author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    Charlie WILLIAMS v. STATE of Arkansas
    CR 87-142
    742 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      G. B. “Bing” Colvin III, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was charged and convicted of first degree murder pursuant to Ark. Stat. Ann. § 41-1502 (Repl. 1977) (Ark. Code Ann. § 5-10-102 (1987)) and sentenced to forty years imprisonment. For appeal he argues: (1) the insufficiency of the evidence to support a conviction for first degree murder and (2) that the trial court erred in failing to grant a mistrial due to prosecutorial misconduct. Although we find the conduct on the part of the prosecutor to be unprofessional and below the standards expected of a state’s attorney, we find such misconduct did not prejudice the appellant.

There was no eyewitness to the homicide except the appellant; therefore, the case must stand or fall on circumstantial evidence. The uncontradicted testimony by several witnesses, including the appellant, discloses that the appellant and his daughter, Rosalee, had a serious argument a few hours before the homicide caused in part by Rosalee’s relationship to a man named Leonard Jordon, also referred to as “Lenon” and “Puddin.” Rosalee was told by appellant to get her clothes out of his house. When Jordon came to appellant’s residence to help Rosalee pick up the balance of her clothing appellant threatened to “blow his head off’ and told Jordon not to come back. According to the appellant’s testimony, Jordon stated words to the effect that he would not be back but somebody else would.

The appellant watched them move his daughter’s property to a house down the street where a person named James Earl Ford resided. Appellant observed them put his daughter’s clothes in the back of an automobile and he saw James Earl Ford leave the premises with the property and Rosalee and Jordon. It was almost dark at that time but the houses were only a short distance apart and visibility was still fairly good. The appellant testified that he saw Ford return to his residence. Meantime, the appellant had tried to borrow his father’s pistol to go outside to look for a “possum” in the chicken house. The father refused to allow the appellant to take his handgun outside and thereafter the appellant took a 30.06 rifle and went out by the chicken house.

The appellant saw Ford leave his residence with a gun in his hand and come toward the appellant’s residence. It was dark by this time. Obviously there was some type of outside lighting in the area. The evidence shows that Ford had a headlight strapped to his head and that he was going rabbit hunting. The appellant, who gave several versions of the homicide, indicated that he knew the man approaching his house was Ford and that he thought that Ford was coming to get him on behalf of Rosalee. Other times appellant testified he didn’t know who it was. In his statement to the police he said he didn’t know who was coming to get him but he thought it was Leonard Jordon.

According to appellant’s testimony, Ford ran up to near the property line of the appellant and slowed down, at which time the appellant, who was behind a big tree, called, “What are you looking for?” Appellant stated that Ford either called out, “You over there in the dark, what are you over there looking for?” or, “Where in the hell is you?” After this exchange the appellant stated he eased up to the back door and said, “Here I am.” According to him the other party stated either, “I come to burn your goddamn ass,” or “I have come to load you up.” After this exchange of words, appellant claimed Ford started aiming his shotgun at him; so, appellant fired his gun in self-defense.

The physical evidence shows that the shot entered the side of Ford’s head and killed him. Ford’s body was found in the street near the appellant’s residence with the shotgun beneath it and the safety on.

During the closing argument Prosecutor John Frank Gibson apparently referred to one of the appellant’s statements given to the chief of police to the effect that, “I didn’t know who I was shooting at but I thought it was Puddin, Lenon Jordon.” The prosecutor then addressed the jury as follows:

Mr. Gibson: “I asked you for forty years plus fifteen years. If you want to give him life o.k. if your disagree with me, say no, we can’t go more than second degree murder. Twenty plus fifteen. The man is dangerous. He hasn’t even killed Puddin yet.
Mr. Colvin: Your Honor, I object to the statement.
Mr. Gibson: Your Honor, he said he intended to kill Puddin.
Mr. Colvin: I object to it because of the fact that there is no evidence that he intends. And it is an implication that there is going to be another death in Dermott if this jury lets him go and I demand that that man be shut up on that kind of statement right there because that is totally uncalled for.
Court: Well, now here is what my ruling is, Mr. Gibson.
Mr. Gibson: It is in the statement.
The Court: The Jury has heard the testimony. They have heard whether or not anything was said about that. Therefore, they will have to make their ruling on what they heard, not what the counsel said.
Mr. Gibson: Can I argue it, Your Honor?
Court: No, sir.
Mr. Gibson: Your Honor, I heard him testify, by his statement there that he intended to kill Puddin.

A little later Gibson stated, “Well, Your Honor, you are sitting there commenting on my argument. I feel like if I hear testimony came from a witness that the Defendant intended to kill somebody, I want to remind the jury of it.” Gibson went on again to repeat, “I wanted to remind them that he hasn’t killed Puddin yet.” After repeating this tactic three or four times the prosecutor then apologized and sat down. The appellant’s motion for a mistrial was overruled.

We first consider the chief argument by appellant that the evidence was insufficient to show that he killed James Earl Ford with deliberation and premeditation as is required by Ark. Code Ann. § 5-10-102 (1987). On appellate review, this court reviews the evidence in a light most favorable to the state to determine whether the verdict is supported by substantial evidence. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Evidence is substantial if the jury could have reached this conclusion without having to resort to speculation or conjecture. Williams supra.

There was substantial evidence before the jury that appellant deliberately with premeditation shot James Earl Ford because he thought Ford was siding with Jordon or because he mistook Ford for Leonard Jordon. Appellant testified he saw Ford leave with Jordon and his daughter, come back, and then set out for his house with a gun in his hand. Appellant told the police right after the shooting that he thought the man he shot was Leonard Jordon.

The evidence clearly shows that the appellant shot and killed Ford in the street near where appellant lived. It was dark and the appellant had first hid behind a tree and then eased up near his own backdoor before the fatal shot was fired. The appellant’s own words clearly reveal he was not firing in self-defense. No doubt it took several minutes for Ford to get from his own residence up to the residence of the appellant which was plenty of time for appellant to form the intent to commit murder. He was hiding in the dark when Ford came along and need not have said anything in order to avoid a confrontation.

Even though there were no eyewitnesses to the killing, the jury had the right to resolve the evidence by not believing the appellant’s account of the shooting. Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985). There was testimony that Ford was going rabbit hunting. Ford’s shotgun and headlight were appropriate for rabbit hunting and his shotgun was found underneath his body with the safety still on.

The second point is more complex. There was no testimony at the trial that the appellant intended to go back and kill Jordon later. There was no testimony or other evidence that he intended to kill anybody else in the future. There simply was no basis in the record for the prosecutor to make the statements he made.

We have on numerous occasions dealt with closing arguments of overzealous prosecutors. In Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976), in a unanimous opinion we stated:

Closing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom. Simmons v. State, 233 Ark. 616, 346 S.W.2d 197. Whenever trial counsel argues matter that is beyond the record and states facts or makes assertions not supported by any evidence that are prejudicial to the opposite party, there is clearly error. Walker v. State, 138 Ark. 517, 212 S.W. 319; McElroy v.State, 106 Ark. 131, 152 S.W. 1019; Willyard v. State, 72 Ark. 138, 78 S.W. 765; and Fakes v. State, 112 Ark. 589, 166 S.W. 963.
When objection is made, the presiding judge should appropriately reprimand counsel and instruct the jury not to consider the statement, and in short, do everything possible to see that the verdict of the jury is neither produced nor influenced by such argument. Walker v. State, supra. The failure to sustain a proper objection to argument of matters not disclosed by the record is serious error, because it gives the appearance that the improper argument has not only the sanction but the endorsement of the court. Miller v. State, 120 Ark. 492, 179 S.W. 1001; Hays v. State, 169 Ark. 1173, 278 S.W. 15; Elder v. State, 69 Ark. 648, 65 S.W. 938. It has even been said that the overruling of a proper objection to a statement amounting to a declaration of law is tantamount to the giving of an instruction to that effect.

A trial judge has wide discretion in control of arguments to the jury, but there is a limit to his discretion. Holcombe v. State, 203 Ark. 640, 158 S.W.2d 471 (1942). We have stated that we will always reverse a case where counsel goes beyond the record and states facts that are prejudicial to the opposite party unless the trial court by its action has removed such prejudice. Adams v. State, 176 Ark. 916, 5 S.W.2d 946 (1928). Failure of the trial court to exercise such discretion calls for reversal. Hays v. State, 169 Ark. 1173, 278 S.W. 15 (1925).

This court has repeatedly held over the years that a prosecuting attorney acts in a quasi-judicial capacity and he has a duty to use all fair, honorable, reasonable, and lawful means to secure a conviction of guilty in a fair and impartial trial. However, the desire to obtain a conviction is never proper inducement to include in closing arguments anything except the evidence in the case and legitimately deducible conclusions from the applicable law. Mays v. State, 264 Ark. 353, 571 S.W.2d 429 (1978). We have stated, “Basically, the rule rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations.” Simmons and Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961). A finding of guilt should therefore only rest upon legitimate proof in the record and not upon efforts to persuade or appeal to the jury by arguing things which were not presented. Simmons, id.

