Helton v. State

Robert Neal HELTON Jr. v. STATE of Arkansas

CR 96-106                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 24, 1996


1.   Appeal & error -- postconviction relief -- review of trial
     court's denial. -- The supreme court will reverse a trial
     court's denial of postconviction relief only if its findings
     are clearly erroneous or clearly against the preponderance of
     the evidence.

2.   Attorney & client -- claim of ineffective assistance of
     counsel -- what petitioner must show -- presumption of
     reasonable conduct. -- In order to succeed on a claim of
     ineffective assistance of counsel, a petitioner must show that
     counsel's conduct was outside the range of reasonably
     professional assistance and sufficiently deficient to have
     denied petitioner a fair trial; there is a strong presumption
     that trial counsel's conduct falls within the wide range of
     reasonable professional assistance, and a petitioner has the
     burden of overcoming this presumption by identifying specific
     acts or omissions of trial counsel that, when viewed from
     counsel's perspective at the time of the trial, could not have
     been the result of reasonable professional judgment.

3.   Appeal & error -- trial tactics and strategy not grounds for
     postconviction relief. -- Matters of trial tactics and
     strategy are not grounds for postconviction relief.

4.   Attorney & client -- claim of ineffective assistance of
     counsel -- two-prong test. -- A convicted defendant's claim
     that counsel's assistance was so defective as to require
     reversal of a conviction has two components: first, the
     defendant must show that counsel's performance was deficient,
     which 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, which requires showing that counsel's errors were so
     serious as to deprive the defendant of a fair trial, a trial
     whose result is reliable.

5.   Attorney & client -- claim of ineffective assistance of
     counsel -- totality of evidence must be considered. -- Because
     there is a strong presumption that a duly licensed attorney is
     competent, a court deciding an ineffectiveness claim must
     consider the totality of the evidence that was before the jury
     and judge the reasonableness of the challenged conduct on the
     facts of the particular case at the time of counsel's actions.

6.   Attorney & client -- claim of ineffective assistance of
     counsel -- petitioner must show that outcome of case would
     have been different. -- Under the two-prong standard, even
     professionally unreasonable errors by counsel do not warrant
     reversal of a conviction if the errors were not prejudicial to
     the defendant and had no effect on the judgment; a petitioner
     must show that but for counsel's errors at trial, the outcome
     of the case would have been different.

7.   Attorney & client -- trial counsel's decision not to present
     serologist's testimony was within relam of professional
     judgment. -- Trial counsel's decision not to present the
     testimony of a serologist concerning the presence of the "B"
     blood-group substance in the victim's underpants was a
     tactical one within the realm of counsel's professional
     judgment; an attorney's decision not to call a particular
     witness is largely a matter of professional judgment, and 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.

8.   Appeal & error -- postconviction relief -- Rule 37 is not
     forum for debating trial tactics or strategy. -- Arkansas Rule
     of Criminal Procedure 37 does not provide a forum to debate
     trial tactics or strategy, even if that strategy proves
     improvident.

9.   Attorney & client -- trial counsel's decision not to call
     alibi witness was trial strategy and not grounds for relief. -
     - Where, when questioned about his decision not to call the
     brother of appellant's fiancé as an alibi witness, trial
     counsel stated that his decision was based on the other three
     members of the brother's family having testified so badly that
     he felt it best not to submit an additional bad witness who
     would testify to essentially the same things that the other
     three had described, the supreme court could not say that the
     decision not to call the alibi witness was anything other than
     trial strategy; thus, counsel's decision was not grounds for
     granting postconviction relief.

10.  Witnesses -- omission of witness whose testimony is cumulative
     does not deprive defense of vital evidence. -- Where an alibi
     witness's testimony would have been cumulative, counsel's
     decision not to call the witness was neither erroneous nor
     prejudicial to the defense; the omission of a witness when his
     or her testimony is cumulative does not deprive the defense of
     vital evidence.

