Bryant v. State , 429 S.W.3d 193 ( 2013 )

Cite as 2013 Ark. 305SUPREME COURT OF ARKANSAS
No. CR-11-481
Opinion Delivered September 5, 2013
PRO SE APPEAL FROM THE BOONE
LLOYAL WILLIE BRYANT COUNTY CIRCUIT COURT, 05CR-07-
APPELLANT 120, HON. GORDON WEBB, JUDGE
v.
STATE OF ARKANSAS AFFIRMED.
APPELLEE
PER CURIAM
Appellant Lloyal Willie Bryant was convicted in the Boone County Circuit Court on two
counts of rape and two counts of second-degree sexual assault, and he received an aggregate
sentence of life plus forty years’ imprisonment on the charges. This court affirmed the
judgment. Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152. Appellant filed in the trial court a timely
pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2012).
The court appointed counsel, held a hearing on the petition, and entered an order denying the
petition. Appellant, now pro se, appeals. We find no error and affirm.
Under our standard of review, this court does not reverse an order that denies
postconviction relief unless the trial court’s findings are clearly erroneous. Thompson v. State,
2013 Ark. 179 (per curiam). 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. Id.Appellant groups his arguments on appeal into two points. In both points, appellant
alleges that counsel was ineffective. The benchmark question to be resolved in judging a claim
Cite as 2013 Ark. 305of ineffective assistance of counsel is whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result. Norris v. State, 2013 Ark. 205, ___ S.W.3d ___ (per curiam). We assess the effectiveness
of counsel under a two-prong standard as set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). Lowe v. State, 2012 Ark. 185, ___ S.W.3d ___ (per
curiam). Under the Strickland test, a claimant must show that counsel’s performance was
deficient, and the claimant must also show that the deficient performance prejudiced the defense
to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy both
prongs of the test, and it is not necessary to examine both components of the inquiry if the
petitioner fails to satisfy either requirement. See Pennington v. State, 2013 Ark. 39 (per curiam).
A petitioner claiming ineffective assistance must first show that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth
Amendment to the United States Constitution. Walton v. State, 2013 Ark. 254 (per curiam).
There is a strong presumption that trial counsel’s conduct falls within the wide range of
reasonable professional assistance, and an appellant has the burden of overcoming this
presumption by identifying specific acts or omissions of trial counsel, which, when viewed from
counsel’s perspective at the time of the trial, could not have been the result of reasonable
professional judgment. Id.In order to meet the second prong of the test, a claimant must show that there is a
reasonable probability that the fact-finder’s decision would have been different absent counsel’s
errors. Delamar v. State, 2011 Ark. 87 (per curiam). A reasonable probability is a probability
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Cite as 2013 Ark. 305sufficient to undermine confidence in the outcome of the trial. Id.In his first point, appellant asserts that counsel was ineffective in his representation,
causing a conflict. Appellant does not develop that argument further, but he also raises claims
in this first point that trial counsel failed to conduct an adequate investigation, consult with his
client, or interview the prosecution’s witnesses. Appellant argues that any strategy counsel
adopted was not reasonable, that counsel did not obtain a witness’s recorded statement, and that
counsel did not effectively cross-examine the witnesses at trial. Appellant asserts that he
demonstrated prejudice, and he contends that, in determining prejudice, the court must consider
the cumulative effect of counsel’s errors.
In his second point on appeal, appellant asserts that counsel failed to adequately attack
inconsistencies in the victim’s testimony. In this point, appellant alleges that there was
insufficient corroboration of intent and that counsel should have challenged inconsistencies in
the time and place the incidents occurred.
The State in its response correctly notes that not all of appellant’s arguments on appeal
were raised below or addressed by the trial court. An appellant in a Rule 37.1 proceeding is
limited to the scope and nature of his arguments below, and he cannot raise new arguments on
appeal. Hogan v. State, 2013 Ark. 223 (per curiam). In an appeal of the denial of a Rule 37.1
petition, failure to obtain a ruling on an issue, including a constitutional issue, precludes review
on appeal. Norris, 2013 Ark. 205, ___ S.W.3d ___. We accordingly limit our review of
appellant’s arguments to those issues for which the trial court provided a ruling.
