James Hutts v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 19, 2004

JAMES HUTTS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-964

APPEAL FROM THE CIRCUIT COURT OF YELL COUNTY, NO. CR99-4E, HONORABLE PAUL EDWARD DANIELSON, JUDGE

AFFIRMED

Per Curiam

Appellant James Hutts was convicted by jury of capital murder and aggravated robbery, and was sentenced to life imprisonment without parole and twenty-five years' imprisonment, respectively. We affirmed on appeal. Hutts v. State, 342 Ark. 278, 28 S.W.3d 265 (2000). Appellant, acting pro se, filed a petition and amended petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The circuit court appointed Mr. Michael Lamoureux of the Arkansas Public Defender's Commission to represent appellant, and held a hearing on the petitions. The circuit denied relief on appellant's claims at the hearing and in a subsequent order.

Now before us is Mr. Lamoureux's brief asserting that any appeal of the denial of postconviction relief would be wholly without merit and asking that he be allowed to withdraw as counsel. Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j)(1) (2003) set requirements for the withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been filed on the basis that an appeal is without merit. Although such a "no-merit"

brief is typically filed in a direct appeal from a judgment, we have also allowed the filing of no-merit briefs in postconviction appeals. E.g. Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001). Pursuant to Rule 4-3(j)(2) (2003), appellant was provided a copy of his counsel's brief and notified of his right to file a list of points on appeal within thirty days. Appellant responded by filing points that he wished the court to consider. The State agrees that there is no merit to the appeal, and has filed a brief addressing the points raised by appellant. Based on our review of the issues presented, we conclude that there are no errors with respect to rulings adverse to appellant and that there is no merit to the issues raised by appellant. Accordingly, we grant the motion to withdraw and affirm the denial of postconviction relief.

We will not reverse a circuit court's decision granting or denying post conviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 169, 44 S.W.3d 726, 730 (2001). Rule 37 does not provide an opportunity to reargue points that were settled on direct appeal. Id.

The issues under review include allegations of ineffective assistance of counsel. The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (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 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, 466 U.S. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," and second, that the errors "actually had an adverse effect on the defense." Id. at 688, 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)). 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, 41, 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. Finally, the Court defers to the superior position of the trial judge in matters of credibility. E.g. Rankin v. State, 338 Ark. 723, 729-32, 1 S.W.3d 14, 732-33 (1999).

In his petition and amended petition, appellant raised twelve claims of ineffective assistance of counsel during trial and on appeal. At his hearing, however, appellant presented little evidence in support of his claims. Appellant testified that he was represented by Thomas Tatum, Sr., and Thomas Tatum, Jr., at trial and on appeal, and that they employed an investigator who worked on the case. He repeated some of the claims in his petition, but offered little testimony regarding the factual basis for those claims. He asserted that counsel should have badgered the State's witnesses more during cross-examination, but he admitted that he could think of no question that counsel should have asked any witness. He also admitted counsel were well versed in the facts of his case. Appellant did submit to the court an affidavit from his accomplice, Foster Riley, in support of his claims surrounding the effectiveness of counsel at trial and on appeal in challenging the sufficiency of the evidence corroborating Mr. Riley's testimony. In his affidavit, Mr. Riley states that he gave fraudulent testimony against appellant at the behest of the prosecution to avoid facing a possible first-degree murder conviction and life sentence. The affidavit further states that appellant had no prior knowledge of intent to murder the victim in this case. The circuit court sustained the State's objection to the affidavit, ruling that the document was hearsay and that appellant should have presented Foster Riley as a witness subject to cross-examination.

As to the majority of appellant's claims, the circuit court ruled that they failed for a lack of proof submitted by appellant. The circuit court specifically ruled that counsel was not ineffective in cross-examining the state's witnesses as cross-examination was a matter of trial strategy. In its written order, the court noted that appellant admitted that he was unaware of any question that counsel should have asked, and that counsel had a thorough knowledge of the facts of the case.

The circuit court did not clearly err in its rulings. When a petitioner under Rule 37 asserts that his counsel was ineffective, he is responsible for providing factual support for the allegation. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001). Counsel is presumed effective, and allegations without substantiation are insufficient to overcome the presumption. Id. The purpose of Rule 37 is not to debate the possible effect of counsel's conduct but to provide a remedy when a petitioner has suffered actual prejudice. Id. The burden is on the petitioner to provide facts to support his claims of prejudice. Id. Appellant failed to offer any proof on the majority of his claims. He presented no witnesses, instead relying upon his own testimony and the affidavit of his accomplice, which the circuit court ruled was inadmissible hearsay.

