Cite as 2020 Ark. App. 130 Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-06-30 14:35:18 Foxit PhantomPDF Version: DIVISION IV No. CR-19-711 9.7.5
Opinion Delivered: February 19, 2020
QUENTIN KYLE GREEN APPEAL FROM THE MILLER APPELLANT COUNTY CIRCUIT COURT [NO. 46CR-16-388] V. HONORABLE DAVID N. LASER, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Quentin Kyle Green appeals after the Miller County Circuit Court entered
an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of
Criminal Procedure 37.1. Appellant argues in five points on appeal that the circuit court
erred in denying relief because his trial counsel had a conflict of interest that was not
remedied by a valid written waiver and because trial counsel was ineffective. We affirm.
I. Background
Appellant was convicted by a Miller County Circuit Court jury of rape and sexual
assault in the second degree. Before addressing the allegations of ineffective assistance of
counsel, it is necessary to recite the evidence adduced at appellant’s trial. Lyndi Green,
appellant’s former wife, testified that she has four children. K.B. is one of her middle
children. Ms. Green testified that when K.B. was ten years old, K.B. told her that appellant,
K.B.’s stepfather at the time, had touched her inappropriately under her pajamas and under her panties. Appellant denied the allegations after Ms. Green confronted him about the
incident. Ms. Green testified that on that same night that she confronted appellant, appellant
indicated that he thought about killing himself. After that incident, Ms. Green had K.B.
stay with her grandparents and took K.B. to see a counselor. A few days later and after
further conversations with Ms. Green about the ramifications of the allegations, K.B.
recanted her story, apologized to appellant, and returned home. Additionally, the family
went to an attorney, Michael Peek, and a video was taken of K.B. explaining that she had
recanted her story. A few years later, K.B. told Ms. Green that she had lied when she had
recanted her story. Additionally, K.B. told her biological father about the incident, and it
was reported to law enforcement.
Officer Patsy DeHart testified that she was the investigator assigned to the case against
appellant in 2016. Officer DeHart testified that law enforcement had received a call on the
Arkansas State Police hotline with the allegations. Arkansas State Police Crimes Against
Children Division took the initial report, and it was screened by the Arkansas Department
of Human Services (DHS). Officer DeHart contacted the Children’s Advocacy Center
(CAC) and arranged for K.B. to be interviewed.
Melanie Halbrook, a forensic interviewer at the CAC in Benton County, testified
that she had interviewed K.B. K.B. was fifteen years old at the time of the interview.
Ms. Halbrook testified that during the interview, K.B. disclosed that appellant had digitally
penetrated her when she was ten or eleven years old. Although K.B. reported that the first
time it happened when she was about ten years old, K.B. indicated that appellant had
continued to inappropriately touch her on subsequent occasions. K.B. additionally disclosed
2 to her that she had falsely recanted her story after the first incident because her mother did
not believe her. Ms. Halbrook testified that over eighty-five percent of children will recant
their statements when there is a lack of maternal support and the abuse is by a male caretaker.
Ms. Halbrook further testified that of the eighty-five percent of children who recant, about
ninety-three percent of them will later reaffirm those allegations. Regarding the video that
was taken in Mr. Peek’s office, Ms. Halbrook testified that the interview was not conducted
under the protocols used by her office. She testified that Mr. Peek used a lot of direct
questions, forced multiple-choice answers, legal jargon, and hypothetical questions, all of
which she avoids. Ms. Halbrook testified that after her interview, she opined that K.B.’s
statement and body language were consistent with sexual abuse. Videos of both interviews
were played for the jury.
Ky.B. testified that she is K.B.’s older sister. According to Ky.B., when K.B. was
ten or eleven years old, K.B. told her about an incident in which appellant had come into
K.B.’s room one night and inappropriately touched K.B.’s “girl parts.” Ky.B. testified that
her sister was “hysterically crying, like bawling her eyes out” when she told her about the
incident.
D.H., K.B.’s friend, testified that in January or February 2016, she attended an
overnight church retreat with K.B. That night, K.B. told D.H., along with several other
girls in attendance, that appellant had inappropriately touched her when she was
approximately ten years old. D.H. described K.B. as emotionally weak, hanging her head,
and crying some while making the statement.
