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SUPREME COURT OF ARKANSAS
No. CR-14-465
ROGER LEMASTER Opinion Delivered April 16, 2015
APPELLANT
APPEAL FROM THE LONOKE
V. COUNTY CIRCUIT COURT
[NO. CR2009-310]
STATE OF ARKANSAS
APPELLEE HONORABLE BARBARA ELMORE,
JUDGE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
Roger Lemaster appeals the denial of his petition for postconviction relief under
Arkansas Rule of Criminal Procedure 37. Lemaster alleges that he received ineffective
assistance of counsel because his attorney failed to play an audio recording, which
Lemaster contends would have changed the outcome of his trial. We find no error in the
circuit court’s ruling and affirm the denial of Lemaster’s petition.
I. Relevant Facts
Lemaster was convicted of raping his stepdaughter, and his conviction was affirmed
by the court of appeals. Lemaster v. State, 2011 Ark. App. 128. Lemaster then filed a pro se
petition for relief under Arkansas Rule of Criminal Procedure 37. Lemaster’s petition
alleged a number of grounds for relief, and the circuit court denied the petition without a
hearing. We affirmed the majority of the circuit court’s ruling, but reversed and remanded
for an evidentiary hearing regarding the issue that forms the basis for the present appeal,
i.e., whether Lemaster received ineffective assistance of counsel when his attorney failed to
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introduce an audio recording of a message left for Lemaster by his stepdaughter and her
mother, in which they seemingly taunt Lemaster about the rape charge and use a
homosexual epithet to refer to him. Lemaster v. State, 2013 Ark. 449.
During the hearing on remand, the recording was played and Lemaster’s trial
counsel testified about why the recording was omitted from trial. The recording revealed
the following conversation:
FEMALE 1: Roger, you’re a faggot. (laughter)
FEMALE 2: He’s not getting them back.
FEMALE 1: I know, but –
FEMALE 2: (inaudible) say anything.
FEMALE 1: I just wanted to tell you in case you do ever get it back. Maybe
they’ll give it to you when you’re in jail. Hope so. Have a good day.
Lemaster’s attorney then testified that he was aware of the recording before trial
and that he was prepared to use the recording depending on how the victim did on the
stand. He testified that he made a strategic choice not to introduce the recording, because
he felt that the victim’s testimony had made it abundantly clear that she hated Lemaster.
He explained that he considered the recording to be superfluous and that he believed he
had established the point that the victim despised Mr. Lemaster. He further explained that
the court had admonished him several times to move on from that point and that he was
concerned he would alienate the jury if he continued to belabor it.
The circuit court again denied Lemaster’s petition, holding that trial counsel’s
decision was a matter of strategy and trial tactics. Lemaster now appeals that ruling.
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II. Standard of Review
We do not reverse the grant or denial of postconviction relief unless the circuit
court’s findings are clearly erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. 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 conviction that
a mistake has been committed. Id.
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).
Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must
first show that counsel’s performance was deficient. Id. This requires a showing that
counsel made errors so serious that counsel deprived the petitioner of the counsel
guaranteed to the petitioner by the Sixth Amendment. Id. Second, the deficient
performance must have resulted in prejudice so pronounced as to have deprived the
petitioner a fair trial whose outcome cannot be relied on as just. Wainwright v. State, 307
Ark. 569, 823 S.W.2d 449 (1992). Both showings are necessary before it can be said that
the conviction resulted from a breakdown in the adversarial process that renders the result
unreliable. Id.
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance, and the petitioner 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. Even if counsel’s conduct is shown to be professionally
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unreasonable, the judgment will stand unless the petitioner demonstrates that the error had
a prejudicial effect on the actual outcome of the proceeding. Henington v. State, 2012 Ark.
181, 403 S.W.3d 55. 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, or in other words, that the decision reached would have been different absent the
errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the
outcome of the trial. Id. In making this determination, the totality of the evidence before
the fact-finder must be considered. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).
III. Analysis
Lemaster argues that the case against him turned on the victim’s credibility and that
the recording was a valuable tool that could have been used to impeach that credibility.
Lemaster further argues that the recording illustrates the victim and her mother laughing
and ridiculing Lemaster about the charges against him and implying that he is a
homosexual, thereby undermining the female victim’s claim that Lemaster had raped her.
According to Lemaster, it was absolutely critical that defense counsel do anything and
everything to bring the victim’s credibility into question so as to create reasonable doubt
among the jury and that failure to play the recording and cross-examine the victim about
her comments on the recording amounted to ineffective assistance.
We cannot agree with Lemaster’s arguments. 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. Bryant v. State, 2013 Ark. 305,
at 7, 429 S.W.3d 193, 199 (per curiam). Furthermore, counsel is allowed great leeway in
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making strategic and tactical decisions.” Id. at 5, 429 S.W.3d at 198; see also Deason v.
State, 263 Ark. 56, 61, 562 S.W.2d 79, 82 (1978) (“[D]efense counsel has a broad latitude
in exercising his judgment in his client’s behalf.”).
This court has held that the extent to which a witness is questioned is a matter of
trial tactics and does not justify Rule 37 relief. Hicks v. State, 289 Ark. 83, 86, 709 S.W.2d
87, 89 (1986). In McDaniel v. State, the petitioner argued that his trial attorney “lacked the
customary skill of a competent attorney in the area of witness examination” and provided
examples of questions that should have been asked, which would have resulted in the
presentation of favorable evidence. 282 Ark. 170, 173, 666 S.W.2d 400, 402–03 (1984).
We explained that matters of trial strategy are “open to debate by experienced counsel and
are not grounds for relief under our postconviction rule.” Id. at 172, 666 S.W.2d at 401.
We then held that questioning of witnesses is a matter of trial tactics and strategy and that
Rule 37 does not provide a forum for dissecting counsel’s examination of a witness. Id. at
173, 666 S.W.2d at 403.
The result was the same in Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001).
Nelson claimed that his attorney should have contradicted the witness who testified against
him by producing evidence that it had rained on the night in question after the witness
testified that it had not rained. Id. at 414, 39 S.W.3d at 796. Nelson argued that the
contradiction would have detracted from the witness’s credibility, making it less likely that
the jury would believe the witness’s testimony that Nelson had committed a crime. Id.
We rejected this argument, explaining that “[t]he manner of questioning a witness is by
and large a very subjective issue about which different attorneys could have many different
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approaches,” and tactical decisions are not grounds for postconviction relief. Id. We
further explained that it was the jury’s job to determine the credibility of the witnesses and
that there was no indication that the jury would have resolved the credibility
determination in Nelson’s favor, even if the witness’s testimony had been contradicted.
Id.; see also Wainwright, 307 Ark. at 579, 823 S.W.2d at 454 (holding that mere allegations
that the jury would have been swayed by additional testimony are conclusory).
Lemaster’s case is no different than those just discussed. The record reveals that
Lemaster’s attorney thoroughly cross-examined the victim and even got her to admit that
she had lied on several occasions in her previous statements. Lemaster’s attorney, however,
made a reasonable professional judgment that continued and prolonged attacks to the
young girl’s credibility would alienate the jury and result in a negative outcome for
Lemaster. Lemaster now second-guesses counsel’s strategic decision by arguing that
counsel should have used the recording in addition to the cross-examination about the
victim’s inconsistent statements to further impeach her credibility. As our cases clearly
demonstrate, the extent to which a witness is questioned, the specific manner of
questioning, and the tactical considerations attending those issues do not warrant relief
under Rule 37. Accordingly, the circuit court’s denial of Lemaster’s petition was not
clearly erroneous.
Affirmed.
Craig Lambert, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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