O'Rourke v. State, CR

• Decision Date: 27 February 1989
• Docket Number: No. CR,CR
• Parties: Michael O'ROURKE, Petitioner, v. STATE of Arkansas Respondent. 87-17.
• Court: Arkansas Supreme Court

Page 916

765 S.W.2d 916

298 Ark. 144

Michael O'ROURKE, Petitioner, v. STATE of Arkansas Respondent.

No. CR 87-17.

Supreme Court of Arkansas.

Feb. 27, 1989.

Jeff Rosenzweig, Little Rock, for petitioner.

Steve Clark, Atty. Gen., Little Rock, for respondent.

PER CURIAM.

The petitioner Michael O'Rourke was convicted of the capital murder of his parents and sentenced to death by lethal injection. We affirmed the conviction. O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). The petitioner now seeks permission to proceed in circuit court for post-conviction relief pursuant to Criminal Procedure Rule 37.

The petitioner's chief allegations claim that his counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The petitioner first alleges that his counsel was ineffective for not introducing any evidence in mitigation during the penalty phase of the trial. At trial, the defense maintained that the petitioner did the crime but that he was not responsible because of mental disease or defect. Both the prosecution and the defense introduced evidence on that point. After the defense was rejected and the jury returned a guilty verdict, neither party put on any evidence of aggravating or mitigating circumstances. The state did not argue against mitigation during the punishment phase but did argue as one aggravating circumstance that the petitioner murdered his parents for pecuniary gain. The defense argued that the petitioner did not deserve the death penalty because of his extreme mental illness. The petitioner claims that his attorney was ineffective by simply arguing against the death penalty rather than presenting evidence in mitigation. During the guilt phase of the trial the only witness for the defense was a psychologist who testified that in his opinion the petitioner was too mentally disturbed at the time of the crime to realize the criminality of his conduct. If other witnesses were available, the burden is on petitioner to state specifically who the potential witnesses were and what evidence they would have given, and to demonstrate that the defense suffered actual prejudice by their absence such that he was denied a fair trial, the outcome of which is likely to have been different. See Strickland v. Washington, supra. As the petitioner has failed to show what other evidence the defense could have offered which would have changed the outcome of the trial, he has not met that burden.

It is true that in Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981), we found that diminished mental capacity has different significance in the determination of guilt and in the imposition of sentence once guilt has been determined. We went further in Neal and found that in that case counsel was ineffective for failing to put on evidence of diminished mental capacity during the penalty phase of trial, even though such evidence was presented in the guilt phase. The distinction between Neal and petitioner's case is that in Neal there was additional evidence of the appellant's diminished mental capacity other than that already introduced, and the closing statement was brief and failed to emphasize the significance of the appellant's diminished mental capacity. In this case, the petitioner has failed to show any evidence that could have been presented but was overlooked. Moreover, the petitioner's attorney pleaded during the penalty phase that his client not be put to death because of his mental disorder. The petitioner has not shown that his attorney's performance was deficient.

The petitioner next claims that his attorney was ineffective for failing to object prior to trial on the ground that the petitioner was incompetent to stand trial and in failing to offer evidence to support the objection. The petitioner also suggests that the court should have ordered a competency hearing sua sponte. The petitioner notes that his trial was delayed for three years due to his insanity, that he had not communicated with his attorney for months before the trial and that he attended the trial in short pants and bare feet. The petitioner states that his attorney should have testified as an officer of the court that his client refused to communicate with him.

Soon after the petitioner was charged he notified the court that his defense would be not guilty by reason of mental disease or defect. The trial court ordered that he be evaluated and on November 23, 1983, four months after the murders, the State Hospital submitted a report stating that the petitioner was incompetent to stand trial. The trial court committed the petitioner to the State Hospital for treatment. On July 31, 1983, the State Hospital notified the trial court that the petitioner was fit to proceed to trial. On December 13, 1984, petitioner's counsel requested a hearing on the petitioner's fitness, and the court ordered the petitioner to the State Hospital for reevaluation. On January 21, 1985, a hearing on the petitioner's fitness was held and a psychologist testified for the defense that the petitioner was unable to assist his attorney in his defense. A psychiatrist from the State Hospital agreed, testifying that the petitioner's assistance to his attorney would be severely compromised by the fact that the petitioner used paranoid beliefs in deciding whether to volunteer information to his attorney. The trial court found that the petitioner was unable to assist in his defense, and he was again committed to the State Hospital. On January 19, 1986, the State Hospital notified the trial court that the petitioner was fit to proceed. In February 1986, the petitioner wrote the trial court, stating that he was competent and asking to proceed to trial.

On August 18, 1986, the defense again contended that the petitioner was not fit for trial and asked for further evaluation. The court ordered two physicians to examine him; they recommended that the petitioner be evaluated once again at the State Hospital. On September 19, 1986, after the evaluation was completed, the State Hospital submitted a report finding that the petitioner was fit to proceed to trial.

A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult counsel and to assist counsel in preparing his defense, may not be subjected to a trial. Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986). In this case, the defense vigorously pursued an insanity defense and throughout the proceeding sought to have the petitioner declared incompetent to stand trial. Obviously a point came where trial counsel felt that his efforts to that end were futile and the trial should proceed. Even if the petitioner's counsel had testified and had had the defense psychologist testify at a last minute competency hearing, it is not probable that the result would have been different. At such a hearing the psychiatrists at the State Hospital would no doubt have opined that the petitioner was fit to stand trial and the psychologist for the defense would have disagreed. Moreover, there is nothing provided to support the assertion that counsel should have sought additional psychiatric testimony. The trial court was aware of the lack of cooperation by the petitioner as it was also aware that previously the petitioner himself had asked to proceed with the trial. The petitioner has failed to show that his counsel's conduct deprived him of a fair trial.

The petitioner contends that his counsel was ineffective for failing to object to the order and form of psychiatric testimony. He states that his counsel should have objected to the state's calling one of the psychiatrists at the State Hospital in its case-in-chief before the defense had embarked upon a strategy. Although the petitioner asserts that this allowed the state to unfairly bolster its case, petitioner makes no real statement of prejudice. Furthermore, the defense had stated its intention to pursue a defense of insanity.

The petitioner claims next that his attorney prejudiced him by stating in opening argument that he was not sure whether his client would testify. He contends that the same prejudice resulted when his counsel elicited on cross-examination of the state's psychiatrist his opinion that if the petitioner was called as a witness he would probably not cooperate. In closing argument, counsel said he wished he could have gotten his client to testify. Counsel was obviously trying to show that his client was being silent not in an effort to hide something, but because he was so mentally disturbed that he could not or would not cooperate in his own defense. Again, as it was purely a matter of strategy, the...