source: Caselaw Access Project

author: Ray Thornton, Justice. Jim Hannah, Justice,

license: Public Domain

text:
    Joe Edwin CLEM v. STATE of Arkansas
    CR 01-1436
    90 S.W.3d 428
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      Terry Goodwin Jones, for appellant.

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Joe Clem, was convicted of one count of rape and three counts of accomplice to rape. Based on these convictions, appellant was sentenced to three life sentences and one term of forty years’ imprisonment. These convictions stem from the rape of appellant’s daughter, M.C., who was under the age of fourteen at the time the offense occurred, and the rape of appellant’s son, J.C., who was also under the age of fourteen at the time the offense occurred.

At trial, appellant objected to the admission of several photographs, which depicted the condition of his home, and showed various items found in his home, such as a wooden paddle and framed posters of nude or partially dressed women. The trial court denied appellant’s objection and admitted the photographs.

During his trial, appellant also objected to the testimony of his seven-year-old daughter, M.C. He argued that M.C. was incompetent to testify. After conducting two in camera hearings, the trial court determined that M.C. was competent to testify.

At the close of the State’s case, and again at the close of all of the evidence, appellant requested that the trial court direct verdicts in his favor on all charges. The trial court denied appellant’s motions and sent the matter to the jury for resolution. The jury found appellant guilty of all charges, and appellant was thereafter sentenced.

It is from these convictions that appellant appeals. On appeal, appellant raises three points for our consideration, and we affirm the trial court on all points.

In his final point on appeal, appellant urges that the trial court erred in denying his motions for directed verdicts. Although this issue is raised as appellant’s final point on appeal, we consider it first because double-jeopardy considerations require us to consider a challenge to the sufficiency of the evidence prior to examining other issues on appeal. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). We have explained that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Id.

In Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000), we outlined the rules that we follow in our consideration of whether the verdict was supported by sufficient evidence. We wrote:

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We do not reweigh the evidence but determine instead whether the evidence supporting the verdict is substantial. McFarland, supra. We affirm a conviction if substantial evidence exists to support it. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion without having to resort to speculation or conjecture. Id. We do not, however, weigh the evidence presented at trial, as that is a matter for a factfinder. Wilson, supra. Nor will we weigh the credibility of the witnesses. }d. We have also noted that the testimony of the rape victim satisfies the substantial evidence requirement in a rape case. Prater, supra.

Burmingham, supra. We have further noted that a rape victim’s testimony need not be corroborated to support a conviction. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999).

In our appellate review, we must determine whether there was sufficient evidence to support appellant’s conviction. Appellant was convicted of one count of rape and three counts of accomplice to rape. At the time appellant committed his crime, Ark. Code Ann. § 5-14-103 (Repl. 1997) (superseded) articulated the elements for the offense of rape. The statute provided:

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion; or
* * *
(4) Who is less than fourteen (14) years of age. It is an affirmative defense to prosecution under this subdivision (a)(4) that the actor was not more than two (2) years older than the victim.

Id. Additionally, at the time appellant committed his crime, Ark. Code Ann. § 5-14-101 (Repl. 1997) (superseded) provided:

As used in this chapter, unless the context otherwise requires:
(1) “Deviate sexual activity” means any act of sexual gratification involving:
* * *
(B) The penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person.

Id. We have explained that penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient. Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999).

Arkansas Code Annotated § 5-2-402 (Repl. 1997), articulates the elements necessary to establish that a person is criminally liable for the conduct of another person. The statute provides:

A person is criminally liable for the conduct of another person when:
(1) He is made criminally liable for the conduct of another person by the statute defining the offense; or
(2) He is an accomplice of another person in the commission of an offense; or
(3) Acting with the culpable mental state sufficient for the commission of the offense, he causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.

Id. Finally, Ark. Code Ann. § 5-2-403 (Repl. 1997), gives the statutory definition of an accomplice. The statute provides:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it.

Id. We have explained that relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).

With the relevant statutes and case law outlined, we consider whether there was sufficient evidence to support appellant’s conviction. Appellant was convicted of raping his seven-year-old daughter, M.C. Appellant argues that the trial court should have granted his motion for a directed verdict because “there was no evidence to support the supposition that a rape had occurred.” A review of the testimony presented at trial clearly establishes that there was sufficient evidence to support appellant’s rape conviction.

At trial, Dr. Dwight Williams testified that he examined M.C., and that her exam was consistent with recent sexual abuse. He stated that there was redness present in the internal labia. Dr. Williams also testified that M.C. had some abrasions, scratches, or trauma present on the internal labia, and that the examination of M.C.’s hymen “revealed it to not be totally present.” Dr. Williams explained that it is irregular for a hymen of a child M.C.’s age to be partially absent without penetration. Dr. Williams also stated that during his examination of M.C. he found skin tags around the anus. He explained that skin tags on a child M.C.’s age can be consistent with anal penetration.

M.C. also testified at trial. She testified that appellant touched her “private spot” with his finger while she was not wearing any clothes. M.C. explained that it hurt when appellant put his finger in her private spot because “he was sticking it all the way in.” She also testified that appellant touched her “private spot” with his “private spot,” and that appellant forced her to perform oral sex on him.

Finally, Donna Clem, appellant’s wife and M.C.’s mother, testified. She stated that she saw appellant call M.C. into his bedroom, and that appellant told her that he had inserted his finger into M.C.

After reviewing the evidence, we conclude that there was sufficient evidence to support appellant’s rape conviction. Specifically, we hold that there was sufficient evidence upon which the jury could have concluded that appellant engaged in sexual intercourse or deviate sexual activity with M.C., who was under the age of fourteen.

