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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-13-167

                                                    Opinion Delivered July 31, 2014


ANTONIO LAMONT SMITH                                PRO SE APPEAL FROM THE
                   APPELLANT                        PULASKI COUNTY CIRCUIT COURT
                                                    [NO. 60CR-10-1477]
V.
                                                    HONORABLE CHRISTOPHER
                                                    CHARLES PIAZZA, JUDGE
STATE OF ARKANSAS
                                  APPELLEE          AFFIRMED.



                                          PER CURIAM


       In 2011, appellant Antonio Lamont Smith was found guilty by a jury of murder in the

first degree and possession of a firearm by a felon. He was sentenced as a habitual offender to

an aggregate sentence of 780 months’ imprisonment. Appellant appealed the judgment on the

ground that the evidence was insufficient to show that he acted with purpose when he shot the

victim. The Arkansas Court of Appeals affirmed. Smith v. State, 2012 Ark. App. 359.

       Subsequently, appellant timely filed in the trial court a verified, pro se petition for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The trial

court denied the petition after holding a hearing. Appellant brings this appeal.

       In his petition, appellant alleged that he was not afforded effective assistance of counsel

at trial. This court has held that it will reverse the trial court’s decision granting or denying

postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 173,

___ S.W.3d ___. 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
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conviction that a mistake has been committed. Caery v. State, 2014 Ark. 247 (per curiam); Sartin

v. State, 2012 Ark. 155, 400 S.W.3d 694.

       When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on

ineffective assistance of counsel, 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, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s

performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.

       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, 466 U.S. at 686. Pursuant to

Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner

raising a claim of ineffective assistance must show that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment

to the United States Constitution. Caery, 2014 Ark. 247; Williams v. State, 369 Ark. 104, 251

S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the

wide range of professional assistance, and an appellant has the burden of overcoming this

presumption by identifying specific acts or omissions of trial counsel, which, when viewed from

counsel’s perspective at the time of the trial, could not have been the result of reasonable

professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010

Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient

performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v.



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State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel

claim must show that his counsel’s performance fell below an objective standard of

reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner

must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder

would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been

different absent the errors. Breeden v. State, 2014 Ark. 159 (per curiam). A reasonable probability

is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language,

“the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to

possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said

that the conviction resulted from a breakdown in the adversarial process that renders the result

unreliable. Id. “[T]here is no reason for a court deciding an ineffective assistance claim . . . to

address both components of the inquiry if the defendant makes an insufficient showing on one.”

Strickland, 466 U.S. at 697.

       Testimony at trial established that on March 12, 2010, appellant was with Kisma Gary

and Cizano Jones and that they drank alcohol and smoked marijuana during the day. At some

point, the three were joined by Clarence Hayes with whom they drove to buy some “sherm,”

which, according to one witness, is marijuana laced with “PCP.” The group smoked the

substance, first in the car and then at Hayes’s house. Gary testified that appellant was “wigging

out” at Hayes’s house, yelling, screaming, removing his clothes, and shouting that he wanted to

have sex. She further testified that she feared that appellant intended to rape her and that he




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pulled a gun and pointed it at her.1 After appellant touched the gun to Gary’s chest, she fled to

her grandmother’s house and then called Jones, who said that everything had calmed down.

Shortly thereafter, appellant and Hayes drove to Gary’s location. From remarks by Hayes and

appellant, Gary surmised that appellant had shot Jones.

       The forensic evidence showed that Jones had been shot three times, that the bullets were

fired downward, and that the fatal shot was to the forehead. Hayes’s neighbor testified that he

heard one gunshot and then another thirty-five to forty seconds later.

       Leroy Vance, who shared a jail cell with appellant after the shooting, testified that

appellant had voiced several versions of the shooting in an effort to come up with a version that

would be less incriminating, including one in which Hayes had pushed the victim Jones in front

of the gunfire. Appellant testified at trial that he had shot the gun at the scene but contended

that the victim was a close friend and that the victim’s death was entirely inadvertent.

       The issue of the sufficiency of the evidence was raised on direct appeal, and the court of

appeals held that the evidence was sufficient to sustain the judgment. The court of appeals

noted that the evidence that there were three gunshot wounds to the victim, at least two of

which were fired some seconds apart, ran counter to appellant’s account of the shooting as an

accident. The appellate court further noted that appellant’s romantic interest in Gary, coupled

with appellant’s efforts in jail to concoct a less incriminating version of events, also belied his

testimony that the shooting was not intentional.

