FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. CR-2013-172-1]
HONORABLE MARK LINDSAY, JUDGE
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
K. WOOD, Associate Justice
jury trial, Heather Swain was convicted as an accomplice to
capital murder and kidnapping. She received sentences of life
without parole for murder and twenty-five years for
kidnapping. She now contends that she received ineffective
assistance of counsel when her defense counsel allowed one of
her accomplices to testify in her defense without first
interviewing him. She also contends that her life sentence
was cruel and unusual and penalized her right to trial. The
circuit court rejected both claims. We affirm the circuit
court's judgment on the ineffective assistance of counsel
claim. However, we decline to address the remaining claims
because they are not properly before us.
Swain was charged as an accomplice to capital murder and
kidnapping. Testimony at her trial showed that she and three
other men kidnapped their victim, beat him to death while
they drove around in an SUV, and finally left him lying face
down in a ditch next to a dirt road in rural Washington
County. The jury convicted on both charges. We subsequently
affirmed the conviction on direct review. See Swain v.
State, 2015 Ark. 132, 459 S.W.3d 283.
we affirmed, Swain filed a petition for postconviction relief
under Arkansas Rule of Criminal Procedure 37. First, Swain
argued that defense counsel had been ineffective by allowing
one of her accomplices to testify in her defense without
first interviewing him. Second, Swain argued that her
sentence of life imprisonment for capital murder was
disproportionate to the crime charged and was actually a
penalty for exercising her right to trial. This second
argument was based on her accomplices' receiving lower
sentences after pleading guilty. After holding a hearing, the
circuit court rejected Swain's petition by written order.
Swain has now filed this appeal.
not reverse the grant or denial of postconviction relief
unless the circuit court's findings are clearly
erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d
883. 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. State v.
Lacy, 2016 Ark. 38, 480 S.W.3d 856.
first issue involves defense counsel's decision to call
one of Swain's accomplices to testify. On
cross-examination by the State, this accomplice, Alan
Swinford, testified that Swain had slapped the victim and
instigated her accomplices to further violence. Swain alleged
in her petition that her counsel should have never allowed
Swinford to testify without first interviewing him.
counsel testified to rebut this charge at the Rule 37
hearing. He admitted that he did not interview Swinford
before trial because Swinford's attorneys had indicated
that he did not want to talk. However, counsel did have
access to five transcripts of previous interviews Swinford
had given. None of these contained the allegation that Swain
had physically touched the victim. Counsel maintained that
the decision to call Swinford originated with Swain. Even so,
counsel thought Swinford's testimony would be
"helpful to us in pointing out who did what and what her
role was compared to his." The circuit court concluded
that counsel's decision to call Swinford was based on
the two-prong standard from Strickland v.
Washington, 466 U.S. 668 (1984), a petitioner seeking
postconviction relief must show that his counsel's
performance was deficient and that the deficient performance
resulted in prejudice. See Feuget v. State, 2015
Ark. 43, 454 S.W.3d 734. "There is a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance, and the petitioner has
the burden of overcoming that presumption by identifying the
acts and omissions of counsel which, when viewed from
counsel's perspective at the time of trial, could not
have been the result of reasonable professional
judgment." Id. at 4, 454 S.W.3d at 738.
"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." Noel v.
State, 342 Ark. 35, 41, 26 S.W.3d 123, 127 (2000). A
matter of reasonable trial strategy does not constitute
deficient performance. Fukunaga v. State, 2016 Ark.
164, 489 S.W.3d 644.
appeal, Swain argues that defense counsel's calling
Swinford without interviewing him, hoping that he would
exculpate Swain, was a "random stab in the dark"
rather than a coherent trial strategy. This argument misses
the mark. Counsel never testified that Swinford would
exculpate Swain. Rather, his testimony merely indicated that
calling Swinford could put Swain's participation in
perspective; it could highlight that Swinford, rather than
Swain, was the primary aggressor. Counsel testified, "I
wanted to show them what really caused the death and remind
[the jury] that she was . . . fairly helpless against
[Swinford]." Indeed, during direct examination, Swinford
testified that he had been drinking and using drugs; that he
blamed the victim for his wife's death; and that he had
been the first one to physically assault the victim.
cannot say that the circuit court clearly erred when it
concluded that counsel's decision was reasonable trial
strategy. Even though another attorney may have chosen a
different course, trial strategy, even if it proves
unsuccessful, is a matter of professional judgment.
Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. The
decision whether to call particular witnesses is a matter of
trial strategy that is outside the purview of Rule 37.
Id. Trial counsel must use his or her best judgment
to determine which witnesses will be beneficial to the
client. Tackett v. State, 284 Ark. 211, 680 S.W.2d
696 (1984). Accordingly, we affirm on this point.
next issue involves Swain's claim that her sentence of
life imprisonment was disproportionate and unduly penalized
her right to a jury trial. The premise for this argument is
that Swain's accomplices, who all pleaded guilty to
first-degree murder and kidnapping, received lesser
sentences: Alan Swinford received 80 years; Timothy Swinford
received 50 years; and James Patton received 30 years. Swain
maintains that these accomplices were more culpable than her
and that she should not have received a longer sentence. She
also maintains that she received a more "onerous"
sentence because, ...