Kevin Allen v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 11, 2002

KEVIN ALLEN

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-547

APPEAL FROM THE CIRCUIT COURT OF GRANT COUNTY, NO. CR 98-36-1, HONORABLE JOHN W. COLE, JUDGE

AFFIRMED

Appellant was convicted of two counts of felony theft of property and one count of breaking or entering and was sentenced to a total of thirty years' imprisonment. The Arkansas Court of Appeals affirmed his convictions in an unpublished opinion. Allen v. State, CACR 99-390 (Ark. App. Dec. 15, 1999). Appellant subsequently filed in the trial court a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, raising several claims of ineffective assistance of counsel. He later filed an amended petition also raising a claim of ineffective assistance of counsel.

The trial court held a hearing and denied appellant's petition. From that order comes this appeal. On appeal, appellant's sole point for reversal is that the circuit court erred in finding that his trial counsel's failure to request an instruction pursuant to AMCI 2d 403 stating that he could not be convicted solely on the uncorroborated testimony of an accomplice did not constituteineffective assistance of counsel . We find no error and affirm the court's denial of appellant's petition.

The 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 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.

According to appellant, his counsel was ineffective for not requesting an "accomplice instruction." Appellant alleges that had the instruction been given, he would have been acquitted or, if convicted, the convictions would have been reversed on appeal. However, there is no merit to appellant's argument as counsel's decision not to request the instruction was a matter of trial strategy.

In State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998), the defendant was charged with capital murder and proceeded with the defense that the State had failed to prove his participation in the crime. Slocum sought postconviction relief, claiming that his trial counsel was ineffective for failing to request an "accomplice instruction." We held that counsel was not ineffective under Strickland because his decision was a matter of trial strategy. Id. at 213, 964 S.W.2d at 391.

In the present case, appellant maintained his innocence and gave counsel the names of several alibi witnesses who later testified at trial. According to counsel, presenting an "accomplice-corroboration defense" would have been inconsistent with appellant's denial of guilt. Again, counsel's decision to pursue one defense over another was a matter of trial strategy. Id.

Finally, there was sufficient evidence to support appellant's convictions. At trial, appellant's codefendent, Johnny Rea Miller, testified that he and appellant "stole a tool box and two water hoses at one place" and later a four-wheeler, four rod and reels, a gas tank, and rope from the residence of Billy Smith.

According to Lance Smith, Smith's fifteen-year old son, he heard his dogs barking that night and when he went to investigate, he saw a white male who appeared to be tying his four-wheeler to a truck. The boy made a positive in-court identification of appellant as the person he saw stealingthe four-wheeler; therefore, there was sufficient evidence to convict appellant. See Davis v. State, 284 Ark. 557, 559, 683 S.W.2d 926, 928 (1985) (affirming a robbery conviction based solely upon a store manager's testimony that the accused was the person who had robbed the store). Appellant makes no showing of ineffectiveness under the standard set forth in Strickland. Counsel's decision not to request the instruction was a matter of trial strategy, and appellant suffered no prejudice as a result of the decision. Accordingly, we cannot say that the circuit court erred in denying appellant's petition.

Affirmed.