Newman v. State

Cite as 2014 Ark. 7

SUPREME COURT OF ARKANSAS

No. CR-12-118

RICKEY DALE NEWMAN Opinion Delivered January 16, 2014

APPELLANT

APPEAL FROM THE CRAWFORD

V. COUNTY CIRCUIT COURT

[NO. 17-CR-2001-109]

STATE OF ARKANSAS HONORABLE GARY COTTRELL,

APPELLEE JUDGE

REVERSED AND REMANDED.

COURTNEY HUDSON GOODSON, Associate Justice

Appellant Rickey Dale Newman appeals the order entered by the Crawford County

Circuit Court denying his petition for writ of error coram nobis. For reversal, Newman

contends that the circuit court erred (1) by denying his motion for judgment on the

pleadings; (2) in finding that he was competent to stand trial; (3) by refusing to admit

evidence of his innocence; (4) in finding that the prosecution did not fail to disclose

exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (5) by

refusing to consider other alleged discovery violations. We find merit in the second issue

raised on appeal and reverse and remand for a new trial. Because Newman is receiving a new

trial based on the issue of competency, we need not address the remaining arguments on

appeal. See Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238.

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Factual Background

The record in this case discloses that, in late January 2001, officers with the Van Buren

Police Department arrested transients Marie Cholette and her boyfriend, John Evans.

Although Cholette was discharged the next day, Evans remained incarcerated, and Cholette

stayed in the area awaiting Evans’s release. On February 15, 2001, Benny Billy, another

transient who was known as “Indian Billy,” discovered Cholette’s decomposing body in a tent

at his hobo camp located in the vicinity of Lee Creek Park. Cholette had been brutally

murdered. According to the medical examiner, she had sustained an antemortem wound to

her neck that measured eight-and-one-quarter inches long and which transected the right

carotid artery. Cholette had suffered multiple stab wounds and lacerations to her chest, and

her nipples had been removed. She also had been sliced open from her sternum to her pelvic

bone, exposing her intestines. Her liver had been removed from her body, one half of which

was missing from the crime scene. In addition, while alive, Cholette had sustained extensive

trauma to her anus and vagina, which had been cut out of her body. Cholette’s jaw had been

broken, and she had received significant contusions to her left eye. She had multiple

contusions on her arms that were described as defensive wounds. The autopsy also disclosed

that Cholette’s pelvis contained ashes and burned debris. Testing revealed that Cholette had

a therapeutic concentration of amitriptyline in her system, as well as a small amount of

alcohol.

Also on February 15, 2001, Van Buren police officers interviewed Newman, who was

also a transient rail rider, but who had grown up in the area and still had family who lived

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there. In his statement, Newman, whose rail name was “Renegade,” claimed that he had

gone to the area referred to as the “T-camp” with Cholette, where they had met a trio of

men whom Newman identified as “Psycho,” “Snake,” and “Copper.” Newman said that

Cholette and the three men were huffing paint and that he decided to leave Cholette at the

camp because the men were “crazy,” as they were speaking of “satanic worship” and the need

to perform a “human sacrifice once a week.” Newman also told the officers that the men said

that they were staying “up there by Indian Billy’s” camp. Newman denied knowing anything

about Cholette’s murder. However, he agreed to give blood and hair samples for DNA

analysis.

Detective Brent Grill of the Van Buren Police Department interviewed Newman again

on March 2, 2001. During this interview, Grill advised Newman that he had learned from

Newman’s uncle, Doug Ross, that Newman had taken Cholette to Ross’s house and that

Ross had driven them to the Shamrock Liquor Store. Grill also informed Newman that he

had obtained a video from the liquor store dated February 7, 2001, showing Newman and

Cholette inside the store buying wine and cigarettes. Newman was wearing a camouflage

coat during the interview, and Grill also asked Newman what had happened to the jacket that

Newman had been wearing in the video. Newman replied that he had traded the coat at the

Rescue Mission, a facility near the railroad tracks where transients were fed and provided a

place to spend the night. Eventually, Newman confessed to the murder. He said, however,

that “I’ll never say I did it. I’ll [sic] Psycho probably did it. Rickey Newman didn’t do it.”

Newman asked to write his statement, and Newman explained that at home he was known

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as Rickey Newman and that he was Renegade on the track. He wrote that he becomes

“Seaco” when he blacks out and that he cannot control “Seaco.” Further, Newman wrote

that when he becomes “Seaco” he will kill “anyone he see[s] as a threat” and stated that he

was “guilb [sic] of all this.”

Grill arrested Newman following this interview, and officers executed a search warrant

at the home of Newman’s adoptive mother to obtain articles of his clothing. The prosecuting

attorney subsequently charged Newman with capital murder. At his arraignment on March

27, 2001, Newman expressed the desire to waive all of his rights and to plead guilty. The

circuit court did not accept the guilty plea and appointed Robert Marquette, a public

defender, to represent him. At a hearing on May 9, 2001, Newman informed the circuit

court that he had fired Marquette. After warning Newman of the disadvantages of self-

representation, the court permitted Newman to represent himself. The circuit court left

Marquette as stand-by counsel and available to Newman if he wanted “to ask [Marquette]

anything about the law.”

