Jimmy Lane WICOFF v. STATE of Arkansas
CR 94-338
Supreme Court of Arkansas
June 19, 1995
900 S.W.2d 187
Oakley Trucking asserts that Railway‘s failure to keep the crossing free from weeds and vegetation was the sole and proximate cause of the accident. The jury disagreed, finding Railway 75 percent negligent and Oakley Trucking 25 percent negligent. In reviewing the evidence in the light most favorable to Mr. Grider, we cannot say that the trial court erred in refusing to direct a verdict in Oakley Trucking‘s favor, as there was substantial evidence that Oakley Trucking‘s driver, Mr. Montgomery, failed to exercise ordinary care or to keep a proper lookout, which constituted negligence that was a proximate cause of Mr. Grider‘s injuries.
Affirmed.
Winston Bryant, Att‘y Gen., by: J. Brent Standridge, Asst. Att‘y Gen., for appellee.
JACK HOLT, JR., Chief Justice. This appeal concerns post-conviction relief sought by the appellant, Jimmy Lane Wicoff, who
This court will reverse a trial court‘s denial of post-conviction relief оnly if its findings are clearly erroneous or clearly against the preponderance of the evidence. Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995); Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). In Vickers, this court reiterated its previous summary of the standard of review applicable to ineffective assistance of counsel claims in Pogue v. State, 316 Ark. 428, 432-33, 872 S.W.2d 387, 389 (1994), as follows:
[C]laims of ineffective counsel . . . must be examined in light of the standard set in Strickland v. Washington, 466 U.S. 68 (1984). That standard provides a two-prong test that must be met: (1) that the deficient performance of counsel must have resulted in errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) prejudice resulted which deprived the petitioner of a fair trial. Id. There is a strong presumption that trial counsel‘s conduct falls within the wide range of reasonable professional assistance, and the petitioner alleging differently has the burden of overcoming that presumption. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). In assessing trial counsel‘s performance, we make every effort to eliminate the distorting effects of hindsight. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992).
We thus must address Wicoff‘s allegations of ineffective assistance of counsel under the standards set forth in Strickland v. Washington, supra.
Wicoff first alleges that his counsel, Baxter County Public
Attached to Wicoff‘s A.R.Cr.P. Rule 37 petition was an investigative narrative completed by a Department of Human Services caseworker that indicated that, in 1988, the girls had been molested by two teenage male babysitters. Further, Wicoff‘s attorney, Mr. Carter, admitted at the Rule 37 hearing that he had learned from his client‘s mother that the girls’ father, Randall Ciesielski, had been accused of molesting them on two occasions in Illinois. He further acknowledged that he had been furnished an Arkansas State Police report that indicated that the elevеn-year-old had made allegations to Sergeant Mary Kesterson that Wicoff‘s brother, Johnny Wicoff, had “showed his sperm” to her and wanted her to touch his sperm.
At the Rule 37 hearing, Mr. Carter explained his failure to file a motion relating to the victim‘s prior sexual conduct, stating:
I was not satisfied with thе information that I was able to discover concerning the prior sexual episodes of the children. However, as a defense attorney, I am not entitled to records of other incidents, especially records held by children in youth services involving sexual allegations. The information I had through one source or another was probably more than the Supreme Court said I was entitled to.
Mr. Carter‘s decision not to request a hearing under Arkansas‘s rape-shield statute to explore the relevance of evidence of the victims’ prior sexual conduct, may not, standing alone, be sufficient to establish ineffective assistance of counsel. However, when we consider this circumstance together with counsеl‘s failure to call as a witness Wicoff‘s grandmother, Ms. Dickerson, who would have testified that the eleven-year-old had told her that she had fabricated the allegations against Wicoff, we must conclude that Mr. Carter‘s conduct falls below an objective standard of competence. These acts of omission clearly resulted in prejudice to Wicoff.
Ms. Dickerson testified at the Rule 37 hearing that the eleven-year-old victim had told her that she had fabricated the incident because she was mad at Wicoff, as he would not take her to Illinois to visit her grandmother. Ms. Dickerson further stated that she had informed Mr. Carter of this conversation. Mr. Carter explained that he did not call Wicoff‘s grandmother to testify because she was a relative and that, if her testimony would have had any influence on the jury, it would have only “infuriated” them. He further contended that, basеd on his arguments and his objections to other evidence, his belief was that the case would have been dismissed, or, alternatively, that it would have been reversed on appeal. According to Mr. Carter, he had subpoenaed Ms. Dickerson and other witnesses who were present at the trial and prepared to testify, but he made the decision not to call her only after the State had presented its case.
