Ward v. State

• Citation: 539 S.W.3d 546
• Decision Date: 01 March 2018
• Docket Number: No. CR–98–657,CR–98–657
• Parties: Bruce Earl WARD, Petitioner v. STATE of Arkansas, Respondent
• Court: Supreme Court of Arkansas

539 S.W.3d 546

Bruce Earl WARD, Petitioner

v.STATE of Arkansas, Respondent

No. CR–98–657

Supreme Court of Arkansas.

Opinion Delivered March 1, 2018

Jennifer Horan, Federal Defender, by: April Golden and Scott W. Braden, for appellant.

Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

Petitioner, Bruce Earl Ward, requests this court to recall the mandate from his resentencing in Ward v. State , 338 Ark. 619, 622, 1 S.W.3d 1, 3 (1999) ( Ward III ), asserting that he was entitled to an independent defense expert to aid in his defense regarding his competency.

In early 2017, the governor of Arkansas set Ward's execution for April 17, 2017. Subsequently, Ward filed a motion to recall the mandate in this matter and stay of execution until the United States Supreme Court issued its opinion in McWilliams v. Dunn , ––– U.S. ––––, 137 S.Ct. 1790, 198 L.Ed.2d 341 (2017), contending that McWilliams had a direct impact on his claim pursuant to Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ward further asserts that we should overrule our precedent holding that a competency evaluation at the Arkansas State Hospital satisfies Ake . We granted the stay of execution and took the motion as a case.

This is a death-penalty case with a long history before this court. The facts of Ward's underlying case are as follows:

[O]n August 11, 1989, Little Rock Police Sergeant Michael Middleton was patrolling the area near the Jackpot convenience store on Rodney Parham Drive. Upon pulling into the parking lot, he noticed that the store's clerk was not at her normal work station. He then went into the store to try and locate the clerk. After he had looked through the store and was unable to find the clerk, Middleton called other officers to assist in the search. In the meantime, Middleton began to check outside the store, near the restrooms. He observed Ward walking from the restrooms toward a motorcycle that was parked nearby. Middleton spoke to Ward and told him that he was looking for the store's clerk. Ward told the officer that the clerk was inside the store, stocking. Ward stated that he had just had a cup of hot chocolate with the clerk and that she had given him the key to the restroom. Moments later, Sergeant Scott Timmons discovered [Rebecca] Doss's body lying on the floor of the men's restroom. She had been strangled to death. Ward was arrested and subsequently convicted of the murder.

Ward III , 338 Ark. 619, 622, 1 S.W.3d 1, 3.

In Ward v. State , 308 Ark. 415, 827 S.W.2d 110 (1992) ( Ward I ), we affirmed Ward's capital-murder conviction for the death of Doss. Although we affirmed Ward's conviction, we reversed and remanded for resentencing based on an evidentiary error. Upon remand, Ward was again sentenced to death. However, we reversed and remanded his sentence for a second time because a transcript of the record from the second sentencing was incomplete. Ward v. State , 321 Ark. 659, 906 S.W.2d 685 (1995) ( Ward II ) (per curiam). At his 1997 sentencing, Ward was sentenced to death for a third time. We affirmed his sentence on appeal in Ward III . Ward next filed a petition for postconviction relief under Ark. R. Crim. P. 37.5. We affirmed the circuit court's denial of that petition in Ward v. State , 350 Ark. 69, 84 S.W.3d 863 (2002) ( Ward IV ). On July 16, 2010, Ward filed a petition to reinvest jurisdiction in the circuit court to consider a petition for a writ of error coram nobis asserting he was incompetent at the time of trial and entitled to a writ of error coram nobis. On September 30, 2010, we summarily denied Ward's petition.

In 2013, Ward next filed motions to recall the mandates from his direct appeal ( Ward I ), resentencing ( Ward III ), and the denial of postconviction relief ( Ward IV ) based on his mental competency and asserted that this court should overrule its precedent pertaining to Ake . In Ward v. State , 2015 Ark. 60, 2, 455 S.W.3d 302, 305 ( Ward V ), we denied the motion to recall the mandate in Ward's direct appeal. In Ward VI , 2015 Ark. 60, at 2, 455 S.W.3d 818, at 820, we denied Ward's motion to recall the mandate in Ward's resentencing. In Ward v. State , 2015 Ark. 62, 1, 455 S.W.3d 830 ( Ward VII ), we denied the motion to recall the mandate in Ward's postconviction matter. Accordingly, we denied all three motions to recall the mandates.

