Quentin Kyle Green v. State of Arkansas

Cite as 2020 Ark. App. 130
Reason: I attest to the
accuracy and integrity of this
ARKANSAS COURT OF APPEALS
document
Date: 2021-06-30 14:35:18
Foxit PhantomPDF Version: DIVISION IV
No. CR-19-711
9.7.5

Opinion Delivered: February 19, 2020

QUENTIN KYLE GREEN APPEAL FROM THE MILLER
APPELLANT COUNTY CIRCUIT COURT
[NO. 46CR-16-388]
V.
HONORABLE DAVID N. LASER,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Quentin Kyle Green appeals after the Miller County Circuit Court entered

an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of

Criminal Procedure 37.1. Appellant argues in five points on appeal that the circuit court

erred in denying relief because his trial counsel had a conflict of interest that was not

remedied by a valid written waiver and because trial counsel was ineffective. We affirm.

I. Background

Appellant was convicted by a Miller County Circuit Court jury of rape and sexual

assault in the second degree. Before addressing the allegations of ineffective assistance of

counsel, it is necessary to recite the evidence adduced at appellant’s trial. Lyndi Green,

appellant’s former wife, testified that she has four children. K.B. is one of her middle

children. Ms. Green testified that when K.B. was ten years old, K.B. told her that appellant,

K.B.’s stepfather at the time, had touched her inappropriately under her pajamas and under
her panties. Appellant denied the allegations after Ms. Green confronted him about the

incident. Ms. Green testified that on that same night that she confronted appellant, appellant

indicated that he thought about killing himself. After that incident, Ms. Green had K.B.

stay with her grandparents and took K.B. to see a counselor. A few days later and after

further conversations with Ms. Green about the ramifications of the allegations, K.B.

recanted her story, apologized to appellant, and returned home. Additionally, the family

went to an attorney, Michael Peek, and a video was taken of K.B. explaining that she had

recanted her story. A few years later, K.B. told Ms. Green that she had lied when she had

recanted her story. Additionally, K.B. told her biological father about the incident, and it

was reported to law enforcement.

Officer Patsy DeHart testified that she was the investigator assigned to the case against

appellant in 2016. Officer DeHart testified that law enforcement had received a call on the

Arkansas State Police hotline with the allegations. Arkansas State Police Crimes Against

Children Division took the initial report, and it was screened by the Arkansas Department

of Human Services (DHS). Officer DeHart contacted the Children’s Advocacy Center

(CAC) and arranged for K.B. to be interviewed.

Melanie Halbrook, a forensic interviewer at the CAC in Benton County, testified

that she had interviewed K.B. K.B. was fifteen years old at the time of the interview.

Ms. Halbrook testified that during the interview, K.B. disclosed that appellant had digitally

penetrated her when she was ten or eleven years old. Although K.B. reported that the first

time it happened when she was about ten years old, K.B. indicated that appellant had

continued to inappropriately touch her on subsequent occasions. K.B. additionally disclosed

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to her that she had falsely recanted her story after the first incident because her mother did

not believe her. Ms. Halbrook testified that over eighty-five percent of children will recant

their statements when there is a lack of maternal support and the abuse is by a male caretaker.

Ms. Halbrook further testified that of the eighty-five percent of children who recant, about

ninety-three percent of them will later reaffirm those allegations. Regarding the video that

was taken in Mr. Peek’s office, Ms. Halbrook testified that the interview was not conducted

under the protocols used by her office. She testified that Mr. Peek used a lot of direct

questions, forced multiple-choice answers, legal jargon, and hypothetical questions, all of

which she avoids. Ms. Halbrook testified that after her interview, she opined that K.B.’s

statement and body language were consistent with sexual abuse. Videos of both interviews

were played for the jury.

Ky.B. testified that she is K.B.’s older sister. According to Ky.B., when K.B. was

ten or eleven years old, K.B. told her about an incident in which appellant had come into

K.B.’s room one night and inappropriately touched K.B.’s “girl parts.” Ky.B. testified that

her sister was “hysterically crying, like bawling her eyes out” when she told her about the

incident.

