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Davis v. State

Supreme Court of Arkansas

March 1, 2018

DON WILLIAM DAVIS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-91-80-1] HONORABLE ROBIN F. GREEN, JUDGE.

          Jennifer Horan, Public Defender, by: Scott W. Braden, April Golden, and Deborah Sallings, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kelly Fields, Senior Ass't Att'y Gen., for appellee.

          SHAWN A. WOMACK, ASSOCIATE JUSTICE.

         Don William Davis asks this court to recall its mandate in his direct appeal affirming his conviction for capital murder and death sentence. Davis v. State, 314 Ark. 257, 260, 863 S.W.2d 259, 260 (1993), cert. denied, Davis v. Arkansas, 511 U.S. 1026 (1994). On April 12, 2017, Davis filed a motion to recall the mandate and stay his execution. This Court granted Davis's motion to stay his execution and took his motion to recall the mandate as a case. In his motion, he argues that he did not receive the minimum due-process requirements prescribed in Ake v. Oklahoma, 470 U.S. 68 (1985) because we have incorrectly interpreted and applied Ake, and because of our misapplication, he did not have access to an independent mental health expert to assist in his defense. We conclude that he has failed to demonstrate a breakdown in the appellate process to justify the recall of the direct-appeal mandate. We therefore deny his motion and lift the stay of his execution.

         I. Factual and Procedural Background

         Davis was charged and convicted of the capital murder of Jane Daniel, theft of property, and burglary. Prior to his trial, the Benton County Circuit Court ordered Davis to be examined by Dr. Jenkins at Ozark Guidance to determine whether "there are reasonable grounds to believe the defendant to be presently insane or that he was insane at the [time] of the alleged offenses." Jenkins conducted the examination and concluded that there was no evidence that he was psychotic at the time of the interview or at the time of the offense. His letter did state that he had a diagnosis of "Attention-deficit Hyperactivity Disorder residual" ("ADHD") which could have contributed to the crime but did not constitute a psychosis.

         Davis filed a motion for an additional psychiatric evaluation based on Jenkins's opinion that his hyperactivity disorder could have contributed to the crime and that he was entitled to an examination by the state hospital to explore mitigating evidence. The State joined his motion, and the circuit court entered an order committing him to observation at the Arkansas State Hospital. The physicians at the state hospital returned their five-page report and concluded that Davis was competent to stand trial and that he did not appear to "suffer from a mental disease . . . which would preclude criminal responsibility." The report was based on evaluations performed by Dr. John Anderson and Dr. Wendell Hall, as well as interviews performed by Mrs. Robertson with Davis's uncle and father. The examiners diagnosed him with alcohol abuse, psychoactive substance abuse, and "Antisocial Personality Disorder." The report also detailed Davis' history of learning disabilities, hyperactivity, troubled family history, and previous stretches of incarceration.

         After the report was issued, the circuit court conducted a pre-trial hearing and concluded that Davis was competent to proceed to trial. During the hearing, Davis's attorney made an oral motion to hire an independent psychiatrist on the basis that there is no doctor-patient confidentiality with the state psychiatrists and to explore potentially mitigating evidence. The circuit court denied the motion.

         Thereafter, Davis made another written request to obtain funds to employ an independent expert psychiatrist based on Ake;[1] he later amended his motion to request $2, 000 to employ Dr. Marr, a clinical psychologist located in Fayetteville, Arkansas. The court held a hearing on Davis's written motions to hire an independent psychiatric expert. The court noted that after reviewing the file there was no finding in the state hospital report regarding "whether or not Mr. Davis was suffering from any mental or emotional disturbance, or under the influence of any kind of mental or emotional disturbance at the time" despite the amended order requiring the state psychiatrists to make findings regarding mitigation. The court held the matter under advisement until the defense had access to the medical records and the opportunity to interview the staff because the "psychiatrists [might] . . . support those things hinted at in the report from Jenkins, or might provide the necessary mitigation that the Defense might desire."

         During the sentencing phase of the trial, Davis called Jenkins to testify. He testified that he diagnosed Davis with ADHD and recounted his substance-abuse history. Jenkins also testified regarding Davis's troubled family history, that he was raised by his grandmother after his parents deserted him and his sister. However, Jenkins also found that the report from the Arkansas State Hospital reflected his findings. Jenkins specifically opined that Davis was competent to stand trial, was not out of touch with reality, could distinguish between right and wrong, and could appreciate the criminality of his conduct. The jury sentenced Davis to death, and we affirmed on direct appeal. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993).

         After Davis's trial and in his Rule 37 postconviction proceeding, Jack Martin testified that he was hired by the Benton County Public Defender's Office in 1990 and served as co-counsel with Tim Morris. Martin testified that they asked several times for funds to hire an independent counselor but never received any. He also testified that the Arkansas State Hospital and Jenkins were not helpful in developing a specific strategy for the defense at the sentencing phase of the trial. Tim Morris testified that after the judge made his conditional ruling, he interviewed both doctors at the state hospital in Little Rock. The doctors were willing to sit down and talk with him but were unwilling to discuss the mitigating factors he was interested in talking about. He then decided to proceed with Jenkins during the sentencing phase because he was more sympathetic to his case. We affirmed the denial of his petition. Davis v. State, 345 Ark. 161, 168, 44 S.W.3d 726, 729 (2001).

         II. Standard of Review in Motion to Recall the Mandate

         This court has the inherent power to recall its mandate but will exercise that power only in the most "extraordinary circumstances" to be used as a last resort to address "grave, unforeseen contingencies." Ward v. State, 2015 Ark. 61, at 3, 455 S.W.3d 818, 820; Nooner v. State, 2014 Ark. 296, at 9, 438 S.W.3d 233, 240 (citing Calderon v. Thompson, 523 U.S. 538 (1998)). To establish the extraordinary circumstances required, we have enumerated certain factors we consider, namely: (1) the presence of a defect in the appellate process, (2) a dismissal of proceedings in federal court because of unexhausted state-court claims, and (3) the appeal is a death case that requires heightened scrutiny. Wertz v. State, 2016 Ark. 249, at 5, 493 S.W.3d 772, 775. A defect in the appellate process is "an error alleged to have been made by this court during the course of its appellate review" of a death-penalty case. Nooner, 2014 Ark. 296, at 8, 438 S.W.3d at 239. Such an error is distinguished from one that "should have been raised to the trial court" and could not be "considered as falling within one of the so-called Wicks . . . exceptions, " or ...


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