While in jail awaiting trial, Newman wrote numerous letters to the circuit court and

to the prosecuting attorney. In them, he at times proclaimed his innocence. On other

occasions, he professed guilt and insisted that he receive the death penalty. Newman also

repeatedly asked for the evidence to be turned over to him. In March 2002, Newman filed

a motion seeking the production of evidence, and the circuit court held a hearing on this

request on March 27, 2002. During the hearing, the prosecution tendered the police report

of Detective Grill; the initial findings from the crime lab concerning cause of death; a

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laboratory-analysis report from the crime lab; the report of Newman’s mental examination;

and the medical examiner’s autopsy report. The following day, Newman acknowledged the

receipt of 214 pages of documents from the prosecution. The prosecuting attorney

subsequently filed a supplemental response to Newman’s discovery motion that included

additional reports of laboratory analysis performed at the crime lab and other police reports.

On April 8, 2002, the circuit court conducted another hearing. At that time, Newman

informed the court that Marquette was going to examine the witnesses at trial but that he

(Newman) wished to make a statement to the jury. On May 7, 2002, Newman executed and

filed of record a written waiver of the right to counsel.

On May 9, 2002, Newman initiated contact with law enforcement officers, and he

gave another statement. In this statement, Newman said that he drugged Cholette and that

he “sacrificed her” when she passed out. He also stated that he “punched her eyes out” with

a six-inch knife that he had bought at Walmart. Newman advised that he had hidden articles

of his and Cholette’s clothing and the knife he used in the rafters of a shed that had since

burned. Newman recalled that the “records” stated that there were items of food on a table,

and he said that, although it was not mentioned in the report, there were hot dogs that he had

purchased sitting on the table. Newman further stated that he planned on killing Cholette

and that he enjoyed it. He said that he killed her because she was a fraud in that she claimed

to be a black-rag member of the Freight Train Riders of America but that she was a fake

because her “concha,” a device that is used to tie a scarf, was made of tin instead of silver.

When questioned, Newman repeatedly stated that everything that he did to Cholette was

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done inside of the tent.

On June 5, 2002, the circuit court held the omnibus hearing. At that time, Newman

presented the testimony of Dr. Charles Mallory, a psychologist with the Arkansas State

Hospital, who testified that Newman was competent to stand trial. Mallory found that

Newman was not afflicted with a mental disease or defect, and he testified that he saw no

signs or symptoms of multiple-personality disorder. Further, Mallory testified that, if a

defendant were desirous of confessing to the crime and requesting a jury to sentence him to

the death penalty, this would not of itself be an automatic symptom of mental disease or

defect. He stated that a person who is rational and competent to stand trial can still have a

deep and abiding conviction that he wished to pay for his crime. Based on Mallory’s

testimony and his report, the circuit court found that Newman was competent to stand trial.

Newman’s trial began and concluded on June 10, 2002. Newman insisted on wearing

jail clothing and shackles during the trial. The prosecution produced the testimony of the

officers involved in the investigation; testimony from the medical examiner; testimony

recounting Newman’s statements and confessions; photographs of the crime scene and of

Cholette’s body, both as she was found in the tent and at the autopsy; testimony as to blood

splatters found in the tent; and testimony that hairs microscopically similar to Cholette’s were

found on Newman’s sweatpants, gloves, and boots; and testimony that one head hair that was

microscopically similar to Newman’s hair was contained in the vacuum samples taken from

a sleeping bag and comforter found at the crime scene. In addition, Dr. Mallory testified that

Newman was fit to proceed and that he could appreciate the criminality of his conduct at the

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time of the murder.

Newman elected to testify. He said:

What happened, uh, I came into town, I met up with this lady, she was

wearing a black rag and a tin concha, she was a fake. She claimed that she hurt

one of our brothers during a little alteration [sic] with her and her husband, uh,

I went across the bridge and I bought her alcohol. I drugged her up. I got her

drunk, and I killed her. Cut her from head to toe. I killed her more than once,

I killed her until I got tired of killing her, until the passion of blood went away.

Then I left it lay like a dog and walked away. Washed my hands of the whole

affair.

I killed her. When I told Officer Grill that Psycho killed her, that was a lie.

According to all these experts, there is no Psycho. I know there’s a rage in me,

I know after a certain point and I am very capable of hurting real bad, and there

is other cases right here in this town where I’ve hurt people real bad. I don’t

know why they wasn’t brought up. A fact’s a fact. I get headaches. I’ve

probably been having them for the last nine or ten years or so; the military

don’t have nothing to do with this. I did get the headaches even when I was

in the service.1

The truth is the only justice in this case is the death penalty, and as ladies and

gentlemen of the jury, you got to think that could have been you, your

daughter, anybody you might know. It just had to be somebody. It happened

to be somebody claiming to be who she wasn’t. I don’t know. You probably

don’t understand gang activity, but we got our own turf we got to protect.

Garbage’s got to be taken out at all costs. If you want to ask a few questions,

I’ll tell you. I don’t know how to tell you I’m guilty. I did it period.

During the prosecutor’s closing argument, Newman became disruptive when the

prosecutor suggested that Newman killed Cholette as part of a sex crime after she rejected his

advances. As a result, the circuit court ordered him to be gagged with duct tape.

Subsequently, the jury returned a verdict of guilty. During the sentencing phase of trial, the

1

Newman served in the marines for over one year and received an honorable

discharge.

