Catlett v. State

Michael CATLETT v. STATE of Arkansas

CR 96-787                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 29, 1998


1.   Attorney & client -- ineffective-assistance claim -- factors
     required to prevail. -- To prevail on a claim of ineffective
     assistance of counsel, the petitioner must, pursuant to
     Strickland v. Washington, 466 U.S. 668 (1984), show first 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 petitioner by the
     Sixth Amendment; secondly, the petitioner must show that the
     deficient performance prejudiced the defense, which requires
     showing that counsel's errors were so serious as to deprive
     the petitioner of a fair trial; unless a petitioner makes both
     showings, it cannot be said that the conviction resulted from
     a breakdown in the adversarial process that renders the result
     unreliable.

2.   Attorney & client -- ineffective-assistance claim -- factors
     on review. -- A court must indulge in a strong presumption
     that counsel's conduct falls within the wide range of
     reasonable professional assistance; the petitioner must show
     there is a reasonable probability that, but for counsel's
     errors, the factfinder would have had a reasonable doubt
     respecting guilt, i.e., the decision reached would have been
     different absent the errors; a reasonable probability is a
     probability sufficient to undermine confidence in the outcome
     of the trial; in making a determination on a claim of
     ineffectiveness, the totality of the evidence before the judge
     or jury must be considered; the supreme court will not reverse
     a trial court's ruling on an ineffective assistance of counsel
     claim unless it was clearly erroneous. 

3.   Attorney & client -- ineffective-assistance claim -- failure
     to have client examined by expert at time closer to date of
     murder -- no error in denial of relief. -- The supreme court
     could not say that the trial court was clearly erroneous for
     denying relief on appellant's claim that his counsel was
     ineffective for failing to have his client examined by defense
     expert at a time closer in proximity to the date of the murder
     where appellant failed to show that an examination closer in
     time to the date of the murder would have caused the
     psychiatrist to testify with any more certainty; accordingly,
     appellant did not show prejudice under Strickland standard.  

4.   Witnesses -- decision whether to call witness is matter of
     trial strategy -- not within purview of Ark. R. Crim. P. 37. -
     - The decision of whether or not to call a witness is a matter
     of trial strategy that is outside the purview of Ark. R. Crim.
     P. 37.

5.   Attorney & client -- no reasonable probability that additional
     lay testimony would have resulted in different verdict --
     trial court's conclusion not clearly erroneous. -- Appellant's
     argument that his counsel was ineffective for failing to
     introduce the testimony of several lay witnesses whose
     observations would more than likely have established that he
     had diminished capacity at the time of the murder was without
     merit; the trial court's finding that both the expert and lay
     testimony presented at trial was adequate to establish that
     the appellant was behaving abnormally prior to the murder, and
     its conclusion that there was not a reasonable probability
     that additional lay testimony would have resulted in a
     different verdict, was not clearly erroneous.

6.   Attorney & client -- failure to interview potential witnesses
     and introduce testimony not error -- no reasonable probability
     that testimony would have changed trial's outcome. -- Defense
     counsel did not perform deficiently by failing to interview
     several potential witnesses and introduce their testimony
     during the trial where the testimony was cumulative of the
     testimony of the defense experts and the other lay witnesses;
     there was not a reasonable probability that their testimony
     would have changed the outcome of the trial.

7.   Attorney & client -- counsel not ineffective for failing to
     call witness whose testimony could have undermined insanity
     defense. -- Appellant's argument that his counsel was
     ineffective for failing to call his friend and local landlord
     to testify during the trial was without merit; the trial court
     found that the testimony would likely have been far more
     damaging than helpful, and that the failure to call the
     witness at trial could not be said to be professionally
     unreasonable; the trial court's ruling was not clearly
     erroneous; appellant failed to show that there was a
     reasonable probability that the outcome of his trial would
     have been different.

8.   Attorney & client -- peremptory challenge against pastor was
     matter of trial strategy -- no error found. -- Appellant's
     argument that defense counsel was ineffective for exercising
     a peremptory challenge against a juror who stated that he had
     experience with the mentally ill was without merit where
     defense counsel testified that he exercised a peremptory
     challenge against the juror because in addition to having
     experience with the mentally ill, the juror was also a pastor,
     and he generally did not put pastors on criminal juries as a
     matter of trial strategy; the trial court concluded that
     appellant's claim presumed that the juror would have been
     sympathetic to his case, and that he failed to show that the
     jury that was selected was biased; therefore, the appellant
     did not prove he was prejudiced by the exclusion of the juror.
     
9.   Evidence -- weighing of probative value against potential for
     prejudice -- trial court's discretion. -- The trial court has
     wide discretion when ruling about whether the probative value
     of testimony is outweighed by potential for prejudice.

10.  Attorney & client -- conviction would not have been affected
     by evidentiary question. -- Appellant's contention that the
     appellate court would have reversed his conviction had counsel
     not failed to preserve for appeal an argument that assigned
     error to the trial court's decision to allow a witness to
     testify about accompanying the appellant to a travel agency,
     and therefore, he was prejudiced by his attorney's failure to
     preserve the argument for appeal, and that a proper objection
     would have prompted the trial court to exclude the testimony,
     was without merit; the State introduced other testimony that
     indicated that the murder was premeditated and deliberated,
     and consequently, it was unlikely that the exclusion of the
     testimony objected to by appellant would have had changed the
     outcome of the trial; therefore, the supreme court would not
     have reversed on this issue.

11.  Attorney & client -- instructions contained proper statement
     of law. -- Appellant's contention that he was prejudiced by
     his attorney's failure to lodge an objection or proffer
     alternate jury instructions was without merit where each of
     the AMCI instructions of which appellant complained was a
     proper statement of the law, and for that reason, neither an
     objection during the trial or the argument on appeal would
     have prevailed; furthermore, appellant did not offer a
     definition of "mental disease or defect," nor did he offered
     alternative instructions regarding opinion testimony.  
12.  Attorney & client -- plea agreement -- counsel's duty to
     advise client of negotiated-plea offer. -- A plea agreement is
     an agreement between the accused and the prosecutor, not an
     agreement between counsel and the prosecutor; as such, counsel
     has the duty to advise his client of an offer of a negotiated
     plea.  