D.H., K.B.’s friend, testified that in January or February 2016, she attended an

overnight church retreat with K.B. That night, K.B. told D.H., along with several other

girls in attendance, that appellant had inappropriately touched her when she was

approximately ten years old. D.H. described K.B. as emotionally weak, hanging her head,

and crying some while making the statement.

3
K.B. testified and described in detail two incidents in which appellant inappropriately

touched her. K.B. testified that on at least one occasion, appellant digitally penetrated her

vagina. K.B. admitted that she recanted her story after telling her mother about one of the

incidents and that she had lied during the video that was recorded in Mr. Peek’s office. She

explained that her mother did not believe her story at that time and that she felt the

counselor also did not believe her. In 2016, after Ms. Green and appellant had divorced in

2015, K.B. attended a church retreat. K.B. testified that she told her friends at the event

that appellant had, in fact, inappropriately touched her despite her prior statements to the

contrary. Afterward, she told Ms. Green and her biological father that she had not made

up the story about the incidents.

Appellant testified and denied the allegations. Appellant indicated that when K.B.

made the initial allegations, she was angry with her mother and wanted to live with her

biological father. He did not know why she realleged the allegations. Appellant further

denied that he had ever threatened suicide to Ms. Green.

Mr. Peek testified that he had interviewed K.B. after appellant and Ms. Green hired

him. At that time, K.B. had initially accused appellant of inappropriately touching her and

then recanted her story. Mr. Peek explained that it was not his duty to find out the truth

but to protect his client who paid him. Mr. Peek testified that he does not necessarily model

his interview on CAC’s protocols. However, he does try to avoid leading questions on all

material parts and felt that he did so during K.B.’s interview.

Appellant finally offered two character witnesses on his behalf. Appellant’s

grandmother testified that appellant had never touched anyone inappropriately to her

4
knowledge or do anything that would cause her concern. Furthermore, appellant’s pastor

testified that he did not have any concerns about appellant being around either of his

children or his grandchildren.

After all evidence had been presented, including the videos from both interviews,

the jury found appellant guilty of rape and sexual assault in the second degree, and appellant

was sentenced to serve consecutively 300 months and 60 months in the Arkansas

Department of Correction, respectively. After appellant’s conviction, he appealed, arguing

that the trial court abused its discretion in refusing to allow defense counsel to inquire of an

expert witness concerning her previous testimony in an unrelated case. We affirmed on

direct appeal because we were precluded from addressing appellant’s arguments. Green v.

State, 2018 Ark. App. 38.

II. Petition for Postconviction Relief and Rule 37 Hearing

Following our affirmance, appellant filed his petition for postconviction relief

alleging that he was entitled to relief because (1) defense counsel had a conflict of interest

not remedied by a valid waiver; (2) trial counsel was ineffective by his failure to object to

inadmissible testimony from Melanie Halbrook of the CAC; (3) counsel was ineffective by

his failure to object to testimony of witnesses quoting the accuser and not seeking an

instruction that their testimony was not being admitted for the truth of the matter asserted;

(4) counsel was ineffective for failure to object to improper impeachment of a defense

5
witness; and (5) counsel was ineffective by his failure to present or seek to present testimony

concerning the accuser’s source or inspiration to make the original claim of abuse.1

An evidentiary hearing on appellant’s petition was held, and appellant was

represented by counsel at the hearing. Appellant’s trial counsel, Joseph Tyler, testified that

he had represented appellant three or four times before this case. At the time of appellant’s

trial, Mr. Tyler’s law partner, “Shorty” Barrett, was dating the elected prosecuting attorney,

Stephanie Potter Black, who prosecuted appellant in this case. The two subsequently

married. Although Mr. Barrett refrained from practicing criminal defense in her circuit to

avoid any appearance of impropriety, Mr. Tyler did not think he had any conflict of interest

under the Arkansas Model Rules of Professional Conduct. Therefore, Mr. Tyler did not

obtain a written waiver, but he did make appellant aware of his partner’s relationship with

Ms. Black. Mr. Tyler did not initially think Ms. Black would be participating in the trial at

the time of his first conversation with appellant. However, Mr. Tyler explained that he had

a second conversation with appellant approximately one month before trial after he found

out that Ms. Black would be participating. Regardless, Mr. Tyler explained that at no time

has he felt that his law partner’s relationship with Ms. Black affected his representation or

gave him either a favorable or unfavorable edge. He further testified that he did not think

Mr. Barrett’s personal interest with Ms. Black limited his representation of appellant, and

Mr. Barrett was not involved in appellant’s defense in any manner.

