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Greene v. Kelley

Supreme Court of Arkansas

November 1, 2018

JACK GORDON GREENE APPELLANT
v.
WENDY KELLEY, DIRECTOR OF THE ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-17-738] HONORABLE JODI RAINES DENNIS, JUDGE

          Jennifer Horan, Federal Public Defender, by: John C. Williams and Scott W. Braden, Ass't Federal Public Defenders, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          JOHN DAN KEMP, Chief Justice

         Appellant Jack Gordon Greene appeals from an order of the Jefferson County Circuit Court dismissing his complaint for declaratory and injunctive relief against appellee Wendy Kelley, Director ("Director") of the Arkansas Department of Correction ("ADC"). For reversal, Greene argues (1) that Arkansas Code Annotated section 16-90-506(d)(1) (Supp. 2017)[1] violates his due-process rights under the United States and Arkansas Constitutions by vesting sole discretion in the Director to determine whether a prisoner is competent to be executed; (2) that section 16-90-506(d) violates the separation-of-powers provision of the Arkansas Constitution because it deprives the courts of the power to make a competency determination; and (3) that executing him after twenty-five years in solitary confinement would be cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution and article 2, section 9 of the Arkansas Constitution. We affirm the circuit court's ruling on the solitary-confinement claim, reverse the circuit court's ruling on the due-process claim, and remand to the circuit court for further proceedings consistent with this opinion.

         I. Facts

         In 1992, Greene was convicted of the July 23, 1991 capital murder of Sidney Burnett and sentenced to death. See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994) (affirming conviction but reversing and remanding for resentencing); Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998) (reversing and remanding for resentencing); Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001) (affirming sentence).

         On August 25, 2017, following years of litigation, Governor Asa Hutchinson scheduled Greene's execution for November 9, 2017. On September 20, 2017, Greene's attorneys wrote a letter to Kelley claiming that he was incompetent to be executed. The letter described Greene's delusions and paranoia and included an excerpt from a letter that Greene had recently written to Justin Tate, Governor Hutchinson's chief legal counsel. The letter also stated that Dr. George Woods, a psychiatrist, briefly examined Greene on September 14, 2017, and found that Greene's condition had significantly worsened since his previous examination in 2011, rendering him unable to comprehend the reason for his execution. Greene's counsel stated that there were reasonable grounds for believing that Greene was not competent, due to mental illness, to understand the nature and reasons for his punishment and requested that Kelley utilize her statutory authority under section 16-90-506(d) to declare a doubt on his competency to be executed.

         Kelley asked Greene's attorneys to provide any documentation that they believed substantiated their claim. After receiving that material, Kelley responded by letter on October 5, 2017, and indicated that she had considered the documents provided by Greene's counsel. These documents included Dr. Woods's report, letters written by Greene, and affidavits by attorneys who had represented Greene, in addition to the record from Greene's federal habeas proceedings and his mental health file maintained by the ADC. Kelley noted that Greene had stated in his recent writings that he had been sentenced to death three times for the murder of Burnett, that he had also killed his brother in North Carolina, that he had destroyed two families because of those murders, and that he did not want to waste any more tax money on endless appeals. According to Kelley, these writings indicate that Greene understands the reasons why he was convicted and that he desires to request forgiveness prior to his execution. Kelley further stated that she had reviewed the federal-habeas court's 2012 order rejecting a claim of incompetence and the report of Dr. Christina Pietz, a neuropsychologist who had examined Greene in 2010. She also pointed to Dr. Woods's testimony in the federal proceedings that he was unable to make an accurate diagnosis of Greene without conducting a clinical evaluation with which Greene had refused to cooperate. Kelley noted that there was no indication in Dr. Woods's 2017 report that he had subsequently conducted any clinical evaluation of Greene. Kelley stated that based on the information she had reviewed, she did not find "reasonable grounds for believing that Mr. Greene is not currently competent, due to mental illness, to understand the nature of the punishment and to reach a rational understanding of the reason for the execution."

