Andrew Neely, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 28, 2000

ANDREW NEELY, JR.

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-386

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY,

NO. CR-97-1293

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

In 1997, Andrew Neely, Jr., was found guilty of residential burglary and rape and sentenced to 480 months' imprisonment and fined $15,000. The court of appeals affirmed. Neely v. State, CACR 97-1486 (Ark. App. June 17, 1998). Neely subsequently filed in the trial court a timely pro se petition pursuant to Criminal Procedure Rule 37 challenging the judgment. The petition was denied, and the order is on appeal to this court.

First, appellant argues that trial counsel was ineffective for failing to challenge the suggestibility of a pre-trial, photographic identification. We disagree.

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 mustshow 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. Thomas, supra.

The appellant has the burden of proving the lineup procedure was suggestive so as to preclude identification testimony at trial, and the appellate court will not reverse unless the ruling of the trial court was clearly erroneous under the totality of the circumstances. See Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995). Under Arkansas law, a pre-trial identification violates the Due Process Clause of the Fourteenth Amendment when there are suggestive elements in the identification procedure that makes it all but inevitable that the victim will identify one person as the culprit. Wooten v. State, 325 Ark. 510, 518, 931 S.W.2d 408, 412 (1996). An unduly suggestive lineup does not always preclude the admissibility of an in-court identification, if the in-court identification is reliable. See Hayes v. State, 311 Ark. 645. 846 S.W.2d 182 (1993).

Here, appellant has failed to show that the photographic identification was suggestive or that the in-court identification was unreliable. In fact, appellant's abstract fails to include any evidence indicating that the photographic line-up was admitted into evidence or that the victim relied on the photo spread to identify appellant. In addition, appellant admitted that he and the victim hadengaged in sexual acts on the night in question. We subscribe to the principle that the accused has the burden of demonstrating that he was prejudiced by counsel's alleged incompetence and that showing mere errors, omissions or mistakes, improvident strategy or bad tactics will not suffice even to require an evidentiary hearing. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Appellant has simply failed meet his burden of proof that he was prejudiced by counsel's alleged failure to object to a photographic identification by the victim. Thus, we cannot say that the trial court's decision in denying appellant's petition is clearly against the preponderance of the evidence.

For his last point on appeal, appellant argues that the trial court erred in denying his motion to suppress a statement he made to the police. Rule 37 is not a substitute for raising an issue in the trial court, obtaining a ruling, and, if unsuccessful, seeking review of that ruling on appeal. Cigainero v. State, 321 Ark. 533, 906 S.W.2d 282 (1995); Coplen v. State, 298 Ark. 272, 766 S.W.2d 612 (1989); Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Appellant's argument challenging the trial court's ruling is not cognizable under Rule 37, which provides only for a collateral attack on a judgment.

Affirmed.