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prosecutor presented evidence that Newman had been convicted of second-degree battery in

1988. Newman offered no evidence in mitigation. Instead, he addressed the jury with the

following statement:

I, Rickey Newman, freely tell the jury that I killed the lady in cold blood. I

first cut her a little at a time to make it hurt, and then I stabbed her for fun and

to watch her bleed. Then I cut her from her neck to her groin, and then I took

some of her insides out and cooked some of her organs to see how long they

would cook.

Let’s see—take to cook—how long it takes to cook them. I enjoyed murdering

her very much and I had a lot of fun killing her and making her hurt real bad.

This tells you that I am guilty of murder. The first time I saw her I knew I was

going to kill her and make her hurt real bad with a lot of pain. Her family

needs a little peace and comfort in their lives, and the only peace and comfort

her family will ever have is to put the one that killed their loved one to

death....

....

The only verdict that will serve this horrible crime in the mutilation of the lady

I killed—for the lady’s peace, is for her killer to be put to death in this case. I

know the jury will come back with the right decision.—And the decision is

yours, jury, and only the jury’s. I am—I am myself asking for the death penalty

and ask for punishment in this capital murder case.

....

I will not appeal on the right verdict of death, the only decision there is to

come back with, and I will ask for a fast execution day.

Thank you, ladies and gentlemen of the jury, I know you will not—I know

you will do the right thing for her family, and the taxpayers, and yourself. The

right justice for all is death. Come back with the right decision. Respectfully,

Rickey Newman, stone-cold killer. Thank you, ladies and gentlemen.

After deliberations, the jury returned a verdict of death. Accordingly, the circuit court

entered a judgment and commitment order reflecting Newman’s conviction of capital murder

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and sentence of death.

Subsequently, an appeal was lodged in this court. While the appeal was pending,

Newman filed a pro se petition seeking to waive the appeal of the judgment so that the

sentence could be executed immediately. Newman v. State, 350 Ark. 51, 84 S.W.3d 443

(2002) (per curiam). This court denied the request, holding that appellate review of the

conviction and sentence was mandatory in a death-penalty case pursuant to Arkansas Rule of

Appellate Procedure–Criminal 10 (2002). Id. We subsequently affirmed Newman’s

conviction and sentence. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003).

Following the issuance of this court’s mandate, the circuit court held a hearing,

pursuant to Arkansas Rule of Criminal Procedure 37.5(b) (2002), to consider the appointment

of counsel to represent Newman in postconviction proceedings. See State v. Newman, 357

Ark. 39, 159 S.W.3d 309 (2004) (per curiam). During the hearing, the circuit court advised

Newman of his rights with respect to Rule 37.5 relief, specifically informing Newman that

any waiver of those rights and Newman’s willful failure to pursue relief under Rule 37.5

would result in the death sentence being carried out against him. Id. In sworn testimony to

the circuit court, Newman stated that he wished to waive his rights to an attorney and to

waive his right to postconviction relief. Id. Thereafter, the circuit court entered an order

concluding, in relevant part, that Newman was competent to waive his right to

postconviction relief. Id.

The State subsequently filed a petition requesting that this court lodge the record of

the waiver proceedings and review the circuit court’s order. We denied the State’s petition,

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due to Newman’s statement during the waiver hearing that he was under the influence of his

medication, namely Thorazine. State v. Newman, 355 Ark. 265, 132 S.W.3d 759 (2003) (per

curiam). Accordingly, we remanded the matter for the sole purpose of having the circuit

court order the Arkansas State Hospital to conduct an evaluation of Newman to determine

whether he was competent to proceed with the Rule 37.5 hearing and to waive his rights

under that rule. Id.

Pursuant to our remand, Dr. Mallory conducted an examination of Newman and

concluded that Newman did not suffer from any mental disease or defect and that he had the

capacity to make a knowing, intelligent, and voluntary waiver of his right to have an attorney

advise him on his postconviction rights. Newman, 357 Ark. 39, 159 S.W.3d 309 (2004).

Following receipt of Dr. Mallory’s report and after hearing Newman’s own testimony

regarding the waiver, as well as Newman’s testimony that he agreed with Dr. Mallory’s

determination of competency, the circuit court found that Newman was competent and had

knowingly and voluntarily waived his postconviction rights under Rule 37.5. Id. We affirmed

the circuit court’s decision. Id.

Later, through appointed counsel, Newman filed a petition for federal habeas corpus

relief in the United States District Court for the Western District of Arkansas. At hearings

before the federal district court, Newman presented new evidence that Dr. Mallory, the sole

witness at Newman’s state competency hearings, used improper tests to determine Newman’s

competency; improperly administered Newman’s tests; and incorrectly graded the test he

administered to Newman, resulting in a higher IQ score. See Newman v. Norris, 597 F. Supp.

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2d 890, 895 (W.D. Ark. 2009). In addition, Newman presented evidence, not considered by

the state courts regarding the reasonableness of his legal decisions at the time of his trial and

appeals, as well as evidence not considered by the state courts regarding his claim of actual

innocence. Id. Accordingly, the federal district court concluded that Newman had failed to

exhaust all of his claims in the state courts and directed Newman to return to state court to

pursue further postconviction relief. Id.

Newman then petitioned this court to reinvest jurisdiction in the circuit court to allow

him to seek a writ of error coram nobis. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61.

