Michael A. Davis v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 31, 2002

MICHAEL A. DAVIS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-57

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 98-28, HONORABLE JOHN LANGSTON, JUDGE

AFFIRMED

Appellant was convicted of aggravated robbery, kidnapping, and theft of property valued in excess of $2,500.00. He was sentenced as a habitual offender to consecutive sentences of thirty years', life, and ten years' imprisonment, respectively. We affirmed. Davis v. State, CR 98-1180 (Ark. Apr. 13, 2000). Appellant filed in the trial court a timely pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging the following three claims of ineffective assistance of counsel: (1) counsel was ineffective for failing to object to John Frawley's testimony as hearsay and for failing to raise the issue in the directed-verdict motion; (2) counsel was ineffective for failing to object to the admission into evidence of telephone records involving the victim; and (3) counsel was ineffective for improperly filing a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967). The circuit court denied the petition and from that order comes this appeal.

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 of counsel cannot be established by a mere showing of error by counsel or by revealing that counsel's failure to object prevented an issue from being addressed on appeal. 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.

Appellant's first claim of ineffectiveness is that counsel failed to object to Frawley'stestimony as hearsay and to raise the issue in the directed verdict motion. Appellant also claims that Frawley perjured himself. However, in its order denying appellant's petition, the circuit court only ruled on the hearsay claim; therefore, the remainder of appellant's claims are procedurally barred. We have repeatedly said that failure to obtain a ruling on a Rule 37 issue at the trial court level precludes review on appeal. Matthews v. State, 333 Ark. 701, 705, 970 S.W.2d 289, 292 (1998). Frawley testified at trial that appellant told him that he and another individual took a woman from Park Plaza Mall and drove her to several ATM machines in an attempt to get money. According to Frawley, appellant told him that he was armed with a gun and had threatened the woman. Frawley testified that appellant told him that when he and the other individual were unsuccessful at the ATM machines, they took jewelry and six or seven hundred dollars from the woman's purse. They then drove her to Colonel Glenn Road or somewhere in the country where the other individual made her get out of the car, tied her up and left her. Frawley further testified that appellant told him that the only evidence the police had on him was a phone call he made to his house using the victim's cellular telephone.

The circuit court held that an objection to this testimony would not have been sustained because Frawley's testimony was a statement against interest and admissible as an exception to the hearsay rule. Therefore, counsel's performance was not ineffective. Although we agree that counsel's performance does not meet the standard set forth in Strickland, we disagree with the court's finding that Frawley's testimony was hearsay.

Frawley's testimony qualifies as an admission by a party-opponent under Ark. R. Evid. 801(d)(2)(i), which states that a statement is not hearsay if "[t]he statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity." Because there was no basis for a hearsay objection, appellant has failed to make a showing of ineffectiveness.

Appellant's second claim is that counsel was ineffective for failing to object to the admission into evidence of the victim's cellular telephone records and the telephone records of appellant's mother. At trial, evidence was shown that a telephone call was made from the victim's cellular telephone to appellant's mother's phone the night of the kidnapping. However, on appeal, appellant changes his claim to argue that counsel should have raised the issue that Ms. Rona Moody, Records Custodian for Southwestern Bell Wireless, stated that the telephone call placed to 501-372-3655 that night came from 501-860-1702, while the victim testified that her cellular number was 501-860-1072.1 There is a difference between arguing counsel's failure to preserve the relevancy issue by failing to object to the introduction of the telephone records and the argument on appeal that counsel failed to raise the issue of the discrepancy between the phone numbers.

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). Because appellant failed to raise the issue below, we cannot reach the merits of his argument. In his petition, appellant also claimed that his attorney was ineffective for allowing the State to elicit testimony from Todd Armstrong; however, appellant appears to have abandoned this argument on appeal.

Appellant's third claim is that counsel was ineffective for filing a no-merit brief in appellant's direct appeal. Pursuant to Anders and Ark. Sup. Ct. R. 4-3(i)(l)(1998), counsel filed a no-merit brief addressing each adverse ruling and why each ruling was not reversible error. This court agreed with counsel that the appeal had no merit. Davis, supra. The decision to file an Anders brief is a matter of professional judgment. It is counsel, not the appellant, who must decide whetherthere are meritorious issues to appeal. Dudley v. State, 285 Ark. 160, 163, 685 S.W.2d 170, 172 (1985). Therefore, appellant makes no showing of ineffectiveness as required by Strickland.

Appellant also claims that the trial court erred by failing to entertain his motion to amend his Rule 37 petition. It was, however, appellant's burden to obtain a ruling on his motion. As stated previously, failure by appellant to obtain a ruling by the trial court precludes review on appeal. Matthews, supra. Accordingly, the claim is procedurally barred.

Finally, appellant claims that the trial court erred by failing to address part of the first claim asserted in his petition. Again, it is appellant's burden to obtain a ruling below, and failure to do so precludes review on appeal. Id. Accordingly, these claims are also barred.

Affirmed.

1 In its brief, the State argues that the discrepancy was due to either a transcription error by the court reporter or a misstatement by Ms. Moody. State's Exhibit 2, the cellular telephone record, reflects that the number referenced on the document is 501-860-1072 and that the number belonged to the victim.