FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-14-63]
HONORABLE GREGORY L. VARDAMAN, JUDGE
A. Grady, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE
John Dunn was found guilty of simultaneous possession of
drugs and firearms, criminal attempt to manufacture
methamphetamine, use or possession of paraphernalia to
manufacture methamphetamine, and possession of a controlled
substance (methamphetamine) by a Clark County Circuit Court
jury. He was sentenced to an aggregate term of forty
years' imprisonment. He argues on appeal that the trial
court erred and abused its discretion in (1) finding that
appellant had made an effective waiver of his right to
counsel and could proceed pro se and (2) finding that
appellant was competent to conduct trial proceedings pro se.
was arrested on July 9, 2014, and charged with simultaneous
possession of drugs and firearms, criminal attempt to
manufacture methamphetamine, use or possession of
paraphernalia to manufacture methamphetamine, and possession
of a controlled substance (methamphetamine). Appellant's
omnibus hearing took place on October 14, before Judge Robert
McCallum. At that time, Timothy Beckham, appellant's
appointed attorney, informed the court that he anticipated
filing a motion for mental evaluation of appellant in terms
of appellant's fitness to proceed. The motion was filed
the same day. An order for a criminal-responsibility
examination was filed on October 20. A forensic evaluation by
Dr. Paul Deyoub took place on January 21, 2015. Dr. Deyoub
submitted his findings to the court on April 2, in which he
found that appellant suffers from personality disorder not
otherwise specified (301.9) and schizoaffective disorder,
bipolar type with delusions (295.70). Dr. Deyoub opined that
appellant was unfit to proceed because he was a danger to
himself and others and should be committed to the Arkansas
State Hospital for treatment and restoration to competency.
The court entered a not-fit-to-proceed commitment order on
December 22, appellant filed a motion to remove Beckham as
his counsel and to proceed pro se; a motion for discovery;
and a motion to suppress any letters allegedly written by
him, any findings in connection with his involuntary
commitment, and all results of mental evaluations and any
other tests by Dr. Kara Belue. Appellant also filed a motion
to dismiss the not-fit-to proceed order, alleging that it was
his attorney, not he, who was not fit to proceed, along with
a supporting memorandum. Appellant filed another motion to
dismiss and supporting memorandum on December 30, seeking to
have the charges against him dismissed. Appellant filed other
motions during this time, including a motion to admit
exculpatory evidence, a motion to admit evidence, and a
motion for habeas corpus.
underwent a forensic evaluation performed by Dr. Michael J.
Simon on February 2 and February 4, 2016. The court received
the complete report on February 10. Dr. Simon opined that at
the time of the examination, (1) appellant did not lack the
capacity to understand the proceedings against him and assist
effectively in his own defense, and (2) appellant did not
have a mental disease or a mental defect. He also opined that
at the time of the alleged conduct, appellant did not (1)
have a mental disease or mental defect, (2) lack the capacity
to appreciate the criminality of his conduct, or (3) lack the
capacity to conform his conduct to the requirements of the
law. Dr. Simon concluded that appellant was competent to
stand trial. The court entered an order setting a motion
hearing for March 8, 2016, and a jury trial for the week of
March 8 hearing, appellant advised the court that he was
trying to obtain Brandon Crawford as his private counsel and
that he had the money to do so. Based on this information,
the court agreed to move appellant's case to the week of
April 18 and to send the information to both Beckham and
Crawford. On April 1, appellant filed a motion for a change
of venue or the appointment of a special judge, citing a
conflict due to his filing a lawsuit against several people,
including Judge McCallum.
hearing regarding appellant's fitness to proceed took
place on April 4. At the beginning of the hearing, the court
advised appellant it had been informed that Crawford was not
going to represent appellant and appellant acknowledged he
had received a declination letter from Crawford. Dr. Simon
testified that he spent several hours with appellant while
performing the forensic examination and that there was no
clear evidence that appellant suffered from a mental disease
or defect. He acknowledged that appellant's history
showed at least two psychotic episodes (when appellant was
admitted involuntarily to Levi Hospital and when appellant
wrote several letters to the court while
incarcerated),but such was not the case at the time of
the evaluation and, in his opinion, when the crime was
committed. On cross, Dr. Simon stated that he stood by his
conclusion that appellant was fit to proceed and that
appellant appreciated the criminality of his conduct at the
time of the offense.