11.  Attorney & client -- trial counsel's failure to call friend of
     appellant was not ineffective assistance. -- Where appellant's
     counsel had strategically developed an alibi defense and had
     presented witnesses in support of that strategy, and where the
     testimony of appellant's friend would have been in direct
     conflict with the strategy, the supreme court could not say
     that counsel's omission of the testimony of appellant's friend
     was prejudicial to appellant's case, even though it may have
     tended somewhat to discredit the victim's testimony; further,
     because counsel testified that he had never been informed of
     the information before trial, the supreme court was not
     prepared to say that counsel omitted the testimony at all;
     because the conflicting testimony was potentially damaging to
     the defense, the supreme court held that, even had counsel
     been aware of the testimony, counsel's failure to call
     appellant's friend as a defense witness did not amount to
     ineffective assistance of counsel.

12.  Attorney & client -- omitted testimony not prejudicial to
     appellant's case. -- Where trial counsel denied the vitality
     of the omitted testimony from the serologist and the brother
     of appellant's fiancé, denied knowledge of the testimony of
     appellant's friend, and gave full, reasonable explanations
     concerning his reasons for not presenting the testimony to the
     jury, the supreme court was satisfied that the omitted
     testimony was not in fact prejudicial to appellant's case.

13.  Criminal procedure -- postconviction relief -- failure to seek
     particular scientific test does not amount to denial of
     counsel. -- There are numerous scientific tests that could be
     conducted on physical evidence in a criminal trial, and
     failure of counsel to seek a particular test will not amount
     to a denial of the counsel guaranteed by the Sixth Amendment
     unless it can be concluded that the test was one that any
     competent attorney under the same circumstances would have
     sought.

14.  Attorney & client -- trial counsel was not ineffective in
     failing to seek independent DNA testing. -- Where trial
     counsel's explanation of his decision not to seek DNA testing
     was reasonable, and where appellant offered neither proof that
     any competent attorney in counsel's situation would have
     sought such a test nor proof that, but for counsel's failure
     to request a DNA test, there was a reasonable probability that
     the outcome of appellant's trial would have been different,
     the supreme court was not convinced that the results of any
     scientific testing would have altered the outcome of
     appellant's trial, especially since a victim's testimony alone
     provides substantial evidence to support a conviction of rape;
     further, because the supreme court did not know what the
     outcome of the tests would have been, it could not gauge
     whether DNA testing would have caused the jury to have a
     reasonable doubt of appellant's guilt; thus, the supreme court
     could not hold that the trial court was clearly erroneous in
     finding that trial counsel was not ineffective in failing to
     seek independent DNA testing.

15.  Attorney & client -- claim of ineffective assistance of
     counsel -- appellant could not prove that any mitigating
     evidence existed. -- Where appellant failed to identify with
     any specificity what mitigating evidence counsel omitted
     during sentencing, providing instead only bare allegations,
     and where appellant could not even prove that any mitigating
     evidence existed, the supreme court held that trial counsel's
     conduct did not deprive petitioner of effective assistance of
     counsel.


     Appeal from Saline Circuit Court, Seventh Judicial District;
John W. Cole, Judge; affirmed.
     Etoch Law Firm, by: Louis A. Etoch, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen. and Senior Appellate Advocate, for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 6-24-96   *ADVREP*SC7*




ROBERT NEAL HELTON JR.,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



CR 96-106



APPEAL FROM THE SALINE COUNTY
CIRCUIT COURT, SEVENTH JUDICIAL
DISTRICT,
NO. CR 94-196-1,
HON. JOHN W. COLE, JUDGE,



AFFIRMED.





