Davis v. Norris

• Decision Date: 14 September 2005
• Docket Number: No. 04-2192.,04-2192.
• Citation: 423 F.3d 868
• Parties: Don William DAVIS, Petitioner-Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

423 F.3d 868

Don William DAVIS, Petitioner-Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Defendant-Appellee.

No. 04-2192.

United States Court of Appeals, Eighth Circuit.

Submitted: June 20, 2005.

Filed: September 14, 2005.

COPYRIGHT MATERIAL OMITTED

E. Alvin Schay, argued, Little Rock, AR (Deborah Sallings, on the brie), for appellant.

Kelly K. Hill, argued, Asst. Atty. Gen., Little Rock, AR, for appellee.

Before MURPHY, BYE, and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

Don William Davis was convicted of capital murder in Arkansas and sentenced to death. His conviction and sentence were affirmed on direct appeal, and his petition for postconviction relief in state court was denied. He then filed this petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court¹ denied his petition as well as a certificate of appealability. We granted a certificate of appealability on two issues and now affirm.

I.

Jane Daniel was found dead in her home from a shot to the back of her head. Several items of jewelry and other property were missing from the home. Investigators later discovered that Davis had pawned some of Daniel's property and had hidden the murder weapon in his bedroom. Davis was charged in an information with capital murder, burglary, and theft of property in November 1990. The state alleged that he had killed Daniel during the commission of a robbery or alternatively that he had killed her with premeditated and deliberate purpose.

Davis was declared indigent by the state trial court and pled not guilty and not guilty by reason of mental disease or defect. Arkansas law requires a trial court to suspend proceedings and order an examination when a defendant's mental disease or defect becomes or is likely to become an issue. A.C.A. § 5-2-305. The circuit court ordered Dr. Travis Jenkins, a psychiatrist at a regional mental health clinic, to examine Davis and to submit a report as to whether there were reasonable grounds to believe that Davis was insane then or at the time of the offense. Dr. Jenkins met with Davis for about an hour and ten minutes and conducted a standard psychiatric interview and mental status examination. Jenkins concluded that while there was no evidence that Davis was incompetent or psychotic, there was evidence of residual attention deficit hyperactivity disorder (ADHD). According to Jenkins' report, ADHD was "not a mental disorder or defect to the degree of criminal irresponsibility," but it "could have contributed to the commission of the alleged offense."

Davis then moved for a complete examination at the Arkansas State Hospital, contending that the Jenkins report failed to comply with the requirements of state law² and that further evaluation was warranted to develop evidence of mitigating circumstances. The state joined the motion, and the court ordered Davis committed to the Arkansas State Hospital for a thirty day evaluation as provided by state law. In its order the court specifically ordered the hospital to address whether Davis committed the offense while he was under extreme mental or emotional disturbance or unusual pressures or influences,³ although such an assessment of mitigating circumstances is not required under state law.

The state hospital submitted a report to the trial court stating that Davis was competent to stand trial and did not lack the capacity to conform his conduct to the requirements of law at the time of the crime. The hospital evaluation was based on interviews with Davis, telephone interviews with Davis' father and uncle, a review of Davis' medical history and records from his school years, physical and neurological examinations, and laboratory and other physical studies. Davis received a psychological assessment by a staff psychologist and a psychiatric assessment that included the Minnesota Multiphasic Personality Inventory (MMPI) and the Competency to Stand Trial Assessment Instrument. The report contained diagnoses of alcohol abuse, psychoactive substance abuse, and antisocial personality disorder. It did not address whether there were any mitigating circumstances.

After receiving the state hospital report, Davis moved for funds to hire an independent psychiatric examiner. He asserted that his mental condition would be a significant factor at the penalty phase of his trial and that under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), he was entitled to an independent examination to help him develop and present mitigating evidence for any sentencing hearing. He argued that the evaluation at the state hospital was insufficient because it failed to address mitigation factors and because it was undertaken on behalf of the court and was not protected by physician patient confidentiality or evidentiary privilege. Davis amended this motion to name the clinical psychologist Dr. Marr as the expert he wished to hire and requested $2,000 for his employment. The court denied the motion, and the case went to trial. Davis did not rely on an insanity defense, and the jury convicted him of capital murder, burglary, and theft.

