State of Arkansas v. Kenneth Lamont Slocum

STATE of Arkansas v. Kenneth Lamont SLOCUM

Cr 97-244                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 12, 1998


1.   Criminal procedure -- postconviction relief -- standard for
     appeal from granting of. -- In an appeal from the granting of
     Ark. R. Crim. P. 37 relief, the supreme court will not reverse
     the decision unless it is clearly erroneous; the question the
     court must decide is whether the trial court clearly erred in
     holding that counsel's performance was ineffective, applying
     the standard set in Strickland v. Washington, 466 U.S. 668
     (1984).

2.   Attorney & client -- criteria for assessing effectiveness of
     counsel -- proof required. -- Strickland v. Washington, 466 U.S. 668 (1984), provides that when a convicted defendant
     complains of ineffective assistance of counsel, he must show
     that counsel's representation fell below an objective standard
     of reasonableness and that counsel's deficient performance
     prejudiced his defense; judicial review of counsel's
     performance must be highly deferential, and a fair assessment
     of counsel's performance under Strickland requires that every
     effort be made to eliminate the distorting effects of
     hindsight, to reconstruct the circumstances of counsel's
     conduct, and to evaluate the conduct from counsel's
     perspective at the time; a reviewing court must indulge a
     strong presumption that the conduct falls within the wide
     range of reasonable professional assistance.  

3.   Attorney & client -- ineffective-assistance claim -- deficient
     performance discussed. -- To prevail on any claim of
     ineffective assistance of counsel, the petitioner must show
     first that counsel's performance was deficient; this requires
     a 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 a 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. 

4.   Criminal procedure -- reviewing denial of relief under Rule 37
     -- strong presumption exists that counsel's conduct falls
     within range of reasonable professional assistance. -- In
     reviewing the denial of relief under Rule 37, the supreme
     court must indulge in a strong presumption that counsel's
     conduct falls within the wide range of reasonable professional
     assistance; the petitioner must show that there is a
     reasonable probability that, but for counsel's errors, the
     factfinder would have had a reasonable doubt respecting guilt
     in that the decision reached would have been different absent
     the errors; a reasonable probability is a probability
     sufficient to undermine confidence in the outcome of the
     trial. 

5.   Attorney & client -- ineffective trial strategy -- not basis
     for meeting Strickland test. -- A lawyer's choice of trial
     strategy that proved ineffective is not a basis for meeting
     the Strickland test.

6.   Criminal procedure -- mistake of not requesting instruction
     did not result in counsel's performance being so deficient as
     to have denied fair trial -- trial court erred in granting new
     trial -- case reversed. -- Given the strategy choice of not
     asking the jury to follow AMCI 2d 403, even if it had been
     given, the supreme court determined that the mistake of not
     requesting the instruction did not result in counsel's
     performance being so deficient as to have denied a fair trial;
     it was a tactical decision not to argue the requirement of
     accomplice corroboration, for which counsel thought he had
     requested an instruction, to the jury; given that tactical
     decision, it could not be said that the result of the trial
     would have been different had the instruction been requested;
     given the stringent standards set by the Strickland decision,
     the trial court clearly erred in granting a new trial; the
     case was reversed. 
 

     Appeal from Pulaski Circuit Court; David Bogard, Judge;
reversed.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellant.
     Al Shay, for appellee.

