitution and the state constitution to testify in his own defense and that it was error not to put his alleged waiver of that right on the record.

On September 29, 2010, a hearing was held on Williams's Rule 37 petition. At the hearing, Williams presented the testimony of himself; Lonnie Williams, his father; Crystal Williams, his ex-wife; Donna Moore, his mother; Sue Sherwood; Jere Orvin; and Susan Williams. The State presented the testimony of Robert Newcomb, Williams's lead trial counsel. On November 18, 2010, the trial court entered an order denying Williams's Rule 37 petition. In that order, the court made the following findings: (1) calling a witness is a strategy decision by defense counsel and, therefore, is not an issue for which relief is granted under Rule 37; and (2) acting with the advice of counsel, Williams elected to stand on his Fifth Amendment right to remain silent and did so after proper consultation. The court concluded that Williams's rights were not violated in such a manner as to give rise to a basis for granting relief pursuant to Rule 37. It is from this denial of his Rule 37 petition that Williams brings this appeal.

This court does not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. 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 made. Id.

In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Gaye v. State, 2009 Ark. 201, 307 S.W.3d 1. Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Montgomery, 2011 Ark. at 3, 385 S.W.3d at 193–94.

In asserting ineffective assistance of counsel under Strickland, the petitioner must first show that counsel's performance was deficient. Gaye, 2009 Ark. at 6, 307 S.W.3d at 4. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

The petitioner must also show that counsel's deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. In doing so, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, which means that the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidencein the outcome of the trial. Id. at 6, 307 S.W.3d at 5.

Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id. Additionally, the burden is on the petitioner to provide facts to support his claim of prejudice. Gaye, 2009 Ark. at 7, 307 S.W.3d at 5. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

For his first point on appeal, Williams urges that he was denied effective assistance of counsel, because his trial counsel failed to call several witnesses to testify on his behalf. He argues that these witnesses would have testified that Marvin Perkins admitted that he was the sole actor in the death of Rodgers. As a result, he contends that the trial judge erred in concluding that his trial counsel's decision to call or not to call several witnesses was a matter of trial strategy and not a proper basis for granting postconviction relief under Rule 37.

Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for a finding of ineffective assistance of counsel. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Thus, even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Id. The decision whether to call particular witnesses is a matter of trial strategy that is outside the purview of Rule 37. Id. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. When assessing a trial counsel's decision not to call a particular witness, this court must take into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Id.

Williams contends that his trial counsel was ineffective for calling only one out of six witnesses at trial who heard Marvin Perkins admit that he was the sole actor in the death of Heath Rodgers. He argues in his brief before this court that “every person who heard Perkins' admissions should have been called to the stand at the trial because that would have definitely made the jury far more comfortable than with the lone Sue Sherwood's testimony.” He further maintains that each witness should have been called, because when the case evolves into a “swearing match,” it is necessary to call all the witnesses counsel is able to call in order to bolster the defendant's version of events.

Williams offers the following evidence in support of his claim. At the Rule 37 hearing, Lonnie Williams, Williams's father, testified that he, his wife, and Williams's ex-wife had a conversation with Perkins after Williams was arrested. Perkins told him that Williams saved his life and the lives of all who were in the apartment that night. Lonnie Williams admitted on cross-examination that Perkins testified to the same story when he was cross-examined at trial. Lonnie Williams also testified that he was told by defense counsel that he would not be called as a witness at trial because of an allegation that he had offeredto buy a car for a detective presiding over his son's case.

Crystal Williams, Williams's ex-wife, also testified at the Rule 37 hearing that during this conversation with Perkins,...