1
Appellant alleged one other ground for relief in his postconviction petition.
However, because he has abandoned that argument on appeal, we do not address it.
6
Regarding Ms. Halbrook’s testimony, Mr. Tyler explained at the Rule 37 hearing

that he stipulated to her expertise at trial because he wanted to prevent Ms. Halbrook from

“bedazzling” the jury with her qualifications. He further stated that he did not want the

jury to hear thirty minutes of testimony concerning those qualifications. Additionally,

Mr. Tyler stated that this decision was based on his review of her resume and on his previous

experiences in other trials in which she was a witness. Regarding the specifics of her

testimony, Mr. Tyler stated that it had been his experience that the trial court would allow

Ms. Halbrook to explain her training and experience and to explain the five steps of

disclosure. Mr. Tyler acknowledged that Ms. Halbrook testified about the process of

disclosure and patterns and demeanors of children who have been victims of sexual abuse.

However, according to Mr. Tyler, Ms. Halbrook was not permitted to specifically state that

K.B. was telling the truth. Although Mr. Tyler admitted that Ms. Holbrook did testify that

K.B. exhibited the signs and symptoms of a person who had been sexually abused, his

experience led him to believe that the trial court would deem such testimony admissible.

Finally, he stated that because he thought some of the statistics announced in Ms. Halbrook’s

testimony were “ludicrous,” he had decided to cross-examine her regarding those statistics.

Mr. Tyler explained at the Rule 37 hearing that he had discussed the admissibility of

the videos of the victim’s interviews with the State prior to trial. Because Mr. Tyler thought

it was critical to have the recantation video played for the jury in its entirety, as did appellant,

he and appellant entered into a stipulation agreement with the State to allow both videos to

be admitted and played without objection. Mr. Tyler stated that this decision was part of

his trial strategy.

7
Mr. Tyler admitted that the State suggested at trial that Mr. Peek was a mandated

reporter of child abuse during its cross-examination of Mr. Peek. He also admitted that he

knew Mr. Peek was not a mandated reporter and thought he objected, but after a review of

the record, it appears that he failed to do so.

As part of appellant’s defense at trial, Mr. Tyler attempted to introduce testimony

regarding another child who lived in the household with K.B. This child apparently claimed

that she had been abused by another man. The defense’s theory was that this child gave

K.B. the idea to falsely accuse appellant. However, the trial court refused to allow this

testimony to be introduced through appellant’s examination. The State objected and argued

that Mr. Tyler needed to ask those questions of K.B. instead of appellant. Additionally, the

State argued that it was irrelevant. The trial court sustained the objection and stated that it

was irrelevant. Mr. Tyler testified at the Rule 37 hearing that he had originally made the

strategic decision to introduce this testimony through appellant’s testimony rather than

K.B.’s because he felt certain that K.B. would deny it and that the trial court would rule it

inadmissible. He stated that even if the State objected, it would at least allow appellant to

“try to ramble off something real quick to put a bug in the jury’s ear.” Moreover, he stated

that even if the trial court had allowed him to ask K.B. those questions if he recalled K.B.,

he did not want to do so because K.B. came across as credible throughout her testimony.

Mr. Tyler did not think appellant’s testimony went as well. In fact, Mr. Tyler expressed his

concerns over appellant’s behavior and demeanor on the stand. He described appellant as

very lethargic and stated that he appeared to be under the influence of drugs or alcohol. At

one point, he thought appellant was going to fall asleep.

8
Mr. Tyler admitted that Ky.B. and D.H. testified before K.B. at trial. However, he

explained that he did not object to their testimony regarding K.B.’s statements to them

because he thought their testimony was admissible as excited utterances and present sense

impressions.