         Meanwhile, on September 27, 2017, Greene's counsel filed the complaint giving rise to this appeal in the Jefferson County Circuit Court. The complaint alleged that Greene was incompetent to be executed and requested a hearing on his competence and a declaratory judgment that his execution would violate the Eighth Amendment to the United States Constitution and article 2, section 9 of the Arkansas Constitution. The complaint prayed that if the requested hearing was not authorized under section 16-90-506(d), the statute be declared unconstitutional on its face or as applied to Greene because it violates his due-process rights guaranteed by the United States and Arkansas Constitutions. Greene further alleged that section 16-90-506(d) is unconstitutional because it violates the separation-of-powers clause found in article 4 of the Arkansas Constitution. Finally, Greene requested a declaratory judgment that executing him after twenty-five years' confinement violates the Eighth Amendment to the United States Constitution and article 2, section 9 of the Arkansas Constitution. Greene prayed that the circuit court issue any writ necessary to enforce its declaratory judgment and to halt his execution. Attached to the complaint were Dr. Woods's 2010 and 2017 reports from his evaluations of Greene, Greene's recent writings, his medical records, his former attorneys' affidavits, and a pen pal's attestation of his worsening mental condition.

         On October 20, 2017, Greene filed an amended complaint and attached Kelley's October 5, 2017 letter and a report by Dr. Garrett Andrews, a neuropsychologist who performed a cell-side evaluation of Greene on October 10, 2017. Dr. Andrews stated that while Greene "can and has articulated that the State of Arkansas intends to execute him for the murder of Sidney Burnett," "his conception of his execution is surrounded by delusions." The report indicated that Greene believes his execution is intended to conceal the prison's past misdeeds. Greene stated that he believes "he knows too much to be executed but that they don't want him alive either." Dr. Andrews concluded that, "[b]ecause Mr. Greene has incorporated his execution into his persecutory and somatic delusions, he does not have a rational understanding of his execution."

         On November 1, 2017, Kelley filed a motion to dismiss Greene's amended complaint and argued that it failed to state a claim for which relief can be granted pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. Specifically, Kelley contended that section 16-90-506(d) was not unconstitutional on its face or as applied to Greene and cited Singleton v. Endell, 316 Ark. 133, 870 S.W.2d 742 (1994) (holding that the statute was not in violation of the requirements set forth in Ford v. Wainwright, 477 U.S. 399 (1986)). Kelley averred that Greene had failed to state a valid claim that the statute conflicted with the Arkansas Constitution's separation-of-powers provision or that his execution would amount to cruel and unusual punishment by virtue of his years of solitary confinement on death row. Kelley asserted that the circuit court lacked jurisdiction to order a stay of execution and that Greene's claims were barred by sovereign immunity.

         Greene filed a response to the motion to dismiss, and the circuit court conducted a hearing on November 2, 2017. The circuit court heard arguments of counsel, but no additional evidence was introduced at the hearing. On November 3, 2017, the court entered an order granting Kelley's motion to dismiss. In doing so, the circuit court ruled that (1) Greene "has not presented and the court has not located any statute authorizing [it] to conduct a competency hearing"; (2) "the Arkansas Supreme Court has previously determined that A.C.A. § 16-90-506(d) does not violate due process or separation of powers"; (3) executing Greene after twenty-five years of solitary confinement would not be cruel and unusual punishment; and (4) it lacked jurisdiction to stay an execution.[2] Thus, the circuit court found that Greene had failed to state facts on which relief could be granted. Greene filed a notice of appeal from the circuit court's order that same day, and this court granted a stay of his scheduled execution to consider the present appeal.

         II. Greene's Arguments

         On appeal, Greene argues that the circuit court erred by rejecting his claim that section 16-90-506(d)(1) violates his due-process rights under the United States and Arkansas Constitutions by vesting sole discretion in the Director to determine whether a prisoner is competent to be executed. He further contends that he put forth sufficient facts to raise a reasonable question about his competence to be executed under section 16-90-506(d) and that he was entitled to a hearing on the issue.

         For the reasons set forth in Ward v. Hutchinson, 2018 Ark. 313, we hold that section 16-90-506(d)(1) is unconstitutional on its face and violates the due-process guarantees of the United States and Arkansas Constitutions. Because we conclude that section 16-90-506(d)(1) is unconstitutional on its face, we decline to address Ward's as-applied due-process argument, and we do not address his separation-of-powers argument.

