John Studer v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-831

NOT DESIGNATED FOR PUBLICATION

JOHN STUDER

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered 12-9-04

APPEAL FROM THE CIRCUIT COURT OF HOT SPRING COUNTY, NO. CR 99-174-2, HONORABLE PHILLIP H. SHIRRON, JUDGE

AFFIRMED

PER CURIAM

Appellant was convicted of manufacturing a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia with intent to manufacture, and possession of ephedrine with intent to manufacture. He was sentenced to concurrent twenty-year terms of imprisonment. The Arkansas Court of Appeals affirmed. Studer v. State, CA CR 00-1324, slip op. (Ark. App. Aug. 29, 2001). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied following a hearing. From that order comes this appeal.

Appellant first claims that the trial court erred in holding that a violation pursuant to Brady v. Maryland, 373 U.S. 83 (1963), is not cognizable under Rule 37. According to appellant, the State failed to divulge exculpatory information provided by appellant's co-defendant, Toni Reynolds. In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87.

In Strickler v. Greene, 527 U.S. 263, 280 (1999), the Court revisited Brady, and declared that evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." In Strickler, the Court also set out the three elements of a true Brady violation: (1) that the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) that prejudice must have ensued.

We have held that Rule 37 does not provide for the discovery of evidence. Weaver v. State, 339 Ark. 97, 103, 3 S.W.3d 323, 328 (1999). Nor does the rule provide a remedy when an issue could have been raised at trial or on appeal, unless the issue is so fundamental as to render the judgment void and open to collateral attack. Id. If appellant wanted to challenge the propriety of discovery, he should have done so before now. We therefore affirm the trial court's denial of relief. Although appellant raised various claims of ineffective assistance below, on appeal, the only argument presented is that counsel was ineffective for failing to call Reynolds as an alibi witness. According to appellant, Reynolds would have testified that appellant had nothing to do with the manufacture of methamphetamine. Those claims of ineffectiveness raised below but not argued on appeal are considered abandoned. See Echols v. State, 344 Ark. 513, 519, 42 S.W.3d 467, 471 (2001).

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 requirereversal 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.

Id. 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 or by revealing that counsel's failure to object prevented an issue from being addressed on appeal. 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.

According to the trial court's order denying relief, Reynolds has "serious credibility problems and not calling her at trial was a reasonable exercise of judgment by counsel." Moreover, the trial court held that calling Reynolds to testify may have been detrimental to appellant's case. We find no error and affirm.

We have repeatedly held:

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. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). When assessing an attorney's decision not to call a particular witness, it must be taken 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 testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. State v. Dillard, supra.

State v. Goff, 349 Ark. 532, 541-42, 79 S.W.3d 320, 325-26 (2002) (quoting Nelson v. State, 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001)). At the Rule 37 hearing, counsel testified that he did speak to Reynolds, but elected not to call her as a witness. According to counsel, he did not believe that Reynolds' attorney would permit her to testify because she was in the process of working out her own "deal" with prosecutors. Moreover, appellant's counsel did not believe that Reynolds was credible because not only was she a co-defendant, but she had a prior felony conviction and was appellant's live-in girlfriend.

Appellant goes on to argue that the trial court erred when it applied the wrong standard when denying relief on this point. In its order, the trial court held, "There is nothing contained in the affidavits supporting Petitioner's Motion or the testimony of Petitioner that compels a conclusion that the result of the trial or the sentence would have been any different even if that testimony had been heard by the jury." According to appellant, the court's use of this "compels a conclusion" standard requires reversal and remand with direction to apply the correct standard of proof. We disagree.

Regardless of the language used by the trial court, appellant has failed to satisfy the two-prong test set forth in Strickland, which is necessary for a finding of ineffective assistance of counsel. As stated, the trial court found that appellant failed to show that counsel's performance was deficient, as counsel displayed a "reasonable exercise of judgment," when opting not to call Reynolds as a witness. Moreover, given the evidence presented against appellant at trial, he has failed to show that Reynolds' testimony would have changed the outcome.

Officers conducted a search of appellant's residence, shop, and a camper trailer located on the premises. Studer, slip op. at 1. In the trailer, officers found a methamphetamine lab and paraphernalia used to manufacture methamphetamine. Id. Officers also found a tank containing anhydrous ammonia in the shop and a large quantity of pseudoephedrine inside the residence. Id. Moreover, the following items were found in appellant's bedroom: a spoon containing a white powder residue; several syringes; a small baggie of suspected methamphetamine; miscellaneous pills; a pink container with suspected methamphetamine; a set of scales with residue; a straw and razor blade with residue; and a bottle labeled "Vita-blend." Id. Twelve hundred dollars was also discovered under the stairs of appellant's home, and five hundred and ten dollars was found on appellant's person. Id.

On direct appeal, appellant challenged the sufficiency of the evidence supporting his convictions for manufacturing methamphetamine, possession of ephedrine with intent to manufacture methamphetamine, and possession of methamphetamine with intent to distribute. The court of appeals held that there was sufficient evidence to support his convictions. Appellant cannot show that had Reynolds been called as a witness, that her testimony would have changed the outcome of his trial in light of the evidence. We therefore affirm the denial of postconviction relief. Affirmed.