In his petition, Newman alleged that he was incompetent at the time of trial and that the

prosecutor had withheld exculpatory evidence in violation of Brady v. Maryland, supra. Id.

Newman acknowledged that he had sought the death penalty in this case and that he had

attempted to waive his direct appeal. Id. However, he stated that he was not motivated to

secure a death sentence because of remorse or the desire to take responsibility for a wrong he

had committed. Id. On the contrary, he claimed that he was entirely innocent of the murder.

Id. Further, Newman maintained that he had wished to be executed because his impaired

thinking made him believe that death was more bearable than continuing to live. Id.

This court granted Newman permission to pursue coram nobis relief on both grounds.

As to the issue of competency, we held:

We agree that Newman appears to have a meritorious claim regarding

his incompetence at the time of trial. Dr. Mallory provided the only evidence

of Newman’s competency to stand trial. Subsequently, in federal district court,

Dr. Mallory admitted that he made significant scoring errors when

administering tests to Newman. These scoring errors undermine the validity

and reliability of Dr. Mallory’s testimony at trial. Dr. Mallory’s declaration of

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Newman’s competence is suspect, as it was based upon flawed data. This,

together with Newman’s exhibits, affidavits, and proposed testimony in support

of his petition, warrant granting permission for leave of the court in this case.

Id. at 10–11, 354 S.W.3d at 67. Regarding the Brady claims, this court stated:

Based upon the record before us, we conclude that it appears that there

were possible Brady violations in this case. We are mindful of Newman’s

confessions; however, Newman has presented evidence that he might have

been incompetent when he made the confessions. As such, we are in no

position to determine whether, had the suppressed evidence been disclosed to

the defense and presented at trial, there is a reasonable probability that the

judgment of conviction would not have been rendered. This determination

must first be made by the circuit court. We add that, for the reasons previously

stated, Newman exercised diligence in his claim of Brady violations. Based upon

the foregoing, we grant Newman’s petition to reinvest jurisdiction in the

circuit court to seek a writ of error coram nobis on his claim of Brady

violations.

Id. at 18, 354 S.W.3d at 71. Based on these findings, we granted permission for Newman to

file a petition for writ of error coram nobis limited to the claims of whether he was competent

to stand trial and whether there were Brady violations in his case.

Upon returning to circuit court, Newman filed a thirty-six-page petition for writ of

error coram nobis. In addition, Newman submitted a motion for judgment on the pleadings

in which he argued that the record of trial demonstrates that the trial judge should have

entertained serious doubts as to his competency to stand trial, such that the trial judge should

have held a hearing on the issue. Further, Newman argued that the trial judge’s failure to do

so entitled him to a new trial due to the denial of procedural due process.

The circuit court denied the motion for judgment on the pleadings by an order dated

March 19, 2010. The circuit court held a hearing on the coram nobis petition on March 10

through 18, 2011. At the hearing, the circuit court declined to consider evidence of

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Newman’s innocence that he argued was pertinent to the issue of mental competency and the

Brady claims. The court also excluded from its consideration three alleged Brady violations

because they were not among those presented to this court in granting leave to proceed with

coram nobis relief. Subsequent to the hearing, but prior to the circuit court’s entry of an

order, Newman filed a motion to supplement the record with additional evidence regarding

one of the Brady claims. The circuit court denied this motion on July 14, 2011, and the court

entered an order denying the petition for writ of error coram nobis on July 15, 2011. In its

order, the circuit court found that Newman had been competent to stand trial and that the

prosecution did not fail to disclose exculpatory evidence. It is from this order that Newman

prosecutes the instant appeal.

Standard of Review

The State maintains that the circuit court’s decision must be judged under the

substantial-evidence standard of review. However, the State is mistaken. The substantial-

evidence standard is the test that prevails on review of a circuit court’s competency

determination made at trial. See Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006). By

contrast, this is an appeal from the circuit court’s denial of coram nobis relief. The standard

of review for the denial of a petition for writ of error coram nobis is whether the trial court

abused its discretion in granting or denying the writ. Magby v. State, 348 Ark. 415, 72 S.W.3d

508 (2002) (citing State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000)). An abuse of

discretion occurs when the circuit court acts arbitrarily or groundlessly. Isom v. State, 356

Ark. 156, 148 S.W.3d 257 (2004). The trial court’s findings of fact, on which it bases its

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decision to grant or deny the petition for writ of error coram nobis, will not be reversed on

appeal unless they are clearly erroneous or clearly against the preponderance of the evidence.

Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). 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.

Davenport v. State, 2013 Ark. 508, ___ S.W.3d ___.

Competency to Stand Trial

On appeal, Newman contends that the circuit court’s finding that he was competent

to stand trial is clearly erroneous and that the circuit court’s denial of coram nobis relief on

the issue of competency constitutes an abuse of discretion. Newman argues that the circuit

court failed to take into account the testimony of his expert witnesses and their opinions that

he lacked the capacity to make rational, self-protective decisions. He also asserts that the

circuit court misplaced its reliance on the testimony of the State’s expert witness.

In support of his claim of incompetency, Newman presented the testimony of Dr.

Pablo Stewart, a forensic psychiatrist. Stewart conducted a total of four clinical interviews

with Newman: twice in October 2006, once in June 2007, and once again in February 2011.

