Peebles v. State

Annotate this Case
Abram PEEBLES v. STATE of Arkansas

CR 96-944                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1998


1.   Attorney & client -- ineffective-assistance claim -- proof required. -- To
     prevail on any claim of ineffective assistance of counsel, the
     petitioner must first show that counsel's performance was
     deficient; this requires showing that counsel made errors so
     serious that counsel was not functioning as the "counsel"
     guaranteed the petitioner by the Sixth Amendment; secondly,
     the petitioner must show that the deficient performance
     prejudiced the defense as to deprive the petitioner of a fair
     trial; unless a petitioner makes both showings, it cannot be
     said that the conviction resulted from a breakdown in the
     adversarial process that renders the result unreliable.

2.   Attorney & client -- ineffective-assistance claim -- presumption of
     reasonable assistance. -- When reviewing ineffective-counsel
     claims, a court must indulge in a strong presumption that
     counsel's conduct falls within the wide range of reasonable
     assistance; the petitioner must show there is a reasonable
     probability that, but for counsel's errors, the factfinder
     would have had a reasonable doubt respecting guilt, i.e., the
     decision reached would have been different absent the errors;
     a reasonable probability is a probability sufficient to
     undermine confidence in the outcome of the trial.

3.   Appeal & error -- denial of postconviction relief -- not reversed unless
     ruling was clearly erroneous. -- The supreme court does not reverse
     a trial court's denial of postconviction relief unless the
     ruling was clearly erroneous.

4.   Evidence -- provisions of Ark. R. Evid. 806. -- Under Rule 806 of the
     Arkansas Rules of Evidence, if a hearsay statement or certain
     statements offered against a party have been admitted in
     evidence, the credibility of the declarant may be attacked,
     and if attacked may be supported, by any evidence that would
     be admissible for those purposes if declarant had testified as
     a witness; evidence of a statement or conduct by the declarant
     at any time, inconsistent with his hearsay statement, is not
     subject to any requirement that he may have been afforded an
     opportunity to deny or explain; if the party against whom a
     hearsay statement has been admitted calls the declarant as a
     witness, the party is entitled to examine him on the statement
     as if under cross-examination.

5.   Evidence -- impeachment -- fact that child witness's answers at pretrial
     hearing were unsworn did not foreclose Ark. R. Evid. 806 use for
     credibility purposes. -- Where it was clear that the transcript of
     a child witness's contrary statements at a pretrial hearing
     would not be offered as substantive evidence but merely for
     impeachment purposes, testimony under oath was not required;
     the supreme court concluded that the fact that the child's
     answers at the pretrial hearing were not under oath did not
     foreclose their use under Ark. R. Evid. 806 for credibility
     purposes.

6.   Evidence -- impeachment -- mother's testimony admissible under Ark. R.
     Evid. 806 even if she was not present when child witness's inconsistent
     statements were made. -- The supreme court, rejecting the State's
     contention that the child witness's mother could not testify
     about what the boy said at the pretrial hearing because she
     was not present at the time when the child answered the trial
     court's questions, noted that the argument ignored Ark. R.
     Evid. 806, which allows for the admission of relevant
     inconsistent statements of the declarant; impeachment could
     take place irrespective of whether the mother was present when
     the inconsistent statements were made because the mother was
     merely the mouthpiece or conduit for the child's statements,
     and it was the declarant's statements that were being
     impeached rather than the mother's.

7.   Appeal & error -- appellant did not receive fair trial where defense
     counsel did not offer child witness's inconsistent statements into
     evidence. -- Where, though the information would have been
     invaluable to the jury, defense counsel made no attempt to
     offer the child witness's inconsistent statements into
     evidence, and the jury thus was not informed that the three-
     year-old boy, who was the critical witness against appellant,
     had recanted his story at a pretrial hearing, the supreme
     court concluded that appellant did not receive a fair trial.

8.   Attorney & client -- defense counsel's performance deficient -- reasonable
     probability that absent information would have affected outcome -- reversed
     and remanded. -- The supreme court held that the ineffective-
     assistance test of Strickland v. Washington, 466 U.S. 668
     (1984), was met and that defense counsel's performance was not
     only deficient but that there was a reasonable probability
     that the absent information, had it been known to the jury,
     would have affected the outcome of the trial; the matter was
     reversed and remanded.