     Appellant, Robert Neal Helton Jr., was found guilty by a jury
of rape in 1994 and sentenced to life in the Arkansas Department of
Correction.  This court affirmed.  Helton v. State, 320 Ark. 352,
896 S.W.2d 887 (1995).  Helton now appeals the ruling of the Saline
County Circuit Court denying him postconviction relief under Rule
37.1 of the Arkansas Rules of Criminal Procedure.  Jurisdiction is
properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(5).  In
support of his claims on appeal, appellant argues that he was
denied effective assistance of trial counsel during the guilt phase
as well as the sentencing phase of the trial.  We find no error in
the denial of postconviction relief, and therefore we affirm.
     We see no need to repeat the facts of this case as they are
fully stated in our prior decision.  Helton, 320 Ark. 352, 896 S.W.2d 887 (1995).  Suffice it to say that appellant was convicted
of rape and sentenced by the jury to life imprisonment.  During
appellant's trial, the state called five witnesses, including the
victim, the couple with whom the victim resided, the victim's
boyfriend, and the police detective assigned to the case.  The
state introduced no physical or documentary evidence, nor any
medical evidence during the guilt phase of the trial.  Appellant
did not take the stand in his own behalf; however, three alibi
witnesses, appellant's fiancé and her parents, testified in his
defense.  Appellant presented no physical or medical evidence
during either phase of the trial.  Following appellant's
conviction, direct appeal was taken, and this court affirmed the
judgment of conviction.
     Appellant argues on appeal that his trial counsel was
ineffective during both the guilt phase and the sentencing phase of
the trial.  Specifically, appellant asserts that trial counsel was
ineffective during the guilt phase in failing to call three
additional witnesses for the defense and in failing to secure
independent DNA testing.  Appellant claims that trial counsel was
ineffective during the sentencing phase for not calling any
witnesses nor presenting any argument in mitigation.  We conclude
there is no merit to either of appellant's claims. 
                     I.  Standard of Review
     This court will reverse a trial court's denial of
postconviction relief only if its findings are clearly erroneous or
clearly against the preponderance of the evidence.  Vickers v.
State, 320 Ark. 437, 898 S.W.2d 26 (1995).  In order to succeed on
a claim of ineffective assistance of counsel, a petitioner must
show that counsel's conduct was outside the range of reasonably
professional assistance and sufficiently deficient to have denied
petitioner a fair trial.  Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985).  There is a strong presumption that trial counsel's
conduct falls within the wide range of reasonable professional
assistance, and a petitioner has the burden of overcoming this
presumption by identifying specific acts or omissions of trial
counsel which, when viewed from counsel's perspective at the time
of the trial, could not have been the result of reasonable
professional judgment.  See, e.g., Wainwright v. State, 307 Ark.
569, 823 S.W.2d 449 (1992); Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).  Furthermore, matters of trial tactics and
strategy are not grounds for postconviction relief.  Vickers, 320
Ark. 437, 898 S.W.2d 26; Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).
     This court has expressly adopted the criteria for establishing
a claim of ineffective assistance of counsel set forth by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).  See Crockett v. State, 282 Ark. 582, 669 S.W.2d 896
(1984).  In Strickland, the Supreme Court held:
          A convicted defendant's claim that counsel's
     assistance was so defective as to require reversal of a
     conviction . . . 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.
Strickland, 466 U.S.  at 687.
     Because there is a strong presumption that a duly licensed
attorney is competent, a court deciding an ineffectiveness claim
must consider the totality of the evidence that was before the jury
and judge the reasonableness of the challenged conduct on the facts
of the particular case at the time of counsel's actions.  Dumond,
294 Ark. 379, 743 S.W.2d 779.  But, under the Strickland standard,
even professionally unreasonable errors by counsel do not warrant
reversal of a conviction if the errors were not prejudicial to the
defendant and had no effect on the judgment.  Noble v. State, 319
Ark. 407, 892 S.W.2d 477 (1995).  In other words, a petitioner must
show that but for counsel's errors at trial, the outcome of the
case would have been different.  Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994); Pruett v. State, 287 Ark. 124, 697 S.W.2d 872
