{ "id": 226509, "name": "Willie GREEN v. STATE of Arkansas", "name_abbreviation": "Green v. State", "decision_date": "2000-12-14", "docket_number": "CR 99-323", "first_page": "244", "last_page": "254", "citations": [ { "type": "official", "cite": "343 Ark. 244" }, { "type": "parallel", "cite": "33 S.W.3d 485" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "293 S.C. 531", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2180477 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/sc/293/0531-01" ] }, { "cite": "222 Ark. 444", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652929 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/ark/222/0444-01" ] }, { "cite": "301 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885491 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0572-01" ] }, { "cite": "338 Ark. 375", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243567 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0375-01" ] }, { "cite": "271 Ark. 104", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756091 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0104-01" ] }, { "cite": "265 S.W. 974", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1924, "opinion_index": 0 }, { "cite": "166 Ark. 290", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1378539 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ark/166/0290-01" ] }, { "cite": "154 S.W. 215", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1913, "opinion_index": 0 }, { "cite": "107 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344020 ], "year": 1913, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ark/107/0158-01" ] }, { "cite": "255 Ark. 668", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723728 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "672" }, { "page": "672-673" } ], "opinion_index": 0, "case_paths": [ "/ark/255/0668-01" ] }, { "cite": "240 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727468 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/240/0466-01" ] }, { "cite": "217 Ark. 679", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723506 ], "weight": 6, "year": 1950, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/ark/217/0679-01" ] }, { "cite": "14 Am. St. Rep. 27", "category": "reporters:state", "reporter": "Am. St. Rep.", "year": 1889, "opinion_index": 0 }, { "cite": "10 S.W. 228", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1889, "opinion_index": 0 }, { "cite": "51 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721089 ], "year": 1889, "opinion_index": 0, "case_paths": [ "/ark/51/0147-01" ] }, { "cite": "173 S.W. 179", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1915, "opinion_index": 0 }, { "cite": "116 Ark. 482", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1532291 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/ark/116/0482-01" ] }, { "cite": "229 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702636 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/229/0249-01" ] }, { "cite": "239 Ark. 836", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730849 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/239/0836-01" ] }, { "cite": "257 Ark. 415", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720452 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/257/0415-01" ] }, { "cite": "301 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885530 ], "weight": 5, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0530-01" ] }, { "cite": "299 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888424 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0403-01" ] }, { "cite": "205 Ark. 780", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488307 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ark/205/0780-01" ] }, { "cite": "294 Ark. 160", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895782 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/294/0160-01" ] }, { "cite": "274 Ark. 29", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1754983 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0029-01" ] }, { "cite": "302 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884308 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0069-01" ] }, { "cite": "279 Ark. 4", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746988 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/279/0004-01" ] }, { "cite": "305 Ark. 338", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916800 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0338-01" ] }, { "cite": "314 Ark. 566", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912798 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0566-01" ] }, { "cite": "325 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369141 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0096-01" ] }, { "cite": "317 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443778 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0166-01" ] }, { "cite": "337 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240997 ], "weight": 4, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0105-01" ] }, { "cite": "44 Ark. 383", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893439 ], "year": 1884, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ark/44/0383-01" ] }, { "cite": "98 S.W. 674", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1905, "opinion_index": 0 }, { "cite": "81 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1530676 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/81/0440-01" ] }, { "cite": "129 S.W. 80", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1909, "opinion_index": 0 }, { "cite": "93 Ark. 168", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546832 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/ark/93/0168-01" ] }, { "cite": "234 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688462 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/234/0046-01" ] }, { "cite": "606 S.W.2d 154", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1709156 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0774-01" ] }, { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "330 