dissenting. I respectfully dissent. I do not disagree with the abstract principles of law recited in the prevailing opinion. However, I cannot agree with the affirming judges’ application of those principles to the facts of this case.
As noted in the prevailing opinion, appellant admittedly shot and killed Herschel Cleary, the man with whom she was living, on the evening of Sunday, December 13,1987. She was charged with second-degree murder. She defended on grounds of justification, contending that her actions were excused because she acted in self-defense. Although it was disputed, appellant testified that she refused a ten-year suspended sentence with no fine on advice of counsel. After a jury trial, appellant was convicted of manslaughter and sentenced to ten years in the Arkansas Department of Correction and fined $10,000.00. On appeal, she contends that she received ineffective assistance of counsel at trial. Specifically, she argues that she was prejudiced by trial counsel’s (1) failure to investigate and to interview and subpoena witnesses material to her claim of self-defense; (2) failure to proffer evidence excluded by the trial court; (3) failure to submit certain jury instructions; and (4) failure to impeach two of the State’s witnesses. I agree with appellant’s position as to the first, second, and fourth of these arguments.
The prevailing opinion fails to discuss in any significant measure the facts underlying appellant’s contentions. Therefore, at least some factual background is necessary for an understanding of the issues. Appellant contended at trial that Cleary and his friend, Joe Logsdon, had been drinking heavily all weekend. She testified that on Sunday morning Cleary became physically abusive to her. As the day went on, the abuse became progressively worse and began to be accompanied by verbal threats of what Cleary would do to her. After being shoved, punched, kicked, and knocked into walls, appellant eventually went to another room and lay down on a bed. Cleary followed her into the bedroom and started hitting her again. He said that he was going to “rip [appellant’s] head off.” Appellant testified that she was afraid that Cleary was going to kill her. During the struggle, appellant retrieved a pistol. She testified that she kicked him off of her, brought the gun around, and fired. She stated that Cleary then said, “You’re a dead motherfucker,” and lunged at her. She shot him again. Cleary later died.
Appellant’s first argument is geared toward counsel’s failure to interview and call as witnesses any of several medical professionals who could have testified as to the existence and extent of appellant’s physical injuries. Dr. Steve Goss, who examined appellant on December 14, 1987, could have testified that appellant had several red and/or purple bruises suffered as a result of blows by a fist or other object; that she had a small hematoma, or swollen bruise, at the hairline of her forehead; and that three or four of the contusions had been suffered within twenty-four hours of his examination. Dr. T.C. Glasscock, who saw appellant on December 18, could have testified that appellant had bruises on both breasts; that she had very discolored painful, and tender bruises on her upper arm; that the area just above her forehead was swollen; that she complained of severe headache and nausea; that she suffered an equilibrium disorder; and that her right eye did not follow finger movement. As a result of his examination, Dr. Glasscock ordered a CT scan. He would have testified that in his opinion appellant had suffered a concussion and that it was this swelling of tissue that caused appellant’s dizziness and headaches. Linda Jones, appellant’s sister and a registered nurse, picked up appellant from jail on December 17. Ms. Jones could have testified that appellant had bruises on her forehead, her breasts, the right side of her face, her right upper arm, and her inner arms from her wrists to her elbows. She could have further testified to appellant’s complaints of dizziness and nausea and to her inability to hear from her right ear.
Appellant also contends that counsel was ineffective for failing to proffer evidence of Cleary’s prior violent acts of which appellant had knowledge. During the original trial, appellant’s counsel attempted to question prosecution witness Joe Logsdon, a friend of Cleary’s, about an incident when Cleary pushed Michelle Bolick, who was expecting a child, from a moving vehicle. The trial court sustained the State’s objection because the act had not been directed at or personally observed by appellant. Although appellant’s trial counsel testified at the hearing on the motion for new trial that he did not agree with the judge’s ruling and knew that appellant had knowledge of Cleary’s prior acts of violence, he made no attempt at trial to take issue with the court’s ruling or to proffer the excluded testimony. In addition, counsel did not question appellant about any of several such incidents about which she had knowledge, including the Bolick incident, Cleary’s extremely brutal attack on Ricky Bean, or Cleary’s rampage at Susie Harp’s house where he pulled the telephone from the wall, kicked a bedroom door off its hinges, and struck Jamie Elliot and Tamara Murphy and chased their children. Nor did counsel, assuming he felt constrained by the court’s ruling during Logsdon’s testimony, make a proffer of appellant’s testimony regarding these incidents. Additionally, counsel failed even to interview Bolick, Elliot, or Murphy.