(1985).  In reviewing appellant's claims, we must first determine
whether any of counsel's alleged errors fall outside the range of
professionally reasonable assistance, and if so, whether there is
a reasonable probability that the outcome of appellant's case would
have been different.  We address each of the allegations
separately.
              II.  Omission of Additional Witnesses
     Appellant first argues that he was denied effective assistance
of counsel because his attorney failed to call three additional
witnesses on his behalf:  (1) Edward Vollman, Chief Serologist at
the Arkansas State Crime Laboratory; (2) Michael Melson, an
additional alibi witness; and (3) Tommy Bittle, a friend of
appellant.  With respect to Mr. Vollman, appellant argues that
trial counsel should have called him to testify about the medical
evidence submitted by the state upon which he conducted tests. 
Appellant asserts that this testimony could have changed the
outcome of the trial as it would have cleared him of the charge of
rape.  
     Pursuant to court order, blood and hair samples from appellant
were submitted to the state crime laboratory for comparison with
the semen found on vaginal swabs included in a rape kit performed
on the victim and semen found in the victim's underpants.  During
the hearing conducted on the Rule 37 petition, Mr. Vollman
testified that both appellant and the victim had the same blood
type ("O"); that both were secretors (persons who secret their ABO
blood grouping into all their body fluids); and that both possessed
the PGM Type-1 enzyme.  Mr. Vollman stated that the results of the
testing of the vaginal swabs revealed the presence of the "H" blood
group substance and the PGM Type-1 enzyme.  According to
Mr. Vollman, the "H" substance could have been deposited by any
person who is a secretor (about eighty percent of the population),
no matter what the person's ABO blood type.  Mr. Vollman further
stated that the "H" substance and the PGM Type-1 enzyme found on
the vaginal swabs could have come from either the victim or
appellant.  
     As for the semen discovered in the victim's underpants,
Mr. Vollman stated that he found the presence of the "H" substance,
as well as the presence of the "B" blood group substance.  Again,
Mr. Vollman stated that the "H" substance could have been deposited
in the underpants by either appellant or the victim.  In contrast,
however, Mr. Vollman stated that because the "B" substance could
only have been deposited by a person having blood type "B," someone
other than appellant or the victim must have deposited the "B"
substance found in the underpants.  Appellant thus asserts that
Mr. Vollman's testimony demonstrates that none of the serology
tests could connect him to the victim in any way, and that trial
counsel was ineffective for failing to put this witness on the
stand.  
     Appellant's argument is flawed because he assumes that the
serologist's testimony would have completely eliminated him as the
perpetrator.  Mr. Vollman testified that the semen found on the
vaginal swabs taken from the victim could have been deposited by
either the victim or appellant, and that the tests he performed did
not exclude appellant as the perpetrator.  As for the semen found
in the victim's underpants, Mr. Vollman stated that the "H"
substance could have been deposited by appellant, but that the "B"
substance could not have come from him.  The fact that a blood
group substance different from appellant's was detected in the
semen found in the victim's underpants did not rule out that
appellant committed the crime, as the victim testified that she had
had sexual intercourse with her boyfriend during the same time
frame.  The jury could have found that the medical evidence was
thus consistent with appellant's guilt.  It is certainly possible
that the victim's boyfriend was responsible for the presence of the
"B" substance found in the victim's underpants.  It would appear
then, that had Mr. Vollman been called as a defense witness, his
testimony would not have been entirely favorable to appellant's
case. 
     During the Rule 37 hearing, appellant's trial counsel, Joe
Kelly Hardin, explained his reasons for not calling Mr. Vollman as
a witness.  Mr. Hardin stated that he felt that the medical testing
done by the state crime laboratory was inconclusive and that it
could have hurt the defense as much as it could have helped. 
Mr. Hardin stated that he had heard the prosecution argue those
types of results, whether positive or negative, "a thousand times." 
Mr. Hardin stated he felt the tests were inconclusive and that the
victim's testimony that she had sex with her boyfriend on the night
of the rape may have explained those findings.  Mr. Hardin stated
that he felt that appellant's best chance of being acquitted was to
present an alibi defense and then argue that the state had not met
