State of Arkansas v. James C. Fudge

SUPPLEMENTAL DISSENTING OPINION ON DENIAL OF REHEARING MAY 26, 2005

Tom Glaze, Justice, dissenting. I would grant the State's request for rehearing based on the sound reasoning and legal authority set out in Justice Gunter's opinion. Any suggestion that the State sua sponte seeks reversal of the trial court's ruling declaring Fudge's attorney, Tammy Harris, was ineffective because of her failure to object to the introduction of Exhibit 56 (the first-degree battery conviction) is clearly wrong. The State's brief addressed this issue as follows:

The State . . . requests the Court to reverse the circuit court's grant of relief because [Exhibit 56] was admissible. Moreover, even it if was not,1 the grant of relief was clearly erroneous in that any deficient conduct in not objecting to State's Exhibit 56 did not result in any prejudice.

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In the present case, the circuit court ruled that the appellee's trial counsel was ineffective because she did not object to the introduction of State's Exhibit 56. The exhibit was introduced as evidence of the sole aggravating circumstance that the appellee had "previously committed another felony, an element of which was the use or threat of violence to another person," and consisted of four documents, including a judgment that shows that the appellee had originally been charged with aggravated robbery, but pleaded guilty to robbery, it does not mention battery in the first degree. The exhibit also included a plea statement that shows that he was pleading guilty to both robbery and battery in the first degree. Despite the fact that the judgment did not mention first-degree battery, the circuit court ruled that robbery is a less violent offence than first-degree battery and, therefore, the appellee was prejudiced by the fact that the jury was improperly presented with evidence of a purported battery crime. The circuit court's decision to grant relief should be reversed.

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There was no objection when the prosecutor made the error, and the appellee has made no claim that trial counsel was ineffective for not objecting to it. The claim upon which he obtained relief is based on the failure to object to the exhibit, but, as is explained above, the exhibit was inadmissible.

Although the State may not have made its deficiency argument on appeal as clear as Justice Gunter's opinion, the trial court rejected it below, and the State did address the argument on appeal. In short, Harris testified that Fudge admitted to her that he had been convicted of first-degree battery when Fudge was shown Exhibit 56. Harris said that the judgment and docket sheet established that Fudge was convicted of first-degree battery. The State appealed, arguing that, on these facts, Harris was not ineffective by choosing not to object to Exhibit 56. The trial court's finding that the State conceded the battery conviction had been reduced to robbery was clearly wrong. An attorney's conversation with the defendant may be critical to a proper assessment of counsel's investigation decisions. Here, Fudge admitted to Harris that he had been convicted; after Harris's review of the conviction judgment and docket sheet, sufficient reasons existed for Harris not to object to Exhibit 56's introduction into evidence.

The change, which I believe is necessary to Justice Gunter's opinion, is our having addressed the prejudice prong in Srickland, since I believe the conduct of Fudge's counsel in thiscase was not deficient. That portion of the opinion should be removed, so that no confusion will exist over whether prejudice is an issue that needs to be addressed. Prejudice is not an issue in this case. See Dansby v. State, 347 Ark. 674, 66 S.W.3d 505 (2002) (where court concluded counsel's performance was not deficient, court held that it need not consider or address the prejudice prong of Strickland).

Dickey, J., joins this opinion.

1 Once this court concludes that Fudge's attorney's conduct was not deficient, the court's inquiry ends, and we need not address the second prejudice prong set out in Strickland v. Washington, 466 U.S. 668 (1994).