Timothy D. Casey v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

October 25, 2001

TIMOTHY D. CASEY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-410

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-2360 HONORABLE JOHN LANGSTON , JUDGE

AFFIRMED

Appellant was convicted of first-degree murder for the death of his wife, Jacquelyn Casey. He was adjudged to be an habitual offender and received a sentence of ninety years' imprisonment. The conviction was affirmed by the Arkansas Court of Appeals in an unpublished opinion. Casey v. State, CA CR 98-501 (Ark. App. April 14, 1999). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37 alleging ineffective assistance of counsel. A hearing was held, following which the circuit court denied the petition as without merit. It is from this denial that appellant now brings his appeal. We decline to reach the merits of three of appellant's five points, because he has failed to produce a record on appeal sufficient to demonstrate error. We affirm the circuit court's findings on the remaining two points.

Appellant's first three points on appeal involve the alleged failure of trial counsel to investigate and present facts provided by three persons, two of whom were not called as witnesses. These individuals were identified as: Ms. Sheila Newsom, Ms. Thrasher, and Mr. Ed Fletcher. First, appellant claims that trial counsel should have questioned Ms. Newsom about a statement she made to the North Little Rock Police regarding appellant's alleged innocence. However, we cannot rule on the merits of this issue, because appellant failed to abstract Ms. Newsom's trial testimony.

Arkansas Supreme Court Rule 4-2(a)(6) requires an appellant to include an abstract of the record consisting of the material parts of the record that are necessary to an understanding of the questions presented for decision. It is the appellant's burden to produce a record sufficient to demonstrate error. Johnson v. State, 342 Ark. 357, 361, 28 S.W.3d 286, 288 (2000).

A court considering a claim of ineffective assistance of counsel must view the claim through the perspective of the totality of the evidence put before the jury. Matthews v. State, 333 Ark. 701, 705-06, 970 S.W.2d 289, 292 (1998)(per curiam), reh'g denied, 333 Ark. 701, 975 S.W.2d 836. An abstract of Ms. Newsom's trial testimony is needed to evaluate claims of ineffective assistance of counsel according to the "cause and prejudice" test in Strickland v. Washington, 466 U.S. 668 (1984). See Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998). We have noted that with only one record on appeal and seven justices, it is essential that the material parts of the record be abstracted. Huddleston v. State, 339 Ark. 266, 273, 5 S.W.3d 46, 50-51 (1999). We will not explore the record for prejudicial error. Owens v. State, 325 Ark. 93, 94, 924 S.W.2d 459, 459 (1996). Accordingly, appellant's failure to abstract Ms. Newsom's testimony precludes this Court from considering this point. Watson v. State, 329 Ark. 511, 512, 951 S.W.2d 304, 305 (1997).

Appellant further claims that trial counsel failed to call Ms. Thrasher to testify that she had knowledge that the appellant's wife had been seen alive after her disappearance. The trial judge held this testimony to be inadmissible hearsay. The information Ms. Thrasher allegedly obtainedregarding the victim was from an unknown man, and the origin of the information was not known nor was his motive. Further, trial counsel testified at the hearing that he attempted to locate Ms. Thrasher but was unsuccessful.

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 v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Under Strickland, when a convicted defendant complains of ineffective assistance of counsel, he must first show that counsel's performance "fell below an objective standard of reasonableness," id at 688, and second, that counsel's errors "actually had an adverse effect on the defense." Id. at 693. There must be shown a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Noel, supra. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. Id. When assessing trial 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. Failing to call a witness that could not be located and whose testimony would have been precluded as hearsay, cannot be adjudged ineffective assistance.

Even if Ms. Thrasher had been located and called to testify, appellant makes no showing that the outcome of the trial would have been different, for there is no showing of prejudice. In addition to the confession made by the defendant to two individuals, there was sufficient evidence introduced at trial to convict the appellant, including testimony that the appellant and the victim engaged in a physical altercation the night she disappeared. There was also testimony that the appellant gaveconflicting stories about the night of the disappearance and asked another individual how long it would take for a body to float to the top of water. The victim's body was found in a rock pit filled with water, dressed in the same clothes she was wearing the night she disappeared. Finally, the autopsy findings were consistent with strangulation. We find that there was sufficient evidence to convict the appellant; therefore, he is unable to satisfy the "prejudice" requirement of Strickland. The third witness addressed in appellant's argument is Mr. Ed Fletcher. As mentioned, trial counsel's decision not to call a particular witness 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. Noel, supra. Trial counsel chose not to call Mr. Fletcher, because in his professional opinion, Mr. Fletcher was hostile toward the appellant. Therefore, this argument is without merit.

Appellant's fourth point deals with trial counsel's failure to remove a juror during voir dire. We cannot rule on the merits of this issue, because appellant failed to abstract what this particular juror said during voir dire. An abstract of the exchange between trial counsel and the juror is needed to evaluate claims for ineffective assistance of counsel according to the "cause and prejudice" test in Strickland. This is a critical part of the record, without which we cannot reach the merits of appellant's claim. Watson, supra.

Appellant's fifth point is whether counsel was ineffective in failing to request a jury instruction. We cannot rule on the merits of this issue, because appellant failed to abstract the jury instructions. Without an abstract of the jury instructions, we are unable to determine what the jury heard and whether the instruction was warranted. Accordingly, appellant's failure to abstract a critical document precludes this Court from considering issues concerning it. Watson, supra.

Affirmed.