The defense called Dr. Jenkins to testify at the penalty phase of the trial. Jenkins testified that Davis had ADHD and probably had a history of substance abuse. He testified in general about the symptoms of ADHD and stated that Davis had been treated with medication for ADHD at some point as a child. Jenkins testified that one in five people with ADHD will have significant problems either with substance abuse, psychiatric difficulties, or legal difficulties and that a person with ADHD is eleven times as likely to be arrested by the time he is 17 years old. He said that when combined with an unstable environment, childhood abandonment, and drug abuse, ADHD might cause a person to "get into situations through their impulsivity and poor judgment more quickly than perhaps someone without the disorder so that they — even though they might know that something is right and wrong, they might be in the middle of it before they recognize how right and wrong it is and the consequences of it." Dr. Jenkins testified that emotional maturity is impaired through serious drug abuse and that Davis had a history of drug abuse starting in childhood. He stated that Davis had told him he was raised by his grandmother after being deserted by his parents. Defense counsel asked Dr. Jenkins about his review of the report prepared by the Arkansas State Hospital, and Jenkins stated that its conclusions were not significantly different from his. He pointed out that the report had made references to dyslexia and learning disabilities and that it said Davis began using drugs and alcohol by the age of 12. Counsel asked Jenkins if he believed that Davis' behavior could have been modified if had received treatment at a younger age, and Jenkins responded, "I would have hoped so."

On cross examination Jenkins testified that, based on his examination, it was his opinion that Davis knew right from wrong at the time he committed the offense, that he was able to appreciate the criminality of his conduct, and that if he killed Daniel, he would have been aware of his actions and would have known he was killing her. The prosecutor also questioned Jenkins about the state hospital report. Jenkins stated that he agreed with its conclusions that Davis was not psychotic at the time of the offense and that he was capable of conforming his actions to the requirements of law, although that would have been more difficult for Davis than for someone without ADHD. Jenkins testified that he found Davis to be of average or above average intelligence and that he was able to converse with him in an intelligent manner. He said that Davis had told him he had been diagnosed with ADHD and treated with medication as a child, but he had not reviewed any of Davis' medical or school records and did not know if he had received additional treatment. He stated that he was not able to interview Davis about the specific circumstances of the crime because he was concerned about incriminating himself, but that he found Davis to be totally responsible for any criminal activity he may have carried out.

On redirect Jenkins testified that drug abuse in a person with ADHD "complicates" judgment and impulsivity and that a person with ADHD who knows the difference between right and wrong may have difficulty conforming his actions. On recross he testified that Davis was intelligent enough to plan a burglary and to make the decision to rob a person at gunpoint. He was again asked about the state hospital report and affirmed that it reported that Davis had been incarcerated for most of his life after the age of sixteen. Jenkins responded affirmatively to questions about whether Davis had the intelligence to understand that there was a good likelihood that he would be incarcerated if he were convicted and whether he had the intelligence to realize that killing an eyewitness might make it more difficult for the authorities to convict him.

Davis called four other witnesses to testify at sentencing. A counselor who had visited Davis in jail testified that his depression and failure to eat while there could be consistent with guilt or remorse. Davis' father and uncle testified about his family background and stated that he had been abandoned by both parents soon after birth and lived with his grandmother until she sent him to a boys ranch when he was thirteen. Davis' sister testified about his background and lack of treatment for ADHD and about her own child who had been diagnosed with ADHD and the type of treatment he receives. Davis also introduced records from school and the boys ranch.

The court instructed the jury regarding the statutory aggravating circumstances and gave it a form listing them. See A.C.A. § 5-4-604. The court told the jury that the aggravating circumstances were specified by law, that they were the only aggravating...