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298638 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0458-01" ] }, { "cite": "341 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257815 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0387-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "342 Ark. 35", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342374 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0035-01" ] }, { "cite": "338 Ark. 571", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243559 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0571-01" ] }, { "cite": "340 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365234 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0001-01" ] }, { "cite": "341 Ark. 722", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257706 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0722-01" ] }, { "cite": "330 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298569 ], "weight": 7, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0442-01" ] } ], "analysis": { "cardinality": 951, "char_count": 17786, "ocr_confidence": 0.762, "pagerank": { "raw": 1.8454098469654908e-07, "percentile": 0.7227512105918145 }, "sha256": "8c28741ef401a593886e2fc0ff07a2463ae51019fd4b9a33c3f490fa3874e57b", "simhash": "1:4168dc247d6c43ba", "word_count": 3011 }, "last_updated": "2023-07-14T16:43:01.373813+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Willie GREEN v. STATE of Arkansas" ], "opinions": [ { "text": "Lavenski R. Smith, Justice.\nWillie Leon Green appeals the denial of his petition for postconviction relief under Ark. R. Crim. P. 37. A Pulaski County jury convicted Green of first-degree murder in the death of Little Rock Police Detective Joseph Fisher and for the attempted capital murder of Little Rock Police Detective Frederick Lee. Green was sentenced to consecutive terms of life imprisonment plus thirty years for the crimes. Green makes one argument on appeal. He argues that the trial court clearly erred when it did not find ineffective assistance of counsel based on his attorney\u2019s failure to object to a question about perjury by the trial judge to a defense witness.\nFacts\nOn February 7, 1995, police obtained a search warrant for Green\u2019s residence in furtherance of a narcotics investigation. The detectives arrived on the scene at approximately 7:55 p.m. According to police, they yelled in unison at the top of their voices, \u201cPolice, search warrant, police,\u2019\u2019and they then immediately broke open the door with the use of a battering ram. Upon entry, Green fired a pistol he kept on his person, killing Detective Fisher and seriously wounding Detective Lee. Green testified that he carried the pistol for protection due to a robbery one month previous. During that intrusion, robbers wearing ski masks broke through the door in a manner similar to that used by police. Green\u2019s girlfriend, Donna Finney, was present in the living room when the police entered. Finney thus became an important trial witness.\nAt Green\u2019s trial, Finney testified both as a state witness and on Green\u2019s behalf. On direct examination, the State questioned Finney regarding Green\u2019s drug involvement. In response, Finney denied that Green sold drugs out of the apartment. She acknowledged, however, that she had previously agreed with detectives during an interview that Green sold crack cocaine from the apartment. She explained the contradiction by asserting that her earlier statement was not true and that she was afraid at that time. Finney also acknowledged that she had told police that Green had communicated to her his fear of being raided by narcotics police but recanted that statement as well.\nThereafter, Green\u2019s counsel began to cross-examine Finney about her statement. However, following a prosecution objection as to scope, the court interposed and the following exchange took place:\nThe COURT: ...But Ms. Finney, are you aware of what perjury is?\nThe Witness: Huh-uh.\nThe COURT: Pegury is lying in an official proceeding, which this is. Not telling the truth. The consequences of that are that if you are convicted, you can be sent to the penitentiary from three to ten years and fined up to $10,000.\nYou are now under oath and you are sworn to tell the truth. Do you understand that?\nGreen\u2019s counsel did not object to the court\u2019s question and statement to Finney. Nor did he seek a mistrial. This court affirmed Finney\u2019s direct appeal holding that substantial evidence supported the jury\u2019s verdict and that his counsel failed to preserve the issue of the judge\u2019s comment by not making a contemporaneous objection. In the Rule 37 hearing, the attorney testified, \u201cIt just went by me.\u201d\nStandard of Review\nWhere the issue is ineffective assistance of counsel, the reviewing court must indulge in a strong presumption that counsel\u2019s conduct falls within the wide range of reasonable professional assistance. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel\u2019s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., 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 a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). This court will not reverse the denial of post-conviction relief unless the trial court\u2019s findings are clearly erroneous or clearly against the preponderance of the evidence. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).\nIneffective Assistance of Counsel\nThe oft-repeated criteria for assessing the effectiveness of counsel were first enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel he must show that counsel\u2019s representation fell below an objective standard of reasonableness and that but for counsel\u2019s errors the result of the trial would have been different. Id. We have adopted the rationale of Strickland and held that:\nTo prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel\u2019s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the petitioner by the Sixth Amendment. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel\u2019s errors were so serious as to deprive the petitioner of a fair trial.\nThomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997); Reynolds v. State, 341 Ark. 387, 18 S.W.3d 331 (2000).\nLaw of the Case\nGreen contends that we are now compelled to hold that the trial court\u2019s comment to Finney was error by the law-of-the-case doctrine. In our opinion on Green\u2019s direct appeal, this court stated, \u201cThere is no doubt that the trial court intimated that it found the testimony of Ms. Finney not to be believable.\u201d Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). This court in that opinion went on to discuss other prior cases involving impermissible comments on the evidence by the court. The court, however, then concluded the issue could not be reached, noting our consistent rejection of the plain error rule, and noting Green had not objected and none of the Wicks exceptions applied. (See Wicks v. State, 270 Ark. 781, 606 S.W.2d 154 (1980). In response, the State argues that the Green court\u2019s statement was obiter dicta that may be ignored by this court on this appeal on the Rule 37 petition. We agree with the State.\nThe law-of-the-case doctrine does dictate that a decision made in a prior appeal may not be revisited in a subsequent appeal. Mode v. State. 234 Ark. 46, 350 S.W.2d 675 (1961). We have long held that a decision in a prior appeal becomes the law of the case. Bowman v. State, 93 Ark. 168, 129 S.W. 80 (1909). This is true even if the decision was wrongly decided. Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674 (1905). The conclusion of the court in one opinion becomes the law of the case on subsequent proceedings on the same cause and the matter is res judicata. Perry v. Little Rock & Fort Smith Railway Cp., 44 Ark. 383, 395 (1884). The doctrine requires that matters decided in the first appeal be considered concluded. The doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue already decided from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. Carmargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999).\nCourts developed the doctrine to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994). The doctrine requires that matters decided in a prior appeal be considered concluded. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993). While a decision of the court will not be disturbed because it is law of the case under res judicata, the court is not bound by a conclusion stated as obiter dictum, even if couched in terms that infer the court reached a conclusion on a matter. This is so because obiter dictum is mere comment and not a decision of the court, and therefore not binding as the law of the case under res judicata. In an opinion, the court may sustain by comment an argument presented by obiter dictum. Peeples v. State, 305 Ark. 338, 808 S.W.2d 331 (1991). However, a comment on the evidence does not rise to a decision or holding by the court. Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983).\nWhere discussion or comment in an opinion is not necessary to the decision reached therein, the discussion or comment is an obiter dictum. Nashville Livestock Common v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990). In Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981), the court noted that even though the opinion stated, as obiter dictum, that upon retrial an instruction on first-degree murder ought to be given, that was not a point in issue and thus not binding. Dicta consists of statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand, and they lack the force of an adjudication. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987). \u201cWe point this out so that the dicta in one decision will not be seized on as the ratio decidendi in the next decision....\u201d McLeod, Comm. Of Revenues v. J. E. Dilworth Co., 205 Ark. 780, 171 S.W.2d 62 (1943).\nWithout question, this court in the prior opinion stated that the trial court was expressing its conclusion that Finney\u2019s testimony was unbelievable. However, this court then held that Green\u2019s failure to object prevented appellate review of the propriety of the comment. Therefore, this court\u2019s holding did not turn on the trial court\u2019s comment but upon failure to preserve. The court\u2019s decision would have been the same in the absence of the statement characterizing the trial judge\u2019s comments. The opinion did not reach the issue of the trial court\u2019s comment and hence was not actually decided. No adjudication took place that would bind this court now. Consequently, we hold that the law-of-the-case doctrine does not apply to this appeal.\nWe now turn our attention to the trial court\u2019s comments. The judge\u2019s comment can be summarized as an inquiry as to whether Finney knew what pequry was, an explanation of pequry, and then inquiry as to whether Finney understood she was sworn to tell the truth. The issue becomes whether the judge\u2019s comments were error, and then if so, whether the failure to object constitutes ineffective assistance of counsel.\nWith respect to the duties of a judge, this court has stated, \u201c[W]e have consistently acknowledged the great influence that a trial judge has on jurors. He must, therefore, refrain from impatient remarks or unnecessary comments which might indicate his personal feelings or which might tend to influence the minds of jurors to the prejudice of a litigant. See Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989).\u201d Jones v. State, 301 Ark. 530, 785 S.W.2d 218 (1990). This court in that same case went on to note, \u201c[T]he trial judge is the one person who controls the conduct of all participants in the course of a trial, from beginning to end, and instructs the jury regarding the law which must be applied to the facts.\u201d Id.\nHence, a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Chapman v. State, 257 Ark. 415, 516 S.W.2d 598 (1974); Jones v. State, 301 Ark. 530, 785 S.W.2d 218 (1990). In Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965), this court stated, \u201c[W]e believe it would be a good practice for all courts to refrain from making any statement, other than a judicial ruling, that might have a tendency to influence a jury in arriving at a verdict in a pending case.