Ward v. State

• Court: Arkansas Supreme Court
• Writing for the Court: PAUL E. DANIELSON, Associate Justice
• Citation: Ward v. State, 2015 Ark. 60, 455 S.W.3d 303 (Ark. 2015)
• Decision Date: 26 February 2015
• Docket Number: No. CR–91–36,CR–91–36
• Parties: Bruce Earl Ward, Petitioner v. State of Arkansas, Respondent

2015 Ark. 60

455 S.W.3d 303

Bruce Earl Ward, Petitioner

v.State of Arkansas, Respondent

No. CR–91–36

Supreme Court of Arkansas.

Opinion Delivered February 26, 2015

Jennifer Horan, Federal Defender, by: Josh Lee; and Joseph W. Luby, Death Penalty Litigation Clinic, for petitioner.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for respondent.

Opinion

PAUL E. DANIELSON, Associate Justice

Petitioner Bruce Earl Ward moves this court to recall the mandate in Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992) (Ward I ), the direct appeal of his conviction for capital murder.¹ In Ward I, this court affirmed Ward's conviction for capital murder, but reversed his death-penalty sentence and remanded for resentencing. In the instant motion to recall the mandate, Ward asserts that a recall is warranted because there was a defect or breakdown in the appellate process when this court failed to recognize the circuit court's violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and appellate counsel failed to raise the issue in Ward's direct appeal. We deny the motion.

The facts relevant to the instant motion, as taken from the record, are these.² Ward was charged with capital murder in connection with the death of Rebecca Doss, a clerk at a Jackpot convenience store in Little Rock. At his plea and arraignment hearing, Ward pleaded not guilty to the charge. At the hearing on October 9, 1989, the circuit court asked whether there was any possibility of Ward claiming that he was not guilty by reason of mental disease or defect. Ward's defense counsel answered in the affirmative, but explained that he wished to communicate more with Ward about it and would keep the court apprised.

Ward subsequently changed his plea to not guilty by reason of mental disease or defect, and the circuit court entered an order for Ward's commitment to the Arkansas State Hospital for examination and observation for a period not to exceed thirty days. The report by Drs. Michael Simon, the supervising forensic psychologist, and O. Wendell Hall, the forensic medical director, resulting from that examination was filed with the circuit court on December 14, 1989, and provided, in relevant part:

This is to certify that this is a true and correct report of the findings in the above case as derived from the following: 1) Historical data from outside sources; 2) Medical history, physical and neurological examinations; 3) Laboratory and other physical studies; 4) Psychological assessment by staff psychologist.

Diagnosis: Axis I—None; Axis II—Antisocial Personality Disorder.

The defendant appears to be aware of the nature of the charges and the proceedings taken against him. He is capable of cooperating effectively with an attorney in the preparation of his defense.

At the time of the commission of the alleged offense, the defendant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

Ward disputed the report and requested a competency hearing, which was held on January 18, 1990. At the hearing, Dr. Simon, who had been Ward's evaluating psychologist, testified that Ward spent around sixteen days on the forensic unit of the hospital, arriving on November 29, 1989, and departing around December 14 or 16.³ During that time, Dr. Simon said, he had interviewed Ward twice and had seen him at a staffing. Dr. Simon testified that while he could not recall the specifics of his first interview with Ward, he assumed that he had interviewed him, which would have included discussing why Ward was there, if Ward understood why he had been sent to the hospital, and what the hospital's role was and what it was to do. Dr. Simon's belief was that the first interview lasted anywhere from forty-five minutes to an hour in duration.

Dr. Simon testified that in the subsequent interview of Ward, which he surmised lasted a little longer than the first, he had performed a verbal IQ test on Ward that he believed to be “fairly reliable.” He stated that Ward had scored well above average, which would rule out any kind of mental retardation. Dr. Simon further testified that he had administered a “proverbs test” and the “Competency to Stand Trial Assessment Instrument.”

