Timothy Wayne Hardin v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 6, 2003

TIMOTHY WAYNE HARDIN

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-335

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 98-571, HONORABLE MARION HUMPHREY, JUDGE

AFFIRMED

Appellant was convicted of one count of rape, one count of residential burglary, and one count of misdemeanor theft of property. He was sentenced to prison terms of 40 years, 20 years, and one year, respectively. The trial court ordered that appellant serve the rape and residential burglary sentences concurrently, and his sentence for misdemeanor theft of property merged into his felony sentences pursuant to Ark. Code Ann. § 5-4-404(c)(1) (Supp. 2001). The Arkansas Court of Appeals affirmed. Hardin v. State, CA CR 99-604 (Ark. App. Feb. 2, 2000). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging ineffective assistance of counsel.

The trial court granted the petition, and the State appealed, claiming that the trial court erred in granting appellant a new trial because it did not find that counsel's performance was prejudicial to appellant in accordance with Strickland v. Washington, 466 U.S. 668 (1984). On appeal, we held that the trial court erroneously applied the doctrine of cumulative error to find ineffective assistanceand reversed and remanded the case with instructions to analyze the matter without giving consideration to cumulative error and to determine whether both prongs of Strickland had been satisfied. See State v. Hardin, 347 Ark. 62, 68, 60 S.W.3d 397, 400 (2001) ("Hardin I"). Following remand, the trial court entered an order finding that appellant had failed to show that counsel performed deficiently and denied relief. From that order comes this appeal.

Appellant's primary claim is that the trial court was incorrect in its conclusion that counsel did not render deficient performance by declining to investigate witnesses that appellant suggested could testify regarding his prior sexual relationship with the victim; thereby establishing a consent defense or, at least, attack the credibility of the victim's claim that she had no contact with appellant. Included in this argument are claims that counsel failed to investigate other defenses and to properly cross-examine the victim. Appellant specifically faults the trial court for failing to reach the issue of whether counsel can reasonably rely on information provided by his client and the State instead of pursuing further investigation. Appellant asks this court to presume prejudice from counsel's alleged "abdication" of his duty to investigate. Finally, appellant claims that the trial court's failure to apply Williams v. Taylor, 529 U.S. 362 (2000) was a departure from this court's instructions on remand.

The Supreme Court enunciated the following standard for assessing 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 a 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.

Strickland, supra at 687. Thus, a defendant must first show 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 a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant 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 by a mere showing of error by counsel. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must 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, supra.

As stated, appellant claims that he suggested that counsel investigate witnesses who could provide testimony regarding appellant's prior sexual relationship with the victim. However, testimony regarding a sexual relationship that existed prior to the rape could not have overcome the evidence of forcible compulsion and was likely inadmissible under Ark. Code Ann. §16-42-101(b). Moreover, such testimony could have "opened the door" to the introduction of evidence of appellant's prior bad acts toward the victim.

As noted by the State, "Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Kemp v. State, 348 Ark. 750,758, 74 S.W.3d 224, 227 (2002). "A decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. "Counsel's decisions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Strickland, supra at 691. Finally, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id. Given these standards, counsel was reasonable in choosing to avoid a consent defense and in not investigating further those witnesses who could only testify regarding appellant's prior sexual relationship with the victim.

Moreover, we agree with the trial court's finding that counsel's conduct involved matters of trial strategy. "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, supra at 41, 26 S.W.3d at 127. Counsel's decisions not to investigate certain witnesses and defenses and to forgo further cross-examination of the victim for fear it would anger the jury, fall into this category as counsel's reasoning behind these decisions was based on his professional judgment.

Appellant also failed to satisfy the prejudice prong of Strickland. The evidence presented at trial of appellant's guilt was overwhelming. The victim testified that while she had a relationship with appellant in 1996, she had no contact with him after moving back to Little Rock. On November 26, 1997, appellant called the victim at work after seeing her in a local mall. During that phone conversation, appellant threatened her when she refused to see him. Four days later, appellant kicked in the door of the victim's apartment, forced her into her bedroom, choked her, and forced her to have intercourse. The emergency physician who examined the victim testified that she hadreddened

areas on her neck and right elbow, lacerations in her vagina and cervix that were consistent with rape, and blood in her vaginal vault.

The victim's father testified that two days after the rape, his daughter "could hardly walk," and that she was "crying and nervous." Katrina Polite, a friend of the victim, testified that she had bruises on her neck, arms, and legs and that she was "frantic" and crying uncontrollably. In addition, less than a month after the rape, appellant called the victim and offered to move to Michigan if she agreed to drop the charges. The victim testified that appellant assured her that he would "never come back and I wouldn't have anything else to worry about." Appellant has failed to show that counsel's decision not to further investigate certain witnesses "actually had an adverse effect on the defense." Strickland, supra. Accordingly, we affirm the trial court's denial of relief.

However, appellant argues that prejudice should be assumed from counsel's "abdication" of his duty to investigate. He is incorrect. As noted by this court in Hardin I, appellant is required to demonstrate both prongs of Strickland, deficient performance and prejudice. Presuming prejudice instead of requiring an actual showing that further investigation would have led to a different outcome, would allow windfalls to petitioners who simply disagree with their attorneys about the level of investigatory work required for their cases.

Finally, appellant argues that, although the trial court cured its cumulative error analysis on remand, it did not apply the Williams case, as ordered in Hardin I, thereby departing from our instructions on remand. Suffice it to say, the instructions given were to disregard cumulative error and to make findings pursuant to the Strickland analysis, and the trial court followed those instructions.

Appellant goes on to claim he was denied an opportunity to seek a motion forreconsideration of the court's amended order because the circuit clerk failed to timely notify him that the order had been entered. See Ark. R. Crim. P. 37.3(d). Appellant asserts that the purpose of such a motion would have been to "gain clarification of the trial court's order." He concludes by stating that he was effectively denied the right to file a motion for reconsideration, but he fails to make it clear what issues he wished to clarify. In short, appellant fails to show how he was prejudiced as a result of the untimely notification. We affirm the trial court's denial of postconviction relief.

Affirmed.