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                 SUPREME COURT OF ARKANSAS
                                           No.   CR-13-223

ROBERT LEANDER STIGGERS                              Opinion Delivered   April 24, 2014
                   APPELLANT
                                                     APPEAL FROM THE PULASKI
V.                                                   COUNTY CIRCUIT COURT, FIFTH
                                                     DIVISION
                                                     [NO. CR2003-793]
STATE OF ARKANSAS
                                  APPELLEE           HONORABLE WENDELL LEE
                                                     GRIFFEN, JUDGE

                                                     AFFIRMED.


                             KAREN R. BAKER, Associate Justice

       On June 16, 2005, a Pulaski County jury convicted appellant, Robert Leander

Stiggers, of first-degree murder and first-degree battery. He was sentenced to forty years

imprisonment for the murder conviction and twenty years imprisonment for the battery

conviction with the sentences to run consecutively. Stiggers’s convictions and sentences

were affirmed in Stiggers v. State, CACR 05-1399 (Ark. App. May 31, 2006) (unpublished).

       Stiggers’s convictions and sentences stem from a January 10, 2003 shooting that

occurred in the Hollingsworth Courts neighborhood in Little Rock. Raynaud Muldrew and

Wardell Newsome were both shot. Muldrew was found in a vehicle, and Newsome was

lying near it. Muldrew died as a result of his injuries. Despite being shot in the back of the

head, Newsome survived his injuries. Immediately after the shooting and at trial, Newsome

identified Stiggers as the shooter. The relevant facts, as recounted by the court of appeals in

Stiggers’s direct appeal are as follows:
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       Sergeant Sidney Allen . . . discovered Wardell Newsome lying on the ground near the
       vehicle. He had been shot four times in the right shoulder and once behind his right
       ear. While at the scene, Newsome told Sgt. Allen that [Stiggers] was the person who
       shot him.

               . . . Detectives Eric Knowles and Keith Cockrell questioned Newsome about
       the incident while he was undergoing treatment at UAMS. Newsome explained that
       he had borrowed a friend’s car earlier in the evening and picked up Muldrew. He told
       the detectives that Muldrew had purchased marijuana and then the two of them went
       to a liquor store to purchase cigarettes and a couple of Swisher cigars. While there,
       they saw [Stiggers] who asked for a ride to Hollingsworth Courts. [Stiggers] was
       riding directly behind Newsome in the back seat of the car, and during the ride,
       [Stiggers] apparently became aggressive and started yelling. Newsome stated that, at
       one point, he turned around and noticed that [Stiggers] was holding a small handgun.
       While following [Stiggers’s] directions into the Hollingsworth Courts neighborhood,
       Newsome testified that [Stiggers] told them to “say goodnight” and “say your
       prayers” because he was going to kill them. Newsome indicated that he did not think
       [Stiggers] was serious because they had known each other and been friends for years.

               Newsome explained that, as he pulled into an alley in the residential complex
       at [Stiggers]’s request, [Stiggers] shot him behind the right ear. He pointed out that
       he lost consciousness immediately, and when he regained consciousness, he noticed
       Muldrew slumped over in the front passenger seat. Newsome explained that he then
       crawled out of the vehicle to look for help, and a neighbor called the police.
       Newsome recognized [Stiggers]’s picture in a group of photos presented by Detectives
       Knowles and Cockrell, and he again identified him as the shooter.

Stiggers, CACR 05-1399, slip op. at 1.

       After the court of appeals issued its mandate, on August 20, 2006, Stiggers filed his

initial Rule 37.1 petition in Pulaski County Circuit Court. After several continuances due

to issues related to Stiggers’s representation, on July 2, 2012, Stiggers filed an amended

petition and the circuit court held a hearing that same day. On November 16, 2012, the

circuit court denied Stiggers’s petition. Stiggers now brings this appeal and presents one issue

for review: the circuit court erred by denying Stiggers’s Rule 37.1 petition because Stiggers

received unconstitutional ineffective assistance of counsel when his counsel failed to interview

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and call certain witnesses.

       “On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this

court will not reverse the circuit court’s decision granting or denying post-conviction relief

unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. 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., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1–2, ___

S.W.3d ___, ___.

       Our standard of review 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). Claims of ineffective assistance of counsel are reviewed

under the following standard:

       A convicted defendant’s claim that counsel’s assistance was so defective as to require
       reversal of a conviction has two components. First, the defendant must show that
       counsel’s performance was deficient. This requires showing that counsel made errors
       so serious that counsel was not functioning as the “counsel” guaranteed the defendant
       by the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s errors were
       so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
       Unless a defendant makes both showings, it cannot be said that the conviction resulted
       from a breakdown in the adversary process that renders the result unreliable.

Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S.
at 687).

       The reviewing court must indulge in a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance. Id. The petitioner claiming

ineffective assistance of counsel has the burden of overcoming that presumption by identifying

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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. See id. Therefore,

Stiggers must first show that counsel’s performance fell below an objective standard of

reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id.

