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A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith, Ark.

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This court will not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Jones, Ark. Dillard, Ark. With this standard in mind, we review the four allegations raised on appeal. Noel argues that trial counsel was ineffective for failing to present the testimony of alibi witnesses.

The trial record reflects that an in-camera hearing was held, wherein defense counsel reported that Noel had given him the names of several witnesses who would provide an alibi for him. Based on this knowledge, counsel advised that he would not present the false testimony, as it would violate the Model Rules of Professional Conduct.

During the postconviction hearing, Noel failed to call these alleged alibi witnesses to the stand. Moreover, he made no attempt to proffer the substance of the testimony that they would have provided at trial. This alone is sufficient reason to affirm. This court does not grant postconviction relief for ineffective assistance of counsel where the petitioner has failed to show what the omitted testimony was and how it could have changed the outcome. Pyle v. Furthermore, the Supreme Court has recognized that as a matter of law, counsel is not ineffective for failing to present false testimony.

In Nix v.

Whiteside, U. He told his attorney that although he had not actually seen a gun in the victim's hand, he was convinced that the victim had a gun. Shortly before the trial, however, the defendant told his attorney that he had seen something metallic in the victim's hand. Defense counsel warned that if he testified falsely, it would be counsel's duty to advise the court that he felt the defendant was committing perjury, and that counsel would seek to withdraw from his case.

At his trial, the defendant testified without making reference to seeing anything in the victim's hand, and he was convicted. Following his conviction, he claimed that he had received ineffective assistance of counsel. The Court disagreed, holding that counsel's conduct did not violate the reasonable professional standards contemplated in Strickland v.

Washington, U. In reaching its decision, the Court discussed the need to balance the Sixth Amendment right to effective counsel with the ethical obligations attorneys have as officers of the court. The Court thus concluded that because there was no breach of any recognized professional duty, there was no deprivation of the right to effective assistance of counsel under Strickland. The only difference between this case and Nix is that, here, the false testimony was not being supplied by the defendant, but by his sympathizers.

Rule 3. Noel contends that he was prejudiced when the jury was informed, during his direct examination, that he was testifying against the advice of counsel. The record reflects the following exchange between Noel and his trial counsel:. Now, Riley, you're taking the stand here because you want to tell the jury your story.

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Is that correct? Noel urges that this was a comment on his credibility, or lack thereof, as a witness. He contends that by informing the jury that he was testifying against the advice of counsel, the jury could have concluded that even his own attorney did not believe he was telling the truth. The State argues that this was a calculated trial tactic aimed at showing the jury that Noel was so insistent upon his innocence that he would risk taking the stand, where his prior felony convictions would be revealed and he would likely undergo an exhausting cross-examination.

Trial counsel testified that he chose to reveal this information to show the jury how strongly Noel believed in his innocence. This strategy was further pursued by counsel in closing argument, wherein he stated:. And I don't fault them at all. They have lost loved ones, and we feel sorry for them. Log In Sign Up. Planning a trip to Phoenix?

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Defense counsel warned that if he testified falsely, it would be counsel's duty to advise the court that he felt the defendant was committing perjury, and that counsel would seek to withdraw from his case. At his trial, the defendant testified without making reference to seeing anything in the victim's hand, and he was convicted. Following his conviction, he claimed that he had received ineffective assistance of counsel. The Court disagreed, holding that counsel's conduct did not violate the reasonable professional standards contemplated in Strickland v.

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Washington, U. In reaching its decision, the Court discussed the need to balance the Sixth Amendment right to effective counsel with the ethical obligations attorneys have as officers of the court. The Court thus concluded that because there was no breach of any recognized professional duty, there was no deprivation of the right to effective assistance of counsel under Strickland. The only difference between this case and Nix is that, here, the false testimony was not being supplied by the defendant, but by his sympathizers. Rule 3. Noel contends that he was prejudiced when the jury was informed, during his direct examination, that he was testifying against the advice of counsel.

The record reflects the following exchange between Noel and his trial counsel:. Now, Riley, you're taking the stand here because you want to tell the jury your story. Is that correct? Noel urges that this was a comment on his credibility, or lack thereof, as a witness. He contends that by informing the jury that he was testifying against the advice of counsel, the jury could have concluded that even his own attorney did not believe he was telling the truth.

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The State argues that this was a calculated trial tactic aimed at showing the jury that Noel was so insistent upon his innocence that he would risk taking the stand, where his prior felony convictions would be revealed and he would likely undergo an exhausting cross-examination. Trial counsel testified that he chose to reveal this information to show the jury how strongly Noel believed in his innocence. This strategy was further pursued by counsel in closing argument, wherein he stated:. And I don't fault them at all. They have lost loved ones, and we feel sorry for them.

It's a very tragic event. The third person is Curtis Cochran, and, you know, an admitted liar.

https://pruchoslipimi.gq Ladies and gentlemen, you have the Defendant, who took the stand in his own behalf, against the advice of his own attorney, and told you in his own way that he was not involved on June 4th, He told you his own story. He told you without any kind of deal from the State, no lighter sentence.

The trial court found that counsel was attempting to impress the jury with Noel's sincerity in wanting to tell his side of the story, and that this was a matter of trial strategy. We cannot say that this ruling was clearly erroneous.

Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for a finding of ineffective assistance of counsel. Thus, even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Fretwell v. Noel argues that trial counsel was ineffective for failing to call several witnesses who would have testified as to his demeanor and activities during the days prior to the murders.

The substance of their testimony was that Noel did not act like a person who was planning to murder these children in retaliation for his brother's death. While he acknowledges that the decision whether to call particular witnesses is a matter of trial strategy outside the purview of Rule 37, Noel argues that counsel's failure on this point coupled with the comment about his decision to testify against counsel's advice, cumulates into extreme prejudice and requires reversal under Strickland, U. Inasmuch as Noel is making a cumulative-error argument, we do not address it because this court does not recognize cumulative error in allegations of ineffective assistance of counsel.

See Huddleston v. In any event, Noel has failed to show that counsel's failure to call these witnesses was error.

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