FROM THE BENTON COUNTY CIRCUIT COURT [04CR-07-1550] HONORABLE
ROBIN F. GREEN, JUDGE
F. WYNNE, Associate Justice
Lacy appeals from an order of the Benton County Circuit Court
denying his petition for postconviction relief pursuant to
Arkansas Rule of Criminal Procedure 37.5. He argues on appeal
that the trial court's decision to deny his petition is
clearly erroneous. We affirm in part and reverse and dismiss
was convicted of capital murder and aggravated robbery and
sentenced to death. His convictions were affirmed on direct
appeal. Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227
(Lacy I). Lacy subsequently filed a petition under
Rule 37.5 in which he alleged the following grounds for
postconviction relief: 1) defense counsel was
constitutionally ineffective for failing to investigate and
present the affirmative defense of not guilty by reason of
mental disease or defect; 2) defense counsel was
constitutionally ineffective for putting before the jury
little, if any, mitigation evidence during the penalty phase
of the trial; and 3) the cumulative-error rule should be
recognized in Arkansas and applied in his case. The trial
court denied the petition without a hearing. Lacy appealed,
and this court reversed and remanded, holding that Lacy was
entitled to an evidentiary hearing. Lacy v. State,
2013 Ark. 34, 425 S.W.3d 746 (Lacy II).
hearing on the petition was held, the trial court entered an
order denying the petition as to the claim that trial counsel
was ineffective for failing to present the affirmative
defense and granting a new sentencing hearing based on the
claim that counsel was ineffective during the penalty phase.
The State appealed, and Lacy cross-appealed. This court
affirmed the denial of relief on the ground that trial
counsel was ineffective for failing to present the
affirmative defense of not guilty by reason of mental disease
or defect. State v. Lacy, 2016 Ark. 38, 480 S.W.3d
856 (Lacy III). We reversed the finding that Lacy
had received ineffective assistance during the penalty phase
because the finding was based entirely on counsel Steven
Harper's subjective assessment of his performance.
Id. We reversed and remanded on this point for the
trial court to apply an objective legal standard in
determining whether Lacy received effective assistance of
counsel during the penalty phase. Id. On remand, the
circuit court entered an order denying the petition in its
entirety. This appeal followed.
not reverse the grant or denial of postconviction relief
unless the circuit court's findings are clearly
erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d
883. A finding is clearly erroneous when, although there is
evidence to support it, the appellate court, after reviewing
the entire evidence, is left with the definite and firm
conviction that a mistake has been committed. Id.
assess the effectiveness of counsel under the two-prong
standard set forth by the Supreme Court of the United States
in Strickland v. Washington, 466 U.S. 668 (1984).
Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
Under this standard, the petitioner must first show that
counsel's performance was deficient. Id. This
requires a showing that counsel made errors so serious that
counsel deprived the petitioner of the counsel guaranteed to
the petitioner by the Sixth Amendment to the United States
Constitution. Id. Second, the deficient performance
must have resulted in prejudice so pronounced as to have
deprived the petitioner a fair trial whose outcome can be
relied on as just. Wainwright v. State, 307 Ark.
569, 823 S.W.2d 449 (1992).
is a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance,
and the petitioner has the burden of overcoming that
presumption by identifying the acts and omissions of counsel
which, when viewed from counsel's perspective at the time
of trial, could not have been the result of reasonable
professional judgment. Feuget v. State, 2015 Ark.
43, 454 S.W.3d 734. Even if counsel's conduct is shown to
be deficient, the judgment will stand unless the petitioner
demonstrates that the error had a prejudicial effect on the
actual outcome of the proceeding. Id. The petitioner
must show that there is a reasonable probability that, but
for counsel's errors, the decision reached would have
been different. Id. A reasonable probability is one
that is sufficient to undermine confidence in the outcome of
the trial. Id.
to trial, Lacy was evaluated by Dr. Robin Ross, who indicated
that Lacy did not have a mental disease or defect. Lacy's
counsel had him evaluated by Dr. Curtis Grundy, who diagnosed
him with major depressive disorder and abuse of multiple
substances. In his report, Dr. Grundy states that Lacy is
able to engage in rational decision making. Trial counsel
also consulted with Dr. Robert Forrest, seeking an oral
opinion regarding whether Lacy had any brain dysfunction.
