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Hartman v. State

Supreme Court of Arkansas

January 19, 2017




          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kent Holt, Ass't Att'y Gen., for appellee.

          ROBIN F. WYNNE, Associate Justice

         Samuel Hartman appeals from an order of the Franklin County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015) filed following his conviction for rape. Appellant argues on appeal that the circuit court erred in denying his petition because (1) his trial counsel made disparaging remarks about him during closing arguments and (2) his trial counsel was ineffective for failing to object to certain trial testimony as hearsay. Appellant also argues that the matter should be remanded to the circuit court for that court to consider additional evidence regarding his claim that his trial counsel was ineffective for failing to present evidence at trial that he had a sexually-transmitted disease and the victim did not. We affirm.

         Appellant was tried before a Franklin County jury on charges of rape and tampering with physical evidence. The victim was his stepdaughter. Among the evidence submitted at trial was testimony that appellant admitted to police that he had touched the victim's genital area. Appellant was found guilty and sentenced to life imprisonment. Appellant's conviction for rape was affirmed by this court.[1] Hartman v. State, 2015 Ark. 30, 454 S.W.3d 721. After appellant's direct appeal concluded, he filed a petition for relief under Rule 37 in the circuit court. Following a hearing, the circuit court entered an order denying appellant's petition. Appellant subsequently filed a motion for reconsideration in which he alleged that he had found evidence that contradicted testimony given at the hearing. The motion for reconsideration was denied. This appeal followed.

         This court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Adkins v. State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. When considering an appeal from a trial court's denial of a postconviction petition based on a claim of ineffective assistance of counsel, the sole question presented is whether under the standard announced in Strickland v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred when it held that counsel was not ineffective. Hooks v. State, 2015 Ark. 258, at 3-4, 465 S.W.3d 416, 419 (per curiam). Under the Strickland test, a petitioner must show that counsel's performance was deficient, and a petitioner must demonstrate that he was prejudiced by counsel's deficient performance. Pennington v. State, 2013 Ark. 39, at 1-2 (per curiam). A defendant making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Miller v. State, 2011 Ark. 114 (per curiam). In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors; a reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Delamar v. State, 2011 Ark. 87 (per curiam).

         Appellant first argues that the trial court erred by denying his petition because his trial counsel made derogatory comments about him during closing arguments in the guilt phase. At the onset of his closing argument to the jury during the guilt phase, appellant's trial counsel, Ernest Witt, made the following remarks:

Now [the prosecutor has] called [appellant] a purveyor of young women, young girls, and he finally just called him essentially a pervert. You know what, I kind of agree with him. You probably do too; but you guys know what he is charged with? He's charged with rape, and that's why I'm here today.
The charge is rape. . . This is a rape case, and I've got a client over there that's done some things that shouldn't have been done, and I'm here today not to praise him but I'm not here to bury him on any charge he's not guilty of.
[The victim] tells her mother what happened to her, and that happened to her I'm convinced it did. That man sitting over there did things to her; but remember what the Prosecutor said in opening statement. We must prove penetration. Not rubbing, not fondling but penetration. So she tells her mother nothing about penetration.
That scallywag over there probably irritated the heck out of those ladies up there and they were probably going to get him and maybe he did deserve to be gotten on something, but my position here is that guy sitting over there is not guilty of rape. He's guilty of some bad stuff.

         Witt testified at the hearing on appellant's petition that he made the statements in an effort to build empathy with the jury and get it to understand that, while appellant had admitted engaging in conduct that could be termed perverse, the State had failed to prove that he had committed the offense of rape with which he was charged. In its order denying the petition, the trial court found that counsel was not ineffective for making the statements because, given the proof which included appellant's own statements to police, counsel had no choice but to pursue a strategy of differentiating to the jury the conduct admitted to by appellant and the elements of the offense with ...

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