Fukunaga v. State , 489 S.W.3d 644 ( 2016 )

Cite as 2016 Ark. 164
SUPREME COURT OF ARKANSAS
No. CR-15-857
ALVIN T. FUKUNAGA Opinion Delivered April 14, 2016
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-12-284]
STATE OF ARKANSAS
APPELLEE HONORABLE BARRY SIMS, JUDGE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
After a jury trial, Alvin Fukunaga was convicted of rape and sentenced to ten years
in prison. He contends that he received ineffective assistance of counsel when his defense
attorney failed to object to testimony that allegedly bolstered the victim’s credibility. The
circuit court rejected this claim. We affirm the circuit court’s judgment.
In March 2012, Alvin Fukunaga was charged with rape. His step-granddaughter had
alleged that Fukunaga started sexually abusing her when she was twelve years old. At trial,
the victim, then twenty-three, repeated these allegations and also testified that Fukunaga
had raped her multiple times when she was sixteen. The victim also identified a mole on
Fukunaga’s upper thigh, something she noticed in the course of the abuse.
A sheriff’s deputy also testified. The deputy described, briefly, his experience
investigating “hundreds” of sexual-abuse allegations. The deputy testified that it was “very,
very difficult for [the victims] to bring out what has occurred to them because it was very
traumatic to them.” The deputy stated that, in his experience, abuse victims sometimes
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disclose the abuse long after the fact for fear of breaking up a family unit. Finally, in response
to the prosecutor’s inquiry whether “someone who suffers sexual abuse has repressed or
they just bury deep down,” the deputy responded as follows:
They do bury deep down. And, you know, during the interview process, I may
mention something that will cause them to click and say, okay . . . you know what,
that reminds me of something else. And so it depends on the interview also on how
that is going. . . . My questions may cause them to recall something else that, you
know, they have been held way deep down inside.
Fukunaga’s defense counsel never objected to this line of questioning. However, on cross-
examination, the deputy admitted that he was neither a psychologist nor an expert on “the
nature of memory.”
The jury found Fukunaga guilty. On direct appeal, our court of appeals affirmed his
conviction. See Fukunaga v. State, 2014 Ark. App. 4. After the court of appeals issued its
opinion, Fukunaga filed a petition for postconviction relief at the circuit court. Fukunaga
argued that he received ineffective assistance of counsel because his defense counsel failed
to object to the deputy’s testimony. A hearing was held on the petition. There, defense
counsel testified that he thought the deputy’s testimony was admissible and, regardless, that
he could “neutralize it on cross-examination.” Counsel also noted that “as a general rule in
my trial practice I try not to object very much at all . . . if I can get the same result through
something other than an objection.”
The circuit court issued a written order denying Fukunaga’s claim of ineffective
assistance of counsel. Among other things, the circuit court held that defense counsel’s
failure to object was based on trial strategy and that his performance was therefore not
deficient. Because this finding is not clearly erroneous, we affirm on this basis alone. See
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State v. Lacy, 2016 Ark. 38, at 4, ___ S.W.3d ___, ___ (“We do not reverse the . . . denial
of postconviction relief unless the circuit court’s findings are clearly erroneous.”).
Under the two-prong standard from Strickland v. Washington, 466 U.S. 668 (1984), a
petitioner seeking postconviction relief must show that his counsel’s performance was
deficient and that the deficient performance resulted in prejudice. See Feuget v. State, 2015
Ark. 43, 454 S.W.3d 734. “There is a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance, and the petitioner has the burden of
overcoming that presumption by identifying the acts and omissions of counsel which, when
viewed from counsel’s perspective at the time of trial, could not have been the result of
reasonable professional judgment.” Id. at 4, 454 S.W.3d at 738. “Matters of trial strategy
and tactics, even if arguably improvident, fall within the realm of counsel’s professional
judgment and are not grounds for a finding of ineffective assistance of counsel.” Noel v.
State, 342 Ark. 35, 41–42, 26 S.W.3d 123, 127 (2000). In short, a matter of reasonable trial
strategy does not constitute deficient performance. See, e.g., State v. Fudge, 361 Ark. 412,
425, 206 S.W.3d 850, 860 (2005) (holding that counsel’s decision to not investigate certain
mitigating evidence was “within the wide range of reasonable professional assistance” and
was not deficient performance).