Appellant was also convicted of three counts of being an-accomplice to rape. .One count of the conviction stems from appellant’s participation in a crime committed by Donna Clem. Specifically, Donna Clem raped J.C., who was her son and who was also appellant’s son. Additionally, appellant participated in sexual acts which occurred between his children M.C. and J.C. On appeal, appellant contends that there was insufficient “evidence to support the supposition that the elements of coercion, advisement, or solicitation were present for the charge of accomplice to rape.” A review of the trial testimony is necessary to determine whether the trial court erred in denying appellant’s motion for directed verdict.

At trial, J.C. testified. He stated that appellant would force him and his mother to remove their clothes and lie on the bed together. J.C. further testified that appellant would order him to lie on top of his mother. He also stated that appellant forced him to put is “private” in his mother’s “private.” J.C. explained that appellant told him that he would hurt him if he did not follow appellant’s instructions.

Next, J.C. testified that appellant forced him and M.C. to remove their clothes and lie on the bed with J.C. lying on top of M.C. He also stated that appellant forced him to put his “private” in M.C.’s “private.”

M.C. also testified about these charges. M.C. stated that she and J.C. removed their clothes and that J.C. lay on top of her. She further testified that J.C. put his “private” in her and that J.C. also put his finger in her. M.C. explained that the children engaged in these acts because appellant told them to, and that they obeyed him because they were scared of appellant.

Finally, Donna Clem testified. She stated that she and the children were scared of the appellant because he was abusive. Mrs. Clem further testified that appellant would “make Q.C.] get on top of me and have sex with me.” She explained that watching these acts aroused appellant. Mrs. Clem also stated that while she was having sex with J.C., appellant would offer sexual instructions to J.C.

After reviewing the evidence, we conclude that there was sufficient evidence to support appellant’s accomplice to rape convictions. Specifically, we hold that there was sufficient evidence upon which the jury could have concluded that appellant solicited, advised, encouraged, or coerced Mrs. Clem to rape J.C. Additionally, there was sufficient evidence to establish that appellant coerced J.C. and M.C. to engage in sexual activities. Accordingly, the trial court correctly denied appellant’s motions for directed verdicts.

In appellant’s second point on appeal, he argues that the trial court erred when it admitted certain photographs and testimony about these photographs into evidence. Appellant argues that the photographs and the testimony about the photographs was irrelevant and prejudicial. We have often stated that the admission and relevancy of photographs is a matter within the sound discretion of the trial court. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. The general rule is that all relevant evidence is admissible. Ark. R. Evid. 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. A trial court’s ruling on relevancy is entided to great weight and will not be reversed absent an abuse of discretion. Miles v. State, 348 Ark. 544, 74 S.W.3d 615 (2002).

On appeal, appellant argues that “the trial court abused its discretion by allowing any testimony and photographs into evidence which served only to depict the appellant’s home as one of deplorable conditions.” At trial, appellant objected to State’s exhibits 2, 3, 4, 5, 6, 7, 8, and 9. The contested exhibits were photographs. The photographs were taken by LeAnn Vanaman, a supervisor with the Arkansas State Police, Family Protection Division, and were introduced during her testimony. Ms. Vanaman was assigned to investigate a report of child abuse at appellant’s home. During her testimony, Ms. Vanaman described the photographs. Specifically, she testified that exhibit 2 was a photograph taken “in the drive, when we pulled up to the home, just to show what the outside of the trailer looked like.” Ms. Vanaman further testified that “number 3 is just a little bit closer-up view, just to show the walkway into the home.” Exhibit 4 was a photograph of “the back of the trailer.” Exhibit 5, Ms. Vanaman explained, was a photograph of “a trash can,” “a paddle,” “roaches and other things around the trash,” and a “world’s greatest dad coffee cup with a roach inside.” Exhibit 6 was a photograph depicting a framed poster of “a naked woman” found hanging in appellant’s bedroom. Exhibit 7 depicted another poster of a nude woman. This poster was also found in appellant’s room. Ms. Vanaman further testified that exhibit 8 was a photograph depicting a framed poster of “a woman wearing short shorts and an open jacket, sitting on a motorcycle.” She explained that this poster was hanging in appellant’s living room. Finally, Ms. Vanaman testified that exhibit 9 was a photograph depicting appellant’s bedroom. She explained that the photograph showed appellant’s unmade bed that was covered in dog feces.

The trial court admitted the photographs and the testimony about the photographs because it concluded that they were relevant in that the evidence showed the conditions of the trailer in which the children resided. We cannot say that the trial court abused its discretion in admitting the testimony and the photographs. The challenged evidence was relevant to establish that appellant had a complete disregard for the well-being of his children. We discussed this issue in Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994) (plurality opinion). In that case, Lindsey was convicted of raping his eight-year-old daughter. At trial, the State introduced evidence concerning a medical condition suffered by Lindsey’s daughter, and left untreated by Lindsey. Id. The medical condition was not directly related to the rape charges. On appeal, Lindsey argued that the trial court erred by admitting the medical testimony because it was irrelevant to the rape charges and prejudiced his case. Id. We concluded that the trial court properly admitted the evidence of neglect and explained:

[W]e have no hesitancy in concluding that permitting an eight-year-old child to develop a severe case of trench foot is a form of neglect by the parent and that the neglect of a child’s physical needs is necessarily a form of abuse. Hence, we believe that a father’s perpetration of child abuse by neglect is relevant to a case of sexual abuse against that same child, when both forms of abuse are occurring at the same time. Such evidence is pertinent in that it establishes an intentional pattern of abusive behavior on the part of the parent toward the child — the first by neglecting her basic hygienic needs and the second by soliciting her to engage in sexual activity. A contemptible lack of caring for a child’s essential healthcare needs easily intertwines with sexual abuse of the child. Both forms of abuse are intentional and evidence lack of care, concern, and respect for the child’s well-being.

Id.

The reasoning outlined in Lindsey is applicable to the case now before us. We conclude that the sexually explicit posters on the wall and the deplorable living conditions of the trailer, including a room crawling with roaches and a bed covered in feces, was relevant evidence because it established a pattern by appellant of intentionally neglecting his children’s well-being. We further conclude that this evidence establishing an intentional neglect of his children’s well-being was relevant to the consideration of whether appellant sexually abused his children. Further, we conclude that the relevant evidence was more probative than prejudicial. Accordingly, the trial court properly admitted the evidence.

