|, In 2005, following a jury trial, appellant Ricky L. Smith was found guilty of second-degree murder
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and sentenced to twenty years’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Smith v. State, CACR 06-169,
Now before us is appellant’s appeal from the trial court’s May 16, 2008 order denying postconviction relief. Appellant raises five points on appeal, alleging that trial counsel was ineffective for (1) failing to call two known alibi witnesses to testify, (2) failing to hire independent DNA or forensic experts, (3) failing to properly investigate or interview witnesses, (4) failing to request adequate time to prepare after receiving last-minute | ¡.statements that were possibly exculpatory, and (5) failing to preserve certain issues for appeal. We find no error, and we affirm.
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. Jamett v. State,
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence, under the standard set forth by the U.S. Supreme Court in Strickland v. Washington,
As to the second prong of the test, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Jamett,
Appellant’s first point on appeal is that trial counsel was ineffective for failing to call two “known alibi witnesses” to testify. For ineffective assistance claims based on failure to call a witness, this court has held that it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Weatherford v. State,
Based on the testimony of trial counsel and the alibi witnesses at appellant’s Rule 37.1 hearing, the trial court found that trial counsel’s decision not to call the witnesses was a strategic decision, that the witnesses’ testimony was not credible, and that the jury would likely have found the testimony so unbelievable as to actually work against appellant’s defense. In response, appellant cites Barrett,
In Barrett, we affirmed the trial court’s granting of postconviction relief based on the failure of the defense attorney to develop any theory of defense, to voir dire the jury on the elements or requisite mental states of the crime, to present any evidence or witnesses regarding Barrett’s mental state or intent, or to even mention the defendant’s theory of defense or possible lack of specific intent during closing arguments. Barrett,
At the Rule 37.1 hearing, trial counsel testified that the decision not to call the witnesses in question was based on his determination that they were not credible, which was based both on the fact that appellant had initially claimed that he was in the woods hunting when the murder occurred and had said nothing about being at home with his parents as well as the fact that both witnesses gave trial counsel multiple and conflicting versions of the alibi. Trial counsel was concerned that presenting this noncredible testimony to the jury would do appellant more harm than good.
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Rather than demonstrating a lack of reasonable judgment, counsel’s decision not to proffer the testimony here demonstrated a well-reasoned choice regarding trial strategy. 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. McCraney v. State,
Nor are we persuaded by appellant’s citation to Wicoff v. State,
Appellant’s case does not present a scenario like Wicojf. The witness in Wicojf would have testified that one of the victims admitted that she had made up the accusations against the defendant, and there was also extrinsic evidence in the form a of a Department of Human Services report that would have supported the witness’s testimony. In the instant case, the testimony of appellant’s mother and stepfather did not speak to the fabrication of the alleged crime, but only attempted to place appellant away from the crime scene, and this testimony was unsupported by any other evidence. In addition, whereas there was nothing in Wicojf to |7suggest that the witness was not telling the truth, trial counsel in the instant case testified at the Rule 37.1 hearing that the witnesses were not believable because they both had given multiple and contradictory versions of appellant’s alibi, and because appellant had not said anything about being at home when initially asked by trial counsel if he had an alibi. Finally, and perhaps most importantly, we stated in Wicojf that, based on the totality of the circumstances, when the omitted testimony and evidence were weighed against the State’s evidence, there was a reasonable probability that the outcome would have been different. In the instant case, we cannot say that offering testimony that both trial counsel and the trial court found unreliable, when weighed against two eyewitnesses’ testimony that appellant had committed the crime, would likely have resulted in a different outcome.
The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice that denied the petitioner a fair trial. Britt,
^Appellant next contends that trial counsel was ineffective for failing to hire independent DNA, medical, or forensic experts to testify that appellant had diabetes and was impotent, thereby undermining the prosecution witnesses’ testimony that appellant had sexual intercourse with the victim. We note, however, that it was testified to at trial that there was DNA evidence found in the victim, and that evidence did not match appellant’s DNA. We agree with the trial court that, at least visa-vis appellant, it is unclear what more could have been done with the DNA evidence that would have aided the defense.
Appellant argues, however, that trial counsel should have hired experts who had access to more advanced testing to try to determine the identity of the person who left the DNA evidence. Appellant contends, without any citation to authority, that failure to hire such experts constitutes ineffective assistance. We do not agree. To the extent that appellant is alleging a failure to adequately investigate, he fails to show what new evidence that would have benefitted appellant would have been found via a more searching investigation. See Howard v. State,
[For his third point on appeal, appellant contends that trial counsel was ineffective for failing to investigate and interview potentially helpful witnesses whose names were given to counsel by appellant’s ex-wife, mother, and sister-in-law. This argument is not preserved for appeal. All grounds for relief pursuant to Rule 37.1 must be asserted in the original or amended petition. Ark.R.Crim. P. 37.2(b), (e) (2006); Jamett,
Appellant contends that this issue was raised in his original petition. However, we note that, while he rephrases his argument on appeal to concern “witnesses” generally, appellant’s original Rule 37.1 petition claimed only that trial counsel was ineffective for failing to interview and investigate prosecution witnesses. The petition alleged nothing regarding a failure to interview defense witnesses. In listing appellant’s grounds for relief, the trial court’s opinion says “3. Failed to investigate and interview prosecution witnesses.” At the Rule 37.1 hearing, appellant’s attorney referenced the petition, stating “the grounds for relief specifically state ‘failed to investigate/interview prosecution witnesses.’ ” The court’s order contained findings that trial counsel had, in fact, investigated prosecution witnesses, both by reviewing transcripts, tapes, and videos of the witnesses’ statements as well as by “going out and conducting an investigation of his own.” Thus, any argument based on trial counsel’s failure to investigate potential defense witnesses was not raised in appellant’s original petition, and appellant is barred from raising it for the first time on appeal.
