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January 3, 1990

A.L. "ART" LOCKHART, Director Arkansas Department of Corrections and STEVE CLARK, Attorney General of the State of Arkansas, RESPONDENTS

The opinion of the court was delivered by: WOODS


 On March 22, 1981 the petitioner, presently a death row inmate at the Arkansas penitentiary, shot and killed Arthur Criswell and wounded two others at a Conway, Arkansas restaurant. For two days the police searched for Ricky Ray Rector since he was known to be the assailant. A uniformed Conway police officer, Bob Martin, on March 24, 1981 went to the home of Rector's mother. As set forth by the Supreme Court of Arkansas, the following events then occurred:

While the officer was talking to Rector's mother, sister, and nephew, Rector entered the back of the house and came into the living room. Rector and the officer knew each other and may have exchanged a few words of greeting. Within a few minutes Rector, who had not joined in the conversation, drew a pistol and shot Officer Martin twice. Rector left by the back door and said to his nephew's wife, whom he met crossing the yard: "I just shot that cop." A few moments later Rector attempted suicide by shooting himself in the forehead, the bullet entering the front part of his brain. That evening the wound was surgically cleaned and closed.

 Rector v. State, 280 Ark. 385, 388, 659 S.W.2d 168 (1983).

 Rector was first tried for the murder of Arthur Criswell. Prior to that trial, a hearing was held on September 28, 1981 in response to a motion by Rector's counsel suggesting that Rector was mentally incompetent. On evidence which the Arkansas supreme court characterized as being in "hopeless conflict," the trial judge found that Rector was competent to stand trial. The jury convicted him of first degree murder, and he was sentenced to life imprisonment. The Supreme Court of Arkansas affirmed the conviction. Rector v. State, 277 Ark. 17, 638 S.W.2d 672 (1972).

 After this affirmance on September 18, 1982, Rector was tried for the capital murder of Officer Martin. Defense counsel again on October 7, 1982 moved for a second hearing to determine Rector's compentency. Such a hearing was held on October 25, 1982. Two psychologists, Dr. Douglas Brown and Dr. Douglas A. Stevens, testified on behalf of Rector. Brown had also testified at the competency hearing on September 28, 1981 prior to the trial for the murder of Criswell. Ron Heller, an attorney for Rector in the Criswell case, also testified in his behalf at both hearings. All three of these individuals testified in the habeas hearing before me, along with Dan Stripling, his attorney in the capital murder trial, and Rector's sister.

 At the competency hearing on October 25, 1982, the State adduced testimony from two psychiatrists, Dr. Gregory Kaczewski and Dr. Sayel K. Hamed, and two psychologists, Dr. John Anthony Hall and Dr. Joe Alford. The testimony of all these witnesses is transcribed in Petitioner's Exhibit 9. The testimony is abstracted in Defendant's Exhibit 2. After hearing this testimony, the trial judge again found Rector competent to stand trial. The jury found him guilty, and he was sentenced to death on November 11, 1982.

 The competency ruling was one of the issues raised on the appeal of Rector's death sentence to the Supreme Court of Arkansas. In affirming his capital murder conviction, Justice George Rose Smith wrote for a unanimous court:

A second argument for reversal is that the trial judge should have found Rector incompetent to stand trial against the death penalty. A parallel question of competency was decided adversely to Rector on his earlier appeal from his conviction for the murder of Arthur Criswell. Rector v. State, 277 Ark. 17, 638 S.W.2d 672 (1982). The proof in the two cases is quite similar, although in this case a witness for the State, Dr. Hamed, thought that Rector's condition was much improved as compared to the time Dr. Hamed saw Rector soon after his surgery.
The expert proof is in sharp conflict, as it was on the other appeal. It is argued, however, that it takes a higher degree of competency to defend against the death penalty; so the two appeals are distinguishable. No doubt the issues may be more extensive in a death case, in which aggravating and mitigating circumstances are involved, but we do not discern any basis in the testimony for relating Rector's mental condition to the defense of a capital charge in particular. We must conclude, as we did on the earlier appeal, that the trial judge's decision is not clearly erroneous.

