Anthony David Smith v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 7, 2002

ANTHONY DAVID SMITH

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-100

APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY, CR 94-85, CR 98-1, HONORABLE WILLIAM A. STOREY, JUDGE

AFFIRMED

Appellant was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. We affirmed the judgment. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37 raising claims of ineffective assistance of counsel. The circuit court conducted a hearing on the petition and denied it, and appellant submits that it erred in doing so. We disagree 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 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.

Thus, a defendant must show first, 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 the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant 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 merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we 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 contends that his trial counsel was ineffective for failing to make a timely objection and motion for a mistrial when the prosecutor allegedly commented on his right to remain silent during opening statement. He argues that his trial counsel's failure to timely object failed to preserve the matter for appellate review on direct appeal.

The prosecutor made the following remarks in his opening statement:

The presentation of this case which you're going to hear about are the events, primarily, of the early morning of the 6th day of October, 1994. And the thing thatyou have to realize is that, from the start of this, Mr. Smith was the only person alive who was present. He's the only person alive who was present on the scene. On that morning, he got an opportunity then and he will get an opportunity in this courtroom, through the tapes and the other evidence we'll introduce, to present what he claims happened.

At the conclusion of the prosecutor's opening statement, appellant's counsel moved for a mistrial on the ground that the remarks amounted to an improper reference to his right to remain silent. The trial judge denied the motion. Appellant raised the denial of the mistrial motion on direct appeal, but we held that the motion was untimely made and thus not preserved for appellate review. Smith, 330 Ark. at 53-54, 953 S.W.2d at 871-72.

The constitutional prohibition against the prosecutor commenting on the right of a defendant to remain silent applies to an opening statement. Caldwell v. State, 319 Ark. 243, 249, 891 S.W.2d 42, 46 (1995). Ineffective assistance of counsel, however, cannot be established merely by showing that some error was made by counsel. Thomas v. State, 330 Ark. at 448, 954 S.W.2d at 258. It is not enough to show that a failure to object prevented an issue from being addressed on appeal since the standard for judging the effectiveness of counsel requires a showing of more than the failure to raise an issue; the petitioner must establish prejudice at trial under Strickland. Huls v. State, 301 Ark. 572, 576, 785 S.W.2d 467, 469 (1990). We have stated that experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor's comments seem more significant to the jury. Sasser v. State, 338 Ark. 375, 391, 993 S.W.2d 901, 910 (1999). Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct. Id.

We cannot say that the circuit court clearly erred in denying relief on this claim. Theprosecutor did not comment on appellant's right to remain silent. Rather, he was conveying what he expected the State's evidence would prove during the course of the trial, including the substance of a taped interview that appellant gave to police that same day. See Smith, 330 Ark. at 53, 953 S.W.2d at 871. Indeed, the circuit court concluded that the taped statement was primarily exculpatory. Appellant has not shown that decision to be in clear error, and more importantly, he has not shown that he would have prevailed on this issue on direct appeal if his counsel had preserved it for review by timely objecting at trial. Unless a petitioner can demonstrate actual prejudice so serious as to deprive him of a fair trial, he has not proven his counsel's performance ineffective. Huls, supra. Consequently, Rule 37 relief is not warranted.

Appellant next contends that his trial counsel was ineffective for failing to call Dr. Fred J. Svendsen as a witness. He asserts that Dr. Svendsen's testimony would have contradicted the testimony of the medical examiner concerning the victim's cause of death, and that his testimony would have affected the outcome of his trial.

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. Noel, 342 Ark. at 42, 26 S.W.3d at 128. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. When assessing counsel's decision not to call a particular witness, we must take 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 beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Id. at 43, 26 S.W.3d at 128.

Appellant has not shown that counsel was deficient for not calling Dr. Svendsen or that his defense was prejudiced by the absence of Dr. Svendsen's testimony. Appellant's allegation on its face illustrates a dispute as to the effect the alleged witness would have had on the State's case andthe credibility of the medical examiner. The jury was not required to resolve any credibility dispute in appellant's favor even if his trial counsel would have presented Dr. Svendsen. See Arnett v. State, 342 Ark. 66, 73, 27 S.W.3d 721, 724 (2000). Additionally, appellant has not shown how Dr. Svendsen's contradictory testimony would have changed the outcome of his trial, especially in light of Dr. Svendsen's admission at the Rule 37 hearing that he lacked credentials in forensic pathology. Absent a showing of prejudice, we affirm the denial of postconviction relief.

Appellant's final claim is that his trial counsel was ineffective in failing to call him to the stand to testify in his own behalf. He contends that the jury expected him to testify after hearing the prosecutor's remarks during opening statement, and that he had nothing to lose and everything to gain by testifying.

The accused has the right to choose whether to testify in his own behalf. Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000). Counsel may only advise the accused in making the decision. Id. The decision to testify is purely one of strategy. Id. When a petitioner fails to show what the omitted testimony was and how it could have changed the outcome, we will not grant postconviction relief for ineffective assistance of counsel. Pyle v. State, 340 Ark. 53, 64-65, 8 S.W.3d 491, 499 (2000). Here, appellant fails to allege what his testimony would have been or how it would have changed the outcome of his trial. He acknowledged at his Rule 37 hearing, however, that his testimony would not have differed from that contained on his taped statement to the police in which he denied murdering the victim. Considering appellant's admission that his testimony would have been merely cumulative of his taped statement, he has failed to demonstrate that there is a reasonable probability that, but for his counsel's failure to call him as a witness in his own behalf, the jury would have reached a different result, namely, not convicting him of the capital murder of his wife and sentencing him to life imprisonment without parole.

Affirmed.