He diagnosed Newman with chronic post-traumatic stress disorder (PTSD); major depressive

disorder; cognitive dysfunction, especially as it involves executive functioning; and

polysubstance dependence. Stewart testified that there was a synergy between substance abuse

and PTSD and depression in that persons afflicted with these disorders self-medicate with

drugs to address the symptoms of the diseases. Stewart based the diagnosis of PTSD on the

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recurring trauma Newman experienced as a child, which he called the “most depraved that

I’ve worked with.” Stewart recounted that Newman was raised in abject poverty by a

neglectful mother who married a man who “terrorized” the family for seven years of

Newman’s young life. Newman witnessed the beatings of his mother and his siblings, and

he also was subjected to repeated, “merciless” beatings and torture, which included being

chained outside to a tree or a stake, sometimes overnight. His mother and her husband also

left the children alone to fend for themselves without food for days or weeks at a time. His

mother died in the home when he was eleven or twelve years old after a painful, year-long

battle with cancer. Stewart testified that Newman would become agitated and anxious when

topics came up that reminded him of the trauma, and he said that Newman’s reactions to

these associative memories were reflexive and automatic.

With regard to the diagnosis of major depression, Stewart said that the features of this

disorder were a sad or irritable mood and the lack of ability to experience pleasurable

activities. He said that persons who have this illness experience an excessive sense of

worthlessness and guilt. Stewart said that the illness results in cognitive distortions and the

inability to think clearly and rationally. He said that another symptom of major depression

is chronic thoughts of death and suicidality. Stewart stated that Newman made it very clear

that he wanted to die. Stewart believed that Newman’s desire to be executed and his suicidal

ideation were symptomatic of the cognitive distortions created by his depression. He said that

this desire was not an informed choice but that it was rather a reflection of his cognitive

impairments superimposed with his psychiatric disorders. He testified that Newman’s

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conditions and impairments affect his ability to make rational, self-protective decisions and

that his depression and PTSD impact him in a way that causes him to have the inability, as

opposed to an unwillingness, to look at a situation and appreciate it for what it really is.

Stewart stated that Newman possessed only a superficial understanding of the

proceedings and that he did not have a rational understanding of his legal situation. Stewart

rescored the three-part MacArthur Competency Assessment Tool administered to Newman

by Dr. Mallory in 2002 by using the raw data provided by Mallory. In the understanding

section of the test, Stewart arrived at a score of 11, whereas Mallory gave Newman a score

of 16. A score of 11 indicates that Newman had a factual understanding of the legal system

in general. On the reasoning section, Stewart assessed a score of 8, while Mallory gave a score

of 13. A score of 8 places Newman in the clinically significant impairment range for

reasoning, which corresponds to the ability-to-assist-counsel prong of the test for competency.

Therefore, Stewart concluded that Newman was clinically and significantly impaired in his

ability, as opposed to an unwillingness, to assist counsel. In the appreciation section of the

test, Stewart noted a glaring error committed by Mallory in that Mallory indicated that one

of the questions was “not applicable;” thus he did not give a score, which resulted in Mallory

arriving at a score of 8 or 10 on this section. Stewart said that the manual does not give the

discretion to pick and choose the questions that are asked. Even so, Stewart testified that a

score of 8 places Newman in the clinically significant impairment range. When Stewart

rescored this section, he arrived at a score of 4, meaning that Newman was impaired in his

rational understanding of his legal situation. Stewart testified that, in his opinion, Newman

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was not competent to stand trial. He felt, however, that Newman’s conditions were treatable.

Additionally, Stewart noted that Newman was not capable of being interviewed by

him without becoming agitated, particularly when being questioned about his childhood.

Stewart testified that Newman once attempted to fire both him and Newman’s attorney

during one of the interviews. He noted also that Newman had not been willing to be

interviewed by Dr. Gray from the state hospital, and Stewart said that this decision was not

rational and was indicative of ongoing mental illness.

Dr. Ricardo Weinstein, a forensic neuropsychologist, also testified on Newman’s

behalf. Although Newman refused to meet with Weinstein in advance of the coram nobis

hearing, Weinstein had previously interviewed Newman twice in October 2005. After

having Newman complete a battery of tests, Weinstein concluded that Newman has

significant cognitive deficits and brain dysfunction with particular compromise to the frontal

lobes of the brain. Using the Wechsler Adult Intelligence Scale (WAIS-III), Weinstein

assessed Newman’s full-scale IQ at 67, a score that placed Newman in the range of intellectual

disability. Newman scored a 55 on another IQ test. According to Weinstein, the results of

these tests demonstrated that Newman had a compromised working memory. Weinstein did

not assess Newman’s adaptive-functioning abilities to determine whether he was mentally

retarded because Newman would not permit it. Newman also attained low scores on the

Wide Range Achievement Test on reading, spelling, and arithmetic, and his scores on this test

placed him below the first-grade level. Newman also did poorly on the Facial Recognition

Test that is aimed to identify problems in appreciating social cues. On the Ray Complex

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Figure Test, Newman’s performance indicated that he lacked the ability to plan and to

determine what is relevant and what is not relevant. On a test designed to measure executive

functioning, Newman scored three standard deviations below the mean, which signified that

less than one percent of the population obtain a score that low. Weinstein noted that

Newman showed no signs of malingering and that Newman’s effort in completing the tests

suggested that he was performing to the best of his ability.