To the extent that the court ruled that evidence of Cleary’s prior acts of violence about which appellant had knowledge was inadmissible, the court’s ruling was erroneous. Under Ark. R. Evid. 405(b), evidence of specific instances of a person’s conduct is admissible to prove a character trait that is an essential element of a defense. A victim’s prior specific acts of violence directed at the defendant or that were within her knowledge are admissible as probative of what the defendant reasonably believed regarding whether unlawful force was about to be used upon her and whether the amount of force used to repel the attack was necessary. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 694 (1983). It is sufficient if a defendant learns of such prior acts of violence either through her own observation or through information communicated to her by others. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1987). By failing even to proffer the evidence, however, counsel denied appellant both the opportunity to have it examined by the trial court and, due to lack of preservation, the ability to raise the issue on direct appeal.
Appellant further asserts that counsel’s performance was deficient due to his failure to impeach the testimony of Joe Logsdon or Officer Gary McVay. Logsdon, who had been present at the house shared by Cleary and appellant, gave a recorded statement on the day of the shooting in which he said that Cleary had not kicked appellant. However, later in the same statement, he admitted he had lied. Logsdon then stated that Cleary had kicked appellant in the chest and knocked her against the fireplace. On December 20, 1987, Logsdon gave another statement to the police stating that Cleary was “hitting around on her at the shoulders and head.” At trial, however, Logsdon testified that Cleary had kicked and slapped at appellant “a little bit,” with the implication being that any abuse had been minimal. Appellant’s trial counsel wholly failed to impeach Logsdon with the two prior inconsistent statements, despite the fact that both statements had been in the prosecuting attorney’s open file.
Officer Gary McVay testified at trial, without challenge, that appellant initially reported that Logsdon had shot Cleary. The State then argued in its closing argument that appellant had tried to set up Logsdon for a possible shoot-out with the sheriff’s deputies so that Logsdon would be killed by the officers who arrived to investigate the homicide. In fact, the official radio log indicated that “lady advised she’s shot someone and there’s another man there, a friend of the victim.” The radio log was readily available to appellant’s counsel, and appellant’s counsel admitted that he thought that the information it contained would have been helpful to appellant’s case.
There is a single overriding theme present throughout the prevailing opinion, and it is that very theme that I find troublesome. Although the affirming judges assume for the purposes of their opinion that counsel’s performance was deficient, they find that appellant suffered no prejudice as a result of any of the three failures discussed in this dissent because other evidence was presented on each point. The prevailing opinion excuses the failure to call the available medical witnesses because appellant testified to her injuries caused by Cleary. It excuses the failure to proffer any evidence of Cleary’s prior acts of violence because appellant testified to one such prior act directed at her and to his violent acts of the day of the shooting. It excuses the failure to impeach Logsdon because appellant’s testimony contradicted Logsdon’s and thereby sufficiently damaged his credibility. Contrary to the affirming judges’ position, this simply is not a case involving choice of witnesses or improvident trial strategy. The only witness material to appellant’s claim of self-defense called by her counsel was appellant herself. Although other material witnesses and/or independent evidence were available, none were called or presented to corroborate appellant’s claim of self-defense. It simply is not enough to say that appellant testified regarding these matters. As is so often stated in cases affirming criminal convictions, juries have every right to disbelieve a defendant since she is the person most interested in the outcome of the trial.
Appellant had the right to put on a meaningful defense. An attorney who does not investigate the factual basis of his client’s defense or call witnesses material to that defense can hardly be said to provide adequate and appropriate counsel. In my opinion, appellant’s trial counsel was not acting as the “counsel” guaranteed by the Constitution. Furthermore, in my opinion, there is a reasonable probability that, but for counsel’s errors, a different decision would have been reached. Therefore, I would reverse and remand for a new trial.
Robbins and Rogers, JJ., join in this dissent.