Lacy v. State, CR–17–404

• Decision Date: 17 May 2018
• Docket Number: No. CR–17–404,CR–17–404
• Parties: Brandon Eugene LACY, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

545 S.W.3d 746

Brandon Eugene LACY, Appellant

v.STATE of Arkansas, Appellee

No. CR–17–404

Supreme Court of Arkansas.

Opinion Delivered: May 17, 2018

ROBIN F. WYNNE, Associate Justice

Brandon Lacy appeals from an order of the Benton County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5. He argues on appeal that the trial court's decision to deny his petition is clearly erroneous. We affirm in part and reverse and dismiss in part.

Lacy was convicted of capital murder and aggravated robbery and sentenced to death. His convictions were affirmed on direct appeal. Lacy v. State , 2010 Ark. 388, 377 S.W.3d 227 ( Lacy I ). Lacy subsequently filed a petition under Rule 37.5 in which he alleged the following grounds for postconviction relief: 1) defense counsel was constitutionally ineffective for failing to investigate and present the affirmative defense of not guilty by reason of mental disease or defect; 2) defense counsel was constitutionally ineffective for putting before the jury little, if any, mitigation evidence during the penalty phase of the trial; and 3) the cumulative-error rule should be recognized in Arkansas and applied in his case. The trial court denied the petition without a hearing. Lacy appealed, and this court reversed and remanded, holding that Lacy was entitled to an evidentiary hearing. Lacy v. State , 2013 Ark. 34, 425 S.W.3d 746 ( Lacy II ).

After a hearing on the petition was held, the trial court entered an order denying the petition as to the claim that trial counsel was ineffective for failing to present the affirmative defense and granting a new sentencing hearing based on the claim that counsel was ineffective during the penalty phase. The State appealed, and Lacy cross-appealed. This court affirmed the denial of relief on the ground that trial counsel was ineffective for failing to present the affirmative defense of not guilty by reason of mental disease or defect. State v. Lacy , 2016 Ark. 38, 480 S.W.3d 856 ( Lacy III ). We reversed the finding that Lacy had received ineffective assistance during the penalty phase because the finding was based entirely on counsel Steven Harper's subjective assessment of his performance. Id. We reversed and remanded on this point for the trial court to apply an objective legal standard in determining whether Lacy received effective assistance of counsel during the penalty phase.¹ Id. On remand, the circuit court entered an order denying the petition in its entirety. This appeal followed.

We do not reverse the grant or denial of postconviction relief unless the circuit court's findings are clearly erroneous. Sales v. State , 2014 Ark. 384, 441 S.W.3d 883. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.

We assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show that counsel's performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the Sixth Amendment to the United States Constitution. Id. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner a fair trial whose outcome can be relied on as just. Wainwright v. State , 307 Ark. 569, 823 S.W.2d 449 (1992).

There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and the petitioner has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Feuget v. State , 2015 Ark. 43, 454 S.W.3d 734. Even if counsel's conduct is shown to be deficient, the judgment will stand unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. Id. The petitioner must show that there is a reasonable probability that, but for counsel's errors, the decision reached would have been different. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Prior to trial, Lacy was evaluated by Dr. Robin Ross, who indicated that Lacy did not have a mental disease or defect. Lacy's counsel had him evaluated by Dr. Curtis Grundy, who diagnosed him with major depressive disorder

and abuse of multiple substances. In his report, Dr. Grundy states that Lacy is able to engage in rational decision making. Trial counsel also consulted with Dr. Robert Forrest, seeking an oral opinion regarding whether Lacy had any brain dysfunction. According to counsel's notes, after reviewing Lacy's records and speaking with Dr. Grundy, Dr. Forrest believed neuropsychological testing was not necessary and that he doubted "very seriously that [neuropsychological] testing would indicate anything significant." Dr. Jack Randall Price, a neuropsychologist retained by the State, echoed Dr. Forrest's opinion at the Rule 37 hearing when he testified that, based on his review of Lacy's records, he did not believe neuropsychological testing was necessary because evidence of a brain injury was not present.

