TO RECALL THE MANDATE [NO. CR-89-1836], PULASKI COUNTY
CIRCUIT COURT, HONORABLE JOHN B. PLEGGE, JUDGE
Jennifer Horan, Federal Defender, by: April Golden and Scott
W. Braden, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
R. BAKER, ASSOCIATE JUSTICE.
Bruce Earl Ward, requests this court to recall the mandate
from his resentencing in Ward v. State, 338 Ark.
619, 622, 1 S.W.3d 1, 3 (1999) (Ward III), asserting
that he was entitled to an independent defense expert to aid
in his defense regarding his competency.
early 2017, the governor of Arkansas set Ward's execution
for April 17, 2017. Subsequently, Ward filed a motion to
recall the mandate in this matter and stay of execution until
the United States Supreme Court issued its opinion in
McWilliams v. Dunn, 137 S.Ct. 1790 (2017),
contending that McWilliams had a direct impact on
his claim pursuant to Ake v. Oklahoma, 470 U.S. 68
(1985). Ward further asserts that we should overrule our
precedent holding that a competency evaluation at the
Arkansas State Hospital satisfies Ake. We granted
the stay of execution and took the motion as a case.
a death-penalty case with a long history before this court.
The facts of Ward's underlying case are as follows:
[O]n August 11, 1989, Little Rock Police Sergeant Michael
Middleton was patrolling the area near the Jackpot
convenience store on Rodney Parham Drive. Upon pulling into
the parking lot, he noticed that the store's clerk was
not at her normal work station. He then went into the store
to try and locate the clerk. After he had looked through the
store and was unable to find the clerk, Middleton called
other officers to assist in the search. In the meantime,
Middleton began to check outside the store, near the
restrooms. He observed Ward walking from the restrooms toward
a motorcycle that was parked nearby. Middleton spoke to Ward
and told him that he was looking for the store's clerk.
Ward told the officer that the clerk was inside the store,
stocking. Ward stated that he had just had a cup of hot
chocolate with the clerk and that she had given him the key
to the restroom. Moments later, Sergeant Scott Timmons
discovered [Rebecca] Doss's body lying on the floor of
the men's restroom. She had been strangled to death. Ward
was arrested and subsequently convicted of the murder.
Ward III, 338 Ark. 619, 622, 1 S.W.3d 1, 3.
Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992)
(Ward I), we affirmed Ward's capital-murder
conviction for the death of Doss. Although we affirmed
Ward's conviction, we reversed and remanded for
resentencing based on an evidentiary error. Upon remand, Ward
was again sentenced to death. However, we reversed and
remanded his sentence for a second time because a transcript
of the record from the second sentencing was incomplete.
Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995)
(Ward II) (per curiam). At his 1997 sentencing, Ward
was sentenced to death for a third time. We affirmed his
sentence on appeal in Ward III. Ward next filed a
petition for postconviction relief under Ark. R. Crim. P.
37.5. We affirmed the circuit court's denial of that
petition in Ward v. State, 350 Ark. 69, 84 S.W.3d
863 (2002) (Ward IV). On July 16, 2010, Ward filed a
petition to reinvest jurisdiction in the circuit court to
consider a petition for a writ of error coram nobis asserting
he was incompetent at the time of trial and entitled to a
writ of error coram nobis. On September 30, 2010, we
summarily denied Ward's petition.
2013, Ward next filed motions to recall the mandates from his
direct appeal (Ward I), resentencing (Ward
III), and the denial of postconviction relief (Ward
IV) based on his mental competency and asserted that
this court should overrule its precedent pertaining to
Ake. In Ward v. State, 2015 Ark. 60, 2, 455
S.W.3d 818, 820 (Ward V), we denied the motion to
recall the mandate in Ward's direct appeal. In Ward
VI, 2015 Ark. 61, at 2, 455 S.W.3d 303, at 305, we
denied Ward's motion to recall the mandate in Ward's
resentencing. In Ward v. State, 2015 Ark. 62, 1, 455
S.W.3d 303 (Ward VII), we denied the motion to
recall the mandate in Ward's postconviction matter.