13.  Attorney & client -- no firm negotiated-plea offer made --
     trial court properly found counsel not ineffective. -- The
     trial court properly found that counsel was not ineffective in
     failing to advise appellant an offer of a negotiated plea
     because no firm offer was ever extended, and consequently,
     there was no offer to communicate. 

14.  Attorney & client -- counsel not ineffective for failure to
     object to introduction of graffiti evidence -- sufficiently
     linked to appellant. -- Counsel was not ineffective for
     failing to object to the introduction of evidence concerning
     graffiti because the graffiti was sufficiently linked to the
     appellant; in each instance, the graffiti either specifically
     mentioned the victim or was drawn in a place where she was
     almost guaranteed to see it; additionally, in his statement to
     a detective, appellant admitted that he had painted satanic
     messages to scare the victim. 

15.  Attorney & client -- conflict of interest -- when prejudice
     presumed. -- Prejudice will be presumed from a conflict of
     counsel's interest only when the defendant demonstrates that
     counsel actively represented conflicting interests and that
     actual conflict of interest adversely affected his lawyer's
     performance; a petitioner has the burden of proving a conflict
     of interest and showing its adverse effects; a petitioner is
     not entitled to relief unless he satisfies both prongs of the
     test; the prejudice must be real and have a demonstrable
     detrimental effect and not merely have some abstract or
     theoretical effect.

16.  Attorney & client -- trial court's finding of no conflict of
     interest not clearly erroneous. -- The trial court's finding
     of no conflict of interest was not clearly erroneous; it was
     not logical to assume that the victim's relationship to one of
     defense counsel's high school classmates, whom he had not seen
     for thirty years, would have created a conflict of interest
     that compromised counsel's ability to effectively assist the
     appellant's defense.