3 K.B. testified and described in detail two incidents in which appellant inappropriately
touched her. K.B. testified that on at least one occasion, appellant digitally penetrated her
vagina. K.B. admitted that she recanted her story after telling her mother about one of the
incidents and that she had lied during the video that was recorded in Mr. Peek’s office. She
explained that her mother did not believe her story at that time and that she felt the
counselor also did not believe her. In 2016, after Ms. Green and appellant had divorced in
2015, K.B. attended a church retreat. K.B. testified that she told her friends at the event
that appellant had, in fact, inappropriately touched her despite her prior statements to the
contrary. Afterward, she told Ms. Green and her biological father that she had not made
up the story about the incidents.
Appellant testified and denied the allegations. Appellant indicated that when K.B.
made the initial allegations, she was angry with her mother and wanted to live with her
biological father. He did not know why she realleged the allegations. Appellant further
denied that he had ever threatened suicide to Ms. Green.
Mr. Peek testified that he had interviewed K.B. after appellant and Ms. Green hired
him. At that time, K.B. had initially accused appellant of inappropriately touching her and
then recanted her story. Mr. Peek explained that it was not his duty to find out the truth
but to protect his client who paid him. Mr. Peek testified that he does not necessarily model
his interview on CAC’s protocols. However, he does try to avoid leading questions on all
material parts and felt that he did so during K.B.’s interview.
Appellant finally offered two character witnesses on his behalf. Appellant’s
grandmother testified that appellant had never touched anyone inappropriately to her
4 knowledge or do anything that would cause her concern. Furthermore, appellant’s pastor
testified that he did not have any concerns about appellant being around either of his
children or his grandchildren.
After all evidence had been presented, including the videos from both interviews,
the jury found appellant guilty of rape and sexual assault in the second degree, and appellant
was sentenced to serve consecutively 300 months and 60 months in the Arkansas
Department of Correction, respectively. After appellant’s conviction, he appealed, arguing
that the trial court abused its discretion in refusing to allow defense counsel to inquire of an
expert witness concerning her previous testimony in an unrelated case. We affirmed on
direct appeal because we were precluded from addressing appellant’s arguments. Green v.
State, 2018 Ark. App. 38.
II. Petition for Postconviction Relief and Rule 37 Hearing
Following our affirmance, appellant filed his petition for postconviction relief
alleging that he was entitled to relief because (1) defense counsel had a conflict of interest
not remedied by a valid waiver; (2) trial counsel was ineffective by his failure to object to
inadmissible testimony from Melanie Halbrook of the CAC; (3) counsel was ineffective by
his failure to object to testimony of witnesses quoting the accuser and not seeking an
instruction that their testimony was not being admitted for the truth of the matter asserted;
(4) counsel was ineffective for failure to object to improper impeachment of a defense
5 witness; and (5) counsel was ineffective by his failure to present or seek to present testimony
concerning the accuser’s source or inspiration to make the original claim of abuse.1
An evidentiary hearing on appellant’s petition was held, and appellant was
represented by counsel at the hearing. Appellant’s trial counsel, Joseph Tyler, testified that
he had represented appellant three or four times before this case. At the time of appellant’s
trial, Mr. Tyler’s law partner, “Shorty” Barrett, was dating the elected prosecuting attorney,
Stephanie Potter Black, who prosecuted appellant in this case. The two subsequently
married. Although Mr. Barrett refrained from practicing criminal defense in her circuit to
avoid any appearance of impropriety, Mr. Tyler did not think he had any conflict of interest
under the Arkansas Model Rules of Professional Conduct. Therefore, Mr. Tyler did not
obtain a written waiver, but he did make appellant aware of his partner’s relationship with
Ms. Black. Mr. Tyler did not initially think Ms. Black would be participating in the trial at
the time of his first conversation with appellant. However, Mr. Tyler explained that he had
a second conversation with appellant approximately one month before trial after he found
out that Ms. Black would be participating. Regardless, Mr. Tyler explained that at no time
has he felt that his law partner’s relationship with Ms. Black affected his representation or
gave him either a favorable or unfavorable edge. He further testified that he did not think
Mr. Barrett’s personal interest with Ms. Black limited his representation of appellant, and
Mr. Barrett was not involved in appellant’s defense in any manner.