Accordingly, we denied all three motions to recall the
before the court, Ward has filed a motion to recall the
mandate in Ward III, asserting again that Ward was
entitled to an independent mental health expert under
Ake; that this court misinterpreted Ake;
that McWilliams could possibly be a seminal case in
this area; and that the court should therefore stay his
execution pending resolution of this matter. On April 17,
2017, we took the motion as a case and entered a stay of
execution. On June 19, 2017, the Supreme Court issued its
opinion in McWilliams, and the issue of whether to
recall the mandate in Ward's case is now before us. We
deny the motion to recall the mandate for the reasons
for Recalling the Mandate and the Doctrine of Law of the
power of an appellate court to recall its mandate, if the
circumstances warrant it, is recognized both in federal
courts and state courts across the country." Robbins
v. State, 353 Ark. 556');">353 Ark. 556, 563, 114 S.W.3d 217');">114 S.W.3d 217, 221 (2003)
(internal citations omitted). This court will recall a
mandate and reopen a case only in extraordinary
circumstances. Id. In Nooner v.
State, 2014 Ark. 296, at 7-8, 438 S.W.3d 233, 239,
we explained our standard for recalling a mandate:
[O]ur decision in Robbins is patently clear that
recall of our mandate is an extremely narrow remedy. Indeed,
we stated in Robbins that recall of our mandate is
to be granted only in extraordinary circumstances as a last
resort to "avoid a miscarriage of justice" or
"to protect the integrity of the judicial process."
See Robbins, 353 Ark. [556, 563], 114 S.W.3d [217,
222 (2003)](quoting Calderon v. Thompson, 523 U.S.
538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), and
Demjanjuk v. Petrovsky, 10 F.3d 338, 357 (6th
Regardless of any inconsistencies in our decisions concerning
the mandatory satisfaction of the three
Robbins[] factors, what has remained consistent in
these cases has been a discussion of the three
Robbins factors and this court's overarching
concern that we will reopen a case only to address an
"error in the appellate process, " meaning an error
that this court made or overlooked while reviewing a case in
which the death sentence was imposed. See, e.g.,
Engram v. State, 360 Ark. 140, 147, 148, 200 S.W.3d
367, 369, 370 (2004) (observing that the purpose of recalling
the mandate in Robbins was to "correct an error
in the appellate process" and emphasizing that "the
Robbins case hinged on the fact that an error was
made during this court's review, and the recall of the
mandate was intended to give this court an opportunity to
address an issue it should have addressed before"). We
have also been consistent in considering motions to recall
mandates in criminal cases only where the death penalty has
been imposed. See, e.g., Maxwell v. State,
2012 Ark. 251 (per curiam).
Nooner, 2014 Ark. 296, at 8-9, 438 S.W.3d at 239.
Accordingly, circumstances requiring this court to recall a
mandate occur in extremely limited circumstances.
with regard to the doctrine of law of the case, in United
Food & Commercial Workers International Union v.
Wal-Mart Stores, Inc., 2016 Ark. 397, 504 S.W.3d 573, we
explained the law-of-the-case doctrine:
[T]he doctrine of law of the case prohibits a court from
reconsidering issues of law or fact that have already been
decided on appeal. The doctrine provides that a decision of
an appellate court establishes the law of the case for trial
upon remand and for the appellate court itself upon
subsequent review. The doctrine serves to effectuate
efficiency and finality in the judicial process, and its
purpose is to maintain consistency and to avoid
reconsideration of matters once decided during the course of
a single, continuing lawsuit.
a general rule, we are bound to follow prior case law under
the doctrine of stare decisis, a policy designed to lend
predictability and stability to the law." Ward
VII, 2015 Ark. 62, at 5, 455 S.W.3d at 833.
The Court Should Recall the Mandate in Ward's
Resentencing to Correct a Defect in the Appellate
Ward's motion to recall the mandate, he asserts that he
was denied the assistance of a mental-health expert to
evaluate, prepare, and present a defense in violation of
Ake and urges the court to grant his motion.
