ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 19, 2004

JOHN AARON LACY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-985

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 99-424, HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of first-degree murder and sentenced to life imprisonment. We affirmed on appeal. See Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37. In an order entered on January 11, 2002, the trial court denied the petition on all grounds except one, that trial counsel was ineffective for failing to use a trial strategy based on self-defense. A hearing was held on this claim, and relief was denied in an order entered on June 3, 2002. Appellant appealed. Because appellant failed to include a proper abstract as required by Ark. Sup. Ct. R. 4-2(a)(5) (2002), we ordered rebriefing. See Lacy v. State, CR 02-985 (Ark. Oct. 9, 2003) (per curiam).

The January order denying all but one of appellant's claims was an intermediate order, not a final order from which appeal could be taken. However, the appeal from the June order brings up for review the court's January order. Brady v. State, 346 Ark. 298, 301, 57 S.W.3d 691, 693 (2001). In Brady, we addressed a similar situation and explained:

The requirement that an order be final to be appealable is a jurisdictional requirement. Wilburn v. Keenan Cos., Inc., 297 Ark. 74, 759 S.W.2d 554 (1988). The purpose of the finality requirement is to avoid piecemeal litigation. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Department of Human Services v. Lopez, 302 Ark. 154, 787 S.W.2d 686(1990). The order must put the judge's directive into execution, ending the litigation, or a separable branch of it. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978).

Payne v. State, 333 Ark. 154, 158, 968 S.W.2d 59, 60-61 (1998) (quoting K.W. v. State, 327 Ark. 205, 207, 937 S.W.2d 658, 659-60 (1997)). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Although the circuit court denied all but one of appellant's claims in its April 13 order, it also retained jurisdiction, set an evidentiary hearing on the remaining claim, and appointed Mr. Devine to represent appellant. Thus, the circuit court's June 21 order denying the remaining alibi witness claim constituted the final appealable order in this case.

"An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment." Ark. Rule App. P.--Civ. 2(b). Rule 37 proceedings are civil in nature, Public Defender Comm. v. Greene County, 343 Ark. 49, 55, 32 S.W.3d 470, 474 (2000), and this court has referred to and applied the Rules of Appellate Procedure--Civil when necessary in criminal appeals. Byndom v. State, 344 Ark. 391, 404, 39 S.W.3d 781, 788 (2001). Applying Ark. R. App. P.--Civ. 2(b) to this case, Mr. Devine's notice of appeal from the evidentiary hearing and the circuit court's final order also brought up for review the circuit court's intermediate order.

Brady, 346 Ark. at 301, 57 S.W.3d at 693-94. Accordingly, we will address both orders. Not withstanding those issues not raised on appeal are considered abandoned. Echols v. State, 344 Ark. 513, 519, 42 S.W.3d 467, 471 (2001).

On appeal, appellant makes the following claims: (1) counsel failed to proceed with a self- defense strategy, (2) counsel failed to call witnesses whose testimony would have helped establish a claim of self-defense, (3) counsel failed to conduct an adequate pre-trial investigation, including locating the gun and scissors allegedly used during the altercation, (4) counsel failed to introduce photographs showing cuts on his body, and (5) counsel failed to meet with appellant a sufficient number of times. The trial court's January order, while addressing several other claims of ineffective assistance, did include points (2) and (3). The focus of the court's June order was primarily on point (1), with some mention of points (2) and (3). Appellant did not raise points (4) and (5) in his original petition; however, they were briefly addressed during the evidentiary hearing. Although these points were addressed, the trial court's order does not contain rulings on these issues. The failure to obtain a ruling on an issue at the trial court level precludes review on appeal. Huddleston v. State, 347 Ark. 226, 229, 61 S.W.3d 163, 166 (2001) (per curiam).

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.

At trial, the State introduced appellant's custodial statement to the North Little Rock Police, in which he admitted killing Beverly Henderson in a motel room. However, appellant claimed that he never intended to kill her but that he was simply confronting her about his missing wallet and cocaine. According to appellant, Henderson pointed a gun at him, and he hit her in the face in order to get the gun away from her. He stated that their struggle continued after he took the gun away, as Henderson grabbed a pair of scissors and injured him in the ribs. He told police that the two were "exchanging blows" as he tried to get the scissors away from her. He then grabbed her shirt and held it around her neck. He also hit her in the mouth and eye to prevent her from taking the scissors. According to appellant, Henderson was badly hurt but still acting aggressively. He continued to hold the shirt tightly around her neck as he looked for the billfold in the pocket of her pants. He stated that he pulled tighter on the shirt until she started making "gurgling" sounds, then let go. At that point, appellant was not sure whether Henderson was still breathing. He dumped her purse onto the bed to look for his billfold, money, and drugs. Unable to find the items, appellant returned to his room to take a shower.