According to counsel's notes, after reviewing Lacy's
records and speaking with Dr. Grundy, Dr. Forrest believed
neuropsychological testing was not necessary and that he
doubted "very seriously that [neuropsychological]
testing would indicate anything significant." Dr. Jack
Randall Price, a neuropsychologist retained by the State,
echoed Dr. Forrest's opinion at the Rule 37 hearing when
he testified that, based on his review of Lacy's records,
he did not believe neuropsychological testing was necessary
because evidence of a brain injury was not present.
Bhushan Agharkar, a forensic psychiatrist who examined Lacy
as part of the postconviction proceedings, submitted a letter
to Lacy's postconviction counsel stating that Lacy
exhibited "soft signs" of neurologic damage,
particularly organic brain damage. In the letter, Dr.
Agharkar states that the findings are preliminary and would
require further confirmatory testing. Dr. Agharkar did not
testify at the Rule 37 hearing. Dr. Jeff Gould examined Lacy
as part of the postconviction proceedings and diagnosed him
with depressive disorder, alcohol dependence, and cannabis
dependence. These are essentially the same diagnoses as were
provided by Dr. Ross and Dr. Grundy.
Barry Crown, a neuropsychologist retained by Lacy's
postconviction counsel, performed a neuropsychological
evaluation of Lacy. Dr. Crown found significant
neuropsychological impairment impacting multiple functional
areas and diagnosed Lacy with cognitive disorder, not
otherwise specified. According to Dr. Crown, functional
impairments were noticed in the areas of delayed memory,
reasoning, judgment, and language-based critical thinking.
Dr. Crown testified that he was not provided with any records
regarding Lacy and that he considered such to be irrelevant.
Dr. Price testified that such records were necessary to
deliver opinions with certainty. Dr. Price was critical of
the tests given by Dr. Crown, describing them as brief
screening tests. According to Dr. Price, there were no
clinically significant findings of compromised brain
function. He testified that the records and data that he
reviewed do not support an opinion that Lacy has brain
first argument is that the trial court clearly erred in
finding that trial counsel's failure to investigate and
present the affirmative defense of not guilty by reason of
mental disease or defect was not ineffective assistance of
counsel. In Lacy III, this court considered whether
the trial court erred in finding that the failure to present
the affirmative defense was not ineffective assistance of
counsel. We affirmed the finding of the circuit court. This
issue was not remanded to the circuit court in that opinion.
On remand, a circuit court is vested with jurisdiction only
to the extent conferred by our opinion and mandate. Ward
v. State, 2017 Ark. 215, 521 S.W.3d 480. Any proceedings
on remand that are contrary to the directions contained in
the mandate from the appellate court may be considered null
and void. Dolphin v. Wilson, 335 Ark. 113, 983
S.W.2d 113 (1998). In Lacy III, our remand was
limited to the incorrect standard applied by the trial court
to the claim that Lacy received ineffective assistance of
counsel during the penalty phase of the trial and the trial
court's failure to make the findings required by Rule
37.5. Because the issue of the affirmative defense was not
remanded to the trial court in Lacy III, the trial
court did not have jurisdiction to consider it on remand.
Therefore, we reverse and dismiss as to this issue.
next argues that the trial court clearly erred in finding
that trial counsel's failure to investigate and present
mitigation evidence to the jury was not ineffective. Lacy
contends his counsel was ineffective for failing to pursue
neuropsychological testing and present neuropsychological
mitigation evidence to the jury. He further contends that, if
counsel had done so, members of the jury potentially would
have found as mitigating circumstances that he suffered from
extreme emotional or mental disturbance and may also have
found that he was impaired by mental disease.
recounted above, neither the report from Dr. Ross nor the
report from Dr. Grundy indicate that Lacy suffered from any
mental disease or neurological deficits. Dr. Grundy did
suggest to counsel that a neuropsychological consult might be
needed. According to Dr. Grundy's testimony at the Rule
37 hearing, this is what led counsel to consult with Dr.
Forrest. Dr. Forrest indicated that he did not believe
neuropsychological testing would be beneficial. Far from
ignoring the issue of neuropsychological testing, counsel
explored it and was told by an independent expert that it was
not needed. This conclusion was repeated during the Rule 37
proceeding by Dr. Price, who testified that he saw no
indication of brain damage and was highly critical of the
conclusions reached by Dr. Crown. Given the information that