its burden of proof since it was only the victim's word against
appellant's.  
     The state did not attempt to bolster its case by presenting
Mr. Vollman's testimony or any other medical evidence.  In this
way, Mr. Hardin's defense strategy seems logical, as he could and
did argue to the jury that the victim's testimony was not
corroborated by any medical evidence linking appellant to the
crime.  In light of the fact that the medical evidence could have
harmed the defense just as easily as it could have helped, we
cannot say that the decision not to call Mr. Vollman as a witness
for the defense amounted to ineffective assistance of counsel.  
     Trial counsel's decision not to present Mr. Vollman's
testimony was a tactical one within the realm of counsel's
professional judgment.  This court has previously held that an
attorney's decision not to call a particular witness is largely a
matter of professional judgment, and 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. 
Dumond, 294 Ark. 379, 743 S.W.2d 779 (1988); Tackett v. State, 284 
Ark. 211, 680 S.W.2d 696 (1984).  Moreover, Rule 37 does not
provide a forum to debate trial tactics or strategy, even if that
strategy proves improvident.  Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984).
     The second witness appellant argues should have been called to
testify was Michael Melson.  Michael Melson is the brother of
petitioner's fiancé, Deborah Melson.  Appellant argues that
Mr. Melson would have been the best witness for his alibi defense,
and that trial counsel was ineffective for not calling him to
testify.  During the Rule 37 hearing, Mr. Melson testified that on
the night of the rape, appellant spent the night at Melson's house;
that they worked on appellant's truck until about 11:00 p.m.; that
they went inside the house around 11:00 p.m. and each took a shower
and went to sleep; that he was awake until 1:00 or 1:30 a.m.; and
that when he got up the next morning, appellant was still on the
couch.  Appellant asserts that Mr. Melson's testimony would have
been better received by the jury than the testimony of Deborah
Melson, because of her relationship to appellant, and the testimony
of her parents, because their testimony was confusing to the jury.
     Had Mr. Melson testified at trial as he did at the Rule 37
hearing, his testimony would have been inconsistent with that of
his sister, Deborah Melson, as Deborah Melson testified that
appellant had been asleep with her in her bedroom that night, not
asleep on the couch as Michael Melson would have claimed.  When
questioned about the decision not to put Michael Melson on the
witness stand, Mr. Hardin stated that his decision was based on the
fact that the other three members of the Melson family had
testified so badly that he felt it was best not to submit an
additional bad witness, especially one who would testify to
essentially the same things the other three had described.  We
cannot say that the decision not to call Mr. Melson was anything
other than trial strategy, and thus counsel's decision is not
grounds for granting postconviction relief.  
     During the hearing below, both Mr. Hardin and Mr. Melson
indicated that Melson would testify essentially the same as
appellant's other three witnesses.  We are, therefore, satisfied
that Mr. Melson's testimony would have been cumulative, and as
such, counsel's decision not to call this witness was neither
erroneous nor prejudicial to the defense.  The omission of a
witness when his or her testimony is cumulative does not deprive
the defense of vital evidence.  Dumond, 294 Ark. 379, 743 S.W.2d 779.  
     Appellant's reliance on Farmer v. State, 321 Ark. 283, 902 S.W.2d 209 (1995) is misplaced.  In Farmer, this court held that
trial counsel was ineffective because he failed to subpoena the
only witness who could corroborate the defendant's version of the
events, and because counsel did not request a continuance when the
witness did not appear at trial.  Because Mr. Melson was not the
only witness who could corroborate appellant's alibi, this case is
distinguishable from Farmer.  In the present case, three alibi
witnesses were presented to the jury.
     The third witness appellant asserts should have been called in
his defense is Tommy Bittle.  Tommy Bittle testified at the hearing
below to a prior inconsistent statement made to him by the victim. 
Specifically, Mr. Bittle stated that he had spoken to the victim
and that she had told him that appellant had made advances toward
her and that when she declined the last advance, appellant grabbed
her by the throat until she screamed, and that appellant then let
her go.  Mr. Bittle stated that during their conversation, he had
stated to the victim, "So, nothing really happened," and that the
victim had responded by saying that, "What he did was he scared me
