ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

NOVEMBER 13, 2003

RODNEY BARNETT

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-1166

APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY, NO. CR 94-372, HONORABLE CHARLES DAVID BURNETT, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of capital murder and sentenced to life imprisonment without parole. We affirmed on appeal. Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging ineffective assistance of counsel. He also filed two amendments to his original petition, alleging additional claims of ineffective assistance. A hearing was held, and appellant's petitions were 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):

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 June 1, 1994, the family of Lester Frazier reported to the Blytheville Police Department that Frazier was missing from his apartment, which was found in disarray. Barnett, supra, at 12, 53 S.W.3d at 528. On June 4, 1994, Frazier's body was discovered floating in the Mississippi River near Osceola. Id. An autopsy determined that Frazier's death was a homicide, primarily caused by blunt trauma to the head. Id. at 12, 53 S.W.3d at 528-29. Donneitha Bradford, who had previously pled guilty to first-degree murder in Frazier's death, testified that appellant solicited her assistance in robbing Frazier and that she went to Frazier's residence with appellant but that when she left, Frazier was still alive. Id. at 13, 53 S.W.3d at 529. Although appellant did not testify, a statement that he had given to police was offered into evidence and corroborates Bradford's testimony. Barnett, supra, at 14, 53 S.W.3d at 529. In his statement, appellant acknowledged being at the scene

with Bradford and stated that he left Frazier's apartment with Bradford and Frazier for the purpose of going to the bank to retrieve money, using Frazier's ATM card. Id. at 14, 53 S.W.3d at 529-30. A witness, Larry Black, testified that while he and appellant shared a jail cell, appellant admitted to killing Frazier. Id. at 13, 53 S.W.3d at 529. According to Black, appellant told him that Bradford asked him to help her rob Frazier. Id. at 14, 53 S.W.3d at 530. According to Black, appellant admitted that the plan was for Bradford to enter Frazier's house alone and then later let appellant inside. Id. at 14, 53 S.W.3d at 530. When the two discovered that Frazier had no money, they took him to a bank. Id. When he refused to get money at the bank, they took Frazier to the Mississippi River, beat him with a rock and nickel-plated .32 caliber pistol until he was dead, and pushed his body into the river. Id.

Appellant's first point on appeal is that counsel was ineffective for failing to move to suppress the statement he gave to police. According to appellant, his attorneys should have moved to suppress because the statement was taken in violation of Ark. R. Crim. P. 8.1, which provides that "[a]n arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay." Appellant also claims that the Federal Rules of Criminal Procedure provide a basis for suppression; however, these rules do not apply to appellant's criminal proceedings in Arkansas state court. See, e.g., Meeks v. State, 341 Ark. 620, 623, 19 S.W.3d 25, 27 (2000).

Although appellant did raise this issue in his Rule 37 petition, in its order denying relief, the trial court did not address the claim. It is appellant's obligation to obtain a ruling in order to properly preserve an issue for review. Huddleston v. State, 347 Ark. 226, 228, 61 S.W.3d 163, 166 (2001). "We have repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal." Id. at 229, 61 S.W.3d at 166. Accordingly, appellant's claim is procedurally barred.

Appellant's second point is that the trial court erred in denying his claim that counsel was ineffective for failing to object to the court's holding a hearing on a motion in limine or, in the alternative, a motion for continuance, without appellant's being present. Prior to appellant's trial, the State informed counsel that it proposed to call Larry Black to testify at trial, as it had just learned of Black's claims that appellant made a jailhouse confession while the two shared a cell and that appellant had made plans to escape. Upon learning of Black's proposed testimony, counsel moved to exclude the testimony or, alternatively, for a continuance in order to investigate Black's claims. Counsel argued that Black's testimony should have been excluded because it was untrustworthy in light of the fact that Black had just come forward, even though appellant allegedly made the statements in 1994, before Black testified at appellant's co-defendant's trial, where Black did not mention appellant's confession or plans to escape. Counsel argued that Black's testimony was more prejudicial than probative. A hearing was held on the motion, which appellant did not attend. The court refused to exclude Black's testimony, stating that the State could not always control when individuals came forward with evidence and that the late disclosure, while "fishy," presented an issue concerning the weight to be given Black's testimony, rather than its admissibility. The trial court, however, granted appellant's motion for continuance. In denying postconviction relief, the trial court found that the continuance was for the benefit of appellant and that he was advised of the continuance to allow counsel time to adequately investigate this potential witness.

