William E. Davis v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-953

NOT DESIGNATED FOR PUBLICATION

WILLIAM E. DAVIS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered April 14, 2005

APPEAL FROM THE CIRCUIT COURT OF COLUMBIA COUNTY, CR 2000-38, HON. LARRY W. CHANDLER, JUDGE

AFFIRMED

PER CURIAM

William Davis was convicted of capital murder in Columbia County Circuit Court and sentenced to life imprisonment without parole. Davis appealed that conviction, and this court affirmed in Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). Davis then filed a pro se petition for postconviction relief. The trial court appointed counsel and held a hearing on the petition on April 22, 2003. In a written order entered May 20, 2003, the trial court denied the petition. Davis brings this appeal from that denial of postconviction relief and raises one point of error, that trial court erred by finding counsel was not ineffective for failing to submit jury instructions for lesser included offenses. We agree with the trial court's findings and affirm.

The State correctly notes in its brief that while appellant has abstracted testimony from the postconviction relief hearing, he failed to provide an abstract of the trial. Appellant must provided an abstract or addendum sufficient to conduct a meaningful review. Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002). Normally, where an appeal from denial of postconviction relief is based upon a claim of ineffective assistance of counsel, an abstract of the trial proceedings would be essential to a meaningful review. In determining a claim of ineffective assistance of counsel, the totality of the evidence before the factfinder must be considered. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). Here, however, as the State asserts, we may affirm without resort to a review of the proceedings at trial.

The trial court's order contains findings that trial counsel had advised his clients, the appellant and his parents, that the court should be requested to provide instructions on lesser included offenses, and, despite that advice, appellant and his parents each admitted to making the decision not to request the instructions. The trial court further found that even had trial counsel recommended no instructions should be requested, the decision would be a matter of trial strategy not subject to postconviction review. These findings by the trial court were based upon evidence received in the postconviction relief hearing. Accordingly, it is unnecessary to review the proceedings at trial.

We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Id. 64, 146 S.W.3d at 876. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002). To prevail on a claim of ineffective assistance of counsel, the claimant must first show that counsel's performance was deficient, with errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and claimant must also show that this deficient performance prejudiced his defense through a showing that petitioner was deprived of a fair trial. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 38, 26 S.W.3d at 125.

At the postconviction relief hearing, trial counsel testified that while he had shared with his clients his belief that providing instructions on lesser included offenses would result in a conviction, and mock trial results bolstered that position, he had recommended including instructions on lesser offenses because of the risk of a potential conviction on the capital charge. Appellant and his parents testified that they believed counsel wanted to pursue the "all or nothing" course of not asking for lesser included offense instructions, and that they did not recall counsel advising against it. Theydid admit to making the ultimate decision on the matter. Appellant and his parents also testified that trial counsel's associate and co-counsel at trial had specifically recommended requesting a conspiracy instruction. Co-counsel testified that counsel had explained to his clients that requesting the instructions was the more conservative approach, and she recalled encouraging them to have the request for the instructions given. Resolving any questions of credibility of witnesses is the prerogative of the trial court. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987). Based on the evidence presented, we cannot say the trial court's findings were clearly erroneous as to trial counsel's advice.

Further, we agree that had counsel recommended against instructions on lesser included offenses, it would not have been an unreasonable strategy to recommend. Provided trial counsel's conduct falls within that wide range of reasonable professional assistance, matters of trial strategy and tactics, even if arguably improvident, and are not grounds for a finding of ineffective assistance of counsel. Noel at 41, 26 S.W.3d at 127. This court has held that as a matter of trial strategy, competent counsel may elect not to request an instruction on lesser included offenses. Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984). By all accounts, trial counsel spent a great deal of time here discussing the issue, and then deferred to his client's ultimate decision. In light of those actions, we find the trial court was not clearly erroneous in holding this was reasonable conduct falling within the boundaries of trial strategy.

Affirmed.