Williams v. State

• Citation: 251 S.W.3d 290,369 Ark. 104
• Decision Date: 01 March 2007
• Docket Number: No. CR 06-511.,CR 06-511.
• Court: Supreme Court of Arkansas
• Parties: Kenneth D. WILLIAMS, Appellant, v. STATE of Arkansas, Appellee.

251 S.W.3d 290

369 Ark. 104

Kenneth D. WILLIAMS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 06-511.

Supreme Court of Arkansas.

March 1, 2007.

Jeff Rosenzweig, Little Rock, AR, for appellant.

Mike Beebe, Att'y Gen., by Kent G. Holt, Ass't Att'y Gen., and David R. Raupp, Sr. Ass't Att'y Gen., Little Rock, AR, for appellee.

ROBERT L. BROWN, Justice.

Appellant Kenneth D. Williams appeals from an order of the circuit court, which denied his request for relief under Rule 37 of the Arkansas Rules of Criminal Procedure. On appeal, Williams asserts six points. None of his points has merit, and we affirm the circuit court.

Williams was convicted of the capital-felony murder of Cecil Boren and theft of property. He was sentenced to death for the capital-murder conviction and to forty years for theft under the habitual-offender enhancement. This court affirmed those convictions and sentences on direct appeal. See Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002) ("Williams I").¹ Thereafter, Williams filed a petition for relief under Rule 37.5 of the Arkansas Rules of Criminal Procedure, in which he raised numerous points. The circuit court rejected Williams's claims and denied his petition for Rule 37.5 relief. From that denial comes this appeal.

I. Ineffective Counsel

The first five points raised by Williams relate to claims of ineffective assistance of counsel at trial. This court has held that it will reverse the circuit court's decision granting or denying post-conviction relief only when that decision is clearly erroneous. See Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). This court has said, "[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." Id. at 25-26, 238 S.W.3d at 31-32.

When considering an appeal from a circuit court's denial of a Rule 37 petition, the question presented to this court is whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel's performance was or was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Howard, supra. In Howard, we discussed this standard in detail:

Under the standard set forth in Strickland, supra, to determine ineffective assistance of counsel, the petitioner must show first 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 petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005).

Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001). The language, "the outcome of the trial," refers not only to the finding of guilt or innocence, but to possible prejudice in the sentencing. Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Id. Furthermore, trial strategy is not a basis for postconviction relief. Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002).

Howard, 367 Ark. at 31-32, 238 S.W.3d at 35-36.

a. Victim-Impact Evidence

For his first point on appeal, Williams argues that his trial counsel were ineffective in the penalty phase by failing to object properly to the victim-impact evidence of the victim's sister, Annette Boren Knight.² The following colloquy is relevant to this issue:

MS. KNIGHT: The meeting of my brother and sisters when we get together it'll never be the same. We ask ourselves what can we do in situations like this. Well, we can't do anything as a family but hold together and pray together. But you can do something. You are in a position to do that. What would you do if it was your brother or your sister or your baby that someone stole away from you. I can't do anything, but you can. No words can express how we feel. Silence, the silence of never hearing Peewee's voice again haunts me and it will continue to haunt me. We miss him. We want him back but we can't.

PROSECUTION: Thank you. Hold on a second. Do you have any questions?

DEFENSE COUNSEL: No questions. Can we approach? (Counsel approached the bench)

DEFENSE COUNSEL: Once again, Judge, it's totally improper for her in victim impact to tell the jury what she wants them to do which is inferring she wants them to kill him. That's improper. Telling the jury that they are in a position to do something about this and she's not, that's improper. That is not the purpose of victim witness, your Honor. You just give me a continuing objection. I'll sit down and shut up.

In Williams I, supra, Williams claimed that it was error by the trial court to allow Ms. Knight's testimony, as quoted above. This court wrote, however, that Williams's counsel did not object until Ms. Knight had finished testifying. We held that, although Williams's counsel claimed that they had a continuing objection to this type of testimony, the record revealed no such objection. As a result, this court refused to hear Williams's argument on appeal where a specific, contemporaneous objection had not been made at trial. Now, in his Rule 37 appeal, Williams contends that his trial counsel were ineffective for failing to make the required contemporaneous objection.

The circuit court found, following the Rule 37 hearing, that Williams's counsel had made a strategic and tactical decision not to object to Ms. Knight's testimony so as not to draw attention to what she said and so as not to appear insensitive to her loss. Further, the circuit court concluded that Ms. Knight's testimony did not go so far as to tell the jury what to do. Because of this, the circuit court did not find any basis for declaring a mistrial; nor did the court find strong enough grounds for sustaining an objection, had it been timely made. On the second prong of the Strickland test, the circuit court found that there was no reasonable probability that the jury's verdict would have been different had a timely objection been made. On appeal, Williams disagrees and contends that there was no strategic or tactical justification for his trial counsels' failure to make a contemporaneous objection to Ms. Knight's testimony. He maintains that Ms. Knight suggested that the jury sentence him to death and that this was clearly improper. He emphasizes that the following statement from the circuit court to the prosecutor at trial indicates that there was no other plausible interpretation of Ms. Knight's remarks:

TRIAL COURT: I think, you know, when you get to the point of ask[ing] them to put themselves in somebody else's place we're getting very close. I'm going to give you a few minutes and I'm going to get those written out statements and peruse them for content.

Williams further disagrees that he was not prejudiced as a result of his trial counsels' failure to make a timely objection. He urges that, under Strickland, the circuit court was wrong in holding that there was not a reasonable probability that the result would have been different had a proper objection been made. It is his contention that either the jury would not have imposed a death sentence or the death sentence would have been reversed. According to Williams, there was a reasonable chance that at least one juror would not have voted for death had this improper testimony from Ms. Knight not been allowed.

Williams relies on Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001), but the instant case is distinguishable from Greene. In Greene, this court acknowledged that Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), was the seminal case in the area of victim-impact evidence. We also determined in Greene that, although victim-impact evidence was not always inadmissible, the introduction of opinions from the victim's family members concerning their feelings about what the appropriate penalty should be is not admissible as victim-impact evidence. In the instant case, however, we do not believe that Ms. Knight's testimony was objectionable, as it did not specifically instruct the jury on what she thought it should do. Rather, Ms. Knight only acknowledged the family's helplessness and the jury's power to make a decision regarding Williams's punishment for the crimes he committed. We conclude that Ms. Knight's testimony is not the kind of testimony prohibited by Greene.

Moreover, the circuit court found that Williams's trial counsels' decision not to object in a timely manner was a matter of trial strategy so as not to draw attention to what she said and so as not to appear insensitive to her loss. We cannot say that the circuit court's findings in this regard were clearly erroneous. Because we hold that there was no error by trial counsel on this point, we need not address the prejudice prong under the Strickland analysis.

b. Removal for Cause

For his second point, Williams asserts that his trial counsel were ineffective in failing to challenge juror LaRhonda Washington for cause. He bases...