Weinstein concurred in the diagnoses of PTSD and major depressive disorder. He said

that these conditions limited Newman’s ability to think and that persons suffering from those

conditions do not perceive things correctly and do not process information adequately.

Weinstein also opined that Newman does not understand the meaning of a right and that he

has a limited ability to understand court proceedings. Weinstein testified that he asked

Newman about the crime, and Weinstein said that Newman told him the same thing that he

had first told the police, namely that he had left Cholette alive at the T-camp. Weinstein

stated that Newman informed him that he could not commit suicide, as he considered it

cowardly, and that he admitted guilt only because he wanted to be killed and put out of his

misery.

Weinstein further testified that Newman was not capable of making rational decisions

and that he was not aware of the consequences of his choices. He said that Newman’s

impairments have an impact on his ability to make decisions that are self-protective.

Ultimately, Weinstein concluded that Newman was not competent to stand trial:

In Mr. Newman’s capital trial in 2002, he was suffering from major mental

disease in the form of major depression; post traumatic stress disorder; and he

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was suffering from cognitive limitations. So, he had both major mental illness

and a condition that would limit his capacity to understand certain concepts.

I don’t think he had the capacity to consult with counsel with a reasonable

degree of rational understanding, and to have a rational and factual

understanding of the proceedings against him. I think the mental disease and

disorder that he experiences impinging his ability, as we said before, trusting an

attorney; communicating with an attorney; following legal proceedings;

intervening in a logical, rational matter; communicating information in a

logical, rational manner to the attorney; trusting the attorney.

Finally, Weinstein opined that Newman has the capacity to be restored to competency with

proper medication and psychiatric intervention.

Dr. Clint Gray, a psychiatrist at the state hospital, testified for the State. Gray was not

able to interview Newman because Newman refused to be evaluated by him, and this was

Gray’s first attempt at performing a retrospective competency evaluation. In his testimony,

Gray did not dispute Weinstein’s assessment of Newman’s cognitive impairments and low

intellectual functioning. He did not disagree with Weinstein’s conclusion that Newman was

not malingering. He also agreed with Stewart’s diagnoses of PTSD and depression. Gray

said, however, that the presence of these disorders does not automatically mean that Newman

was incompetent to stand trial. In forming his opinion, Gray focused on the numerous letters

that Newman had written before trial, as he said that they gave insight into Newman’s

abilities at the time of trial. He testified that the letters were coherent and goal-directed.

Gray noted that Newman spoke of his constitutional rights, indicating that Newman knew

that certain things are guaranteed under the law. Gray observed that Newman demanded

evidence from the crime lab and expressed the idea that he was entitled to the information

because he was acting as his own attorney. In other letters, Newman kept asking for evidence

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to be provided to him, and he mentioned that he was writing his own opening and closing

statements. According to Gray, these requests indicated that Newman was making reasonable

preparations for his trial. Gray made the observation from one letter that Newman, in

reference to a crime-lab report, understood that the microscopic similarity of hairs was not

a basis for personal identification and that Newman was also aware that there was no fiber

evidence connecting him with the offense. In yet another letter, Newman asked why no

DNA tests had been performed on the blood, which Gray considered reasonable and rational.

Newman also wrote that his family wanted him to “play like I’m mentally ill,” but Newman

stated that he would not do so, which meant to Gray that Newman understood that this was

a defense option. In a letter written close to trial, Newman spoke of asking the jurors

questions about whether they believed in the death penalty. Gray testified that the letters, as

well as Newman’s statements in court, demonstrated that Newman understood that he was

charged with capital murder and that the penalty for that offense was death. Finally, Gray

relied on a letter Newman had written to the Veterans Administration advising of his situation

and wanting the benefits to go to his mother. In addition, Gray referenced the medical

records from prison noting the absence of psychosis.

Gray was also impressed by Newman’s ability to undergo evaluations and to complete

the psychological tests. He testified that Newman’s ability to give full effort on the testing

suggested that he could assist his attorney at trial.

Gray testified that, although Weinstein scored Newman’s IQ at 67, no testing for

adaptive functioning had been done for a diagnosis of mental retardation. He said, however,

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that there was evidence that Newman’s adaptive functioning was good in that, even though

he was a vagrant, he fed himself; showed up at the homeless shelter at appropriate times; and

that he managed to get his government check every month. He did say, however, that there

was room for disagreement as to whether Newman’s adaptive abilities would place him in the

category of being mentally retarded.

Gray also rescored the MacArthur Competency Assessment Tool given by Mallory.

In the understanding section, he gave a score of 13 or 15, which would fall in the minimal

or no-impairment range. For reasoning, he gave a score of 10, which indicates mild

impairment. For appreciation, he gave a score of 6 or 8, which falls within the clinically

significant impairment range. Overall, Gray’s opinion was that Newman had the capacity to

understand the proceedings and to effectively assist in his own defense at the time of trial.