Appellant alleged below, and does so again in his points for reversal, that his counsel were ineffective in cross-examining the State's witnesses at trial. The circuit court correctly concluded, however, that the manner of questioning a witness is by and large a very subjective issue about which different attorneys could have many different approaches. See id. at 414, 39 S.W.3d at 796. Even if a decision proves unwise, matters of trial tactics and strategy are not grounds for post-conviction relief. Id.

Connected with appellant's ineffective cross-examination claims is his argument that the circuit court erred in ruling Mr. Riley's affidavit inadmissible as hearsay. Arkansas Rule of Evidence 801(c) (2003) defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is not admissible except as provided by law or by the Arkansas Rules of Evidence. Ark. R. Evid. 802 (2003). The proffered affidavit meets the definition of hearsay. As appellant makes clear in his points for reversal, he offered the affidavit to prove that he lacked intent necessary to be convicted of capital murder, and that the prosecutor coerced Mr. Riley's testimony at trial. Appellant fails to allege that the affidavit falls under any exception to the hearsay rule, or that Mr. Riley was unavailable for presentation at the Rule 37 hearing where he could be subjected to cross-examination. The circuit court did not err in ruling the affidavit inadmissible.

Appellant also raises various points for reversal that cannot form the ground for collateral attack of a judgment under Rule 37. In several points he challenges the credibility of Mr. Riley's trial testimony. The weighing of evidence lies within the province of the jury, and this Court is bound by its determination regarding the credibility of witnesses. Williams v. State, 351 Ark. 215, 222, 91 S.W.3d 54, 58 (2002), cert. denied, 123 S. Ct. 2257 (2003). The jury is free to believe all or part of a witness's testimony, and inconsistent testimony does not render proof insufficient as a matter of law. Id.

Likewise, appellant argues that absent Mr. Riley's trial testimony he did not possess the requisite culpability or sufficient intent to be convicted of capital murder or aggravated robbery, and that his counsel was ineffective in failing to properly challenge the sufficiency of the evidence at trial. Appellant raised similar arguments in his Rule 37 petitions. Sufficiency challenges cannot be raised in Rule 37 proceedings. Sanford v. State, 342 Ark. 22, 28, 25 S.W.3d 414, 418 (2000). In any event, appellant's counsel did move for a directed verdict and we held on direct appeal that the State, aside from Mr. Riley's testimony at trial, independently established that appellant committed capital murder and aggravated robbery. Hutts, 342 Ark. at 280-82, 28 S.W.3d at 267-68. Rule 37 does not allow appellant to reargue points decided on direct appeal. Kemp v. State, 348 Ark. 750, 765, 74 S.W.3d 224, 765-66 (2002).

Appellant also alleges that his co-defendants received lesser sentences than he did. He does not assert that his sentence is illegal. This court has held that the sentence received by a co-defendant is not relevant to the appellant's guilt, innocence, or punishment. See Baxter v. State, 324 Ark. 440, 446, 922 S.W.2d 682, 685 (1996).

Finally, appellant contends that he did not receive a fair and impartial Rule 37 hearing, and he requests a new hearing so he may present Mr. Riley's testimony. Appellant fails, however, to explain how his hearing was unfair or to specify any deficiency in the hearing. Indeed, the circuit court appointed counsel although it was not obligated to do so. See Ark. R. Cr. P. 37.3(b) (2003). Appellant testified at the hearing, and his counsel presented him the opportunity to explain his claims and testify as to how his trial counsel's performance was deficient and prejudiced him. Appellant could have presented other witnesses, including Mr. Riley, but he did not do so. If appellant is suggesting that his Rule 37 counsel was ineffective, it does not avail him relief. It is well settled that there is no right to counsel in a postconviction proceeding. Coleman v. State, 338 Ark. 545, 548, 998 S.W.2d 748, 750 (1999)(citing Pennsylvania v. Finley, 481 U.S. 551 (1987)).

Based on our review of the issues presented, we conclude that there are no errors with respect to rulings adverse to appellant and that there is no merit to the issues raised by appellant in his points for reversal. Accordingly, we grant the motion to withdraw and affirm the denial of postconviction relief.

Affirmed.