1 Appellant alleged one other ground for relief in his postconviction petition. However, because he has abandoned that argument on appeal, we do not address it. 6 Regarding Ms. Halbrook’s testimony, Mr. Tyler explained at the Rule 37 hearing
that he stipulated to her expertise at trial because he wanted to prevent Ms. Halbrook from
“bedazzling” the jury with her qualifications. He further stated that he did not want the
jury to hear thirty minutes of testimony concerning those qualifications. Additionally,
Mr. Tyler stated that this decision was based on his review of her resume and on his previous
experiences in other trials in which she was a witness. Regarding the specifics of her
testimony, Mr. Tyler stated that it had been his experience that the trial court would allow
Ms. Halbrook to explain her training and experience and to explain the five steps of
disclosure. Mr. Tyler acknowledged that Ms. Halbrook testified about the process of
disclosure and patterns and demeanors of children who have been victims of sexual abuse.
However, according to Mr. Tyler, Ms. Halbrook was not permitted to specifically state that
K.B. was telling the truth. Although Mr. Tyler admitted that Ms. Holbrook did testify that
K.B. exhibited the signs and symptoms of a person who had been sexually abused, his
experience led him to believe that the trial court would deem such testimony admissible.
Finally, he stated that because he thought some of the statistics announced in Ms. Halbrook’s
testimony were “ludicrous,” he had decided to cross-examine her regarding those statistics.
Mr. Tyler explained at the Rule 37 hearing that he had discussed the admissibility of
the videos of the victim’s interviews with the State prior to trial. Because Mr. Tyler thought
it was critical to have the recantation video played for the jury in its entirety, as did appellant,
he and appellant entered into a stipulation agreement with the State to allow both videos to
be admitted and played without objection. Mr. Tyler stated that this decision was part of
his trial strategy.
7 Mr. Tyler admitted that the State suggested at trial that Mr. Peek was a mandated
reporter of child abuse during its cross-examination of Mr. Peek. He also admitted that he
knew Mr. Peek was not a mandated reporter and thought he objected, but after a review of
the record, it appears that he failed to do so.
As part of appellant’s defense at trial, Mr. Tyler attempted to introduce testimony
regarding another child who lived in the household with K.B. This child apparently claimed
that she had been abused by another man. The defense’s theory was that this child gave
K.B. the idea to falsely accuse appellant. However, the trial court refused to allow this
testimony to be introduced through appellant’s examination. The State objected and argued
that Mr. Tyler needed to ask those questions of K.B. instead of appellant. Additionally, the
State argued that it was irrelevant. The trial court sustained the objection and stated that it
was irrelevant. Mr. Tyler testified at the Rule 37 hearing that he had originally made the
strategic decision to introduce this testimony through appellant’s testimony rather than
K.B.’s because he felt certain that K.B. would deny it and that the trial court would rule it
inadmissible. He stated that even if the State objected, it would at least allow appellant to
“try to ramble off something real quick to put a bug in the jury’s ear.” Moreover, he stated
that even if the trial court had allowed him to ask K.B. those questions if he recalled K.B.,
he did not want to do so because K.B. came across as credible throughout her testimony.
Mr. Tyler did not think appellant’s testimony went as well. In fact, Mr. Tyler expressed his
concerns over appellant’s behavior and demeanor on the stand. He described appellant as
very lethargic and stated that he appeared to be under the influence of drugs or alcohol. At
one point, he thought appellant was going to fall asleep.
8 Mr. Tyler admitted that Ky.B. and D.H. testified before K.B. at trial. However, he
explained that he did not object to their testimony regarding K.B.’s statements to them
because he thought their testimony was admissible as excited utterances and present sense
impressions.
