Derek C. Coleman v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 11, 2001

DEREK C. COLEMAN

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-414

AN APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY,

NO. CR 91-916

HONORABLE CHARLES DAVID BURNETT,

CIRCUIT JUDGE

AFFIRMED

In 1992, appellant was convicted by a jury of murder in the first degree in the Crittenden County Circuit Court. He was sentenced to life in prison. We affirmed the appellant's conviction and sentence in Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). Appellant subsequently filed a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37, which the trial court denied without a hearing. Finding that the court's order was not in compliance with Rule 37.3(a), we reversed and remanded the case to the trial court for written findings as required by Rule 37.3(a) and an evidentiary hearing, if deemed necessary, to make such findings. See Coleman v. State, CR 96-883 (Ark. June 30, 1997). Upon remand, the circuit court appointed Coleman counsel, held a hearing on his claims, and entered an order. Coleman appealed the order, and we reversed and remanded once again for findings in compliance with the rules, specifically, Rule 37.3(c). See Coleman v. State, CR 98-224 (Ark.Sept. 16, 1999). Upon remand, the trial court again denied appellant's petition and entered a five page order which included findings of fact and conclusions of law on each of appellant's allegations. In this appeal, Coleman submits three points of error by the trial court in denying relief. We find no error and affirm.

Ineffective Assistance of Counsel

Appellant asserts two points on appeal alleging ineffective assistance of counsel. The United States Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (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.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," and second, that the errors "actually had an adverse effect on the defense." Id. at 688, 693.

In reviewing a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (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 as to the defendant's guilt in that the decision reached would have beendifferent absent the errors. See id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. See 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. See Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997) (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. See Noel, supra. Finally, we have long held that a party appearing pro se receives no special consideration on appeal. See Brown v. Arkansas Dep't of Correction, 339 Ark. 458, 6 S.W.3d 102 (1999).

Appellant first claims that his trial counsel was ineffective in failing to file a motion to suppress an incriminating custodial statement by the appellant on the basis that he was deceived by an investigator into believing that his cooperation might lead to a lesser charge. At the Rule 37 hearing, appellant's trial counsel testified that if he decided not to file a motion to suppress the statement, his reason would have been that there was no reasonable basis upon which he could "sign [his] name to a pleading setting forth that [he] had a good faith belief that it was a meritorious motion." The trial court correctly denied relief on this claim. Even where counsel could have made a meritorious motion to suppress, the judgment must stand, unless the petitioner demonstrates that the failure to file the motion had a prejudicial effect on the outcome of the trial. See Wilburn v. State, 292 Ark. 416, 730 S.W.2d 491 (1987) (citing Strickland v. Washington, supra). Here, we find no basis for concluding that counsel was ineffective for failingto file a motion to suppress. Ulysses Taylor testified at trial that he had known the appellant "all of [his] life" and that he was positive that he saw Coleman come out of the bathroom of his establishment, walk over to where the fight was taking place, reach over the crowd, and shoot the pistol. Denise Gaines also testified that she was positive that she saw the appellant shoot the victim that evening. Deborah Gaines, Denise's sister, also stated that she was positive that she saw Coleman shoot the victim as well. Finally, the appellant himself testified that while at Big Daddy's, after returning from the bathroom, he saw a big crowd, made his way in that direction, tripped, fell, and saw a pistol which he picked up and held, and which discharged while he was holding it. Moreover, the custodial statement itself reveals that the appellant and his father voluntarily went to the police station, where appellant was advised of his rights, acknowledged that he understood those rights, signed a form acknowledging the same, and then provided his statement. Accordingly, it appears to this court that a motion to suppress would not have been meritorious. Appellant's trial counsel cannot be ineffective in failing to make an argument which has no merit. See Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). Furthermore, even if the appellant has demonstrated that his trial counsel performed deficiently, he has failed to show that he was prejudiced by the deficient performance such that but for counsel's error, the jury would have had a reasonable doubt as to his guilt.

Appellant next asserts that his trial counsel was ineffective for not requesting an omnibus hearing in an attempt to suppress his statement to police. This is essentially the same claim as the one above. Again, because Coleman has failed to establish that there was a reasonable probability that the outcome of the trial would have been different had the motion to suppress been made,he has failed to demonstrate that counsel was ineffective.

Circuit Court's Compliance with Ark. R. Crim. P. 37.3(c)

In his final allegation, Coleman asserts error to the circuit court's failure to make written findings in accordance with Arkansas Rule of Criminal Procedure 37.3(c). Rule 37.3(c) provides that where a Rule 37 petition is filed in the circuit court and a hearing is held, the court "shall determine the issues and make written findings of fact and conclusions of law with respect thereto." Here, the court issued a five page order which set out the Strickland standard for determining ineffective assistance claims and thoroughly detailed each of the appellant's claims in his original petition. The court cited to the testimony presented at the postconviction hearing and made specific written findings as to each claim. Thus, appellant's final assertion is without merit.

Affirmed.