         Greene also contends that executing him after twenty-five years in solitary confinement would be cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution and article 2, section 9 of the Arkansas Constitution. He argues that it was the State's error, not his, that caused him to be resentenced twice over a period of nearly ten years and that the conditions of his detention have significantly contributed to his mental illness.

         This court expressly rejected a similar claim in Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998). In Hill, appellant contended that it would be cruel and unusual punishment to resentence him to death after spending fifteen years on death row. We stated,

We find it significant that the testimony presented in this case did not reveal any prejudice or psychological pain that Appellant now implies he suffers as a result of the delay. See Janecka v. State, 937 S.W.2d 456, 475-76 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997). We agree with the State's characterization that the very nature of capital litigation in both state and federal courts suggests that delay in resentencing to death is the product of evolving standards of decency which inures to the defendant's benefit. See White v. Johnson, 79 F.3d 432 (5th Cir. 1996), cert. denied, 519 U.S. 911 (1996); McKenzie v. Day, 57 F.3d 1493 (9th Cir. [1995]), cert. denied, 514 U.S. 1104 (1995). In sum, we know of no reason why we should now hold that the imposition of the death penalty is cruel and unusual punishment merely because there has been an extended passage of time between the crime and the punishment.

Hill, 331 Ark. at 322-23, 962 S.W.2d at 767.

         Greene now claims that he has experienced a mental decline while awaiting execution and emphasizes that the delay at issue is a decade longer than the delay in Hill. Based on our holding in Hill, Greene's argument on appeal is unavailing. We affirm the circuit court's ruling on Greene's solitary-confinement claim. [3]

         Finally, we note that Kelley failed to obtain a ruling on her claim that Greene's suit is barred by the doctrine of sovereign immunity. The failure to obtain a ruling precludes our review on appeal. E.g., Arnold v. State, 2012 Ark. 400.

         III. Conclusion

         In sum, we affirm the circuit court's ruling on the solitary-confinement claim, reverse the circuit court's ruling on the due-process claim, and remand to the circuit court for further proceedings consistent with this opinion.

         Affirmed in part; reversed and remanded in part.

          HART, J., concurs.

          Baker, Wood, and Womack, JJ., dissent.

          Josephine Linker Hart, Justice, concurring.

         I. Introduction

         I join the disposition reached by Justices Kemp, Goodson, and Wynne with regard to the constitutionality of Ark. Code Ann. § 16-90-506(c)-(d) (the "Director's Statute"). I write separately for the reasons stated herein.

         Greene was convicted of capital murder for the death of Sidney Jethro Burnett in 1991. He was sentenced to death. Since then, Greene has been involved in numerous appeals and postconviction proceedings, most of which are entirely irrelevant to the issues presented in this appeal. See Greene v. State, 317 Ark. 350, 357, 878 S.W.2d 384, 389 (1994) (affirming conviction but reversing for resentencing); Greene v. State, 335 Ark. 1, 34, 977 S.W.2d 192, 208 (1998) (again reversing for resentencing); Greene v. State, 343 Ark. 526, 542, 37 S.W.3d 579, 590 (2001) (affirming third death sentence). Greene's present appeal is not to re-argue whether Greene killed Ms. Burnett; a jury determined that Greene was guilty of that crime, and the outcome of this case will not disturb Greene's conviction. This appeal is not to re-argue whether Greene should be sentenced to death; a jury determined that Greene should receive the death penalty, and regardless of the outcome of this case, Greene will remain under sentence of death. This appeal addresses two main questions: (1) whether Greene has made an adequate showing that he is presently "insane," in which case the U.S. Constitution requires the suspension of his death sentence pursuant to Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930 (2007); and (2) whether the Arkansas statute that governs claims of insanity at the execution stage satisfies the constitutional due process requirements set forth in Ford and Panetti.

         II. Background - The Director's Statute and Greene's Request to the Director

         According to the State, claims of insanity for purposes of execution are to be addressed under Ark. Code Ann. § 16-90-506(c)-(d) (the "Director's Statute"), which provides in relevant part as follows:

(c) The only officers who shall have the power of suspending the execution of a judgment of death are:
(1)The Governor;
(2)In cases of insanity or pregnancy of the individual, the Director of the Department of Correction as provided in ...

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