On cross-examination, Gray stated that it was not his job to determine if Newman

made poor choices, but he said that someone can make poor decisions and still be fit to stand

trial. Gray acknowledged that major depressive disorder is a serious mental illness that can

cause a diminished capacity to think and to concentrate and that recurring thoughts of death

and suicide are common among patients who have this disorder. He agreed that severe

depression causes cognitive distortions and that sufferers of the disease have skewed

perceptions of reality. Gray also agreed that PTSD is a debilitating condition. He

acknowledged that a person with cognitive impairments in executive functioning has an

impaired ability to think abstractly and difficulty in assessing the consequences of different

behaviors. When asked about Newman’s desire for the death penalty, Gray said that

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Newman also gave a reason that was different from depression, which was justice for the

victim’s family. He acknowledged that the request for death could be a product of depression,

but he stated that it could also be a reasonable request for justice. Gray agreed that, if a desire

for execution was a product of mental illness and cognitive distortions, a person making that

request would not be competent to make that decision. Gray said that many of Newman’s

symptoms were consistent with depression and PTSD but that the same symptoms could also

be attributed to Newman’s personality style.

The circuit court also heard the testimony of Marquette. In his testimony, Marquette

stated that he had received a tip from a person at the mission indicating that someone else had

committed the murder. This information led him to believe that Newman may have

witnessed the murder but that he was not the actual killer. Marquette testified that, despite

Newman’s instructions to the contrary, he began to investigate the tip but learned that the

person he was investigating had died. He said, however, that Newman was not allowing him

to do anything to help and that he was sure that Newman would not have allowed him to put

the person on the witness stand, even if he had been able to locate the man. Marquette

testified that Newman did not permit the hiring of an investigator and that Newman refused

another psychological evaluation. He also said that Newman did not want him to interview

any witnesses. Marquette further testified that he moved for a directed verdict at trial even

though Newman had told him not to make the motion.

In addition to the testimony, we also note that Newman had several outbursts during

the coram nobis hearing. For example, he interrupted Stewart’s testimony, called Stewart a

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“liar,” and asked that he be removed from the witness stand. At one point, Newman did not

appear to know whether he was in state or federal court. During his exchange with the

circuit court, Newman stated,

She [Newman’s counsel] walked into my life, and my whole life changed. And

it’s just, I’m working to die, and she’s working – I ain’t actually figured out

what she’s working on, but I think she – like I said, I’m working to die, and

she’s working against me to die. They’re taking my choice away. But I guess

that’s the law. I don’t understand why the law says I can’t die. That’s the whole

point, I can’t – can’t grasp. It’s my choice.

On another occasion, Newman asked for his execution and to end the proceedings. During

the course of this outburst, he said the following:

I think the law, the way I understand – you see, I ain’t real smart. Ms. Brain’s

[Newman’s counsel] got me a dictionary and if you watch her – I try to write

how much words down I don’t understand. I go back to my cell, and I look

them up and try to figure out what’s going on in this courtroom. And I don’t

have no idea. And I can’t hear these people half the time. And I’m really

confused right now. I really think my rights is being violated by this court. I

know you ain’t violating, but that’s the way I feel. I think you should let me

die right now. I mean, I think you should end this because I’m asking to end

it.

....

I don’t understand what they’re telling me. I don’t understand what these

people are trying to tell me. I don’t understand what they’re trying to do for

me. They take away my right to die.

....

The law books talk about suicide. There’s some doctor that, er, he calls it

assisted suicide. And it says suicide is up to the person. Now, I ain’t standing –

I ain’t standing here – I, I’ll never – I will not admit suicide – I ain’t saying I’m

gonna admit suicide for this. To me, a suicide is weak. That’s why they have

you to kill me, Your Honor, to kill me, or these people, whoever, kill me

‘cause suicide is weak. A man who commits suicide is really committing suicide

because he’s decided and it’s showing he can’t deal with society. That’s why

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suicide people – that’s why they take their own lives. A man that is executed

stands up. I ain’t messing with suicide. You killing me. It’d be different if I put

the needle in my own arm. That’s suicide. I’m being legally executed by the

State; am I right?

The record also discloses that the circuit court allowed breaks during the course of the hearing

when Newman interrupted the proceedings.

After taking the matter under advisement, the circuit court subsequently issued an

order finding that Newman was competent to stand trial in June 2002. The court credited

the testimony of Dr. Gray that, even if Newman had an IQ of 67, he could still be

competent. Based on Gray’s testimony and the court’s own observations of Newman during

the hearing, the court found that “Dr. Gray’s opinion most appropriately coincides with the

evidence that the Court considered during the hearing.” With regard to Newman’s

demeanor, the court observed that he was “quiet, apologetic, made notes, discussed matters

with his attorney, made statements to the Court about his wants and desires, and only became

very upset, when mention was made of mental retardation, and any averment was made

relative to his being molested as a child.”

It is well established that the Due Process Clause of the Fourteenth Amendment

prohibits the criminal prosecution of a defendant who is not competent to stand trial. Medina

v. California, 505 U.S. 437 (1992). This bedrock principle is codified at Arkansas Code

Annotated section 5-2-302(a) (Repl. 2006), which provides that a person lacking the capacity

to understand the proceedings against him or to assist effectively in his defense as a result of

mental disease or defect shall not proceed to trial so long as the incapacity endures. Ark.

Code Ann. § 5-2-302 (Repl. 2006). A criminal defendant is presumed to be competent,

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however, and the burden of proving incompetence is on the accused. Haynes v. State, 346

Ark. 388, 58 S.W.3d 336 (2001). To be competent to stand trial, a defendant must have “the

capacity to understand the nature and object of the proceedings against him, to consult with

counsel, and to assist in preparing his defense.” Drope v. Missouri, 420 U.S. 162, 171 (1975).