At the Rule 37 hearing, Mr. Tyler testified that during his thirteen years of
experience in the courtroom, he had developed a sense of what the trial court would deem
admissible or inadmissible. Thus, he said that it was generally fair to say that not objecting
to certain testimony was also a matter of trial strategy. He testified that it may not be prudent
to object and raise more attention to unfavorable testimony, especially if he thought the jury
may not have been paying attention at the time. He explained that an objection could
essentially backfire and cause the jury to become more attentive when they otherwise would
have been “falling asleep.” Mr. Tyler further stated that in his experience, it was also not
always wise to object, thereby emphasizing certain testimony, especially if he thought the
trial court would let it in regardless.
After the evidentiary hearing, the circuit court denied appellant’s petition in a
detailed written order filed on June 26, 2019. This appeal followed.
III. Standard of Review
We do not reverse the denial of postconviction relief unless the circuit court’s
findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding
is clearly erroneous when, although there is evidence to support it, after reviewing the entire
evidence, we are left with the definite and firm conviction that a mistake has been
9 committed. Id. In making a determination on a claim of ineffective assistance of counsel,
this court considers the totality of the evidence. Id.
Our standard of review also requires that we assess the effectiveness of counsel under
the two-prong standard set forth by the Supreme Court of the United States in Strickland v.
Washington, 466 U.S. 668 (1984). Conley, supra. In asserting ineffective assistance of counsel
under Strickland, the petitioner must first demonstrate that counsel’s performance was
deficient. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that
counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed
the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Id. 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. Id.
Second, the petitioner must show that the deficient performance prejudiced the
defense, which requires a demonstration that counsel’s errors were so serious as to deprive
the petitioner of a fair trial. Conley, supra. This requires the petitioner to show that there
is a reasonable probability that the fact-finder’s decision would have been different absent
counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id.
Unless a petitioner makes both Strickland showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial process that renders the result
10 unreliable. Id. We also recognize that “there is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3–4, 385 S.W.3d 783,
787 (quoting Strickland, 466 U.S. at 697).
IV. Conflict of Interest
First, appellant argues that he is entitled to relief because trial counsel had a conflict
of interest that was not remedied by a valid waiver. Appellant more specifically argues, as
he did before the circuit court, that Mr. Barrett’s romantic relationship with the prosecuting
attorney created a conflict of interest that was imputed to him. He further argues that the
conflict of interest could only be waived through a written waiver, which was not obtained
in this case. Moreover, appellant contends that he is entitled to relief because he suffered
prejudice as Mr. Tyler failed to effectively represent him as evidenced by the other errors
outlined in appellant’s petition for postconviction relief. The circuit court denied appellant
relief on this ground, and we agree.
Rule 1.7 of the Arkansas Rules of Professional Conduct (2019) states the following:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
....
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer,
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
11 (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law:
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing[.]
Rule 1.10(a) of the Arkansas Rules of Professional Conduct further provides,
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.9, or 3.7, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
(Emphasis added.)
Mr. Tyler and Mr. Barrett practiced in the same law firm. Appellant argues that
Mr. Barrett had a conflict of interest pursuant to Rule 1.7(a)(2) based on a personal interest
that prohibited him from representing appellant. He further argues that because Mr. Tyler
and Mr. Barrett were in the same law firm, Mr. Barrett’s conflict of interest was imputed to
Mr. Tyler because it presented a significant risk of materially limiting the representation of
appellant. However, Mr. Tyler specifically testified at the Rule 37 hearing that he did not
feel that his law partner’s relationship with Ms. Black gave him either a favorable or an
unfavorable edge. Mr. Tyler further testified that he did not think Mr. Barrett’s personal
interest with Ms. Black limited his (Mr. Tyler’s) representation of appellant, and Mr. Barrett
was not involved in appellant’s defense in any manner. The circuit court listened to
Mr. Tyler’s testimony and reviewed the arguments of appellant’s counsel; however, it was
not convinced that Mr. Tyler had a conflict of interest under Rule 1.10(a). Having carefully 12 reviewed the record, we see no clear error in the circuit court’s finding and affirm on this
point.