With regard to the report filed with the court, Dr. Simon testified that the historical data to which he referred was information from Pennsylvania, where Ward had previously spent time; he was unsure, however, of the source of the information, stating that it came from either the Pennsylvania Department of Correction or the police. Dr. Simon further explained that physical and neurological examinations were routine and, he assumed, had been conducted. Finally, when asked of his psychological assessment referenced in the report, Dr. Simon responded that Ward's Axis II diagnosis of antisocial personality disorder was “based on historical information, [Ward's] history of getting in trouble with the law, [and] not following societal rules.”

Dr. Simon then described the typical staffing conducted prior to a report being issued. He testified that it typically lasts an hour and one-half to two hours and that the process includes a presentation of each participant's information on the patient, discussion of the patient and the information, an interview of the patient, and a final decision, typically reached by consensus. Dr. Simon recalled that he was present at Ward's staffing along with Dr. Hall; Dr. Bunton, Ph.D., psychologist; Mario Gurgley, social worker; and Jim Gregory, social worker intern; but, he stated, there could have been more. He further testified that, while the data from the social worker usually includes information on the patient obtained from other sources, such as family, and past records, including medical and criminal, a history on Ward, other than his criminal history, was lacking because of Ward's refusal to allow contact with his family.

Dr. Simon testified that he neither observed any psychotic behavior by Ward, nor observed any behavior to indicate the presence of a mental disease or defect. He further explained that antisocial personality disorder is not the type of disorder that would cause one to be incompetent to stand trial or to lack appreciation for the criminality of his acts and opined that Ward did not suffer from a mental disease or defect at the time of the incident that would have rendered him incapable of conforming his conduct to the law, that he could appreciate the criminality of his conduct, and that he was capable of understanding court procedure and assisting in his defense.

Dr. Hall also testified about his familiarity with Ward, stating that he had sat in on Ward's staffing and reviewed his records, many of which had been obtained from the prosecutor's case file. He explained that, while his personal contact with Ward was brief, he was aware that Ward had not caused any disruption on the observation unit or been difficult with the nursing staff. Dr. Hall observed that Ward's case seemed to be a “straightforward” one and that he believed Ward to be the most intelligent defendant that the unit had examined in the last two and one-half years, or as long as Dr. Hall had been working at the state hospital.

Dr. Hall agreed that Ward was competent to participate in his own defense and that he was capable of understanding the criminality of his act at the time it had allegedly been committed. In describing Ward's Axis II diagnosis of antisocial personality disorder, Dr. Hall stated that it

refers to a basic kind of personality, basic patterns of behavior. It this [sic ] case is a maladaptive behavior, way of dealing with life.... The past history is extremely important in arriving at that diagnosis.... Yes, [also relevant to Ward's diagnosis of antisocial personality disorder was that he showed no evidence of anxiety or depression and his lack of worry about his present circumstance appeared notable.] ... [It is relevant because i]t's fairly common for antisocial personalities to actually show very little anxiety at all even in situations that most people would really be in a sweat about. He seems kind of unconcerned about it.... [A diagnosis of antisocial personality disorder relates to a finding of competency at the time of the incident in that t]he antisocial personality doesn't have any impairment of [Ward's] ability to think or reason or impair his judgment. It's more of a way of like dealing with himself as being more important than other people and really being outside the rules that other people have to go by.

Dr. Hall also opined that he was confident with the judgment that he and the staffing committee had reached on Ward's culpability.

At the conclusion of the testimony, Ward challenged the report, asserting that an adequate evaluation had not been performed. Specifically, he pointed to the rushed nature of the evaluation, alleging that had more time been taken, a different diagnosis might have resulted. He then requested an independent psychiatric evaluation.

The circuit court denied Ward's motion, stating that he

failed to meet the burden.... The burden was on you.

As a matter of fact, specifically, the doctor—neither doctor was asked if he had more time would it in any way, shape, form or fashion probably alter his opinion. I get the distinct impression that they were not pressed for time. These are bureaucrats. They get paid regardless. They're going to spend all the time necessary. I didn't see anything in any question that you asked or anything to alert me that this wasn't a good, straightforward evaluation.

Ward again challenged the speed of the evaluation, contesting the circuit court's ruling that “they had all the time in the world,” and the circuit court ruled that Ward “failed to meet the burden that they needed more time.”

The next day, Ward filed a motion for the appropriation of funds for expert assistance, relying on the United States Supreme Court's ruling...