It is a serious matter when an attorney attempts to appeal to the prejudice of the jury by arguing matters outside the record. However, we usually defer to the trial court in the exercise of its discretion in such matters. The trial court is in superior position to determine the possibility of prejudice, and to observe the mannerisms, expressions, and demeanor of the parties in determining whether to grant a mistrial. The decision of whether to grant a new trial is discretionary with the trial judge and will not be reversed on appeal in the absence of a showing of abuse of discretion or manifest prejudice to the accused. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). Harvey v. State, 261 Ark. 47, 545 S.W.2d 913 (1977).

Admittedly the prosecutor’s statements were improper. However, we think the effect of the action taken by the trial court was to inform the jury that the argument presented by the prosecutor was not in evidence and could not be considered by them. Obviously, the best course of action would have been for the trial court to immediately reprimand the prosecutor in front of the jury.

We consider misconduct on the part of counsel on the facts of each case. What is prejudice in one case might not be in a similar case. There is no indication in the present case that the verdict was attributed to or was in any manner influenced by the prosecutor’s improper argument. The appellant was convicted of first degree murder and received a sentence of forty years. He could have been given a life sentence. In spite of the improper argument by the prosecutor we do not find prejudice to have resulted under the facts of this case. See Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983) and Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984). A prosecutor who conducts himself in such a manner runs the risk of costing the state and county a retrial or even the possibility of allowing a guilty person to escape punishment. We strongly discourage such conduct on the part of either counsel. However, under the facts of this case, we cannot say that the trial court abused its discretion in continuing with the trial.

Affirmed.

Hays and Glaze, JJ., concur.

Steele Hays, Justice,

concurring. I disagree with that part of the court’s opinion which chastises the prosecutor for arguing that the defendant hasn’t killed “Puddin” yet. The majority opinion declares there was “simply no basis in the record” for the prosecutor’s remarks. I take exception. The Dermott police chief testified that the defendant told him at the scene that he intended to kill “Puddin,” whom he did not like, but in the dark mistook James Earl Ford, whom he did like, for “Puddin.”

Whether that testimony gave rise to an inference that the defendant posed a threat to “Puddin” was for the jury to weigh, but it was not inappropriate, as I see it, for the prosecutor to argue what he believed to be consistent with the trial testimony. It is the role of counsel, in this instance the prosecutor, to urge such inferences to the jury as he thinks are sustained by the evidence. Only when such remarks are clearly without basis should the argument be labelled “improper.” The trial court’s handling of the issue in denying a mistrial and instructing the jury to decide the case on the testimony, rather than the argument, was a proper handling of the matter and we should, I believe, let it rest there.

Glaze, J., joins.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    David INGLE v. STATE of Arkansas
    CR 87-164
    742 S.W.2d 939
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      Gibson & Deen, by: Thomas D. Deen, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant entered guilty pleas to three felonies, was sentenced in each case, and began serving the sentences. He then filed a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37 alleging constitutionally inadequate representation because of his attorney’s conflict of interest in representing codefendants. The trial court denied post-conviction relief. We reverse and remand.

It is settled that “[requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel.” Holloway v. Arkansas, 435 U.S. 475, 482 (1978). Inmany cases, “‘[a] common defense. . . gives strength against a common attack.’ ” Id. at 482-83 (quoting Glasser v. United States, 315 U.S. 60, 92 (1942) (Frankfurter,.!., dissenting)). However, appointing or permitting a single attorney to represent codefendants does create a possible conflict of interest that could prejudice either or both clients. See Burger v. Kemp,_U.S__, 107 S. Ct. 3114, 3120 (1987). The possibility of prejudice does not justify “an inflexible rule that would presume prejudice in all cases.” Id. Instead, prejudice is presumed “ ‘only if the defendant demonstrates that counsel “actively represented conflicting interests” and “an actual conflict of interest adversely affected his lawyer’s performance.” ’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980) (footnote omitted))). Thus, the inquiry in the case at bar is whether counsel actively represented conflicting interests and, if so, did that conflict adversely affect the lawyer’s performance.

The facts are as follows. On November 21,1985, the police searched a house in Star City occupied by appellant and codefendant Audrey Courtney, and also searched Mrs. Courtney’s car, located at the residence. The police seized fifteen pounds of marijuana from the house and car. Four days later, on November 25, appellant and codefendant Courtney were jointly charged with possession of a controlled substance. Ark. Stat. Ann. § 82-2617 (Supp. 1985). Because of the amount of marijuana seized, the information was amended to possession of a controlled substance with intent to deliver. On December 20, appellant and codefendant Courtney employed Robert Remet as their attorney. Remet filed various defense motions and prepared for trial. The deputy prosecuting attorney offered to recommend a term of nine years each for the appellant and codefendant if they would plead guilty. Their attorney wrote back, “Would you consider reducing the state’s offer to 6 years for each defendant?” Appellant and the codefendant subsequently rejected the State’s offer.

On June 8, 1986, the police searched appellant’s pickup truck and seized another three and one-half pounds of marijuana and, in addition, seized the truck for forfeiture. The next day, June 9, appellant was charged with two additional felonies, one for the manufacture and possession of a controlled substance and the other for possession of a controlled substance with intent to deliver.

Three days later his attorney wrote the deputy prosecutor about the second set of charges against appellant, and also inquired about the first charge against appellant and his co-defendant:

Needless to say, my client’s subsequent, alleged drug related offense has nonplussed his poor lawyer. . .
Talk about out of the frying pan and into the fire!
The previous case, LCR 85-94-2 (State v. David Ingle and Audrey Courtney) is set for trial on September 23, 1986.
Please think about a new plea offer for Mr. Ingle, present developments duly considered. And, while you’re at it, may I, once again, ask for some clemency for Mrs. Courtney — who, if hindsight be any guide, was probably not in pari delicto in the earlier case (CR85-94-2)?
The state’s statutory entitlement to retribution, insofar as Mrs. Courtney be concerned, will not suffer if she is placed on 5-years’ supervised probation, and required to pay an appropriate fine. In fact, in view of the latter case against Mr. Ingle, such an arrangement would not be unreasonable.

On June 20, in the codefendant’s case, the State offered to recommend five years on probation and a fine of $3,000.00. The codefendant accepted the plea on June 24. On the same day, June 24, the deputy prosecutor mailed a plea offer for appellant. The offer was for five years on the first charge and ten years on each of the second charges filed June 9, the latter two sentences to be concurrent to one another but consecutive to the five year sentence. In addition, the bargain called for forfeiture of the truck. The appellant accepted the plea offer on June 25 and was sentenced on July 1. On that same day, July 1, appellant’s attorney wrote the deputy prosecutor:

That 1985 Ford Ranger pick-up, formerly the property of David Ingle, is subject to a lien of about $3000 or so with Ford Motor Credit Co., as well as to an indirect lien of over $3500, running in favor of Audrey Courtney.
Since (1) the confiscation is subordinate to secured liens; and (2) Mrs. Courtney did in fact put up the cash for the downpayment ($3500), as well as make the monthly payments; and (3) Mrs. Courtney was not involved in 86-34-2, which is the case at issue (the confiscation), what are your thoughts about titling the truck in her, and having her go ahead and continue the payments?
If, for one moment, I believed Courtney to be in pari delicto with Ingle, period, I would not ask for you to consider ceding the truck to her.
Punishment and retribution have now been exacted: he gets the pen, she gets a healthy fine and probation. Plus, he has lost his truck. Fair is fair, wouldn’t you say. . .?

The foregoing facts show that at first, when appellant and the codefendant had equal charges pending, their attorney devoted his full loyalty to both clients and sought a six year sentence for each of them. However, when the second set of charges was filed against appellant, a disparity of charges between the clients came into existence. When a substantial disparity of evidence or of charges exists, it is unusual if an actual conflict does not also exist. Armstrong v. People, 701 P.2d 17, 22 (Colo. 1985); see also Boyette v. State, 290 Ark. 43, 716 S.W.2d 749 (1986). The attorney reacted to the disparity of charges by changing his plea bargaining from a position of complete loyalty to both clients to one of comparing his clients’ culpability, even on the first charge: “Courtney ... if hindsight be any guide, was probably not in pari delicto in the earlier case. . . .’’At this time the attorney was in the middle of conflicting interests. The conflict is even more clear in his subsequent letter: “Punishment and retribution have now been exacted: he gets the pen, she gets a healthy fine and probation. Plus, he has lost his truck. Fair is fair, wouldn’t you say. . .?”

The facts conclusively establish that the attorney was playing one client against the other, which constitutes a clear conflict of interest. The facts also conclusively establish that, after getting in the middle of the conflicting interests, the attorney’s performance was adversely affected because he no longer had complete loyalty to appellant. He virtually abandoned appellant in order to get a better offer for the codefendant. Accordingly, we hold that appellant had constitutionally inadequate representation at the time he pleaded guilty.

Reversed and remanded.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Kenneth Wayne SMITH v. STATE of Arkansas
    CR 87-151
    742 S.W.2d 936
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      William R. Simpson, Jr., Public Defender, Howard W. Koopman, Deputy Public Defender, by: Donald K. Campbell III, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: DavidB. Eberhard, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A jury found the appellant guilty of rape and fixed his sentence at forty years. On appeal, he argues that the prosecutor used peremptory challenges in a racially discriminatory manner to strike blacks from the jury in violation of the Equal Protection Clause. We find no merit in the argument and affirm the judgment of conviction.