V. Failure to Object to Melanie Halbrook’s Testimony
Appellant additionally argues that he is entitled to relief because trial counsel was
ineffective by his failure to object to inadmissible testimony from Melanie Halbrook of the
CAC. Under this point, appellant lists several complaints as to why Mr. Tyler was
ineffective. He complains that Mr. Tyler should not have stipulated to Ms. Halbrook’s
expertise or allowed the CAC interview to be played for the jury without objection. He
additionally argues that Ms. Halbrook’s testimony “strayed far afield from explaining
interviewing techniques and into areas of psychology for which she had not even been
proposed as an expert.” Appellant quotes Ms. Halbrook’s testimony that “[b]ased on
[K.B.’s] statement and her body language, it’s consistent with sexual abuse” and argues that
the elicitation of Ms. Halbrook’s opinion of K.B.’s truthfulness is sufficient grounds to vacate
the convictions. Further, appellant contends that Mr. Tyler was ineffective when he failed
to challenge the statistics that Ms. Halbrook posited.
Mr. Tyler testified at the Rule 37 hearing that he made a decision to stipulate to
Ms. Halbrook’s expertise because he wanted to prevent Ms. Halbrook from “bedazzling”
the jury and spending thirty minutes discussing her qualifications. He based his decision on
his past experiences in other trials in which she was a witness and after a review of her
resume. He further testified that he and appellant entered into a stipulation agreement with
the State to allow both videos to be admitted and played without objection because he felt
it was critical to ensure that the recantation video was played for the jury in its entirety. As
13 for Ms. Halbrook’s specific testimony, our courts have expressly held that expert witnesses
may testify generally about forensic interviews and recantation. Harper v. State, 2019 Ark.
App. 163, 573 S.W.3d 596. According to Mr. Tyler, he thought Ms. Halbrook’s testimony
stayed within these parameters and was admissible. However, even if Ms. Halbrook’s
testimony “strayed far afield” as alleged, Mr. Tyler also testified at the Rule 37 hearing that
he made strategic decisions to not object to certain testimony so as to not draw more
attention to the unfavorable testimony. Instead, he cross-examined Ms. Halbrook regarding
the statistics she mentioned, and he attempted to cross-examine Ms. Halbrook regarding the
results of other trials in which she testified and offered her opinions. In fact, it was during
that exchange when Ms. Halbrook stated that K.B.’s statement and body language were
consistent with sexual abuse. Immediately after Ms. Halbrook’s statement, Mr. Tyler asked
her whether she was ever wrong about her opinion and asked her about another unrelated
case in which that defendant had been acquitted. Ultimately, the trial court ruled
Mr. Tyler’s questions regarding the unrelated case were improper.
The circuit court found that each of appellant’s arguments under this point fell within
the realm of trial strategy, and we agree. Matters of trial strategy and tactics, even if arguably
improvident, fall within the realm of counsel’s professional judgment and are not grounds
for finding ineffective assistance of counsel. Williams v. State, 2017 Ark. 123, 517 S.W.3d
397; Smith v. State, 2016 Ark. 417, 504 S.W.3d 595. Even if counsel’s tactical choices had
been different with the benefit of hindsight, the fact that the strategy was unsuccessful does
not render counsel’s assistance ineffective. Williams, supra. Moreover, our supreme court
has held that the extent to which a witness is questioned, the specific manner of questioning,
14 and the tactical considerations attending those issues do not warrant relief under Rule 37.
Lemaster v. State, 2015 Ark. 167, 459 S.W.3d 802. As such, we cannot say that the circuit
court’s denial of relief on this point is clearly erroneous, and we affirm.
VI. Failure to Object to Testimony Quoting Accuser or to Seek a Limiting Instruction
Next, appellant argues that he is entitled to relief because trial counsel was ineffective
by his failure to object to testimony of witnesses quoting the accuser and not seeking an
instruction that their testimony was not being admitted for the truth of the matter asserted.
More specifically, appellant contends that trial counsel was ineffective for failing to object
to the State’s eliciting inadmissible hearsay testimony from D.H. and Ky.B. regarding K.B.’s
statements to them that appellant had inappropriately touched her. Appellant further
contends that he was prejudiced because their testimony was used to bolster K.B.’s
testimony.
