concurring.
I concur in the decision to affirm the denial of Billy Joe Kelley’s Rule 37.1 petition. However, this case should be affirmed based on a failure to meet the requirements of the first prong of the Strickland test. Counsel’s representation did not fall below an objective standard of reasonableness. I do not agree that this case may be affirmed based on a lack of prejudice under the second prong of the Strickland test. Contrary to the majority’s conclusion, the evidence of chlamydia was offered to point suspicion at Kelley and at no one else. It was highly prejudicial and was offered to identify Kelley as the perpetrator of the charged rape by showing that she was infected with chlamydia by sexual contact with Kelley.
_[igln pretrial hearings, the State moved to preclude Kelley from arguing that the victim’s stepbrothers infected her with chlamydia and for leave to put on evidence that Kelley refused a chlamydia test. In its opening statement, the State told the jury that Dr. Esquivel would testify that the victim tested positive for chlamydia and that this was diagnostic of sexual assault, of which Kelley stood accused. Dr. Esquivel examined the victim to determine if the victim had been sexually assaulted. Dr. Esquivel is a physician and naturally treated the victim for the chlamydia, but in the context of this case, the issue of chlamydia was not only an issue of diagnosis, but was also a critical piece of evidence on which Dr. Esquivel based her opinion that the victim had been sexually assaulted. Dr. Esquivel testified as follows:
Q. Well, did you see any healing tissue anywhere?
A. No, no healing tissue except for the thin rimmed hymen. So I’m saying that it could indicate that there had been significant stretching of the tissue.
Q. It could?
A. It could.
Q. Not definitively?
A. Right.
Q. Not within a reasonable degree of medical certainty? Right?
A. Right.
Q. You wouldn’t want to say that to the ladies and gentlemen of the jury?
A. Not based on that, but the fact that she had a positive sexually transmitted infection culture. That would raise the suspicion further.
1 i7Pr. Esquivel further testified that among the findings that “are 100 percent diagnostic for penetration or sexual assault, or abuse, are things such as ... a sexually transmitted disease that would not have been able to have been contracted except by sexual means.” The State was trying to show the jury that Kelley was the source of the chlamydia so that the jury would conclude that he had raped the victim. The evidence was highly prejudicial. Therefore, Kelley meets the requirements of the second prong of the Strickland test because he has shown that, had counsel’s representation fallen below the required standard, there was a reasonable probability that the outcome would have been different. See Lee v. State, 2009 Ark. 255, at 4, 308 S.W.3d 596, 601 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674).
Nonetheless, this case should be affirmed because Kelley has failed to satisfy the first prong of the Strickland test, that counsel’s representation fell below an objective standard of reasonableness. See Lee, 2009 Ark. at 3, 308 S.W.3d at 600 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). As the majority states, Kelley asserts that his trial counsel was ineffective for failure to obtain a ruling on his Confrontation Clause objection. Kelley’s argument at trial was that he was being denied the opportunity “to confront the witness who actually tested the swab and says that it is chlamydia.” On appeal, Kelley relies on Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). However, Melendez-Diaz was decided after Kelley was tried. In determining whether trial counsel’s conduct is ineffective, the conduct is evaluated from counsel’s perspective at the time. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[Cjounsel’s stewardship must be judged under the existing law at the time of trial and [iscounsel cannot be deemed ineffective for failing to predict future developments or changes in the law.” Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343, 1346 (1997). Melendez-Diaz is not relevant in determining whether counsel’s conduct was ineffective on a date before the case was decided. Therefore, the decision of the circuit court should be affirm
DANIELSON, J„ joins.