Stiggers must satisfy both prongs of the test, and it is not necessary to determine whether

counsel was deficient if Stiggers fails to demonstrate prejudice as to an alleged error. Abernathy

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

       Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision

of trial counsel to call a witness, such matters are generally trial strategy and outside the

purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective

assistance of counsel concerning the failure to call witnesses, 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. Moten v. State, 2013 Ark. 503 (per curiam);

Stevenson v. State, 2013 Ark. 302 (per curiam) (citing Hogan v. State, 2013 Ark. 223 (per

curiam)). In order to demonstrate prejudice, the petitioner is required to establish that there

was a reasonable probability that, had counsel performed further investigation and presented

the witness, the outcome of the trial would have been different. See Carter v. State, 2010 Ark.

231, 364 S.W.3d 46 (per curiam). Trial counsel must use his or her best judgment to

determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic

decisions must still be supported by reasonable professional judgment. Id. Finally, “[w]hen

assessing an attorney’s decision not to call a particular witness, it must be taken into account


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that the decision is largely a matter of professional judgment which experienced advocates

could endlessly debate, and the fact that there was a witness or witnesses that could have

offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Huls

v. State, [301 Ark. 572, 785 S.W.2d 467 (1990)]; Dumond v. State, 294 Ark. 379, 743 S.W.2d

779 (1988).” Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996).

       We now turn to the sole issue raised by Stiggers. Stiggers’s allegation of ineffective

assistance of counsel is that his trial counsel failed to interview four potential witnesses in

preparation for Stiggers’s defense or call them as a witness at trial: Eddie Pride, Temika

Donley, Kristopher Johnson, and Damika Mitchell. Stiggers contends that these witnesses

would have supported his argument that another person, a person named “Jason,”1 was the

shooter. He further asserts that the witnesses’ testimony was admissible under hearsay

exceptions but that his trial counsel did not interview or call the witnesses at trial to determine

what exceptions applied. Stiggers asserts that the witnesses’s testimony would have impeached

the State’s witness. Finally, Stiggers asserts that he was prejudiced by his defense counsel’s

failure to call these witnesses.

       Stiggers’s theory at trial was as follows: while he was purchasing drugs from the two

victims, two unnamed men came up to the vehicle and shot the victims. Stiggers testified at

trial that the two men approached the vehicle and let Stiggers run away prior to the shooting,

and that as he was running away he heard the gunshots. In sum, Stiggers’s theory of the case

was that someone else was the shooter.


       1
        The record does not reflect Jason’s last name.
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       Prior to trial, on April 8, 2005, the circuit court conducted a pretrial hearing. The State

made a Zinger motion to prohibit Stiggers from eliciting testimony from witnesses regarding

“Jason” because the testimony was inadmissible hearsay.2 The circuit court granted the

motion. Stiggers acquiesced to the circuit court’s ruling and agreed that the “Jason” testimony

was hearsay, but explained that there could be a chain of events in the testimony where

Stiggers could elicit such testimony. Stiggers complied with the circuit court’s ruling but

reserved the right to approach the bench if such circumstances arose. At trial, defense counsel

did not call Pride, Mitchell, Donley, or Johnson as witnesses.

       In his petition, Stiggers asserted that counsel was ineffective for not interviewing or

calling the four witnesses, three of which he alleges would have provided “Jason” testimony.


       2
        A Zinger motion refers to Zinger v. State, 313 Ark. 70, 75–76, 852 S.W.2d 320, 323
(1993), where we held that the standard for admissibility of evidence tending to incriminate
other persons in the crime being charged is as follows:

       A defendant may introduce evidence tending to show that someone other than the
       defendant committed the crime charged, but such evidence is inadmissible unless it
       points directly to the guilt of the third party. Evidence which does no more than create
       an inference or conjecture as to another’s guilt is inadmissible.

       [T]he rule does not require that any evidence, however remote, must be admitted to
       show a third party’s possible culpability . . . . [E]vidence of mere motive or
       opportunity to commit the crime in another person, without more, will not suffice to
       raise a reasonable doubt about a defendant’s guilt: there must be direct or
       circumstantial evidence linking the third person to the actual perpetration of the crime.

Id. (quoting State v. Wilson, 367 S.E.2d 589 (N.C. 1988) and People v. Kaurish, 802 P.2d 278
(Cal. 1990)).




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At the postconviction hearing, Stiggers introduced statements from two of the “Jason”

witnesses: Donley and Johnson. The third “Jason” witness, Pride, also provided a statement;

however, the circuit court did not accept Pride’s statement because Pride was not known at

trial, there was no statement in the case file, and Pride had not testified at a previous hearing.

Stiggers did not introduce a statement from Mitchell. At the Rule 37 hearing, defense counsel

testified that he did not recall interviewing the four witnesses and did not call them as

witnesses.