       In his Rule 37.1 petition, appellant set out his allegations of ineffective assistance of

       1
         Appellant was charged with the aggravated assault of Gary. The charge was tried with
the first-degree murder charge, and appellant was found not guilty.

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counsel in the following six claims: (1) counsel failed to call Clarence Hayes who could have

testified that the shooting was an accident; (2) counsel failed to investigate the shooting and

prepare a defense that the shooting was accidental; (3) counsel prejudiced the defense by raising

his character defects, stating that his educational level was eighth or ninth grade, and making a

hand gesture circling his head suggesting that he was stupid or crazy; (4) counsel did not properly

object to a video tape of him made after the shooting and did not argue that his demeanor in the

video tape reflected that the shooting was accidental; (5) counsel erred in calling Mildred

Johnson to “verify” an incident that had happened seven years before the shooting concerning

appellant’s drug use because the testimony prejudiced the defense; (6) counsel failed to raise the

fact, and call a witness to support the fact, that the victim had been pushed in front of the gun.

       With leave of the court, appellant was allowed to file an amendment to the Rule 37.1

petition. The first two claims in the amended petition cited to portions of the trial transcript that

appellant contended contained examples of counsel’s prejudicing him. The prejudice was alleged

to have arisen from counsel’s statements concerning a change in the theory of the defense and

from counsel’s remarks in the opening statement concerning remarks made by the State in its

opening statement, which were not supported by fact. He further contended that counsel

prejudiced the defense by bringing up appellant’s drug use throughout the trial; by failing to

present mitigating evidence at sentencing; by failing to retain an investigator to interview

witnesses; by not bringing out conflicts in statements to police; and by failing to question Leroy

Vance about a statement Vance had made to the police that was consistent with Hayes’s

statement that Hayes had taken the gun from appellant at some point.



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       Appellant first argues in his brief that the trial court failed to comply with Rule 37.3(a).

Rule 37.3(c) provides that an evidentiary hearing should be held in postconviction proceedings

unless the files and record of the case conclusively show that the prisoner is entitled to no relief.

See Eason v. State, 2011 Ark. 352 (per curiam). Here, an evidentiary hearing was held.2 While

appellant contends that the hearing was unduly short, the trial court did not limit the issues to

be covered at the hearing, and appellant was allowed to raise any questions he desired.

       With respect to the assertion that the trial court failed to make the written findings

required by the Rule, the claims contained in the petition were largely conclusory in nature and

did not require extensive written findings. Appellant did not explain what mitigation evidence

was available, what information the further interviewing of witnesses would have uncovered, or

otherwise support his allegations with facts from which prejudice to the defense could be

determined. Conclusory statements and allegations without factual substantiation are insufficient

to overcome the presumption that counsel was effective, and such statements and allegations

will not warrant granting postconviction relief. Anthony v. State, 2014 Ark. 195 (per curiam).

Moreover, this court may affirm the denial of a Rule 37.1 petition, regardless of the adequacy

of the order, if we can determine from the record that the petition was wholly without merit or

when the allegations in the petition are such that it is conclusive on the face of the petition that

no relief is warranted. See Anthony, 2014 Ark. 195; see also Lemaster v. State, 2013 Ark. 449 (per

       2
         Appellant also contends in his brief that he was entitled to, but denied, appointment of
counsel at the Rule 37.1 hearing. In order to demonstrate an abuse of discretion by the trial court
in declining to appoint counsel, appellant was required to make a substantial showing in his
request for counsel that his petition included a meritorious claim. Ellis v. State, 2014 Ark. 24 (per
curiam) (citing Viveros v. State, 372 Ark. 463, 277 S.W.3d 223 (2008) (per curiam)). A review of
the petition demonstrates that appellant did not make that showing.

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curiam); Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. From a review of the order, the

record, and the briefs filed in this appeal, appellant has not demonstrated that the trial court

erred in denying the relief sought.

       The crux of the allegations of ineffective assistance of counsel raised by appellant, and

also argued in this appeal, is that trial counsel employed improvident trial strategy. Appellant

faulted counsel to some degree in each allegation of ineffective assistance of counsel for not

somehow establishing that the shooting was accidental. The allegations pertaining to counsel’s

failure to demonstrate that the shooting was an accident include the assertions that counsel

prejudiced the jury by pointing out his lack of education, by suggesting with hand gestures

circling his head that he was stupid or crazy, by not establishing that a video tape of him made

after the shooting showed him in a state of shock rather than merely high on drugs, and by

questioning witnesses about his current and past drug use. Appellant argues in each claim that

counsel was wrong to focus on his mental condition as affected by drug use and other factors

as an explanation for the shooting rather than showing that the shooting was accidental.