At the Rule 37 hearing, Mr. Tyler testified that during his thirteen years of

experience in the courtroom, he had developed a sense of what the trial court would deem

admissible or inadmissible. Thus, he said that it was generally fair to say that not objecting

to certain testimony was also a matter of trial strategy. He testified that it may not be prudent

to object and raise more attention to unfavorable testimony, especially if he thought the jury

may not have been paying attention at the time. He explained that an objection could

essentially backfire and cause the jury to become more attentive when they otherwise would

have been “falling asleep.” Mr. Tyler further stated that in his experience, it was also not

always wise to object, thereby emphasizing certain testimony, especially if he thought the

trial court would let it in regardless.

After the evidentiary hearing, the circuit court denied appellant’s petition in a

detailed written order filed on June 26, 2019. This appeal followed.

III. Standard of Review

We do not reverse the denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding

is clearly erroneous when, although there is evidence to support it, after reviewing the entire

evidence, we are left with the definite and firm conviction that a mistake has been

9
committed. Id. In making a determination on a claim of ineffective assistance of counsel,

this court considers the totality of the evidence. Id.

Our standard of review also requires that we assess the effectiveness of counsel under

the two-prong standard set forth by the Supreme Court of the United States in Strickland v.

Washington, 466 U.S. 668 (1984). Conley, supra. In asserting ineffective assistance of counsel

under Strickland, the petitioner must first demonstrate that counsel’s performance was

deficient. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that

counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed

the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance. Id. The defendant claiming ineffective assistance of counsel 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.

Second, the petitioner must show that the deficient performance prejudiced the

defense, which requires a demonstration that counsel’s errors were so serious as to deprive

the petitioner of a fair trial. Conley, supra. This requires the petitioner to show that there

is a reasonable probability that the fact-finder’s decision would have been different absent

counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the trial. Id.

Unless a petitioner makes both Strickland showings, it cannot be said that the

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

10
unreliable. Id. We also recognize that “there 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.” Anderson v. State, 2011 Ark. 488, at 3–4, 385 S.W.3d 783,

787 (quoting Strickland, 466 U.S. at 697).

IV. Conflict of Interest

First, appellant argues that he is entitled to relief because trial counsel had a conflict

of interest that was not remedied by a valid waiver. Appellant more specifically argues, as

he did before the circuit court, that Mr. Barrett’s romantic relationship with the prosecuting

attorney created a conflict of interest that was imputed to him. He further argues that the

conflict of interest could only be waived through a written waiver, which was not obtained

in this case. Moreover, appellant contends that he is entitled to relief because he suffered

prejudice as Mr. Tyler failed to effectively represent him as evidenced by the other errors

outlined in appellant’s petition for postconviction relief. The circuit court denied appellant

relief on this ground, and we agree.

Rule 1.7 of the Arkansas Rules of Professional Conduct (2019) states the following:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if
the representation involves a concurrent conflict of interest. A concurrent conflict
of interest exists if:

....

(2) there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer’s responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer,

(b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:

11
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;

(2) the representation is not prohibited by law:

(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing[.]

Rule 1.10(a) of the Arkansas Rules of Professional Conduct further provides,

While lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so by
Rules 1.7, 1.9, or 3.7, unless the prohibition is based on a personal interest of the prohibited
lawyer and does not present a significant risk of materially limiting the representation of the
client by the remaining lawyers in the firm.

(Emphasis added.)

Mr. Tyler and Mr. Barrett practiced in the same law firm. Appellant argues that

Mr. Barrett had a conflict of interest pursuant to Rule 1.7(a)(2) based on a personal interest

that prohibited him from representing appellant. He further argues that because Mr. Tyler

and Mr. Barrett were in the same law firm, Mr. Barrett’s conflict of interest was imputed to

Mr. Tyler because it presented a significant risk of materially limiting the representation of

appellant. However, Mr. Tyler specifically testified at the Rule 37 hearing that he did not

feel that his law partner’s relationship with Ms. Black gave him either a favorable or an

unfavorable edge. Mr. Tyler further testified that he did not think Mr. Barrett’s personal

interest with Ms. Black limited his (Mr. Tyler’s) representation of appellant, and Mr. Barrett

was not involved in appellant’s defense in any manner. The circuit court listened to

Mr. Tyler’s testimony and reviewed the arguments of appellant’s counsel; however, it was

not convinced that Mr. Tyler had a conflict of interest under Rule 1.10(a). Having carefully
12
reviewed the record, we see no clear error in the circuit court’s finding and affirm on this

point.