In the order denying postconviction relief, the trial court provided rulings on three issues
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Cite as 2013 Ark. 305that relate to appellant’s arguments in his first point. The first of these issues was appellant’s
claim in the Rule 37.1 petition that counsel did not adequately cross-examine witnesses or
remove the “taint” of the State’s questioning. The trial court interpreted this as a broad claim
that counsel had not vigorously cross-examined any of the witnesses, and it found that counsel
made appropriate motions and objections to challenge the introduction of the evidence, that
counsel did cross-examine most witnesses, and that counsel chose not to cross-examine the
remaining witnesses as a matter of trial strategy.1
The second issue was that counsel failed to impeach and adequately cross-examine two
witnesses who testified concerning appellant’s prior second-degree sexual-assault conviction in
Montgomery County on a guilty plea. On this issue, the trial court found that counsel had made
a tactical decision not to cross-examine these witnesses because he did not wish to emphasize
the testimony and believed that there were grave risks involved in additional questioning. The
trial court ruled that counsel’s decision was a reasonable strategic choice.
The last issue addressed by the trial court was whether counsel was ineffective for failing
to perform sufficient investigation to obtain a statement by the victim in the prior Montgomery
County case. The trial court found that counsel did perform a substantial amount of discovery
on the matter and that appellant had not established the existence of the statement that appellant
alleged had been made by the victim. The court further found that appellant was not prejudiced
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Appellant argues in his brief that the claim was intended to include an allegation that
counsel failed to object to the State’s having influenced the victim’s testimony by its method of
questioning the victim, which was repetitive. The court’s findings indicated that appellant’s
intent as to this issue was unclear, and the order did not provide a ruling on any allegations
beyond a general claim that counsel failed to vigorously cross-examine the witnesses.
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Cite as 2013 Ark. 305because counsel’s decision not to cross-examine the victim in the Montgomery County case was
a reasonable strategic decision.
Although appellant included in his first point on appeal some references to counsel’s
failure to interview other witnesses, appellant’s allegations of error that are relevant to the three
rulings all concern only two witnesses, the victim and the mother of the victim from the
Montgomery County case. Appellant’s arguments for reversal concerning these three rulings are
that counsel did not make strategic decisions not to cross-examine the two witnesses or to limit
pretrial investigation of the Montgomery County case, that counsel’s decision not to cross-
examine the witnesses was not reasonable, and that prejudice resulted from counsel’s failure to
cross-examine the witnesses. He also asserts that the court should have considered the
cumulative effect of all errors in determining prejudice. The concept of cumulative error,
however, is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was
afforded effective assistance of counsel. Nickelson v. State, 2013 Ark. 252 (per curiam).
The trial court found that counsel had made a strategic decision not to cross-examine the
two witnesses. Where a decision by counsel was a matter of trial tactics or strategy, and that
decision is supported by reasonable professional judgment, then counsel’s decision is not a basis
for relief under Rule 37.1. Adams v. State, 2013 Ark. 174, ___ S.W.3d ___ (citing Abernathy v.
State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam)). Counsel is allowed great leeway in making
strategic and tactical decisions. Leak v. State, 2011 Ark. 353 (per curiam). On review, if we
determine that the trial court correctly found that the decision not to cross-examine the two
witnesses was a strategic decision supported by reasonable professional judgment, there is no
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Cite as 2013 Ark. 305need to examine whether appellant was prejudiced. The trial court’s finding that a reasonable
strategic decision had been made is in essence a finding that appellant did not demonstrate
deficient conduct in the failure to cross-examine the witnesses so as to satisfy the first prong of
the Strickland standard.
Counsel testified at the Rule 37.1 hearing that he wanted to minimize the impact of the
negative testimony concerning the Montgomery County victim’s case. He indicated that he did
not cross-examine the witnesses because any questions would have emphasized the testimony
and had more detrimental impact than beneficial. We cannot say that the trial court was clearly
erroneous in ruling that counsel made a reasonable, professional strategic decision, based on the
information that counsel had at the time, not to cross-examine the two witnesses.
