FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-13-188]
HONORABLE CARLTON D. JONES, JUDGE
Lambert, for appellant.
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
K. WOOD, Associate Justice.
Aaron Smith appeals the circuit court's denial of his
petition for postconviction relief. Smith was convicted for
the rape of a young girl. He argues that his trial counsel
was ineffective in three respects: (1) for failing to object
to multiple instances of inadmissible hearsay and uncharged
allegations of sexual abuse; (2) for failing to object and
seek a mistrial when one of the jurors allegedly fell asleep
during trial; and (3) for failing to call into question the
credibility of the alleged victims and to highlight
inconsistencies in their stories. We affirm the circuit
court's denial of postconviction relief.
October 2013, Smith was convicted in the Miller County
Circuit Court of raping a young girl, J.C., and was sentenced
to forty years' imprisonment. The court of appeals
affirmed. Smith v. State, 2014 Ark.App. 625. Smith
subsequently filed a petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016).
Following a hearing, the circuit court denied the petition.
had a relationship with J.C.'s mother when J.C. and her
sisters were residing in their mother's home. Later, J.C.
and her sisters began living with their grandmother, when she
and her two younger sisters, Gr.C. and Ga.C., revealed that
they had been sexually abused by Smith. The girls'
grandmother contacted the police, and a sexual-assault nurse
examiner interviewed and examined the girls. Each of the
girls told the sexual-assault nurse that Smith had had sexual
contact with them. While only J.C. showed physical signs of
sexual trauma, at trial the nurse explained that it was not
unusual for young girls not to exhibit physical evidence of
abuse given their state of development. The three girls were
also interviewed by a forensic interviewer at the
Children's Advocacy Center. Like they told the nurse
examiner, the girls told the forensic interviewer that Smith
had sexually assaulted them. In particular, J.C. reported
that on one occasion Smith had put his "private"
into her "private" and that blood came out.
Smith was charged only with the rape of J.C., both J.C. and
her sister, Gr.C., testified at trial. Gr.C. described one
particular instance when Smith laid on top of her and touched
her "private" with his hand. She also testified
that she saw Smith "get on top of" J.C. and their
younger sister, Ga.C. J.C. testified that Smith "put his
private in [her] private" and that it hurt "really
bad." J.C. also stated that she saw Smith rape Gr.C.,
Ga.C., and Smith's daughter, J.S.
making a postconviction claim of ineffective assistance of
counsel, under the two prongs of the Strickland test, the
appellant must show both that counsel's performance was
deficient and that the deficient performance prejudiced the
defense to the extent that the appellant was deprived of a
fair trial. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052 (1984); Walker v. State, 367 Ark.
523, 241 S.W.3d 734 (2006) (per curiam). Actual
ineffectiveness claims alleging deficiency in attorney
performance are subject to a general requirement that the
defendant affirmatively prove prejudice. State v.
Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). With
respect to the requirement that prejudice be established, a
petitioner must show that there is a reasonable probability
that the fact-finder's decision would have been different
absent counsel's errors. Watkins v. State, 2010
Ark. 156, 362 S.W.3d 910; Sparkman v. State, 373
Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a
probability sufficient to undermine confidence in the outcome
of the trial. Sparkman, 373 Ark. 45, 281 S.W.3d 277.
On appeal, the sole question presented is whether, based on
the totality of the evidence, under the standard set forth by
the United States Supreme Court in Strickland, the
trial court clearly erred in holding that counsel's
performance was not ineffective. Carter v. State,
2010 Ark. 231, 364 S.W.3d 46; Watkins, 2010 Ark.
156, 362 S.W.3d 910.
Counsel's Failure to Object to Testimony
first point on appeal, Smith argues that counsel was
ineffective for failing to object to hearsay testimony from
witnesses. Smith contends that the State introduced, without
objection, hearsay testimony from the investigating police
officer, the sexual-assault nurse who examined the girls, and
the forensic interviewer regarding statements that the three
girls had made to them. The circuit court concluded that all
of the elicited testimony fell within a hearsay exception,
the pedophile exception, was cumulative and not so
prejudicial as to undermine its confidence in the verdict, or
was trial counsel's deliberate trial strategy. We agree.
not clearly erroneous for the circuit court to find that
counsel's failure to object to hearsay testimony of the
sexual-assault nurse, the forensic examiner, and the
investigating officer was not so prejudicial as to undermine
the confidence in the verdict. This testimony either fell
within a hearsay exception or was cumulative of the testimony
of Gr.C. and J.C. The sexual-assault nurse's testimony
regarding the girls' identification of Smith as the
perpetrator was admissible under the hearsay exception of
Ark. R. Evid. 803(4) (2016). Rule 803(4) provides for the
admission of statements made for the purpose of medical
diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensation, or the
inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis.
See Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493
(2002). Here, the declarants were child victims, who were
responding to questions from the nurse seeking to ascertain
circumstances reasonably relevant to their physical and
psychological diagnosis and treatment. See id.
(citing Stallnacker v. State, 19 Ark.App. 9, 715
S.W.2d 883 (1986)). Accordingly, J.C., Gr.C., and Ga.C.'s
statements to the nurse fall within the medical-treatment
exception of Rule 803(4), and the circuit court was not
clearly erroneous in its conclusion that Smith's counsel
was not ineffective for failing to object to this testimony.
The remainder of the hearsay testimony regarding Smith's
sexual contact with minors other than J.C. was cumulative
because J.C. and Gr.C. testified that Smith had molested them
and that they had witnessed Smith molest their sisters and
J.S. Edison v. State, 2015 Ark. 376, 472 S.W.3d 474;
Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996).
agree with the circuit court that the admission of hearsay
testimony was a matter of trial tactic and strategy and
therefore not a ground for post-conviction relief.
SeeWilliams v. State, 2011 Ark. 489, 385
S.W.3d 288. Smith's trial counsel testified that his
trial strategy, in part, was to elicit several of the
girls' statements from different witnesses so that the
inconsistencies would be evident to the jurors. He thought
that these inconsistencies would make the girls less
believable. "Matters of trial strategy and tactics, even
if arguably improvident, fall within the realm of
counsel's professional judgment and are not grounds for a
finding of ineffective assistance of counsel."
Id. Here, trial counsel made a tactical ...