V. Failure to Object to Melanie Halbrook’s Testimony

Appellant additionally argues that he is entitled to relief because trial counsel was

ineffective by his failure to object to inadmissible testimony from Melanie Halbrook of the

CAC. Under this point, appellant lists several complaints as to why Mr. Tyler was

ineffective. He complains that Mr. Tyler should not have stipulated to Ms. Halbrook’s

expertise or allowed the CAC interview to be played for the jury without objection. He

additionally argues that Ms. Halbrook’s testimony “strayed far afield from explaining

interviewing techniques and into areas of psychology for which she had not even been

proposed as an expert.” Appellant quotes Ms. Halbrook’s testimony that “[b]ased on

[K.B.’s] statement and her body language, it’s consistent with sexual abuse” and argues that

the elicitation of Ms. Halbrook’s opinion of K.B.’s truthfulness is sufficient grounds to vacate

the convictions. Further, appellant contends that Mr. Tyler was ineffective when he failed

to challenge the statistics that Ms. Halbrook posited.

Mr. Tyler testified at the Rule 37 hearing that he made a decision to stipulate to

Ms. Halbrook’s expertise because he wanted to prevent Ms. Halbrook from “bedazzling”

the jury and spending thirty minutes discussing her qualifications. He based his decision on

his past experiences in other trials in which she was a witness and after a review of her

resume. He further testified that he and appellant entered into a stipulation agreement with

the State to allow both videos to be admitted and played without objection because he felt

it was critical to ensure that the recantation video was played for the jury in its entirety. As

13
for Ms. Halbrook’s specific testimony, our courts have expressly held that expert witnesses

may testify generally about forensic interviews and recantation. Harper v. State, 2019 Ark.

App. 163, 573 S.W.3d 596. According to Mr. Tyler, he thought Ms. Halbrook’s testimony

stayed within these parameters and was admissible. However, even if Ms. Halbrook’s

testimony “strayed far afield” as alleged, Mr. Tyler also testified at the Rule 37 hearing that

he made strategic decisions to not object to certain testimony so as to not draw more

attention to the unfavorable testimony. Instead, he cross-examined Ms. Halbrook regarding

the statistics she mentioned, and he attempted to cross-examine Ms. Halbrook regarding the

results of other trials in which she testified and offered her opinions. In fact, it was during

that exchange when Ms. Halbrook stated that K.B.’s statement and body language were

consistent with sexual abuse. Immediately after Ms. Halbrook’s statement, Mr. Tyler asked

her whether she was ever wrong about her opinion and asked her about another unrelated

case in which that defendant had been acquitted. Ultimately, the trial court ruled

Mr. Tyler’s questions regarding the unrelated case were improper.

The circuit court found that each of appellant’s arguments under this point fell within

the realm of trial strategy, and we agree. Matters of trial strategy and tactics, even if arguably

improvident, fall within the realm of counsel’s professional judgment and are not grounds

for finding ineffective assistance of counsel. Williams v. State, 2017 Ark. 123, 517 S.W.3d

397; Smith v. State, 2016 Ark. 417, 504 S.W.3d 595. Even if counsel’s tactical choices had

been different with the benefit of hindsight, the fact that the strategy was unsuccessful does

not render counsel’s assistance ineffective. Williams, supra. Moreover, our supreme court

has held that the extent to which a witness is questioned, the specific manner of questioning,

14
and the tactical considerations attending those issues do not warrant relief under Rule 37.

Lemaster v. State, 2015 Ark. 167, 459 S.W.3d 802. As such, we cannot say that the circuit

court’s denial of relief on this point is clearly erroneous, and we affirm.

VI. Failure to Object to Testimony Quoting Accuser
or to Seek a Limiting Instruction

Next, appellant argues that he is entitled to relief because trial counsel was ineffective

by his failure to object to testimony of witnesses quoting the accuser and not seeking an

instruction that their testimony was not being admitted for the truth of the matter asserted.