The circuit court disagreed and made the following relevant findings:
The defendant complains that counsel was ineffective for failing to object to testimony offered by two individuals, [Ky.B.] and [D.H.], regarding the victim’s disclosure of abuse. The first of those, [Ky.B.], is the older sister of the victim, [K.B.]. At the time of trial, [Ky.B.] was 18 years old, [K.B.] was 16. [Ky.B.] testified that when she was 13 and [K.B.] was 10 or 11, she disclosed that the defendant “came into her room one night and started touching her like girl parts down there.” When asked about her emotional state at the time she made the disclosure, [Ky.B.] testified “she was like hysterically crying, like bawling her eyes out.”
The second witness to testify regarding [K.B.’s] disclosure was [D.H.]. She testified that she and [K.B.] attended a church event called Turning Point weekend in 2016. During the weekend, in the presence of eight or nine girls, [K.B.] shared that when she was ten years old, her former step father touch her. When describing her emotional state, [D.H.] testified “She was very weak in her like emotional state. She cried a little bit and she kind of hung her head, not because she was like—not because she was avoiding people but because it was hard for her to look up and talk
15 about it because she was kind of—it was an awkward topic.” She also testified that she cried.
Ark. R. Evid. 803(2) states that “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” are excluded by the hearsay rule. The admissibility of an excited utterance is not to be measured by any precise number of minutes, hours, or days, but required that the declarant is still under the stress and excitement caused by the traumatic occurrence. Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988). It is clear by her emotional state at the times of her two disclosures, at age 10 and age 15, that [K.B.] was under the stress of excitement caused by the abuse at the hands of her step father. As such, those disclosures were exceptions to hearsay as an excited utterance under Ark. R. Evid. 803(2). Further, knowing that those statements were exceptions to the hearsay rule, Mr. Tyler made a strategic trial decision not to object so as not to draw attention to the statements and clue the jury that they were statements he felt were contrary to his case and the defendant’s innocence.
We agree with the circuit court that appellant is not entitled to relief under this point.
Even if we were to assume that the statements would not have been admissible under the
excited-utterance exception, we are still left with Mr. Tyler’s testimony at the Rule 37
hearing that he made strategic decisions throughout the trial to not object to some
unfavorable testimony because he did not want to draw attention to it and alert the jury to
statements that he felt were contrary to appellant’s innocence. As we already mentioned,
matters of trial strategy and tactics, even if arguably improvident, fall within the realm of
counsel’s professional judgment and are not grounds for finding ineffective assistance of
counsel. Williams, 2017 Ark. 123, 517 S.W.3d 397; Smith, 2016 Ark. 417, 504 S.W.3d 595.
Even if counsel’s tactical choices had been different with the benefit of hindsight, the fact
that the strategy was unsuccessful does not render counsel’s assistance ineffective. Williams,
supra. As such, appellant has failed to demonstrate that trial counsel’s performance was
deficient.
16 Moreover, even if we were to assume trial counsel’s performance was deficient, based
on the record before us, appellant has failed to show that there is a reasonable probability
that the fact-finder’s decision would have been different absent counsel’s alleged errors. We
consider a claim of ineffective assistance of counsel through the perspective of the totality
of the evidence put before the jury. Burnside v. State, 2017 Ark. App. 691, 537 S.W.3d 796.
K.B. had testified in detail regarding the incidents she had told Ky.B. and D.H. about. Even
Mr. Tyler commented at the Rule 37 hearing that K.B. came across as credible throughout
her testimony. On the other hand, Mr. Tyler did not think appellant’s behavior and
demeanor on the stand helped his defense. He stated that appellant appeared very lethargic
and seemed as though he was under the influence of drugs or alcohol. At one point, he
thought appellant was going to fall asleep. In short, appellant has failed to show how keeping
out K.B.’s statements to Ky.B. and D.H. that appellant had inappropriately touched her
would have resulted in a different trial outcome. See Burnside, supra. As such, we cannot
say that the circuit court was clearly erroneous in denying relief and affirm on this point.
