Clarks v. State
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Appellant was convicted of two counts of rape following a jury trial. The court of appeals affirmed Appellant's convictions. Appellant subsequently filed a petition for postconviction relief, claiming ineffective assistance of counsel as to procuring DNA testing, and other claims. The circuit court denied relief on each claim. On appeal, the Supreme Court affirmed the circuit court, holding (1) Appellant failed to demonstrate that the circuit court erred in denying his claims for postconviction relief based on ineffective assistance of counsel, and (2) Appellant was mistaken in his argument that because he was denied the opportunity for discovery and a hearing to advance his postconviction claim in circuit court his convictions required reversal. The Court concluded that Appellant's petition advanced no meritorious position.
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Cite as 2011 Ark. 296
SUPREME COURT OF ARKANSAS
No.
CR 09-716
Opinion Delivered
TEDDY LEE CLARKS
APPELLANT
v.
STATE OF ARKANSAS
APPELLEE
July 27, 2011
PRO SE APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, CR
2006-4245, HON. HERBERT T.
WRIGHT, JR., JUDGE
AFFIRMED.
PER CURIAM
Appellant Teddy Lee Clarks appeals the denial of his petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). He makes two arguments in
his pro se brief on appeal: (1) that the circuit court erred in concluding that the record
conclusively showed the postconviction relief was not warranted due to ineffective assistance
of counsel and (2) that the circuit court denied him fundamental fairness and meaningful
access to the courts in violation of the federal and state constitution. We find no error that
warrants a reversal and affirm.
In May 2007, appellant was convicted of two counts of rape following a jury trial in
Pulaski County Circuit Court. His convictions were affirmed by the Arkansas Court of
Appeals, which rejected appellant’s challenge to the denial of his continuance at trial so that
he could pursue his own DNA testing and expert evidence to counter the State’s DNA proof.
Clarks v. State, CACR 07-1041 (Ark. App. Sept. 10, 2008) (unpublished). Appellant filed a
Cite as 2011 Ark. 296
timely pro se Rule 37.1 petition claiming ineffective assistance of counsel as to procuring
DNA testing and other claims. The circuit court denied relief on each claim, and appellant
filed his notice of appeal.
We do not reverse a denial of postconviction relief unless the trial court’s findings are
clearly erroneous. Gaye v. State, 2009 Ark. 201, 307 S.W.3d 1 (2009). 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. Id. In making a determination on a claim of ineffectiveness of counsel, the totality
of the evidence before the fact-finder must be considered. Id.
For his first point on appeal, appellant asserts that the circuit court erred in denying his
petition for postconviction relief on the basis of ineffective assistance of counsel because his
defense counsel should have sought a second independent DNA test and forensic expert
testimony to prevent, or at least rebut, the admission into evidence by the State of DNA test
results showing that appellant was the father of the fourteen-year-old victim’s unborn child;
that defense counsel failed to adequately investigate the administrative policies and procedures
with regard to the collection, storing, and testing of the State’s biological evidence; and that
defense counsel failed to make appropriate objections regarding limitations on DNA evidence
when the State’s expert witnesses testified.
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective
assistance of counsel, the sole question presented is whether, based on a totality of the
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evidence under the standard set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s
performance was not ineffective. Carter v. State, 2010 Ark. 231, ___ S.W.3d ___; Watkins v.
State, 2010 Ark. 156, ___ S.W.3d ___; see Jammett v. State, 2010 Ark. 28, ___ S.W.3d ___
(per curiam). Actual ineffectiveness claims alleging deficiency in attorney performance are
subject to a general requirement that the defendant affirmatively prove prejudice. State v.
Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). Under the Strickland test, a claimant must show
that counsel’s performance was deficient, and the claimant must also show that the deficient
performance prejudiced the defense to the extent that the appellant was deprived of a fair trial.
Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). With respect to the
requirement that prejudice be established, a petitioner must show that there is a reasonable
probability that the fact-finder’s decision would have been different absent counsel’s errors.
Watkins, 2010 Ark. 156, ___ S.W.3d ___; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277
(2008). A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Sparkman, 373 Ark. 45, 281 S.W.3d 277.
The decision of whether or not to call a witness is generally a matter of trial strategy
that is outside the purview of Rule 37.1. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001).
Trial counsel must use his or her best judgment to determine which witnesses will be
beneficial to his client. Id. When an allegation rests on whether a witness should have been
called, it is incumbent on the petitioner to name the witness, provide a summary of the
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testimony, and establish that the testimony would have been admissible into evidence. Greene
v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). When assessing an 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, and the fact that
there was a witness or witnesses who could have offered testimony beneficial to the defense
is not in itself proof of counsel’s ineffectiveness. Nelson, 344 Ark. 407, 39 S.W.3d 791.
Nonetheless, such strategic decisions must still be supported by reasonable professional
judgment. Id. Moreover, the manner of questioning a witness is by and large a very subjective
issue about which different attorneys could have many different approaches. Id. Even if a
decision proves unwise, matters of trial tactics and strategy are not grounds for postconviction
relief. Id.
Here, appellant has failed to demonstrate that the circuit court erred in denying his
claims for postconviction relief based on ineffective assistance of counsel. Defense counsel’s
decision not to seek further DNA testing after the State’s tests indicated a match to appellant
was a strategic decision that normally would not support an ineffective-assistance claim.
Further, appellant has not identified a particular witness or a summary of the testimony such
a witness would provide. Regardless, as the circuit court noted in its order denying
postconviction relief, a second independent DNA test would not have excluded from
evidence the State’s DNA test results showing that appellant impregnated the victim, nor
would a second test have prevented the victim’s own testimony that she had been raped
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twenty times by appellant. This court has held that a victim’s testimony alone provides
sufficient evidence to support a rape conviction. Helton v. State, 325 Ark. 140, 924 S.W.2d
239 (1996). The circuit court also correctly noted that nothing in the record indicated any
improper handling, collection, or storage with regard to the State’s DNA testing and that the
manner of questioning a witness is a matter of trial tactics and strategy that are not grounds
for postconviction relief. Lastly, even if this court reached the conclusion that appellant’s
counsel was deficient, appellant failed to show a reasonable probability of a different outcome
where the victim testified and her testimony alone was sufficient to support appellant’s
convictions.
For his second point on appeal, appellant maintains that he was denied the opportunity
for discovery and a hearing to advance his postconviction claim in circuit court. He is
mistaken that this point supports reversal. The circuit court need not hold a hearing on a Rule
37.1 petition when “the petition and the files and records of the case conclusively show that
the petitioner is entitled to no relief.” Ark. R. Crim. P. 37.3(a) (2011). However, the trial
court must “make written findings to that effect, specifying any parts of the files, or records
that are relied upon to sustain the court’s findings.” Id. Here, the circuit court made specific
written findings regarding appellant’s postconviction claims and noted the evidence from the
record upon which it relied. Furthermore, even if the circuit court had not made specific
written findings, we could affirm in the absence of an adequate order where the record before
this court conclusively shows that the petition is without merit. Carter v. State, 342 Ark. 535,
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29 S.W.3d 716 (2000). As outlined earlier, appellant’s petition advances no meritorious
position. Finally, appellant was not entitled to discovery to pursue his Rule 37.1 claim for
relief. Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005); Sanders v. State, 352 Ark. 16, 98
S.W.3d 35 (2003).
Affirmed.
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