Garcia v. State , 2013 Ark. 405 ( 2013 )

Cite as 2013 Ark. 405SUPREME COURT OF ARKANSAS
No. CR-12-629
Opinion Delivered October 10, 2013
JEFFREY GARCIA PRO SE MOTION FOR LEAVE TO
APPELLANT FILE BELATED REPLY BRIEF AND
MOTION TO STRIKE APPELLEE’S
v. BRIEF [SALINE COUNTY CIRCUIT
COURT, 63CR-09-282, HON. GARY M.
STATE OF ARKANSAS ARNOLD, JUDGE]
APPELLEE
AFFIRMED; MOTIONS MOOT.
PER CURIAM
On December 10, 2009, judgment was entered reflecting that appellant Jeffrey Garcia had
been found guilty of two counts of rape and one count of sexual assault in the second degree.
He was sentenced to 1200 months’ imprisonment in the Arkansas Department of Correction
and fined $15,000. The Arkansas Court of Appeals affirmed. Garcia v. State, 2011 Ark. App.
340.
On August 29, 2011, appellant filed a timely pro se petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009) in which he alleged that both of
his trial attorneys had rendered ineffective assistance. In its amended order, the trial court
dismissed the petition, and appellant has lodged an appeal in this court. Both appellant’s brief-
in-chief and the State’s brief were timely filed. Now before us are appellant’s motions for leave
to file a belated reply brief and to strike the State’s brief. As it is clear from the record and the
filed briefs that appellant could not prevail if the appeal were permitted to go forward, the order
Cite as 2013 Ark. 405is affirmed, and the motions are moot.
This court has held that it will reverse the trial court’s decision granting or denying
postconviction relief only when that decision is clearly erroneous. Stevenson v. State, 2013 Ark.
302; Pankau v. State, 2013 Ark. 162; Bates v. State, 2012 Ark. 394. A finding is clearly erroneous
when, although there is evidence to support it, the appellate court, after reviewing the entire
evidence, is left with the definite and firm conviction that a mistake has been committed. Sartin
v. State, 2012 Ark. 155, 400 S.W.3d 694.
The grounds for reversal advanced by appellant in his brief on appeal are consistent with
the allegations in his petition that he was not afforded effective assistance of counsel at trial.1
A review of the Rule 37.1 petition and the order reveals no error in the trial court’s decision to
deny the petition. When considering an appeal from a trial court’s denial of a Rule 37.1 petition,
the sole question presented is whether, based on a totality of the evidence under the standard
set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the
trial court clearly erred in holding that counsel’s performance was not ineffective. Stevenson, 2013
Ark. 302; Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to
Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner
1
All arguments made below but not raised on appeal are abandoned. Abernathy v. State,
2012 Ark. 59, 386 S.W.3d 477 (per curiam); Shipman v. State, 2010 Ark. 499 (per curiam) (citing
State v. Grigsby, 370 Ark. 66, 257 S.W.3d 104 (2007)).
2
Cite as 2013 Ark. 405raising a claim of ineffective assistance must show that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment
to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There
is a strong presumption that trial counsel’s conduct falls within the wide range of professional
assistance, and an appellant has the burden of overcoming this presumption by identifying
specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the
time of the trial, could not have been the result of reasonable professional judgment. Henington
v. State, 2012 Ark. 181, ___ S.W.3d ___; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per
curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced
petitioner’s defense that he was deprived of a fair trial. Stevenson, 2013 Ark. 302; Holloway v. State,
2013 Ark. 140, ___ S.W.3d ___. A petitioner making an ineffective-assistance-of-counsel claim
must show that his counsel’s performance fell below an objective standard of reasonableness.
Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that
there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a
reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the
errors. Stevenson, 2013 Ark. 302. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,”
refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing.
Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from
a breakdown in the adversarial process that renders the result unreliable. Id. “[T]here is no
reason for a court deciding an ineffective assistance claim . . . to address both components of
3
Cite as 2013 Ark. 405the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
At trial, the evidence showed that appellant, a former police officer, was in a long-term
cohabitation relationship with DCS, the mother of three minor children (girl, 14; boy, 13; girl,
12). The youngest child reported to a school counselor numerous incidents of sexual abuse at
the hands of appellant. Two of the children reported being anally penetrated on multiple
occasions, and the oldest child reported that she was asked to play “horsey” with appellant
without her underwear on and that he touched her vagina with his tongue. The children
reported the rapes to their mother on at least two separate occasions. DCS was eventually
arrested for failure to report or prevent abuse to minors. At trial, the minor victims each
recounted appellant’s crimes against them and their siblings, and DNA recovered from a mixture
of appellant’s sperm and the male victim’s skin cells from a comforter from the victim’s bed was
introduced into evidence. Garcia, 2011 Ark. App. 340.
Appellant’s first point on appeal of the denial of his Rule 37.1 petition is that his
attorneys were deficient in their investigation and examination of the State’s two expert
witnesses, Dr. Matthew Bell, who examined one of the victims and reviewed the medical records
of the other two victims, and Tracey Sanchez, a forensic interviewer who interviewed the
victims. He argues that counsel were ineffective for failing to sufficiently challenge the
testimony of the witnesses by a more thorough cross-examination or by hiring experts in the
field of child sexual abuse. Specifically, he contends that counsel failed in not introducing
evidence to dispute Dr. Bell’s testimony that there are no physical findings in most child sex-
abuse cases. In a related argument, appellant contends that counsel were ineffective for failing
4
Cite as 2013 Ark. 405to request funds to hire an expert witness to challenge the testimony of the witnesses. However,
the record reveals that counsel did vigorously cross-examine both witnesses. Moreover,
appellant’s only support of his claims is his statement in his brief that, in his petition, he
provided links to Internet websites that referred to experts, who he alleges would counter the
testimony of the State’s witnesses. Other than claiming that those experts would challenge the
conclusions of the State’s witnesses, appellant fails to detail what assistance those experts would
provide or what relevant information could have been provided through additional cross-
examination. For ineffective-assistance-of-counsel claims based on a failure to call a witness,
the appellant must name the witness, provide a summary of the testimony, and establish that the
testimony would have been admissible into evidence. Charland v. State, 2012 Ark. 246. Appellant
fails to do so. Instead, his allegations are conclusory in nature and cannot be the basis of
postconviction relief. See id. Moreover, in the absence of specific information regarding omitted
testimony, appellant cannot demonstrate how it would have changed the outcome of his trial,
as is necessary to demonstrate any prejudice. See id. It is clear that appellant cannot establish
that the trial court clearly erred in finding that counsel was not ineffective on this basis. Because
we hold that appellant does not prevail in his argument, we cannot say that counsels’ decision
not to request funds for the purpose of hiring expert witnesses amounted to a denial of effective
assistance.
Appellant next contends that he received ineffective assistance based on counsels’ failure
to interview and investigate the physician who examined two of the victims or to call the
examining physician as a witness. At trial, Dr. Bell testified that the medical reports prepared
5
Cite as 2013 Ark. 405by the examining physician showed that the examinations of both of these victims were within
normal limits. In arguing that he received ineffective assistance, appellant refers to a violation
of the right of confrontation, as guaranteed by the Sixth Amendment to the United States
Constitution, and he claims that he was denied his right to confront his accusers based on the
failure of counsel to interview the examining physician. However, appellant fails to provide any
evidence that he was prejudiced by counsels’ failure to interview the examining physician or to
call him as a witness at trial. An appellant must do more than allege prejudice; he must
demonstrate it with facts. Walton v. State, 2013 Ark. 254 (per curiam). While appellant states that
the examining physician could have answered questions related to the preparation of his report
that Dr. Bell could not, he provides no evidence that he suffered any prejudice as a result of
counsels’ not calling the examining physician as a witness. To the extent that appellant also
contends that he was denied effective assistance as a result of counsels’ failure to object to the
testimony of Dr. Bell with regard to the reports of the examining physician, this argument must
also fail as appellant does not demonstrate any prejudice with facts.
