Austin Eugene Salley v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 20, 2001

AUSTIN EUGENE SALLEY,

APPELLANT,

VS.

STATE OF ARKANSAS,

APPELLEE,

CR 00-304

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION, NO. CR 89-1810, HON. MARION

HUMPHREY, JUDGE

AFFIRMED.

Appellant Austin Eugene Salley was convicted by a jury in the Pulaski County Circuit Court of attempted capital murder and was sentenced to a term of sixty years' imprisonment. This court affirmed his conviction and sentence in Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Thereafter, Appellant sought habeas corpus relief in federal court pursuant to 28 U.S.C. § 2254. As a result, the federal district court issued a conditional writ of habeas corpus providing for issuance of a writ within 120 days unless Appellant was allowed to seek postconviction relief in state court.1

Appellant then filed a motion for a new trial, alleging that he did not receive effective assistance of counsel. Specifically, he alleged that he was denied his Sixth Amendment right toeffective assistance of counsel because he had an acrimonious relationship with his appointed counsel. Appellant contended that the trial court should have appointed another attorney to replace his counsel, and that his counsel should have advocated such a substitution. In addition, Appellant alleged that his counsel performed deficiently during the trial by failing to put forth an alibi defense; by not vigorously cross-examining the state's witnesses; by not interviewing an eyewitness; and, by not challenging identification testimony of two of the State's witnesses. Following a hearing, the trial court denied Appellant's motion for a new trial, finding that Appellant had not met the burden of proof for ineffective assistance of counsel. This court reversed the order of the trial court and remanded the matter with instructions for the trial court to enter written findings of fact and conclusions of law. Again, the trial court denied Appellant's motion. From that order, comes the instant appeal.

Appellant first alleges that he was denied effective assistance of counsel because the relationship between him and his appointed counsel suffered such a severe breakdown that the trial court was required to act as a mediator between the two, and instead the trial court should have appointed new counsel to represent him. Appellant argues that he is not required to establish prejudice, as required in Strickland v. Washington, 466 U.S. 668 (1984), because prejudice is presumed when a defendant is denied counsel, either actually or constructively. Appellant's argument on this point fails.

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 mustshow 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.

Strickland, 466 U.S. 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. Stated differently, the Strickland court held that actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id.

In reviewing the 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, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant 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, 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.

We must first address Appellant's assertion that he was constructively denied the effective assistance of counsel. Appellant relies on Wheat v. United States, 486 U.S. 153 (1988), for theproposition that the Sixth Amendment favors a defendant's right to counsel of choice. Appellant, however, misconstrues the Court's holding in Wheat. There, the Court held that Wheat was not entitled to substitute counsel who also represented a co-defendant. Id. at 158-64. The Court went on to state that the district court's refusal to allow the co-defendant's counsel to represent Wheat did not violate the Sixth Amendment's presumption in favor of counsel of choice. Id. Similarly, this court has held that the right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. See Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995); Burns v. State, 300 Ark. 469, 780 S.W2d (1989).

As to Appellant's allegation that his relationship with counsel deteriorated so much that the trial court had to act as a mediator, thus jeopardizing the confidentiality of the lawyer-client relationship, it is unsupported by the record before us. The Supreme Court in Morris v. Slappy, 461 U.S. 1 (1982), held that the Sixth Amendment does not guarantee that an appointed attorney establish an exemplary rapport with the accused, nor does it guarantee an accused a "meaningful attorney-client relationship." The only evidence Appellant submits in support of this contention is an incident that occurred during a pretrial hearing in which the court asked why Appellant was handcuffed, and the bailiff replied that Appellant had become violent and threatened his attorney. The record does not reveal any instance in which the trial court acted as a mediator between Appellant and his counsel with regard to trial strategy or privileged communications.

Appellant's counsel testified that while Appellant was generally unhappy about his situation, their relationship was not particularly volatile, and Appellant did participate in the preparation of his defense. His counsel also testified that his records showed that he spent fifty-hours preparing for Appellant's trial and that he met with Appellant on several occasions to discuss his defense. Itis true that Appellant attempted to discharge his appointed counsel and request substituted counsel several times. The record reflects, however, that eight days before trial, Appellant expressly consented to proceed to trial with his current counsel. Because Appellant has failed to establish that he was constructively, or otherwise, denied the effective assistance of counsel, it is unnecessary to determine whether prejudice is presumed in this instance.

In the alternative, Appellant alleges that he was denied effective assistance of counsel because his attorney was actually ineffective in his representation of Appellant at trial. Specifically, Appellant contends that his counsel conceded that he was present at the scene of the shooting during opening statements; counsel failed to challenge the reliability of police identification of Appellant as the shooter during cross-examination; counsel argued to the jury to find Appellant guilty of a lesser crime during closing arguments; and counsel should have called his alibi witnesses, despite their inability to remember where Appellant was on the evening of the shooting, to testify that Appellant was intoxicated, thus casting doubt on the State's theory of Appellant's physical actions on the night of the shooting.

First, we note that Appellant failed to raise any argument below regarding his counsel's failure to call witnesses to testify about his intoxication. We, therefore, will not consider this claim because it is raised for the first time in this appeal. Miner v. State, 342 Ark. 283, 288, 28 S.W.3d 280, 283 (2000).

Appellant's next allegation that his counsel was ineffective during opening and closing arguments, as well as in cross-examining the state's witnesses is also without merit. As the trial court correctly pointed out, these matters are ones of trial strategy and tactics. This court has routinely held that matters of trial strategy and tactics, even if proven to be unwise, are not grounds for postconviction relief. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State,325 Ark. 140, 924 S.W.2d 239 (1996). Moreover, a review of counsel's opening argument reveals that counsel's argument was actually that the jury would be responsible for determining whether or not the State proved beyond a reasonable doubt that Appellant was the man who did the shooting. Counsel never conceded that Appellant was at the scene of the shooting. Likewise, counsel never argued to the jurors that they should send Appellant to prison. Counsel simply argued that the jury was required to review the evidence regarding intent and apply the appropriate law. In sum, Appellant has failed to present any evidence in support of his allegation that his appointed counsel performed deficiently at trial.

Affirmed.

1 At the time of Appellant's conviction in 1990, Ar. R. Cr. P. 37 had been abolished and replaced with Rule 36.4. Rule 36.4 required that a defendant who wished to raise a claim of ineffective assistance of counsel do so in a motion for a new trial within thirty days of the date of the judgment.