State v. Dillard

998 S.W.2d 750, 338 Ark. 571, 1999 Ark. LEXIS 447
CourtSupreme Court of Arkansas
DecidedSeptember 23, 1999
DocketCR 99-225
StatusPublished
Cited by42 cases

This text of 998 S.W.2d 750 (State v. Dillard) 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
State v. Dillard, 998 S.W.2d 750, 338 Ark. 571, 1999 Ark. LEXIS 447 (Ark. 1999).

Opinion

Donald L. Corjbin, Judge.

Appellee Dewayne Dee Dillard was convicted in the Sebastian County Circuit Court of two counts of first-degree sexual abuse and sentenced to eight years’ imprisonment. This court affirmed the convictions. See Dillard v. State, 333 Ark. 418, 971 S.W.2d 764 (1998). Dillard then filed a petition for postconviction relief, pursuant to Ark. R. Crim. P. 37, asserting that his trial counsel was ineffective for failing to interview and subpoena two witnesses who would have testified that one of the victims was untruthful. The circuit court granted the petition, and the State of Arkansas brings this appeal. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (7). We affirm.

Before we reach the merits of this appeal, we must first address Dillard’s argument that the State may not appeal from the grant of a Rule 37 petition. The State responds by contending that Rule 37 proceedings are civil in nature, and that this appeal is brought pursuant to Rule 2(a)(3) of the Arkansas Rules of Appellate Procedure—Civil (providing for appeal from an order granting a new trial). We agree with the State, as this court has repeatedly recognized that postconviction proceedings under Rule 37 are civil in nature. See, e.g., Cravey v. State, 306 Ark. 487, 815 S.W.2d 933 (1991); Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990) (per curiam); Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990) (per curiam). Indeed, this court has recently decided appeals by the State from grants of postconviction relief. See State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998); State v. Her-red, 332 Ark. 241, 964 S.W.2d 391 (1998); State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998). Having thus determined that the appeal is properly before us, we turn to the merits of the case.

The record reveals that Dillard was convicted of two counts of first-degree sexual abuse involving two minor girls: S.S. and T.L. During the course of the trial, Dillard maintained that the girls were lying. The only witness called by the defense was Dillard himself. Dillard alleged in his petition that his trial counsel, John Settle, was ineffective for failing to interview and subpoena two potential defense witnesses: Samantha Bay, S.S.’s sister, and Jimmy Lambert, T.L.’s brother. 1 At the hearing, Dillard testified that Bay would have testified that S.S. was not a truthful person, and that she did not believe S.S.’s accusations against Dillard. Dillard stated that Lambert was prepared to testify that S.S. had made up the allegations against Dillard.

Dillard maintained that he had informed Mr. Settle about these two witnesses. He stated that Mr. Settle assured him that he did not need any witnesses because he was going to rely primarily on the motion for severance of the two charges. He stated that Mr. Settle said that he was going to continue to rely on the severance motion up to the day of trial and beyond. He stated that Mr. Settle told him that there would be no problem in obtaining a severance through an appeal, and that he should not worry about it because he would be entitled to a new trial on appeal. The trial record reflects that the only witness called by the defense was Dillard himself.

Mr. Settle testified that he was aware that Bay might have held the opinion that S.S. had a problem telling the truth and had a reputation for dishonesty. He indicated that her testimony, as described in the Rule 37 petition, would have been helpful to the defense. He stated that he knew that Dillard’s trial was going to come down to a swearing match between Dillard and the two victims. Mr. Settle conceded, however, that he had never spoken with Bay about her potential testimony, and he maintained that he made the decision not to call her as a witness based upon his experience as a criminal defense attorney. He explained that he was aware that Bay hated Dillard, and that she had stated that she hoped he rotted in jail or was hanged by a rope. He stated that Bay was not someone he wanted to “let loose on the stand.” Mr. Settle agreed with Dillard’s counsel, however, that he could have avoided the unfavorable testimony by simply not asking Bay her opinion of Dillard.

Mr. Setde denied having any knowledge of Lambert’s testimony, which he stated would have been extremely helpful to the defense. He denied having ever been informed by Dillard of this witness’s existence. In contrast, Dillard’s father, Erbie Dillard, testified that he was present during a conference with Mr. Settle when Dillard tried to get him to call Lambert as a witness. Erbie Dillard stated that Mr. Settle indicated that he did not think they would need to call any witnesses.

The trial court granted Dillard’s petition on the ground that trial counsel was ineffective in regard to both witnesses’ testimony. The trial court found that counsel was ineffective for relying entirely on Samantha Bay’s statement to the authorities and failing to interview her and make an independent evaluation of her potential testimony. The trial court also found that counsel was ineffective for failing to interview and call Jimmy Lambert as a witness at Dillard’s trial. The trial court found further that Dillard’s trial had been prejudiced in these two instances. On appeal, the State raises three points for reversal. We find no merit and affirm the trial court’s order.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced his defense. See Clemmons, 334 Ark. 440, 976 S.W.2d 923; Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). Unless the 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. In other words, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Herred, 332 Ark. 241, 964 S.W.2d 391; Slocum, 332 Ark. 207, 964 S.W.2d 388. With this standard in mind, we discuss the points on appeal.

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Bluebook (online)
998 S.W.2d 750, 338 Ark. 571, 1999 Ark. LEXIS 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dillard-ark-1999.