Mitchem v. State
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Cite as 2011 Ark. 148
SUPREME COURT OF ARKANSAS
No.
CR 08-951
Opinion Delivered
ROBERT MITCHEM
Appellant
v.
April 7, 2011
APPEAL FROM THE CIRCUIT
COURT OF CRAIGHEAD COUNTY,
CR 2004-323, HON. VICTOR L.
HILL, JUDGE
STATE OF ARKANSAS
Appellee
AFFIRMED.
PER CURIAM
A jury found appellant Robert Mitchem guilty of attempted rape and kidnapping and
sentenced him to an aggregate term of 240 months’ imprisonment. The Arkansas Court of
Appeals affirmed. Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 623 (2006). Appellant timely
filed through counsel a petition in the trial court seeking postconviction relief under Arkansas
Rule of Criminal Procedure 37.1 (2007). After a hearing on the petition, the trial court
denied relief, and appellant lodged this appeal. The trial court’s findings below were not
clearly erroneous, and we affirm the order denying postconviction relief.
On appeal, appellant raises two points. In the first, he asserts trial counsel was
ineffective for failing to object to testimony from a police officer that referenced a photograph
of appellant taken at the jail. Appellant asserts in his second point that trial counsel was
ineffective for failing to pursue a motion to suppress a statement appellant made while in
custody and preserve the issue for appeal. The trial court found that counsel made a strategic
decision not to object to the testimony about the booking photograph and that appellant
failed to demonstrate that he was prejudiced by counsel’s failure to suppress the statement.
Cite as 2011 Ark. 148
This court does not reverse a denial of postconviction relief unless the trial court’s
findings are clearly erroneous. Shipman v. State, 2010 Ark. 499 (per curiam). 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. Hawthorne v. State, 2010 Ark. 343 (per curiam).
This court assesses the effectiveness of counsel under the standard set forth by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Wallace v.
State, 2010 Ark. 485 (per curiam). Under the Strickland test, a petitioner raising a claim of
ineffective assistance must show that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the
United States Constitution. Id. (citing Joiner v. State, 2010 Ark. 309 (per curiam)). In addition,
the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s
defense that he was deprived of a fair trial. Id. A defendant who would prevail on an
ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below
an objective standard of reasonableness and that this deficient performance prejudiced the
defense. Hampton v. State, 2010 Ark. 330 (per curiam).
During appellant’s trial, a police officer testified that he had interviewed the victim and
that, after hearing her story, he determined that the man she only knew as “Robert” was
appellant. The officer further testified that he obtained a photograph of appellant from the jail
and that he then showed the photograph to the victim. The photo was referenced by the
witness a number of additional times.
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At the hearing on the Rule 37.1 petition, trial counsel testified that the statement from
the witness took him by surprise, and, if he had realized that the witness was going to
reference the fact that the photo was taken from the jail, he would have sought to keep that
fact from coming in at trial. He stated that he decided to “leave it alone” and indicated that
he did not want to draw any more attention to the statement.
Appellant argues that counsel’s conduct was not tactical because the reference to jail
and a booking photo was so prejudicial that it would have warranted a strong admonition or
even a mistrial if counsel had objected. He contends that the fact that the photo was
referenced three times would have supported the more drastic remedy and that counsel could
not have made a strategic decision. Appellant alleges that the justification was a post hoc
rationalization of counsel’s conduct.
Where a decision by counsel was a matter of trial tactics or strategy, and that decision
is supported by reasonable professional judgment, then such a decision is not a proper basis
for relief under Rule 37.1. Anderson v. State, 2010 Ark. 404, ___ S.W.3d ___ (per curiam);
Smith v. State, 2010 Ark. 137, ___ S.W.3d ___ (per curiam). Although the photo was
referenced multiple times, the witness only alluded to the fact that it was taken while appellant
was at the jail once. Although prejudicial, a passing reference to the fact that a photo was
taken on booking or at the jail is not so prejudicial as to warrant a mistrial. See Burks v. State,
2009 Ark. 598, ___ S.W.3d ___ (remarks that amount to inadvertent references to previous
illegal conduct may be cured by admonition). Under the circumstances here, the trial court
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was not clearly erroneous in finding that the decision was one of trial strategy, or in finding
that the decision not to call further attention to the remark by seeking an admonition was
supported by reasonable professional judgment.
In its ruling on appellant’s second point, the trial court found that the admission of
appellant’s statements did not prejudice the defense, and it found that the statements would
have come in for impeachment purposes even if otherwise excluded. We agree that appellant
failed to carry his burden of proof to show that the second prong of the Strickland test was
satisfied, but we do so because the record here does not provide substantiation for any finding
that a motion to suppress the statement would have been successful.
Appellant testified at the hearing on the Rule 37.1 petition that he was not given
warnings as required by Miranda v. Arizona, 384 U.S.435 (1966). The police officer, in his
testimony at trial, indicated that appellant was given those warnings. There is nothing,
however, in that testimony that indicates at what point following appellant’s arrest the
warnings were given. In the order denying postconviction relief, the trial court appears to
have found that appellant’s testimony was not credible and that he was given the warnings.
The trial court also apparently assumed that the warnings were not given prior to the time
that appellant made the statements at issue. There is nothing identified by the court or that
appellant points to in the record that indicates when the Miranda warnings were first given.
A court must indulge in a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. Gaye v. State, 2009 Ark. 201, 307 S.W.3d 1.
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Appellant had the burden to prove his allegations for postconviction relief. Hampton v. State,
2010 Ark. 330 (per curiam). Actual ineffectiveness claims alleging deficiency in attorney
performance are subject to a general requirement that the defendant affirmatively prove
prejudice. State v. Brown, 2009 Ark. 202, 307 S.W.3d 587. Trial counsel cannot be ineffective
for failing to make an objection or argument that is without merit. Flowers v. State, 2010 Ark.
364, ___ S.W.3d ___ (per curiam); see also Tubbs v. State, 2009 Ark. 249, ___ S.W.3d ___
(per curiam). Appellant was required therefore to demonstrate that he could have prevailed
on the motion, even if it was error, or was not reasonable, not to have pursued it.
The circumstances here are not like those in Sparkman v. State, 373 Ark. 45, 281
S.W.3d 277 (2008), where it was clear that the defendant’s custodial statement would have
been suppressed. Here, there was an issue of when the Miranda warnings were given in
relation to the statements. Conflicts in testimony are for the trial judge to resolve, and the
judge is not required to believe the testimony of any witness, especially that of the accused,
since he or she is the person most interested in the outcome of the proceedings. Jones v. State,
344 Ark. 682, 42 S.W.3d 536 (2001).
The court did not appear to find appellant’s testimony that he was given no Miranda
warnings credible, but no evidence was presented to establish when the warnings may have
been given. As a result, appellant failed to present credible evidence that the statements were
made prior to that time. Nor is it clear that all of the statements made by appellant were the
result of express questioning or other actions likely to elicit an incriminating response. See
Talley v. State, 2010 Ark. 357, ___ S.W.3d ___.
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Without evidence that established a Miranda violation, appellant failed to establish that,
had counsel pursued the motion to suppress, the evidence would have been suppressed. A
claim of ineffective assistance of counsel must state facts sufficient to satisfy both prongs of the
Strickland test. Travis v. State, 2010 Ark. 341 (per curiam). Because he has the burden of proof,
when a hearing is conducted on the merits of the claim, a petitioner asserting ineffective
assistance must provide adequate evidence in support of those facts in order to establish his
claim. Appellant failed to provide sufficient evidence to carry his burden to show that counsel
might have successfully challenged admission of the statements.
Affirmed.
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