PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION, NO. 60CR-89-1836.
Jennifer Horan, Federal Defender, by: Josh Lee; and Joseph W. Luby, Death Penalty Litigation Clinic, for petitioner.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for respondent.
MOTION TO RECALL THE MANDATE
PAUL E. DANIELSON, Associate Justice.
Petitioner Bruce Earl Ward moves this court to recall the mandate in Ward v. State, 308 Ark. 415, 827 S.W.2d 110, 831 S.W.2d 100 (1992) ( Ward I ), the direct appeal of his conviction for capital murder. In Ward I, this court affirmed Ward's conviction for capital murder, but reversed his death-penalty sentence and remanded for resentencing. In the instant motion to recall the mandate, Ward asserts that a recall is warranted because there was a defect or breakdown in the appellate process when this court failed to recognize the circuit court's violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and appellate counsel failed to raise the issue in Ward's direct appeal. We deny the motion.
The facts relevant to the instant motion, as taken from the record, are these. Ward was charged with capital murder in connection with the death of Rebecca Doss, a clerk at a Jackpot convenience store in Little Rock. At his plea and arraignment hearing, Ward pleaded not guilty to the charge. At the hearing on October 9, 1989, the circuit court asked whether there was any possibility of Ward claiming that he was not guilty by reason of mental disease or defect. Ward's defense counsel answered in the affirmative, but explained that he wished to communicate more with Ward about it and would keep the court apprised.
Ward subsequently changed his plea to not guilty by reason of mental disease or defect, and the circuit court entered an order for Ward's commitment to the Arkansas State Hospital for examination and observation for a period not to exceed thirty days. The report by Drs. Michael Simon, the supervising forensic psychologist, and O. Wendell Hall, the forensic medical director, resulting from that examination was filed with the circuit court on December 14, 1989, and provided, in relevant part:
This is to certify that this is a true and correct report of the findings in the above case as derived from the following: 1) Historical data from outside sources; 2) Medical history, physical and neurological examinations; 3) Laboratory and other physical studies; 4) Psychological assessment by staff psychologist.
Diagnosis: Axis I - None; Axis II - Antisocial Personality Disorder.
The defendant appears to be aware of the nature of the charges and the proceedings taken against him. He is capable of cooperating effectively with an attorney in the preparation of his defense.
At the time of the commission of the alleged offense, the defendant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
Ward disputed the report and requested a competency hearing, which was held on January 18, 1990. At the hearing, Dr. Simon, who had been Ward's evaluating
psychologist, testified that Ward spent around sixteen days on the forensic unit of the hospital, arriving on November 29, 1989, and departing around December 14 or 16. During that time, Dr. Simon said, he had interviewed Ward twice and had seen him at a staffing. Dr. Simon testified that while he could not recall the specifics of his first interview with Ward, he assumed that he had interviewed him, which would have included discussing why Ward was there, if Ward understood why he had been sent to the hospital, and what the hospital's role was and what it was to do. Dr. Simon's belief was that the first interview lasted anywhere from forty-five minutes to an hour in duration.
Dr. Simon testified that in the subsequent interview of Ward, which he surmised lasted a little longer than the first, he had performed a verbal IQ test on Ward that he believed to be " fairly reliable." He stated that Ward had scored well above average, which would rule out any kind of mental retardation. Dr. Simon further testified that he had administered a " proverbs test" and the " Competency to Stand Trial Assessment Instrument."
With regard to the report filed with the court, Dr. Simon testified that the historical data to which he referred was information from Pennsylvania, where Ward had previously spent time; he was unsure, however, of the source of the information, stating that it came from either the Pennsylvania Department of Correction or the police. Dr. Simon further explained that physical and neurological examinations were routine and, he assumed, had been conducted. Finally, when asked of his psychological assessment referenced in the report, Dr. Simon responded that Ward's Axis II diagnosis of antisocial ...