Katharine Sunder testified that she is a postdoctoral fellow
at the Arkansas State Hospital. She stated that she
reevaluated appellant after he was ordered confined at the
hospital. She said that she interviewed appellant for two
hours and described her conclusion that appellant was unfit
to proceed as a "tough call." She stated that the
biggest deficit she saw in appellant was his ability to
effectively assist counsel, which she acknowledged was
primarily around the delusional or psychotic beliefs that she
felt were present at the time of her mental
Kara Belue testified that she is a psychiatrist with the
Arkansas State Hospital and that she was the treating
physician for appellant when he was there. She stated that
appellant was not prescribed any psychotropic medication
while he was there because he refused to take it. She
testified that she performed a psychiatric evaluation of
appellant the day he arrived. She stated that she did not
agree with Dr. Deyoub's diagnosis of paranoid personality
disorder. She said that her belief that appellant should be
medicated was based on his hostility toward her. Dr. Belue
testified that once she found out that appellant had worked
at all the places and in the capacities he claimed to, she
could not trust Dr. Deyoub's diagnosis of psychosis.
the hearing concluded, appellant asked the court when he
would be able to seek legal counsel. The court advised him
that he could make phone calls and have family members
contact attorneys on his behalf.
review hearing took place on May 6. At that time, the court
asked appellant how he wanted to proceed with regard to
counsel. Appellant answered that he had fired Beckham, that
he had a friend contacting attorneys on his behalf, and that
he had also been sending postcards to potential attorneys.
Appellant stated that he anticipated having an attorney to
represent him "within the next week." He also
informed the court that he was not in need of a public
defender and that he "wasn't real[lly] truthful on
anything that [he] wrote because [he] was thinking that they
would try to seize [his] assets and stuff." However, he
stated that he did have money in the bank to hire an
attorney. The court stated that it would enter an order
allowing Beckham to step aside from the case. The court
entered an order on May 6, finding that appellant was fit to
proceed. An order was entered on May 9, relieving Beckham as
counsel, based on appellant's "oral motion to
proceed pro se."
review hearing on May 10, appellant informed the court that
he had not hired an attorney but that his friend had been
working "feverishly" trying to find one. The court
set the case for trial on June 20 with a review date of June
June 7 review hearing, appellant reported that he had
unsuccessfully tried to retain several attorneys to represent
him. Therefore, he stated that he would have to proceed pro
se at "at this time." The following pertinent
colloquy took place:
The Court: And do you understand that there's the
requirement that you proceed as a lawyer, if you represent
yourself, you're held to the same standards as a lawyer
with regard to procedure.
Appellant: The rules of procedure, yes sir.
The Court: [S]ubstantive law, and rules of evidence?
Appellant: Yes, sir.
The Court: Okay. The matter is set for trial the week of June
20th. There are other things that I need to advise you of.
jury trial did not take place on June 20 as originally
29 Judge McCallum wrote a letter to Chief Justice Brill
asking to recuse from appellant's case based on a
conflict caused by appellant's naming him in a federal
lawsuit. Our supreme court issued an order on July 6 granting
Judge McCallum's request and assigning Judge Tom Cooper
to appellant's case.
pretrial hearing took place on July 19 before Judge Cooper.
Appellant informed the court that he was still unable to find
an attorney to represent him. When appellant expressed his
lack of knowledge as to how to issue subpoenas, the court
stated that it would prefer appellant allow the court to
appoint him an attorney. Appellant declined the court's
offer to appoint one of the local public defenders for his
case, insisting that he would represent himself. However, the
court did appoint Janice Williams to be present on the day of
appellant's trial to assist him if he had any questions.
When the court's discussion turned to the selection of
the jury, appellant responded that he had "done a jury
filed a motion for subpoena on August 3. On August 16, he
filed a motion for immediate healthcare and a petition for
prescribed medications. In the motion, he stated that he has
had a chronic severe mental impairment, ADD/ADHD, that
requires treatment. He stated that in his present unmedicated
state, he had severe social and industrial impairment and
that his interpersonal skills prevented him from working with
others and his psychiatric impairment prevented him from
focusing on and completing work tasks or working with his
legal assistant. He spoke of other health issues, not
relevant to this appeal, and asked that he be granted an
immediate appointment with Dr. Shawn Purifoy. The court held
a hearing on appellant's motion on August 22. At the time
of the hearing, the court indicated that it had appointed
Winston C. Mathis to assist appellant at trial. At the
hearing, the following colloquy took place:
The Court: You're still wanting to represent yourself?
