ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

January 29, 2004

JAMES KIRBY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-1131

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 96-3486, HONORABLE JOHN BERTRAN PLEGGE, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of aggravated robbery and was sentenced to twenty years' imprisonment. The court of appeals affirmed. Kirby v. State, CACR 98-1442 (Ark. App. May 10, 200)(unpublished). Appellant then filed a petition and amended petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The circuit court held two hearings and subsequently denied relief. Appellant contends that the circuit court erred in doing so.

Appellant raises several ineffective assistance of counsel claims. The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (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 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.

Thus, a defendant must show first, 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 the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant 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 merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we 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, 342 Ark. at 38, 26 S.W.3d at 125. Failure to Present Witnesses

Appellant first contends that his trial counsel was ineffective for failing to present allegedly exculpatory testimony of several witnesses. 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. Nelson v. State, 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Id. When assessing an attorney's decision not to call a particular witness, it must be taken 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 testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Id. Nonetheless, such strategic decisions must be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. Id.

Appellant argues that trial counsel failed to locate, interview, or subpoena several police officers involved in appellant's arrest and search of his home. Appellant submits that the officers could have testified that searches of his person, his home, and the area between the robbery and his home failed to yield any evidence of the robbery, including a weapon, cash, or a cell phone. The circuit court did not clearly err in denying relief on this claim, however, because such testimony would have been cumulative to other testimony presented to the jury.

The omission of a witness when his or her testimony is cumulative does not deprive the defense of vital evidence. Dansby v. State, 350 Ark. 60, 66, 84 S.W.3d 857, 861 (2002). At appellant's trial, Myron Roberts testified that appellant robbed him by sticking what felt like a gun under his arm and demanding money. Appellant took a little more than thirty dollars and a cellular phone. Mr. Roberts testified that police conducted an extensive, but unsuccessful search of the area around the robbery for the stolen property, particularly his phone. Additionally, Detective Scott Henson of the North Little Rock Police Department testified that, to his knowledge, no gun, cellular phone, or money was ever found. He stated that if any officer had discovered any evidence he would have became aware of the discovery because he was the lead investigator on the case. Thus, any testimony from other officers would have been cumulative to the testimony of Mr. Roberts and Detective Henson. Accordingly, appellant has failed to show that he was prejudiced by counsel's failure to secure the other officers's testimony for trial.

Appellant also contends that counsel should have presented his mother, Sue Brown, as a witness to testify regarding appellant's arrest and search of their home. Appellant also submits that Ms. Brown would have testified that Mr. Roberts harassed her for money and a cellular phone. Appellant contends that his mother's testimony would have been beneficial in impeaching Mr. Roberts at trial. The circuit court did not clearly err in denying relief on this claim.

The circuit court did not issue a specific ruling on trial counsel's failure to present Ms. Brown's testimony regarding appellant's arrest and the search of their home. It is an appellant's obligation to obtain a ruling in order to properly preserve an issue for review. In any event, any testimony by her regarding the unsuccessful results of the search again would have been cumulative of Detective Henson's testimony. Thus, appellant was not prejudiced by the absence of his mother's testimony concerning his arrest and the subsequent search.

As to the allegations involving harassment of Ms. Brown by the victim, the circuit court credited Ms. Brown's testimony at the Rule 37 hearing that she was not certain she told appellant's counsel about the victim's demands for money and a cellular phone. The circuit court likewise credited trial counsel's testimony that Ms. Brown did not tell him about the victim making any demands of her. We defer to the superior position of the trial judge in matters of credibility. E.g. Rankin v. State, 338 Ark. 723, 729-32, 1 S.W.3d 14, 732-33 (1999). As to this allegation, and appellant's other submissions that counsel was ineffective in failing to present witnesses, he has not shown there is a reasonable probability that, but for counsel's alleged error, the jury would have had a reasonable doubt respecting his guilt. We affirm the circuit court's denial of relief on these claims.

Failure to Testify at Trial

Appellant claims that his counsel was ineffective in advising him of his right to testify, and in explaining the advantages and disadvantages of his testimony at trial. Rule 1.2. of the Model Rules of Professional Conduct states that "[i]n a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." See also State v. Franklin, 351 Ark. 131, 137, 89 S.W.3d 865, 867 (2002). Case law has confirmed this tenet of the scope of representation. Id. The accused has the right to choose whether to testify in his own behalf. Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000). Counsel may only advise the accused in making the decision. Id. The decision to testify is purely one of strategy. Id. Furthermore, the defendant must state specifically what his testimony would have been and demonstrate that his failure to testify resulted in prejudice to his defense. Franklin, 351 Ark. at 137, 89 S.W.3d at 868 (2002).