The Supreme Court of the United States has held that a criminal defendant has

the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors.

Batson v. Kentucky, 476 U.S. 79,_, 106 S. Ct. 1712, 1717 (1986) (citations and footnote omitted). We wholeheartedly follow that rationale. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).

Under Batson, a defendant who alleges improper use of peremptory challenges must establish a prima facie case of purposeful discrimination. If the defendant makes this showing, then the burden shifts to-the State to give a neutral explanation for the questioned challenges. 106 S.Ct. at 1722-23. In the present case the appellant failed to establish a prima facie case of purposeful discrimination.

In Batson, the Supreme Court noted:

[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

Id. (citations omitted). It is clear from the record here that the appellant and the two veniremen struck were black. Therefore, the only question remaining is whether the facts and circumstances raise an inference that the strikes were racially motivated.

Regarding this question, the Supreme Court stated:

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.

Id. at 1723. First, there were no questions or statements made during the voir dire examination that support an inference of discriminatory purpose. Second, the striking of two jurors, standing alone, is not sufficient to establish a Batson “pattern.” See Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986); see also United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987).The appellant argues that the striking of only two jurors is sufficient if the strikes have the effect of removing all blacks from the jury. The appellant asserted below that the two veniremen struck were the only black jurors empaneled; however, this assertion was denied by the deputy prosecutor, and we are unable to determine what the true facts were. In addition, but of lesser importance, we are not given any information about the race of the two veniremen empaneled to replace those struck. In short, the appellant did not establish the very fact on which he now seeks to base his argument. Accordingly, we hold that the appellant failed to make a prima facie case of purposeful discrimination as required by Batson and Ward.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In the case of Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), we “wholeheartedly” endorsed the Batson decision prohibiting purposeful discrimination in the jury selection process. Before the ink is dry on Ward we have begun the process of backtracking and limiting its application.

It is common knowledge in the legal profession that the standard procedure with many prosecuting attorneys is to peremptorily challenge blacks from the venire when the defendant is also black. True to tradition, in the present case the only two persons struck from the jury panel were black. I do not see any distinction between striking the only two black jurors and striking all eight black jurors from a panel, as was the case in Ward, or all four as in Batson. If all blacks are struck the purpose is achieved.

The appellant brought this discriminatory practice to the attention of the trial court before the trial itself commenced. The appellant alleged discrimination and stated that the only two black jurors on the panel were struck by the prosecution. Subsequently a dispute between counsel ensued over whether one of the remaining jurors was black.

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), partly overruled the decision in Swain v. Alabama, 380 U.S. 202 (1965), and held that “a defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial” (emphasis added). Swain was overruled because it “placed on defendants a crippling burden of proof.”

To establish a prima facie case under Batson:
[T]he defendant first must show that he is a member of a cognizable racial group [citation omitted] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” [citation omitted] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. [90 L.Ed.2d 88]

Once the defendant makes this showing, the burden shifts to the state to come forward with a neutral explanation for challenging black jurors. The prosecutor “must articulate a neutral explanation related to the particular case to be tried.”

The state concedes, and the record clearly reflects, that the appellant is black and that the prosecution struck two blacks from the panel. The state thus contends that the appellant has failed to make a prima facie case of purposeful discrimination. In the alternative, the state argues that it made “sufficient neutral explanations” for challenging the black jurors.

In Ward, there were eight blacks struck from the panel, leaving an all-white jury. In Batson, there were four blacks struck, leaving an all-white jury. In the present appeal, there were two blacks struck, and it is uncertain whether there was an all-white jury. However, it is clear that the only two persons struck from the panel were black. This is sufficient to establish a prima facie case of discrimination.

At a hearing in chambers preceding the trial the prosecutor attempted to justify his only two strikes. One of the excused jurors was dismissed because “she was not making contact with me, and not showing what I felt to be the interest in the case for a juror that I would want.” In the words of Justice Hickman in Ward, the state’s explanations “were pretty thin.”

The effect of the decision today is to tell prosecutors that, while we won’t accept outrageously blatant discrimination, a little discrimination is permissible. I am compelled to quote from Ward: “The best answer the state can have to a charge of discrimination is to be able to point to a jury which has some black members.” In keeping faith with our pronouncement in Ward we should reverse and remand for a new trial.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Rickie Darnell LONG v. STATE of Arkansas
    CR 87-95
    742 S.W.2d 942
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      Stephen R. Giles, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Rickie D. Long and Charlie Ray Johnson were charged with the crimes of aggravated robbery and theft of property. The charges grew out of the armed robbery of a Chicken Country restaurant in Pine Bluff on September 26,1982 by Charlie Ray Johnson. Johnson pled guilty to the crimes.

Attorney John L. Kearney was appointed to represent Long and a jury trial was held on June 7 and 8,1983. Johnson testified that he and Long planned the robbery and divided the proceeds immediately afterwards at Long’s house. Long was convicted of theft of property and, having four prior felony convictions, was sentenced to twenty years in the Department of Correction. The jury was deadlocked at 7 to 5 on the charge of aggravated robbery and a mistrial was declared. At the second trial on July 1,1983 a verdict of guilty was returned, resulting in a sentence of forty years to run consecutively to the other sentence.

Long attempted to appeal his convictions unsuccessfully and in October, 1983 we granted a belated appeal to Long, issuing a writ of certiorari to send up the record. Long refused the appointment of counsel and chose to represent himself. The writ of certiorari was returned and the record lodged in this court on December 15, 1983. No further steps in the appeal were taken and eventually the state moved to dismiss the appeal, which we granted on July 9, 1984.

On June 17,1986 Rickie D. Long filed a petition under Rule 37 alleging that (1) his sentences were void and should be vacated because the evidence presented at his trials was insufficient to corroborate the testimony of an accomplice, Charlie Ray Johnson; (2) the evidence was insufficient to support a conviction; (3) that he was denied the effective assistance of counsel by reason of his attorney’s failure to (a) adequately prepare and present a defense, (b) interview state and defense alibi witnesses prior to trial, (c) move for a directed verdict of acquittal, and (d) file a notice of appeal; (4) that he was denied due process of law in that defense counsel was not properly prepared for and did not object to the sentencing of the defendant as an habitual offender. The trial court denied the petition and Long has appealed on the single issue that it was error to deny the petition without an evidentiary hearing. We find no merit in the argument.

Long invokes A.R.Cr.P. Rule 37.3 which provides that if the Rule 37 motion and the files and records conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records relied on to sustain the court’s findings. Here, the trial court made no findings other than a finding that Long’s petition was without merit and an evidentiary hearing was unnecessary. However, we have affirmed the denial of Rule 37 motions notwithstanding the trial court’s failure to make written findings as required by Rule 37.3 where we have been able to determine from the record that the petition is without merit, Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979), or the allegations of the petition are such that it is conclusive on the face of the petition that no relief is warranted. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). Here, from either point of view Long’s petition for post-conviction relief is meritless.

The allegations of the petition are patently conclusory. We quote: the evidence was insufficient to corroborate the testimony of an accomplice, the evidence was insufficient to support a conviction; there was a denial of effective assistance of counsel by reason of a failure to adequately prepare and present a defense; a failure to interview witnesses prior to trial; a failure to move for a directed verdict of acquittal, failure to file notice of appeal; that defense counsel’s failure to prepare or to object to Long’s being sentenced as an habitual offender was a denial of due process.

If such general, nonfactual assertions were sufficient to require an evidentiary hearing under Rule 37, it is obvious that everyone committed to prison under a facially valid judgment would be entitled, following an unsuccessful appeal, to an evidentiary hearing before the trial court to review in every particular the trial, the evidence, all prior convictions, and every phase of defense counsel’s preparation and trial strategy. Such was never the intent of Rule 37, which was designed to provide a recourse to those individuals who are wrongly incarcerated under a judgment so flawed as to be void. Campbell v. State, 288 Ark. 213, 703 S.W.2d 855 (1986). In this connection we have said repeatedly that motions for relief under Rule 37 which contain merely conclusory allegations do not warrant relief in the form of an evidentiary hearing. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). In other words, if a movant under Rule 37 cannot allege grounds which show a factual basis for some entitlement to relief, he or she should not expect favorable action on the motion. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982).

The record itself demonstrates why this petition fails to allege explicit grounds for post-conviction relief. Long maintains there is “not a shred of evidence” connecting him to the crimes except the uncorroborated testimony of Charlie Ray Johnson. The assertion is palpably false. The record reveals that Rickie Long had been working at Chicken Country about six months. On the Sunday evening of the robbery he got off work about six o’clock. Just before the ten o’clock closing time a gunman walked into the restaurant and ordered two employees and a single customer to the back where he obtained cash from the cash register and, when told that was all, he said “Quit stalling. I want the money from the file cabinet.” He left with about $575 in a white cloth bag inside a brown paper sack. About sixty to seventy dollars was in rolled coins in packages bearing the signature of Bettie Neal.