\u201d Further, \u201c[i]n a jury trial there is probably no factor that makes a more indelible impression on a juror than the attitudes, statements and opinions of the trial judge. To them, his word is the law. McMillan v. State, 229 Ark. 249, 314 S.W.2d 483 (1958). The trial judge should always preside with impartiality and must be cautious and circumspect in his language, for it is the jury that is the sole judge of the facts and the credibility of witnesses. Fechheimer-Kiefer Co. v. Kempner, 116 Ark. 482, 173 S.W. 179 (1915); Sharp v. State, 51 Ark. 147, 10 S.W. 228, 14 Am. St. Rep. 27 (1889). Because of his influence with the jury, remarks by the trial judge may tend to prejudice a litigant by destroying the weight and credibility of testimony in his behalf in the minds of the jury. Although the judge may not intend to give an undue advantage to one party, his influence may quite likely produce that result. Fuller v. State, 217 Ark. 679, 232 S.W.2d 988 (1950); Seale v. State, 240 Ark. 466, 400 S.W.2d 269 (1966); McMillan v. State, supra.\u201d West v. State, 255 Ark. 668, 672, 501 S.W.2d 771 (1973). A judge is not to charge a jury as to matters of fact. Ark. Const, art. 7, \u00a7 3. This prohibition applies to remarks of a judge that go to the credibility and the weight of testimony. West, 255 Ark., at 672-673; Fuller v. State , 217 Ark. 679, 683, 232 S.W.2d 988 (1950); St. Louis S.W. Ry. Co. v. Britton, 107 Ark. 158, 169, 154 S.W. 215 (1913).\nThe court\u2019s statements came just as the State had completed its direct examination of Finney, in which she testified in direct contradiction to her statement to police. It appears to us that the comment was made to encourage Finney to carefully consider her testimony to avoid a perjury charge and not to communicate the jury the court\u2019s disbelief of her. While the court\u2019s comments were improvident, they are not as egregious as comments cited by this court in the past in cases where reversible error was found. In its brief, the State notes a number of cases including discussion of impermissible judicial comments about witnesses such as \u201clike a crawfish does, backwards,\u201d Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924); \u201cWell it is just taking up the time of the jury for nothing,\u201d Fuller v. State 217 Ark. 679, 232 S.W.2d 988 (1950); and where a judge stated to defense counsel he would put him \u201cright down there where he is,\u201d Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980). In these cases reversible error was found. The judge\u2019s comment certainly highlighted the inconsistencies in Finney\u2019s testimony to that extent was error.\nHowever, our analysis does not end there. In order to obtain relief under Rule 37, appellant must not only show ineffective assistance of counsel, but must also show that had counsel acted effectively, there was a reasonable probability that the defendant would have been acquitted. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). In Huls, this court found that even if a timely objection at trial could have prevented the jury from hearing a witness\u2019s testimony, the testimony, when taken with the entire evidence presented at trial, did not lead to a conclusion that there was a reasonable probability that the jury would have acquitted petitioner if the witness had not testified. In making a determination on a claim of counsel\u2019s ineffectiveness, we must consider the totality of the evidence presented to the judge or jury. Id.; Thomas, supra.\nGreen had to rely on Finney\u2019s testimony, along with his own, to rebut evidence the police announced their entry. The judge\u2019s comment did litde more than note what was already obvious, that Finney\u2019s testimony was at such variance with her statement as to call her veracity into question. So, while the court\u2019s comment may have been error, under the totality of the evidence we are not lead to the conclusion that there was a reasonable probability that the jury would have acquitted Green absent this comment by the judge.\nThe instant case is distinguishable from the two cases on which appellant most strongly relies, Watkins v. State, 222 Ark. 444, 261 S.W.2d 274 (1953), an Arkansas case and Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 (1987), a South Carolina case. In Watkins, the trial court\u2019s comments went beyond a simple definition of peg'ury and included threats of prosecution for peg'ury, and this court held that the trial judge\u2019s comments actually had the effect of intimidating or coercing the witness. No such intimidation or coercion is evident or even alleged here.\nThe Sosebee case is also distinguishable on its facts. There, the trial judge integected comments characterizing the witness testimony for the obvious purpose of bolstering her credibility. The judge responded to defense counsel\u2019s objection to a witness\u2019s testimony by stating, \u201cIt isn\u2019t something she made up between then and now, as you suggested.\u201d Clearly, the South Carolina court there made a direct evaluative assessment of the nature of a witness\u2019s testimony. That is not present in the instant case. Given the totality of the circumstances, we hold that appellant has not shown that there is a reasonable probability, but for counsel\u2019s unprofessional errors, that the outcome of the trial would have been different. Thus, the trial court\u2019s denial of relief under Rule 37 is affirmed.\nAffirmed.", "type": "majority", "author": "Lavenski R. Smith, Justice." } ], "attorneys": [ "John Wesley Hall, Jr., for appellant.", "Mark Pryor, Att\u2019y Gen., by: Mac Golden, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Willie GREEN v. STATE of Arkansas\nCR 99-323\n33 S.W.3d 485\nSupreme Court of Arkansas\nOpinion delivered December 14, 2000\nJohn Wesley Hall, Jr., for appellant.\nMark Pryor, Att\u2019y Gen., by: Mac Golden, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0244-01", "first_page_order": 270, "last_page_order": 280 }