dissenting.
I absolutely agree with the majority that Mr. White’s trial counsel, Sharon Kiel, committed errors that were so serious that counsel was not functioning as the counsel guaranteed an accused by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, I cannot agree that this case should be affirmed because Mr. White failed to prove he was prejudiced by Kiel’s deficient representation.
Mr. White’s trial counsel, by her own admission, led him to believe that she was going to trial with a justification defense that would have included Mr. White’s testimony. It is not disputed that the change in strategy was never presented to Mr. White. Furthermore, it was not disputed that Mr. White believed that he was going to testify in his own defense, and his trial counsel, without consulting Mr. White, decided not to put him on the stand. This performance was more than just improvident — it denied Mr. White fundamental constitutional rights. Because of Kiel’s deficient performance, Mr. White was denied his constitutional right to testify on his own behalf. See Rock v. Ark., 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). In Williams v. State, 2011 Ark. 489, 385 S.W.3d 228, we stated that an accused person’s fundamental constitutional right to testify cannot be waived by defense counsel. Likewise, Kiel’s deficient performance denied Mr. White his fundamental right to have his case tried to a jury. See Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). As the Supreme Court | sin United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) stated, trial counsel’s performance is not to be viewed in the “abstract,” but in the context of “what, after all, is [the accused’s], not counsel’s trial.” (quoting McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)). Because Kiel’s deficient representation denied Mr. White fundamental constitutional rights, I believe that this court should hold that it is prejudicial per se, much as we did in Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002), when trial counsel failed to object when Flores appeared at trial in shackles and jail clothing.
However, even if we were to somehow find that Kiel’s errors did not constitute prejudice per se, I contend that the majority misapplied the law regarding prejudice. The prejudice prong under Strickland requires that the petitioner establish that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We have not previously interpreted this requirement to mean that the petitioner must prove that he would have been acquitted. See Flores, supra. A “reasonable probability” is a showing sufficient to undermine confidence in the outcome. Id. In denying Mr. White’s petition, the trial court stated that it did not believe that Mr. White’s testimony would have changed the outcome of the trial. The difference is subtle, but significant. For us to have “confidence” in an outcome, we demand that the case be tried in adversarial fashion. Id. Failure of the adversarial system undermines that “confidence.”
Here, four eye-witnesses, three of whom were previously acquainted with Mr. White, testified that he was involved with the shooting. It is impossible to imagine that any cross-examination,9 much less the perfunctory cross-examination undertaken by Kiel, could provide the jury with doubt as. to Mr. White’s identity as the person involved in the shooting. As Mr. White argues on appeal, this was a situation where the shooting had to be explained. Moreover, contrary to Kiel’s testimony at the Rule 37 evidentiary hearing, the trial record shows that disregarding Mr. White’s wishes regarding the justification defense was a key factor in the trial court’s decision to exclude evidence of the victim’s intoxication and his criminal history. Accordingly, Mr. White was prejudiced because his trial counsel’s deficient performance constituted a failure to subject the State’s case to adversarial testing. Id.
Finally, I believe the majority has misstated the law with regard to our deference to the trial court on matters of “credibility.” In the case relied on by the majority, State v. Estrada, 2013 Ark. 89, 426 S.W.3d 405, 2013 WL 753061, we rejected the State’s appeal from a grant of postconviction relief because trial counsel failed to impeach the credibility of the victim in a juvenile-rape case. There, the trial court found that if the impeachment evidence had been presented, it “could have swayed the jury verdict.” I believe the trial court in Estrada applied the correct standard. It made no prediction as to the outcome of the trial, nor did it supplant the function of the jury as the finder of fact.
Conversely, in the case before us, the trial judge denied Mr. White’s petition because the trial judge did not find Mr. White’s testimony credible. However, Article 2, section 10, of the Arkansas Constitution and the Fifth and Sixth Amendments to the United States Constitution guarantees our citizens the right to a trial by jury where the credibility of the testimony is to be decided. Here, due to trial counsel’s error, Mr. White was denied his right | into have a jury determine his credibility. This deprivation of Mr. White’s Constitutional rights satisfies the prejudice prong of Strickland.
BAKER, J., joins.