Counsel testified during the postconviction hearing that his decision not to object to
the deputy’s testimony was based on trial strategy. He stated the following: “[R]egardless of
its admissibility I didn’t think it was damaging in any way that couldn’t be addressed on
cross-examination.” Indeed, at trial, counsel followed-up and addressed the issue on cross-
examination by having the deputy admit that he was neither a psychologist nor an expert in
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memory-retrieval; the deputy also admitted that some rape allegations were fabricated,
which advanced the defense’s theory of the case. Counsel further explained his general
preference, as a matter of trial strategy, to withhold objections on direct examination and
instead attack the testimony on cross-examination: “[R]ather than objecting in front of a
jury who wonders what sort of testimony I am scared of or trying to hide from them, I’d
much rather do that. I think the client is better served that way.” Counsel’s strategy was
within the realm of reasonable professional judgment.
The deputy’s testimony, moreover, played a small role in the present case. Most of
his testimony was based on his own experience investigating sexual-abuse allegations. Even
beyond this, counsel pointed out on cross that the deputy was not an expert, so the jury had
no special reason to give his testimony undue credit. Cf. United States v. Rosales, 19 F.3d
763, 766 (1st Cir. 1994) (finding no plain error when expert witness bolstered victim’s
testimony while also noting that expert testimony could create prejudice due to its “aura of
special reliability and trustworthiness”).
We note that this case is unlike Montgomery v. State, where we found ineffective
assistance after counsel failed to object to explicit bolstering testimony. 2014 Ark. 122.
There, the defendant was charged with raping a child. During the State’s case, the prosecutor
asked a social worker whether the victim’s allegations were “believable.” 2014 Ark. 122, at
4. The prosecutor also asked whether the victim’s allegations had been coerced by the
victim’s mother. Id. Counsel failed to object to either question. Id. Because the case “turned
on the credibility of the child victim,” we held that the defendant proved ineffective
assistance based on counsel’s failure to object. Id. at 7.
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There are two key distinctions between this case and Montgomery. First, the State here
never asked the deputy whether the victim’s allegations were “believable” or to otherwise
assess the victim’s credibility; rather, the deputy simply reflected on his experience
investigating abuse allegations. Second, counsel in Montgomery never testified that his
decision to withhold objections was based on trial strategy; here, though, counsel withheld
an objection because he did not want the jury to think he was afraid of the deputy’s
testimony.
In conclusion, we affirm the circuit court’s ruling that counsel’s failure to object was
based on trial strategy. Because we can affirm on this basis, we decline to address Fukunaga’s
argument that he suffered prejudice because “there is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Henington v. State, 2012 Ark. 181, at 5, 403 S.W.3d
55, 59 (citing Strickland, 466 U.S. at 697).
Affirmed.
WYNNE, J., concurs.
ROBIN F. WYNNE, Justice, concurring. I agree with the majority’s decision to
affirm the denial of appellant’s petition for postconviction relief. I would, however, affirm
on a different basis than that relied on by the majority.
The majority affirms the circuit court’s order denying the petition for postconviction
relief on the basis that the decision not to object to the deputy’s testimony was one of trial
strategy by appellant’s trial counsel. As recited by the majority, counsel testified at the
hearing on the petition that he did not object to the testimony at issue because he did not
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want the jury to think he was afraid of the deputy’s testimony. Decisions regarding trial
strategy must be based on reasonable professional judgement. See Stewart v. State, 2014 Ark.
419, 443 S.W.3d 538. I cannot accept that a decision not to object to testimony clearly
beyond the purview of a lay witness because counsel does not want to be seen as being
“afraid” of the testimony is a decision that springs from reasonable professional judgment.
Therefore, I would not affirm the trial court’s decision on the basis that the decision was
one of trial strategy.
However, in addition to a showing of deficient performance, a petitioner must show
that counsel’s deficient performance prejudiced the defense, which requires showing that
counsel’s errors were so serious as to deprive the petitioner of a fair trial. See Adams v. State,
2013 Ark. 174, 427 S.W.3d 63. In doing so, the petitioner must show that there is a
reasonable probability that the fact-finder’s decision would have been different absent
counsel’s errors. Id. Here, appellant failed to demonstrate a reasonable probability that an
objection to the deputy’s testimony would have caused the jury to reach a different verdict,
in light of the other evidence presented by the State at trial. Thus, I would affirm the trial
court’s decision on the basis that appellant failed to demonstrate prejudice.
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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