        Stiggers first asserts that Eddie Pride would have testified that Newsome told Pride that

Stiggers was not the shooter but that it was “Jason.” Second, Stiggers asserts that Donley,

Muldrew’s girlfriend, would have testified that Muldrew told her that “Jason” had threatened

to kill Muldrew, Muldrew’s child, and the child’s mother. Third, Stiggers asserts that Johnson

would have testified that “Jason” had threatened to kill Muldrew. He contends that Johnson

would have testified that he overheard Muldrew on the phone with “Jason” four or five days

before the shooting, and heard “Jason” discussing a “bad drug deal” or “theft of drugs”

involving “Jason’s” drugs, and threatening to kill Muldrew and others. Fourth, Stiggers

contends that Mitchell would have testified that she saw both victims prior to the shooting and

that the vehicle’s lights were off, which was contrary to the State’s witness’s testimony.

       First, with regard to Pride, although Stiggers testified that he informed his counsel about

Pride, defense counsel testified that prior to trial he had likely heard Pride’s name, but did not

recall knowledge of Pride’s allegations that Newsome had told Pride that Stiggers was not the

shooter. Defense counsel further testified that,


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       that certainly would have been something . . . very important. . . . I don’t recall that
       ever being told to me. If I had been given that information, that would certainly would
       have been the diligent thing to do, to look for Mr. Pride. I would say if I had recognized
       that there was possibly a prior statement out there saying that someone else had done it
       coming from a living witness, I would have absolutely asked him about it.

       With regard to Donley and Johnson, defense counsel testified that after reviewing

Donley and Johnson’s police statements in the file, he considered both witnesses’s testimony to

be in the group of people he categorized as Zinger witnesses and concluded that their testimony

would have been inadmissible hearsay. Defense counsel said “My analysis was that it didn’t

come in because of Zinger and there were hearsay issues obviously, but beyond that, even

beyond the hearsay, the Zinger issue kept it out.”

       Finally, with regard to Mitchell’s testimony, defense counsel testified that although he

could “see there was some argument” that Mitchell’s testimony regarding the lights in the car

being off at the time of the shooting would have helped Stiggers, he did not recall interviewing

Mitchell or making a strategic decision to not interview her. Defense counsel testified that he

cross-examined every witness that came near the vehicle regarding the facets of the vehicle,

including the surviving witness, Newsome. Defense counsel further testified that there “was

a huge amount of discrepancies” in the testimony from witnesses regarding whether the lights

were on or off and that he cross-examined every witness.

       Here, Stiggers fails to substantiate his claim that counsel was ineffective based on the

failure to interview or call the “Jason” witnesses. Stiggers has failed to meet his burden under

the first prong of Strickland because he has not demonstrated that his counsel’s performance fell

below an objective standard of reasonableness. Additionally, Stiggers has failed to demonstrate


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that the “Jason” testimony would have been admissible hearsay and makes conclusory

allegations that it may have fit under an exception to hearsay. Further, the record supports that

defense counsel’s decision to not interview or call the witnesses was based on reasonable

professional judgment. The testimony was inadmissible pursuant to Zinger, as it did no more

than create an inference or conjecture as to “Jason’s” involvement, the testimony was hearsay,

and Stiggers failed to demonstrate that it was admissible. Nor has Stiggers met the second prong

under Strickland because he has failed to demonstrate that he was prejudiced by defense counsel’s

failure to interview the witnesses. Stiggers must do more than allege prejudice; he must

demonstrate it with facts. Walton v. State, 2013 Ark. 254 (per curiam). Here, Stiggers provides

no evidence that he suffered any prejudice as a result of counsel’s failure to call the “Jason”

witnesses. We find no merit in Stiggers’s claim regarding Pride, Donley, or Johnson.

       Finally, with regard to Mitchell’s testimony, as discussed above, our law requires that

Stiggers name the witness, provide a summary of the testimony, and establish that the testimony

would have been admissible into evidence. Moten v. State, supra. 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. Woody v. State, 2009 Ark. 413 (per curiam). In order to demonstrate prejudice, Stiggers

must establish that there was a reasonable probability that, had counsel performed further

investigation and presented the witness, the outcome of the trial would have been different. Id.

       While Stiggers claims that Mitchell’s testimony regarding the vehicle would have

discredited Newsome’s testimony, defense counsel testified that he cross-examined every


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witness that came into contact with the vehicle. Based on the record, we are not persuaded that

had defense counsel interviewed and called Mitchell as a witness regarding the lights of the car,

the outcome of the trial would have been different.

       Stiggers simply did not provide any support for his conclusory claims that counsel was

ineffective and made no showing that counsel committed any specific error that prejudiced the

defense. See Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996) (“[T]he fact that

there was a witness or witnesses that could have offered testimony beneficial to the defense is

not in itself proof of counsel’s ineffectiveness.”). In reviewing the record before us, we

conclude that Stiggers has not met his burden.

       Based on the discussion above, we do not find that the circuit court erred.

       Affirmed.

       Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.

       Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.




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