Elgin Gregory King v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 14, 2002

ELGIN GREGORY KING

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-315

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 93-2979, HONORABLE DAVID B. BOGARD, JUDGE

AFFIRMED

Appellant was convicted in his second jury trial of first-degree murder and sentenced to sixty years' imprisonment. This court affirmed. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999). Appellant filed a timely pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37, asserting various claims, most of which alleged ineffective assistance of counsel. The circuit court denied appellant's petition and from that order comes this appeal. We find no error 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 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.

For his first point on appeal, appellant claims that the trial court's denial of his motion for a continuance rendered counsel's performance ineffective. It appears that appellant is arguing not that counsel failed to move for a continuance but that he failed to obtain a favorable ruling on the motion that he did make. Regardless, we are unable to consider the merits of this argument because appellant has failed to abstract the trial record.

Arkansas Supreme Court Rule 4-2(a)(6) requires an appellant to include an abstract of the record consisting of the material parts of the record that are necessary to an understanding of the questions presented for decision.1 The abstracting requirement applies to those appellants who proceed pro se. Jackson v. State, 316 Ark. 509, 510, 872 S.W.2d 400, 400 (1994). It is the appellant's burden to produce a record sufficient to demonstrate error. Johnson v. State, 342 Ark. 357, 361, 28 S.W.3d 286, 288 (2000). With the exception of material included in the addendum, the record on appeal is confined to that which is abstracted. Huddleston v. State, 339 Ark. 266, 273, 5 S.W.3d 46, 50-51 (1999). We will not explore the record for prejudicial error. Owens v. State, 325 Ark. 93, 94, 924 S.W.2d 459, 459 (1996).

A court considering a claim of ineffectiveness must consider the totality of the evidence before the factfinder. Matthews v. State, 333 Ark. 701, 705-A, 970 S.W.2d 289, 292 (1998). An abstract of the trial record is needed to evaluate claims of ineffective assistance of counsel according to the "cause and prejudice" test in Strickland. See Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998). Failure to abstract the trial record precludes review on appeal. Matthews, supra.

Appellant's second point on appeal is that counsel was ineffective for failing to subpoena Lewis "Hatbox" Hattison and Angela Robertson to testify at trial. Again, appellant has failed to abstract the trial record, which is necessary for appellate review. Id. Accordingly, the circuit court's order denying appellant's petition is affirmed.

Affirmed.

1 Cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System -- Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, Ark. Appx. __, __ S.W.3d __ (2001) (per curiam). The record in the instant case was filed before September 1, 2001.