¶1concurring in part, dissenting in part. I agree to affirm the Order Denying Post-Conviction Relief on every point but one and would remand for resentencing.
¶2During the penalty phase at the original trial, Johnson was prohibited by court ruling from presenting complete background testimony through Dr. Moneypenney in mitigation of a death sentence. We affirmed that ruling in Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992) (Johnson I), and used a harmless error analysis in making our decision. In particular, we noted that Dr. Moneypenney’s testimony about Johnson’s background would have been cumulative to the testimony by Johnson’s sister. It appears that we erred in holding as we did. See Skipper v. South Carolina, 476 U.S. 1 (1986); see also Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Ark. Code Ann. § 5-4-603 (1987).
¶3The key assumption in the majority’s discussion of this issue is an erroneous conclusion that Johnson did not raise his counsel’s failure to petition for rehearing in his Rule 37 petition. But Johnson did raise that failure, after explaining the error of applying the harmless error analysis to the exclusion of a mitigating circumstance:
As discussed previously, to the extent that this matter is deemed to have been procedurally defaulted at trial or on appeal, Smith [trial counsel] was ineffective in not properly presenting and preserving it.
¶4Despite this assertion in the Rule 37 petition, the trial court ruled as follows:
Mitigation evidence. Petitioner alleged that his attorney was ineffective for not objecting to the improper restriction on mitigation evidence. The Arkansas Supreme Court when addressing the issue of improper restriction on mitigating evidence, stated that there was no prejudice because the evidence came in through another witness. Petitioner appears to be arguing an evidentiary question through the guise of ineffective assistance of counsel, and cannot do so especially when the claim was raised on direct appeal. Robinson v. State, supra. See O’Rourke v. State, 298 Ark. 144, 764 S.W.2d 916 (1989); Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985).
¶5Contrary to the trial court’s statement, the mitigation issue was not raised on direct appeal by Johnson. Rather, this court raised the issue as part of our Supreme Court Rule 4-3(h) review and then applied the harmless error analysis. See Johnson I, 308 Ark. at 26, 823 S.W.2d 810. Hence, the only opportunity for trial counsel to correct this error was on rehearing. The majority also writes that the mitigation argument is one that should have been made on rehearing in Johnson I. But, again, that failure of trial counsel to ask for rehearing in Johnson I is exactly the point. Johnson’s counsel prejudiced Johnson’s case by not doing so.
¶6The majority then concludes that even if Johnson did assert the issue of failure to ask for rehearing in his Rule 37 petition, Johnson did not suffer any prejudice by the exclusion of Dr. Moneypenney’s testimony. Specifically, the majority concludes that application of the harmless error test was proper. But this runs counter to our cases and authority from the United States Supreme Court. In Sheridan v. State, we underscored the importance of mitigation testimony:
The United States Supreme Court has held that it is a mandatory safeguard of the Eighth Amendment for the sentencing body to be allowed to consider any mitigating factor that is relevant to the particular offender’s case. California v. Brown, 479 U.S. 538 (1987); Roberts v. Louisiana, 431 U.S. 633 (1977); Gregg v. Georgia, 428 U.S. 153 (1976). The defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense. California v. Brown, supra. Not only must relevant mitigating evidence be admitted, it must be actually considered, which in appropriate cases means specifically instructing the jury to do so. Penry v. Lynaugh, supra; Eddings v. Oklahoma, 455 U.S. 104 (1982). In other words, any death sentence that results from a deliberate exclusion of any relevant mitigating evidence is presumptively invalid. Hitchcock v. Dugger, 481 U.S. 393 (1987).
¶7313 Ark. at 38, 852 S.W.2d at 779.
¶8The United States Supreme Court has addressed the precise point of whether the exclusion of proof of mitigation is prejudicial error. See Skipper v. South Carolina, 476 U.S. 1 (1985). In Skipper, the defendant was sentenced to death. The trial court, during the sentencing phase of the trial, excluded as irrelevant testimony of two jailers and a visitor who would have testified that the defendant had made a good adjustment in jail. Both the defendant and his wife had testified that he had also conducted himself well in jail. The Supreme Court reversed the death sentence and remanded for resentencing on the basis that the testimony of a mitigating circumstance by these disinterested witnesses was relevant. In doing so, the Court stated:
We think, however, that characterizing the excluded evidence as cumulative and its exclusion as harmless is implausible on the facts before us. The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses — and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges — would quite naturally be given much greater weight by the jury. Nor can we confidently conclude that credible evidence that petitioner was a good prisoner would have had no effect upon the jury’s deliberations. The prosecutor himself, in closing argument, made much of the dangers petitioner would pose if sentenced to prison, and went so far as to assert that petitioner could be expected to rape other inmates. Under these circumstances, it appears reasonably likely that the exclusion of evidence bearing upon petitioner’s behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury’s decision to impose the death sentence. Thus, under any standard, the exclusion of the evidence was sufficiently prejudicial to constitute reversible error.
The exclusion by the state trial court of relevant mitigating evidence impeded the sentencing jury’s ability to carry out its task of considering all relevant facets of the character and record of the individual offender.
¶9Skipper, 476 U.S. at 8.
¶10The facts of the instant case are analogous. But the majority opinion holds that excluding the mitigation testimony of Dr. Moneypenney concerning Johnson’s adverse background conditions was cumulative to that of his sister and, therefore, harmless. However, a sister’s testimony does not substitute for that of a disinterested witness. The jury was deprived of Dr. Moneypenney’s testimony. It was error to exclude it, and trial counsel should have petitioned for rehearing when this court affirmed the error.
¶11I believe that the exclusion of Dr. Moneypenney’s testimony on mitigating circumstances might well have affected the assessment of the death penalty. Accordingly, I would remand for resentencing. See Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992).