Appellant: Yes, sir.
The Court: Have you been interacting with your attorney?
Appellant: We've been trying, but Mr. Mathis said with my
attention deficit, it's hard to. So --.
The Court: Mr. Mathis, have you been working with him?
Mr. Mathis: Yes, Your Honor. I've been presenting him
quite a bit of law in a short amount of time, but it's
difficult because he can't focus on the issues. Indeed,
I'm concerned about his mental state of being in both
senses, his ability to assist, and at the time of the event.
My exposure to this case indicates that he may not have had
the mens rea necessary to commit the crime.
The Court: Were you sent to the state hospital for a forensic
evaluation previously in this case?
Appellant: Yes, sir.
The Court: How long did they keep you?
Appellant: Six months.
The Court: You understand what Mr. Mathis just stated on the
The Court: I'm going to order a forensic mental
evaluation for you, and the doctors will look and see if you
can assist a lawyer or have the ability to represent
yourself, which is about the same. It's the same issue.
Appellant: Oh, I've already --. They've already ruled
on that. Dr. Simon, he's one of those guys that I
petition – subpoenaed to Court. But I'm completely
competent and understand what's going on. It's just
hard for me to focus on trying to learn new things with my
The Court: I've read some of your pleadings. I have great
concern about your ability to represent yourself or to assist
an attorney in defending you. I'm going to follow that
recommendation. If Mr. Mathis did not ask for it, I was going
to do it myself as far as fitness to proceed. But I'm
going to order both aspects, fitness and culpability.
The Court: Once they return an evaluation, we'll put your
case back on the docket.
Appellant: Okay. So I'm not going to have trial on the
The Court: I just don't feel you have the ability at this
point to represent yourself or assist an attorney.
Appellant: Well, if I could get my medication, maybe he could
take over first chair.
The Court: Absolutely. Maybe they could get your medication
regulated and then you can be in a position where you could
assist an attorney.
Appellant: That's why I had these documents here, because
they got me on an insurance program through Arcare and the
Ryan White Program out of Texarkana that will pay for my
medications, but I just needed to get to my primary care
physician who prescribes me my medication.
The Court: Hopefully, they'll get you some help there.
Mr. Mathis: I would just ask that all his medical documents
that we can get our hands on be sent with him. Like his
prescription for the medicine that he needs to function.
That's why he filed a motion, because he has to have this
medicine to be able to handle this situation.
The Court: I would agree.
Appellant: Right. And it is methamphetamine. I mean, you had
said that it wasn't, but that's what it says,
methamphetamine, 5 milligram, 60 tablets.
The Court: I mean, therein is part of the concern that I had
about your ability to represent yourself. You say you have a
prescription for methamphetamine?
Appellant: Yes, sir. Would you like to see it?
Mr. Mathis: I can bring it up there.
The Court: A doctor in this state prescribed you
Appellant: Yes, sir.
Mr. Mathis: And a pharmacy in this state filled it.
The Court: I think this just verifies my belief already.
I'm going to order a forensic mental evaluation of both
aspects. I hope they'll get your medication regulated and
you'll be able to assist your attorney in your defense.
court filed an order for a criminal-responsibility
examination of appellant on August 29. The examination was
performed by Dr. Lacey C. Willett Matthews on December 13.
The report was submitted on January 30, 2017. In the report,
Dr. Matthews opined that (1) appellant did not manifest
symptoms of a substantially impairing mental disease or
defect at the time of the exam, (2) appellant had the
capacity to understand the proceedings against him and the
capacity to effectively assist his attorney in his own
defense, (3) appellant did not display any substantial
impairing symptoms of a mental disease or defect at the time
of the alleged offense, (4) appellant's state of mind
surrounding the time of the alleged offense was not of such a
nature as to render him incapable of appreciating the
criminality of his conduct, (5) appellant's state of mind
surrounding the time of the offense was not of such a nature
as to render him incapable of conforming his conduct to the
requirements of the law, and (6) appellant was capable of
forming the necessary mental state required as an element of
the offenses charged.
filed a motion for immediate healthcare and prescribed
medications as well as a motion for Judge Cooper to recuse on
March 14, 2017. In the motion to recuse, appellant alleged
that he and Judge Cooper had a verbal encounter in June 2014
and that he currently had a civil action against Judge Cooper
that was in arbitration.
review hearing took place on May 11. When questioned by the
court about his ability to find an attorney, appellant
responded that he had not talked to any attorneys willing to
"defend [him] the way [he] wanted to be defended."