In his third point on appeal, appellant argues that the trial court erred when it allowed M.C., appellant’s seven-year old daughter, to testify. Specifically, appellant argues that M.C. was not competent to testify because M.C. was unable to receive and retain accurate impressions, and because she lacked the capacity to transmit a reasonable statement of what transpired in the past.

In Byndom v. State, 344 Ark. 391, 39 S.W.3d 781 (2001), we discussed the standard of review we follow when considering a trial court’s determination of competency of a witness. In that case, we wrote:

The question of the competency of a witness is a matter lying within the sound'discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994); Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). The trial court must begin with the presumption that every person is competent to be a witness. Id.; Ark.R.Evid. 601. The party alleging a witness is incompetent has the burden of persuasion. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989). The issue of competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (1986). As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982); Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).

Byndom, supra. We have explained that the criteria for determining whether a witness is competent to testify are: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt, or heard. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994); see also Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994).

With these principles in mind, we consider whether the trial court erred in deciding that M.C. was competent to testify. At trial, appellant challenged M.C.’s testimony. He argued that she was an incompetent witness. After raising this objection, the trial court conducted two in camera hearings. At the hearings, M.C. testified: (1) that she was seven years old, (2) that her birthday was May18th, (3) that she was in first grade, (4) that she had two brothers and one sister, (5) that she would get in trouble at school if she told a lie, and (6) that a person should tell the truth. She also answered a series of questions in which she was able to distinguish between the truth and a lie. Additionally, M.C. stated that she would be able to take an oath in open court and that she would promise to tell the truth during her testimony.

During her trial testimony, M.C. was able to explain the details surrounding the crimes committed by appellant. Specifically, M.C. was able to remember and testify about: (1) where the crimes occurred, (2) how often the crimes occurred, (3) what appellant was wearing when the crimes occurred, (4) how she felt when the crimes occurred, (5) what appellant was doing during the crimes, and (6) where her mother was when the crimes occurred.

After reviewing the in camera hearings and M.C.’s trial testimony, we conclude that the trial court did not abuse its discretion. Specifically, we conclude that M.C. had a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts.

4-3(h) Review

In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.

Arnold, C.J., not participating.

Hannah, J., concurs.

Jim Hannah, Justice,

concurring. I concur with the majority’s holding that the appellant’s convictions should be affirmed, but I write to address the trial court’s admission of testimony and photographs depicting the appellant’s home. The trial court abused its discretion in admitting the testimony and photographs because they were irrelevant. This was not reversible error.

The basic question of the admissibility of evidence is relevancy. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Ark. R. Evid. 401. Evidence which is not relevant is not admissible. Ark. R. Evid. 402.

The majority states that “[t]he challenged evidence was relevant to establish that appellant had a complete disregard for the well-being of his children.” The appellant was not charged with having a complete disregard for the well-being of his children; rather, the appellant was charged with rape and accomplice to rape. The majority further states that the reasoning outlined in Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994), applies to the present case. I must point out that Lindsey was a plurality opinion; thus, it has no precedential value.

The record indicates that the appellant objected to the admission of the photographs, identified as State’s exhibits 2, 3, 4, 5, 6, 7, 8, and 9, arguing that they were not relevant, and that they were highly prejudicial. The trial court overruled the objection, stating:

The Court: . . . The Court’s under the opinion that they are relevant to the issue that’s involved in this case, and they show the conditions of the trailer in which the children resided, and for that purpose alone, are relevant.

The issues involved in this case were whether the appellant had committed the crimes of rape and accomplice to rape. Exhibits 2, 3, and 4, depicted the outside of the appellant’s trailer; these exhibits are not relevant evidence. Nothing depicted in exhibits 2, 3, and 4, make it more or less probable that the appellant committed the crimes for which he was charged. Exhibits 5 and 9, depicted the conditions inside the trailer. While the testimony and photographs illustrated the deplorable conditions in which the children lived, they do not show that it was more or less probable that the appellant committed the crimes for which he was charged. The testimony and photographs clearly evinced parental neglect, but the appellant was not on trial for neglect. Rather, the appellant was on trial for rape, based upon his own conduct, and for rape, based upon his accomplice liability.

At the time the appellant committed the crime, a person committed rape if he engaged in sexual intercourse or deviate sexual activity with another person who was less than fourteen years old. Ark. Code Ann. § 5-14-103(a)(4) (Repl. 1997) (superseded). At that time, “deviate sexual activity” was defined as “any act of sexual gratification involving” either “[t]he penetration, however slight, of the anus or mouth of one person by the penis of another person; or [t]he penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person.” Ark. Code Ann. 5-14-101 (A)(B) (Repl. 1997) (superseded). The photographs and testimony describing the interior and exterior of the appellant’s trailer were not relevant evidence to prove any of the elements of rape.

A person is an accomplice of another person if, “with the purpose of promoting or facilitating the commission of an offense, he [s]olicits, advises, encourages, or coerces the other person to commit it; or [a]ids, agrees to aid, or attempts to aid the other person in planning or committing it. ...” Ark. Code Ann. § 5-2-403(a)(l)-(2) (Repl. 1997). The photographs and testimony describing the appellant’s trailer were not relevant evidence to prove that the appellant was an accomplice to rape.

The appellant requested that exhibits 6 and 7, the photographs of posters depicting nude women, and exhibit 8, the photograph of the poster depicting a partially nude woman, be “readapted.” He renewed his objection that exhibits 6, 7, and 8, were irrelevant, and that the admission of those photographs would be highly prejudicial. The trial court again overruled the objection, stating:

The Court: ... I think that the photographs — if you had to prove motive, and it might go to — to show the conditions, the circumstances, and' — -and at the very least, might indicate a motive, on the part of the Defendant, to commit the crime of rape of the children.