More specifically, appellant contends that trial counsel was ineffective for failing to object

to the State’s eliciting inadmissible hearsay testimony from D.H. and Ky.B. regarding K.B.’s

statements to them that appellant had inappropriately touched her. Appellant further

contends that he was prejudiced because their testimony was used to bolster K.B.’s

testimony.

The circuit court disagreed and made the following relevant findings:

The defendant complains that counsel was ineffective for failing to object to
testimony offered by two individuals, [Ky.B.] and [D.H.], regarding the victim’s
disclosure of abuse. The first of those, [Ky.B.], is the older sister of the victim, [K.B.].
At the time of trial, [Ky.B.] was 18 years old, [K.B.] was 16. [Ky.B.] testified that
when she was 13 and [K.B.] was 10 or 11, she disclosed that the defendant “came
into her room one night and started touching her like girl parts down there.” When
asked about her emotional state at the time she made the disclosure, [Ky.B.] testified
“she was like hysterically crying, like bawling her eyes out.”

The second witness to testify regarding [K.B.’s] disclosure was [D.H.]. She
testified that she and [K.B.] attended a church event called Turning Point weekend
in 2016. During the weekend, in the presence of eight or nine girls, [K.B.] shared
that when she was ten years old, her former step father touch her. When describing
her emotional state, [D.H.] testified “She was very weak in her like emotional state.
She cried a little bit and she kind of hung her head, not because she was like—not
because she was avoiding people but because it was hard for her to look up and talk

15
about it because she was kind of—it was an awkward topic.” She also testified that
she cried.

Ark. R. Evid. 803(2) states that “a statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the
event or condition” are excluded by the hearsay rule. The admissibility of an excited
utterance is not to be measured by any precise number of minutes, hours, or days,
but required that the declarant is still under the stress and excitement caused by the
traumatic occurrence. Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988).
It is clear by her emotional state at the times of her two disclosures, at age 10 and age
15, that [K.B.] was under the stress of excitement caused by the abuse at the hands
of her step father. As such, those disclosures were exceptions to hearsay as an excited
utterance under Ark. R. Evid. 803(2). Further, knowing that those statements were
exceptions to the hearsay rule, Mr. Tyler made a strategic trial decision not to object
so as not to draw attention to the statements and clue the jury that they were
statements he felt were contrary to his case and the defendant’s innocence.

We agree with the circuit court that appellant is not entitled to relief under this point.

Even if we were to assume that the statements would not have been admissible under the

excited-utterance exception, we are still left with Mr. Tyler’s testimony at the Rule 37

hearing that he made strategic decisions throughout the trial to not object to some

unfavorable testimony because he did not want to draw attention to it and alert the jury to

statements that he felt were contrary to appellant’s innocence. As we already mentioned,

matters of trial strategy and tactics, even if arguably improvident, fall within the realm of

counsel’s professional judgment and are not grounds for finding ineffective assistance of

counsel. Williams, 2017 Ark. 123, 517 S.W.3d 397; Smith, 2016 Ark. 417, 504 S.W.3d 595.

Even if counsel’s tactical choices had been different with the benefit of hindsight, the fact

that the strategy was unsuccessful does not render counsel’s assistance ineffective. Williams,

supra. As such, appellant has failed to demonstrate that trial counsel’s performance was

deficient.

16
Moreover, even if we were to assume trial counsel’s performance was deficient, based

on the record before us, appellant has failed to show that there is a reasonable probability

that the fact-finder’s decision would have been different absent counsel’s alleged errors. We

consider a claim of ineffective assistance of counsel through the perspective of the totality

of the evidence put before the jury. Burnside v. State, 2017 Ark. App. 691, 537 S.W.3d 796.

K.B. had testified in detail regarding the incidents she had told Ky.B. and D.H. about. Even

Mr. Tyler commented at the Rule 37 hearing that K.B. came across as credible throughout

her testimony. On the other hand, Mr. Tyler did not think appellant’s behavior and

demeanor on the stand helped his defense. He stated that appellant appeared very lethargic

and seemed as though he was under the influence of drugs or alcohol. At one point, he

thought appellant was going to fall asleep. In short, appellant has failed to show how keeping

out K.B.’s statements to Ky.B. and D.H. that appellant had inappropriately touched her

would have resulted in a different trial outcome. See Burnside, supra. As such, we cannot

say that the circuit court was clearly erroneous in denying relief and affirm on this point.