Ward's argument is two-fold. First, he asserts that the
State did not meet the minimum Ake requirements,
arguing that this court's interpretation of Ake
is a defect in the appellate process. Second, Ward contends
that McWilliams clarifies the Ake
requirements, and he urges this court to recall the mandate
from his resentencing, alleging that his case does not comply
we review Ward's allegation that there is a defect in the
appellate process and that this court's interpretation of
Ake "falls dramatically short of what
Ake requires." Ward contends that this court
has misinterpreted and erroneously applied the Ake
standard for thirty years. Ward repeatedly asserts that this
court has held that an examination by a "state doctor
meets the requirements of Ake." Ward reshashes
the same arguments he made in Ward VI, where we
recounted Ward's claims as follows:
[W]e turn to the facts of Ward's case. At the time of his
1997 sentencing, Ward must have made the threshold showing
that his sanity at the time of the offense would be a
significant issue and an error occurred in this court's
review that requires us to recall the mandate in Ward
III. The record demonstrates that on February 14, 1997,
Ward filed a motion for appropriation of funds for expert
assistance pursuant to Ake. In Ward's motion, he
stated in pertinent part:
Mr. Ward requests an ex parte hearing on this motion under
the authority of Ake v. Oklahoma, 470 U.S. 68
(1985). This request is made because defense counsel does not
wish to unnecessarily disclose the defense mitigation case.
The reasons in support of this motion are set out in the
Counsel for Mr. Ward represents to the Court that she has
probable cause to suspect that the utilization of these
particular experts will produce mitigating evidence. It is
the professional judgment of defense counsel that this
information is necessary in order to adequately represent Mr.
Ward and that these steps would most certainly be undertaken
in the course of representation provided to a similarly
situated client in a retained counsel case.
On February 27, 1997, the circuit court denied the
Ake motion. At the pretrial hearing, Ward stated
several times that he was not interested in resentencing and
wanted to be released from prison or reinstate the death
penalty. Additionally, Ward refused to cooperate in 1996 with
the state hospital for a mental evaluation. On October 7,
1997, pursuant to both parties' request, the circuit
court ordered Ward to undergo an Act III evaluation. On
October 17, 1997, Michael Simon, Ph.D., a forensic
psychologist, attempted to conduct an evaluation of Ward and
submitted a report to the circuit court on that same date.
The evaluation stated in pertinent part:
On 10/17/97, a forensic evaluation team consisting of Wendell
Hall, MD., Michael I. Simon, PhD., and Maria Gergely,
L.C.S.W. made an attempt to evaluate Mr. Ward. He was brought
to a conference room to meet with the evaluation team at the
Arkansas State Hospital. He was neatly dressed in an, orange
jumpsuit. He began the interview by stating, "I cannot
comply with the evaluation, " He did say his attorneys
filed a motion for evaluation and he tried to remove their
motion. The court denied them and ordered him to appear for
evaluation. He politely informed us "I am
competent" . . . "I have a right to remain silent,
" . . . "I am not going to submit to
evaluation." At this point the evaluation was
terminated. Thus, in summary, the evaluation could not be
completed due to Mr. Ward's unwillingness to participate.
There was no evidence to indicate that this unwillingness was
due to mental disease or defect. During our brief interview
with Mr. Ward, he interacted in a logical, coherent manner
and exhibited no signs of psychosis. Thus, in summary, Mr.
Ward refused to cooperate with this evaluation and there was
no indication that this uncooperativeness was due to any Axis
I mental disorder.
Ward's 1997 resentencing trial, Ward presented several
witnesses through video-taped statements. Ward presented
testimony of three educators from the Erie, Pennsylvania
school system where he attended school. Thomas Ritter, a
teacher and guidance counselor, testified that he taught Ward
in 1965 and 1966 and was also his guidance counselor in the
1970s. Ritter testified that Ward did not have success in
school and that Ward was disruptive, and without provocation
was aggressive toward other students, but when Ritter spoke
to Ward about this behavior he had a "blank stare . . .
there was no comprehension that he did anything wrong."
Ritter further testified that he knew something "was
basically wrong" with Ward but that he did not refer him
to a psychologist because at that time the school system had
very limited access to psychologists and based on Ward's
testing he had the ability to learn. Ritter also testified
that Ward exhibited "hostile behavior . . . bizarre
Catherine Fayenmeyer, a guidance counselor in Wattsburg,
Pennsylvania from 1965 to 1975, testified that she met with
Ward ten to twelve times over a five-year period and knew
Ward well. She testified that Ward came to see her mainly for
disciplinary problems. She further testified that Ward did
not put forth effort in school and was disruptive in class.
Fayenmeyer testified that Ward was very bright but had very
few friends and did not engage in any activities at school.
She testified that Ward was "exceptional" because
he did not need classes for "dull students, " but
she opined that the opportunity to work one on one with a
teacher would have made a significant difference for him.