According to his statement, appellant later returned to Henderson's room, and realizing that she was dead, he attempted to clean up the mess. He wrapped her body and belongings in the bed linens and paid a man to take him and his "luggage" to Mayflower, where he buried the body in a shallow grave on his mother's property. He told police that he threw the gun into a creek. Following his statement, appellant accompanied police officers to the location of the body.

According to Dr. Charles Kokes, an assistant medical examiner, the autopsy revealed that Henderson died as a result of multiple blunt force injuries and strangulation. Kokes contradicted appellant's statement that he only used his fist, as a fist could not have inflicted Henderson's facial injuries without also sustaining fractures. According to Kokes, Henderson's injuries were consistent with being kicked in the face.

At the Rule 37 hearing, Linda Tolliver, appellant's mother, testified that she saw appellant the morning after Henderson's death and that he told her that the cuts on his face were the result of a fall. Tolliver testified that it was not until later that she found out about Henderson's death. According to Tolliver, appellant told her that he was defending himself at the time Henderson was killed. Tolliver testified that she made counsel aware of appellant's statements and that counsel responded that he was treating the case as a murder. Tolliver went on to testify that as a result of counsel's refusal to use a self-defense strategy, she contacted the Public Defender's Office and the Public Defender's Commission with her complaints.

Counsel testified that his trial strategy was to present a general denial defense because he did not believe a self-defense argument would work. According to counsel, the self-defense theory ended once appellant got the gun away from Henderson and continued to beat her in order to keep her quiet. Another big concern for counsel would have been explaining why, if he acted in self-defense, appellant attempted to cover up what had happened by burying the body. Given these facts, appellant's own statement to the police, and the autopsy report, counsel testified that it seemed more plausible to argue that an altercation took place and that appellant recklessly caused Henderson's death.

On appeal, appellant claims that counsel was ineffective for failing to call certain witnesses. The trial court ruled that this was a "bare allegation with no substantiation in fact," as appellant did not provide the substance of the witnesses' testimony and establish its admissibility.

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. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). 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 still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. State v. Dillard, supra.

Nelson v. State, 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001). Counsel chose not to pursue a self-defense strategy; therefore, it was reasonable that he did not call witnesses in support of that theory. His decision was a matter of trial strategy and not grounds for Rule 37 relief. Accordingly, we affirm the trial court's ruling below.

Appellant also claims that counsel failed to conduct a sufficient pre-trial investigation, specifically, that he should have located the gun and scissors. According to appellant, the existence of the gun and scissors supports his claim that he killed Henderson in self-defense. The trial court ruled that this claim was a "bare allegation" with no showing of prejudice.

Counsel has a duty to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Kemp v. State, 348 Ark. 750, 758, 74 S.W.3d 224, 227 (2002). Counsel's decision not to investigate must be directly assessed for reasonableness, applying a heavy measure of deference to counsel's judgments. Id. Given what counsel had to work with, it is reasonable that he opted for a strategy that he believed had the most chance of success. The fact that he did not investigate what he believed to be a losing defense theory, was a tactical decision and not a basis for Rule 37 relief. See Flores v. State, 350 Ark. 198, 206, 85 S.W.3d 896, 901 (2002).

Regarding appellant's blanket claim that counsel was ineffective for failing to pursue a theory of self-defense, again, the trial court ruled that this was a "tactical decision, based on his review of the evidence in the case" and not grounds for postconviction relief. The court found that the evidence against appellant was "overwhelming" and that he failed to demonstrate that had counsel pursued this strategy, that the outcome would have been different. We agree that counsel's choice of defense theories is a matter of trial strategy. Moreover, given the "overwhelming" amount of evidence against him, appellant has failed to show prejudice.

Finally, appellant claims that counsel's failure to pursue a theory of self-defense amounted to a constructive denial of counsel, see United States v. Cronic, 466 U.S.648 (1984), and therefore, prejudice should be presumed. Actual ineffectiveness claims alleging deficiency in counsel's performance are subject to a general requirement that appellant affirmatively prove prejudice. Flores, 350 Ark. at 206, 85 S.W.3d at 901 (citing Cronic, supra). According to the United States Supreme Court in Cronic, "Thus, only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial." Id. at 662. If counsel fails to subject the State's case to "meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Cronic, 466 U.S. at 659. A review of the record reveals that counsel adequately cross-examined the State's witnesses and moved for a directed verdict on the basis that the State failed to prove that appellant acted purposefully to cause Henderson's death. Accordingly, one can hardly say that counsel failed to engage in "meaningful adversarial testing." Appellant has not provided a basis upon which prejudice may be presumed; therefore, we affirm the trial court's denial of relief.

Affirmed.