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ARKANSAS SUPREME COURT
EDDY STANLEY HARRIS, JR.
June 26, 2008
APPEAL FROM THE CIRCUIT COURT
OF PULASKI COUNTY, CR 2003-2315,
HON. JOHN W. LANGSTON, JUDGE
STATE OF ARKANSAS
In 2005, a jury found appellant Eddy Stanley Harris, Jr., guilty of two counts of capital
murder and sentenced him to two consecutive terms of life imprisonment without parole. This court
affirmed the judgment. Harris v. State, 366 Ark. 190, 234 S.W.3d 273 (2006). In 2006, appellant
timely filed through counsel a petition for postconviction relief under Ark. R. Crim. P. 37.1, which
was denied by the trial court in two separate orders. The initial order found that a number of
appellant’s claims in the petition were without merit, granted a motion to amend the petition, and
ordered a hearing on the remaining allegations in the petition and amendment. In the second order,
the trial court found that the remaining allegations were also without merit and denied relief on the
petition. Appellant filed a notice of appeal and amended notice of appeal as to the second order, and
lodged this appeal.
Appellant raises a single point on appeal in which he contends that the trial court erred by
failing to find that trial counsel was ineffective. Within that point, appellant argues that trial counsel
failed to subject the State’s case to any adversarial testing, that trial counsel was deficient for failure
to call a number of witnesses and to contact or interview some of those witnesses, that trial counsel
was ineffective for failing to introduce a police report or cross-examine a detective about the report,
that trial counsel was ineffective for failing to object to an in-court identification of the defendant
by one of the witnesses, and that trial counsel was ineffective for failing to make an objection to the
introduction of a recording of a conversation between appellant and his father.
Appellant raises as ineffective assistance his trial counsel’s failure to present any witnesses
or effectively contest the State’s case. Appellant did not receive a ruling as to that issue, as a
separate issue, in the appealed order. An appellant has an obligation to obtain a ruling on any issue
to be preserved for appeal. See Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006); Beshears v.
State, 340 Ark. 70, 8 S.W.3d 32 (2000). To the extent that some parts of that argument were
addressed by the trial court in reference to the individual witnesses, those arguments are discussed
As to specific potential witnesses, appellant first contends that trial counsel should have
called appellant’s father and Keesha Epting to dispute the testimony of two key witnesses, Johilda
Harris and her husband, Michael Ford, concerning statements about appellant’s participation in the
shootings. The trial court found that trial counsel had made strategic decisions not to call those
witnesses and that no potential witness’s testimony would have impeached Mr. Ford’s testimony.
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective
assistance of counsel, the question presented is whether, under the standard set forth by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and based on the totality
of the evidence, the trial court clearly erred in holding that counsel’s performance was not
ineffective. Small v. State, 371 Ark. 244, ___ S.W.3d ___ (2007) (per curiam). 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.
Under the Strickland test, a claimant must show that counsel's performance was deficient,
and the claimant must also show that this deficient performance prejudiced his defense through a
showing that petitioner was deprived of a fair trial. Walker v. State, 367 Ark. 523, 241 S.W.3d 734
(2006) (per curiam). A petitioner making this claim must first show that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth
Amendment. Harrison v. State, 371 Ark. 474, ___ S.W.3d ___ (2007). In doing so, the claimant
must overcome a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. As to the second prong of the test, the petitioner must show
that there is a reasonable probability that the fact-finder’s decision would have been different absent
counsel’s errors. Sparkman v. State, ___ Ark. ___, ___ S.W.3d ___ (March 20, 2008). A reasonable
probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Where the trial court has determined a decision by counsel was a matter of trial tactics or
strategy, and that decision is supported by reasonable professional judgment, then a decision not to
call a witness or challenge a statement may not be a proper basis for relief under Rule 37.1. See
Weatherford v. State, 363 Ark. 579, 215 S.W.3d 642 (2005) (per curiam). The fact that there was
a witness or witnesses who could have offered testimony beneficial to the defense is not, itself, proof
of counsel’s ineffectiveness. Rankin v. State, 365 Ark. 255, 227 S.W.3d 924 (2006).
Here, Johilda Harris and Michael Ford testified at trial concerning conversations with
appellant and his father in which appellant failed to deny, and later admitted, his involvement in the
murders. At the hearing on the Rule 37.1 petition, appellant’s father testified that he was available
as a witness to refute that those conversations took place as Ms. Harris and Mr. Ford testified.
