ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION II

MARVIN BREWER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-420

FEBRUARY 28, 2001

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[NO. CR1999-126]

HONORABLE CHRIS PIAZZA,

CIRCUIT JUDGE

AFFIRMED

Appellant, Marvin Brewer, was convicted of battery in the first degree by a jury sitting in White County. At the conclusion of the jury trial, appellant was sentenced to twenty years' imprisonment in the Arkansas Department of Correction and fined $15,000. Appellant raises four points on appeal: (1) the trial court abused its discretion by denying appellant's motion for a continuance; (2) the trial court erred in denying appellant's motion to suppress his custodial statement; (3) the trial court erred in not instructing the jury as to the lesser included offenses of battery in the third degree and aggravated assault; (4) appellant's counsel failed to cooperate and communicate with appellant which rendered appellant effectively without counsel. We affirm.

On February 25, 1999, around 6:00 p.m., Officer Ricky Shourd of the Searcy Police Department responded to a dispatch regarding a nineteen-month-old child, Makila Paslay, who was apparently not breathing. When Officer Shourd arrived at the child's home,

appellant was kneeling over the child on the front porch, the child gasping for air. An ambulance soon arrived taking the child to the hospital, followed by a med-flight to Arkansas Children's Hospital. The child was in respiratory arrest with multiple bruises, concentrated on her legs, head, face, back, and abdomen. Her injuries were life-threatening. Following his arrest on an unrelated warrant, appellant confessed to causing the child's injuries by striking her on the head, ears and other areas of her body. On March 12, 1999, the appellant was charged with battery in the second degree, later amended to battery in the first degree, of Makila Pasley.

First, appellant argues the trial court abused its discretion by denying his motion for a continuance. The granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court's decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). Appellant must show prejudice from the denial of the continuance, and when a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances. The burden is on the appellant to show an abuse of discretion and to demonstrate prejudice before this court will consider the trial court's denial of a continuance as an abuse of discretion warranting reversal. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000).

Appellant appeared in court on May 4, 1999, and June 1, 1999, requesting a continuance to hire an attorney during both appearances. On July 6, 1999, appellant appeared without counsel, and the court entered a plea of not guilty for appellant and set thecase for trial. On August 4, 1999, appellant was still not represented by counsel, and Public Defender Leon Johnson was appointed to represent him following the completion of an affidavit claiming indigence. At a pretrial hearing held on November 24, 1999, the court denied both appellant's motion to relieve Johnson as counsel and Johnson's responsive motion agreeing that he be relieved. At the trial on December 13, 1999, the court again denied appellant's motion for a continuance and proceeded with jury selection. Just before trial was to commence, attorney Kenneth Torrence appeared stating that he had just been retained by appellant. Another motion for continuance was made and denied, however, the court did postpone the trial for an hour and a half at Mr. Torrence's request. Appellant was represented by both attorneys for the remainder of the trial.

We find the trial court properly exercised its discretion in denying appellant's motions for continuance. Appellant's motions for continuance proceeded from May 1999 through December 1999. The record shows that he was given ample opportunity to hire an attorney prior to trial, and the trial court appointed a public defender after appellant failed to obtain counsel following two continuances. The diligence of the movant is a factor to be considered when deciding whether a continuance motion should be granted. Anthony, 339 Ark. at 22, 2 SW.3d at 781. Appellant has also failed to demonstrate that he was prejudiced by the denial of his motions for continuance; appellant concedes "there is no guarantee that the results [of the trial] would have been different with other counsel."

Second, appellant argues that the trial court erred when denying his motion for suppression of his custodial statement in violation of his Miranda rights. We review thevoluntariness of confessions by making an independent determination based on the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Two pertinent factors included in the totality of the circumstances are the statements made by the interrogating officers and the vulnerability of the defendant. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000) (citing Conner v. State, 334 Ark. 457, 982 S.W.2d 655(1998)). Custodial statements are presumed involuntary, and the State must prove by a preponderance of the evidence that the statement was given voluntarily and was knowingly and intelligently made. Id.

Here, appellant was taken to the police station around 6:30 p.m. by Officer Ben O'Neal on an unrelated misdemeanor warrant. Appellant has an eleventh grade education. He was advised of his rights, and signed a form stating that his rights were provided to him. Detective Bobby O'Brien arrived around 8:30 p.m. to question appellant. Detective O'Brien determined that appellant was aware of his rights prior to questioning him. The questioning lasted approximately one hour and forty minutes. During this questioning, appellant stated that he disciplined the child by striking her on the head, ears and other areas of her body. In contrast, appellant testified that he was under such duress that he was unaware of signing a statement, and that he asked for an attorney twice before Detective O'Brien arrived. The credibility of the witnesses, who testify to the circumstances surrounding a custodial statement, is for the trial court to determine. Ingram v. State, 53 Ark. App. 77, 918 S.W.2d 724 (1996). Here, two police officers testified that appellant was aware of his rights and voluntarily waived them. The trial court chose to believe the testimony of the officers. Wefind the trial court's decision, denying appellant's motion to suppress and finding that his confession was voluntary, was not clearly erroneous.

