William C. Thompson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 18, 2001

WILLIAM C. THOMPSON

APPELLANT

VS.

STATE OF ARKANSAS

APPELLEE

CR 00-1

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT, NO. CR95-211,

HON. WILLIAM A. STOREY,

JUDGE

AFFIRMED.

Appellant William C. Thompson was convicted by a jury in the Washington County Circuit Court of delivery of a controlled substance and sentenced to thirty years' imprisonment. Appellant's conviction was affirmed by the Arkansas Court of Appeals. Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Cr. P. 37, raising claims of ineffective assistance of counsel. The circuit court denied the petition without holding a hearing, and this court reversed and remanded the matter due to the circuit court's failure to make written findings. A hearing was subsequently held on the petition, and the trial court again denied the petition. From that order, comes the instant appeal. We find no error and affirm.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," id at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). To rebut this presumption, Appellant 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. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief, unless the lower court's findings are clearly against the preponderance of the evidence. Noel, 342 Ark. at 38, 26 S.W.3d at 125.

Appellant asserts that his trial counsel was ineffective in failing to call a particular witness at his trial to testify in his defense. According to Appellant, Michael Thorns was prepared to testify that Appellant was set up by the drug task force because the informant who bought the drugs fromhim was driven to his apartment by Thorns, not police, as alleged by the State. According to Appellant's trial counsel, he did interview Thorns, but chose not to call him as a witness for several reasons. At the time of Appellant's trial, Thorns, himself, was incarcerated on drug charges. There was also a conflict as to whether Thorns's recollection of events was actually from the night of Appellant's arrest, or another night. Specifically, Thorns stated that he remembered that the evening was clear and dry; yet, it was either raining or snowing on the night of Appellant's arrest. Appellant's counsel also testified at the Rule 37 hearing that he believed it would not be a wise trial strategy to argue that the police had fabricated the drug bust, as well as manufactured a tape recording of the transaction between Appellant and the informant.

It is well settled that the decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Noel, 342 Ark. 35, 26 S.W.3d 123. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. When assessing counsel's decision not to call a particular witness, we must take into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness who could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Id. at 43, 26 S.W.3d at 128.

Appellant has failed to show that counsel was deficient for not calling Thorns as a witness or that his defense was prejudiced by the absence of Thorns's testimony. Appellant's allegation merely illustrates a dispute as to the effect the alleged witness would have had on the state's case and the credibility of the state's witnesses. The jury was not required to resolve any credibility dispute in Appellant's favor, even if his trial counsel would have presented the additional witness. See Arnett v. State, 342 Ark. 66, 73, 27 S.W.3d 721, 724 (2000).

Next, Appellant argues that he was denied effective assistance of counsel during the direct appeal stage because his trial counsel had a conflict of interest. Specifically, Appellant asserts that he expressed dissatisfaction with his counsel's performance at the conclusion of the trial and that counsel did not pursue certain issues on appeal. This argument is without merit.

This court articulated the proper standard for reviewing ineffective-assistance-of-counsel claims due to an alleged conflict of interest in Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995):

Prejudice will be presumed from a conflict of interest only when the defendant demonstrates that an actual conflict of interest adversely affected his lawyer's performance. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). Petitioner had the burden of proving a conflict of interest and showing its adverse effects. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). A petitioner is not entitled to relief under the Cuyler test unless he satisfies both prongs of the test. Salam v. Lockhart, 874 F.2d 525, 527-28 (8th Cir. 1989) (citing Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987), cert. denied 488 U.S. 934, 109 S. Ct. 329, 102 L. Ed. 2d 346 (1988)). The prejudice must be real and have some demonstrable detrimental effect and not merely have some abstract or theoretical effect. Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir. 1990).

Id. at 124, 900 S.W.2d at 944.

Appellant bears the burden of providing factual support to demonstrate that the conflict of interest adversely affected counsel's performance. See Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Here, Appellant asserts that the conflict affected counsel in that he did not raise issues of ineffective assistance on direct appeal, and if new counsel had been appointed at the conclusion of his trial, then those claims could have been pursued. As previously stated, there is no merit to Appellant's assertion that counsel was ineffective at trial; thus, any failure to pursue such assertions on direct appeal did not prejudice Appellant. Accordingly, Appellant's argument on this point fails.

Affirmed.