ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
 

OCTOBER 16, 2003

COREY SANDERS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-1116

APPEAL FROM THE CIRCUIT COURT OF COLUMBIA COUNTY, NO. CR 97-148, HONORABLE LARRY W. CHANDLER, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of two counts of capital murder and sentenced to two terms of life imprisonment without parole. We affirmed on direct appeal. See Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging ineffective assistance of counsel. A hearing was held, and the petition was denied.1 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):

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 effect on the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Ineffective assistance of counsel cannot be established by a mere showing of error by counsel. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, supra.

Appellant was convicted of the murders of Lamarcio Lamont Griffin and Arthur Blackmon. Pursuant to the investigation into the disappearances of Griffin and Blackmon, the Columbia County Sheriff's Office located the bloody registration papers of a car belonging to Omar Muqtasid at a house where the victims were last seen. A trail of blood led officers to a well, where the bodies of the two victims were discovered. The medical examiner ruled that Griffin died from two gunshot wounds to the back and neck and that Blackmon suffered from a fatal shot in the area of the left eye. Three bullets were recovered from the victims, and a firearms expert confirmed that all of the bullets were fired from the same gun, a .38 caliber handgun. Muqtasid's burned car was discovered in Free Hope, about eighteen miles from the house where the registration papers were found.

The evidence presented by the State revealed that three witnesses heard appellant confess to killing Griffin; one of those witnesses added that appellant also admitted to killing Blackmon. Additional testimony showed that appellant owed Griffin money from a drug deal, thereby establishing a possible motive for the killing, and that appellant had been overheard discussing murdering Griffin with a codefendant so that appellant would not have to repay the money. Moreover, the two victims were known to have been driving the car belonging to Muqtasid and were seen with appellant in the car on the night they disappeared. Appellant was seen the next day in bloodstained clothing and then asked a friend to get some gasoline for him. Appellant, driving a car matching the description of Muqtasid's burned Oldsmobile, had a friend follow him with the gas to a rural area outside Free Hope. Flames were then seen from the area where appellant had gone. Appellant got in the second car with his friends and returned to McNeil, telling his companions, "If I go down, we all go down." Another witness, who testified that appellant had asked him to drive the car to Chicago, reported seeing blood on the front seat of the car and said that appellant told him he had shot Griffin and would dump the bodies somewhere they could not be found, such as a well. This witness had also previously seen appellant in possession of a .38 caliber pistol. Appellant's grandmother admitted that her grandson had lived with her at the old Dockery place and was familiar with the well where the bodies were found.

For his first point on appeal, appellant claims that trial counsel was ineffective for failing to conduct an adequate voir dire of a juror named Randy Reed and for failing to move the trial court to strike Reed for cause. Appellant claims that Reed should not have served on his jury because he was the county coroner involved in the removal of the victims' bodies from the well and because Reed's wife was related to one of the victims.

During voir dire, members of the jury panel were asked the following questions:

COURT: Is any Juror related by blood or marriage to any of the parties in this case?

(There was no response.)

COURT: I take it by your silence then that you're not.

COURT: Do any of you know of the facts of this case?

(There was no response.)

COURT: I take it by your silence that you don't know the facts.

....

(There was no response.)

COURT: I take it by your silence then that you can.

At the Rule 37 hearing, counsel testified that he purchased copies of the juror questionnaires but did not see that Reed's occupation was county coroner.2 Counsel testified that it was not called to his attention prior to seating the jury that Reed was the coroner. At the hearing, Reed testified that he played no role in the investigation of the crime and that his only participation involved securing the victims' remains and arranging for the autopsies. Reed testified that it was at trial that he first learned the facts of this case and that he had no other information as the coroner or even as a citizen of the county that would be a factor in his decision of guilt or innocence. He went on to testify that he answered all of the questions posed to him truthfully and that he knew he would be able to be unbiasedand unprejudiced and find guilt or innocence based on the facts and the law. As for his relationship to one of the victims, Reed responded that he and his wife really did not know the victim, that he had never had any contact with this victim prior to the murder, and that he could not even recall the victim's name. In denying relief, the trial court noted Reed's silence when asked about his knowledge of the case and any relationship to the victims and stated that "[i]t is difficult to imagine what more [trial counsel] could have done or what more he could have asked the trial judge to do to insure that the twelve persons who were chosen to try the petitioner were fair and impartial." We agree that counsel was reasonable in his performance during voir dire as counsel was given no indication that Reed could not be an objective juror.

Jurors are presumed unbiased, and the burden of demonstrating actual bias is on the petitioner. Lee v. State, 343 Ark. 702, 720, 38 S.W.3d 334, 345 (2001). A defendant is not entitled to a jury totally ignorant of the facts of a case, nor is he entitled to a perfect trial, only a fair one. Id. The State cites Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986) in support of its argument that appellant's claim has no merit. In Hicks, appellant argued that a juror, a former deputy sheriff, should have been challenged because he admitted having arrested Hicks' brother. The trial court questioned the juror and determined that he could serve without bias. Id. at 86, 709 S.W.2d at 89. Like Hicks, appellant in the instant case has failed to show bias or actual prejudice as a result of counsel's failure to challenge the juror. As mentioned, there was a substantial amount of evidence presented at trial to establish appellant's guilt; therefore, he has failed to show how the outcome of his trial would have been different had a challenge been successful. Accordingly, we affirm the ruling below.

For his second point on appeal, appellant argues that the trial court erred by denying his claim that counsel was ineffective for failing to request a continuance to secure Officer Larry McMahen as a witness to impeach the testimony of Keisha McCauley. In August 1997, Officer McMahen and Investigator Glen Sligh interviewed McCauley regarding the murders. Officer McMahen's notes from the interview were transcribed and at trial, were referenced during McCauley's and Sligh's testimony. Officer McMahen did not appear at trial. Instead, counsel made the decision to impeach McCauley's testimony with the discrepancies between her trial testimony and her prior inconsistent statements contained in Officer McMahen's notes, regarding whether appellant admitted to killing the victims. Moreover, counsel questioned Sligh about the interview with McCauley and confirmed that if McCauley had told him that appellant admitted killing the victims, it would have been in the transcribed notes.

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. Noel, supra, at 42, 26 S.W.3d at 128. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. When assessing counsel's decision not to call a particular witness, we must take 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 beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Id. at 43, 26 S.W.3d at 128. At the Rule 37 hearing, counsel testified that he was concerned that if called to testify, Officer McMahen would substantiate McCauley's story and strengthen her testimony. Because counsel's decision not to call Officer McMahen was a matter of trial strategy, appellant is not entitled to postconviction relief. See Noel, supra. Moreover, appellant failed to present evidence at the hearing of what Officer McMahen's testimony would have been, had he been called to testify. Because appellant has failed to establish prejudice as a result of counsel's performance, we find no grounds for relief and affirm the trial court's ruling.

Affirmed.

1 Appellant also attempted to file four amended Rule 37 petitions. However, the trial court dismissed the petitions because appellant did not obtain leave of the court as required by Ark. R. Crim. P. 37.2(e) and because the amended petitions were not verified as required by Ark. R. Crim. P. 37.1.

2 Appellant did not offer Reed's questionnaire as an exhibit at the Rule 37 hearing; however, Reed testified that if he filled out the questionnaire, he would have listed his occupation as "coroner and mortician."