Third, appellant argues the trial court erred in not instructing the jury as to the lesser included offenses of battery in the third degree and aggravated assault. In order to preserve for appeal an objection to the court's failure to give an instruction, the defendant must proffer the requested instruction. Henry v. State, 18 Ark. App. 115, 710 S.W.2d 849 (1986). A proffered instruction must be included in the abstract in order for the appellate court to consider it on review. Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999). Appellant's abstract lacks any facts regarding a proffer of the requested instructions. Because there were no proffered instructions included in the abstract, we do not consider the merits of this argument.

Fourth, for his final assignment of error, appellant argues that a lack of cooperation and communication between him and his appointed counsel effectively rendered appellant without counsel. The Sixth Amendment "does not guarantee that an appointed attorney establish a good rapport with the accused nor does it guarantee an accused a `meaningful attorney client relationship.'" Burns v. State, 300 Ark. 469, 472, 780 S.W.2d 23 24 (1989) (citing Morris v. Slappy, 461 U.S. 1 (1982)). When a convicted defendant complains of ineffective assistance of counsel he must show that counsel's representation fell below an objective standard of reasonableness and that, but for, counsel's errors the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Reynolds v. State, 341 Ark. 387, 18 S.W.3d 331 (2000). The petitioner must first show that counsel'sperformance was deficient. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Petitioner must also show that the deficient performance prejudiced his defense; this requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000). With this standard in mind, we review appellant's arguments as to counsel's ineffectiveness.

Appellant argues attorney Leon Johnson's representation was deficient in four respects. First, appellant claims Johnson refused to file a motion for change of venue, resulting in appellant's failure to receive a fair trial. Second, appellant claims Johnson inadequately represented him at pretrial proceedings due to his heavy caseload and failure to meet with appellant prior to pretrial. Third, appellant claims he was not allowed to participate in jury selection, due to the lack of communication between Johnson and appellant. Finally, appellant claims Johnson failed to present a defense which appellant argues was crucial to his case.

To establish that the failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must offer some basis on which to conclude that an impartial jury was not empaneled. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). Appellant's first argument fails because he offers no basis on which we can conclude that an impartial jury was not impaneled in this case. Appellant's second and third claims, that he was not adequately represented at pretrial, and that he could not participate in jury selection due to lack of communication with counsel, resulted from appellant's own conductrather than a failure on the part of his attorney. Johnson explained to the trial court how he was available to meet with appellant, but appellant refused to appear for appointments and failed to return Johnson's phone calls. Appellant's lack of rapport with counsel may have contributed to a lack of participation in jury selection; however, no evidence suggests an impartial jury was not empaneled.

Appellant's final argument concerning his counsel is that Johnson failed to present a requested defense. The appellant wanted his attorney to present evidence that the child's injuries were caused by epilepsy. The following colloquy occurred on the day of trial when Johnson asked to be relieved.

COURT: I told you that you needed to keep in touch with Mr. Johnson because he's a good lawyer.

APPELLANT: I talked to him. He just won't do it.

ATTORNEY JOHNSON: I can only tell the truth, Your Honor. That's what you want me to do, is tell the truth. My client wanted me to present a defense that I could not prove. He told me he would assist me, getting me doctors to talk to.

It appears that Johnson simply refused to proceed with a defense that he did not believe he could prove and which he had no witnesses to support. This was a matter of trial strategy, and matters of trial strategy falling within the realm of counsel's professional judgment are not grounds for a finding of ineffective assistance of counsel. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).

In considering all of appellant's complaints about his attorney, we find none of them bear adversely on Johnson's competence or ability to represent appellant. In hisrepresentation of the appellant, Johnson successfully filed a motion in limine to suppress photos of vaginal tears of the child, made attempts to meet with appellant before pretrial, and proceeded at trial with sufficient cross-examination of the witnesses. We cannot say that Johnson's representation fell below an objective standard of reasonableness.

Upon review of appellant's four points on appeal, we affirm on all points. The trial court did not abuse its discretion by denying appellant's motion for continuance and the appellant failed to demonstrate prejudice resulting from the denial of his motion. The trial court did not err in finding the appellant's confession was voluntary. We do not consider an appellant's argument on improper jury instructions because proffered instructions were not included in the abstract. Finally, appellant failed to show that his attorney Leon Johnson's representation fell below an objective standard of reasonableness.

Affirmed.

Roaf, J., agrees.

Pittman, J., concurs.