Now before the court, Ward has filed a motion to recall the mandate in Ward III , asserting again that Ward was entitled to an independent mental health expert under Ake ; that this court misinterpreted Ake ; that McWilliams could possibly be a seminal case in this area; and that the court should therefore stay his execution pending resolution of this matter. On April 17, 2017, we took the motion as a case and entered a stay of execution. On June 19, 2017, the Supreme Court issued its opinion in McWilliams , and the issue of whether to recall the mandate in Ward's case is now before us. We deny the motion to recall the mandate for the reasons discussed below.

Standard for Recalling the Mandate and the Doctrine of Law of the Case

"The power of an appellate court to recall its mandate, if the circumstances warrant it, is recognized both in federal courts and state courts across the country." Robbins v. State , 353 Ark. 556, 563, 114 S.W.3d 217, 221 (2003) (internal citations omitted). This court will recall a mandate and reopen a case only in extraordinary circumstances. Id. In Nooner v. State , 2014 Ark. 296, at 7–8, 438 S.W.3d 233, 239, we explained our standard for recalling a mandate:

[O]ur decision in Robbins is patently clear that recall of our mandate is an extremely narrow remedy. Indeed, we stated in Robbins that recall of our mandate is to be granted only in extraordinary circumstances as a last resort to "avoid a miscarriage of justice" or "to protect the integrity of the judicial process." SeeRobbins , 353 Ark. [556, 563],114 S.W.3d [217, 222 (2003) ] (quoting Calderon v. Thompson , 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), and Demjanjuk v. Petrovsky , 10 F.3d 338, 357 (6th Cir. 1993) ).

Regardless of any inconsistencies in our decisions concerning the mandatory satisfaction of the three Robbins¹ factors, what has remained consistent in these cases has been a discussion of the three Robbins factors and this court's overarching concern that we will reopen a case only to address an "error in the appellate process," meaning an error that this court made or overlooked while reviewing a case in which the death sentence was imposed. See, e.g. , Engram v. State , 360 Ark. 140, 147, 148, 200 S.W.3d 367, 369, 370 (2004) (observing that the purpose of recalling the mandate in Robbins was to "correct an error in the appellate process" and emphasizing that "the Robbins case hinged on the fact that an error was made during this court's review, and the recall of the mandate was intended to give this court an opportunity to address an issue it should have addressed before"). We have also been consistent in considering motions to recall mandates in criminal cases only where the death penalty has been imposed. See, e.g. , Maxwell v. State , 2012 Ark. 251, 2012 WL 1950253 (per curiam).

Nooner , 2014 Ark. 296, at 8–9, 438 S.W.3d at 239. Accordingly, circumstances requiring this court to recall a mandate occur in extremely limited circumstances.

Next, with regard to the doctrine of law of the case, in United Food & Commercial Workers International Union v. Wal–Mart Stores, Inc. , 2016 Ark. 397, 504 S.W.3d 573, we explained the law-of-the-case doctrine:

[T]he doctrine of law of the case prohibits a court from reconsidering issues of law or fact that have already been decided on appeal. The doctrine provides that a decision of an appellate court establishes the law of the case for trial upon remand and for the appellate court itself upon subsequent review. The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and to avoid reconsideration of matters once decided during the course of a single, continuing lawsuit.

"As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law." Ward VII , 2015 Ark 62, at 5, 455 S.W.3d at 833.

I. The Court Should Recall the Mandate in Ward's Resentencing to Correct a Defect in the Appellate Process

In Ward's motion to recall the mandate, he asserts that he was denied the assistance of a mental-health expert to evaluate, prepare, and present a defense in violation of Ake and urges the court to grant his motion. Ward's argument is two-fold. First, he asserts that the State did not meet the minimum Ake requirements, arguing that this court's interpretation of Ake is a defect in the appellate process. Second, Ward contends that McWilliams clarifies the Ake requirements, and he urges this court to recall the mandate from his resentencing, alleging that his case does not comply with McWilliams .

First, we review Ward's allegation that there is a defect in the appellate process and that this court's interpretation of Ake "falls dramatically short of what Ake requires." Ward contends that this court has misinterpreted and erroneously applied the Ake standard for thirty years. Ward repeatedly asserts that this court has held that an examination by a "state doctor meets the requirements of Ake ." Ward reshashes the same arguments he made in Ward VI , where we recounted Ward's claims as follows:

[W]e turn to the facts of Ward's case. At the time of his 1997 sentencing, Ward must have made the threshold showing that his sanity at the time of the offense would be a significant issue and an error occurred in this court's review that requires us to recall the mandate in Ward III. The record demonstrates that on February 14, 1997, Ward filed a motion for appropriation of funds for expert assistance

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