Counsel testified that he had reviewed the prosecution’s files on the case. During the
Rule 37.1 hearing, the State introduced documents from those files that included reports with
statements from the seven-year-old child’s parents. Those statements described statements
made by the child about the incidents in which the victim had said that appellant “stuck his
finger up his butt.” Counsel testified that he did not recall his client pointing out any
inconsistencies in the victim’s testimony at trial and that his recollection was that the testimony
at trial was consistent with what had been contained in the information, statements, and other
documents in the file. Counsel testified at the Rule 37.1 hearing that, if he had been aware of
inconsistencies, he would have cross-examined the witness only if he believed that questioning
the witness would have been helpful, and he indicated that some discrepancies would not merit
reinforcing the testimony through questions.
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Cite as 2013 Ark. 305Appellant alleges that the Montgomery County victim did not testify consistently with
his previous statements, in that the victim testified that appellant had used his penis instead of
his finger. Counsel testified at the Rule 37.1 hearing that he believed the jury would view the
difference between the victim testifying that appellant had inserted his penis instead of his finger
as “a distinction without a difference” and that, because the difference in appellant’s use of his
penis or his finger would have had no legal significance in determining the applicable charge,
such an inconsistency would not merit highlighting the testimony with cross-examination.
The evidence at the Rule 37.1 hearing was that counsel had made a carefully considered
decision not to cross-examine the witnesses. In Arkansas, 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. Hickey v. State, 2013 Ark. 237, ___
S.W.3d ___ (per curiam); Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783; Howard v. State, 367
Ark. 18, 238 S.W.3d 24 (2006). Appellant had the burden of overcoming the presumption that
counsel was effective by identifying specific acts or omissions, which, when viewed from
counsel’s perspective at the time of the trial, could not have been the result of reasonable
professional judgment. Viewing the decision from counsel’s perspective at the time of trial, with
the information that counsel had, we cannot say that the trial court clearly erred in finding that
counsel’s decision not to cross-examine the witnesses was based on reasonable professional
judgment.
Appellant, however, also alleged that counsel failed to adequately investigate the
Montgomery County conviction. Appellant contends that, if counsel had done so, he would
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Cite as 2013 Ark. 305have obtained a statement by the victim in the prior Montgomery County case and that counsel
could not have, with the information in that statement, made a reasonable decision at trial not
to cross-examine the witnesses.
In his brief, appellant contends that counsel had no calculated strategy for gathering
additional information about the guilty plea outside of the State’s file and that counsel
overlooked the possibility of obtaining more specific information. Counsel, however, stated in
his Rule 37.1 hearing testimony that he had specifically considered whether to try to obtain more
detailed information concerning the evidence in the Montgomery County case but decided not
to pursue it. Counsel indicated that he had concluded that more specific information about the
victim’s statements would not be helpful in opposing the admission of the evidence and that he
had decided to use a different legal tactic in his motions to exclude the evidence. Counsel
testified at the Rule 37.1 hearing that his research had convinced him that discrepancies that
might have been revealed by a statement, if one had existed, would not have kept the evidence
out. It was apparent from counsel’s testimony that he had chosen to focus his efforts on
preventing the admission of the evidence rather than on challenging the evidence that might
have been admitted concerning appellant’s guilty plea in Montgomery County.
Moreover, even if the decision to not further investigate the incidents in Montgomery
County had been unreasonable, appellant clearly did not demonstrate prejudice on this claim of
ineffective assistance because he did not demonstrate that further investigation would have
resulted in the discovery of evidence that would have allowed his attorney to better cross-
examine the Montgomery County victim. During the Rule 37.1 hearing, appellant did not
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Cite as 2013 Ark. 305introduce a copy of any statement by the Montgomery County victim. Appellant did not
establish that any statement had been recorded for counsel to have discovered. The
discrepancies that appellant alleged could have been discovered were of limited value in cross-
examining a child witness.