VII. Failure to Object to Improper Impeachment of a Defense Witness

Next, appellant argues that he is entitled to relief because trial counsel was ineffective

for failure to object to improper impeachment of a defense witness. Under this argument,

appellant argues that Mr. Tyler should have objected when the State cross-examined

Mr. Peek and questioned whether Mr. Peek knew that attorneys are mandated reporters.

Mr. Peek responded that he was not aware of that statute and did not know that he was a

mandated reporter. Appellant argues that because attorneys are not mandated reporters

17
under Arkansas Code Annotated section 12-18-402 (Supp. 2019), Mr. Tyler should have

corrected the State’s mischaracterization of Mr. Peek’s lack of knowledge of the law.

At the Rule 37 hearing, Mr. Tyler testified that he thought he did object. However,

after a review of the record, he acknowledged that he did not. That said, Mr. Tyler also

stated in his affidavit attached to the State’s response to appellant’s postconviction motion

that “Mr. Peek was being impeached long before the incorrect assertion that he was a

mandated reporter of allegations of abuse.” The circuit court agreed and stated in its order

that “[i]t cannot be said that these three questions and three answers from a total of 13 pages

of direct testimony and cross examination would have resulted in a different outcome had

Mr. Tyler objected and the testimony stricken.” Therefore, even if Mr. Tyler was deficient,

appellant could not show that there is a reasonable probability that the fact-finder’s decision

would have been different absent counsel’s error on such a relatively minor point. Because

appellant cannot show prejudice from these alleged errors by trial counsel, we affirm on this

point.

VIII. Failure to Present Testimony Regarding Accuser’s Source
or Inspiration for Claiming Abuse

Finally, appellant argues that he is entitled to relief because trial counsel was

ineffective by his failure to present or seek to present testimony concerning the accuser’s

source or inspiration to make the original claim of abuse. He argues that Mr. Tyler failed

to ask K.B. whether another minor child, K.H., who lived in the home, had given her the

idea to falsely accuse appellant. Appellant further alleges that he was prejudiced by

Mr. Tyler’s failure to do so because he was “deprived of a plausible explanation about why

the accusation against [him] was made.” We disagree.
18
As part of appellant’s defense at trial, Mr. Tyler attempted to introduce testimony

regarding K.H., who had lived in the household with K.B. K.H. apparently had claimed

that she had been abused by another man in Texas. The defense’s theory was that K.H.

gave K.B. the idea to falsely accuse appellant. However, the trial court refused to allow this

testimony to be introduced through appellant’s direct examination. When Mr. Tyler

questioned appellant about K.H., the State objected and argued that Mr. Tyler needed to

ask those questions of K.B. instead of appellant. Additionally, the State argued that it was

irrelevant. The trial court sustained the objection and stated that it was irrelevant.

Mr. Tyler testified at the Rule 37 hearing that he had originally made the strategic

decision to introduce this testimony through appellant’s testimony rather than K.B.’s

because he felt certain that K.B. would deny it and that the trial court would rule it

inadmissible. He stated that even if the State objected, it would at least allow appellant to

“try to ramble off something real quick to put a bug in the jury’s ear.” Moreover, he stated

that even if the trial court had allowed him to ask K.B. those questions if he recalled K.B.,

he did not want to do so because K.B. came across as credible throughout her testimony.

Like the circuit court, we cannot say that Mr. Tyler’s performance was deficient. As

already mentioned above, matters of trial strategy and tactics, even if arguably improvident,

fall within the realm of counsel’s professional judgment and are not grounds for finding

ineffective assistance of counsel. Williams, supra. Moreover, regardless of whether Mr. Tyler

desired to recall K.B. to ask her about K.H., the trial court already ruled that the testimony

was inadmissible as irrelevant. As such, we cannot say that the circuit court’s denial of relief

on this point is clearly erroneous, and we affirm.

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IX. Conclusion

We find no clear error in the circuit court’s denying appellant Rule 37 relief, and we

affirm.

Affirmed.

WHITEAKER and MURPHY, JJ., agree.

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.

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