Next, appellant argues that counsel was deficient in failing to introduce impeachment
evidence that would have damaged the credibility of the victims and questioned the “true
purpose” of law enforcement. Specifically, he refers to counsels’ decision not to introduce a
diary with entries by one of the female victims in which she wrote of her hatred of appellant but
does not mention abuse; counsels’ failure to question Investigator Kory Bauer about a note
found by investigators that was written by one of the victims to the mother in which love for
the mother is expressed without mention of abuse; counsels’ failure to impeach the testimony
6
Cite as 2013 Ark. 405of Investigator Bauer based on the presence of a bottle of lotion in photographs of the house
where the crimes occurred despite Investigator Bauer’s failure to list the lotion among the items
seized from the house; counsels’ failure to impeach Investigator Bauer based on the victim’s
note to the mother being found in the house even though the investigator’s report states that
investigators were unable to locate the note; and counsels’ failure to investigate for purposes of
impeachment a discrepancy in the children’s testimony as to whether the door of the master
bedroom closed properly, thereby preventing anyone standing outside the door from seeing
inside the bedroom.2
The manner of questioning a witness is by and large a very subjective issue about which
different attorneys could have many different approaches. Clarks v. State, 2011 Ark. 296 (per
curiam). Counsel is allowed great leeway in making such strategic and tactical decisions. Leak
v. State, 2011 Ark. 353 (per curiam). Those decisions are a matter of professional judgment, and
matters of trial tactics and strategy are not grounds for postconviction relief on the basis of
ineffective assistance of counsel, even if a decision proves unwise. Clarks, 2011 Ark. 296; Leak,
2011 Ark. 353. In addition, appellant failed to show that any failure to elicit the aforementioned
testimony was so prejudicial that it tainted appellant’s trial to the degree that the proceeding was
unfair. The jury determines, not merely the credibility of the witnesses, but the weight and value
2
Appellant also summarily refers to counsels’ failure to prepare sufficiently to challenge
the prosecution or call an expert witness to “bring out the truth,” and counsels’ failure to “put
in the memory of the jury” that the victims were treated “softly” and that children are often
convincing when they claim that “the most atrocious harm has befallen them.” Conclusory
allegations unsupported by factual information of counsels’ ineffectiveness do not provide a
basis for postconviction relief. Bond v. State, 2013 Ark. 298, ___ S.W.3d ___ (per curiam). To
the extent that any of these arguments were raised below, appellant does not offer factual
substantiation of claims of a lack of preparation or necessity of an expert witness on appeal.
7
Cite as 2013 Ark. 405of their testimony. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001). We cannot say that the
trial court was clearly erroneous in finding that the appellant did not carry his burden to show
that the outcome of appellant’s trial would have been different if the evidence had been
introduced.
Appellant also contends that counsel was ineffective in failing to investigate the stranger-
awareness curriculum that the victims were taught at school by their school counselor. He
further argues that counsel was deficient in failing to introduce the curriculum into evidence to
show that the use of the curriculum allowed the victims to learn how to effectively fabricate their
allegations against him.3 Because counsel cross-examined the school counselor about the
material regarding inappropriate touching that was taught to the victims, appellant cannot
demonstrate any deficiency. Moreover, in light of the cross-examination of the counselor
regarding the curriculum, we agree with the trial court that it is unclear how presenting the
curriculum would have contributed to a different outcome.
Appellant next argues that he did not receive effective assistance because counsel
“opened the door” to previously suppressed character evidence during the cross-examination
of a police officer when counsel asked the officer if he believed appellant to be a “decent”
policeman. Appellant argues that the State then used the character evidence to give the jury the
impression that he was a “corrupt cop,” thereby prejudicing the jury toward him. Appellant
contends that even though he did not obtain a ruling from the trial court on this claim, we
3
Appellant raises for the first time on appeal additional allegations that counsel was
deficient based on a failure to introduce evidence that would further show that the victims had
knowledge to formulate false claims. However, we do not consider issues raised for the first
time on appeal. James v. State, 2013 Ark. 290 (per curiam).
