Rehearing Denied October 30, 2019
[Copyrighted Material Omitted]
FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-14-63],
HONORABLE GREGORY L. VARDAMAN, JUDGE
A. Grady, for appellant.
Rutledge, Atty Gen., by: Adam Jackson, Asst Atty Gen., for
M. BROWN, Judge
Appellant 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.
Appellant 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). Appellants
omnibus hearing took place on October 14, before Judge Robert
McCallum. At that time, Timothy Beckham, appellants
appointed attorney, informed the court that he anticipated
filing a motion for mental evaluation of appellant in terms
of appellants 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 April 14.
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.
Appellant 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 14.
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 appellants 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 appellants 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 appellants 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 evaluation.
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. Deyoubs 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. Deyoubs 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 "wasnt 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 appellants "oral motion to proceed
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 theres the requirement
that you proceed as a lawyer, if you represent yourself,
youre held to the same standards as a lawyer with regard to
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.
Appellants jury trial did not take place on June 20 as
June 29 Judge McCallum wrote a letter to Chief Justice Brill
asking to recuse from appellants case based on a conflict
caused by appellants naming him in a federal lawsuit. Our
supreme court issued an order on July 6 granting Judge
McCallums request and assigning Judge Tom Cooper to
Appellants 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
courts 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 appellants trial to assist him if he had any
questions. When the courts discussion turned to the
selection of the jury, appellant responded that he had
"done a jury selection before."
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 appellants 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: Youre still wanting to represent yourself?
APPELLANT: Yes, sir.
THE COURT: Have you been interacting with your attorney?
APPELLANT: Weve been trying, but Mr. Mathis said with my
attention deficit, its hard to. So --.
THE COURT: Mr. Mathis, have you been working with him?
MR. MATHIS: Yes, Your Honor. Ive been presenting him quite a
bit of law in a short amount of time, but its difficult
because he cant focus on the issues. Indeed, Im 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: Im 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. Its the same issue.
APPELLANT: Oh, Ive already --. Theyve already ruled on
that. Dr. Simon, hes one of those guys that I petition -
subpoenaed to Court. But Im completely competent and
whats going on. Its just hard for me to focus on trying to
learn new things with my attention problems.
THE COURT: Ive read some of your pleadings. I have great
concern about your ability to represent yourself or to assist
an attorney in defending you. Im 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 Im going
to order both aspects, fitness and culpability.
THE COURT: Once they return an evaluation, well put your
case back on the docket.
APPELLANT: Okay. So Im not going to have trial on the 25th?
THE COURT: I just dont 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: Thats 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, theyll 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.
Thats 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 wasnt, but thats 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. Im
going to order a forensic mental evaluation of both aspects.
I hope theyll get your medication regulated and youll 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