Keesha Epting testified that she was called to court for the trial but did not testify, and could have
provided an account concerning an occasion when Ms. Harris later recanted her statements to the
police about the conversations.
Trial counsel testified that he discussed with appellant whether his father should testify, and
made a decision not to call appellant’s father because he had been arrested for threatening a witness,
had some temper issues, and counsel did not believe that he would make a good witness. The trial
court found that trial counsel did not put Ms. Epting on the stand as a matter of trial strategy because
Ms. Epting was subpoenaed and counsel was aware of her potential testimony. The trial court
reasoned that because Ms. Epting’s testimony only concerned Ms. Harris’s recanting her statement
and did not impeach Mr. Ford’s testimony, there was support for reasonable professional judgment
as to the decision.
Appellant argues that trial counsel could not have reasonably decided to forego presenting
some counter to Ms. Harris’s testimony. He contends that Mr. Ford’s testimony was not as
persuasive as Ms. Harris’s because he only testified as to statements that he had heard spoken to his
wife in his presence rather than what was said directly to him, and that by refuting Ms. Harris’s
testimony, Ms. Epting’s testimony also refuted Mr. Ford’s testimony.
A proceeding on a Rule 37.1 petition does not provide a forum to debate trial tactics or
strategy, even if the strategy proves improvident. Id. 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, 26 S.W.3d 123 (2000).
Although another attorney may have chosen a different course, trial strategy, even if it proves
unsuccessful, is a matter of professional judgment. Id. The trial court did not clearly err in finding
that the decision not to call Ms. Epting was a matter of strategy based upon reasonable professional
judgment. Appellant’s arguments challenge the prudence of counsel’s decision, but are not
sufficient to undercut the basis for the decision as reasonable professional judgment. While another
attorney may have reached a different conclusion, counsel could have reasonably concluded Ms.
Epting’s testimony did not refute Mr. Ford’s and was not of value.
The trial court’s findings as to trial counsel’s having made a tactical decision not to call
appellant’s father and its conclusion that the decision was supported by reasonable professional
judgment were also not clearly erroneous. The bases articulated by counsel were sound. The
transcript of appellant’s father’s testimony at the hearing on the Rule 37.1 petition indicates that his
presentation on the witness stand was indeed problematic, and those concerns, in combination with
counsel’s additional concerns about a display of temper and cross-examination concerning an arrest
for threatening a witness, provided good support for the decision. Appellant’s father’s value as a
witness was undermined by his relationship to appellant, in any case. The additional concerns
provided a reasonable basis for counsel to fear that appellant’s father’s testimony could harm
appellant’s case more than help it.
Appellant next contends the trial court erred in determining that trial counsel was not
ineffective for failure to call witnesses to impeach Ms. Harris by providing testimony as to her
reputation for a lack of truthfulness. Appellant argues that counsel should have called appellant’s
father and Jackie Cobbs for such testimony. Appellant further contends that Ms. Cobbs could have
provided alibi testimony.
The trial court did not provide a ruling specifically as to Ms. Cobbs’s testimony concerning
Ms. Harris’s veracity. Even if the trial court’s findings as to other witnesses for that testimony were
applicable, the ruling reflects the same reasonable basis for a tactical decision as in the previous
discussion concerning counsel’s failure to discredit Ms. Harris’s testimony. Mr. Ford’s testimony
would have remained unchallenged. For the reasons previously discussed, we also agree with the
trial court’s finding that the decision not to call appellant’s father was a matter of trial strategy.
As for Ms. Cobbs’s alibi testimony, the trial court found that the decision was once again a
matter of trial strategy based upon Ms. Cobbs’s reluctance to testify and the fact that her testimony
would not clearly provide an alibi for the specific time of the murders. Despite appellant’s assertion
that Ms. Cobbs’s testimony was precise, we agree with the trial court’s finding. While Ms. Cobbs
indicated that she was aware of appellant and his friends being in the game room of the house all
day, she did not have a specific recollection of that time frame to place the appellant in the house.
Moreover, we note that trial counsel testified that appellant had told him that he was at the scene of
the murder when it occurred. The trial court did not include that testimony as a basis for the ruling,
but counsel would certainly have had a reasonable basis not to call any witness for alibi purposes
under those circumstances.