Dr. Bhushan Agharkar, a forensic psychiatrist who examined Lacy as part of the postconviction proceedings, submitted a letter to Lacy's postconviction counsel stating that Lacy exhibited "soft signs" of neurologic damage, particularly organic brain damage. In the letter, Dr. Agharkar states that the findings are preliminary and would require further confirmatory testing. Dr. Agharkar did not testify at the Rule 37 hearing. Dr. Jeff Gould examined Lacy as part of the postconviction proceedings and diagnosed him with depressive disorder

, alcohol dependence, and cannabis dependence. These are essentially the same diagnoses as were provided by Dr. Ross and Dr. Grundy.

Dr. Barry Crown, a neuropsychologist retained by Lacy's postconviction counsel, performed a neuropsychological evaluation of Lacy. Dr. Crown found significant neuropsychological impairment impacting multiple functional areas and diagnosed Lacy with cognitive disorder

, not otherwise specified. According to Dr. Crown, functional impairments were noticed in the areas of delayed memory, reasoning, judgment, and language-based critical thinking. Dr. Crown testified that he was not provided with any records regarding Lacy and that he considered such to be irrelevant. Dr. Price testified that such records were necessary to deliver opinions with certainty. Dr. Price was critical of the tests given by Dr. Crown, describing them as brief screening tests. According to Dr. Price, there were no clinically significant findings of compromised brain function. He testified that the records and data that he reviewed do not support an opinion that Lacy has brain damage.

Lacy's first argument is that the trial court clearly erred in finding that trial counsel's failure to investigate and present the affirmative defense of not guilty by reason of mental disease or defect was not ineffective assistance of counsel. In Lacy III , this court considered whether the trial court erred in finding that the failure to present the affirmative defense was not ineffective assistance of counsel. We affirmed the finding of the circuit court. This issue was not remanded to the circuit court in that opinion. On remand, a circuit court is vested with jurisdiction only to the extent conferred by our opinion and mandate. Ward v. State , 2017 Ark. 215, 521 S.W.3d 480. Any proceedings on remand that are contrary to the directions contained in the mandate from the appellate court may be considered null and void. Dolphin v. Wilson , 335 Ark. 113, 983 S.W.2d 113 (1998). In Lacy III , our remand was limited to the incorrect standard applied by the trial court to the claim that Lacy received ineffective assistance of counsel during the penalty phase of the trial and the trial court's failure to make the findings required by Rule 37.5. Because the issue of the affirmative defense was not remanded to the trial court in Lacy III , the trial court did not have jurisdiction to consider it on remand. Therefore, we reverse and dismiss as to this issue.

Lacy next argues that the trial court clearly erred in finding that trial counsel's failure to investigate and present mitigation evidence to the jury was not ineffective. Lacy contends his counsel was ineffective for failing to pursue neuropsychological testing and present neuropsychological mitigation evidence to the jury. He further contends that, if counsel had done so, members of the jury potentially would have found as mitigating circumstances that he suffered from extreme emotional or mental disturbance and may also have found that he was impaired by mental disease.

As recounted above, neither the report from Dr. Ross nor the report from Dr. Grundy indicate that Lacy suffered from any mental disease or neurological deficits. Dr. Grundy did suggest to counsel that a neuropsychological consult might be needed. According to Dr. Grundy's testimony at the Rule 37 hearing, this is what led counsel to consult with Dr. Forrest. Dr. Forrest indicated that he did not believe neuropsychological testing would be beneficial. Far from ignoring the issue of neuropsychological testing, counsel explored it and was told by an independent expert that it was not needed. This conclusion was repeated during the Rule 37 proceeding by Dr. Price, who testified that he saw no indication of brain damage and was highly critical of the conclusions reached by...