     Appeal from Pulaski Circuit Court; Marion Humphrey, Judge;
reversed and remanded.
     Craig Lambert, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Robert L. Brown, Justice.
     In 1990, appellant Abram Peebles was convicted of the rape of
his three-year-old nephew, M.C., and sentenced to forty years in
prison.  His conviction was affirmed on appeal.  See Peebles v.
State, 305 Ark. 338, 808 S.W.2d 331 (1991).  In 1995, the federal
district court granted Peebles habeas corpus relief conditioned on
the State's awarding him a hearing on a new-trial motion under Ark.
R. Crim. P. 36.4.  After the hearing, the Pulaski County Circuit
Court denied Peebles's motion.  He now appeals from that order and
raises numerous assignments of error for why his representation at
trial was ineffective and failed to satisfy Sixth Amendment
requirements.
     Prior to the underlying trial, the trial court held a hearing
to decide whether M.C.'s statements about the charged abuse could
be relayed to the jury by his mother under the child-hearsay
exception, Ark. R. Evid. 803(25).  The court made no ruling on
M.C.'s competency but did rule that the mother could so testify.
     At the underlying trial, Peebles's three-year-old nephew,
M.C., did not testify.  The State's case consisted of two
witnesses.  Virginia Ghere, M.C.'s mother and Peebles's sister,
testified that on the day in question, she allowed her son to watch
television in Peebles's trailer in the trailer park in North Little
Rock.  Later that day, she returned to Peeble's trailer and saw him
pulling up her son's shorts.  Peebles, according to Virginia Ghere,
was naked and his penis was erect.  She testified that her son told
her about Peebles after they left the trailer: "He bit my dingdong. 
I bite his dingdong."  M.C. added, according to Virginia Ghere:
"And we fight dingdongs," and "I got some milk from his dingdong." 
She said she took the boy to Arkansas Children's Hospital for an
examination.
     The second witness at trial was Dr. Jim Mark Ingram, who at
the time was a resident at Children's Hospital in Little Rock.  He
examined M.C. for the possibility of sexual assault and testified
that he used a Wood's lamp to discover whether there was any sperm
or semen on the boy's body.  Dr. Ingram explained that through the
use of the Wood's lamp, he found a fluorescent substance consistent
with sperm present on the boy's mouth, chin, abdomen, torso, and
left hand.
     The State rested, and Peebles's counsel moved for a directed
verdict based on lack of proof of penetration under Ark. Code Ann.
 5-14-101(1)(A) (1987).  The trial court denied the motion.  The
defense counsel then put on a case which consisted of testimony
from the State Crime Lab's chief serologist who stated that there
was no evidence of semen on oral swabs and rectal swabs taken from
M.C. or on a blue washcloth taken from the trailer.  Defense
counsel also called Peebles's youngest sister and his mother, both
of whom related that M.C. had a tick bite on his penis, the
implication being that this was the bite he referred to in his
conversation with Virginia Ghere.  The youngest sister, Melanie
Layne, testified that Peebles and Virginia Ghere were "always
fighting" and that M.C. told Layne that he asked Peebles for milk
and Peebles got him milk and cookies.  Another witness, Delena
Davis, testified, but the Stateþs objection was sustained regarding
alleged statements made by Virginia Ghere to her about Ghere's
hatred toward Peebles.  The basis for the sustained objection was
that the statements were too remote in time.
     At the Rule 36.4 hearing before the Pulaski County Circuit
Court following the federal district court's order of conditional
habeas corpus, Peebles raised the same points for ineffective
counsel that he raises in this appeal.  The circuit court denied
the petition, but we conclude that one of the grounds has merit. 
As a consequence, we reverse the order of the circuit court and
remand the matter for a new trial.
     We recently stated the law relative to ineffective counsel and
the prejudice required for the granting of a new trial:
          To prevail on any claim of ineffective assistance of
     counsel, the petitioner must first show that counsel's
     performance was deficient.  This requires showing that
     counsel made errors so serious that counsel was not
     functioning as the "counsel" guaranteed the petitioner by
     the Sixth Amendment.  Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995).  Second, the petitioner must show that
     the deficient performance prejudiced the defense as to
     deprive the petitioner of a fair trial.  Id.  Unless a
     petitioner makes both showings, it cannot be said that
     the conviction resulted from a breakdown in the
     adversarial process that renders the result unreliable. 
     Id.
          Further, when reviewing ineffective-counsel claims,
     a court must indulge in a strong presumption that
     counsel's conduct falls within the wide range of
     reasonable assistance.  Strickland v. Washington, 466 U.S. 668 (1984).  The petitioner must show there is a
