Hickey v. State

2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052, 2013 Ark. LEXIS 267
CourtSupreme Court of Arkansas
DecidedMay 30, 2013
DocketNo. CR-11-60
StatusPublished
Cited by27 cases

This text of 2013 Ark. 237 (Hickey 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
Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052, 2013 Ark. LEXIS 267 (Ark. 2013).

Opinion

PER CURIAM.

[]In 2009, appellant George Hickey was found guilty by a jury of rape, kidnapping, and first-degree terroristic threatening. He was sentenced to an aggregate term of life imprisonment. We affirmed. Hickey v. State, 2010 Ark. 109, 2010 WL 745919. Following the issuance of our mandate, appellant timely filed a pro se petition for postconviction relief in the circuit court pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009).1 In his petition, appellant asserted that defense counsel was ineffective in failing to do the following: (1) consult with and call as a witness a medical expert regarding the lack of appellant’s DNA evidence found on the victim; (2) investigate, develop, and present to the jury the lack of physical evidence in the case; (3) investigate, develop, and present to the jury a timeline of the incident; (4) call appellant as a witness on his own behalf. The circuit court denied the relief requested without an evidentiary hearing, and appellant now appeals from the circuit court’s order. We affirm.

|⅞⅛ an appeal from a circuit court’s denial of a petition under Rule 37.1, the question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel’s performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). 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).

The Strickland standard is a two-prong test. When a convicted defendant complains of ineffective assistance of counsel, he must first show that counsel’s performance was deficient through a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam).

There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel, which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Burton v. State, 367 Ark. 109, 238 S.W.3d 111 (2006). The petitioner | ¡¡must show that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt and that the decision reached would have been different absent the errors. Id.

Arkansas Rule of Criminal Procedure 37.3(a) provides, “If the petition and the files and records of the case conclusively show that the petitioner 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.” The trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court’s findings without a hearing. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). If the trial court fails to make findings as required by Rule 37.3(a), it is reversible error, unless the record before this court conclusively shows that the petition was without merit. Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000).

I. Failure to Obtain and Present Testimony of a Medical Expert

Appellant first argues that the circuit court erred in denying his claim that defense counsel was ineffective in failing to consult with and elicit the testimony of a medical expert regarding the lack of appellant’s DNA found on the victim. In his petition for postconviction relief, appellant alleged that a medical expert would have testified that appellant’s DNA was not found on the victim and to the probability of whether a perpetrator’s DNA evidence would be found on a victim after being vaginally and orally raped for hours, as the victim in the instant case testified. The circuit court found this allegation to be conclusory and denied relief. We agree.

|4The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Jones v. State, 2011 Ark. 523, 2011 WL 6091468; Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam). In the instant case, appellant failed to offer any evidence that his counsel was ineffective for failing to elicit the testimony of a medical expert regarding the lack of his DNA found on the victim and further failed to establish that a reasonable probability existed that the outcome of the trial would have been different had his attorney done so. To the contrary, the facts to which appellant contends a medical expert would have testified were fully developed and presented to the jury without the necessity of presenting the testimony of a medical expert. The victim testified that appellant vaginally and orally raped her before ejaculating on her face and that appellant made her wipe his seminal fluid off her face with a towel that he provided. Further, the jury was apprised of the fact that appellant’s DNA was not found on the victim through the testimony of the detective and the physician who supervised the rape-kit administration, both of whom testified that the analysis of the rape kit revealed no DNA matching that of appellant. In her opening statements, the prosecutor also made the jury aware of the absence of appellant’s DNA on the victim.

As appellant failed to offer any evidence that his counsel was ineffective for failing to consult with and call as a witness a medical expert regarding the lack of DNA evidence on the victim and failed to establish that a reasonable probability existed that the outcome of the trial would have been dififerent had his counsel pursued the issue, he did not meet the standard under Strickland, for a showing of ineffective assistance of counsel.

Moreover, the decision of whether to call particular witnesses is a matter of trial | fistrategy that is outside the purview of Rule 37. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052, 2013 Ark. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickey-v-state-ark-2013.