As in Chenowith, supra, there was conflicting testimony at appellant's Rule 37 hearing as to whether appellant made the decision not to testify on the advice of his attorney. See id. The circuit court found appellant's testimony inconsistent. Indeed, appellant stated at his Rule 37 hearing that his trial counsel never discussed with him whether he should testify, but immediately thereafter he stated that his counsel told him that it would not be a good idea and that he took the advice. Upon questioning by the State, appellant again stated that his counsel talked to him about testifying and that counsel advised that it was not a good idea to do so. Appellant's counsel testified at the hearing that he discussed the issue with appellant on several occasions, and because appellant had several prior felony convictions and could not remember much of the events surrounding the robbery, they made a joint decision that appellant would not testify. The circuit court resolved the conflict in testimony against appellant, finding that his attorney advised him not to testify, and this court defers to the circuit court's superior position to resolve credibility issues.

Moreover, appellant conceded at his Rule 37 hearing that his testimony would have been consistent with his custodial statement that was introduced at trial in which he stated that he rode in the victim's cab but did not rob him. As such, appellant's testimony would have been cumulative of the custodial statement. He has not shown that his failure to testify resulted in prejudice to his defense. The denial of relief on this claim is affirmed.

Failure to Suppress Identification

Appellant's next claim is that his counsel was ineffective in failing to seek suppression of the victim's identification of him. The Court of Appeals determined on direct appeal, however, that trial counsel did preserve the suppression issue. See Kirby, CACR 98-1442 (Ark. Ct. App. May 10, 2000)(unpublished). The Court of Appeals decided the issue adversely to appellant, holding that the "show-up" identification did not violate appellant's rights. Id. Because counsel did preserve a challenge to the suppression of the victim's identification of appellant, his ineffective assistance of counsel claim is facially without merit. Conflict of Interest and Counsel's License to Practice Law

Appellant additionally raises two claims that he was denied his Sixth and Fourteenth Amendment right to counsel. First, he submits that his trial counsel labored under a conflict of interest during the time of representation because he was under federal investigation for bankruptcy fraud. Second, he contends that counsel was ineligible to be an attorney under this Court's rules for admission to the bar at the time of representation.

The circuit court found that appellant's counsel was convicted of a felony offense in Oklahoma in February, 1994. The circuit court also found that counsel was licensed to practice law in 1990, and at the time of appellant's trial in 1997, he was still licensed to practice law in Arkansas.

Prejudice will be presumed from a counsel's conflict of interest only when the defendant demonstrates that counsel actively represented conflicting interests. Townsend v. State, 350 Ark. 129, 136, 85 S.W.3d 526, 529 (2002). Prejudice must be real and have some demonstrable detrimental effect on the client and not merely be abstract or theoretical. Id. The circuit court found that appellant presented no evidence supporting his assertion that his trial counsel was under investigation for bankruptcy fraud during the time of representation. The circuit court further concluded that appellant failed to prove prejudice, and the court found that none existed, denying his conflict of interest claim.

On appeal, appellant fails to submit any evidence in the record in support of his contention that his trial counsel was under investigation at the time he represented appellant. Appellant instead relies upon his counsel's later conviction for defrauding the United States Bankruptcy Court and eventual disbarment. Conclusory allegations without factual support, however, cannot form a basis for postconviction relief. See e.g. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001). Furthermore, appellant also fails to explain how he was prejudiced by any investigation of his counsel during the time of representation. Appellant cites federal case law for the proposition that a conflict can exist when defense counsel is under investigation, but he fails to explain how or show that any investigation of his counsel had a real and demonstrable detrimental effect. In short, his allegations are theoretical, and we affirm the denial of relief on appellant's conflict of interest claim.

We also affirm the circuit court's denial of relief on the claim that appellant was denied counsel because his attorney should have been disbarred prior to the time of his trial because of his 1994 conviction. Appellant points to no errors or omissions on the part of his attorney, nor to any tangible effect that his attorney's later conviction and disbarment had on his trial. See Shibley v. State, 324 Ark. 212, 216, 920 S.W.2d 10, 12-13 (1996). In Shibley, we rejected the claim that the defendant had been denied counsel when his attorney's license was suspended at the time of trial, but the suspension was on appeal. Id. The arguments we rejected in Shibley are highly similar to appellant's argument on appeal. As in Shibley, there is no dispute that appellant's counsel was licensed to practice law at the time of appellant's trial. The denial of relief on this claim is affirmed.

Cumulative Error

Appellant's final claim is that each of the above alleged errors entitle him to relief under the cumulative error doctrine. We have repeatedly stated that this court does not recognize cumulative error in allegations of ineffective assistance of counsel. E.g. Noel, 342 Ark. at 42, 26 S.W.3d at 128. Affirmed.