Williams v. State , 517 S.W.3d 397 ( 2017 )

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SUPREME COURT OF ARKANSAS
No. CR-15-658
Opinion Delivered: April 13, 2017
ANTONIO WILLIAMS PRO SE APPEAL FROM THE
APPELLANT PULASKI COUNTY CIRCUIT
V. COURT
[60CR-12-653]
STATE OF ARKANSAS
APPELLEE
HONORABLE HERBERT T.
WRIGHT, JR., JUDGE
AFFIRMED.
PER CURIAM
In 2013, a jury found appellant Antonio Williams guilty of capital murder for the
death of Kelvin Lott Shelton, and he was sentenced to life without parole, with an additional
sentence enhancement of eighty-four months’ imprisonment for employing a firearm in
commission of the crime. This court affirmed. Williams v. State, 2014 Ark. 253, 435 S.W.3d
483. Williams filed in the trial court a timely pro se petition under Arkansas Rule of
Criminal Procedure 37.1 (2016). Williams retained counsel, and with the trial court’s
permission, counsel amended the petition. After an evidentiary hearing, the trial court
denied the amended petition, and still represented by counsel, Williams lodged an appeal in
this court. Counsel was relieved, and with Williams proceeding pro se, the matter has now
been briefed. We affirm the trial court’s order denying postconviction relief.
This court will not reverse a trial court’s decision granting or denying postconviction
relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922; Kemp
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v. State, 347 Ark. 52, 60 S.W.3d 404 (2001). 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. Turner v.
State, 2016 Ark. 96, 486 S.W.3d 757.
In his Rule 37.1 petition, Williams raised two claims of ineffective assistance of
counsel. He first alleged that trial counsel failed to call an alibi witness, Daquasha Johnson.
In his second claim, Williams alleged that counsel was ineffective for allowing the
introduction of evidence concerning the identification of Williams by Torrece Graydon as
an eyewitness to an incident with Shelton leading up to Shelton’s murder. The
identification was made prior to trial from a photo array, and the trial court had suppressed
the evidence on a defense motion.
On the first claim, the trial court found that counsel was not ineffective, that
Williams’s assertion that he was not present at the scene of the crime was undercut by
evidence introduced at his trial, and that Williams’s testimony that he had told his attorney
about Johnson before his trial during the Rule 37 hearing was not credible. On the second
claim, the trial court found that counsel had attempted to have both the photo array and
any in-court identification by the eyewitness suppressed; that counsel had testified that,
when the in-court identification was not suppressed, he was forced to use the photo-array
evidence in order to provide the jury with an explanation for the eyewitness’s in-court
identification of Williams, and that, because this decision to introduce the photo-array
evidence was reasonable trial strategy, counsel was not ineffective.
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Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis
set forth in Strickland v. Washington, 466 U.S. 668 (1984). Rasul v. State, 2015 Ark. 118,
458 S.W.3d 722. To prevail on a claim of ineffective assistance of counsel, the petitioner
must show that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced his defense. Mister v. State, 2014 Ark. 446. Unless a petitioner makes both
showings, the allegations do not meet the benchmark on review for granting relief on a
claim of ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.
Counsel is presumed effective, and allegations without factual substantiation are
insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d
55. A petitioner claiming deficient performance must show that counsel’s representation
fell below an objective standard of reasonableness, and this court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is
effective by identifying specific acts and omissions that, when viewed from counsel’s
perspective at the time of trial, could not have been the result of reasonable professional
judgment. Id.
To prevail on a claim of ineffective assistance of counsel, a petitioner must also show
that there is a reasonable probability that the fact-finder’s decision would have been different
absent counsel’s alleged errors in order to meet the second prong of the test. Sales v. State,
2014 Ark. 384, 441 S.W.3d 883. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Id. In assessing prejudice, courts “must
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consider the totality of the evidence before the judge or jury.” Rasul, 2015 Ark. 118, at 7,
458 S.W.3d at 727 (quoting Strickland, 466 U.S. at 695).
A brief recitation of some of the evidence at trial is helpful in understanding the issues
presented.1 Graydon testified that she and Shelton had gone to meet with someone Shelton
had described to her and called “Big Mike.” Shelton planned to sell him some marijuana.