       Counsel for appellant testified at the hearing that his approach to the trial revolved

around the facts that the victim had been shot three times in a small room and that appellant

admitted to having pulled the trigger. It was counsel’s desire to demonstrate that everyone

involved, including the victim, was high on drugs and thus cause the jury to conclude that

appellant should be given a lenient sentence. Counsel explained that he did not call Clarence

Hayes as a witness because Hayes had informed counsel that he would testify that appellant shot

the victim from between one and two feet away, that appellant shot the victim on purpose, that



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appellant had pointed the gun at Hayes, and that Hayes was hiding in the room in fear that

appellant was going to shoot him. In the opening statement for the defense, counsel stated to

the jury that appellant and the victim were good friends, that everyone in the room was impaired

by drug use, and that the shots were fired around the room rather than simply at the victim.

Counsel questioned appellant at trial on whether he intended to shoot the victim, and counsel

also questioned appellant and other witnesses concerning appellant’s lengthy friendship with the

victim and appellant’s lack of a propensity for violence. Counsel argued that appellant did not

commit murder in the first degree and succeeded in having the jury instructed on lesser-included

offenses.

       Counsel is allowed great leeway in making strategic and tactical decisions. Leak v. State,

2011 Ark. 353 (per curiam). We have repeatedly held that matters of trial strategy, even if the

strategy proves improvident, are not grounds for granting postconviction relief. Prater v. State,

2012 Ark. 164 , 402 S.W.3d 68; Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987) (per curiam).

Nevertheless, the decisions must be based on reasonable professional judgment. Clarks v. State,

2011 Ark. 296 (per curiam); Leak, 2011 Ark. 353. Here, it cannot be said that appellant

established that counsel’s decision to base the defense on appellant’s altered state of mind

occasioned by extreme drug use was anything more than an issue of trial strategy. Clearly,

appellant did not show that the strategy was outside the bounds of reasonable professional

judgment, particularly if the evidence adduced at trial is considered concerning appellant’s

admission to having shot the victim and the evidence concerning appellant’s extreme behavior

apparently brought on by the drug use.



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       With respect to appellant’s assertion in his amended Rule 37.1 petition that counsel was

remiss in not questioning Leroy Vance about a statement he had made to police concerning

Hayes’s having taken the gun from appellant at some point, the claim did not estabish that

counsel was ineffective. Appellant contended that Vance’s statement was the same as that of

Clarence Hayes, and the jury should have been made aware that the statements were the same

inasmuch as the verdict rested on the credibility of the prosecution’s witnesses. The allegation

does not satisfy the Strickland standard for establishing that counsel was ineffective because it

does not demonstrate that there is a reasonable probability that, but for counsel’s failure to

question Vance about his statement, the fact-finder would have had a reasonable doubt

respecting guilt, i.e., the decision reached would have been different absent the error. In light

of the totality of the evidence, even if Vance and Hayes had made the same statement, the

allegation is not sufficient to show that the outcome of the trial would have been different had

the jury known about the statements.

       In his brief, appellant adds to the allegation concerning Vance’s statement a claim that

private papers were illegally seized and that counsel should have investigated the seizure. He

also raises for the first time the arguments that the State failed to disclose the video tape before

trial and that counsel should have moved to sever the felon-in-possession-of-a-firearm charge.

Neither the additional claims concerning Vance’s statement nor the claims regarding the video

tape and counsel’s failure to move to sever the charge will be considered in this appeal. Because

arguments raised for the first time on appeal could not have been considered by the trial court,

such arguments will not be addressed by this court in its review of the trial court’s order. Dixon



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v. State, 2014 Ark. 97 (per curiam); Green v. State, 2013 Ark. 455 (per curiam); Williams v. State,

2013 Ark. 375 (per curiam).

       Appellant’s claims in the petition and the amended petition were not supported by facts

sufficient to overcome the presumption that counsel’s conduct was within the wide range of

reasonable, acceptable professional assistance. As appellant did not meet his burden of

demonstrating that counsel made specific errors that prejudiced the defense, the trial court did

not err in declining to grant relief under Rule 37.1.

       Affirmed.

       Antonio Lamont Smith, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.




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