dissenting. The appellant was charged with first degree murder. In presenting her defense, she called two expert witnesses, Dr. Stuart Harris and Dr. Douglas Stevens, who testified that she was incapable of distinguishing between right and wrong or conforming her behavior to the requirements of the law. The defense attorney then called a lay witness, a close friend, to give an opinion about appellant’s mental condition. Her attorney asked the witness if she had formed an opinion about whether the appellant was mentally competent. After the trial court sustained the state’s objection, the appellant’s attorney failed to make a proffer of proof.
Our common law clearly establishes the rule that a lay witness may testify about the mental competency of an accused if a proper foundation is laid. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986); Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980); Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977). In addition, we have said that lay testimony about mental competency is admissible in light of A.R.E. 701 because “a witness may give a non-expert opinion on matters rationally based upon his perception if it is helpful to a clear understanding . . . of a fact issue.” Graham v. State, supra. Arkansas Statute Annotated § 41-602 (Repl. 1977) provides: “Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether he had the culpable mental state required for commission of the offense charged.” Because of this statute, we have said “even if the mental disease or defect did not constitute a defense, evidence of it was relevant on the question of his culpable mental state . . .” Campbell v. State, 265 Ark. 77, 567 S.W.2d 938 (1979).
A.R.E. Rule 103(a) and 103(a)(2) provide:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(Emphasis added.)
The above quoted rule means that there is no need for a proffer where the substance of the proffer would be apparent from the context in which the question was asked. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). The reason that a proffer is not required under such circumstances is that the law does not require a vain and useless act. United States v. Alverez, 584 F.2d 694 (5th Cir. 1978).
It is apparent from the context in which the question was asked that the witness would have testified that her friend was not mentally competent. Appellant’s trial lawyer was entitled to rely on our rule of evidence and not make a formal proffer.
The majority opinion acknowledges that the trial court’s ruling was probably in error, but holds that it was not prejudicial because an expert witness testified to the same effect. I cannot come close to agreeing. In Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981), four doctors gave their expert opinion that Curry was not mentally competent to understand the criminality of murdering five persons. There was lay testimony that she was mentally competent. In upholding the jury verdict finding her guilty of capital murder, we held that the jury was not bound by the unanimous opinion of the four medical experts. Likewise, I cannot say with any degree of certainty that the jury in the present case might not have believed the lay witness even though two experts had also expressed the same opinion. Mrs. Bridge’s testimony may have been the basis of a jury verdict finding the appellant to have been mentally incompetent.
The ruling was prejudicial and I would reverse and remand for a fair trial.
Newbern, J., joins in this dissent.