real bad."  Mr. Bittle stated that the victim had told him that she
had been raped before.  Appellant argues that this testimony by
Mr. Bittle would have demonstrated that the victim was lying about
the act of rape.  Mr. Bittle stated that he had told appellant
about this conversation with the victim, and that he had also told
appellant's mother and another individual.  On cross-examination,
however, Mr. Bittle admitted that he had not reported this
conversation to the police.  
     Mr. Hardin testified that the first time he had ever heard
about Tommy Bittle's conversation with the victim was at the Rule
37 hearing.  Mr. Hardin stated that to the best of his
recollection, appellant had never told him about Tommy Bittle's
conversation with the victim, and that if appellant had told him
about this evidence, he would have remembered it.  In contrast,
during his testimony at the Rule 37 hearing, appellant claimed that
he had told Mr. Hardin about Tommy Bittle's conversation with the
victim prior to the trial.
     Appellant asserts that had counsel properly investigated the
case, he would have discovered the existence of Mr. Bittle's prior
conversation with the victim.  As it appears to be appellant's word
against Mr. Hardin's concerning counsel's knowledge of the witness,
we are unable to determine whether counsel's omission fell outside
the range of professionally reasonable assistance.  However, even
if we assume that it was error for counsel not to have discovered
Mr. Bittle's testimony, we cannot say that such an error prejudiced
appellant's defense.  Appellant's counsel had strategically
developed an alibi defense and had presented witnesses in support
of that strategy.  Mr. Bittle's testimony would have been in direct
conflict with this strategy.  On the one hand, appellant would have
been claiming through his alibi witnesses that he was never with
the victim that night, while on the other hand, through
Mr. Bittle's testimony, it would have appeared that appellant was
admitting that he was with the victim that night, that he made
advances toward her, that he became violent when she rejected his
advances, but that she was lying about the occurrence of sexual
intercourse.  We cannot say that counsel's omission was prejudicial
to appellant's case, even though it may have tended to somewhat
discredit the victim's testimony.  Further, we are not prepared to
go so far as to say that counsel omitted this testimony at all,
since counsel testified that he had never been informed of the
information before trial.  Because this conflicting testimony was
potentially damaging to the defense, we hold that the failure of
counsel to call Tommy Bittle as a defense witness, even if counsel
had been aware of his testimony, did not amount to ineffective
assistance of counsel.
     In his brief, appellant relies on this court's decision in
Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995), for the
proposition that counsel's omission of these additional witnesses
is grounds for granting him relief.  In Wicoff, this court granted
postconviction relief on the bases that counsel failed to present
additional witnesses to the jury, witnesses which counsel admitted
would have provided vital information to the jury and would have
tended to raise doubt in the minds of the jurors.  This court held
that the omitted testimony was prejudicial to Wicoff's defense, and
necessarily deprived him of a fair trial.  In contrast, trial
counsel in the present case has denied the vitality of the omitted
testimony from Mr. Vollman and Mr. Melson, has denied knowledge of
the testimony of Mr. Bittle, and has given full explanations as to
his reasons for not presenting their testimony to the jury.  Given
counsel's reasonable explanations, we are satisfied that the
omitted testimony was not in fact prejudicial to appellant's case. 
Appellant also relies on Russell v. State, 302 Ark. 274, 789 S.W.2d 720 (1990).  In Russell, this court held that because counsel
failed to call the two witnesses who could cast doubt on the
defendant's guilt, witnesses of whom counsel admitted he was aware,
counsel's trial performance fell below an objective standard of
competence, and that the defendant was prejudiced as a result. 
Again, for the reasons outlined above, Russell is distinguishable
from the present case.  
            III.  Omission of Independent DNA Testing
      As part of his first point on appeal, appellant argues that
trial counsel was ineffective in failing to secure DNA testing on
the semen samples collected from the victim and appellant. 
Appellant argues that had counsel sought DNA analysis he would have
been completely cleared as the perpetrator.  
     Appellant submits that at the time of his trial, DNA analysis
was widely accepted as a means of scientific testing.  The state