Appellant next contends that trial counsel was ineffective for failure to call four witnesses
who gave statements to the police that appellant argues excluded appellant as a participant in the
murders. Appellant did not present those witnesses at the hearing on the Rule 37.1 petition. He
complains that counsel did not interview or speak to these witnesses. He contends counsel could
not therefore reasonably have made a decision not to call the witnesses. The trial court found that
the witnesses’ statements did not exclude appellant.
Appellant failed to carry his burden of proof on this issue because he failed to produce the
witnesses at the hearing on the Rule 37.1 petition. Whether counsel committed an error or not by
failing to investigate or failing to call a witness, appellant was required to demonstrate prejudice
under the second prong of the Strickland test. Actual ineffectiveness claims alleging deficiency in
attorney performance are subject to a general requirement that the defendant affirmatively prove
prejudice. State v. Barrett, 371 Ark. 91, ___ S.W.3d ___ (2007). The objective in reviewing an
assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to
determine whether this failure resulted in actual prejudice which denied the petitioner a fair trial.
Hill v. State, 292 Ark. 144, 728 S.W.2d 510 (1987) (per curiam). It is incumbent on the petitioner
to name the witness, provide a summary of the testimony, and establish that the testimony would
have been admissible into evidence. Weatherford, 363 Ark. at 586, 215 S.W.3d at 649.
Here, appellant contended that the witnesses would have provided important testimony based
upon their statements to the police. He did not show that the witnesses would have been available
to testify or would have provided admissible sworn testimony at trial consistent with the statements.
Moreover, only one of the four potential witnesses claimed to have seen the murders so as to
potentially identify the participants and exclude appellant. Because there was no testimony that
established a definitive number of participants present at the shootings and there were bushes at the
scene in which some participants may have hidden, the witnesses’ testimony did not exclude
appellant’s participation. In addition, both counsel and one of the investigating officers testified at
the hearing on the Rule 37.1 petition that this witness would have had very significant issues
concerning her veracity as to previous testimony on an unrelated matter. Under these circumstances,
appellant did not demonstrate that he was prejudiced by a failure to call the witnesses.
The same is true as to two additional witnesses that appellant contends trial counsel failed
to investigate or call, Vishay Franklin and Cameron Brazwell. Appellant contends that Ms. Franklin
and Mr. Brazwell would have impeached the testimony of Jarvis McKeller. Appellant alleges trial
counsel was not diligent in efforts to locate the witnesses so that they could have been subpoenaed
for the trial. But, appellant did not produce Ms. Franklin and Mr. Brazwell or demonstrate that, had
counsel acted with such diligence, these witnesses would have provided testimony that was
sufficient to undermine confidence in the outcome of the trial.
Counsel did make efforts to locate these witnesses, but appellant asserts that he failed to do
so with sufficient haste. One of the investigating officers testified that the witnesses were
uncooperative, and that one had a lengthy felony history and the other had left the state soon after
giving her statement. Appellant did not provide evidence that, had counsel acted with greater
diligence to locate the witnesses, those witnesses would have then been available at trial and
provided testimony sufficient to raise a reasonable probability that the fact-finder’s decision would
have been different. His statements to that effect are conclusory. Conclusory statements cannot be
the basis of postconviction relief. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). A
petitioner must provide factual substantiation for his allegations in order to overcome the
presumption against ineffectiveness. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per
Appellant next alleges trial counsel was ineffective for failure to call appellant’s father to
refute testimony of Chandra Baskin that she had been to appellant’s house and had met his father.
The trial court’s ruling was based upon the same reasoning as its previous ruling on the decision not
to call appellant’s father. For the same reasons as noted above, we affirm that ruling as to this
witness, as well.
Next, appellant alleges trial counsel was ineffective because he failed to introduce a police
report and cross-examine a detective concerning the report. Appellant contends that the report
would have refuted Ms. Baskin’s testimony that she and appellant’s codefendant, George Larue
Hall, had spent the night in a motel in Conway two weeks after the murders. The report stated that
the manager had told investigating detectives that he had no record of the stay.