Wortham, an education specialist in the City of Erie,
Pennsylvania in the 1960s and 1970s and who was also part of
the Civil Air Patrol Program, worked with Ward for
approximately a year and a half when Ward was a cadet in the
program. Wortham testified that Ward did well in the
structured Civil Air Patrol program and was good with outdoor
work and compassing. He also testified that Ward was good
with adults, but had emotional problems dealing with his
peers and life in general. Wortham testified that he
recommended to Ward's family that they seek psychiatric
help for Ward. He also testified that Ward got "into
trouble" when alcohol was present.
the deposition of Dr. Anthony Cillufo, a psychologist, was
read into the record as part of Ward's 1997 sentencing.
Dr. Cillufo testified that on April 22, 1977, he conducted a
three-hour interview of Ward at the Erie County jail. He
testified that he conducted a battery of tests and an
extensive clinical interview with Ward, including talking
with Ward about his life history, family relationships, and
sexual history. Dr. Cillufo diagnosed Ward as an anxious,
shy, alienated man of average intelligence, with a propensity
for acting violently as part of a mixed personality disorder.
He further testified that Ward had features of social
personality or explosive personality as well as
passive/aggressive and paranoid disorders, and a secondary
diagnosis of alcoholism. Further, Dr. Cillufo testified that
Ward could possibly have had some early history of minimal
brain dysfunction and a slight possibility of neurological
damage as Ward had reported fainting spells or blackouts. Dr.
Cillufo testified that his main diagnosis was mixed
also presented testimony from Tom Devine, an attorney at the
Pulaski County Public Defender's Office. Devine testified
that he had known Ward for twelve and a half years and Ward
made paintings and drawings for him.
Wayne Brossett had testified at Ward's first trial, and
his testimony was also read into the record during Ward's
1997 sentencing. Brossett testified that he was a nursing
student at Arkansas Children's Hospital in 1989 and was
working at Joubert's, a local tavern. Brossett testified
that Ward was at Joubert's on the night of Doss's
murder and that Ward drank a few beers and played some pool
and left the tavern around midnight.
reviewed Ward's presentation of evidence at the 1997
sentencing, we turn to Ward's argument in his motion to
recall the mandate regarding an alleged Ake
violation. In asserting that this court should recall the
mandate on this point, Ward relies primarily on a report from
Dr. William Logan, a forensic psychiatrist. Logan's
forty-one-page report regarding Ward's 1997 sentencing
can be summarized as follows. Logan diagnosed Ward with
"schizophrenia, paranoid type, as evidenced by a
preoccupation with persecutory and grandiose delusional
ideas, and occasional hallucinations and disorganized
thinking." Dr. Logan examined Ward on October 22, 2008.
Dr. Logan completed a three-hour examination on Ward at the
Varner Supermax Unit. According to his report, Dr. Logan
reviewed IQ evaluations performed on Ward in 1972, a
presentence report performed in 1977, several documents
compiled in connection with Ward's prior arrest in
Pennsylvania in 1977, Ward's military records, a
questionnaire completed by Ward's mother in 1977,
Ward's medical history compiled after his 1989 arrest in
Arkansas, evaluations performed by Dr. Simon, affidavits from
Ward's prior counsel describing his behavior during his
1990 trial and two resentencing hearings, Ward's
competency hearing, and various filings and pleadings made by
both the State and Ward during his trial and sentencing
report, Dr. Logan described Ward as a heavyset man with poor
grooming. He described Ward as having "fair thought
organization when giving information about his family and
childhood, " but noted that "[a]s he began to
discuss his legal situation his thought processes
deteriorated markedly." Dr. Logan described Ward's
"persistent and grandiose delusions" that he
"was the target of a conspiracy between officials in
Pennsylvania, someone he knew in Canton, Texas and various
Arkansas government entities including the governor's
office and the State and Federal Public Defenders."
According to Dr. Logan, Ward's delusions "do not
compromise his intellectual capacity in terms of his
intelligence and orientation, " but that his
understanding of his conviction and sentence are
"irrational and delusional." For example, Dr. Logan
stated that Ward expressed his belief that "he will
never be executed, but rather be exonerated and leave prison
a free man to achieve great success." According to Dr.