8
Cite as 2013 Ark. 405should review his argument because of his previous efforts to obtain a ruling.4 Even if we
considered appellant’s argument, his contention does not support a claim of ineffective
assistance. Conclusory allegations unsupported by factual information of an attorney’s
ineffectiveness do not provide a basis for postconviction relief. Bond v. State, 2013 Ark. 298, ___
S.W.3d ___ (per curiam). Because appellant simply claims that the jury could not fairly decide
the charges based on the introduction of the evidence, his claims are conclusory and not
sufficient to support allegations of ineffective assistance of counsel.
Appellant next makes a number of allegations that, he claims, show that counsels’ lack
of preparation and failure to investigate certain matters amounted to ineffective assistance.
Because appellant does not provide what witnesses, testimony, or other evidence would have
been admissible or how the outcome of the trial would have been different, the trial court was
not clearly erroneous in finding that these unsupported and conclusory allegations are
insufficient to support postconviction relief.
The next argument of ineffective assistance raised by appellant is that counsel was
deficient in failing to present evidence that the male victim made false allegations of sexual abuse
4
After the trial court entered a written order denying appellant’s Rule 37.1 petition, stating
only that “[each] allegation raised by the petitioner . . . is accurately and concisely refuted by the
State in its Response,” appellant filed a motion for modification seeking specific rulings on each
of his asserted claims. He also filed a pro se petition for certiorari or, in the alternative, for writ
of mandamus, asking this court to compel the circuit court to respond to his motion for
modification and provide a ruling on the issues raised in the Rule 37.1 petition. In Garcia v.
Arnold, 2012 Ark. 253 (per curiam), we found that the trial court failed to provide the required
rulings on each of the issues raised in appellant’s petition, as required by Rule 37.1(a). Because
we found that appellant properly filed a motion for modification to obtain the missing rulings,
we granted his petition for writ of mandamus. We denied his petition for writ of certiorari.
Thereafter, the trial court entered its amended order in which it made specific findings with
regard to the arguments raised in appellant’s petition.
9
Cite as 2013 Ark. 405against a member of the foster-care home where he had been placed. Counsel received notice
of the victim’s allegation from the State prior to trial; however, counsel did not refer to the
allegation at trial. Because the manner of questioning the child-witness was a matter of trial
tactics and strategy, the trial court was not clearly erroneous in finding that counsels’ decision
not to attempt to impeach the testimony of the child-witness was not a ground for
postconviction relief. See Clarks, 2011 Ark. 296; Leak, 2011 Ark. 353.
Appellant next argues that neither counsel nor the trial court advised him of his right to
testify. However, one of appellant’s attorneys stated on the record that he had discussed with
appellant whether he should testify and that appellant had decided of his own free will not to
testify. The trial court then asked appellant to confirm counsel’s statement, and appellant did
so. Based on the record before us, appellant was aware that he had the right to testify and
waived his right.
Finally, appellant contends that the trial court erred in failing to hold a hearing on his
Rule 37.1 petition and in reciting the State’s argument in its findings. Arkansas Rule of Criminal
Procedure 37.3(c) provides that an evidentiary hearing should be held in a postconviction
proceeding unless the files and record of the case conclusively show that the petitioner is entitled
to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d
824. Where it dismisses a Rule 37.1 petition without an evidentiary hearing, 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.” Ark. R. Crim. P. 37.3(a); see Eason, 2011 Ark. 352. Here,
the trial court made the requisite written findings that appellant was not entitled to relief, and
10
Cite as 2013 Ark. 405appellant fails to establish that his claim for relief warranted an evidentiary hearing. Because the
trial court complied with the requirements of Rule 37.3, there is no merit to appellant’s
contentions.
In sum, the trial court’s decision to deny the requested relief was not clearly erroneous.
Accordingly, the order is affirmed, and appellant’s motions are moot.
Affirmed; motions moot.
Jeffrey Garcia, pro se appellant.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
11