[(Appellant's fourth point on appeal is that trial counsel was ineffective for failing to request a continuance after he received statements that were possibly exculpatory “five minutes” prior to trial. As with appellant’s previous argument, this allegation was not presented to the trial court in appellant’s original Rule 37.1 petition. Appellant contends that this issue was raised in the original petition when he alleged failure by trial counsel to investigate and interview prosecution witnesses. As a failure to investigate witnesses and a failure to ask for a continuance are clearly not the same issue, this argument is without merit, and appellant is barred from raising this issue for the first time on appeal. Jamett,
Regarding each of appellant’s previous two arguments, we note that the trial court’s order denying postconviction relief did not discuss any alleged failure to interview defense witnesses or failure to request a continuance. Thus, even if we were to liberally construe appellant’s original petition to encompass both of the points he now raises on appeal, we would nevertheless remain barred from addressing these issues due to appellant’s failure to get a ruling from the trial court. See Viveros v. State,
Appellant’s final point on appeal is that trial counsel was ineffective for failing to preserve the issue of a speedy-trial violation for appeal. In appellant’s direct appeal, he argued that the trial court’s decision to exclude the time period between June 21 and July 27, 2005, was erroneous. Smith, CACR 06-169 at 5. The court of appeals determined that trial counsel [ nhad not made such an argument to the trial court. Id. As such, the issue was not preserved for appeal, and the court of appeals could not consider it.
In his Rule 37.1 petition, appellant argued that trial counsel’s failure to make this argument and preserve the issue for appeal was ineffective assistance. In the order denying relief, the trial court stated that appellant was not entitled to any relief on this claim because he did not establish that, but for trial counsel’s errors, the outcome would have been different, and appellant therefore failed to show how he was prejudiced by any alleged failure to preserve the issue for appeal.
On appeal from the trial court’s denial of postconviction relief, appellant argues that the court’s determination was clearly erroneous inasmuch as prejudice from counsel’s failure to preserve the speedy-trial issue is self-evident. Appellant contends that, had trial counsel preserved the issue properly, the court of appeals would have reversed the conviction, and the charges against appellant would have been dismissed. This argument is unavailing, however, in that it erroneously presupposes that the trial court’s decision to exclude the period between June 21 and July 27, 2005, was actually incorrect, and it omits the crucial determination of whether appellant was in fact tried in violation of the speedy-trial rule. See Camargo v. State,
Only where a petitioner was tried in violation of the speedy-trial rule can he establish that, but for trial counsel’s failure to preserve the issue for appeal, the court of appeals would not have affirmed his conviction. See id.; see generally Sparkman,
Arkansas Rule of Criminal Procedure 28.3(b) states
28.3 (b) The period of delay resulting from a continuance attributable to congestion of the trial docket [shall be excluded for purposes of speedy trial] if in a written order or docket entry at the time continuance is granted:
(1) the court explains with particularity the reasons the trial docket does not permit trial on the date originally scheduled;
(2) the court determines that the delay will not prejudice the defendant; and
(3) the court schedules the trial on the next available date permitted by the trial docket.
Ark. R.Crim. P. 28.3(b)(l)-(3).
In the instant case, the trial court order continuing the trial until July 27-29, 2005, noted that the time period should be excluded for speedy-trial calculation because the trial | iScould require multiple days, the prior trial date would not allow for additional days due to a full docket already scheduled for the following day, the new trial dates were the first available dates permitted by the docket that would accommodate a three-day trial, and continuance to this new date would not prejudice the defendant. Despite his burden to affirmatively support his claim of prejudice, neither appellant’s original petition nor his brief in the instant appeal present any evidence or authority to rebut the court’s findings or its determination that the period should be excluded. Similarly, appellant’s failure to provide any docket sheets or other evidence in support of his argument leave this court at a disadvantage when trying to determine whether the trial court erred in excluding the period in question under Rule 28.3. See Hicks v. State,
We are mindful of our decisions holding that docket congestion, without more, is generally not just cause for breaching the speedy-trial rule. See, e.g., Moody v. Ark. Cnty. Cir. Ct.,
Affirmed.
Notes
. Appellant was charged with first-degree murder, but he was convicted of the lesser-included felony.
. We have previously held that fabricated evidence of innocence is cogent evidence of guilt. See Anthony v. State,
. Appellant incorrectly argues that the law-of-the-case doctrine ipso facto establishes ineffective assistance of counsel based on trial counsel’s failure to preserve this issue for appeal. The doctrine of the law of the case provides that the decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Zawodniak v. State,