     Appeal from Pulaski Circuit Court; John Langston, Judge;
affirmed.
     Craig Lambert, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Per Curiam.
     The appellant, Michael Catlett, was convicted of capital
murder and was sentenced to life without parole.  We affirmed the
conviction and sentence in Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995).  Catlett subsequently sought postconviction relief
pursuant to A.R.Cr.P. Rule 37.  The Trial Court denied relief.  We
affirm.
     Catlett was charged with capital murder for the shooting death
of his former girlfriend, Stephanie Jungkind, on October 1, 1993. 
To support its theory that the murder was premeditated, the State
introduced several witnesses during the trial whose testimony
indicated that Catlett harassed Ms. Jungkind during the summer
prior to the murder, that he made travel arrangements immediately
before the murder, and that he purchased the murder weapon at a
local pawn shop.  Additionally, the State also used these
witnesses, some of whom also testified concerning Catlett's
apparently normal behavior during the summer of 1993, to contradict
Catlett's insanity defense.  
     Page Jungkind Oldnettle, Ms. Jungkind's sister, testified that
Catlett and her sister had a tumultuous relationship.  She stated
that after the couple ended their relationship in June of 1993,
Stephanie came to live with her and that shortly thereafter, they
started to receive several phone calls late at night.  Mrs.
Oldnettle testified that the caller would frequently hang up, but
that sometimes it would be Catlett asking to speak to Stephanie. 
Mrs. Oldnettle also stated that she called the police on June 16,
1993, when Catlett came to the house, banged on the door, and
demanded to see Stephanie.
     Mrs. Oldnettle's neighbor, Lisa Cunningham, also testified
that on several evenings during the summer of 1993, she would see
Catlett's car, a red Honda CRX, driving slowly up and down the
street.  Ms. Cunningham stated that on these occasions, the CRX
would make at least two or three trips.
     Kevin King, the manager of a temporary employment agency in
Little Rock, testified that Stephanie Jungkind began working for
him on July 23, 1993.  He testified that shortly thereafter, his
agency began to receive several phone calls from Catlett.  Mr. King
also testified that he met Catlett when he came to the agency to
apply for employment.  Mr. King stated that Catlett was dressed in
a coat and tie, and that he came prepared with a professional
resume.
     Victoria Santos was a legal secretary with the law firm where
Stephanie Jungkind was placed in August of 1993.  Ms. Santos
testified that Ms. Jungkind trained at the law firm for one week in
the beginning of August, and then returned for an extended period
of employment at the end of the month.  Ms. Santos stated that
after Ms. Jungkind began working at the firm, they started to
receive five to ten hang up phone calls a day.  Ms. Santos also
testified that in the third week of September, 1993, threatening
graffiti was drawn in the parking place that was adjacent to the
spot where Ms. Jungkind usually parked her car.  Ms. Santos stated
the graffiti read "Lucifer wants your soul, Stephanie Jungkind
bitch."  Photographs depicting the graffiti were also introduced
during Ms. Santos's testimony.
     Michelle McElroy, a deputy prosecuting attorney in Pulaski
County, was contacted by the law firm in connection with the
graffiti in the parking lot.  Ms. McElroy testified that she met
with Ms. Jungkind, who told her of the problems she'd been having
with Catlett.  Ms. McElroy recommended that Ms. Jungkind seek a
protective order.  Ms. McElroy, for her own part, sent a warning
letter to Mr. Catlett.  She also testified that she had two
telephone conversations with Catlett in which she discussed the
harassment, the restitution that must be made to the law firm for
the graffiti, and the protective order.  Ms. McElroy stated that
Catlett seemed "professional" during these conversations.
     Tracy Keith, a friend and neighbor of Paige Oldnettle,
testified that on a morning shortly before the murder, she saw
graffiti on two places on the street.  According to Ms. Keith, the
graffiti read, in part, "Lucifer is coming for you," and "death
takes all souls, Stephanie bitch Jungkind."  Steve Keith, Tracy
Keith's husband, testified that, in addition to the graffiti that
was on their street, he saw similar graffiti in Murray Park.
     Other witnesses testified about Catlett's effort to obtain the
murder weapon, a Lorcin .380 automatic pistol, approximately two
weeks before the murder.  Suraj Wagh, one of Catlett's former co-
workers, testified that he saw Catlett on September 23, 1993, at a
local pawn shop.  Mr. Wagh stated that Catlett explained that he
was living downtown and wanted to buy a pistol for protection.  Mr.
Wagh also testified that Catlett appeared tired, but that he seemed
"all right, normal."
     Dave Niggel is the manager of the pawn shop where Mr. Wagh saw
Catlett on September 23, 1993.  Mr. Niggel testified that after a
long discussion about guns, Catlett decided to purchase a Lorcin
.380.  Mr. Niggel also testified that Catlett "didn't act fidgety
or nervous," and that "he just seemed like a man who wanted to buy
a gun."  The sale was not completed, however, because Mr. Niggel
discovered that Catlett lied on the portion of the federal firearms
form that inquired as to whether he had a prior commitment to a
mental institution. 
     Gary Aldrich is the owner of another local pawn shop where
Catlett sought to purchase a gun.  Mr. Aldrich testified that
Catlett "seemed like a nice-looking young man," and that he seemed
appropriately oriented to time and place.  Mr. Aldrich also
testified that Catlett selected a Lorcin .380 automatic handgun,
and that the sale was completed after Catlett completed the federal
firearms form.
     Rita Hawkins testified that she rode with Catlett to a travel
agency approximately two weeks prior to the shooting.  She stated
that Catlett went into the agency for a few minutes and then came
back out with an envelope in his hands.  Ms. Hawkins testified that
she did not see the contents of the envelope.
     Christine Rogers testified that she met Catlett on September
14, 1993, and that they dated for two and a half weeks afterward. 
Ms. Rogers stated that Catlett talked about Ms. Jungkind often, and
that he was angry and resentful towards her.  Ms. Rogers also
testified that she saw the handgun in the glove compartment of
Catlett's car.  On one of their dates, Catlett told Ms. Rogers that
he was manic-depressive and that "someone who is manic-depressive
could kill someone and get off on insanity."  
     Kevin Carpenter, a college friend of Catlett's, testified that
he saw Catlett before the shooting, and that Catlett said that he
was going to kill Ms. Jungkind.  Mr. Carpenter stated that he also
saw Catlett on the day of the shooting, and that he did not talk
that much, and that he "was in a strange state."
     John Dahlstrom testified that on the day of the murder, he and
Ms. Jungkind were sitting at the bar at Pizza D'Action in Little
Rock when Catlett arrived at the restaurant.  It was approximately
six-thirty in the evening.  According to Mr. Dahlstrom, Catlett sat
across from them at the bar and stared at them, and then left. 
Soon afterward, Mr. Dahlstrom walked Ms. Jungkind to her car. 
Catlett was still in the parking lot.  Mr. Dahlstrom testified that
he was the first to leave.
     The testimony of several eyewitnesses indicated that Catlett
followed Ms. Jungkind to the intersection of Rodney Parham and
Mississippi in Little Rock.  According to these witnesses,
Catlett's car was next to Ms. Jungkind's vehicle at the
intersection.  Catlett began firing into Ms. Jungkind's vehicle. 
After the first shot, the pistol jammed.  Catlett apparently
unjammed the pistol and fired again.  The shots struck and killed
Ms. Jungkind.  After firing the shots, Catlett fled the scene at a
high rate of speed and was eventually apprehended by the police.
     Detective Joe Leslie of the Little Rock Police Department
discussed the incident with Catlett.  Detective Leslie testified
that Catlett stated that he shot Ms. Jungkind because he was mad at
her because she had sued him.  Catlett admitted to Detective Leslie
that Ms. Jungkind was justified in her actions because he had
harassed and stalked her.  Catlett also admitted to painting
satanic symbols to scare Ms. Jungkind.  Detective Leslie added that
Catlett was very cool and calm during their conversation, and
consequently, the fact that he was a mental patient "struck me like
a bolt out of the blue." 
     At the trial, the facts surrounding the murder were
undisputed.  Catlett's defense, however, was that his mental
illness rendered him incapable of forming the intent required for
murder and, in addition, asserted the affirmative defense of not
guilty by reason of mental disease or defect.
     The first witness called by the defense was Dr. Irving Kuo,
the supervising psychiatrist for Catlett during several commitments
at the State Hospital.  Dr. Kuo testified concerning Catlett's
history of treatment for mental health problems.   In 1985, Catlett
was hospitalized at Tulane Medical Center for overdosing on
antidepressant medication.  In the Spring of 1991, Catlett was
hospitalized at Bridgeway in North Little Rock because he attempted
suicide by trying to cut his wrists and by taking an overdose of
Tagamet.  The discharge diagnosis at that time was alcohol
dependence and depression.  In the Fall of 1991, Catlett was
treated at Baptist Medical Center for overdosing on over-the-
counter sleeping pills.
     In 1992, Catlett was involuntarily committed to the State
Hospital because he was exhibiting very erratic behavior. 
According to Dr. Kuo, Catlett was grandiose, delusional, and was
also hearing voices.  The discharge diagnosis from the State
Hospital was bipolar disorder, or manic depression, and alcohol
dependence.  Dr. Kuo characterized Catlett as being "a very
disturbed young man" during his stay.
     Catlett was again involuntarily committed to the State
Hospital in June of 1993.  Dr. Kuo stated that Catlett was once
again grandiose and delusional, but that he was also violent and
"concerned about a recent breakup with his girlfriend."  According
to Dr. Kuo, Catlett "eloped," or left the hospital, three times
during this commitment.  Catlett did not return to the hospital
after the third elopement.  Once again, the final diagnosis was
that Catlett was in the manic phase of bipolar disorder, and that
he was alcohol dependent.
     Walter Catlett, Catlett's older brother, also testified for
the defense.  Walter testified, as did Dr. Kuo, that Catlett
attempted to commit suicide as a freshman at Tulane University in
1987.
     Walter, a Marine, stated that duty prevented him from having
much contact with his brother until 1991, when he was assigned as
a recruiter in Little Rock.  Walter testified that at that time,
his brother had just graduated from college and was having
difficulty finding a job.  Walter stated that his brother's
difficulty in finding a position was due to grandiosity, or his
belief that he should be hired as the Chief Executive Officer with
a six-figure salary.
     Walter testified that Catlett was living in Dallas by the
Spring of 1992, when Walter paid him a visit.  Walter stated that
at the time of his visit, Catlett was in an excited state, with
accelerated behavior, and that it appeared as though he was
spending many hours awake.  Walter was later summoned to Dallas by
one of Catlett's friends after Catlett was arrested for attempting
to steal a Cadillac.  Catlett told his brother that he tried to
take the Cadillac because he believed it was a gift from Ross
Perot.  According to Walter, Catlett believed himself to be Mr.
Perot's campaign manager.  Walter brought his brother back with him
to Little Rock and had him committed to the State Hospital for
treatment.
     Walter testified that Catlett was committed again in 1993. 
Prior to this commitment, Catlett was seen wearing dirty clothes
and carrying a suitcase full of plagiarized poetry that he claimed
he authored.  Walter also stated that in the Summer of 1993,
Catlett would frequently travel to Memphis and that he was "very
grandiose."
     Chris Stowers, a friend of Catlett's for over ten years, also
testified.  Mr. Stowers stated that he lived in Memphis during the
Summer of 1993, and that Catlett would visit him during his
elopements from the State Hospital.  Stowers described Catlett as
having sporadic thoughts, and Stowers stated that Catlett "was not
making much sense.  He wasn't Mike."  Stowers testified that
Catlett, at one point, told him he "could not cope."  Stowers,
consequently, drove Catlett back to Little Rock and saw him to the
State Hospital.
     When Stowers returned Catlett's car to him in Little Rock a
week later, he found Catlett at his downtown apartment in a
disheveled state.  Stowers stated that Catlett "was not clean,
shaven, or showered," and that "he seemed worse than when I had
seen him a week earlier."  Catlett was also worried about living
downtown, Stowers testified, and that he was contemplating buying
a gun for protection.
     Stowers testified that two weeks after that encounter with
Catlett, Catlett returned to Memphis and stayed with him for ten
days.  Stowers described Catlett as looking "like he had been on
the streets in Memphis."  He also stated that Catlett was unable to
maintain a coherent conversation, and that "he wouldn't give me any
direct answers."
     Ellen Nixon, who was the mother of one of Catlett's close
friends, also testified.  Ms. Nixon stated that she knew Catlett
for approximately ten years, and that there was a "definite change"
in his behavior during the Summer of 1993.  She characterized his
behavior as "extreme paranoia."  Ms. Nixon testified that Catlett
thought planes or helicopters were following him.  She also stated
that during that summer, Catlett believed he was working for an
underground newspaper that was run by someone who was also manic
depressive.
     The next witness to testify for the defense was Dr. Brad
Diner, a psychiatrist from North Little Rock who was hired by the
defense to conduct a psychiatric evaluation of Catlett.  Dr. Diner
testified that he performed the evaluation through three visits in
jail with Catlett and a review of his medical records.  He also
interviewed Walter Catlett and his mother.  The first visit with
Catlett was in February of 1994.  Dr. Diner characterized Catlett's
behavior during these visits as "very manic," and "extremely
paranoid, pressured and driven."  Dr. Diner also testified that he
reached the same conclusion as Dr. Kuo when Catlett was previously
discharged from the State Hospital -- that he could not "function
in a manner where he could take care of himself."  
       
