BY MELANIE BUCK –
Lori Rose appeared in Polk County Circuit Court last week [Thursday, June 23, 2016], with her new lawyer, Ernie Witt, of Witt Law Firm in Ozark, Ark., who argued ‘ineffective counsel’ in an effort to receive a new trial or a lesser sentence. Rose was convicted and sentenced in October 2014 to 36 years on charges of Aggravated Residential Burglary, Aggravated Assault, Domestic Battery (2nd Degree), and Terroristic Threatening (2nd Degree) for the shooting of Billy Vaught in his home in November 2013.
After losing in the Arkansas Court of Appeals in October 2015, Rose now brings the case back to Polk County Circuit Court for a Relief Hearing. Although Rose hired attorney Greg Klebanoff of Fayetteville to defend her during the original trial, Rose is now represented by Witt.
In Polk County Circuit Court on June 23, 2016, Witt argued that Rose suffered ineffective assistance of counsel during her original trial. Judge Ted Capeheart, who presided in the original case, also heard arguments on Thursday. Witt listed nine alleged reasons of ineffective assistance, in which he questioned Klebanoff on the stand. The reasons included failure to investigate the case; failure to file a Motion to Suppress; failure to move for mistrial after the use of the word ‘victim’ which was denied during trial by a Motion in Limine to prevent the use of the word; failure to introduce evidence; failure of adequately discussing the facts of the case and trial strategy with the defendant; failure to move for a directed verdict; failure to interview all witnesses; failure to call witnesses; failure to obtain and utilize jury questionnaires; failure to object to sentencing forms in the case.
Some of the points that Witt cited while Klebanoff was on the stand were his failure to send all documentation to her current attorney (Witt), saying he had to retrieve the information from Prosecuting Attorney Andy Riner. According to Witt, the word ‘victim’ was used to describe her estranged boyfriend, Billy Vaught, four times during the trial. Witt asked why Klebanoff didn’t move for a mistrial after the use of the word ‘victim’ after the judge prohibited the word. Klebanoff responded, “It never occurred to me that that would be sufficient reason for a mistrial.” The use of the word ‘victim’ was not allowed during trial due to Vaught’s then alleged sexual assault of a family member of Rose. Vaught later pled guilty to those charges under Special Prosecutor Jason Barrett of Little Rock who was brought into the case. Prosecuting Attorney Andy Riner was unable to handle that case due to being the prosecutor in the Rose case.
Witt said that even if the judge would’ve denied a mistrial, an attorney could’ve moved to have the jury instructed to disregard the word. Klebanoff argued he doesn’t remember the word being used in the trial.
Also pointed out by Witt was a text message from Vaught to Rose stating that she was always welcome in his home. The text message was received just days before the shooting incident occurred. This point is key to the defense of the case because the failure to introduce the referenced text as evidential proof before the jury provided opportunity for the prosecution to call Rose’s testimony of the aforementioned text to be ‘self serving testimony.’ Witt asked Klebenoff why he didn’t enter the text as evidence, as well as other texts made that day by both parties, and he responded by saying that Vaught himself said it on the stand. However, Witt argued, that because it was not presented as actual evidence, it was considered not credible, and caused the charge of Residential Burglary, which carried the longest sentence for Rose. Witt said in the Petition for relief that the introduction of the text in question, as well as others, “would have bolstered the defendant’s credibility. This credibility was challenged by the state, when it argued that the defendant’s ‘self-serving testimony’ concerning the alleged text message was not worthy of belief.”
Witt also questioned Klebanoff on the lack of communication with Rose. In the petition, Witt states, “He [Klebanoff] met with the Defendant three times prior to trial. The first was when she retained him… the second was when trial counsel and his wife met the defendant at defendant’s residence… The final meeting was the date of trial.” He goes on to say that Klebanoff denied Rose’s phone calls and failed to adequately discuss the case with Rose. “This attitude of trial counsel toward the Defendant is best exemplified by various letters he sent to the Defendant after the trial in which he profaned her and indicated he would have done more for her had he been paid according to his wishes. Trial counsel essentially admitted he was ineffective due to lack of payment of some of his fee.” Klebanoff did admit that Rose had paid him $7,000 but that was not his entire fee.
After hearing the cross-examination of Klebanoff by Riner, Judge Capeheart requested more information from both the prosecutor and defense counsel, such as the minimum requirements of jury selection, before he makes his ruling. The two have three weeks to submit the information requested.