One of the employees recognized the robber as Charlie Ray Johnson and by about midnight Johnson, who had no previous record, was in custody. On Monday Johnson confessed to the crimes and implicated Rickie Long. Long was arrested on Tuesday and he consented in writing to a search of his house. There the officers found a roll of dimes wrapped in a towel in the bathroom, a roll of pennies in a bedroom bureau drawer, several rolls of coins in a closet in the front room and the white cloth bag and paper sack in a trash can in the kitchen; all were well hidden.

Johnson testified that he and Long had known each other since childhood. He said Long came to his house that Sunday evening around seven o’clock and proposed the robbery of the Chicken Country where Long worked. Long, he said, described it as “easy money” and explained the layout. Long told him that besides the cash register there would be cash in the back of a file cabinet drawer in the office. When Johnson mentioned that one of the employees knew him, Long assured him she was not working that night. After the robbery Johnson went to Long’s house, and the two men divided the money. While Long and his girlfriend were gone for cigarettes, Johnson left, leaving the rolled coins in a bag on the couch. After his arrest Johnson concluded that Long had deceived him in telling him the woman who knew him was not working and he decided to testify to the facts.

The state further proved through Mr. and Mrs. Neal that the rolled coins bearing Mrs. Neal’s signatures had been delivered by them to Simmons Bank a few days before the robbery. They identified the coins taken from.Long’s house as the coins delivered by them to Simmons. A Simmons bank teller testified the rolls with the Neal signatures were delivered to the manager of Chicken Country prior to the robbery.

In addition to the discovery of the bank bag and rolled coins at Long’s house, the state established that Long gave conflicting accounts of his actions following the robbery and concerning the presence of the robbery proceeds at his house. Long denied at trial meeting Johnson before the robbery, but he admitted telling the police he had seen Johnson about 7:00 p.m. and Johnson’s sister testified that Long came to their house that evening around seven o’clock. Long first told the police he found the money in a sack under his couch, but testified he didn’t know anything about it until the police search uncovered it. He told the police he had given his girlfriend two rolls of quarters but testified that he told them that merely to protect her. At trial he claimed he collected coins and that the rolls of dimes found in the bathroom and the pennies found in the bedroom belonged to him. In short, there is an abundance of corroborating evidence connecting Long with the crimes and more than enough substantial evidence to support the jury’s verdicts.

With respect to the charge of ineffective assistance of counsel, the record compels the conclusion that Long received competent representation from court appointed counsel. Mr. Kearney was aggressive and evidently well prepared. He interposed numerous objections, a majority of which were sustained, and he succeeded in barring entirely one witness for the state in spite of a forceful attempt by the state to sustain the proffered witness. At the close of the first trial Long gave a lengthy statement professing his innocence no part of which impugned defense counsel’s efforts.

Long’s allegation that Mr. Kearney failed to interview alibi witnesses lacks substance. While two alibi witnesses, Tommy Tillman and Felix Bee, were subpoenaed by the defense, only Tillman took the stand. His testimony had no probative value as he could only state that he, Long and Felix Bee drove around for about twenty minutes around 9:00 or 9:30 on the evening of the robbery, challenging nothing the state had proved. Nor can we find anything to suggest that greater preparation would have strengthened the defense.

Long’s allegation that his counsel was ineffective in failing to move for a directed verdict is obviously without merit. In the face of the evidence presented by the state such a motion would have been futile. Moreover, we have held that the failure to challenge the sufficiency of the evidence by a motion for a directed verdict is not ineffective assistance. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984).

Nor is there any merit to the argument that Kearney’s failure to file notice of appeal deprived Long of effective assistance of counsel at trial. While defense counsel has a duty to move to be relieved or to continue to represent the defendant on appeal, Kearney’s failure to do either did not prejudice Long’s right to an appeal because we granted Long a belated appeal. In that connection, as we have noted, Long refused appointed counsel and insisted on his right to appeal pro se. The eventual dismissal of the appeal was due solely to Long’s failure to pursue his appeal.

The argument that Long was denied due process because Kearney did not object to Long’s being sentenced as an habitual offender is not mentioned in appellant’s brief and thus is wholly unsupported by any authority. Long’s admission in trial that he had been convicted of four previous felonies renders any contention under this point plainly lacking in merit. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

The order appealed from is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Once again this court has rendered an opinion clearly contrary to our Rules of Criminal Procedure. As stated in the majority opinion the appellant’s Rule 37 petition was denied without a hearing and without written findings of fact. This is clearly contradictory to Rule 37.4(a) which reads as follows:

If the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.

I cannot understand how this Rule could be confusing or subject to more than one interpretation.

A petitioner under Rule 37.1 is entitled to have a meaningful consideration of his petition. That is the reason Rule 37.4(a) requires written findings of fact. If we are going to continue to serve as trier of fact, as we did in this case, and require the attorney general to investigate and prepare these cases, then we may as well have the petitions filed directly in this court.

When there is an appeal from a complete denial of a Rule 37 petition without findings of fact, the record must in some manner be supplemented in order for us to make an honest and fair decision. In the present case a trial transcript was available only because we had previously granted the appellant the right to appeal. But seldom will we have the trial record available. The logical and practical way to avoid such situations is to require the trial courts to follow Rule 37.4(a). Also, in fairness to petitioners and this court, we ought not to ignore the rules and engage in trial fact finding proceedings, and then sit in judgment as the appellate court in the same case.


author: David Newbern, Justice.

text:
    Raymond Ted BARNES v. STATE of Arkansas
    CR 87-196
    742 S.W.2d 925
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      Law Office of Ronald L. Griggs, by: Ronald L. Griggs, for appellant.

      Steve Clark, Att’y Gen., by: DavidB. Eberhard, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Raymond Ted Barnes, was convicted December 10, 1984, of possession of marijuana with intent to deliver. He pleaded guilty and was sentenced to a fine of $10,000 and placed on probation for five years. He was convicted on September 8, 1986, of a second possession with intent to deliver offense and sentenced to ten years imprisonment and a $25,000 fine. The probation resulting from the first conviction was then revoked, and a sentence of ten years was entered for that offense. The appellant challenges the constitutionality of Ark. Code Ann. § 5-4-309 (1987), claiming that its provisions dealing with the manner of revoking probation violate his right to due process of law. He also contends the revocation proceedings did not comply with the statute and that it was a violation of his due process right to revoke probation on the basis of a second conviction which is still on appeal. We find no error and affirm.

1. Constitutionality of the statutes

At the opening of the probation revocation hearing, the appellant’s counsel challenged the constitutionality of Ark. Stat. Ann. §§ 41-1201 through 41-1212 (Repl. 1977 andSupp. 1985) which are now codified as Ark. Code Ann. §§ 5-4-301 through 5-4- 320 (1987). However, he did not raise with the trial judge any of the constitutional arguments he asserts on appeal. He did not mention the lack of a provision for jury trial or the standard of proof, and he did not ask the judge to disqualify or otherwise challenge the independence of the judge. After stating that the statutes were unconstitutional, the appellant argued only that § 5- 4-309 had not been followed, as he had been neither summoned nor arrested, and that compliance could therefore not be had with § 5-4-310(b) (2) which requires that the revocation hearing be held within 60 days after the arrest. That argument has nothing to do with the allegations here that the statutes are unconstitutional. Even constitutional challenges will not be heard on appeal unless they have been made at the trial court, Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987); Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982), so we will move on to the contention that the statutes were not followed.

2. Summons, arrest, and hearing

Section 5-4-310 does not require that one accused of violation of probation be summoned or arrested. It says only that he may be. The statute does require that the defendant be given prior notice of the time and place of the preliminary hearing, the purpose of the hearing, and the conditions of suspension or probation allegedly violated. While the appellant’s counsel argued noncompliance with the statute, he was unable, upon inquiry by the court, to say the appellant was surprised by the timing of the hearing or that he was prejudiced in any way by not having been arrested or summoned. Counsel had received the information about the petition for revocation on October 22, 1986, and had passed it on to the appellant within two weeks of receiving it. The hearing was not held until February 24, 1987.

In Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984), we held that the trial court did not lack jurisdiction of a revocation proceeding where there had been no formal arrest of the appellant. We noted that actual notice of the time and place of the hearing was sufficient. Reynolds also argued that the revocation hearing had not been held within 60 days after he was arrested on the charge which led to the revocation. We said the 60-day provision related to the time for having a hearing after the defendant is notified that the revocation petition had been filed, and“. . . that is all that is required [282 Ark. at 100, 666 S.W.2d at 398].” However, in Blake v. State, 262 Ark. 301, 556 S.W.2d 427 (1977), we made it clear that when there has been no arrest, the requirement of holding the hearing within 60 days is not absolute:

Whatever may be the rule when a defendant is arrested upon a petition to revoke a suspended sentence, we certainly cannot say that the 60-day limitation is mandatory when there is no such arrest. In many instances the defendant may prefer that the revocation matter be deferred until disposition of an underlying charge,.... Here there was no objection to the delay, no request for an earlier hearing, nor any showing of prejudice. [262 Ark. at 302, 556 S.W.2d at 428]

In the case before us now, the appellant argued at the hearing that the revocation matter should be delayed until after the appeal of the second conviction had been decided. It is clear that the delay of the hearing beyond 60 days caused no prejudice to this appellant. See also Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).

