APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT. NO. 60CR-07-4870. HONORABLE HERBERT THOMAS WRIGHT, JUDGE.
Benca & Benca, by: Patrick J. Benca, for appellant.
Dustin McDaniel, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., for appellee.
COURTNEY HUDSON GOODSON, Associate Justice.
Appellant Naeem Rasul brings this appeal from an order entered by the Pulaski County Circuit Court denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For reversal, appellant contends that the circuit court erred in concluding that he did not receive ineffective assistance of counsel at trial. We affirm the circuit court's decision.
The prosecuting attorney in Pulaski County charged appellant with the offense of first-degree murder in the shooting death of Henry Onukwube that occurred on October 20, 2007, in Pettaway Park, which is adjacent to Twenty-First Street in Little Rock. The record of trial reflects that appellant and Onukwube were involved in an altercation in the early morning hours on the day the homicide took place. In this incident, appellant struck
Onukwube on the head with a pistol, leaving a wound that required stitches. According to appellant's testimony at trial, later that morning Onukwube damaged the door of a home owned by appellant's mother on Vance Street, and Onukwube also hurled a brick through the window of appellant's vehicle that was parked there.
That same afternoon, appellant was driving in a truck with his brother down Twenty-First Street on his way back to his mother's home after purchasing soft drinks at a store. Appellant testified that, as he was passing by the park, he saw Onukwube near a picnic table, and he said that Onukwube retrieved a handgun from his pocket and waved the gun around in a taunting manner. Appellant stated that, fearing for his life and that of his brother and also believing that he could not escape with safety, he stopped the truck, exited, and began shooting his .45--caliber semiautomatic pistol at Onukwube. Although appellant testified that he did not know that his brother had also exited the truck, a witness, Arlin Cheeter, testified that both men emerged in tandem from the truck after it came to an abrupt stop and that both of them immediately began firing their handguns at Onukwube, who ran in the opposite direction. Cheeter also testified that, when the truck passed by the park, Onukwube had " dropped back" and reached under his shirt, as if Onukwube had a weapon. Cheeter said, however, that he did not see Onukwube with a gun, and he denied that he confiscated any weapon from Onukwube after the shooting.
Carlos Chambers was also in the park with Onukwube. He testified that he ran and then hit the ground so as not to be struck by the gunfire. Chambers said that he looked back and saw the men from the truck chasing Onukwube until Onukwube fell onto the basketball court. He testified that he did not see Onukwube with a gun and that he did not see Onukwube do anything with his hand when the truck came to a stop. Chambers said that the men walked away after Onukwube fell.
The police found Onukwube's body lying on a basketball court. They did not locate a handgun in the vicinity of the corpse or elsewhere in the park. In a small confined area, investigators recovered six .45-caliber bullet casings and ten nine-millimeter bullet casings in a linear pattern from the street heading north toward the basketball court. Officers also located several bullet strikes in the ground and a projectile on the basketball court. According to the testimony, the direction of fire appeared to be from the south to the north. Despite searching with a metal detector, the officers were not able to find any physical evidence indicating that there were any shots fired, other than those from the south to the north toward the basketball court. There was also no evidence that a weapon other than a nine-millimeter or .45-caliber was used that day. Officers recovered a .45--caliber Glock semiautomatic pistol and a nine-millimeter Ruger semi-automatic pistol from the home of appellant's father. Ballistic testing revealed that the shell casings discovered at the scene were fired from those two guns.
Cameron Menzes testified for the defense and said that his brother, Cheeter, told him that Onukwube had a gun at the park. He said that he did not provide the police with this ...