Weaver v. State

3 S.W.3d 323, 339 Ark. 97, 1999 Ark. LEXIS 562
CourtSupreme Court of Arkansas
DecidedNovember 4, 1999
DocketCR 98-33
StatusPublished
Cited by30 cases

This text of 3 S.W.3d 323 (Weaver 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
Weaver v. State, 3 S.W.3d 323, 339 Ark. 97, 1999 Ark. LEXIS 562 (Ark. 1999).

Opinion

TOM Glaze, Justice.

Appellant Bobby D. Weaver was contice. counts of delivery of methamphetamine and sentenced to ten years’ imprisonment on each conviction to run consecutively. The court of appeals issued a December 18, 1996, unpublished opinion which affirmed Weaver’s case. After-wards, Weaver filed a timely Rule 37 postconviction petition wherein he set out five reasons why his convictions should be set aside, but the trial court rejected each one. Weaver brings this appeal, arguing the trial court erred in its rulings and should be reversed. We take jurisdiction of this case pursuant to Ark. S. Ct. R. l-2(b)(l), (3), (4) and (5) (1999).

Weaver first contends that his trial attorney, Larry Kissee, rendered ineffective assistance of counsel by failing to assert the defense of entrapment. To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). 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. Petitioner must also show 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. Id. In a Rule 37 review, this court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.

In the instant case, counsel Kissee’s performance was quite reasonable when he chose to try Weaver’s case without raising the affirmative defense of entrapment. It was the State’s case that, on two occasions, February 2 and 4, 1996, Weaver purchased methamphetamine from an undercover officer, Nancy Tucker, and Weaver countered, stating that he could not have purchased the drug on February 2 because he was elsewhere fishing. Two witnesses testified and corroborated Weaver’s alibi.

Our law is well established that, if a defendant denies committing an offense, he cannot assert that he was entrapped into committing the offense. Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992); Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989). Nonetheless, Weaver argues Kissee still should have argued that an exception should be made to Arkansas’s law based on the holding in Mathews v. United States, 485 U.S. 58 (1988). There the Supreme Court held that, even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. Our court recognized the rule in Mathews when it decided Morris, and in fact acknowledged two situations where the Arkansas rule could conflict with Mathews. One of these situations is not applicable here; the other would arise when the prosecution’s case contains substantial evidence of entrapment, but the accused denies committing the offense charged. However, the Morris court held that it was not bound by the Mathews decision as it involved the construction of federal criminal procedure law and had no footing in constitutional law. Even though our court has not applied the rule in Mathews, Weaver submits Kissee still should have argued that entrapment should be available as an alternate defense where the State’s case-in-chief contains sufficient evidence of entrapment. See Heritage, 326 Ark. at 847, 936 S.W.2d at 504. Weaver urges that Kissee was particularly obliged to seek such alternate affirmative relief because Kissee was intimately familiar with the Mathews rule, since he was the defense attorney in the Heritage and Morris decisions. However, it was Kissee’s familiarity with those prior decisions which caused him to reject entrapment as a defense. In other words, he knew that Arkansas has not permitted the entrapment defense when a defendant asserts he was innocent of the crime.

In addition, while Weaver now suggests Kissee should have cross-examined State’s witness Nancy Tucker at trial about her sexual relations with him and other men in an attempt to show she induced them to deliver illegal drugs, there is nothing in the record to indicate such concessions or admissions could have been achieved through the cross examination of Tucker. In this respect, the State’s evidence revealed only that Weaver voluntarily participated in committing the two drug sales with which he was charged, and that Tucker never had sex with Weaver. Thus, even assuming that Arkansas were bound by the Mathews rule, there was simply no substantial evidence of entrapment to support the giving of an entrapment instruction.

In short, Kissee was faced with placing the inconsistent defenses of alibi and entrapment before the court when only alibi evidence had been presented to the jury. In these circumstances, he opted to pursue only his alibi defense — an entrapment defense would only have been confusing to the jury. This court has repeatedly held that matters of trial tactics and strategy are not grounds for postconviction relief. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996); see also Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989) (counsel cannot be ineffective for failing to raise an argument that this court has already rejected); Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995) (counsel cannot be declared ineffective for failing to present a defense theory entirely inconsistent with defendant’s denial of committing the crime). Based on the record before us, the trial court in this Rule 37 proceeding was not clearly erroneous in holding Kissee was not ineffective for choosing against the idea of asserting entrapment as a defense.

We next turn to Weaver’s contention that Kissee was ineffective in fading to assert the defense of “outrageous governmental conduct” and in his failure to move to suppress evidence that resulted from such conduct. Again, we conclude the trial court was correct in rejecting those arguments.

Weaver cites the cases of United States v. Russell, 411 U.S. 423 (1973), and United States v. Hampton, 425 U.S. 484 (1976), to support his second point for reversal. In Russell, the defendant was convicted of manufacturing methamphetamine, and the conviction was in part based on the work of an undercover officer who had supplied part of the chemicals necessary for the manufacturing process. In affirming the conviction, the Court declared that “[wjhile we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction, the instant case is distinctly not of that breed.” 411 U.S. at 422.

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Bluebook (online)
3 S.W.3d 323, 339 Ark. 97, 1999 Ark. LEXIS 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-state-ark-1999.