Glenda Dyer v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 10, 2003

GLENDA DYER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-581

APPEAL FROM THE CIRCUIT COURT OF SEVIER COUNTY, NO. CR 99-31, HONORABLE CHARLES A. YEARGAN, JUDGE

AFFIRMED

Appellant was convicted of the first-degree murder of her husband and sentenced to life imprisonment. We affirmed in Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001). Subsequently, appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied following an evidentiary hearing. From that order comes this appeal.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant

makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must first show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effecton the defense." Id. at 693.

Appellant's sole point on appeal is that the trial court erred in denying her claim of ineffective assistance of counsel during the sentencing phase of trial. According to appellant, the ineffectiveness stemmed from counsel's failure to properly question certain witnesses and in advising her not to testify. Appellant claims that once the jury found her guilty of murder, "the focus should have shifted to going forward with any evidence that would aid [appellant] in receiving a sentence less than the maximum of life." Such mitigating evidence, according to appellant, was testimony regarding verbal and physical abuse by her late husband.

At the Rule 37 hearing, counsel testified that during the guilt phase of the trial, he made the decision not to present evidence concerning abuse. Counsel's reasoning was that appellant's defense was complete denial and that evidence of abuse would have given appellant a motive for killing her husband. Counsel also testified that he and appellant discussed possible sentencing-phase witnesses before trial and that they decided together which witnesses to call.

According to counsel, the decision was made that appellant would not take the stand because she would be cross-examined regarding sexual affairs she had before and after her husband's death and because other witnesses were available to provide relevant testimony. Counsel also testified that the trial judge explained to appellant that she had the right to testify and that she waived that right. Appellant contends that evidence of her sexual affairs had already come out during the guilt phase; therefore, it would not have mattered that putting her on the stand would have opened the door to such testimony.

In denying appellant's petition, the trial court found:

Defendant now relies on hindsight concerning what witnesses she wished to be called as well as the content of witnesses' testimony, and the failure of her attorney to ask more questions of certain witnesses. She admits in this hearing she did not want to destroy the reputationof her husband at the trial, and therefore made a decision with her attorney not to bring out any testimony concerning abuse or threats.

The defendant also had a problem with presenting inconsistent defenses. On one hand she wants to complain about how she was treated by her husband/victim and imply some

mitigation as to why she would play a part in his death, and on the other hand claim no part whatsoever in the planning and carrying out of the murder.

According to the trial court, appellant chose not to ask questions of certain witnesses to avoid drawing the jury's attention to her sexual affairs and that she chose not to question witnesses regarding the abuse. Finally, the court found that with counsel's advice, appellant opted not to testify. The trial court concluded that such decisions were "pure and simple trial tactics and strategy and thus are not grounds for relief under Rule 37."

We agree with the trial court that matters of trial strategy are not grounds for a finding of ineffective assistance of counsel. See Lee v. State, 343 Ark. 702, 715, 38 S.W.3d 334, 343 (2001). The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). When assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. State v. Dillard, supra.

Nelson v. State, 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001). Because counsel's decisions were matters of trial strategy that did not fall beyond the scope of what a competent attorney would recommend, we find no basis for a claim of ineffective assistance. Accordingly, we affirm the trial court's denial of postconviction relief.

Affirmed.

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