The trial court found that the detective testified in the hearing on the Rule 37.1 petition that
the manager of the motel was uncooperative. The court ruled that appellant had not shown how the
alleged error resulted in prejudice. We would agree that, because the detective would have testified
that the motel manger was not cooperative, appellant’s claim failed to demonstrate that, had trial
counsel introduced the report or cross-examined the detective concerning it, there would have been
a reasonable probability that the fact-finder’s decision would have been different.
Appellant alleges error in that the trial court found trial counsel was not ineffective for
failing to make an objection to the in-court identification of appellant by Mr. McKeller and preserve
the issue for appeal. In order to succeed on this sub-point, appellant must demonstrate prejudice in
that the argument, if preserved, would have been successful on appeal. Camargo v. State, 346 Ark.
118, 55 S.W.3d 255 (2001). Counsel is not ineffective for failing to make an argument that is
Appellant had filed a motion in limine to suppress Mr. McKeller’s in-court identification of
appellant based upon an improper pretrial identification from a photo line-up. The motion was
unsuccessful and the issue was raised again on direct appeal, but not addressed because counsel did
not object at the time the identification was made during trial. The trial court found that a
contemporaneous objection would have been overruled and that an appeal of that objection would
not have been successful. The court indicated Mr. McKeller identified appellant in the hearing on
the motion and had testified that his identification was from his own memory of having seen the
appellant and was not based on the photo line-up.
A challenge to the admission of Mr. McKeller’s identification of appellant would likely have
received a ruling consistent with that given on the motion and would not have been successful on
appeal. The standard of review concerning a trial court’s ruling on the admissibility of an in-court
identification requires a determination that the ruling is clearly erroneous under the totality of the
circumstances. Mezquita v. State, 354 Ark. 433, 125 S.W.3d 161 (2003). Reliability is the linchpin
in determining the admissibility of identification testimony. Id. This court considers six factors in
determining reliability, as follows: (1) the prior opportunity of the witness to observe the alleged
act; (2) the accuracy of the prior description of the accused; (3) any identification of another person
prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the
confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; (6) the
lapse of time between the alleged act and the pretrial identification procedure. Id. Even when the
identification procedure is impermissibly suggestive, the trial court may determine that under the
totality of the circumstances the identification was sufficiently reliable for the matter to be submitted
to the factfinder. Id.
The trial court’s admission of the identification here would have been based upon sufficient
indicia of reliability to support the ruling considering the totality of the circumstances. Mr.
McKeller’s testimony at trial indicated that he had a good opportunity to observe the person he
identified as appellant. The record does not reflect that Mr. McKeller ever identified anyone other
than appellant as the person making the statements he attributed to appellant. As the trial court
noted, Mr. McKeller demonstrated a high level of certainty and indicated he made his identifications
from his own memory. The amount of time passing was not excessive for the circumstances.
Admission of the identification would have been affirmed on appeal.
Finally, appellant alleges trial counsel was ineffective for failure to object to introduction
of a recording of a conversation between appellant and his father on the basis that the recording was
so unintelligible as to render the recording untrustworthy. Before trial, counsel had filed a motion
to suppress the recording, and, after a pretrial hearing, the trial court found that the recording was
admissible, but agreed that the transcript prepared by the prosecution would not be admitted.
Appellant had argued that a portion of one of his responses was difficult to understand and that the
transcript interpreted a few words of one sentence in that response incorrectly. The defense was
permitted to argue its interpretation to the jury. The trial court found that an objection to the
introduction of the tape at trial would have been overruled, that appellant was not prejudiced by the
failure to object to the admission of the tape, and that the lack of clarity of the tape would go to the
weight that should be accorded to it by the fact finder, not its admissibility.
Whether the recording should be played in whole or in part for the jury is discretionary with
the trial court. See Suggs v. State, 317 Ark. 541, 879 S.W.2d 428 (1994). The general rule is that
a recording such as this is admissible unless the inaudible portions are so substantial as to render the
recording as a whole untrustworthy. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990). In Loy
v. State, 310 Ark. 33, 832 S.W.2d 499 (1992), we upheld the introduction of a tape recording where
the trial court had denied the admission of a transcript because the tape was inaudible in a number
of places. The circumstances are similar here and it does not appear clear that the trial court abused
its discretion to allow the tape to speak for itself. Appellant did not meet his burden to show that
an objection would have had merit.
The trial court was not clearly erroneous in finding that trial counsel was not ineffective.
Accordingly we affirm the denial of postconviction relief.