The appellant questioned how the photographs of posters depicting nude women would prove motive, and the court replied:

The Court: Well, it’s just some evidence of the conditions, the environment, and I think it’s appropriate, for that purpose.
* * *

LeAnn Varnaman testified that exhibits 6 and 7 depicted posters of nude women, and she testified that exhibit 8 depicted a woman sitting on a motorcycle and wearing short shorts and an open jacket. Varnaman further testified that the posters depicted in exhibits 6, 7, and 8, were hanging on walls in the appellant’s trailer. Varnaman agreed with the State’s characterization of exhibit 8 as being “somewhat inappropriate.” The photographs depicting nude women and a partially nude woman, and the testimony explaining that the posters were located in a residence which was a home to young children, illustrate the appellant’s inappropriate behavior and poor taste. However, the testimony and photographs do not show that it is more or less probable that the appellant committed the crimes for which he was charged, nor does it, by any stretch, prove motive.

The testimony and photographs were not used to prove that the appellant committed the crimes for which he was charged, but to inflame the minds of the jurors. Photographs which serve no valid purpose and are used only to inflame the jury’s passions should be excluded. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). In addition to being irrelevant, the testimony and photographs had no probative value and were prejudicial to the appellant; therefore, they should have been excluded.

I also write to address the appellant’s failure to include the photographs in the Addendum to his brief. I disagree with the majority’s conclusion that an examination of the photographs was not necessary for our consideration of the issue regarding the admission of the photographs. Rule 4-3 (g) of the Rules of the Arkansas Supreme Court addresses an appellant’s duty to abstract the record. Rule 4-3(g) states:

In all felony cases it is the duty of the appellant, whether represented by retained counsel, appointed counsel or a public defender, or acting pro se, to abstract such parts of the transcript and to include in the Addendum such parts of the record, but only such parts, as are material to the points to be argued in the appellant’s brief.

Ark. Sup. Ct. R. 4-3(g) (2002) (emphasis added).

Clearly, when a point on appeal involves the admission of photographs, the photographs are material and should be included in the Addendum. While I believe that the appellant had a duty to include the photographs in the Addendum, I do not believe that the Addendum is so deficient that it requires the appellant to cure the deficiency, pursuant to Rule 4-2 (b)(3) of the Rules of the Arkansas Supreme Court. Although the photographs are not included in the appellant’s Addendum, they are included in the record. This court will not examine the record to reverse a trial court, but we may examine the record to affirm. See McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). I believe that it is appropriate to go to the record to affirm the present case.

Finally, I must point out that the quoted portion of the appellant’s brief, which the majority included in a footnote, contains an incorrect characterization of the Rules of the Arkansas Supreme Court, as well as an incorrect citation. In his brief, the appellant stated:

The Rules of Appellate Procedure require, unless waived by the court upon motion, that the Appellant reproduce a photograph and attach it to the abstract whenever that photograph must be examined for a clear understanding of the testimony. See Ark. Sup. Ct. R. 4 — 2(a)(6); Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995). It is the Appellant’s contention that this is unnecessary in the case at bar as the photographs were throughly described in the transcript and depicted none of the elements related to the charge, but were solely put into evidence to prove that the Appellant was a poor housekeeper and had unconventional tastes in decor by having a framed picture of a nude woman in a home where children lived.

The appellant refers to a rule of “Appellate Procedure,” when he cites to a Rule of the Arkansas Supreme Court. Also, the appellant cites to Rule 4-2(a)(6), indicating that the rule is applicable to including photographs in the abstract. The appellant is mistaken. Rule 4-2(a)(6) explains the requirements for the statement of the case section of appellate briefs. Ark. Sup. Ct. R. 4-2(a)(6) (2002). Nothing in Rule 4-2(a)(6) pertains to photographs.

I point out the error contained in the appellant’s brief because the majority, after citing this portion of the appellant’s brief, concludes that the “[ajppellant’s contention is well-taken.” I raise this issue in the event the majority’s statement that the “ [appellant's contention is well-taken” might be construed as the majority’s agreement with the appellant’s assertion that Rule 4-2(a)(6) is the applicable law. 4-2(a)(6), the rule regarding the statement of the case, is immaterial to the points argued in the present case.

While I believe there was trial error in admitting the testimony and photographs, I do not believe there is reversible error. The evidence of guilt in this case was overwhelming. Testimony from the children and their mother, as well as testimony from the doctor who examined M.C., was more than enough evidence to support a guilty verdict on all charges. This court has stated in the past that when the .evidence of guilt is overwhelming, slight errors in the introduction of evidence do not constitute reversible error. Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001); Kidd v. State, 330 Ark. 479, 955 S.W.2d 505 (1997). In this case, I believe the error to be harmless and, accordingly, I concur with the majority’s decision to affirm.

       We note that appellant did not include copies of the contested photographs in either his abstract or his addendum. In his brief, appellant addressed this issue. He wrote:
      [T]he Rules of Appellate Procedure require, unless waived by the court upon motion, that the appellant reproduce a photograph and attach it to the abstract whenever that photograph must be examined for a clear understanding of the testimony. See Ark. Sup. Ct. R.*4~2 (a)(6); Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995). It is appellant’s contention that this is unnecessary in the case at bar as the photographs were thoroughly described in the transcript and depicted none of the elements related to the charge, but were solely put into evidence to prove that the appellant was a poor housekeeper and had unconventional tastes in decor by having a framed picture of a nude woman in a home where children lived.
      Appellant’s contention is well-taken. Specifically, we conclude that an examination of the photographs was not necessary for our consideration of this issue because we were able to fully understand the issue by reviewing LeAnn Vanaman’s testimony, which was included in appellant’s abstract.


author:
Ray Thornton, Justice. Donald L. Corbin, Justice,
      Annabelle Clinton Imber, Justice,

text:
    STATE of Arkansas v. Kevin FRANKLIN
    02-409
    89 S.W.3d 865
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellant.

