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Smith v. State

Supreme Court of Arkansas

December 1, 2016

TODD AARON SMITH APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-13-188] HONORABLE CARLTON D. JONES, JUDGE

         AFFIRMED.

          Craig Lambert, for appellant.

          Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

          RHONDA K. WOOD, Associate Justice.

         Todd 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.

         In 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.

         Smith 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.

         Although 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.

         When 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.

         I. Counsel's Failure to Object to Testimony

         In his 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.

         It was 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).

         We also 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 ...


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