Charles Bernard West v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 20, 2001

CHARLES BERNARD WEST

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-932

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-4109 HONORABLE JOHN LANGSTON, JUDGE

AFFIRMED

Appellant was convicted of aggravated robbery and second-degree battery. The jury deadlocked on sentencing; therefore, the circuit court sentenced appellant to fifteen years' imprisonment for aggravated robbery and six years' imprisonment for second-degree battery, to be served consecutively. On direct appeal, the Arkansas Court of Appeals affirmed appellant's convictions in an unpublished opinion. West v. State, CACR 98-1405 (Ark. App. Sept. 1, 1999). Appellant then filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging ineffective assistance of counsel. A hearing was held, and the circuit court denied appellant's petition. Appellant now brings this appeal, submitting that the circuit court erred in denying appellant's petition. 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 a 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 first show 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, we must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (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 cannot be established by a mere showing of error by counsel. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must 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, supra.

As noted by the circuit court, Detective Rusty King, Little Rock Police Department, testified at the evidentiary hearing that he was told by the victim, Nebraska Draughter, that Draughter hadbeen robbed and beaten by two black males and possibly a black female. During the altercation, Draughter shot one of the assailants with a .22 caliber pistol near the buttocks. Based on this information, King notified local emergency rooms to be on the lookout for a black male with such a wound. King was notified by the UAMS Emergency Room that they had admitted an individual matching the police description. King made contact with appellant at the hospital and questioned him regarding the gunshot wound. Appellant told King that the wound was a result of a drive-by shooting but later admitted that was not true. King testified that he was told by the nurse at UAMS that appellant was brought to the hospital by a black male and black female. Based on this information, King arrested appellant and took him to the Little Rock Police Department. Upon their arrival, appellant was advised of his Miranda rights, following which appellant gave the incriminating statement that was used against him at trial.

Appellant claims that trial counsel was ineffective for failing to file a motion to suppress appellant's statement, which he claims was taken in violation of Ark. R. Crim. P. 2.3. According to appellant, he was not advised that he was under arrest at the time he was questioned by King at the hospital. Appellant argues that since he was not so advised, his incriminating statement should have been suppressed. The circuit court found that King had sufficient probable cause to effect the arrest of appellant, and because appellant's subsequent statement would not have been suppressed had a motion been filed by trial counsel, his performance was not ineffective. We find no error and affirm.

Appellant admitted at the hearing on his petition that he was handcuffed at the hospital and escorted to the police station, believing he was under arrest. Further, trial counsel testified that appellant stood by the truthfulness of his statement because he believed it provided him a defense. According to trial counsel, after reviewing the case file, he concluded that appellant was under arrestwhen he gave the statement. This, along with appellant's belief that his statement provided a defense, convinced trial counsel not to file a motion to suppress.

Issues of trial strategy and tactics are a matter of professional judgment and are not grounds for a claim of ineffective assistance of counsel. Noel, 342 Ark. at 41, 26 S.W.3d at 127. Therefore, the decision not to file a motion to suppress does not satisfy the "deficiency" prong of Strickland. In addition, appellant makes no showing that the outcome of his trial would have been different had trial counsel filed a motion to suppress. This court has held:

The purpose of Rule 37 is not to debate the possible effect of counsel's conduct but to provide a remedy when a petitioner has suffered actual prejudice. Brents v. State, 285 Ark. 199, 686 S.W.2d 395 (1985). The burden is on the petitioner to provide facts to support his claims of prejudice. Jones v. State, 283 Ark. 363, 767 S.W.2d 738 (1984).

Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001). The evidence presented would not have supported a motion to suppress when taking into consideration: the victim's statements describing his attackers, the admission of appellant shortly after the attack to the hospital for a wound similar to that described by the victim to the police, the presence at the hospital of the black male and black female who brought appellant to the emergency room, and appellant's own admission that he was arrested and Mirandized before giving his statement. Clearly, there was sufficient probable cause to effect the arrest of appellant. Appellant's statement was properly introduced at trial, and a motion to suppress would not have been successful. Because appellant fails to satisfy the requirements of Strickland, we affirm the circuit court's finding that the petition is without merit.

As for appellant's claim that trial counsel did not properly prepare for trial, this claim was not raised below and should not be considered on appeal. It is well settled that we will not address arguments raised for the first time on appeal. Miner v. State, 342 Ark. 283, 288, 28 S.W.3d 280, 283(2000).

Affirmed.

Imber, J., not participating.