      Etoch & Halbert Law Firm, by: Louis A. Etoch, for appellee.
   Ray Thornton, Justice.

The State appeals from the circuit court’s decision to grant the motion of appellee Kevin Franklin for a new trial due to ineffective assistance of his counsel, Kenneth Haynes. The State argues that the defense did not present evidence of prejudice relating to Mr. Haynes’s alleged errors in representing Mr. Franklin and that the circuit court erroneously relied on cumulative error in making its determination. Mr. Franklin responds that evidence of prejudice was presented, and the circuit court properly granted the new trial based on six separate instances of attorney error and prejudice to Mr. Franklin resulting from each error. We hold that the circuit court’s decision was clearly erroneous, and we reverse.

Mr. Franklin was convicted of first-degree murder and sentenced to a term of 480 months in the Arkansas Department of Correction. His conviction was affirmed by the court of appeals. Franklin v. State, CACR 99-962 (Ark. App. May 17, 2000). On July 17, 2000, Mr. Franklin filed a motion for new trial seeking post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. On November 17, 2001, the circuit court held a hearing and on January 18, 2002, the court entered an order granting appellee’s motion. The circuit court found that Mr. Franklin was entitled to post-conviction relief based on the following six grounds: failure to permit Mr. Franklin to testify, trial counsel was ineffective due to lack of preparation, failure to request AMCI 202 instruction, failure to challenge the gunshot-residue test or results, counsel’s ineffectiveness during the sentencing phase, and cumulative effect of errors. The State filed a notice of appeal from the trial court’s order granting post-conviction relief on January 28, 2002.

This case is properly before us because post-conviction proceedings under Arkansas Criminal Procedure Rule 37 are civil in nature, and therefore the State is entitled to appeal from an order granting postconviction relief. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999).

We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Id. A trial court’s 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. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact finder must be considered. State v. Hardin, 347 Ark. 62, 60 S.W. 3d 397 (2001). We defer to the findings of the circuit court because the resolution of credibility issues is within the province of the trial court. Johnson v. State, 321 Ark. 117, 900 S.W. 2d 940 (1995).

The issue the State presents for this appeal is whether the circuit court erred by finding that Mr. Franklin was entitled to post-conviction relief due to ineffectiveness of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court enunciated the standard for measuring the effectiveness of counsel:

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 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.

We review each of the six findings by the circuit court to determine whether the conviction should be set aside based upon an analysis of the two prongs established by Strickland, supra.

I. Mr. Franklin’s failure to testify at trial

The State argues that Mr. Franklin’s failure to testify at trial does not constitute valid grounds for declaring counsel ineffective. Mr. Franklin contends that he did not knowingly, voluntarily or intelligently waive his right to testify, as required by Rule 1.2. of the Model Rules of Professional Conduct and that the circuit court was correct in finding grounds for ordering a new trial based on Mr. Franklin’s failure to testify.

Rule 1.2 states that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.” Id. Case law has confirmed this tenet of the scope of representation. In Dansby, supra, this court held:

The first prong of the Strickland test is whether counsel’s performance was deficient because Mr. Dansby testified in his own behalf. We have consistently held that whether or not a defendant testifies is not a basis for postconviction relief. “The accused has the right to choose whether to testify in his own behalf. Counsel may only advise the accused in making the decision. The decision to testify is purely one of strategy.” Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000).

Dansby, supra. Furthermore, the defendant must state specifically what his testimony would have been and demonstrate that his failure to testify resulted in prejudice to his defense. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).

In Chenowith, supra, there was conflicting testimony as to whether the defendant made the decision not to testify on the advice of his attorney, or whether the attorney agreed that the defendant would testify, then refused to introduce his testimony during the trial. Id. The circuit court resolved the conflict and found that Chenowith’s attorney advised him not to testify, that defendant took that advice. Id. This court deferred to the trial court’s superior position to resolve credibility issues. Id.

In the instant case, Mr. Flaynes never testified that he refused to allow Mr. Franklin to testify in his own behalf. Mr. Franklin and his mother confirmed at the posttrial hearing that he expressed to Mr. Haynes that he wanted to testify at his trial. Mr. Haynes testified at the posttrial hearing that he did not “recall telling him [Mr. Franklin] that he had an absolute right to testify” and that he did recall that it “was simply my advice that he not testify.”

While the circuit court was not clearly erroneous in finding that Mr. Haynes erred and did not properly inform his client of his right to testify and did not elicit a proper waiver of his right to testify, the petitioner made an insufficient showing of prejudice. Petitioner did not make any showing as to what evidence would have been presented if Mr. Franklin had been allowed to testify, other than his statement that he had a clean record and that he had no involvement with the shooting. The evidence included Rico Anderson’s testimony that Mr. Franklin and Joe Stevenson argued and that after the argument, Mr. Franklin ordered Anderson to shoot Stevenson. Anderson further testified that Mr. Franklin would kill him if he did not shoot Stevenson. Frank Hampton, a passerby driving his car along the street where the shooting occurred on the same night, testified that two men tried to get inside his car and that one of them, identified by him as Mr. Franklin, pulled out a pistol and handed the gun to the other man who fired shots at the car as Mr. Hampton sped away. A gunshot-residue test showed that Mr. Franklin had gunpowder on both of his hands. The only testimony by the defense witness was by Pedro Bryant, who testified that he did not see Mr. Franklin give Anderson a gun, but that Mr. Franklin had a gun just before the shooting, and Bryant also admitted that he had previously told the police that Mr. Franklin did give Anderson the gun. Mr. Haynes testified at the post trial hearing that Mr. Franklin did not understand accomplice liability, and when Mr. Haynes asked questions of Mr. Franklin that he believed the prosecutor would ask, Mr. Franklin incriminated himself and demonstrated that he was indeed an accomplice and indicated his belief that if he did not fire the fatal shot, he could not be convicted of a crime.