However, he indicated that he wanted to talk to Ralph Ohm
about defending him. Gregg Parrish of the Arkansas Public
Defender Commission was present at this hearing and testified
that he had received an application from appellant for
professional services for funds to secure Dr. Diner as an
expert witness. However, Parrish stated that he subsequently
wrote appellant and informed him that such funds would not be
proper because appellant was not relying on mental disease or
defect as an argument. He further stated that "w[ith]
all due respect to Mr. Dunn, if there's an attorney
besides Mr. Ohm that he wants to tell the Court and the Court
wants to order me to consider appointing that attorney, I
would certainly consider that based upon these
circumstances." Mr. Parrish stated that it was his
personal opinion that defendants do not get to pick their own
attorneys but that he would be willing to break that rule if
appellant had an attorney in mind. He also stated that he was
willing to pay Ohm's expenses and time. The court
acknowledged that it and Mr. Parrish were doing things they
normally did not do to try to get appellant an attorney.
Before the hearing concluded, the court informed appellant
that Judge Vardaman was the new judge in that district and
that the case would usually be assigned to him, but there was
a potential conflict because he had met with appellant
briefly about appellant's case. Appellant stated on the
record that he wished to waive the conflict. At that point,
the following colloquy took place:
The Court: He will handle your case from now on. I can't
speak for Judge Vardaman, but I think he is also going to
talk to you about letting him appoint someone to represent
you. I just can't say how strongly I feel about you
representing yourself is not in your best interest.
Appellant: Right. I understand that. I just haven't found
anybody that wants to defend me. I waive the conflict of
supreme court granted Judge Cooper's request to terminate
his assignment to appellant's case in an order filed on
May 12, 2017.
review hearing before Judge Vardaman took place on May 23. At
the beginning of the hearing, the State stressed that it did
not believe that "there's been any inquiry or
challenge as to whether or not there's been a knowing and
intelligent waiver" by appellant. The State further
stated the following:
Mr. Dunn is entitled to a fair trial, we want to make sure
that he gets a fair trial. He's entitled to counsel. He
can waive that right. But I think under the circumstances,
the Court cannot be satisfied that there's been a knowing
and intelligent waiver. And I think a failure to make that
determination now is simply going to mean that we're
going to be trying this case again in a couple of years. And
so the State believes that under the circumstances, Mr.
Dunn's waiver of right to counsel is subject to
challenge. I believe the Court should appoint the Public
Defender Commission to formally represent him. And the State
would further ask that he be evaluated if indeed he wants to
represent himself so that the Court can be satisfied that he
can intelligently waive that constitutional right.
court agreed and the following pertinent colloquy took place:
The Court: I made a cursory review of the file in preparation
for today just to see what was – we needed to get
through. And everything that Mr. Turner said jumped right out
to me as well. On two occasions, you have made it abundantly
clear that without certain medication –
The Court: That you cannot adequately represent yourself.
Now, I know that most likely Judge – Judge McCallum is
the one that allowed you to act pro se – Have a seat,
Mr. Dunn, it's okay. Or. if it was Judge Cooper, but I
believe that they went over what we call the Mayo factors.
That's Mayo v. State. That's an Arkansas Supreme
Court case from 1991 that says there are three things that we
have to have. First, your request to represent yourself has
to be made timely and unequivocally. And I think you made it
timely and you certainly made it unequivocally. I'm going
to jump to No. 3, there's not conduct that would prevent
the fair and orderly acquisition of the issues. You
haven't been disruptive, and you haven't shown me
anything that in my limited time on the case, and I
haven't been made aware of anything that says you disrupt
these proceedings or that you've done something that
would delay. So I think you clearly meet those first two
prongs. However, with those two motions that you filed
yourself on August 16, 2016 and March 14, 2017 and Mr.