bin 2009, appellant
Appellant subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The petition was denied, and appellant brings this appeal. This court has held that it will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Pankau v. State,
The grounds advanced by appellant for reversal of the order consist of a series of |2allegations that he was not afforded effective assistance of counsel at trial and an allegation of prosecutorial misconduct. A review of the Rule 87.1 petition and the order reveals no error in the trial court’s decision to deny the petition. When considering an appeal from a trial court’s denial of a Rule 37.1 petition, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington,
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland,
Appellant’s first point on appeal is that the prosecutor failed to timely disclose the name of an expert witness on gangs, causing interruption of trial preparations as well as a potential Brady violation based on any benefit he might have gained from the State’s witness. The United States Supreme Court, in Brady v.
In a related argument, appellant contends that his counsel was ineffective for failing to ask for a continuance following the State’s disclosure of the expert witness on the basis that the defense may have benefited from the testimony of the expert or had time to consult with its own expert witness on gangs. At the hearing, appellant’s attorney testified that she sought to exclude the testimony rather than move for a continuance based on a strategic decision not to emphasize the role of gangs in the case. Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then such a decision is not a proper basis for relief under Rule 37.1. Mitchem v. State,
For his third argument on appeal, appellant maintains that his counsel was ineffective for failing to excuse a biased juror. During voir dire, appellant’s counsel asked a juror if she thought appellant should testify on his own behalf. The juror, who was later seated on the jury, responded by saying that “if he has nothing to hide, it won’t hurt anything.” Appellant claims Isthat the juror’s response indicates a predisposition for bias on the part of the juror that could not be overcome based on his intention not to testify at trial, a fact that he claims was known by his attorney. Appellant’s attorney testified at the Rule 37.1 hearing that she did not believe that the juror’s response was an indication of bias and that “a lot of people ... would like a defendant to testify but it doesn’t mean they’re gonna hold it'against him and she never stated that she would hold it against [appellant].” Counsel also testified that she believed that the juror would be a favorable juror for appellant based on her background and training as well as her responses to other questions and the fact that she was the only African-American juror, the same race as appellant. Finally, during the voir dire phase, the trial court asked the jurors if they could follow the instruction that “[t]he fact that the Defendant did not testify is not evidence of his guilt or innocence and under no circumstances shall be considered by you in arriving at your verdict or verdicts.” All of the jurors, including the juror at issue, responded in the affirmative.
The decision to accept or exclude a particular juror may be a matter of trial strategy or technique. Butler v. State,
Moreover, appellant has failed to demonstrate that he was prejudiced by the juror’s having been seated. Jurors are presumed unbiased and qualified to serve. Burton v. State,
Appellant next asserts that his counsel provided ineffective assistance as a result of her failure to request a mistrial following the admission of testimony from a detective as to statements made by appellant’s accomplice. Appellant’s counsel objected to the detective’s testimony as inadmissible hearsay, and the trial court overruled the objection on the basis that the testimony was not being offered for the truth of the matter asserted. Following the testimony, counsel renewed her objection, and the trial court stated that it had already ruled on the objection and then gave a limiting instruction. At the Rule 37.1 hearing, counsel testified that because her objection had been overruled, a motion for mistrial would have been “fruitless” and that she believed her remedy was on appeal.
A mistrial is a drastic remedy that should be granted only when justice cannot be served by continuing the trial. Hogan v. State,
Appellant next contends that he was denied effective assistance of counsel because his counsel failed to properly introduce a transcript of a police interview of Barving Price. The conviction of appellant for intimidating a witness was based on a finding that he threatened Price for the purpose of influencing his testimony, and this conviction was affirmed on appeal. Cunningham,
During the testimony of a police detective at trial, appellant’s counsel unsuccessfully attempted to introduce a transcript of a police interview of Price by the detective in response to the State’s theory that appellant threatened Price as a result of the interview. The trial court, following an objection from the State, found that the transcript was inadmissible as follows:
Again, counsel, one, you had an opportunity when that witness [Price] was testifying to offer it and it was not offered so clearly had there been an objection to that testimony when this witness testified that objection would be sustained. But under, third, and more importantly, under the rules of evidence, that for any purpose is not admissible so for all those reasons I’ve sustained the State’s objection.
Appellant contends that his counsel committed prejudicial error because the trial court would have allowed the admission of the interview transcript during the testimony of Price. He further contends that prejudice resulted because the transcript would have shown the disparity in treatment that he and Price received from the police during their respective interviews. Based on the trial court’s finding that the Price interview was not admissible for any purpose, appellant’s argument that the interview would have been admitted if offered during the | ^testimony of Price must fail. Moreover, appellant fails to establish that he was even prejudiced when the transcript was not admitted because he fails to demonstrate how the alleged disparity in police interview techniques had any relevance to the charges against him.
Finally, appellant alleges that he received ineffective assistance of counsel based on counsel’s failure to object to hearsay testimony by the witness, Price. While appellant contends that these statements were prejudicial because they implied that he was an active participant in the robbery, he does not state with any particularity on appeal which statements he is referencing. The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Payton v. State,
Further, even if appellant’s general reference to alleged hearsay in Price’s testimony was considered sufficiently specific, his argument must still fail. The unspecific nature of the |saIlegation does not demonstrate prejudice. Whether to object to hearsay is ordinarily a matter of trial strategy, and appellant has not shown that counsel made a specific error or that counsel’s conduct was not supported by reasonable professional judgment. See Hoyle v. State,
Having considered the arguments raised by appellant in this appeal, the record, and the order rendered by the trial court, there is no ground on which to reverse the trial court’s ruling. Accordingly, the order is affirmed.
Affirmed.