     David Newbern, Justice.
     Kenneth Lamont Slocum was convicted of capital murder and
sentenced to life imprisonment without parole.  We affirmed the
conviction.  Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996). 
Mr. Slocum sought postconviction relief pursuant to Ark. R. Crim.
P. 37 on the ground that his counsel was ineffective in that he
failed to request an instruction (AMCI2d 403) to the effect that he
could not be convicted solely on the uncorroborated testimony of an
accomplice.  See Ark. Code Ann.  16-89-111(e)(1) (1987).  In
response, the Trial Court granted a new trial.  The State appeals
from that decision, and we reverse it.  
     At the trial on the capital-murder charge, Vernon Scott
testified that Mr. Slocum gave him a rock of cocaine worth forty
dollars in return for luring the victim, Willie Simpkins, to the
home of a man named Hattison.  Mr. Scott testified he did not know
why Mr. Slocum wanted it done.  Mr. Scott said that, while he and
Mr. Simpkins were at Hattison's,  Elgin King and Mr. Slocum, who
was brandishing a .45 caliber pistol, entered and abducted Mr.
Simpkins.  Mr. Scott said that, despite the fact that Mr. King and
Mr. Slocum were wearing masks, he was able to identify  Mr. Slocum
whom he had known for most of his life.  Mr. Simpkins's body was
found with both .45 and .38 caliber bullets in it, and a rubber
mask was found nearby.
     Mr. King was convicted of first-degree murder.  We reversed
and remanded that conviction on the ground that the Trial Court
refused Mr. King's proffer of AMCI2d 403 with respect to Mr.
Scott's testimony.  King v. State, 323 Ark. 671, 916 S.W.2d 732
(1996).  In Mr. Slocum's direct appeal, however, we declined to
reverse on the failure of the Trial Court to give the instruction
because it had not been proffered to the Trial Court.
     At the hearing on Mr. Slocum's claim that his counsel's
failure to proffer AMCI2d 403 resulted in his counsel being
ineffective, the lawyer who represented Mr. Slocum at the trial
testified as follows.  He and his co-counsel sought to have Mr.
Scott declared an accomplice as a matter of law.  See Williams v.
State, 328 Ark. 487, 944 S.W.2d 822 (1997).  That request was
denied.  Counsel then agreed that AMCI2d 403 would be requested,
but, through inadvertence, it was not done.  It is clear, however,
that counsel's trial strategy was not to depend on evidence that
Mr. Scott was an accomplice whose testimony was uncorroborated. 
Rather, their strategy was to challenge the State's evidence that
Mr. Slocum had participated in the crime.  
     Although Mr. Slocum did not testify, he had consistently
denied his guilt in conversations with his counsel.  Counsel's
testimony on the point at the Rule 37 hearing was as follows:

     And I specifically recall my conversation with [co-counsel]
     where we decided we would not argue to the jury that Vernon
     Scott was an accomplice, so even if you believed him, you
     could not convict because we felt that that was not a
     beneficial argument to make.  But, and during that same
     discussion, we agreed that it was crucial that we submit that
     issue to the jury.

     At a later point, counsel was questioned about whether it
might have been inconsistent to have argued to the jury that Mr.
Slocum was not even present at the crime scene and that Mr. Scott's
testimony was uncorroborated.  Counsel responded that it would not
have been inconsistent but that it would not have been a "winning
argument."
     The only evidence produced that might have been considered
corroborative of Mr. Scott's testimony was: (1) a .45 caliber
bullet like the ones found in Mr. Simpkins's body that was found at
Mr. Slocum's grandmother's home, which was frequented by Mr.
Slocum; and (2) testimony that Mr. Slocum had a motive to kill Mr.
Simpkins because Mr. Simpkins was supposed to testify in a trial
against one of Mr. Slocum's relatives.  Thus, the "corroborating
evidence" was hardly substantial, but it is also questionable
whether the jury would have found Mr. Scott to be an accomplice,
given his protestation that he knew nothing of the plan to abduct
and kill the victim.
     It is difficult to understand counsel's statement that the
giving of AMCI2d 403 was "crucial" to their client's case in light
of their concession that they had no plan to argue the accomplice-
testimony issue to the jury but were following the tack of their
client's complete innocence.  Taking counsel at his word that there
was an intention to seek the instruction, we are nonetheless left
with the defense strategy, which was to argue to the jury that the
State had failed to prove Mr. Slocum's participation and not to
rely on the accomplice-corroboration point.  That is so because of
counsel's clear testimony that there was no plan to argue the
accomplice-corroboration point to the jury, even if the instruction
had been given.
     We are aware of only one other State appeal from the granting
of Rule 37 relief.  State v. Manees, 264 Ark. 190, 569 S.W.2d 665
(1978).  Our decision in that case was that the Trial Court lacked
jurisdiction to alter a sentence being served and that error
occurred because of failure to recite formal findings of fact and
conclusions of law.  There was no need to state a standard of
review for cases such as the one we now consider.  In considering
the standard of review to be applied, we see no need to vary from
the one used when Rule 37 relief has been denied, i.e., that we
will not reverse the decision unless it is clearly erroneous. 
Catlett v. State, 331 Ark. 270, ___ S.W.2d ___ (1998) (per curiam),
citing Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).  The
question we must decide is whether the Trial Court clearly erred in
holding that counsel's performance was ineffective, applying the
standard set in Strickland v. Washington, 466 U.S. 668 (1984).
     We recently discussed the principles relating to ineffective
assistance of counsel in Thomas v. State, 330 Ark. 442, 447-48, 954 S.W.2d 255, 257-58 (1997):