     Dr. Diner also characterized bi-polar disorder in the
following manner:
          
          Either depressed or manic phases can actually progress to
     where we have frank psychotic symptoms.  That is, symptoms
     when you're out of touch with reality.  That's probably more
     common in manic states.  Manic individuals will elaborate that
     preoccupation with brilliance, and power and identity into
     frank, oftentimes bizarre delusions, that is, false beliefs
     about themselves that are very grandiose.  They also become
     very paranoid.

Dr. Diner added that he believed that Catlett also had a narcisstic
personality disorder.  The doctor characterized narcisstic
individuals as "grandiose," and he stated that such people have
greatly inflated self-esteem and are easily hurt and humiliated.
     The doctor, at the conclusion of his testimony on direct
examination, offered the following opinion:  "I believe Michael
Catlett was seriously emotionally disturbed the Summer of 1993, up
to the time of the shooting on October the first.  I believe he was
seriously impaired."
     On cross-examination, however, Dr. Diner could not say with
certainty whether Catlett's behavior met both tests for legal
insanity.  He stated that at the time Catlett shot Ms. Jungkind, he
appreciated the wrongfulness of his conduct, but that it was
"difficult to say" whether or not Catlett could actually conform
his conduct to the requirements of the law.  Significantly, the
doctor stated:

          When Michael Catlett shot Michelle Jungkind, he
     appreciated the wrongfulness of what he did.  I believe that
     he was purposely shooting Michelle Jungkind.  It's important
     to point out that because of his emotional state at that time,
     he lacked the internal restraints that most of us would have. 
     Because of his impaired state, he could not adequately control
     himself from or keep himself at that moment from shooting her.
                               ***
          I don't think, without any information otherwise, that
     how Michael Catlett is in February of 1994 (the date of the
     first interview) can with any predictive validity determine
     how he was on October 1, 1993.  However, if you see someone
     who is manic, you can predict that they'll be manic again at
     some point in their life.  We know the possibility of the
     cycle reoccurring certainly exits, but given time, I don't
     know and can't predict what it'll be.  Whether he'll be up,
     whether he'll be down, or whether he'll be normal in that
     functioning range.
          I don't think there is any predictive validity based on
     the fact that we know that he was having episodes on these
     previous admissions, '91, '92, '93, how he was on October 1,
     1993.  I will say that untreated, in Michael's case, in June,
     he's likely to still be sick in October or December.
                               ***
          I think Michael knew what he was doing was wrong.  I
     think it's real hard to say where he was at that moment with
     respect to the second prong the jury must consider.


