Charles Whitfield v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 15, 2001

CHARLES WHITFIELD

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-507

AN APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY,

NO. CR-95-161

HONORABLE JOHN FOGLEMAN,

CIRCUIT JUDGE

AFFIRMED

The appellant, Charles Lee Whitfield, was convicted of capital murder and sentenced to life in prison without parole. On May 13, 1998, appellant filed a Rule 37 petition alleging ineffective assistance of counsel. The trial court denied appellant's petition after a hearing. Appellant filed an appeal from the trial court's ruling. Without reaching the merits of appellant's appeal, we remanded this case back to the trial court for specific written findings. Whitfield v. State, CR 99-507 (Ark. November 9, 2000). The trial court complied with our instructions, and this appeal is back before us. Appellant argues that the trial court erred in ruling that counsel was not ineffective for failing to subpoena Cedrick Moon. We disagree and affirm.

Whitfield's conviction arose from an incident that occurred in the detoxification cell at the Blytheville City Jail on April 1, 1995. After he was arrested on a public intoxication charge, Whitfield was placed in the cell with three other inmates, including the victim, Doug Richmond. A short time afterward, the screams of two of the other inmates alerted jailers to an altercationbetween Whitfield and Richmond. When the police arrived, they discovered Whitfield, who was naked from the waist down, kicking Richmond in the head and shouting that Richmond would perform oral sex on him "before he dies." Richmond died of massive head trauma as a result of the attack.

In this appeal, appellant argues that Cedrick Moon would have testified that appellant did not have anything to do with the death of Doug Richmond. Therefore, counsel was ineffective for failing to subpoena this witness.

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. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). When assessing an attorney's decision not to call a particular witness, it must be taken 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 or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Id.

The trial court found that there was no credible evidence that Cedrick Moon was a witness to the death of the victim. The court also noted that Mr. Moon was not even in jail or in the detoxification cell at the time that appellant killed Mr. Richmond. The court concluded that Mr. Moon had been interviewed prior to appellant's trial and that appellant's counsel determined that Mr. Moon had no information that would have assisted appellant's case. We find no error in the trial court's decision. The record clearly shows that Mr. Moon was not in the jail at the time that Mr. Richmond died. In addition, this issue falls within the category of trial strategy which is outside the purview of Rule 37.

Affirmed.