Appellant alleged in the Rule 37.1 hearing that the inconsistencies were those previously
discussed, that is, that the victim testified that appellant had used his penis instead of his finger
during the incidents, and that the incident described at trial by the Montgomery County victim
was rape, not the sexual-assault charge to which appellant entered his plea. As noted above, the
description of the statements that had been made by the victim in the Montgomery County case,
which were included in the file and reviewed by counsel, were consistent with the victim’s
statement at trial, with the exception that the child testified that appellant had used his penis.
Appellant did not allege facts to support his contention that the statement, if it existed, contained
any information that counsel did not already have.
Counsel has a duty to make a reasonable investigation or to make a reasonable decision
that makes particular investigations unnecessary; but, where a petitioner under Rule 37.1 alleges
ineffective assistance for failure to perform adequate investigation, he must delineate the actual
prejudice that arose from the failure to investigate and demonstrate a reasonable probability that
the specific materials that would have been uncovered with further investigation could have
changed the trial outcome. See Hickey, 2013 Ark. 237, ___ S.W.3d ___; see also State v. Harrison,
2012 Ark. 198, ___ S.W.3d ___. The burden is entirely on the claimant to provide facts that
affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations
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Cite as 2013 Ark. 305without factual substantiation are sufficient to overcome the presumption that counsel was
effective, and such statements and allegations will not warrant granting postconviction relief.
Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). A petitioner under Rule 37.1 who
asserts ineffective assistance for failure to investigate must show that further investigation would
have been fruitful, and that the specific materials identified that counsel could have uncovered
would have been sufficiently significant to raise a reasonable probability of a different outcome
at trial. See Watson v. State, 2012 Ark. 27 (per curiam). Appellant did not make such a
demonstration.
In appellant’s second and final point on appeal, he alleges error in the trial court’s finding
that counsel was not ineffective for failing to vigorously examine or adequately challenge
inconsistencies in the Boone County victim’s testimony.2 Appellant alleges that the victim made
inconsistent statements concerning where the incidents occurred and who was in the home at
the time. The trial court addressed this issue in its order, finding that the alleged inconsistencies
were brought out in cross-examination of the victim by counsel and that the manner of
questioning of the victim on cross-examination was a strategic decision not to appear abusive
or offend the jury. The trial court additionally found that the specific inconsistencies could
easily have been reconciled by the jury.
Appellant points to statements that the victim made on direct and cross-examination that
he contends could be interpreted as inconsistent, in that there are references to rooms and
people that appellant asserts indicate different descriptions by the child as to where the incidents
2
As with appellant’s first point, he raised additional arguments on appeal that were not
addressed in the postconviction order and that we do not address.
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Cite as 2013 Ark. 305occurred and who was at home at the time. We agree with the trial court’s determination that
some of these statements, taken in context, were not inconsistent and that the remaining
statements could easily be interpreted by the jury to be reconciled.
How aggressively to cross-examine a six-year-old child such as the victim here, much like
a decision whether to call a particular witness, is a decision that is largely a matter of professional
judgment in which trial counsel must use his or her best judgment to determine what
questioning will be beneficial to the client, and the decision must be assessed by taking into
account that the decision is a matter that experienced advocates could endlessly debate. See Small
v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam). As a matter of strategy, counsel’s
decision not to vigorously cross-examine the victim would be beyond the purview of a Rule 37.1
proceeding. See Nickelson, 2013 Ark. 252.
As in the previous point, in order to overcome the presumption that counsel’s decision
was based on reasonable professional judgment and satisfy the second prong of the Strickland
test, appellant must have identified specific inconsistencies that were sufficient to alter the
outcome of the trial. See Small, 371 Ark. 244, 264 S.W.3d 512. We cannot say that the trial court
clearly erred in finding that the discrepancies in the testimony that appellant identified were not
sufficient to alter the outcome of the trial, or that counsel was not ineffective for failing to
vigorously cross-examine the victim on those inconsistencies. Appellant has not therefore
demonstrated error in the trial court’s denial of postconviction relief, and we affirm on this point
as well.
Affirmed.
Lloyal Willie Bryant, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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