On redirect examination, however, Dr. Diner added:

          Narcisstic individuals can be overwhelmed and react with
     rage to the humiliation when they feel rejected.  I believe
     that Michael Catlett, being manic on top of that, had
     elaborated those otherwise narcissistic qualities into frank
     grandiose delusions with paranoia, and I believe that that
     only served to escalate his anger more.  Because his judgment
     was so impaired and his impulse control so impaired, he was
     an accident waiting to happen.

     Dr. James Moneypenny, a psychologist, also testified for the
defense.  Like the other experts, Dr. Moneypenny was of the opinion
that Catlett suffered from bipolar disorder, manic type.  He
testified that individuals in the manic phase of the disorder are
delusional, grandiose, and paranoid.  Dr. Moneypenny, like Dr.
Diner, formed his opinion from interviews with Catlett and a review
of his medical records.
     Dr. Moneypenny also testified that individuals in Catlett's
condition would have impaired judgment and impaired impulse
control.  He also stated that these impairments "are not an all or
none sort of thing."  You don't lose all of your judgment all the
time, and different patients have different degrees of impairment." 
Dr. Moneypenny also stated that the symptoms of mental illness,
such as depression and anxiety, "in the case of...bipolar disorder,
and in Michael Catlett's case in particular,...are particularly
severe."  At the conclusion of his testimony on direct examination,
Dr. Moneypenny declared "Michael Catlett was an extremely
emotionally disturbed young man in the Summer of 1993, and my
opinion is that it continued up until the shooting on October 1,
1993."
     On cross-examination, however, Dr. Moneypenny could not offer
a definite opinion on whether Catlett's behavior met the legal test
for insanity.  He testified that he did not interview Catlett until
February of 1994, and that neither the interviews or a review of
the medical records enabled him to determine Catlett's condition on
the day of the murder "with any predictive validity."  As to
whether Catlett could appreciate the criminality of his conduct,
the doctor testified, "You cannot say for sure exactly what Michael
Catlett knew at any given time....My opinion is it could be either
way."    Dr. Moneypenny did say, however, that it was "an easier
case for Michael being unable to conform."
     In rebuttal, the State offered the testimony of two witnesses,
a psychologist and a psychiatrist.  Both testified that Catlett was
legally sane at the time of the murder.
     In his petition for postconviction relief that was filed in
the Trial Court, Catlett made several allegations of ineffective
assistance of counsel.  Among them was his claim that his counsel
was ineffective for failing to have a defense expert examine him at
a time that was in closer proximity to the date of the murder.  The
timeliness of such an examination was important because of the
cyclic nature of bipolar disorder.  According to Catlett, an
examination close in time to the date of the murder would have
allowed the experts to determine if he was in a manic phase, and
therefore legally insane, at the time of the murder.  Catlett
contended that as a result of the delay, Drs. Diner and Moneypenny
were unable to testify with certainty about whether Catlett met the
test for legal insanity. The Trial Court, finding that there was an
abundance of evidence concerning Catlett's mental health
surrounding the time of the murder, and the fact that Catlett had
not shown that an examination closer to that date would have
yielded different results, denied the claim.  Catlett assigns error
to this ruling.
     To prevail on a claim of ineffective assistance of counsel,
the petitioner must show first 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 petitioner by the Sixth Amendment.  Second, the
petitioner must show that the deficient performance prejudiced the
defense, which requires showing that counsel's errors were so
serious as to deprive the petitioner of a fair trial.  Unless a
petitioner makes both showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial process
that renders the result unreliable.  A court must indulge in a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.  The petitioner must
show there is a reasonable probability that, but for counsel's
errors, the factfinder would have had a reasonable doubt respecting
guilt, i.e., the decision reached would have been different absent
the errors.  A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the trial.  In making a
determination on a claim of ineffectiveness, the totality of the
evidence before the judge or jury must be considered.  Strickland
v. Washington, 466 U.S. 668 (1984).  We will not reverse a trial
court's ruling on an ineffective assistance of counsel claim unless
it was clearly erroneous.  Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).
     We cannot say that the Trial Court was clearly erroneous for
denying relief on Catlett's claim that his counsel was ineffective
for failing to have his client examined by a defense expert at a
time closer in proximity to the date of the murder.  During the
postconviction hearing, during which Dr. Diner was the only expert 
to testify, the doctor stated that while he would have preferred to
have the opportunity to examine Catlett closer in time to the date
of the murder, he was unsure of whether such an examination would
have yielded a more definite opinion.  The doctor stated:

          I'm not sure if the four or five month lapse of time
     played a factor in my inability to reach a firm opinion on
     that second prong of the test for insanity.  I think that it
     could have helped, although I don't know whether or not it
     would have made a difference.... I don't know if my testimony
     would have been different had I seen Michael a week later, or
     two weeks later, or three weeks later.  

