ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

NOVEMBER 6, 2003

CURTIS DWAIN REESE, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-1364

APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, NO. CR 97-281-3, HONORABLE GRISHAM A. PHILLIPS, JR., JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of two counts of first-degree murder and sentenced to two terms of forty-years' imprisonment, to be served concurrently. The Arkansas Court of Appeals affirmed. Reese v. State, CA CR 99-763 (Ark. App. Mar. 8, 2000). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging ineffective assistance of counsel. Following an evidentiary hearing, appellant's petition was denied. 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):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

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.

On appeal, appellant claims that counsel was ineffective for not allowing him to testify at trial in his own defense. According to appellant, had he testified, there is a reasonable probability that the outcome of his trial would have been different. The defense theory was that appellant was neither the primary actor nor an accomplice to the murders of Eric Ogden and Lance Kelloms. The State argued that appellant and his codefendant, Jason Meredith, lured Ogden and Kelloms to a remote location where they robbed and murdered both men. In a written statement to police, appellant admitted that he obtained a gun, that he knew that his codefendant stated that one of the victims would not live through the night, and that he drove his codefendant to the scene of the crime. Testimony at trial revealed appellant's connection to the murder weapon and to a meeting with the victims. Finally, appellant and his codefendant were arrested together at appellant's mother's residence, where both men were staying following the murders.

At the Rule 37 hearing, counsel testified that he advised appellant not to testify for several reasons: (1) appellant's written statement had already been introduced by the State; therefore, his testimony would have been redundant; (2) appellant would have been subjected to cross-examination; and finally, (3) the prosecution would have called a witness to rebut appellant's testimony. In denying postconviction relief, the trial court found that appellant's testimony at trial would have been practically identical to his statement introduced by the State. Moreover, the court found that counsel did not prevent appellant from testifying but simply advised him that it was not, in his "reasoned professional judgment," in appellant's best interest. According to the court, because appellant's version of events was already before the jury, his testimony would not have "furthered his case" and instead, would have subjected him to cross-examination.

A defendant has the right to choose whether to testify on his own behalf, and counsel may only advise a defendant in making that decision. E.g., Price v. State, 347 Ark. 708, 725, 66 S.W.3d 653, 664 (2002). According to counsel, he thought it would do more harm than good to have appellant testify. Advising appellant not to testify in hopes of sparing him any negative exposure on the stand was a matter of trial strategy and not grounds for a finding of ineffective assistance of counsel. See State v. Goff, 349 Ark. 532, 538, 79 S.W.3d 320, 323 (2002). Accordingly, we affirm the trial court's denial of relief.

Affirmed.