does not dispute this.  At the Rule 37 hearing, Mr. Vollman
testified that DNA testing was both widely accepted and available
to defendants.  Mr. Vollman indicated that if appellant had not had
sexual intercourse with the victim, the results of a DNA test would
likely have excluded him as the perpetrator.  On the other hand,
Mr. Vollman stated, if appellant had engaged in sexual intercourse
with the victim, a DNA test could likely identify him as the
perpetrator.  
     In defense of his decision not to seek independent DNA
testing, Mr. Hardin stated that, although he was aware of the
availability and acceptance of DNA testing, he did not seek a DNA
test because he was concerned that once he had requested the test,
he would have been obligated to provide the results to the state,
and if the results had "nailed" appellant as the perpetrator, there
would have been no possibility of getting him acquitted.  As it
was, the evidence against appellant consisted of the testimony of
the victim and those persons she told about the rape.  Mr. Hardin
stated that he felt appellant had a better chance at acquittal with
the alibi witnesses he had prepared, especially if they would have
been better witnesses, and with his argument attacking the state's
case for lack of evidence.    
     We are convinced that the decision not to seek independent DNA
testing was a decision clearly within the realm of counsel's
professional judgment and trial strategy.  In Dumond, this court
observed:
     There are numerous scientific tests which could be
     conducted on physical evidence in a criminal trial and
     failure of counsel to seek a particular test will not
     amount to a denial of the counsel guaranteed by the sixth
     amendment unless it can be concluded that the test was
     one which any competent attorney under the same
     circumstances would have sought.
294 Ark. 379, 386, 743 S.W.2d 779, 782-83 (emphasis added).
     We cannot say that any competent attorney defending a client
on a charge of rape would necessarily have sought independent DNA
testing in an attempt to bolster the client's defense.  This is
especially true in a situation where the evidence against a
defendant consists solely of the victim's testimony.  The decision
whether or not to seek such a test is a big gamble in that the
evidence is likely to be conclusive one way or the other--either
eliminating the defendant as the perpetrator or implicating him as
such.  Mr. Hardin's explanation of his decision not to seek DNA
testing is reasonable, especially in light of the fact that had the
test been completed and the results were unfavorable to appellant,
the state would have been able to use that evidence against
appellant in its case-in-chief.  
     Appellant offers no proof that any competent attorney in
Mr. Hardin's situation would have sought such a test, let alone any
proof that but for counsel's failure to request a DNA test, there
is a reasonable probability that the outcome of his trial would
have been different.  This court is unwilling to view counsel's
conduct in hindsight, and we are not convinced that the results of
any scientific testing would have altered the outcome of
appellant's trial.  This is especially true in light of this
court's previous determination that a victim's testimony alone
provides substantial evidence to support a conviction of rape.  See
Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992).  Furthermore,
since we do not know what the outcome of the tests would have been,
we cannot gauge whether DNA testing would have caused the jury to
have a reasonable doubt of appellant's guilt.  Thus, we cannot hold
that the trial court was clearly erroneous in finding that trial
counsel was not ineffective in failing to seek independent DNA
testing.
                  IV.  Mitigation in Sentencing
     For his final point appellant argues that counsel was
ineffective during the sentencing phase of the trial because he did
not present any mitigating evidence or argument in an attempt to
persuade the jury to be lenient in sentencing appellant.  Appellant 
has failed to identify with any specificity what mitigating
evidence counsel omitted during sentencing, and instead provides us
with only bare allegations.  This is his burden under the standard
provided in Strickland.  Since appellant cannot even prove that any
mitigating evidence existed, we hold that trial counsel's conduct
did not deprive petitioner of effective assistance of counsel.  See
Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).  It is for
this reason, as well as those stated above, that we affirm the
trial court's ruling denying appellant postconviction relief.     
     Affirmed.
     NEWBERN and BROWN, JJ., dissent.
     DUDLEY, J., not participating.Associate Justice Robert L. Brown
June 24, 1996   *ADVREP*SC7-A*