VII. Failure to Object to Improper Impeachment of a Defense Witness
Next, appellant argues that he is entitled to relief because trial counsel was ineffective
for failure to object to improper impeachment of a defense witness. Under this argument,
appellant argues that Mr. Tyler should have objected when the State cross-examined
Mr. Peek and questioned whether Mr. Peek knew that attorneys are mandated reporters.
Mr. Peek responded that he was not aware of that statute and did not know that he was a
mandated reporter. Appellant argues that because attorneys are not mandated reporters
17 under Arkansas Code Annotated section 12-18-402 (Supp. 2019), Mr. Tyler should have
corrected the State’s mischaracterization of Mr. Peek’s lack of knowledge of the law.
At the Rule 37 hearing, Mr. Tyler testified that he thought he did object. However,
after a review of the record, he acknowledged that he did not. That said, Mr. Tyler also
stated in his affidavit attached to the State’s response to appellant’s postconviction motion
that “Mr. Peek was being impeached long before the incorrect assertion that he was a
mandated reporter of allegations of abuse.” The circuit court agreed and stated in its order
that “[i]t cannot be said that these three questions and three answers from a total of 13 pages
of direct testimony and cross examination would have resulted in a different outcome had
Mr. Tyler objected and the testimony stricken.” Therefore, even if Mr. Tyler was deficient,
appellant could not show that there is a reasonable probability that the fact-finder’s decision
would have been different absent counsel’s error on such a relatively minor point. Because
appellant cannot show prejudice from these alleged errors by trial counsel, we affirm on this
VIII. Failure to Present Testimony Regarding Accuser’s Source or Inspiration for Claiming Abuse
Finally, appellant argues that he is entitled to relief because trial counsel was
ineffective by his failure to present or seek to present testimony concerning the accuser’s
source or inspiration to make the original claim of abuse. He argues that Mr. Tyler failed
to ask K.B. whether another minor child, K.H., who lived in the home, had given her the
idea to falsely accuse appellant. Appellant further alleges that he was prejudiced by
Mr. Tyler’s failure to do so because he was “deprived of a plausible explanation about why
the accusation against [him] was made.” We disagree. 18 As part of appellant’s defense at trial, Mr. Tyler attempted to introduce testimony
regarding K.H., who had lived in the household with K.B. K.H. apparently had claimed
that she had been abused by another man in Texas. The defense’s theory was that K.H.
gave K.B. the idea to falsely accuse appellant. However, the trial court refused to allow this
testimony to be introduced through appellant’s direct examination. When Mr. Tyler
questioned appellant about K.H., the State objected and argued that Mr. Tyler needed to
ask those questions of K.B. instead of appellant. Additionally, the State argued that it was
irrelevant. The trial court sustained the objection and stated that it was irrelevant.
Mr. Tyler testified at the Rule 37 hearing that he had originally made the strategic
decision to introduce this testimony through appellant’s testimony rather than K.B.’s
because he felt certain that K.B. would deny it and that the trial court would rule it
inadmissible. He stated that even if the State objected, it would at least allow appellant to
“try to ramble off something real quick to put a bug in the jury’s ear.” Moreover, he stated
that even if the trial court had allowed him to ask K.B. those questions if he recalled K.B.,
he did not want to do so because K.B. came across as credible throughout her testimony.
Like the circuit court, we cannot say that Mr. Tyler’s performance was deficient. As
already mentioned above, matters of trial strategy and tactics, even if arguably improvident,
fall within the realm of counsel’s professional judgment and are not grounds for finding
ineffective assistance of counsel. Williams, supra. Moreover, regardless of whether Mr. Tyler
desired to recall K.B. to ask her about K.H., the trial court already ruled that the testimony
was inadmissible as irrelevant. As such, we cannot say that the circuit court’s denial of relief
on this point is clearly erroneous, and we affirm.
19 IX. Conclusion
We find no clear error in the circuit court’s denying appellant Rule 37 relief, and we
affirm.
Affirmed.
WHITEAKER and MURPHY, JJ., agree.
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.