Catlett has not shown that an examination closer in time to the
date of the murder would have caused Dr. Diner to testify with any
more certainty.  Accordingly, he has not shown prejudice under
Strickland standard.  
     Furthermore, we note that although both Dr. Diner and Dr.
Moneypenny did testify, on cross-examination, that they were unable
to determine Catlett's mental state on the day of the murder with
certainty, they did testify that he was an extremely disturbed
young man during the previous summer, and that persons in his
condition, and Catlett in particular, suffer from a loss of impulse
control.  The testimony of these doctors indicated that an
individual in the manic phase of bipolar disorder is typically
grandiose, paranoid, and delusional.  The doctors' description of
these symptoms coincided with the testimony of other defense
witnesses who observed Catlett's behavior in the previous summer. 
Dr. Kuo also testified that Catlett was hospitalized in June of
1993, at which time he was diagnosed as being in a manic phase of
bipolar disorder.  As can be seen, defense counsel introduced more
than enough evidence from which the jury could conclude that
Catlett was in a manic phase at the time of the murder, and
therefore, legally insane. 
     Catlett next argues that his counsel was ineffective for
failing to introduce the testimony of several lay witnesses who
observed his behavior both before and immediately after the
shooting.  Catlett contends that if this testimony had been
available to the jury, they would more than likely have found that
he had diminished capacity at the time of the murder.  The Trial
Court, finding that both the expert and lay testimony presented at
trial was adequate to establish that Catlett was behaving
abnormally prior to the murder, concluded that there was not a
reasonable probability that additional lay testimony would have
resulted in a different verdict.
     Once again, we cannot say that the Trial Court was clearly
erroneous.  In his brief, Catlett identifies several lay witnesses
that he claims his defense counsel should have put on the stand. 
We note that defense counsel, during his own testimony, admitted
that he did not interview some of these witnesses.  For the
witnesses he did interview, he articulated the reasons why he chose
not to call them during the trial.  We have previously held that
the decision of whether or not to call a witness is a matter of
trial strategy that is outside the purview of Rule 37.  Helton v.
State, 325 Ark. 140, 924 S.W.2d 239 (1996).  Accordingly, we must
concern ourselves with only those witnesses that counsel admitted
he did not interview. 
     Counsel did not interview the following potential witnesses,
all of which Catlett claims could have helped his case:  Father
George Tribou, Sheila Nixon, and Chanda Calloway.  One additional
witness, Herb Wright, a local attorney, was never considered a
potential witness by defense counsel.  At the postconviction
hearing, Father Tribou testified that he had four contacts with
Catlett in the six months prior to the shooting.  He stated that
during one of his meetings with Catlett, he was asked to read and
critique Catlett's poetry.   Father Tribou testified that the
poetry was incomprehensible, and as a consequence, he suggested
Catlett see a doctor.  Father Tribou also stated that he saw
Catlett in jail after the murder, and that it appeared that Catlett
did not appreciate the gravity of his situation.
     Sheila Nixon, Ellen Nixon's daughter-in-law, also testified
during the postconviction hearing.  Mrs. Nixon stated that she saw
Catlett on the weekend prior to the murder, when he came to her
home to help paint.  She testified that he "looked like a homeless
person," and that he was "like a hyperactive child."  Mrs. Nixon
also testified that Catlett saw faces in swirls of paint on the
walls.  Lastly, Mrs. Nixon testified that Catlett called her during
the week prior to the murder and that his conversation was erratic
and unresponsive.
     Herb Wright was a friend and local attorney that Catlett
called to the jail on the night of the murder.  Mr. Wright
testified that Catlett would call him during his commitments in the
State Hospital and tell him about his painting and poetry writing. 
Catlett also told him that he was Ross Perot's campaign manager. 
Mr. Wright also testified that on the night of his visit to the
jail, Catlett appeared to not understand of the gravity of his
situation, and that he appeared uncharacteristically "flat," or
unemotional.
     Chanda Calloway testified that she and Catlett had been
friends a long time, and that they dated briefly in high school.
Ms. Calloway stated that in the spring and summer prior to the
shooting, Catlett exhibited unusual behavior -- that he dressed
oddly, talked erratically, and seemed paranoid.  He told her that
he was Ross Perot's campaign manager.
       We conclude that counsel did not perform deficiently by
failing to interview these witnesses and introduce their testimony
during the trial.  As can be seen, their testimony is cumulative of
the testimony of the defense experts and the other lay witnesses. 
Accordingly, there is not a reasonable probability that their
testimony would have changed the outcome of the trial.
        Catlett next argues that his counsel was ineffective for
failing to call Wag Woodward, a friend and local landlord, to
testify during the trial.  According to Catlett, Woodward would
have testified that on the day of the shooting, Catlett met with
him and discussed renting an apartment.  Catlett contends that such
testimony would have rebutted the State's evidence that he intended
to flee, thereby undermining the theory that the murder was
committed with premeditation and deliberation.  He argues that he
was prejudiced by the failure to call Mr. Woodward as a witness
because the rebuttal of the evidence of premeditation and
deliberation would have led to at least a conviction on a lesser
degree of murder.
     At the postconviction hearing, Mr. Woodward testified that he
has known Catlett since 1979.  Mr. Woodward stated that he is the
landlord for property that his parents own in the Quapaw area of
Little Rock.  Catlett called one of his property managers the day
before the shooting to arrange to look at an apartment.  Mr.
Woodward met him personally at noon on the day of the shooting.
     Mr. Woodward testified that he visited with Catlett for about
an hour, and that Catlett decided to rent the apartment, and
indicated that he wanted to move in that weekend.  Mr. Woodward
testified that Catlett's demeanor was "in between normal and out of
the ordinary.  He seemed like the Michael Catlett I've always
known."  Mr. Woodward added that he did not recall ever being
contacted by Jack Lassiter or any member of his staff.
     Defense counsel testified that he did not personally interview
Mr. Woodward.  He also stated that while there were notes in his
file indicating that Mr. Woodward had been interviewed, he did not
know their source.  He then conceded that he could not make a
tactical decision not to use a particular witness unless he
interviewed the witness.  Defense counsel added, however, the
following:

          Yes, I felt that if I had continued to call additional
     lay witnesses, I may have incurred liability.  I wouldn't
     throw somebody up there, for example, that'd seen him two
     hours earlier when he was functioning normally and talking to
     him about renting an apartment, talking about going to school
     up at the university, and talking about his .380
     semiautomatic.  I wasn't going to put that person up there,
     'cause he's not acting crazy.  He's acting normally.  The
     notes in my file indicate that (Woodward) would testify to
     that.
                               ***
     Yes, any decision to call somebody such as Woodward would have
     been at least uneventful as far as I'm concerned from a
     defense perspective, and potentially counterproductive based
     on the notes I had in my file.

