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Dunn v. State

Court of Appeals of Arkansas, Division I

September 18, 2019

JOHN DUNN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-14-63] HONORABLE GREGORY L. VARDAMAN, JUDGE

          Misty A. Grady, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          WAYMOND 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. We affirm.[1]

         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). 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 April 14.

         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.

         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.

         At the 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.

         A 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),[2]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.

         Dr. 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.[3]

         Dr. 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.

         Before 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.

         A 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."[4]

         At the 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 7.

         At the 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:[5]

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.

         Appellant's jury trial did not take place on June 20 as originally anticipated.

         On June 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.

         Appellant's 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 selection before."

         Appellant 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 record?
Appellant: Yes.
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 attention problems.
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.
Appellant: Okay.
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 25th?
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 methamphetamine?
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.

         The 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.

         Appellant 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.

         A 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 interest, Judge.

         Our supreme court granted Judge Cooper's request to terminate his assignment to appellant's case in an order filed on May 12, 2017.

         A 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.

         The 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 –
Appellant: Methamphetamine.
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. ...

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