“Big Mike” is Williams’s brother, Michael Williams. Both brothers have burn scars on their
faces from a fire when they were children. Graydon testified that Shelton had parked behind
a car for the meeting with Big Mike and that, initially, two men had gotten out of the car
and into the backseat of the Jeep that Shelton was driving. After Shelton showed the men
the marijuana, they went back to the car to get approval for the purchase. They came back
with a third man, who got into the Jeep’s backseat while the other two men stood outside.
The third man placed a gun to Shelton’s head and demanded the drugs. Graydon got out
of the Jeep, and she heard gunshots as she fled. Shelton was found dead in the Jeep after
Graydon had alerted the police. After the incident, Graydon told the police that the man
with the gun had scars on his face.
On appeal, Williams reiterates his claims from the petition and asserts that the trial
court’s interpretation of Strickland was unreasonable. Concerning his first ineffective-
assistance claim, Williams contends that trial counsel failed to investigate sufficiently to
discover Johnson’s testimony. As to the second prong of the Strickland test, Williams alleges
that Johnson would have testified that Williams was at his house with her at the time of the
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We may take judicial notice of the record from the direct appeal without need to
supplement the record. Flemons v. State, 2016 Ark. 460, 505 S.W.3d 196 (per curiam).
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crime and his brother was not, that the testimony would have raised reasonable doubt and
discredited Graydon’s testimony, and that he was therefore prejudiced by counsel’s failure
to discover and present Johnson’s testimony at trial.
Despite Williams’s assertions that there was deficient performance and prejudice, the
trial court’s factual findings support its apparent conclusion that Williams failed to satisfy
either prong of the two-part Strickland test, and those findings were not clearly erroneous.
The trial court specifically stated that it found not credible Williams’s testimony at the Rule
37 hearing that he had told his attorney that Johnson could provide alibi testimony. In
rendering its decision, the trial court was not required to accept Williams’s testimony as
truthful, and this court does not assess the credibility of witnesses on appeal. Smith v. State,
2016 Ark. 417, 504 S.W.3d 595.
Williams’s trial attorney testified at the Rule 37 hearing that he had investigated the
witnesses that Williams had given him, although he did not recall specifically whether he
had talked to Johnson. He did remember that all of the alibi witnesses had placed both
Michael and Williams at the house and that they were more certain about the fact that
Michael was there. Because the defense strategy was based on the possibility that Michael
had committed the murder, counsel concluded that all of the testimony would be more
harmful than helpful.
On appeal, Williams appears to contend that, even if the trial court did not believe
his testimony, counsel had failed to investigate sufficiently to discover Johnson’s potential
testimony. When counsel was questioned at the Rule 37 hearing about whether other alibi
witnesses had mentioned Johnson’s presence at the house, however, counsel indicated that
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he did not specifically recall, but that if he had understood that there was anyone who could
have said Williams was at the house, he would have spoken to them. In denying the claim,
the trial court referenced this testimony and appears to have concluded that counsel was
credible in testifying that he would have spoken to Johnson if her name had been
mentioned. When there is conflict that presents an issue of credibility, it is the trial court’s
task as trier of fact to resolve it, and, especially where the petitioner in a Rule 37 proceeding
has the most interest in the outcome of the proceeding, the court is free to believe all or
part of any witness’s testimony. Jones v. State, 2014 Ark. 448, 486 S.W.3d 743 (per curiam).
We will not overturn the decision of the trial court in a matter based on an assessment of
credibility by the trier of fact. Id.
Moreover, the trial court’s findings support a determination that Williams did not
demonstrate prejudice from counsel’s failure to discover Johnson’s potential testimony. In
assessing prejudice, we consider the totality of the evidence before the jury. The trial court
pointed to evidence admitted at trial that undercut any potential testimony by Johnson that
Williams was not at the crime scene. This included evidence that Williams told his sister
that he was at the crime scene but that he had not shot Shelton. The trial court also pointed
to tapes of Williams’s conversations with his mother while he was incarcerated. During
these conversations, Williams appeared to ask his mother to have someone offer Graydon
money in return for an affidavit stating that he was not at the crime scene. Later, Williams
spoke of having prepared a letter to send to a judge, once again averring that he had been
at the scene of the murder but had not shot Shelton and did not know what was going to
happen. In addition to the evidence noted, a statement Michael made to the police was
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admitted in which Michael stated that Williams had also come to him after the murder in
an emotional state and that Williams had told the same story about being present during the
murder when another individual shot Shelton. In light of this offsetting evidence, Williams
has not shown that Johnson’s potential testimony would have been of any significant value
to his defense. Williams therefore did not demonstrate that, but for counsel’s failure to
present her testimony, there was a reasonable probability that the fact-finder’s decision
would have been different.
