FOR WRIT OF CERTIORARI HONORABLE GARY R. COTTRELL, JUDGE
Brain, for petitioner.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
R. BAKER, Associate Justice
January 28, 2016, petitioner, Rickey Dale Newman filed a
motion to dismiss for violation of right to speedy trial with
the circuit court. On March 10, 2016, the circuit court
denied the motion. Newman now seeks a writ of certiorari
vacating the circuit court's order.
procedural history of Newman's case is necessary to an
understanding of Newman's petition for writ of
certiorari. On June 10, 2002, Newman, was convicted in the
Crawford County Circuit Court of one count of Capital Murder
and sentenced to death. On January 16, 2014, we vacated
Newman's conviction and sentence and remanded the case to
the circuit court for a new trial on the grounds that Newman
was not competent to stand trial in 2002. Newman v.
State, 2014 Ark. 7, at 29. The mandate issued on
February 5, 2014. On February 28, 2014, in response to the
mandate, the circuit court issued an order suspending
proceedings and committing Newman to the custody of the
director of the Arkansas Department of Human Services
"for detention, care, and treatment until restoration of
fitness to proceed."
was transported for the assessment, but on the advice of his
counsel, Newman refused to cooperate. On April 21, 2014, Dr.
Mark Peacock, Ph.D., of the Arkansas State Hospital filed a
report with the circuit court. In this report, Peacock stated
he could not assess "the true extent of Mr. Newman's
knowledge of the adjudicative process and his capacity to
provide effective assistance to his attorney" but that
Newman's "conversations with staff and his conduct
since admission [had] not raised suspicion that his lack of
cooperation with restoration or evaluation efforts is based
in any substantially impairing mental disease or mental
defect." Peacock further opined that Newman's
refusal to cooperate with the mental examination was a
"knowing and voluntary" act and "any ongoing
efforts to forcibly treat or 'restore' [Newman's]
adjudicative fitness [would] only serve to create a
potentially unsafe or openly defiant situation" that
would not serve the interests of any party.
5, 2014, Newman filed a request to disqualify the prosecuting
attorney and his office. On August 27, 2014, the circuit
court granted the motion and appointed a special prosecutor.
The circuit court rescheduled the trial for October 27, 2014;
however, the special prosecutor requested a continuance. The
circuit court rescheduled the trial for April 6, 2015.
October 10, 2014, the special prosecutor filed a motion
seeking a fitness examination of Newman. This motion was
based on the previous judicial findings of Newman's
incompetence and the content of a letter, written by Newman,
without the knowledge of his counsel, and addressed to the
court, in which Newman stated that he did not feel his
circumstances regarding competency had changed since it was
determined he was incompetent to stand trial in 2002. In the
letter, Newman also maintained that he is innocent but
requested the death penalty remain an option because
"'death is [his] only peace.'" On November
6, 2014, the circuit court granted the motion, and allowed a
private psychiatrist not practicing with the Arkansas State
Hospital, Bradley C. Diner, M.D., to examine Newman. On
December 29, 2014, Newman filed a motion to disqualify the
February 26, 2015, Diner filed a report with the circuit
court in which stated he was unable to fully assess
Newman's fitness based on records alone but that he
believed Newman's behavior was deliberate. He ultimately
recommended that Newman be sent back to the Arkansas State
Hospital for assessment:
I am of the belief that Newman suffers from both mental
disease and defect.
I am not, however, certain that his psychiatric conditions
have rendered him incompetent. Specifically, I am not of the
opinion that Newman's repeated request for the death
penalty is indicative of suicidal ideation or intent and that
his "suicidality" impedes his ability to make
rational, self-protective decisions. Rather, I believe Newman
has learned to use this behavior as a way to prolong the
proceedings, tie the court's hands, and ultimately
prolong his life.
Secondly, I am uncertain that his psychiatric condition
precludes his ability to consult his attorney. . . . He has
learned that his behavior confounds and complicates his case,
thus prolonging action and simultaneously giving him power
and control. This very behavior is indicative of
understanding factually the charges against him and gives
insight into his awareness of the consequences. There is even
some indication that he knows he should be discussing his
actions with his attorney (by virtue of stating repeatedly,
"She doesn't ...