ROBERT NEAL HELTON, JR.,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 96-106




APPEAL FROM THE SALINE COUNTY
CIRCUIT COURT, SEVENTH JUDICIAL
DISTRICT,
NO. CR 94-196-1,
HON. JOHN W. COLE, JUDGE,




DISSENTING OPINION.






     I would grant a new trial solely on the basis that trial
counsel failed to call the crime lab serologist, Edward Vollman. 
Vollman testified at the Rule 37 hearing that his tests confirmed
that the victim and Helton had the same blood type which was "O." 
Seminal stains found on the victim's underpants, however, confirmed
a "B" blood type, which was not Helton's blood group.  That was a
crucial piece of medical evidence.  In my judgment, that evidence
could have changed the outcome of the trial by creating a
reasonable doubt of culpability.  It certainly denied Helton a fair
trial.
     It is true that Helton is a "secretor," and evidence of a
secretor's semen was found.  But 80 percent of the population are
secretors and the inescapable fact is Helton's blood type was not
found.  A third party was involved.  This is how the serologist put
it:
          DEFENSE COUNSEL: And Robert Helton, could he have
     left that fluid or item in her underpants with the B
     group?
          VOLLMAN: No.
          DEFENSE COUNSEL: Could not have have (sic) occurred?
          VOLLMAN: No.
          DEFENSE COUNSEL: So really then Robert Helton is
     excluded from depositing the bodily fluid or substance
     that was found in Rebecca Shyrock's undepants (sic) the
     very next day in the rape kit that you tested?
          VOLLMAN: He is excluded from the "B" substance. 
     There's also the "H" substance that was present, which he
     is not excluded from.
          DEFENSE COUNSEL: Let me ask about the "B" and the
     "H" substance.  Could the same person that deposited the
     "B" substance, that person being someone other than
     Robert Helton, could that person also have deposited the
     "H" substance?
          VOLLMAN: Yes, because a person can deposit the "H"
     substance no matter what their ABO type is if they are a
     secretor.
          DEFENSE COUNSEL: So the "B" and the "H" could have
     been deposited by the same person and that person would
     not have been Robert Helton, correct?
          VOLLMAN: That's a possibility.
          DEFENSE COUNSEL: The "H" substance could have been
     deposited by Rebecca Shyrock because she was a type "O",
     is that correct?
          VOLLMAN: Yes.
          DEFENSE COUNSEL: But there's no way that "B"
     substance could have been deposited either by Robert
     Helton or Rebecca Shyrock?
          VOLLMAN: That's correct.
          DEFENSE COUNSEL: It came from some third person?
          VOLLMAN: Yes.
     Trial counsel urged at the Rule 37 hearing that he did not
call the serologist as a witness because he wanted to argue that
the State produced no corroborative medical evidence.  That
argument might have some appeal but for the fact that the
serologist had exculpatory evidence that would have aided the
defense.  The State, of course, did not call Vollman for obvious
reasons.
     In Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995), we
granted a new trial due to counsel's failure to call the
defendant's grandmother who would have testified that the eleven-
year-old victim told her she fabricated the rape story.  The
exculpatory evidence in this case, as it relates to blood type, is
even more persuasive and less subject to challenge than a
grandmother's testimony.
     In 1992, the Missouri Supreme Court reversed a rape conviction
due to trial counsel's failure to obtain requested blood tests and
granted a new trial.  Moore v. Missouri, 827 S.W.2d 213 (Mo. 1992)
(en banc).  Those tests would have shown that the source of the
semen found on bed sheets could not have been the defendant.  The
Supreme Court held that counsel's failure to obtain the results
fell below reasonable and customary standards and that there was at
least a reasonable probability that the trial results would have
been different.  The Helton case is certainly analogous to these
facts.
     The jury should have been privy to this important piece of
medical evidence in reaching its verdict.  I respectfully dissent.
     Newbern, J., joins.