In his second point on appeal, Williams alleges that it was error for the trial court to
find that trial counsel made a reasonable strategic decision to introduce the evidence of the
photo-array identification. Williams appears to argue that, once the evidence had been
excluded, it could not be admitted, that both identifications, including the one Graydon
made in court, were unreliable, and that his counsel needed his waiver to have the evidence
admitted.
To the extent that Williams would directly challenge the trial court’s original ruling
on the admissibility of the in-court identification, the issue is not one cognizable in Rule
37 proceedings. Chatmon v. State, 2016 Ark. 126, 488 S.W.3d 501 (per curiam) (holding
that claims of trial error such as improper admission of prejudicial evidence are not grounds
for relief under Rule 37.1); see also State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315 (noting
that this court has held that allegations of a due-process violation based on alleged trial error
regarding the admissibility of evidence are not cognizable in Rule 37 proceedings).
Moreover, this court previously considered the issue on direct appeal and rejected the
argument. The law-of-the-case doctrine dictates that issues concluded in a prior appellate
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decision may not be revisited in a subsequent proceeding because the matter becomes res
judicata. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). This is true even if the
decision was wrongly decided. Id. Williams therefore cannot now challenge the trial court’s
admission of the in-court identification.
While the trial court had granted the defense motion to bar the prosecution from
using the evidence of the photo array for the purpose of establishing Graydon’s identification
of Williams as the man with the gun, it did not rule that the defense could not waive its
objection to the introduction of the evidence to serve a different purpose, that is, in order
to counter an in-court identification of Williams by Graydon. Trial counsel made plain in
his argument against admission of an in-court identification that he would feel compelled
to adopt such a strategy if the trial court did not exclude any in-court identification, and
counsel renewed his objection to the in-court identification at the time that the photo array
was introduced with the same argument. Counsel also testified at the Rule 37 hearing that
he had been forced to use the photo-array evidence in order to provide the jury with an
explanation for the eyewitness’s in-court identification of Williams. The trial court found
that this decision to allow the introduction of the photo-array evidence was reasonable trial
strategy.
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. Hartman v. State, 2017 Ark. 7, 508 S.W.3d 28. When a decision by trial counsel
is a matter of trial tactics or strategy and that decision is supported by reasonable professional
judgment, then such a decision is not a proper basis for relief under Rule 37. Van Winkle
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v. State, 2016 Ark. 98, 486 S.W.3d 778. The reviewing court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Hartman, 2017 Ark. 7, 508 S.W.3d 28.
Counsel made a deliberate decision to allow introduction of the evidence, and he
provided his specific reasoning for doing so. In order for the defense theory to be successful,
countering the in-court identification of Williams was, as counsel indicated, crucial.
Williams does not suggest any alternative tactic that may have been implemented by counsel.
We cannot conclude that the trial court was clearly erroneous in determining that counsel’s
decision was one of reasonable trial strategy. 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. See id.
As for Williams’s assertion that counsel had an obligation to obtain his express waiver
before adopting the strategy of admitting the pretrial identification to counter the in-court
identification, he misconstrues the case he cites for that proposition. In Florida v. Nixon,
543 U.S. 175 (2004), the United States Supreme Court noted that an attorney has a duty to
consult with the client regarding important decisions, including overarching defense
strategy. Williams does not take issue with trial counsel’s overarching strategy to suggest
that his brother was the gunman. He contends, however, that counsel should not have
employed the tactic used to counter the in-court identification.
In Nixon, the Court acknowledged that an attorney has authority to manage most
aspects of the defense without obtaining his client’s approval and need not obtain consent
to every tactical decision, citing Taylor v. Illinois, 484 U.S. 400, 417–18 (1988). Nixon does
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not stand for the proposition that express consent is required in circumstances like those in
this case, and it does hold that, unless the alleged error in adopting an unsuccessful strategy
amounts to a failure to function in any meaningful sense to oppose the State’s case, the
defendant asserting that counsel was ineffective must show that the strategy was unreasonable
and prejudiced him. Nixon, 543 U.S. 175. Williams failed to make either showing.
Affirmed.
Antonio Williams, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee
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