Sammy O. Smith v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-27

NOT DESIGNATED FOR PUBLICATION

SAMMY O. SMITH

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered February 9, 2006

APPEAL FROM THE CIRCUIT COURT OF DESHA COUNTY, CR 99-108-1, HON. DON EDWARD GLOVER, JUDGE

AFFIRMED

PER CURIAM

A jury found Sammy O. Smith guilty of first-degree murder on September 1, 2000, and sentenced him to forty years' imprisonment in the Arkansas Department of Correction. The court of appeals affirmed the judgment in an unpublished opinion. Smith v. State, CACR 01-218 (Ark. App. October 24, 2001). Smith filed a timely petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied.1 Smith brings this appeal of that order.

Appellant Smith raises two points on appeal, alleging in his first point that trial counsel's failure to object to admission of certain photographs was ineffective assistance of counsel, and because the photos were false evidence, the admission violated appellant's right to due process. Within appellant's first point, he asserts that the admission of the evidence, without any further inquiry as to prejudicial effect, should require reversal, and, alternatively, that the admission of the evidence was not harmless error and undermined confidence in the outcome of the trial. For his second point, appellant alleges that trial counsel was ineffective for failure to call certain witnesses to testify as to the murder weapon's tendency to cause an injury on firing.

To briefly summarize, the evidence presented at trial showed that the victim, David Crabtree, was found shot in the face just outside a motel room in Dumas, Arkansas. According to appellant's ex-wife, Ruth Bottoms, the three were in the room when appellant shot Crabtree and injured her finger with the same bullet. Appellant had arrived at the motel to visit Bottoms after Crabtree. Bottoms was seeing both men, and there was testimony that they had exchanged words before the shooting.

Appellant had been drinking, and Bottoms was in the process of preparing the room for appellant so that he would not have to drive home. After the shooting, Bottoms testified that she ran from the room, told her son, Kevin Watson, what had happened, and then wrapped her bleeding finger in a towel. Watson testified that appellant then walked up and admitted he had shot Crabtree. Watson asked appellant to leave, and Bottoms and appellant then left the motel in appellant's truck.

A defense witness testified that appellant and Bottoms came to his home shortly after the shooting, and that his son helped Bottoms to put a Band-Aid® bandage on her finger. The police stopped appellant's truck shortly after that, and pictures that the investigating officer purportedly took of the interior of the truck were admitted into evidence. Appellant's defense at trial attempted to convince the jury that Bottoms had fired the shot killing Crabtree and that appellant was too drunk to realize what had happened. The defense theory was that Bottoms fired appellant's gun, that the gun pinched her trigger finger to cause the bleeding.

In the order denying postconviction relief, the trial court did not specifically find that two of the pictures introduced were not of appellant's truck, as appellant contends. The court made its decision based upon the determination that even if the pictures were of another vehicle as claimed, there was no prejudice, that the evidence was not substantively material when weighed against the other evidence presented, and that any error was harmless. A close examination of the photographs introduced clearly does show that the two in question are not of the same vehicle as the others, but we would agree that appellant has not shown he was prejudiced by admission of the two exhibits he asserts were false evidence.

This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). 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).

Here, appellant has presented his argument both as a claim of ineffective assistance of counsel, and as a freestanding constitutional claim invoking his right to due process. He first argues that as a constitutional claim, the issue should not turn on a finding of prejudice, and that reversal is warranted here simply because the pictures were admitted. Yet, a showing of prejudice is essential here, as we must first determine whether this claim is cognizable in a postconviction proceedings.

This court has held that even constitutional issues must be raised at trial or on direct appeal, rather than in postconviction relief proceedings. Williams v. State, 346 Ark 54, 56 S.W.3d 360 (2001). It is clear that the issue here could have been raised at trial; appellant was shown the photos at trial and asserts he simply did not look at them closely to notice that they were not of his truck. We have made an exception to the rule in those cases where the errors are so fundamental as to render the judgment of conviction void and subject to collateral attack. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). See also, Kemp v. State, 330 Ark. 757, 956 S.W.2d 860 (1997). The first question, then, is whether appellant has alleged such fundamental error.

Sasser discussed fundamental error in the context of the right to trial by jury and error involving jury instructions. In Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000), we held that double-jeopardy protection is a fundamental right that can be raised as a claim in a proceeding pursuant to Ark. R. Crim. P. 37.1. In Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997), we discussed fundamental or structural rights in the context of what is necessary to overcome the contemporaneous-objection rule. In Goff, we held that the trial judge's entry into the jury room and unrecorded communication with the jury during sentencing deliberations compromised the defendant's fundamental right to be present at a substantial stage in the trial. While there may be some instances of prosecutorial misconduct involving the admission of false evidence that would compromise a defendant's fundamental rights so as to void the conviction, we do not find the circumstances of this case do so.

This court has held that prosecutorial misconduct which was motivated by bad faith and that caused prejudice to the defendant is sufficient to merit a mistrial, and would bar retrial and merit sanctions. See Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002). Appellant does not present any evidence of bad faith, or that either the prosecutor or the police officer who identified the photos when they were introduced into evidence knew or realized that the photos were not of the interior of appellant's truck. While a careful review shows us that these photos are of a different vehicle than the others, the differences are not so glaring in a more cursory examination. In fact, appellant admitted in his testimony at the postconviction relief hearing that he was shown the photos at trial, and had not noticed at that time that they were not of his truck. Appellant concedes that at best he has shown the prosecution was reckless, but argues that any use of false evidence by the prosecution should raise a presumption of bad faith and that the evidence was prejudicial.

