Kelley Christopher v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

October 3, 2002

KELLEY CHRISTOPHER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-445

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-1751, HONORABLE MARION A. HUMPHREY, JUDGE

AFFIRMED

Appellant was convicted of capital murder and sentenced to life imprisonment without parole. This court affirmed on appeal. Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, asserting various claims of ineffective assistance of counsel. A hearing was held, and the trial court denied appellant's petition. Appellant's sole claim on appeal is that the trial co urt erred by denying his claim that counsel was ineffective for failing to renew a directed-verdict motion at the close of all evidence, precluding appellate review.

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 todeprive 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 in 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, counsel precluded a challenge on appeal to the sufficiency of the evidence by failing to renew the directed-verdict motion, even though no evidence was presented on appellant's behalf. The trial record reflects that when the State rested its case-in-chief, appellant's counsel moved for a directed verdict on the basis that the State had not provenpremeditation. The motion was denied. Counsel then rested without presenting any evidence on appellant's behalf, after appellant stated that he did not wish to testify. The jury was instructed, and the trial proceeded.

Appellant's argument fails because renewal of a directed-verdict motion is not required to preserve a sufficiency challenge on appeal when the defense rests without presenting any evidence. See Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). In Robinson, we held that "when a defendant presents no further evidence after a directed verdict motion is made, further reliance on that motion is not waived." Id. at 22-23, 875 S.W.2d at 841. The Arkansas Court of Appeals recently followed the logic of Robinson, holding that a sufficiency argument was preserved for appellate review where, after moving for a directed verdict, the defense rested without presenting any evidence. Chrobak v. State, 75 Ark. App. 281, 287, 58 S.W.3d 387, 390 (2001). The rational being that if the defense presents no additional evidence, the directed-verdict motion made at the close of the State's case-in-chief is also made at the close of all evidence, as required by Ark. R. Crim. P. 33.1(a).

Under the standard set forth in Strickland, appellant has failed to show that counsel's performance was deficient. Because counsel was not required to renew the directed-verdict motion in order to preserve the issue on appeal, his performance was not ineffective. Accordingly, we affirm the trial court's denial of appellant's Rule 37 petition.

Affirmed.