Logan, Ward attributes this belief to "revelations from
Logan's report also described delusions reported by Ward,
including his belief that Joe Biden "got Nick
Trenticosta (a former attorney of Mr. Ward's) on his case
and also has a connection to his current attorney." Ward
also reported that he "can see the future including
future disasters and future events." He also believes
his father is part of the Illuminati and that the Illuminati
are trying to help him. According to Dr. Logan's report,
Ward described visions of a large black dog that jumps into
people and possesses them and that Ward reported hearing his
deceased father's voice from a chair. Ward also described
his belief that others are jealous of him because of his
talent and power and that some of the other prisoners are
demons under a spell from the State because they do not
complain. Ward stated that he "also has been the victim
of a laxative curse." During the interview, Ward
reported that the "unholy Alliance in Pennsylvania told
him to give up his powers or suffer the consequences."
Logan diagnosed Ward as having schizophrenia, paranoid type.
Dr. Logan gave his opinion that Ward was not competent to be
executed. Dr. Logan's specific report regarding the 1997
sentencing was as follows:
to Stand Trial in the 1997 Penalty Phase Hearing
Mr. Ward adamantly opposed any attempt by his then attorney,
Ms. Tammy Harris to present mitigation testimony that might
result in a life sentence. He resisted an effort to assess
his competency. Mr. Ward's decisional competency was
never addressed. He wanted an outright dismissal of the
charges and compensation. Despite his bizarre behavior, the
case was allowed to proceed. Subsequently, it has been
revealed Mr. Ward's actions were the direct consequences
of delusional beliefs that resulted from his Paranoid
Schizophrenia, a mental disease.
Consequently, it is my opinion with a reasonable degree of
medical certainty that at the 1997 Penalty Phase proceeding,
Mr. Ward suffered from Paranoid Schizophrenia. It is my
further opinion that the delusions characteristic of this
mental disease prevented him from having an ability to
understand rationally the proceedings against him and from
having the ability to assist effectively in his own defense.
reviewing Dr. Logan's report, we note that Dr.
Logan's evaluation was performed in 2008 and was not part
of the record in Ward's 1997 sentencing. Further, Dr.
Logan's report discrediting years of data and evaluation
is based on his one visit with Ward in 2008. In any event,
Dr. Logan's report is of limited support for Ward's
argument that a fundamental breakdown in the appellate
process occurred in Ward's 1997 sentencing regarding
Ward's Ake argument because it was not part of
the record reviewed by this court.
the record demonstrates that on October 17, 1997, Ward was
afforded the opportunity to have his "competency and
criminal responsibility" evaluated by psychologists at
the state hospital. Although Ward was unwilling to
participate, Dr. Simon reported that "there was no
evidence to indicate that this unwillingness was due to
mental disease or defect." Ward asserts that this
evaluation is unreliable and he should be afforded an
independent evaluation. However, we have recognized that a
defendant's rights are adequately protected by an
examination at the state hospital, an institution that has no
part in the prosecution of criminals. Branscomb v.
State, 299 Ark. 482, 774 S.W.2d 426 (1989); Dunn v.
State, 291 Ark. 131, 722 S.W.2d 595 (1987); Wall v.
State, 289 Ark. 570, 715 S.W.2d 208 (1986). In other
words, the defendant does not have a constitutional right to
search for a psychiatrist of his personal liking or to
receive funds to hire his own but is entitled to access to a
competent psychiatrist and the examination afforded to Ward
satisfied that right. Although Ward requests that we overrule
our precedent holding that a competency evaluation at the
Arkansas State Hospital satisfies Ake, we decline to
overrule this precedent.
In sum, we do not find merit in Ward's assertions.
Whether Ward contends that he was not competent to stand
trial at the 1997 sentencing or that his sanity at the time
of the offense was at issue, based on the record before us,
we do not find that there was a breakdown in the appellate
process in Ward III. Ward was afforded his
constitutionally guaranteed evaluation pursuant to
Ake, and the record does not support Ward's
contention that any breakdown occurred. Ward simply failed to
make a threshold showing that his sanity at the time of the
offense or his competence to stand trial were significant
factors. While the record demonstrates that Ward filed the
Ake motion, Ward did not make an argument that the
state hospital evaluation was inadequate or present any
evidence that would support his argument that there was a
breakdown in the appellate process. Likewise, we reject
Ward's contention that the circuit court's failure to
provide an independent psychiatrist to develop ...