Notwithstanding the trial court’s finding that Mr. Haynes erred in failing to properly inform his client of his right to testify and in failing to elicit a proper waiver of his right to testify, the petitioner did not demonstrate that prejudice resulted from Mr. Haynes’s error. There was little showing of what his testimony would have been had he been allowed to testify. We cannot conclude that his error was prejudicial in light of the overwhelming evidence that Mr. Franklin furnished the gun to the shooter, Anderson, and that Mr. Franklin told Anderson to fire the gun. We find that this error did not cause a breakdown in the adversarial process that renders the resulting conviction unreliable.

II. Lack of preparation

The trial court’s order states that Mr. Haynes was ineffective on the basis that he did not prepare for trial. The order stated:

Trial counsel Mr. Haynes admitted he filed no motions of any kind on defendant’s behalf. Mr. Haynes filed no motion for discovery. Kenneth Haynes filed no evidentiary motions of any kind.

However, the petitioner did not make a showing of both error and prejudice in accordance with Strickland, supra. Mr. Haynes obtained the complete files of the prosecutor and the sheriff, and though he did not file any discovery motions, it was not shown at the hearing that Mr. Haynes faded to obtain any crucial piece of evidence.

The trial court’s order goes on to state that “Haynes admitted he did not go out and interview potential witnesses.” This finding is clearly erroneous. Mr. Haynes stated at the post-trial hearing that he interviewed many witnesses, though he did not call them to testify. Mr. Haynes’s statements cannot be interpreted as an admission that he did not interview potential witnesses.

III. Failure to request a limiting instruction

The circuit court found that Mr. Haynes failed to request a limiting instruction on Pedro Bryant’s testimony that he stated to a police officer that Mr. Franklin had given a gun to the shooter. The circuit court found that Mr. Haynes failed to request that the court give the AMCI 2d 202 limiting instruction to the jury, which states:

Evidence that a witness previously made a statement which is inconsistent with his testimony at the trial may be considered by you for the purpose of judging the credibility of the witness but may not be considered by you as evidence of the truth of the matter set forth in the statement.

Id. The circuit court cited Reynolds v. State, 341 Ark. 387, 18 S.W. 3d 331 (2000), which held that an attorney’s counsel could be considered ineffective if he failed to object to an erroneous jury instruction.

In the instant case, the attorney failed to request a limiting instruction, which is an entirely different fact situation. In Sasser v. State, 338 Ark. 375, 993 S.W. 2d 901 (1999), we held that when the circuit court based its determination of ineffective assistance of counsel on the attorney’s failure to request a limiting instruction, the reviewing court should apply the second prong of the Strickland analysis to determine if prejudice resulted from the failure to request the instruction to the extent that the outcome of the trial would have been different had the instruction been given. Sasser, supra. On this point, there was no finding of prejudice by the trial court, nor was there sufficient evidence presented that the conviction resulted from a breakdown in the adversarial process that renders the result untenable.

IV. Failure to challenge gunshot residue test

In the order, the circuit court found that besides the police officer’s testimony that the gunshot-residue swabs were taken shortly after the shooting, no other evidence was adduced at trial concerning the gunshot-residue test. The court made no finding that Mr. Franklin was prejudiced by Mr. Haynes’s failure to object to the evidence or even that the objection would have been sustained. Mr. Haynes testified that he could not conceive of an argument that would have supported his objection to the gunshot-residue test. Furthermore, Mr. Haynes testified that the test had nothing to do with the defendant’s guilt or innocence because the test did not establish when Mr. Franklin had handled a gun. Also, Mr. Haynes explained that it was undisputed that Mr. Franklin did not shoot the victim. The gunshot-residue test results were not damaging because there was other evidence presented at trial that Mr. Franklin had shot a gun thirty minutes prior to the time the victim was shot. Thus the gunshot residue might have resulted from his firing that unrelated shot. Mr. Haynes’s trial strategy, in light of overwhelming evidence that Mr. Franklin had handled a gun, was to admit that Mr. Franklin had handled and fired a gun that night, but not the gun that was used in the murder, and it would have been pointless to object to the gunshot-residue test. We hold that there was no showing of prejudice resulting from Mr. Haynes’s failure to object to the gunshot-residue test.

V. Failure to present evidence during the sentencing phase of trial

The circuit court found that Mr. Haynes was ineffective because he failed to present mitigating evidence during the sentencing phase of Mr. Franklin’s trial. The circuit court specifically states that had Mr. Haynes presented evidence it would have been as follows:

Franklin was raised by his mother, pretty much without a father. Franklin had four brothers and one sister. Franklin was the next to the youngest. Franklin, a young man, was only twenty-one years of age at the time of his trial. Franklin graduated from Central in the class of 1996. Franklin was working at or around the time of the occurrence. Franklin was the father of six minor children. Also, Franklin had received counseling in the eighth grade from Walter Darnell, a counselor a the local mental health facility.

An attorney can be ineffective for either failing to present mitigating evidence or failing to thoroughly investigate potentially mitigating evidence before making a strategic decision not to present it. Williams v. State, 347 Ark. 371, 64 S.W. 3d 709 (2002); Williams v. Taylor, 529 U.S. 1495 (2000); Coulter v. State, 343 Ark. 22, 31 S.W. 3d 826 (2000); Sanford v. State, 342 Ark. 22, 25 S.W. 3d 414 (2000). In each of these cases, the sentence was death and the attorney was prohibited from forgoing his duty to investigate and submit mitigating evidence due to “the severity of the potential punishment.” Sanford, supra.

In the instant case, Mr. Franklin did not receive the death penalty, and the offense with which he was charged was not subject to the possibility of the death penalty, therefore these cases are inapposite. The maximum Mr. Franklin could receive was life in prison Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997), and he was sentenced to forty years’ imprisonment. A defendant who has received a sentence less than the maximum sentence for the offense cannot show prejudice from the sentence itself. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002).

