Gaye v. State

2009 Ark. 201, 307 S.W.3d 1
CourtSupreme Court of Arkansas
DecidedApril 16, 2009
DocketCR 08-479
StatusPublished
Cited by5 cases

This text of 2009 Ark. 201 (Gaye v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaye v. State, 2009 Ark. 201, 307 S.W.3d 1 (Ark. 2009).

Opinion

DONALD L. CORBIN, Justice.

| Appellant Quenton Gaye appeals an order of the Pulaski County Circuit Court denying his motion for postconviction relief pursuant to Ark. R.Crim. P. 37. On appeal, Gaye argues that the circuit court erred in concluding that his trial counsel’s failure to seek a forthwith order or continuance to procure a defense witness’s presence at trial, or to proffer the testimony of that witness, was trial strategy and not a matter of ineffective assistance of counsel. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(a)(7). We find no error and affirm.

Gaye was charged with capital murder and three counts of committing terroristic acts, stemming from a shooting that took place on April 13, 2005, near the corner of 26th and Arch Streets in Little Rock. Gaye was tried before a Pulaski County jury, and Gaye’s defense at trial was that he had an alibi at the time of the shooting. Among the State’s evidence against Gaye was the testimony of an eyewitness, Courtney Barnes. Barnes |2testified that he had known Gaye all his life and that Gaye was one of the shooters. To support his alibi claim, Gaye called his aunt, Diane Jones, as a witness. Jones testified that on the day of the shootings she took Gaye to her brother’s house in southwest Little Rock between 12:00 p.m. and 1:00 p.m., while on her lunch hour. On cross-examination, however, the State questioned why Jones waited until Gaye’s trial to indicate that he had an alibi that day. Gaye also produced the testimony of his uncle, Walygyden Athtab, 1 that Gaye was at his house from sometime before 1:00 p.m. until later that evening. 2 Gaye was convicted of capital murder, for which he received a sentence of life imprisonment without the possibility of parole, and three counts of committing terroristic acts, for which he received a sentence of twenty years’ imprisonment. This court affirmed his convictions and sentences in Gaye v. State, 368 Ark. 39, 243 S.W.3d 275 (2006).

He timely filed a petition for postconviction relief, pursuant to Rule 37, in the circuit court, alleging that his trial counsel had been so ineffective that his convictions and sentences should be vacated. In support of this contention, Gaye argued that his counsel’s failure to seek a forthwith order or to seek a continuance in order to obtain the presence of defense witness, Melvin Taylor, or to proffer Taylor’s testimony, was prejudicial because |sTaylor’s testimony that he did not see Gaye at the scene of the shooting would have resulted in a different outcome at trial. 3

Hearings were held on Gaye’s Rule 37 petition on January 14, 2008, and February 22, 2008. William McArthur, Gaye’s counsel at trial, testified that Taylor initially appeared at the courthouse but disappeared prior to the time he was called as a witness. McArthur stated that he declined the court’s offer to sign a forthwith order to bring Taylor into custody. McAr-thur then explained that Taylor told him that he knew Gaye by sight and that around the time of the shooting, he was driving by the scene and did not see Gaye there at all. McArthur then stated that he perceived Taylor to be a shaky witness, as he had a very questionable criminal history that would have come out at trial. According to McArthur, he felt uncomfortable with Taylor but subpoenaed him as a witness anyway; however, McArthur explained that he did not want to risk arresting him and having him brought to court in shackles. Upon cross-examination, McAr-thur explained that there had been testimony from only one witness who identified Gaye as the shooter and that Gaye’s aunt and uncle testified at trial that Gaye was with them at the time of the murder.

Melvin Taylor testified that he was at the courthouse on the day of Gaye’s trial, but left before he was called to testify because he was threatened by the victim’s family. Taylor Rstated that he would have testified truthfully that he was on his way to a liquor store at the corner of Roosevelt and Martin Luther King. He said that while on the way there, he witnessed some guys shooting but that he did not see the shooter in the courtroom. Taylor explained that he did not know Gaye at the time of the shooting, but he could say that Gaye was not one of them because the shooters were smaller people. 4

The trial court issued an order on March 19, 2008, denying Gaye’s Rule 37 petition. In determining that Gaye’s trial counsel was not ineffective, the circuit court found that McArthur’s decision not to seek a forthwith order and have Taylor brought to trial in shackles was a conscious decision and not an omission on the part of trial counsel. Further, the circuit court reasoned that Taylor’s testimony would have been corroborative of the testimony of Jones and Athtab, and the decision to rely on Jones’s and Athtab’s alibi testimony, while unsuccessful, did not render counsel’s representation of Taylor ineffective. The court ultimately concluded that counsel’s failure to request a forthwith order or a continuance or to proffer Taylor’s testimony “was not ineffective assistance of counsel but rather a strategic choice made by counsel during trial.” From that order, comes the instant appeal.

On appeal, Gaye argues that the circuit court erred in denying his petition for postconviction relief after finding that his trial counsel’s decision not to pursue the presence |fiof a defense witness at trial was a matter of trial strategy and did not result in ineffective assistance of counsel. The State counters that the circuit court correctly denied Gaye’s request for relief where the issue was one of trial strategy and where Gaye could make no showing of prejudice as required when seeking post-conviction relief.

We do not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008); State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007); Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). 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. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact-finder must be considered. State v. Franklin, 351 Ark. 131, 89 S.W.3d 865 (2002). Furthermore, we defer to the trial court’s determination of credibility on Rule 37 appeals. Barrett, 371 Ark. 91, 263 S.W.3d 542.

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2009 Ark. 201, 307 S.W.3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaye-v-state-ark-2009.