James Munson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 3, 2001

JAMES MUNSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 99-824

APPEAL FROM THE CIRCUIT COURT OF FAULKNER COUNTY, CR 95-609, HONORABLE KAREN R. BAKER, JUDGE

AFFIRMED

Appellant was convicted by jury of violation of a minor in the first degree and sentenced to fifteen years' imprisonment. We affirmed appellant's conviction and sentence in Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Cr. P. 37, raising claims of ineffective assistance of counsel. The circuit court denied the petition after a hearing, and in this appeal, appellant submits that the circuit court erred in doing so. We find no error and affirm.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

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 trialwhose 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.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, 342 Ark. at 38, 26 S.W.3d at 125.

Appellant asserts that his trial counsel was ineffective in failing to call certain witnesses at his trial to testify in his defense. He contends that their testimony would have impeached the credibility of a state witness, Renee Sanders, who testified against him. The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Id. at 42, 26 S.W.3d at 128. Trial counsel must use his or her best judgment to determine whichwitnesses will be beneficial to the client. Id. When assessing counsel's decision not to call a particular witness, we 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. at 43, 26 S.W.3d at 128.

Appellant has not shown that counsel was deficient for not calling the witnesses or that his defense was prejudiced by the absence of their testimony. Appellant's allegation on its face illustrates a dispute as to the effect the alleged witnesses would have had on the state's case and the credibility of the state's witness. The jury was not required to resolve any credibility dispute in appellant's favor even if his trial counsel would have presented additional witnesses. See Arnett v. State, 342 Ark. 66, 73, 27 S.W.3d 721, 724 (2000). Further, trial counsel testified at the hearing that he chose to attack the credibility of the state witness through cross-examination rather than the presentation of witnesses who, based on his prior trial experience, might offer testimony negative to appellant's defense. Trial counsel's reasoning clearly constitutes a rational strategic decision within the range of professional judgment. Additionally, appellant has yet to show what testimony the alleged witnesses would have offered and how their testimony would have changed the outcome of his trial. Absent a showing of prejudice, we affirm the denial of postconviction relief.

Affirmed.