While showing that Mr. Franklin had a disrupted and difficult childhood, that he had children to support and that he had received needed counseling at one time are all mitigating factors, they are not unusual instances that would satisfy the Strickland criteria that the failure to introduce them constituted an error so serious as to deprive the defendant of a fair trial. There was no showing of mental or emotional impairment or any specific instance of severe trauma that would have caused violent behavior. While these factors are mitigating, the circuit court’s order does not state that their absence in the sentencing phase was prejudicial, and we conclude that the absence of this evidence was not so serious as to render the result unreliable.

VI. Cumulative error

We have held that reliance upon cumulative error by the trial court to determine ineffectiveness of counsel under the Strickland test is reversible error. E.g., Hardin, supra; Noel v. State, 342 Ark. 35, 26 S.W. 3d 123 (2000). In Hardin, supra, this court held that the circuit court erroneously interpreted an earlier case, Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980), to mean that cumulative error could be considered in a Strickland analysis to determine ineffective assistance of counsel. Hardin, supra. The Hardin court cited Neal, which held that the specific allegations considered separately would not justify a new trial, but that considered collectively, the allegations warranted this court granting permission to apply for Rule 37 relief. Id. The Hardin court pointed out that when Neal was decided, an earlier version of Rule 37 was in effect. That version of the rule directed that petitioners seeking to appeal their convictions must first get permission from this court to apply for Rule 37 relief in circuit court. Neal only elucidated the rule that this court could consider the allegations collectively to determine whether the petitioner was entided to proceed with a Rule 37 hearing, not that the effectiveness of counsel could be judged by cumulative error. The Hardin court clarified that point by stating:

[W]hat we do not know is whether the circuit court would have found that one or more of the allegations of ineffective assistance of counsel, standing alone, showed that Mr. Weber made errors so serious that he was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment, and that the deficient performance prejudiced the defense sufficiently to undermine confidence in the outcome of the trial.

Id.

The instant case is distinguishable from Hardin in that the trial court found specific instances of error and did not base its order exclusively on cumulative error. By contrast, in Hardin, we held that the post-conviction relief granted by the circuit court was based solely on a cumulation of allegations of ineffective assistance of counsel. The State contends that Hardin applies to the instant case because the circuit court based its grant of a new trial solely on the cumulative effect of the errors committed by Mr. Franklin’s counsel when it wrote in the order:

considering the totality of the circumstances and the cumulative nature of trial counsel’s flaw and inadequacies, the Court concludes that the aggregate of errors violated Mr. Franklin’s due process of law by depriving him of substantial justice and a fundamentally fair trial.

However, it is clear from the circuit court’s order that on the first point alone it found grounds for a new trial:

Under the specific facts of this case, the Court cannot find from the evidence that Franklin, knowingly, voluntarily, or intelligently, after advice from counsel, waived his absolute right to testify as a criminal defendant. The court finds that Franklin is entitled to a new trial on this issue.

Unlike Hardin, the circuit court in the instant case found that a new trial was appropriate solely on the grounds of Mr. Franklin’s failure to testify and did not rely on cumulative error alone to make its determination.

Furthermore, as discussed earlier in this opinion, there was no showing of prejudice resulting from Mr. Franklin’s failure to testify. Similarly, there was no showing of prejudice resulting from the other errors, and therefore the prejudice prong of the Strickland test was not satisfied.

Accordingly, we find that there was no showing of prejudice sufficient to deprive Mr. Franklin of a fair trial due to counsel’s ineffectiveness with respect to any one of the six grounds stated by the circuit court.

Reversed.

Arnold, C.J., not participating.

Corbin, J., concurring.

Imber and Glaze, JJ., concurring in part and dissenting in part.

Donald L. Corbin, Justice,

concurring. I concur in the majority’s holding that the trial court erred in granting Appellee Kevin Franklin a new trial pursuant to Ark. R. Crim. P. 37. I write separately to emphasize that trial counsel has a duty to investigate for possible mitigating evidence to present during the sentencing phase of a trial, regardless of whether the defendant may receive the death penalty.

The constitutional guarantee of effective assistance of counsel extends to the sentencing phase of the trial. See Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000); Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). I agree with the majority that, ordinarily, the issue of ineffectiveness in failing to investigate for mitigating evidence has arisen in cases where the defendant was sentenced to death. See, e.g., Williams v. State, 347 Ark. 371, 64 S.W.3d 709 (2002); Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Coulter, 343 Ark. 22, 31 S.W.3d 826; Sanford, 342 Ark. 22, 25 S.W.3d 414. However, this court has addressed this issue in non-death cases as well. See Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Helton, 325 Ark. 140, 924 S.W.2d 239. Thus, contrary to the State’s assertion, an allegation of ineffectiveness in failing to investigate and present evidence during sentencing is cognizable in cases, like this one, where the defendant received a term of imprisonment.

In the present case, Appellee, through his testimony and that of his mother, Diane Willis, presented evidence during the Rule 37 hearing that he asserts mitigated his crime. While I agree with the majority that the proffered evidence does not demonstrate a reasonable probability that Appellee’s sentence would have been lessened had the jury heard this testimony, I take issue with trial counsel’s claim that his failure to present any evidence during sentencing was a matter of trial strategy.

In the first place, it would seem to be elementary that one must first investigate for possible mitigating evidence before it can be determined that the best strategy is to present no evidence. Here, it is undisputed that trial counsel did not conduct an investigation to discover whether there was any mitigating evidence to present. Counsel initially testified that he had investigated Appellee’s background. However, when asked about specific facts, counsel stated that he had no recollection whether he had discovered such facts. He then indicated that he was not prepared to address this issue because he had only learned on the morning of the Rule 37 hearing “for sure” that he would be participating in the hearing. He admitted, however, that he did not call a single witness or present a single piece of evidence during the sentencing phase of the trial. He also admitted that he did not conduct any formal investigation into Appellee’s background.