3. Revocation during appeal

The vast majority of jurisdictions which have considered the question have held that the fact that the conviction which results in a revocation petition is on appeal does not prevent revocation from occurring. See, e.g., State v. Roberson, 165 Conn. 73, 327 A.2d 556 (1973); State v. Barnett, 112 Ariz. 212, 540 P.2d 684 (1975); Rubera v. Commonwealth, 355 N.E.2d 800 (Mass. 1974). The cases are collected at Annot., Propriety of Revocation of Probation for Subsequent Criminal Conviction Which Is Subject to Appeal, 76 A.L.R.3d 588 (1977), which notes that Texas courts have taken the other view. The Barnett case points out that Oklahoma courts have also disagreed with the majority.

We hold that a conviction in violation of probation warrants revocation even though the conviction may have been appealed. A conviction represents either a plea of guilty or nolo contendere or a finding of guilt beyond a reasonable doubt by a judge or jury. Given the fact that a revocation can be had in circumstances where the proof requirement is less stringent, see Morrissey v. Brewer, 408 U.S. 471 (1972), we find no error in revoking probation if a conviction has occurred even though it may be on appeal.

Affirmed.


author: Tom Glaze, Justice.

text:
    HOOPER-BOND LIMITED PARTNERSHIP FUND III v. Don RAGAR
    87-192
    742 S.W.2d 947
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      Richard D. Taylor, for appellant.

      David Hodges and Gene O’Daniel, for appellee.
   Tom Glaze, Justice.

The present case is the third appeal before this court involving a successful derivative suit by Don Ragar and Hooper-Bond Limited Partnership Fund III (Limited Partnership Fund III) against Joseph Hooper, Boyd Bond and the Hooper-Bond Partnership for alleged improper acts relating to the Limited Partnership. In the current case, the appellant, Limited Partnership Fund III, is appealing the circuit court’s decision to award Don Ragar $20,000 for Christine Ragar’s services in preparation for the derivative suit. Appellant raises two points on appeal: 1) Whether the trial court’s finding that Christine Ragar’s services constituted a proper expense under Ark. Code Ann. § 4-43-1004 (1987), was in error; 2) Whether the amount of compensation awarded Christine Ragar by the trial court is reasonable and supported by evidence.

In his brief, the appellee questions this court’s jurisdiction of this appeal, arguing that the order from which appellant appeals is not final and that appellant failed to file a timely appeal. While we find no merit in either of these procedural points raised by the appellee, we do agree with his arguments that the trial court committed no reversible error, and therefore we affirm.

Appellant’s first point questions whether the services of Christine Ragar constitute a “reasonable expense,” under Ark. Code Ann. § 4-43-1004, which provides a court is able to award the plaintiff reasonable expenses when a derivative suit is successful. However, since the appellant raises this argument for the first time on appeal, this court cannot reach the merits of this issue. See e.g., Polnac-Hartman & Associates v. First National Bank, 292 Ark. 501, 731 S.W.2d 202 (1987); Puckett v. Puckett, 289 Ark. 67, 709 S.W.2d 82 (1986). The record clearly shows that the appellant questioned below the amount of compensation requested by Christine Ragar, but neither the appellant’s pleadings nor argument raised the issue as to whether her services fit the statutory meaning of “reasonable expense.” Accordingly, we can not address appellant’s first issue.

We do address the merits of appellant’s second point concerning whether the trial court erred in the amount of compensation awarded Mrs. Ragar. When examining a trial judge’s findings where there is no jury, the standard of review is whether those findings are clearly against a preponderance of the evidence. Furthermore, recognition must be given to the trial judge’s superior opportunity to determine the credibility of the witnesses and the weight to be given to their testimony. See McDermott v. Strauss, 283 Ark. 444, 678 S.W.2d 334 (1984); Shelter Ins. Co. v. Hudson, 19 Ark. App. 296, 720 S.W.2d 326 (1986); ARCP Rule 52(a).

In his motion, appellee Don Ragar requested $35,000 to compensate his wife, Christine Ragar, a real estate agent by profession, for her services in preparation for the derivative suit. At the hearing held to consider the motion, appellee introduced an exhibit which set out a chronology of services and an enumeration of the hours Mrs. Ragar performed and expended. Her time totaled over 700 hours, covering more than a two-year period. She charged $50.00 per hour for her services for which she requested a total fee of $35,000. Appellee called several witnesses who corroborated the time and services Mrs. Ragar performed. Randy Alexander, owner of McKay & Company, Realtors, testified that Mrs. Ragar worked as an independent contractor for his firm, and he related that she was a member of the Million Dollar Club and fell within “the top five percent of the people in the business.” Another real estate broker, Victor Hiryek, testified, describing his high regard for Mrs. Ragar’s competency and capabilities in the field of real estate. Hiryek said that as a real estate person, he personally had performed consulting work at $75.00 per hour, which he believed was a reasonable fee. Appellant’s counsel extensively cross-examined each of these witnesses and, in doing so, successfully showed that Mrs. Ragar’s services were not worth the $50.00 per hour fee she sought. Nevertheless, appellant presented no witnesses to rebut the appellee’s value evidence or to otherwise establish the worth of the services Mrs. Ragar performed in this cause.

Based upon the extensive testimony given by the appellee’s numerous witnesses, the trial judge made the finding that Christine Ragar’s services were substantial and valuable but awarded her $20,000, which is less than $30.00 per hour and $15,000 less than what she requested. Although we may have been inclined to award an amount even less than the $20,000 fixed by the trial court, we are unable to say the court’s findings were clearly against a preponderance of the evidence. Therefore, we affirm.

       Appellant is now named Shackleford Street Development Company.

       In the appellant’s brief, Arkansas Statutes Annotated was cited, but because the Arkansas Code of 1987 Annotated is now effective, we cite to the code parallel reference set out in Tables, Arkansas Code of 1987 Annotated.


text:
    Kenneth MALONE, Brian Bailey and Roy D. Haskett v. STATE of Arkansas
    CR 87-109
    742 S.W.2d 945
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      G. Keith Watkins, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is a criminal case in which the appellants entered respective guilty pleas to charges of theft by receiving and criminal mischief and each was sentenced to two years imprisonment. They seek reversal, claiming the trial court erred in denying or rejecting (1) their motion to withdraw their pleas, (2) their contention they received ineffective assistance of counsel, and (3) their alternative request for relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. We affirm.

Regarding the appellants’ first point, Rule 26.1 of the Arkansas Rules of Criminal Procedure provides that the trial court shall allow a defendant to withdraw his plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. As to the timeliness of such a Rule 26.1 motion, we have held that it must be made prior to sentencing. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979); Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977). In the instant case, we find nothing in the record to support the appellants’ claim that they made an oral motion to withdraw their pleas prior to sentencing. Instead, the record reflects only a written motion requesting such relief, and it was filed about one month after their conviction judgments were filed. The rule is well settled that an appellant must bring up a record sufficient to show that the trial court was wrong. King v. Younts, Chief of Police, 278 Ark. 91, 643 S.W.2d 542 (1982). Because the record before us fails to show the appellants filed a timely motion to withdraw their pleas, we uphold the trial court’s ruling denying what appears to be their belated request for withdrawal of their pleas.

Appellants, citing Rules 26.1(c)(i) and 37.1 of the Arkansas Rules of Criminal Procedure, next argue they were denied effective assistance of counsel because they were represented by the same attorney. Our first concern with the appellants’ argument is, as we have already held, that the appellants failed to file a timely motion in order to obtain relief under Rule 26.1. Also, concerning their Rule 37 request for relief, this court clearly has pointed out that the “Scope of the Remedy” for proceedings under Rule 37 is confined to a prisoner, in custody under sentence of a circuit court. Burkhart v. State, 271 Ark. 859, 611 S.W.2d 500 (1981). Here, the appellants were out of custody on their original bonds when they filed their motion for relief under Rule 37. Even so, assuming the appellants were entitled to seek relief under Rules 26.1 and 37.1, their claim of ineffective counsel must still be denied.

In the recent case of Burger v. Kemp,_U.S_, 107 S.Ct. 3114,_L.Ed.2d_(1987), the Supreme Court recounted the rule that requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not a per se violation of constitutional guarantees of effective assistance of counsel. The Court said further that it had never held that the possibility of prejudice that “inheres in almost every instance of multiple representation” justifies the adoption of an inflexible rule that would presume prejudice in all such cases. Id. at 3120. “Instead,” the court explained, “we presume prejudice only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” Id.

When we review the record before us in view of the settled law concerning joint representation as set out in Burger, we find nothing that suggests a conflict of interest among the three appellants, nor have appellants alleged any actual or potential conflicts which could be considered prejudicial. Clearly, allegations of ineffective assistance of counsel without substantiation do not justify post-conviction relief. Gilbert v. State, 282 Ark. 504, 669 S.W.2d 454 (1984).

For the reasons given above, we conclude that the appellants have failed to show reversible error. Therefore, we affirm.