Appellant argues that trial counsel was ineffective for failing to insist that appellant be present at the hearing. He contends that the hearing was a "critical stage" of the proceedings for which he was entitled to be present. It is not necessary to determine whether the hearing was, in fact, a "critical stage," because appellant has ailed to demonstrate that his absence at the hearing prejudiced his case

Under the second prong of Strickland, appellant must show that he was prejudiced by counsel's failure to insist that he be present at the hearing. Appellant has made no such showing. He simply argues that had he been present, he would have "contributed to its fairness" by insisting that Black's statements be suppressed on the grounds that the State could not prove that he ever shared a cell with Black or made such a confession. Appellant's assertion is basically that his physical presence at the hearing would have somehow persuaded the court to exclude Black's testimony. This claim is without merit. Appellant is not asserting that he would have offered new evidence had he been present at the hearing, only that somehow the outcome would have been different had he been there. Because appellant has failed to show that his presence at the hearing would have led to Black's testimony being excluded, we affirm the trial court's denial of relief.

Appellant's third point on appeal is that counsel was ineffective for failing to have the jury instructed on the lesser-included offense of second-degree murder and for failing to object to the jury being instructed on the affirmative defense, provided by Ark. Code Ann. §5-10-101(b) (Repl. 1993), to a capital-murder charge. This claim is not preserved for appellate review because, again, appellant failed to obtain a ruling from the trial court. Huddleston, supra.

Appellant's fourth point on appeal is that the trial court erred in denying appellant's claim that counsel was ineffective for failing to object to the prosecution's closing argument, to ask the court to give a curative instruction to the jury, and to present this issue on appeal. During closing arguments of the guilt phase of appellant's trial, the deputy prosecutor stated that he did not think one person could throw the victim into the river and do that kind of damage. He went on to state that he thought appellant and his accomplice threw the body into the river. Moreover, the prosecutor stated that the evidence presented supported the charge of capital murder; therefore, the jury would not have to deliberate on the lesser-included offense of first-degree murder.

In its order denying relief, the trial court found that the comment regarding the victim being thrown into the river was "based upon the evidence adduced at the trial" and was therefore "not an improper or objectionable comment." As for the second comment regarding capital murder, the trial court found that, again, the comment was "based upon the evidence" and that the "jury was free, obviously, to make any findings they chose and in fact did so, finding Mr. Barnett guilty of first degree murder."

"Ordinarily, the failure to object during closing argument is within the wide range of permissible professional legal conduct." Lee v. State, 343 Ark. 702, 723, 38 S.W.3d 334, 348 (2001). See also Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). "Experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor's comments seem more significant to the jury." Sasser, supra, at 391, 993 S.W.2d at 910. Before appellant can prevail on an allegation that counsel was wrong in not objecting during closing argument, he must establish that he was denied a fair trial by the failure toobject. Lee, supra. Given the strong evidence of guilt before the jury, it is unlikely that an objection by counsel would have changed the outcome of appellant's trial. Additionally, because there was nothing improper about the prosecutor's comments, there would have been no grounds for appeal on this issue. Counsel cannot be ineffective for failing to make a meritless argument. Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). Accordingly, we affirm the court's ruling below.

Appellant's fifth point on appeal is that counsel was ineffective for failing to investigate reports by confidential informants. Appellant raised this claim in his second amended petition; however, the trial court did not specifically address the issue in its order denying postconviction relief. As stated above, the failure to obtain a ruling on an issue at the trial court level precludes review on appeal. Huddleston, supra. Appellant's claim is procedurally barred.

Affirmed.