In the second place, counsel’s reasons for not calling Appellee or his mother are not reasonable trial strategy. When asked why he did not call them, both of whom were admittedly available to testify, trial counsel explained that he was concerned that they would not make good witnesses. He indicated that the jury might be put offby the fact that Appellee had some gold teeth; however, counsel conceded that the jury could probably see his teeth while he sat at the defense table.

Counsel also explained that he was concerned that neither Appellee nor his mother understood the legal theory of accomplice liability, and that, if they took the stand, they would likely incriminate Appellee regarding his presence at the shooting. While this may have been a legitimate concern during the guilt phase of the trial, I cannot see that it was a part of any reasonable strategy during the sentencing phase. The jury had already found him guilty of being an accomplice to murder.

Finally, counsel admitted that Appellee had no prior convictions to be impeached with, but he claimed that Appellee had another criminal charge pending that might be used against him. Despite his concern, counsel made no effort to prevent the State from cross-examining Appellee with this information.

In sum, I am troubled by what I perceive as trial counsel’s indifferent attitude about these allegations of ineffectiveness. Regardless of whether the death penalty is a permissible sentence, defense counsel has a duty to conduct an investigation for possible mitigating evidence. Moreover, although counsel must use his or her professional judgment when determining whether to present any such evidence, the duty to investigate remains constant and is not a matter of trial strategy. Because trial counsel did not conduct an investigation for mitigating evidence, I would recommend that he be referred to the Committee on Professional Conduct. I nonetheless concur in the judgment because counsel’s failure to investigate did not prejudice Appellee’s sentence.

Annabelle Clinton Imber, Justice,

concurring. I concur in the result of the majority opinion and agree that this case should be reversed because there was no showing of prejudice by the petitioner, as required by the second prong of the test in Strickland v. Washington, 466 U.S. 668 (1984). However, I must dissent from that portion of the majority opinion that finds this case distinguishable from State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001).

In Hardin, the majority reversed a trial court’s decision granting a Rule 37 3petition for new trial due to ineffective assistance of counsel. Id. The trial court had misinterpreted a case decided under prior law and had erroneously based its decision on cumulative error. Id. The Hardin majority remanded the case to the trial court with instructions to re-analyze its decision with an eye to the individual errors and without regard to cumulative error. Id.

In my dissent in Hardin, I pointed out that it was unnecessary to remand the case because the petitioner had made no showing of prejudice and, therefore, had not met the second prong of Strickland. State v. Hardin, supra (Imber, J., dissenting). This was borne out by the fact that the trial court’s decision in Hardin “set forth no facts showing prejudice and no such facts [were] apparent from the record.” State v. Hardin, 347 Ark. at 69, 60 S.W.3d at 401 (Imber, J., dissenting).

Far from being distinguishable, the Hardin case and this case are four-square on point with each other. The majority states that Hardin is distinguishable because in the instant case the trial court found specific instances of error and did not base its order solely on cumulative error. Particularly, the majority makes note that the trial court found a new trial was appropriate on the grounds of Mr. Franklin’s failure to testify and states that this shows the court did not rely on cumulative error alone to make its determination. The majority quotes Hardin as follows:

[W]hat we do not know is whether the circuit court would have found that one or more of the allegations of ineffective assistance of counsel, standing alone, showed that Mr. Weber made errors so serious that he was not functioning as the “counsel” gúaranteed the petitioner by the Sixth Amendment, and that the deficient performance prejudiced the defense sufficiently to undermine confidence in the outcome of the trial.

State v. Hardin, 347 Ark. at 67, 60 S.W.3d at 400 (emphasis added).

I fail to see how Hardin and the instant case are distinguishable. This language from Hardin shows that a trial court must make two findings in order to grant a new trial based on an error that rises to the level of ineffective assistance of counsel under the Strickland test: (1) that counsel was deficient in regard to the error so that he was not performing as “counsel” guaranteed by the Sixth Amendment, and (2) that the error prejudiced the defense sufficiently to undermine confidence in the outcome of the trial. In reading the trial court’s order in the instant case, the trial court found trial counsel deficient in regard to the issue of Mr. Franklin’s failure to testify. This met the first prong of the Strickland test. However, the State correctly pointed out that the trial court made no finding that Franklin’s failure to testify either resulted in prejudice to him or undermined confidence in the outcome of the trial; therefore, as in Hardin, the prejudice prong of Strickland was not met on the face of the trial court’s order with regard to the individual errors examined by the trial court.

The only possible prejudice finding in the trial court’s order is in the point on cumulative error in which the trial court states:

This Court has looked at trial counsel’s errors and omissions complained of by Franklin. Considering the totality of the circumstances, and the cumulative nature of trial counsel’s flaws and inadequacies, the Court concludes that the aggregate of errors violated Franklin’s due process of law by depriving him of substantial justice and a fundamentally fair trial.

(Emphasis added.) The emphasized portion of this quote could possibly be read as a finding of prejudice that served to meet the second prong of the Strickland test; but, if so, it is the only such prejudice finding in the trial court’s order, and it is contained only in the point on cumulative error. Because the trial court did not base its order for new trial due to Franklin’s failure to testify on a two-pronged Strickland analysis, the only error in which the trial court arguably found Strickland prejudice was the point on cumulative error, placing this case exactly on point with Hardin. If Hardin was rightly decided, that would then mean Mr. Franklin’s case should also be remanded for the trial court to make a non-cumulative-error analysis on that final point on appeal, as was done in Hardin.

The fact is that this case has been correctly decided because Mr. Franklin did not show, and the trial court did not find, any prejudice that met the second prong of the Strickland test. The Hardin decision ignored the prejudice prong of Strickland and, I believe, was incorrectly decided. Rather than distinguishing this case from Hardin, I would overrule Hardin with the decision handed down in this case today.

Glaze, J., joins in this opinion.

       See Ark. R. Crím. P. 37.2(a) 1990 (modified 1991) “If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court while the appeal is pending.”