     reasonable probability that, but for counsel's errors,
     the factfinder would have had a reasonable doubt
     respecting guilt, i.e., the decision reached would have
     been different absent the errors.  Id.  A reasonable
     probability is a probability sufficient to undermine
     confidence in the outcome of the trial.  Id.
Hall v. State, 326 Ark. 318, 321, 933 S.W.2d 363, 365 (1996), reh'g
denied, 326 Ark. 823, 933 S.W.2d 363 (1996) (per curiam).  See also
Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).  This court
does not reverse a trial court's denial of postconviction relief
unless the ruling was clearly erroneous.  Johninson v. State, 330
Ark. 381, 953 S.W.2d 883 (1997); Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994).
     It is in connection with defense counsel's failure to present
the jury with M.C.'s inconsistent statements that we conclude his
performance was deficient.  During the pretrial hearing to
determine whether the statements of M.C. could be related to the
jury by his mother under Ark. R. Evid. 803(25) (the child-hearsay
exception), M.C. was asked numerous questions by the deputy
prosecutor and the court.  The following colloquy occurred:
     THE COURT:     Did Abram do something to you several
                    months ago, sometime back?
     M.C.:          (moves head)
     THE COURT:     He didn't?  Did you tell your mother he
                    did?  Speak up.  Is that yes or no?
     M.C.:          No.
     THE COURT:     He didn't do anything to you and you
                    didn't tell your mother?
     M.C.:          No.
     THE COURT:     No?
     M.C.:          No.            
     THE COURT:     Okay.  Did that man over there ever do
                    anything to you?
     M.C.:          No.
     THE COURT:     He didn't?  Okay.  Anything else?
The young boy, thus, told the trial court five consecutive times
that Peebles had not done anything to him several months earlier. 
This inconsistent colloquy should have been made available to the
jury.
     Rule 806 of the Arkansas Rules of Evidence provides:
          If a hearsay statement, or a statement defined in
     Rule 801[d](2)(iii), (iv), or (v), has been admitted in
     evidence, the credibility of the declarant may be
     attacked, and if attacked may be supported, by any
     evidence which would be admissible for those purposes if
     declarant had testified as a witness.  Evidence of a
     statement or conduct by the declarant at any time,
     inconsistent with his hearsay statement, is not subject
     to any requirement that he may have been afforded an
     opportunity to deny or explain.  If the party against
     whom a hearsay statement has been admitted calls the
     declarant as a witness, the party is entitled to examine
     him on the statement as if under cross-examination.
Ark. R. Evid. 806.
     We note initially that Ark. R. Evid. 806 and Fed. R. Evid. 806
are substantially similar.  One commentator on Federal Rule 806 has
explained the rule as follows:
          If a hearsay statement is introduced into evidence
     because it qualifies as an exception to the hearsay rule,
     it is being introduced for its truth.  This makes the
     credibility of the hearsay declarant important.  Thus,
     Rule 806 provides that the credibility of the hearsay
     declarant can be attacked and supported just as if the
     declarant is on the stand testifying.  In other words,
     the ways in which a witness can be impeached and
     rehabilitated are also the ways in which a hearsay
     declarant can be impeached and rehabilitated.
3 Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual 1674 (6th ed.
1994).
     An example of the application of Rule 806 is found in State v.
Kline, 464 N.E.2d 159 (Ohio App. 1983).  In Kline, the defendant
was convicted of felonious assault and of carrying a concealed
weapon.  At trial, one Kelly Taylor testified that she witnessed
the defendant draw a pistol and point it at her boyfriend, Doug
Emmons.  She testified that Emmons took the gun immediately and
stated: "She tried to kill me -- call the cops."  State v. Kline,
464 N.E.2d  at 162.  Counsel for the defendant next tried to impeach
the credibility of Emmons, who was unavailable although under
subpoena at the time.  Counsel sought to introduce into evidence a
written statement given by Emmons to members of the Norwalk Police
Department, which provided: "Gloria Cline [sic] [the defendant]
pulled a gun on me, I took it away, and the cops came.  I lost my
hat."  Id. at 163.  The trial court excluded the writing on the
ground that it was hearsay.
     On appeal, the Court of Appeals of Ohio reversed and, in doing
so, stated:
     [T]hese statements were clearly not hearsay.  The writing
     was offered not as substantive evidence, but rather to
     impeach the credibility and veracity of a hearsay
     declarant (Emmons).  Consequently, the writing was not
     offered to prove the truth of the statements contained
     therein.  Evid. R. 801(C).  Extrajudicial statements
     offered for impeachment purposes are not hearsay since