     In its findings of fact and conclusions of law, the Trial
Court noted that defense counsel did not interview Mr. Woodward. 
The Trial Court denied relief on the ineffective assistance of
counsel claim, however, because the effectiveness of Mr. Woodward's
testimony in rebuttal of the State's theory of premeditation was
"purely speculative, particularly in light of his testimony at the
evidentiary hearing that only hours before the shooting, the
defendant `seemed just like the Michael Catlett I've always
known.'"  The Trial Court found that the testimony "would likely
have been far more damaging than helpful, and the failure to call
Woodward at the trial cannot be said to be professionally
unreasonable." 
     The Trial Court's ruling is not clearly erroneous.  While it
is arguable that Mr. Woodward's testimony could have been used to
rebut the State's evidence that he was preparing to flee the area,
it is equally likely that such evidence could have undermined the
insanity defense.  Moreover, the evidence that Catlett may have
been planning to flee the area was but one part of the State's
proof that the murder was premeditated.  The State also introduced
evidence of Catlett's efforts to obtain a handgun as well as his
statements to his friends, who testified that he said he was going
to kill Miss Jungkind and that "someone who is manic depressive
could kill someone and get off on insanity."  Accordingly, Catlett
has not shown that there is a reasonable probability that the
outcome of his trial would have been different.
     Catlett next argues that defense counsel was ineffective for
exercising a peremptory challenge against a juror who stated that
he had experience with the mentally ill.  Catlett claims that he
was prejudiced because the presence of a juror who was sympathetic
toward the mentally ill would have led to an acquittal or a hung
jury.
     During the postconviction hearing, defense counsel testified
that he exercised a peremptory challenge against the juror because
in addition to having experience with the mentally ill, the juror
was also a pastor.  Defense counsel then stated:
          
          I generally don't put pastors on juries in criminal cases
     because I'm not sure what kind of effect they might have on
     the other jurors or how other jurors might respond to them. 
     In all due respect to their occupation, they quite often tend
     to be judgmental people, and I'm sure that played into our
     decision... Coupled with his experience in this area, I'm   
     sure, led us to believe that we'd have a potentially dangerous
     expert in the box.

     The Trial Court concluded that Catlett's claim presumes that
the juror would have been sympathetic to his case, and that he has
not shown that the jury that was selected was biased.  Therefore,
the Trial Court found that Catlett did not prove he was prejudiced
by the exclusion of the juror.  We agree.  We note, furthermore,
that the exclusion of this juror was a matter of trial strategy. 
See generally Irons v. State, 272 Ark. 493, 615 S.W.2d 374
(1981)(noting, in dicta, that the seating of a juror may be a
matter of trial strategy).    
     Catlett next argues that his counsel was ineffective for
failing to preserve for appeal an argument that assigned error to
the Trial Court's decision to allow Rita Hawkins to testify. 
During the trial, when the State was seeking to introduce Ms.
Hawkins's testimony, the prosecutor told the Trial Court that Ms.
Hawkins "will testify that she drove with Michael Catlett to that
travel agency on the date of the murder,"  and that Catlett, who
went into the agency alone, came out with an unidentified packet of
materials.  The prosecutor stated that Ms. Hawkins's testimony
would help to prove the element of premeditation and deliberation. 
Although the prosecutor later said that Catlett and Ms. Hawkins
went to the travel agency the day before the murder, rather than
the actual date of the shooting, the Trial Court allowed the
testimony on the following basis:

               Showing that he went into a travel agency on that
          day and came out with information about a trip, that of
          course, will be admissible.
                               ***
               I don't see any unfair prejudice that would come
          from it.  I don't know what other reasonable inferences
          can be drawn from it, other than when a person normally
          goes to a travel agency and comes out with material.  It
          is close enough in time to this offense I think that
          would have relevance, counsel.  So, that testimony, of
          course, will be allowed.

