Jacinto Henderson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

December 19, 2002

JACINTO HENDERSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-616

APPEAL FROM THE CIRCUIT COURT OF CRAIGHEAD COUNTY, NO. CR 97-61, HONORABLE SAMUEL TURNER, JR., JUDGE

AFFIRMED

Appellant was convicted of capital murder and sentenced to life imprisonment. We affirmed on appeal. Henderson v. State, 335 Ark. 346, 980 S.W.2d 266 (1998). Appellant then filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. A hearing was held, and the petition was denied. From that order, appellant appealed. However, because appellant did not provide a proper abstract, we ordered a rebriefing. Appellant has complied; however, we find no merit to his claims and affirm the trial court's denial of postconviction relief.

Appellant begins with a general claim of ineffective assistance of counsel, asserting that counsel "did not spend sufficient time in developing his case." Appellant claims that his case was "very complex" and that counsel knew that at the time of the offense, appellant was either "under extreme emotional disturbance or had justification for his act." According to appellant, counsel's conduct "[fell] below the objective standard of competence required of counsel."

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (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 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. 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 at 38, 26 S.W.3d at 125.

According to our holding in Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001):

As with any other claim of ineffective assistance of counsel, a petitioner cannot succeed merely by alleging that counsel was not prepared or did not spend enough time on his case.Rather, he still must show what evidence or witnesses would have been discovered had counsel properly investigated the case and that, but for counsel's lack of preparation, there is a reasonable probability that the outcome of his trial or sentence would have been different.

Id. at 129, 55 S.W.3d at 263. That being said, appellant does go on to suggest more specific claims of ineffectiveness, the first of which is that counsel was ineffective for failing to seek disclosure of the victim's alleged gang affiliation. According to appellant, counsel failed to cross-examine the State's witnesses regarding the victim's alleged gang affiliation and to lay a proper foundation for the admission of expert testimony by Steve Nawojczyk in the area of gang activity. Appellant alleges that such evidence would have supported his justification defense.

Appellant was charged with the capital murder of Byron Sheppard. The State's evidence consisted of a series of eyewitnesses with almost identical accounts of the offense. Appellant and Sheppard got into a fight, and Sheppard struck appellant. Surrounding individuals intervened and broke up the fight. Appellant left the scene and returned some twenty minutes later with a gun. He pointed his gun at Sheppard, Sheppard turned to run, and appellant shot him in the back.

It is well settled that 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, supra at 42, 26 S.W.3d at 128. Trial counsel must use his best judgment to determine which witnesses will be beneficial to his client. Id. When assessing counsel's decision to call a particular witness, we must take into account that the decision is largely a matter of professional judgment, and the fact that a witness or witnesses could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Id. at 43, 26 S.W.3d at 128.

The trial court ruled that appellant could introduce testimony bearing on the victim's alleged gang affiliation and drug involvement in order to lay a proper foundation for the expert's testimony,but in doing so, "the State could rebut such evidence with drug proof of its own that would help the jury decide whether [appellant], having previously engaged in drug trafficking with Sheppard was reasonably justified in using deadly force on Sheppard in these circumstances." Counsel testified at the hearing that he elected, as a matter of strategy, not to expose appellant to potentially damaging rebuttal evidence. Counsel instead chose to proffer testimony that he believed would have provided a proper foundation for the expert's testimony and the actual testimony of the expert, Steve Nawojczyk. Matters of trial strategy fall within the realm of counsel's professional judgment and are outside the purview of Rule 37. Noel, supra at 41, 26 S.W.3d at 127. Because we find no basis for a claim of ineffective assistance of counsel, we affirm the court's ruling below.

Appellant goes on to claim that counsel was ineffective for failing to call an expert witness to establish that appellant acted under extreme emotional disturbance at the time of the offense. At the hearing, Frank Shaw, one of appellant's attorneys, testified that he paid for an evaluation by Dr. Bill Martin. Dr. Martin examined appellant, and the results of the examination, according to Shaw, were of no help and proved to be counterproductive. Based on Dr. Martin's findings, counsel chose not to call him to testify "as a matter of trial strategy." As stated, matters of trial strategy are outside the purview of Rule 37. Noel, supra. Therefore, we affirm the court's ruling below.

Appellant's final claim is that counsel was ineffective for failing to seek the criminal history of the victim pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Rule 17.1(d) of the Arkansas Rules of Criminal Procedure. Appellant's claim is without merit as counsel did seek this information. At a pretrial hearing, counsel for appellant argued that Sheppard's criminal history was relevant to appellant's defense of justification and his alternative claim of extreme emotional disturbance. Counsel argued that Sheppard had prior drug convictions, that appellant knew of the convictions and that appellant believed Sheppard was affiliated with gang activity. The State arguedthat disclosure of the information was not necessary because the defense concerned what appellant knew, and if he knew Sheppard's criminal history, then disclosure was not required. The trial judge ruled, "I'm not going to require [the State] to present this document yet, unless the State puts on evidence to contradict what the defense says." Although the request was denied, counsel did seek disclosure of Sheppard's criminal history. Accordingly, we affirm the court's denial of appellant's Rule 37 petition.

Affirmed.