McDonald v. State , 42 Ark. App. 37 ( 1993 )

James R. Cooper, Judge.

The appellant in this criminal case was charged with murder in the second degree. After a jury trial, she was convicted of manslaughter, fined $10,000.00, and sentenced to ten years in the Arkansas Department of Correction. Subsequently, the appellant filed a motion for a new trial pursuant to Rule 36.22 of the Arkansas Rules of Criminal Procedure, asserting ineffective assistance of counsel. The trial court overruled the motion on the grounds that the appellant had failed to show facts constituting grounds for a new trial. The appellant appealed her conviction and the denial of her motion for a new trial to this Court and, in an opinion not designated for publication delivered on May 2, 1990, we held that Arkansas Rule of Criminal Procedure 36.22 mandates that the trial judge hold a hearing on a motion for a new trial if one is requested by the convicted defendant. Because the trial court failed to conduct an evidentiary hearing, we reversed and remanded for such a hearing to be conducted. Pursuant to our mandate, the trial court held an evidentiary hearing on December 14, 1990, and on September 26, 1991, entered an order denying the appellant’s motion for a new trial. From that decision, comes this appeal.

For reversal, the appellant contends that she was denied effective assistance of counsel by virtue of her trial counsel’s failure to interview and subpoena witnesses; to proffer evidence objected to by the State; to submit adequate jury instructions; and failure to impeach witnesses called by the prosecution. We find no prejudicial error, and we affirm.

The standard of review applicable to claims of ineffective assistance of counsel was summarized by our Supreme Court in Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990):

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first 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 petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

Mullins, supra, 303 Ark. at 698-699. Therefore, the test for ineffective assistance of counsel consists of two components: deficient performance by counsel, and prejudice suffered by the defendant. The defendant is not entitled to relief unless he makes the requisite showing on both components. See Beavers v. Lockhart, 755 F.2d 657 (8th Cir. 1985).

Regardless of how pervasive trial counsel’s errors may be, there is no presumption of prejudice in determining whether a defendant was denied effective assistance of counsel. Rode v. Lockhart, 675 F. Supp. 491 (E.D. Ark. 1987). Instead, the burden of showing prejudice rests on the party claiming ineffective assistance of counsel. Fink v. Lockhart, 823 F.2d 204 (8th Cir. 1987). The strength of the State’s case against an accused is an important factor to consider in resolving the issue of prejudice. Rode v. Lockhart, supra.

We affirm because, even assuming, without deciding, that trial counsel’s performance in the case at bar was deficient, the appellant has failed to show, as she must, that any deficient performance which occurred prejudiced the defense.

The appellant had been living with the victim in his home since late September 1987. She admitted that she shot and killed the victim approximately ten weeks later, on December 13,1987. Having admitted the killing, the appellant’s plea of not guilty to the charge of second degree murder was based on her defense of justification. Prior to trial, the appellant’s trial attorney informed the appellant of a proposed plea bargain whereby the appellant would not be fined, would serve no prison time, and would be placed on probation for ten years in exchange for a guilty plea to manslaughter. The appellant refused this proposal, was tried before a jury on charges of murder in the second degree, was convicted of manslaughter, fined $10,000.00, and sentenced to ten years imprisonment.

The appellant asserts that she was prejudiced by trial counsel’s failure to investigate, interview, and subpoena witnesses material to her defense.

We note that ineffective assistance complaints based on counsel’s failure to secure witnesses are disfavored because presentation of evidence is a matter of trial strategy. Walker v. Lockhart, 807 F.2d 136 (8th Cir. 1986). Furthermore, “ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government’s case.” Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).

In the case at bar, the State’s case was strengthened by the fact that the appellant admitted that she shot and killed the victim. She argues that trial counsel was ineffective in failing to call several witnesses to testify in support of her theory of self-defense. Four of these witnesses could have testified to injuries the appellant sustained prior to the shooting. However, our review of the record reveals that these injuries, consisting of a knot on the head and several bruises, were relatively minor in nature. Furthermore, the appellant testified at length at trial, asserting that she was injured during beatings delivered by the victim before she shot him. In the absence of any proffered evidence to show that these injuries were severe or otherwise life threatening, we cannot say that the appellant was prejudiced by the absence of this testimony.

We reach a similar conclusion regarding the appellant’s argument that she was prejudiced by her trial counsel’s failure to proffer evidence of prior acts of violence by the victim directed at other persons. It is not clear from the record before us to what extent, if any, a proffer was made with regard to this evidence. Nevertheless, the appellant testified at length and in great detail concerning acts of violence by the victim towards herself and others, and her testimony clearly depicts the victim as a cruel and unbalanced man.

We think it significant that the appellant was not convicted of second degree murder as charged, but was instead convicted of manslaughter, which is committed by one who:

causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse.

Ark. Code Ann. § 5-10-104(a)(l) (1987). Inasmuch as the defense of justification advanced by the appellant is a defense conditioned on a reasonable belief on the part of the actor that unlawful physical force is about to be inflicted on him, see Bargery v. State, 37 Ark. App. 118, 825 S.W.2d 831 (1991), it appears that the jury gave credence to the appellant’s testimony concerning the victim’s violent acts towards her. Although the testimony proffered at the hearing on the appellant’s motion for a new trial constituted additional evidence relating to the victim’s character, we cannot say that this additional evidence was so different in kind or nature from that offered by the appellant at trial that trial counsel’s failure to proffer it prejudiced the defense.

The appellant also argues that she was prejudiced by her counsel’s failure to submit adequate jury instructions regarding the defense of justification and the lesser offense of negligent homicide. Specifically, she argues that her trial counsel failed to request an instruction informing the jury that she was under no obligation to retreat from an aggressor in her own dwelling. We find no merit in this argument because it is clear from the record that, whether or not she was under an obligation to do so, the appellant had in fact retreated prior to the shooting, and that the victim was shot in the bedroom to which she had retreated. With regard to the appellant’s argument that she was prejudiced by her trial counsel’s failure to submit an instruction for negligent homicide, we find no prejudice because, under the circumstances of this case, where the appellant admitted to purposely shooting the victim, we find no rational basis for a negligent homicide instruction. See O’Roark v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).

Finally, the appellant argues that her trial counsel was ineffective in his failure to impeach two witnesses, Joe Logsdon and Officer Gary McVay. At the hearing on the appellant’s motion for a new trial, the appellant’s trial counsel testified that he did not impeach Mr. Logsdon at trial because he believed that Mr. Logsdon’s credibility had already been destroyed. Although it is clear from the record before us that appellant’s trial counsel had an opportunity to impeach the testimony of both of these witnesses, the ultimate question of whether such impeachment would have affected the result of the trial turns heavily on the credibility of their prior testimony. We note that the appellant had testified that Mr. Logsdon had encouraged the victim in his abuse and beating of the appellant; that Mr. Logsdon and the victim had had a pact whereby Mr. Logsdon would avenge the victim if the appellant ever harmed him; and that Mr. Logsdon threatened the appellant and had to be held at gunpoint by her until the police arrived. Given this evidence, and giving due deference to the trial court’s ability to assess the credibility of the witnesses, we cannot say that the result of the proceeding would have been different had these witnesses been impeached.

When we consider the arguments raised by the appellant, and the facts adduced at trial and in the motion for a new trial in light of the totality of the circumstances, including the fact that the appellant had admitted to killing the victim and that she was not convicted of second degree murder, but instead of the lesser included offense of manslaughter, we cannot say that the appellant was prejudiced by any errors which trial counsel may have committed.

Affirmed.

Pittman, Robbins, and Rogers, JJ., dissent.