Granted, counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). We have stated that matters of trial strategy do not form the basis for post-conviction relief. Pogue v. State, 316 Ark. 428, 872 S.W.2d 87 (1986); McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). How-
While Mr. Carter, unlike counsel for Russell, did offer a reason for not calling Ms. Dickerson as a witness, stating that she was a relative, we cannot say that, under the facts presented, his decision was supported by reasonable professional judgment. At trial, the evidence against Wicoff was limited to the testimony of the two girls. The doctor who examined them testified that there was no physical evidence of sexual abuse, and that, in his opinion, the girls’ accounts of the incidents were reliable. As such, the credibility of the girls’ testimony was highly relevant, as their testimony was, in еssence, the State‘s only evidence against Wicoff. Ms. Dickerson‘s testimony that the eleven-year-old had admitted to her that she had fabricated the incident would have served to impeach the minor‘s credibility. Although Ms. Dickerson was available to testify to this conversation at trial, counsel for Wicoff did not call her or any witnesses on his behalf. Counsel for Wicoff readily admitted, however, through his own testimony at the Rule 37 hearing, that Ms. Dickerson‘s testimony “would have shed doubt on Jimmy‘s guilt [sic].”
Under these circumstances, we have no hesitancy in holding that there was a reasonable probability that the outcome of the trial would have been different had Mr. Carter fully explored information concerning the victims’ prior sexual contact, and, in particular, had he called Ms. Dickerson as a witness. Both the information regarding the victims’ sexual conduct and Ms. Dickerson‘s testimony could have established that the girls had fabricated the allegations against Wicoff.
Because we reverse and remand for retrial for the reasons
Reversed and remanded.
GLAZE, CORBIN and BROWN, JJ., dissent.
ROBERT L. BROWN, Justice, dissenting. The majority opinion concludes that there was ineffective assistance of counsel by the public defender. Because the appellant has not furnished this court with a record of the original trial, we have been forced to make a decision largely in the dаrk. I cannot reach a conclusion of ineffectiveness based on piecemeal evidence without knowing what transpired at the original trial. Moreover, the allegations of the appellant appear to be largely matters of trial strategy. I would affirm.
The majority sets forth the correct test for assessing ineffectiveness at trial: (1) error committed by trial counsel, and (2) prejudicial impact deriving from that error. Strickland v. Washington, 466 U.S. 68 (1984). We have stated that for the error of trial counsel to warrant a new trial, it must be so prejudicial as to have affected the outcome of the trial. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).
The majority‘s reversal in the instant case turns on the public defender‘s failure: (1) to explore calling the girls’ natural father who was previously suspected of molesting the girls, and (2) to call the defendant‘s grandmother who told trial counsel that one of the victims said what she did about Wicoff because she was mad at him for not taking her to Illinois.
In the past, this court has looked to the abstract or record to determine the effectiveness of counsel at trial. See, e.g., Bowers v. State, 292 Ark. 249, 729 S.W.2d 170 (1987); Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). In this case, we do not know how the public defender conducted himself in cross-examining Statе witnesses, how he argued the case, and how he presented Wicoff‘s defense in general. It is extraordinarily difficult, if not impossible, to conclude that the outcome of a defendant‘s trial was altered by the absence of two witnesses without knowing what else took place at triаl. Most importantly, we have no idea what the testimony of the two victims was.
The public defender testified at the Rule 37 hearing that he was fearful about calling the victims’ natural father, Randall Ciеsielski, because he believed that the father would support the girls’ accusations. There is, too, the almost certain fact that any suggestion of the father‘s prior sexual conduct with the girls would have been excluded under the Rape Shield Act, codified at
With regard to the grandmother, Ethel Dickinson, the public defender believed that her testimony would have been suspect due to her relationship with the defendant and would have alienated the jury. I cannot say that the public defender‘s judgment was clearly in error. The majority suggests that the public defender admitted Ms. Dickinson‘s testimony would “shed doubt” on Wicoff‘s guilt and, thus, essentially admitted his own ineffectiveness. I do not read his testimony that way. What he stated was that the grandmother‘s testimony would shed doubt on the defendant‘s guilt, but he then balanced this against other factors and decided not to call her. He gave these reasons for not calling her at the Rule 37 hearing:
The first reason, and probably the most obvious, is she‘s a relative. And putting a relative on the stand who will basically say, “This is what the girls told me,” I don‘t think has much influence on а jury and, if anything, would more infuriate a jury, by just calling a relative saying, “This is what they told me, therefore he should be acquitted.” In addition, I believe that, based on the record, I had established up to that point, based on my arguments based on the Johnson case and on Dr. Wilber‘s testimony, that the case should have been at that point dismissed by the Court;
and if it wasn‘t, the jury would have found him not guilty, and then take it a step further that, if he was found guilty, the Court of Appeals would reverse it.
In short, it appears that the public defender decided to stand on his motion for a directed verdict and not call any witnesses. Thаt is a strategic decision.
Prejudicial error should not be considered in a vacuum but assessed in light of all the pertinent facts. Without knowing what happened at the first trial, I cannot say that the public defender‘s decisions about two witnesses affected the outcome of the trial. To do so insinuates this court into the role of plotting trial strategy without a sufficient basis for doing so.
GLAZE and CORBIN, JJ., join in this dissent.