 Rector v. State, 280 Ark. 385, 397, 659 S.W.2d 168 (1983). The Supreme Court of the United States denied certiorari. Rector v. Arkansas, 466 U.S. 988, 80 L. Ed. 2d 842, 104 S. Ct. 2370 (1984).

 In his original habeas corpus petition, Rector raised a number of issues later abandoned. He then filed an amended petition in which the lone contention was an absence of the requisite mental capacity to be put to death by the State of Arkansas, citing ACA ยง 5-2-302:

No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

 Amended Petition for Writ of Habeas Corpus at 13. Rector also claims that his Eighth Amendment rights would be violated by his execution.

 Since the habeas petition requested that he be given a mental examination, I sent him to the federal correction facility at Springfield, Missouri for a complete psychiatric evaluation. The reports concerning Rector's evaluation are contained in Petitioner's Exhibits 1-7, received by agreement.

 A hearing on Mr. Rector's habeas petition was noticed on October 10, 1989 and scheduled for December 7, 1989. On December 4, 1989 without objection Rector was permitted to amend his habeas petition. In his amended petition Rector claims as an additional ground that he was not competent to stand trial for capital murder. He further asserts that his mental capacity at the trial was so diminished as to deny him the effective assistance of counsel as guaranteed by the Sixth Amendment.

 There are thus only two contentions in this habeas proceeding: (1) Rector's present mental ability should prevent his execution; and (2) Rector's mental ability at his capital murder in 1982 was so diminished that he was unable to receive the requisite assistance of counsel so as to satisfy the Sixth Amendment.

 I will discuss these contentions in reverse order and initially take up the matter of whether the state court judge erred in holding that Rector was competent to stand trial in November of 1982 and able to render the requisite assistance to his counsel. Petitioner has thrust a heavy burden upon this court in asking that a determination be made of his mental condition seven years ago.

 It must be remembered that Rector does not now contend that he had mental problems at the time he shot Officer Martin, but that problems arose thereafter as a result of a self-inflicted gunshot wound.

 Six expert witnesses testified in the competency hearing on October 25, 1982 before Circuit Judge George F. Hartje. Two psychiatrists and two psychologists testified for the State. Two psychologists testified for the defense. Dr. Douglas A. Brown for the defense testified that in his opinion "Ricky is not competent to assist meaningfully in his defense of his own life in a capital case." On cross-examination he testified as follows:

Q. He still understands the nature, seriousness and consequences of his actions?
A. Yes, I believe he does.
Q. He understands the punishment?
A. He understands it in an intellectual level, yes.

 PX 9, pp. 115-16.

 Dr. Stevens, the other psychologist who testified for the defense, was present during the testimony of Dr. Brown. He agreed with Dr. Brown that Rector was not able to assist in his defense because of diminished mental ability. He testified that "I think the critical thing is that he has no seeming memory for the events associated with this trial, and the report that he gives me is bizarre." (PX 9, p. 125).

 The testimony that Rector was not able to assist in his own defense was flatly contradicted by the State's experts. Dr. John Anthony Hall, a psychologist, testified as follows:

A. I think he's capable of assisting in his defense. Again, he seems to be able to express himself quite openly. His defense seems to be fairly clearly stated to us that he doesn't remember anything. He was able to express that quite clearly. Oh, I believe that there is no emotional interference with his defense -- with his assisting in his defense.

 PX 9, p. 137.

 Dr. Gregory Kaczewski, a psychiatrist, gave his opinion as follows:

Q. . . . Doctor, do you have an opinion about whether or not Mr. Rector is capable of assisting his counsel in his defense of the charges now pending against him that carry with it the potential death penalty?
A. I believe that Mr. Rector is competent and is capable of assisting his defense attorney in his own defense. I did not see him as apathetic and unemotional as some of the other people have seen him.

 PX 9, p. 151. Dr. Kaczewski was of the opinion that Rector was faking in some of the interviews and tests. (PX 9, pp. 156-57). He further testified as follows:

Q. Do you feel that he understands the nature of the charges and the proceedings that he's involved in right now?
A. Yes.
Q. And the seriousness ...

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