Appellant acknowledges that due process under the United States Constitution, and as interpreted by the United States Supreme Court, would require a showing of materiality and prejudice. See Strickler v. Greene, 527 U.S. 263 (1999). He urges us to extend additional protection through our own Arkansas Constitution, relying heavily upon Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002). He urges us to hold that the admission of the false evidence was inherently prejudicial. Such prejudice has been found only where the circumstances were specific to the accused and inferred that this particular defendant was a dangerous criminal. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). This case is simply not analogous.

Moreover, this court has previously required a showing of prejudice where prosecutorial misconduct was alleged to support a claim of independent constitutional error in a proceeding on a petition under Ark. R. Crim. P. 37.1. Weatherford v. State, ___ Ark. ___, ___ S.W.3d ___ (October 13, 2005) (per curiam). Even were we to consider appellant's argument without requiring a showing of bad faith, appellant must show that he was prejudiced, that is, that the evidence was material and that there is a reasonable probability that, had the evidence not been admitted, the result of the proceeding would have been different. See Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam).

Appellant argues that, should we require a finding of prejudice, the admission of the photographs was not harmless error and could have had an effect on the outcome of the trial. But, the trial court found that the photos were not prejudicial, that the evidence was only cumulative to other evidence presented at trial, and considering the proof of appellant's guilt, the introduction of the photographs did not give rise to a violation of appellant's right to due process. We agree that there was other evidence introduced at trial, including testimony of a defense witness, that established that Bottoms was bleeding while she was in appellant's truck. Appellant has failed to show that the photographs were used by the prosecution in any way other than to establish that Bottoms was bleeding in appellant's truck. Accordingly, we cannot say the trial court's findings on this issue are clearly erroneous.

Appellant next asserts that trial counsel was ineffective for failure to object to the admission of the photographs. As appellant concedes, our standard of review requires the same showing of prejudice as was applicable to the due process claim. As it did for the due process claim, the trial court found that appellant failed to make such a showing.

In an appeal from a trial court's denial of postconviction relief on a claim of ineffective assistance of counsel, the question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel's performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). Under the criteria for assessing the effectiveness of counsel as set out in Strickland, when a convicted defendant complains of ineffective assistance of counsel, he must show first that counsel's performance was deficient through a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Additionally, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Andrews, 344 Ark. at 611-612, 42 S.W.3d at 488.

There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Greene, 356 Ark. at 64, 146 S.W.3d at 876.

This analysis, then, requires the same determination as to whether the admission of the evidence was prejudicial as in appellant's due process claim. The trial court found that appellant's claim of ineffective assistance of counsel also failed to show that appellant was prejudiced by counsel's failure to object to the introduction of the photos. For those same reasons that are set out above, we cannot say that those findings were clearly erroneous.

Appellant's second point of error alleges trial counsel was ineffective for failing to call certain witnesses who appellant asserts would have provided testimony concerning injuries from pulling the trigger of the murder weapon. The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice which denied the petitioner a fair trial. Hill v. State, 292 Ark. 144, 728 S.W.2d 510 (1987). It is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Greene, 356 Ark. at 74, 146 S.W.3d at 882.

Appellant called his daughter at the postconviction relief hearing, and she testified that, on firing it, the gun had pinched her finger until it bled. She also testified that she believed her mother, Cloe Smith, appellant's ex-wife, could also have testified to that effect. Ms. Smith, however, did not testify. Appellant's daughter testified that she had told appellant's attorney about the gun on the day of the trial. Trial counsel testified that the daughter had not brought the matter to his attention, but that he was aware that Ms. Smith could have testified on the point. He elected not to call her because he thought she was volatile, and the trial court found he lacked confidence in her as a witness.

An attorney's decision not to call a particular witness is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not, itself, proof of counsel's ineffectiveness. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client and in assessing the attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam).

Appellant argues that trial counsel's tactical reason for not calling Ms. Smith was no more than a post hoc rationalization. It is true that counsel's strategic decisions must be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. Weatherford, ___ Ark. at ___, ___ S.W.3d at ___. We would not agree that counsel appeared to concoct the explanation after the fact. Counsel testified that he had made a couple of trips to interview Ms. Smith and had subpoenaed her to have her available to testify on this point. Appellant's testimony confirmed that Ms. Smith was available at trial as a witness. Trial counsel, however, testified that Ms. Smith showed anger towards Mr. Smith at times, and, as a result, he ultimately decided not to call her. We cannot say that the trial court was clearly erroneous in determining the claim as to Ms. Smith should be denied as a matter of trial strategy. Furthermore, Ms. Smith did not testify at the postconviction relief hearing, and, for that reason, we cannot say that appellant met his burden to show the testimony that she would have provided, if called.

As for appellant's daughter, the trial court's order indicated that trial counsel had testified he was not aware of her potential testimony on this point. Although the daughter had testified that she did advise counsel, the trial court obviously found trial counsel's testimony more credible. The trial court is in the best position to resolve any conflicts in testimony. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987). The judge at a postconviction-relief hearing is not required to believe the testimony of any witness. Skeels v. State, 300 Ark. 285, 779 S.W.2d 146 (1989). We cannot say that the court's findings were clearly erroneous as to either witness, and accordingly must affirm the denial of postconviction relief.

Affirmed.

1 On appellant's motion, this court remanded to the trial court to settle the record regarding the date appellant's petition was filed. The mandate issued on November 14, 2001, and, although the petition is file-marked April 8, 2003, the findings filed with this court indicate the petition was actually received and filed with the circuit clerk on January 14, 2002.