       Appellants’ written motion did refer to an earlier oral motion, but, other than this bare allegation, nothing appears in the record to reflect the oral motion was made or ruled upon.


author: Per Curiam.

text:
    Wayne E. DUMOND v. STATE of Arkansas
    CR 86-50
    743 S.W.2d 779
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      John Wesley Hall, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

In August 1985 the petitioner Wayne E. Dumond was convicted of kidnapping and rape and sentenced to consecutive terms of twenty years and life in the Arkansas Department of Correction. We affirmed. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). Petitioner Dumond now seeks an evidentiary hearing in circuit court pursuant to Criminal Procedure Rule 37.1, alleging that he did not receive effective assistance of counsel.

In assessing the effectiveness of counsel, we adhere to the standard set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court held:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . 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 . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, 466 U.S. at 687.]

There is a strong presumption that counsel’s conduct at trial falls within a wide range of reasonable professional assistance, and the petitioner has the heavy burden of overcoming that presumption. A court hearing an ineffectiveness claim must consider the totality of the evidence before the jury and must judge the reasonableness of counsel’s conduct “on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, supra, at 690. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. A reasonable probability that, but for counsel’s conduct, the result of the proceeding would have been different is a probability sufficient to undermine confidence in the outcome. Strickland, supra; Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

Petitioner was represented by two attorneys at trial — Larry Horton and William McArthur. Petitioner states that Horton retained McArthur less than a week before trial to assist him and that McArthur had little to do with preparation for trial and was not fully informed as to all the issues in the case. The record, however, reflects that at a pre-trial hearing on April 12, 1984, more than four months before trial, Horton advised the court that he had associated McArthur as co-counsel and requested that the court enter his name of record. To what extent McArthur participated prior to trial is not evident, but, as co-counsel of record for four months before trial and in light of his extensive participation in the trial itself, McArthur as well as Horton must be considered responsible for the quality of the defense afforded petitioner.

Petitioner’s initial allegation of counsel error concerns scientific testing of evidence. At trial a serologist at the Arkansas State Crime Laboratory testified for the state that he had examined semen stains on the victim’s clothing and body fluids obtained from the victim in a medical examination of her shortly after the attack. The serologist testified that the semen contained no spermatozoa and was from a man with type A blood. He further said that the blood type could be ascertained because the man was a secretor; that is, one of approximately seventy percent of the population who secrets his ABO blood grouping into all his body fluids. (The victim was determined to be a type O secretor.) Relying on estimates that forty percent of the population has type A blood and seventy percent are secretors, the serologist concluded that only twenty-eight percent of the population could have produced the semen. When the incidence of males having undergone a vasectomy was figured in, the percentage of male persons who could have produced the semen was narrowed to .6 percent. As petitioner had type A blood, was a secretor and had undergone a vasectomy, the evidence by the state serologist suggesting that he could have been the rapist was strong. Petitioner’s assertion of ineffective assistance of counsel arises out of his attorneys’ failure to counter the state’s serological evidence with serological evidence favorable to the defense. First, petitioner asserts that there was a test not conducted by the state crime lab which would have excluded him as the rapist. According to petitioner, the test, immunoglobulin allotyping, has been available since the early 1970’s and can be used to genetically type body fluids that are several years old. As support for the allegation that counsel was ineffective for not arranging for the allotyping test to be conducted before trial, petitioner states that in mid-1987 he obtained the original semen samples and submitted them to an independent serological expert who performed the allotyping and concluded that the semen was genetically inconsistent with petitioner and could not have come from him.

We need not be concerned with whether the serological expert’s report (appended to the petition) is as conclusive as petitioner claims since the report clearly constitutes new evidence and as such will not be considered. Petitioner as well as the state, which has joined in the request for an evidentiary hearing on the allotyping evidence, place great significance on the outcome of the test despite the fact that evidence obtained after a conviction is not a basis in itself for postconviction relief. A claim of new evidence is a direct rather than a collateral attack on the judgment and not within the purview of our postconviction rule. Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981). The issue therefore is not whether the new evidence is reliable but rather whether counsel’s conduct in not seeing to it that allotyping was done before trial was reasonable. As noted, in deciding an ineffectiveness claim the reasonableness of counsel’s challenged conduct must be judged on the facts of the particular case when viewed as of the time of counsel’s conduct. It must be determined whether in light of all the circumstances the identified acts or omissions were outside the wide range of professionally competent assistance. While counsel’s function is to make the adversarial process work in a particular case, it must be recognized that counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. A decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strickland, supra.

We cannot say that the failure of counsel to secure allotyping on the semen samples in this case constituted an unreasonable professional decision given the relative obscurity of the test and its general lack of availability. Petitioner himself acknowledges that allotyping, which was not available at the State Crime Laboratory, was also unavailable at Roche Labs in North Carolina where the experts he had consulted were employed. In fact, petitioner says very little about the specific availability or recognition of the tests by serological experts at the time of trial, although he makes the blanket statement that highly discriminatory genetic tests were available at the time of trial. Petitioner does cite one treatise to support his statement that PGM testing is highly discriminatory and has been known since 1964, but he fails to cite any recognized treatise on the availability and generally recognized definitiveness of allotyping. There are numerous scientific tests which could be conducted on physical evidence in a criminal trial and failure of counsel to seek a particular test will not amount to a denial of the counsel guaranteed by the sixth amendment unless it can be concluded that the test was one which any competent attorney under the same circumstances would have sought. Petitioner has not met his burden of demonstrating that allotyping was reasonably available and widely recognized at the time of his trial and generally accepted in the relevant scientific community and therefore should reasonably have been made a part of his defense. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Petitioner notes that McArthur asked the state’s expert whether PGM testing had been done and mentioned the failure of the state to do the test in his closing argument, indicating that he recognized its significance. As with allotyping, neither the state nor Roche Lab did the test but he contends that it was readily available at other labs.

Petitioner states that counsel consulted Dr. Jim Geyer and Dr. Ron Barwich of Roche Labs who had performed the same ABO testing done by the state’s expert. Geyer was unavailable to testify because of a reaction to a bee sting, and petitioner contends that counsel was remiss in not calling Dr. Barwich who was present at trial to contradict the state’s expert who testified there was a 99.4% probability that the semen was petitioner’s. He further alleges that Geyer and Barwich could both have testified that 25 % of the male population has the same blood group as the petitioner. When discussing another allegation, petitioner states that Horton told Geyer after trial that he did not call Barwich because he planned to put Walter Stevenson on the stand and then expose Stevenson as the assailant.

The state’s serologist narrowed the percentage of males in the population who matched the evidence to .6 percent, but he did not testify that there was a 99.4 percent certainty that the petitioner himself was the rapist. Even if his testimony could be so construed, on cross-examination by McArthur he conceded that he could not say that his figures were accurate based on the testing done and that he could not say with certainty that spermatozoa were not present when the attacker ejaculated. The state’s expert further conceded that with the testing he had done he could only narrow the group of individuals from whom the semen could have come to twenty-eight percent of the male population.

When assessing an attorney’s decision not to call a particular witness or witnesses, it must be taken into account that such a decision is largely a matter of professional judgment which 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. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). In light of the cross-examination by petitioner’s attorney which resulted in the serologist’s admitting that the semen could have come from twenty-eight percent of the male population, petitioner has not shown that counsel’s decision not to call Geyer or Barwich was prejudicial to the defense or more than a simple matter of professional judgment.

In a footnote petitioner argues that ABO typing alone is no longer sufficient evidence in rape and paternity cases since other, more definitive testing, is available. He urges that the use of ABO typing when more definitive tests are available amounts to a violation of due process of law which should be confronted by this court, but the only way the issue could be within the purview of Rule 37 is if it presents a question so fundamental as to render the judgment in petitioner’s case absolutely void. Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986); see also Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986). There is no requirement that there be any scientific evidence to sustain a conviction for rape, see Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987), but even if serological testing forms a significant part of the state’s evidence, we are not persuaded by the arguments in this petition that a conviction is void for failure to perform any particular serological test.

The next portion of the petition concerns a publication contract between Larry Horton and petitioner and his wife. Petitioner alleges that Horton obtained the publication and literary rights to their story after petitioner was castrated in a widely-publicized attack. Petitioner asserts that the desire to have a inore interesting, dramatic story to tell led Horton to abandon all rational defense tactics. As the first of several examples of Horton’s disastrous strategy, petitioner states that Horton’s plan whereby he would put Walter Stevenson on the stand and try to prove he was the rapist “blew up” shortly before Stevenson was called to testify when it was discovered that Stevenson had the wrong blood type. Petitioner cites several references to Stevenson in cross-examination by the defense and the fact that he was mentioned in the list of witnesses for the defense in an attempt to show that counsel built the defense around Stevenson as the true perpetrator of the crime. Petitioner contends that when counsel did not call Stevenson, he was called instead by the state to rule Stevenson out as the attacker. In its closing argument the state noted that the defense had not called Stevenson. He alleges that the defense was left to lamely offer in closing argument that the evidence also pointed to Stevenson who was likely an innocent man.