During the trial, however, Rita Hawkins did not testify that she
accompanied Catlett to the travel agency on either the day of the
shooting or the day before.  Rather, she stated "I don't know
exactly when it was; it was maybe two weeks relative to Michelle's
shooting."  Defense counsel did not lodge a relevancy objection
after the time frame of Ms. Hawkins's testimony changed. 
Consequently, we declined to reach the issue in the direct appeal. 
Catlett v. State, supra.
     Catlett now contends that we would have reversed his
conviction on this evidentiary question, and therefore, he was
prejudiced by his attorney's failure to preserve the argument for
appeal.  Catlett also suggests that a proper objection would have
prompted the Trial Court to exclude the testimony.  There is no
merit to these assertions.  As indicated above, the State
introduced other testimony that indicated that the murder was
premeditated and deliberated.  Consequently, it is unlikely that
the exclusion of this testimony would have had changed the outcome
of the trial.  Furthermore, Ms. Hawkins's inability to recall the
exact date of their visit to the travel agency does not render her
testimony inadmissible.  We have long held that the Trial Court has
wide discretion when ruling about whether the probative value of
testimony is outweighed by potential for prejudice.  Mixon v.
State, 330 Ark. 171, 954 S.W.2d 214 (1997).  Ms. Hawkins's ability
to recall the date of the trip to the travel agency, whether one
day before the murder or two weeks, goes more to the weight of her
testimony, rather than its admissibility.  Therefore, we would not
have reversed on this issue.
     Catlett also argues that his trial counsel was ineffective for
not preserving for appellate review an argument concerning the
inadequacy of certain jury instructions.  During the trial, the
jury received instructions directly from The Arkansas Model Jury
Instructions--Criminal.  In the direct appeal, Catlett apparently
attempted to argue that two of those instructions were improper. 
Specifically, he contended that the phrase "mental disease or
defect," as it appears in AMCI 2d 609, should have been defined for
the jury.  Catlett also argued that AMCI 2d 105, which instructs
the jury to disregard unreasonable expert opinion testimony, was
"likely to be applied in a manner that prevents the consideration
of constitutionally relevant evidence."  Lastly, Catlett argued
that these instructions, "which set out different standards for lay
and expert testimony and allowing standardless rejection of expert
testimony," were "erroneously given and created a real danger of
arbitrary rejection of the evidence in support of Catlett's
defense."  We declined to reach these arguments because trial
counsel "neither objected to the instructions given nor did he
offer his own instructions."  Catlett v. State, supra.
     In this appeal, Catlett contends that he was prejudiced by his
attorney's failure to lodge an objection or proffer alternate
instructions.  Specifically, he argues that if his attorney had
properly objected to the instructions, it is likely the Trial Court
would have sustained the objection or, in the alternative, we would
have reversed his conviction.  We note at the outset that each of
the AMCI instructions of which Catlett complains is a proper
statement of the law, and for that reason, neither an objection
during the trial or the argument on appeal would have prevailed. 
Furthermore, Catlett has not offered a definition of "mental
disease or defect," nor has he offered alternative instructions
regarding opinion testimony.  Accordingly, there is no merit to
this argument.
     Catlett next argues that his attorney was ineffective because
he did not communicate an offer of a negotiated plea.  He alleges
that the State offered to allow him to plead guilty to a reduced
charge of first degree murder, but that he did not learn of the
offer until after his conviction.  Catlett contends that if he had
been aware of the offer, he would have accepted it.
     A plea agreement is an agreement between the accused and the
prosecutor, not an agreement between counsel and the prosecutor. 
Rassmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983).  As such,
counsel has the duty to advise his client of an offer of a
negotiated plea.  Elmore v. State, 285 Ark. 42, 684 S.W.2d 263
(1985).
     The Trial Court found that counsel was not ineffective because
no firm offer was ever extended, and consequently, there "was no
offer to communicate."  Indeed, both defense counsel and the
prosecutor testified that while a plea offer was discussed, no
offer was ever made.  The Trial Court was correct to deny relief on
this issue.
     Catlett next argues that his defense counsel was ineffective
for not objecting to the introduction of the testimony and
photographs describing the threatening graffiti that was found in
certain areas of Little Rock.  Catlett contends that defense
counsel should have objected to the evidence on the basis that the
State did not establish that he was indeed the author of the
graffiti.  He argues that he was prejudiced because the jury could
attribute the graffiti to him without adequate foundation.  Catlett
suggests that "the outcome of the trial would have been different"
had the jury not been able to consider that evidence.
     Counsel was not ineffective for failing to object to the
introduction of the evidence because the graffiti was sufficiently
linked to Catlett.  It was undisputed that Catlett and Ms. Jungkind
were well-acquainted.  In each instance, the graffiti either
specifically mentioned Ms. Jungkind or was drawn in a place where
she was almost guaranteed to see it.  Victoria Santos, Ms.
Jungkind's co-worker, described the graffiti in the law firm's
parking lot as being red and black in color, and as reading
"Lucifer wants your soul, Stephanie Jungkind...."  Tracy Keith, a
neighbor of Ms. Jungkind and her sister, testified that the
graffiti on their street read "Lucifer is coming for you...bitch,
slut, whore."  Steve Keith testified that the graffiti he saw in
Murray Park contained Ms. Jungkind's name.  Lastly, in his
statement to Detective Leslie of the Little Rock Police, Catlett
admitted that he painted satanic messages to scare Ms. Jungkind. 
Accordingly, there is no merit to this argument.
     For his final argument in this appeal, Catlett contends that
his counsel was ineffective because he had a conflict of interest. 
Specifically, he alleges that defense counsel went to high school
with the victim's father, and that he has remained "good friends"
with her father and uncle ever since.  The Trial Court noted that
defense counsel testified that he has not seen Ms. Jungkind's
father since he left high school, which was approximately thirty
years before the date of the hearing.  The Trial Court also
observed that defense counsel could not remember ever knowing Ms.
Jungkind's uncle.  Consequently, the Trial Court ruled that there
was no conflict of interest.  
     Prejudice will be presumed from a conflict of counsel's
interest only when the defendant demonstrates that counsel actively
represented conflicting interests and that actual conflict of
interest adversely affected his lawyer's performance.  Johnson v.
State, 321 Ark. 117, 900 S.W.2d 940 (1995).  A petitioner has the
burden of proving a conflict of interest and showing its adverse
effects.  Id.  A petitioner is not entitled to relief unless he
satisfies both prongs of the test.  Id.  The prejudice must be real
and have a demonstrable detrimental effect and not merely have some
abstract or theoretical effect.  Id.
     The Trial Court's finding of no conflict of interest is not
clearly erroneous.  We cannot imagine how the victim's relationship
to one of defense counsel's high school classmates, whom he has not
seen for thirty years, would create a conflict of interest that
would compromise counsel's ability to effectively assist Catlett's
defense.  No such analysis needs to be applied in the case of the
victim's uncle, whom defense counsel did not recall knowing at all.
     Affirmed.