          The criteria for assessing the effectiveness of
     counsel were enunciated by the Supreme Court in
     Strickland v. Washington, 466 U.S. 668 (1984). 
     Strickland provides that when a convicted defendant
     complains of ineffective assistance of counsel, he must
     show that counsel's representation fell below an
     objective standard of reasonableness and that counsel's
     deficient performance prejudiced his defense.  Judicial
     review of counsel's performance must be highly
     deferential, and a fair assessment of counsel's
     performance under Strickland requires that every effort
     be made to eliminate the distorting effects of hindsight,
     to reconstruct the circumstances of counsel's conduct,
     and to evaluate the conduct from counsel's perspective at
     the time.  Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993).  A reviewing court must indulge a strong
     presumption that the conduct falls within the wide range
     of reasonable professional assistance.  Id.
          To prevail on any claim of ineffective assistance of
     counsel, the petitioner must show first that counsel's
     performance was deficient.  Thomas [v. State], 322 Ark.
     670, 911 S.W.2d 259 [(1995)].  This requires a showing
     that counsel made errors so serious that counsel was not
     functioning as the "counsel" guaranteed the petitioner by
     the Sixth Amendment.  Id.  Secondly, the petitioner must
     show that the deficient performance prejudiced the
     defense, which requires a showing that counsel's errors
     were so serious as to deprive the petitioner of a fair
     trial.  Id.  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.  Id.  In reviewing the denial of
     relief under Rule 37, this court must indulge in a strong
     presumption that counsel's conduct falls within the wide
     range of reasonable professional assistance.  Id.  The
     petitioner must show that there is a reasonable
     probability that, but for counsel's errors, the
     factfinder would have had a reasonable doubt respecting
     guilt in that the decision reached would have been
     different absent the errors.  Id.; Huls v. State, 301
     Ark. 572, 785 S.W.2d 467 (1990).  A reasonable
     probability is a probability sufficient to undermine
     confidence in the outcome of the trial.  Strickland, 466 U.S. 668; Thomas, 322 Ark. 670, 911 S.W.2d 259.

     We have written on many occasions that a lawyer's choice of
trial strategy that proved ineffective is not a basis for meeting
the Strickland test.  See, e.g., Vickers v. State, 320 Ark. 437,
898 S.W.2d 26 (1995); Monts v. State, 312 Ark. 547, 851 S.W.2d 432
(1993).  If counsel had proffered AMCI2d 403 and it had been
presented to the jury, and if counsel had then testified at the
Rule 37 hearing that he declined to argue the accomplice issue to
the jury because he did not consider the argument to have been
"beneficial" or a "winning argument," we most assuredly would have
held that the Strickland test had not been met.  The distinction
here is that the instruction was not requested.  Given the strategy
choice of not asking the jury to follow that instruction, even if
it had been given, we must say it is a distinction without a
difference.  True, the jury might possibly have seized upon the
instruction and acquitted Mr. Slocum; however, we cannot say that
the mistake made in this instance resulted in counsel's performance
being so deficient as to have denied a fair trial.  It is difficult
to say there was prejudice to Mr. Slocum in view of counsel's
choice, based on Mr. Slocum's statements to him, to defend on what
counsel referred to as "general denial."
     Counsel testified at the Rule 37 hearing that the failure to
request the instruction did not result from a tactical decision on
his part.  It was, however, clearly a tactical decision not to
argue the requirement of accomplice corroboration, for which
counsel thought he had requested an instruction, to the jury. 
Given that tactical decision, it cannot be said that the result of
the trial would have been different had the instruction been
requested.  Given the stringent standards set by the Strickland
decision, which we have followed consistently, we hold that the
Trial Court clearly erred in granting a new trial.
     Reversed.