After reviewing the record of the trial, we do not agree that the jury would have reasonably concluded that the defense was depending entirely on incriminating Stevenson to exonerate the petitioner. For one thing, Horton did not claim in his opening statement that he would produce the real rapist. While the state did note in its closing argument that Walter Stevenson had been listed as a witness for the defense and suggested as the attacker, McArthur responded in closing argument for the defense that the defense was not contending that Stevenson was guilty; the defense was merely pointing out that a strong case could be made against Stevenson who was probably innocent. The strategy was unsuccessful and may have been improvident, but petitioner has not shown that the tactical decision to suggest that Stevenson could have committed the crime amounted to ineffective assistance of counsel. We have consistently held that mere improvident strategy is not grounds to grant a Rule 37 petition. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

Petitioner also cites counsels’ failure to call James Taylor as a witness for the defense as proof that counsel abandoned a rational defense when they pinned their hopes on exposing Stevenson as the attacker. According to petitioner, Taylor, who was subpoenaed by the defense but released without testifying, would have corroborated his claim that he was sick on the day of the crime and would have told the jury that he saw petitioner a couple of days later and petitioner said that the illness had left him weak. Since petitioner and several defense witnesses testified about the illness, Taylor’s testimony would have been cumulative. Omitting him as a witness therefore did not deprive the defense of any vital evidence.

Petitioner also faults counsel for not offering into evidence a taped telephone conversation between him and his former employer Richard Kellum. He says that the heated conversation was taped before his arrest and before he knew he was a suspect and contained a statement wherein he explained that he had tried to reach Kellum several times on the afternoon of the crime to tell him that he was too sick to return to work but Kellum’s answering machine was not turned on. Petitioner does not state under what circumstances the tape came to be made. To constitute ineffective assistance of counsel, the failure to offer the tape into evidence would have to have been an error so serious that there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Strickland v. Washington, supra. The mere fact that the tape might have provided some corroboration for petitioner’s alibi does not create a reasonable probability that the result of his trial would have been different if the tape had been introduced into evidence.

Also with regard to Kellum, petitioner alleges that counsel should have cross-examined him for bias because Horton overheard the prosecutor “browbeating” him outside the courtroom trying to get him to shade his testimony to be more favorable to the state. He further states that he had a bitter unemployment compensation case against Kellum, a fact which would have shown Kellum to be biased.

Petitioner does not explain what the prosecutor said to Kellum which led him to conclude that Kellum was being browbeaten into shading his testimony, and he does not contend that any action by the prosecutor actually caused Kellum to be untruthful. There are a myriad of questions which an attorney could ask in cross-examining a state’s witness. It is not difficult in hind-sight to think of questions which could have been asked. Petitioner has not offered factual support from which it can be concluded that counsel was ineffective in not cross-examining Kellum about his dealings with the prosecutor or the compensation claim. It cannot be said that the failure to examine Kellum on the two points prejudiced the defense.

Another contention is that defense counsel failed to challenge the lineup or search and seizure and to cross-examine the victim about the lineup and photo arrays. He offers nothing, however, to show that any act or omission by counsel was actually motivated by Horton’s desire to make the publication contract more valuable.

Petitioner concludes his arguments about the publication contract with the allegation that the entering into the contract was unprofessional conduct which created a highly prejudicial conflict of interest. He asks that we adopt a per se rule that a conflict of interest exists where there is an agreement between defense counsel and an accused bestowing to the attorney publication or literary rights concerning the case. As petitioner concedes, courts usually hold that there is no per se rule regarding such contracts. Wojtowicz v. United States, 550 F.2d 786 (2nd Cir.), cert. denied, 431 U.S. 972 (1977); Ray v. Rose, 535 F.2d 966 (6th Cir.), cert. denied, 429 U.S. 1026 (1976). While recognizing the potential for a conflict of interest to develop in such cases and noting the language of Arkansas Rules of Professional Conduct, Rule 1.8(d), we will not presume prejudice. A petitioner who collaterally attacks his conviction under Rule 37 is required to show that he suffered some actual prejudice arising from a specific error by counsel. “Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Strickland v. Washington, supra, citing Cuyler v. Sullivan, 446 U.S. 335 (1980). As with any claim of ineffective assistance of counsel, the petitioner has the burden of providing factual support to demonstrate that counsel actively represented conflicting interests and that the conflict of interest adversely affected counsel’s performance. See Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

The petitioner also alleges that he was arrested without probable cause. He contends that either the warrant for his arrest was one that had been improperly presigned by the municipal judge without a determination of probable cause, see Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986), or that the judge issued it based on a statement by the victim which did not provide probable cause. His argument is that the illegal arrest and subsequent lineup tainted the victim’s in-court identification of him as her attacker and that his attorney was ineffective for not challenging the arrest. He claims that the in-court identification should have been suppressed. We find that even if there was no probable cause and the arrest was illegal, that illegality did not taint the in-court identification so that the petitioner was denied a fair trial.

The petitioner states that he was arrested on November 1, 1984, pursuant to a warrant based on affidavits of the victim and Officer Dye. He was then placed in a lineup. According to the record, a warrant was issued on November 28, 1984, accompanied by an affidavit signed by James Cole which reads:

I am employed by the Forrest City Police Dept. On September 11,1984, Wayne Dumond did go to the home of [victim] and did force her to leave the home with him at gun point and did take her to an unpopulated area in St. Francis County, Arkansas, and did force her to have sexual intercourse and oral sexual activities with him by the use of a deadly weapon. This information is based upon my investigation and the investigator of other officers of the Forrest City Police Department.

Officer Dooley testified at trial that the victim came to him after seeing the petitioner driving a truck and described him as her attacker. Based on the victim’s description of the man and the truck, Officer Dooley said that he arrested the petitioner. This testimony summarizes the facts surrounding the petitioner’s arrest as stated in Dooley’s affidavit for a search warrant for the petitioner’s truck and house. Although the facts of the arrest as recited by the petitioner might not provide probable cause, nor would the affidavit by James Cole which appears in the record, Officer Dooley’s testimony of his knowledge prior to the arrest indicates that he had probable cause for the arrest.

However, even if there were not probable cause for the arrest so that the arrest was illegal, the petitioner’s attorney was not ineffective for not challenging the arrest since we find that the in-court identification was not the product of the arrest. An illegal arrest, alone, is not grounds for Rule 37 relief. Gunn v. State, 291 Ark. 548, 726 S.W.2d 278 (1987). The issue is whether the arrest tainted the in-court identification of the petitioner by the victim so that the identification should have been excluded.

In Wong Sun v. United States, 371 U.S. 471 (1963), the United States Supreme Court stated that the test for determining whether evidence from an illegal arrest should be excluded is:

[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

The question then is whether the lineup and then the in-court identification was an exploitation of the arrest or whether the in-court identification came from a source that is independent of the initial illegality. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). We are satisfied that the in-court identification stemmed from the victim’s extended contact with her assailant during the attack rather than from the lineup. The victim testified that she was with the petitioner at approximately 2:45 p.m. for forty to forty-five minutes. He was not disguised and she stated that she saw him clearly. She had to persuade him not to kill her while standing face to face with him. The victim was absolutely positive about her identification of him in the courtroom. All of these factors are indicative of the reliability of the victim’s identification. Under these circumstances we find that the in-court identification was not the product of the arrest or resulting lineup. Therefore, the petitioner’s attorney could not be said to be ineffective for failing to challenge the arrest.

Neither do we accept the argument that the petitioner’s attorney was ineffective for failing to challenge the lineup as suggestive. Because we find that the victim’s in-court identification of the petitioner was based on her observation of him at the scene of the crime, no prejudice to the petitioner as a result of the lineup has been demonstrated.

The petitioner also claims that his attorney should have challenged the search that the police made of his pickup truck. The search yielded a pistol. The petitioner submits arguments that the warrant might have been presigned, that the search warrant might have been issued after the search, that the information in the affidavit was stale, and that the affidavit did not provide probable cause. All of these arguments do not suffice to demonstrate that had the search been successfully challenged and the evidence suppressed, there would be a reasonable probability that the outcome of the trial would have been different. See Strickland v. Washington, supra. The only item recovered was a pistol similar to that which the victim said that her attacker used. It is very unlikely that if the evidence had been suppressed the outcome of the trial would have been different since the victim positively identified the petitioner and in light of the other strong evidence that the state introduced against him.

Petitioner next states that after he was convicted investigators assisting him learned that the victim had picked a picture of a man named Ricky White from a police photospread as being her assailant. He further states that the Forrest City Police Chief admitted that the misidentification was withheld. He further states that Horton was aware, presumably before trial, that the victim had allegedly identified White, but the Forrest City Police Department “stonewalled” and denied it. He says that McArthur felt helpless on the issue since he got into the case so late. In a similar allegation, he alleges that Henry Leary, a St. Francis Deputy Sheriff, told “former defense counsel” (again, presumably after trial) that he was present when the victim viewed the lineup containing the petitioner and that she was unable to identify him until police Chief Joe Goff took her into another room and brought her back for a second viewing. Petitioner charges that the state withheld information about her inability to immediately recognize him in the lineup but does not claim that the information was available to counsel before trial. In fact, petitioner does not claim that either Horton or McArthur rendered ineffective assistance of counsel in regard to either piece of information which he alleges was withheld. The information was uncovered after trial and clearly constitutes new evidence. As with the genetic typing evidence discussed previously, it amounts to a direct attack on the conviction and is not therefore cognizable under our postconviction rule. Chisum v. State, supra.