     they are not offered for the truth of what they state.
Id. (citations omitted).  See also United States v. Wuagneux, 683 F.2d 1343 (11th Cir. 1982), cert. denied, 464 U.S. 814 (1983)
(allowing an IRS agent to testify during the government's rebuttal
as to a prior inconsistent statement made by the appellant's
accountant, who was unavailable to testify, after the appellant
introduced a contrary statement through Fed. R. Evid. 804(b)(3) as
a statement against interest).  See generally Lewis v. Gubanski, 50
Ark. App. 255, 905 S.W.2d 847 (1995) (discussing Ark. R. Evid. 806
in detail).
     The Supreme Court of Oregon has addressed the issue of
impeaching the testimony of a four-year-old child declarant who was
unavailable to testify "due to fear or similar reasons."  See State
v. Phillips, 840 P.2d 666 (Or. 1992).  There, statements of the
child declarant were admitted into evidence under hearsay
exceptions through other witnesses.  Those witnesses related the
child's declarations about the defendant, who was the child's
stepfather, and his sexual abuse of the child.  The defense sought
to impeach the statements of the child declarant by having the
mother testify that the child told her that the natural father of
the child had told the child to say "bad things" about the
defendant.  The trial court granted the state's objection and
struck the impeachment testimony.
     The Oregon Supreme Court reversed, citing Rule 806, and noted
that the commentary to this rule made it clear that in fairness the
declarant's credibility ought to be subject to impeachment.  The
court went on to say that the excluded impeachment evidence was not
offered for the truth of the matter asserted and, thus, was not
hearsay but was admissible to cast doubt on the credibility of the
unavailable child declarant.  See also State v. Evans, 187 Wis. 2d
66, 522 N.W.2d 554 (1994) (child hearsay declarant's credibility
was open to attack just as if the child had testified; trial court
affirmed on other grounds); John E.B. Myers, Child Witness Law and Practice
 4.65, at 257 (1987).
     In the instant case, defense counsel made no attempt to offer
M.C.'s inconsistent statements into evidence though this
information would have been invaluable to the jury.  The State's
response to this is that offering into evidence the transcript of
the pretrial hearing to impeach M.C. would be impermissible because
M.C.þs testimony was not given under oath and subject to the
penalty of perjury.  That is incorrect.  It is clear that the
transcript of M.C.þs contrary statements at the pretrial hearing
would not be offered as substantive evidence but merely for
impeachment purposes.  Thus, testimony under oath is not required,
and we agree with the holdings of the Court of Appeals in this
regard.  Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955 (1993);
Harris v. State, 36 Ark. App. 120, 819 S.W.2d 30 (1991).  For
purposes of the instant case, we conclude that the fact that M.C.'s
answers at the pretrial hearing were not under oath does not
foreclose their use under Rule 806 for credibility purposes.
     The State also cites Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994), which stands for the proposition that a witness may
only relate information acquired through his or her own
observation.  Thus, if the mother was not present at the pretrial
hearing when M.C. answered the trial courtþs questions, according
to the State, she cannot testify about what the boy said at that
time.  We disagree.  The Stateþs argument ignores Rule 806, which
allows for the admission of relevant inconsistent statements of the
declarant.  This impeachment can take place irrespective of whether
the mother was present when the inconsistent statements were made. 
In the instant case, the mother was merely the mouthpiece or
conduit for M.C.þs statements, and it is the declarantþs statements
that are being impeached, not the motherþs.  See Lewis v. Gubanski,
supra.
     Nor do we perceive the procedure for introducing M.C.'s
previous answers at the pretrial hearing as a stumbling block for
their use by defense counsel.  As in State v. Kline, supra, counsel
need only have introduced a transcript of the relevant portion of
the pretrial colloquy between M.C. and the trial court.  This could
have been done as part of the cross-examination of Virginia Ghere. 
It would have been a simple matter to have read the colloquy from
the pretrial hearing to the jury.
     Because the jury was not informed that the three-year-old boy,
who was the critical witness against Peebles, had recanted his
story at a pretrial hearing, we conclude that Peebles did not
receive a fair trial.  While a plausible explanation is that M.C.
þfrozeþ at the hearing when surrounded by adults or changed his
story out of fear when faced with Peebles, this was still crucial
information that should have been imparted to the jury.
     We hold that the Strickland test was met and that defense
counsel's performance was not only deficient but that there is a
reasonable probability that the absent information, had it been
known to the jury, would have affected the outcome of the trial.
     Reversed and remanded.