Billy R. Thompson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 10, 2002

BILLY R. THOMPSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-923

APPEAL FROM THE CIRCUIT COURT OF FAULKNER COUNTY, NO. CR 97-595, HONORABLE CHARLES E. CLAWSON, JR., JUDGE

AFFIRMED

Appellant was convicted as a habitual offender of first-degree murder and being a felon in possession of a firearm. He was sentenced to life and thirty years' imprisonment, respectively. This court affirmed appellant's convictions in Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999). Appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, raising claims of ineffective assistance of counsel. Appellant's petition was denied by the circuit court, 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, 342 Ark. at 38, 26 S.W.3d at 125.

Appellant's first claim of ineffectiveness is that trial counsel met with him too infrequently to be prepared for trial and that he failed to "present any case during the guilty [sic] phase of the trial." In denying the petition, the circuit court held that the conduct of trial counsel did not rise to the level of ineffectiveness claimed by appellant.

Appellant's claims are merely conclusory allegations, which cannot be the basis forpostconviction relief. Sasser v. State, 338 Ark. 375, 395, 993 S.W.2d 901, 912 (1999). This court has held that "general assertions that counsel did not meet with the defendant enough, or did not aggressively prepare for trial are not sufficient to establish an ineffective assistance of counsel claim." Thompson v. State, 307 Ark. 492, 495, 821 S.W.2d 37, 39 (1991). Moreover, appellant's claim that trial counsel failed to present a case is an issue of trial strategy and not grounds for a claim of ineffective assistance of counsel. See Noel, 342 Ark. at 41, 26 S.W.3d at 127. We have held:

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. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. State v. Dillard, supra.

Nelson v. State, 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001). Because appellant cannot show deficient performance on the part of trial counsel, he fails to satisfy the first prong of Strickland. Moreover, there was a substantial amount of evidence introduced to convict appellant; therefore, there is no reasonable probability that further investigation or the calling of certain witnesses would have generated a different outcome.

Evidence was presented that appellant made two phone calls to two different people admitting that he shot and killed his wife. The evidence indicated that the shooting took place sometime around 7:00 p.m. but that appellant did not make the first call until after 8:00 p.m. The second call to 9-1-1 was not placed until 8:24, an hour and a half after the shooting occurred. The medical examiner testified that the victim died as a result of a gunshot wound to the left side of herneck. The coroner testified to the same facts and said that the wound was consistent with homicide, not suicide. Evidence was also presented that the murder weapon had been wiped clean and that water observed in the shower by police suggested that appellant had recently bathed. Given the above evidence, appellant has failed to demonstrate that but for counsel's alleged errors, he would not have been convicted.

Appellant goes on to claim that trial counsel failed to view the crime scene or use the investigative services offered by appellant's friend. However, appellant did not raise the issue of the crime scene in his petition, and the circuit court did not rule on the issue. We have repeatedly said that the failure to obtain a ruling on an issue at the trial court level precludes review on appeal. Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998).

As for the claim that trial counsel failed to use investigators, the circuit court found that if there were investigators willing to assist trial counsel on appellant's behalf, they were not made available to him. Further, the investigators did not provide any reports, testimony or other information that would have indicated that appellant was prejudiced by their lack of participation. The circuit court held that trial counsel's decision to call or not to call the investigators was an issue of trial tactics and not grounds for postconviction relief. It is important to note that trial counsel testified that he was neither aware of any free investigator nor did he receive any reports from any investigator. Regardless, this is an issue of trial strategy and not grounds for a claim of ineffective assistance. See Noel, supra.

Appellant also claims that trial counsel failed to move to have the firearm and homicide charges severed. The circuit court held that appellant made no showing that the failure to make the motion was prejudicial; therefore, there was no basis to grant postconviction relief. This court declined to review the severance challenge on direct appeal, because trial counsel did not seekseverance at trial. Thompson, 338 Ark. at 569-70, 999 S.W.2d at 195-96.

The decision to make the motion is one of trial strategy and not grounds for a claim of ineffective assistance. See Noel, supra. Moreover, trial counsel testified at the Rule 37 hearing that appellant did not ask that the two charges be severed. Petitions that state only a conclusion are patently deficient in that there can be no showing of actual prejudice to the petitioner without factual support for the allegation made by him. A showing of actual prejudice is necessary to warrant relief under Rule 37. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992); Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989). Because of the evidence presented, there is no reasonable probability that appellant would have been acquitted of either crime had they been severed.

Appellant's final claim is that trial counsel failed to challenge appellant's status as a habitual offender. The circuit court found that appellant made no showing that the introduction of his prior felonies was improper and that appellant's claim was merely allegation that failed to demonstrate prejudice to appellant. Again, petitions that state only a conclusion are patently deficient in that there can be no showing of actual prejudice to the petitioner without factual support for the allegation made by him. Wainwright, supra.; Spivey, supra.

Affirmed.

Imber, J., not participating.