Petitioner’s final allegation is related to an argument he raised on appeal. During the testimony of Bill Dooley, the police officer who had lifted fingerprints from the victim’s car in which she and her abductor had ridden, Dooley referred to a report from the State Crime Lab. McArthur immediately asked to approach the bench, stating that the defense had not been made aware of the report’s existence until that moment. The prosecutor responded that there may have been no written report. When McArthur insisted that the defense was entitled to the report if it existed, the prosecutor requested and was granted a recess to go over the matter. No record was made of what occurred during the recess, and petitioner now alleges that a discussion was held in the judge’s chambers among the court and the lawyers in which defense counsel moved for a mistrial on the ground that the fingerprint report had not been made available to the defense on discovery. Petitioner states that Horton did not learn that the in camera discussion containing the motion for mistrial was not made a part of the record until the transcript was prepared for appeal. (Horton did not mention in the appellant’s brief that any motion had been made in the conference.) He argues that Horton, who alone represented him on appeal, was responsible for moving to supplement the record if a part of the trial was omitted from the transcript. He contends further that the motion for mistrial made in camera was of great significance since the failure to request a mistrial in a timely manner, i.e. at the first opportunity, lead to this court’s declining to consider the issue on appeal.

The sixth amendment guarantee of effective assistance of counsel extends to effective appellate as well as trial representation. Evitts v. Lucey, 469 U.S. 387 (1985). The court in Evitts did not set out specific criteria for assessing the effectiveness of an attorney on appeal, and we have not addressed the question beyond the general holding that the petitioner is responsible for making a clear showing in the petition that counsel failed to raise some possibly meritorious issue. Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). Some courts have held that the standard for ineffective assistance of counsel established in Strickland v. Washington, supra, can be used as a basis for establishing a standard for effective assistance of appellate counsel. Jenkins v. Coombe, 821 F.2d 158 (2nd Cir. 1987); Gray v. Greer, 800 F.2d 644 (7th Cir. 1986); Bowen v. Foltz, 763 F.2d 191 (6th Cir. 1985);Schwander v. Blackburn, 750 F.2d 494 (5th Cir. 1985); Mitchell v. Scully, 746 F.2d 951 (2nd Cir. 1984). We agree that the Strickland guidelines are applicable to a review of a claim of ineffective assistance of counsel on appeal.

The Strickland standard requires two findings. First, that counsel’s performance was deficient, and second, that the deficiency resulted in prejudice to the defense. Prejudice will be presumed to have resulted where counsel failed to raise on appeal an issue of such significance that counsel’s performance can be said to have fallen below an objective standard of reasonableness and there was a reasonable probability of a different result but for counsel’s error. Counsel’s conduct must have undermined the proper functioning of the adversarial process. Since there is room in appellate, as well as trial, advocacy for professional judgment, it may be necessary to examine the record to see what issues counsel could have raised as compared with those issues which were raised. The case before us presents a situation which is unusual in that counsel is not taken to task for not raising the issue of the failure of the state to disclose the fingerprint report but rather for not supplementing the record on appeal to show that he made a timely motion for mistrial when he first learned that the fingerprint report had not been disclosed.

We regret the necessity of again pointing to “off-the-record” conferences held in chambers or at the bench pertaining to substantive matters before the trial court. All conferences should be on the record unless they involve matters unrelated to the trial in progress, in which case a note to that effect should be made. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987); Fountain v. State, 269 Ark. 454, 601 S.W.2d 862 (1980). There can be no doubt that the discussion about the fingerprint report concerned a substantive matter, and the state had a duty in accordance with Ark. R. Crim. P. 17.1 (a)(iv) to provide for the discovery of all reports or statements of experts made in connection with the case, including results of scientific tests or comparisons. Petitioner had made the appropriate request under A.R.Cr.P. Rule 17.1 and sought the basis of the results of any test. The prosecutor denied knowledge of the fingerprint report, but that information is imputed to him. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). As we said on appeal, while the information testified to by the expert was neutral and nonprejudicial, petitioner was entitled to challenge the state’s conclusion by having his own test performed. Although the state’s witness said that he could not determine from his examination of the fingerprints whether petitioner had been in the victim’s car, it was important for the effective preparation of the defense for the defense to study the state’s fingerprint report to prepare for the state’s evidence as well as to decide whether further investigation of the fingerprint evidence was necessary. We held when this case was affirmed on appeal that the defense had waived its objection about the fingerprint report when it made no further objections to the evidence until the state had rested. If an objection and request for mistrial were made during the off-the-record conference, counsel on appeal should have moved to supplement the record so that this court could have been aware of the timely objection and motion for mistrial in order to decide whether the trial court’s reasons for overruling the objection and denying the motion were proper. We will not presume that the accused suffered no prejudice in an off-the-record conference where the petitioner has made a factual allegation which, if true, may establish that he was prejudiced in his right to effective assistance of counsel on appeal. Since a complete record is necessary to determine whether there was a motion for mistrial and, if so, the exact context in which it was made and the reasons it was denied, we remand this cause to the trial court to supplement the record with the off-the-record conference. When the complete record is before us, we will decide whether the petitioner was denied effective assistance of counsel on appeal.

In conclusion, the petition for postconviction relief is without merit in all respects except for the allegation that petitioner was denied the effective assistance of counsel on appeal by virtue of counsel’s failure to secure a complete record and raise the denial of a timely motion for mistrial as grounds for reversal.

Remanded.


author: Jack Holt, Jr., Chief Justice.

text:
    INMON TRUCK SALES, INC. v. Honorable Walter G. WRIGHT, Judge, Garland County Circuit Court
    87-303
    743 S.W.2d 793
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Davidson Law Firm, Ltd., by: Charles Darwin Davidson and Clark W. Mason, for appellant.

      Wooten, Glover, Sanders & Slagle, P.A., by; Richard L. Slagle, for appellee.
   Jack Holt, Jr., Chief Justice.

Inmon Truck Sales, Inc. (“Inmon”) seeks a writ to prohibit the Garland County Circuit Court from enforcing a default judgment entered against it on the ground that Garland County is not the proper venue for the action. We find that Inmon waived venue and deny the petition. Therefore, we do not address the issue of whether venue is proper.

O. J. Mondy entered into a contract to purchase a new tractor trailer truck from Inmon. Mondy put a $2,500.00 deposit down on the truck and traded in his used tractor. The parties agreed that the truck was to be delivered within thirty days. Mondy then tendered his tractor and transferred the title to Inmon. When Inmon allegedly failed to provide a new truck to Mondy and refused to return the deposit, Mondy filed a breach of contract and conversion suit in Garland County Court. Twenty-eight days after it received service of process, Inmon filed an answer and motion to dismiss on the basis of improper venue. Thereafter, the court granted Mondy’s motion for default judgment.

The principal question raised by this appeal is whether Inmon waived its right to object to venue by failing to file a motion to dismiss within twenty days after service of process. Ark. R. Civ. P. 12(h)(1) provides that a defense of improper venue, lack of personal jurisdiction, insufficiency of process or service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived if it is neither made by motion under the Rule nor included in the original responsive pleading. Ark. R. Civ. P. 12(a) states that “a [resident] defendant shall file his answer within twenty (20) days after service of summons and complaint upon him . . .” (thirty days if a non-resident). Ark. R. Civ. P.12 does not specify a time limitation on presenting motions to dismiss. However, both Rule 12(b) and Reporter’s Note 7 [8] to the Rule indicate that a motion to dismiss should be made before filing a responsive pleading.

Although we have not addressed this issue, the weight of judicial authority interpreting Fed. R. Civ. P. 12, which is substantially the same as Ark. R. Civ. P. 12, supports the proposition that a failure to raise the defense of improper venue by motion or responsive pleading within twenty days after service of process is a waiver of the defense. Farmers Elevator Mutual Ins. Co. v. Carl J. Austad & Sons, Inc., 343 F.2d 7 (8th Cir. 1965); W.A. Stackpole Motor Transportation, Inc. v. Malden Spinning and Dyeing Co., 263 F.2d 47 (1st Cir. 1958); United States v. Gross, 276 F.2d 816 (2nd Cir. 1960); Nelson v. Victory Electric Works, Inc., 210 F. Supp. 954 (D. Md. 1962); Totalplan Corp. of America v. Lure Camera Ltd., 613 F. Supp. 451 (D.C.N.Y. 1985); contra Bechtel v. Liberty National Bank, 534 F.2d 1335 (9th Cir. 1976). We find this position to be well reasoned. Accordingly, we hold that a motion to dismiss for improper venue must be filed no later than the time at which the original responsive pleading is due. See Newbern, Arkansas Civil Practice and Procedure, § 11-1 (1985). Since Inmon failed to file a motion to dismiss for improper venue within twenty days after service of process upon him, he waived his right to object to venue.

Petition denied.