This court has defined the test of competency to stand trial as “whether a defendant has

sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding and whether he has a rational, as well as factual, understanding of the

proceedings against him.” Thessing v. State, 365 Ark. at 390, 230 S.W.3d at 532 (quoting

Haynes v. State, 346 Ark. 388, 392, 58 S.W.3d 336, 339 (2001)); Deason v. State, 263 Ark. 56,

562 S.W.2d 79 (1978) (citing Dusky v. United States, 362 U.S. 402 (1960)). This is,

essentially, a two-part test, with incompetency to stand trial being established if either part is

demonstrated. United States v. Cunningham, 556 F. Supp. 2d 968 (S.D. Iowa 2008).

Competence to stand trial is rudimentary, for upon it depends the main part of those

rights deemed essential to a fair trial, including the right to effective assistance of counsel, the

rights to summon, to confront, and to cross-examine witnesses, and the right to testify on

one’s own behalf or to remain silent without penalty for doing so. Cooper v. Oklahoma, 517

U.S. 348, 354 (1996). Nonetheless, competence “has a modest aim: It seeks to ensure that

[the defendant] has the capacity to understand the proceedings and to assist counsel.” Godinez

v. Moran, 509 U.S. 389, 402 (1993). It is recognized that not every manifestation of mental

illness demonstrates incompetence to stand trial. United States v. Turner, 644 F.3d 713 (8th

Cir. 2011) (citing Vogt v. United States, 88 F.3d 587, 590 (8th Cir. 1996)). Similarly, neither

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low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be

equated with mental incompetence to stand trial. Lyons v. Luebbers, 403 F.3d 585 (8th Cir.

2005).

In the present matter, all three experts were confronted with the difficult task of

conducting a retrospective evaluation of Newman’s competency to stand trial in June 2002.

However, their efforts were necessary because of the serious mistakes made by Mallory when

he formed his initial opinion that Newman was fit to stand trial. With that said, the three

experts who testified at the hearing agree that Newman has significant cognitive defects and

limitations. The experts are in accord that Newman’s IQ lies within the range of mental

disability. They all agree with the diagnoses of major depression and PTSD and the

debilitating symptoms that these illnesses can produce. The experts also agree that Newman

had a rudimentary understanding of the proceedings against him. The opinions diverge

primarily with respect to the effect that Newman’s deficits and mental illnesses have on his

capacity to consult with his lawyer with a reasonable degree of rational understanding. On

this prong of the competency test, Weinstein offered the opinion that Newman’s efforts to

engineer his own conviction and execution were neither rational nor volitional. Instead, he

believed that Newman’s behavior was the result of suicidality and his cognitive inability to

envision and plan a tolerable life for himself. Stewart also opined that Newman’s

preoccupation with death and the desire to die impeded his ability to make rational, self-

protective decisions. Both Weinstein and Stewart stated the opinion that Newman’s capacity

to effectively assist counsel and to make rational choices was overcome by a compulsion to

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die as a combined result of his cognitive deficits and mental illnesses. On the other hand,

Gray’s opinion was that Newman’s writings and especially his ability to complete

psychological tests, and the effort Newman put forth in taking the tests, demonstrated his

ability to effectively cooperate with others.

Here, the circuit court relied on the opinion offered by Gray that Newman was

competent to stand trial. This court generally defers to a circuit court’s determination of

credibility in postconviction matters. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001).

However, a circuit court’s acceptance of an expert’s testimony on the issue of competency is

not beyond appellate review. As explained by the Eighth Circuit Court of Appeals in United

States v. Ghane, 593 F.3d 775, 781 (8th Cir. 2010):

It is certainly within a district court’s province to choose one expert’s opinion

over a competing qualified expert’s opinion. See [United States v. Ghane, 490

F.3d 1036, 1040 (8th Cir. 2007)]. Nonetheless, in crediting an expert’s opinion,

it is not the opinion itself that is important, but the rationale underlying it. See

[United States v. Whittington, 586 F.3d 613, 618 (8th Cir. 2009)] (“Even expert

opinion on competency rises no higher than the reasons on which it is

based[.]”).

When we closely examine the rationale underlying Gray’s opinion that Newman was

competent, we are not convinced that his opinion adequately addressed the ability-to-assist

prong of the test for competency. Gray’s primary focus was on the letters Newman had

written. Gray also considered Newman’s cooperation in completing psychological testing as

indicative of an ability to assist counsel. While the letters perhaps give insight into Newman’s

overall factual understanding of the proceedings, which comprises only one prong of the

competency test, they are not a fair gauge for assessing the capacity to assist counsel with a

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rational degree of understanding. Nor are we persuaded that the ability to undergo

psychological testing correlates with the capacity to reasonably and rationally engage with an

attorney. It appears to this court that, if completing the tests necessary to determine

competency is considered an indication of competency, then only those who are incapable

of completing the tests, while also not exhibiting signs of malingering, can be found

incompetent. Clearly, this cannot be the test of competency. In addition, Gray’s opinion is

at odds with his own scoring of the MacArthur test, as the scores Gray gave revealed the

presence of impairment in two categories of the test, including the part that assesses the

capacity to assist counsel. Moreover, Gray recognized that Newman’s suicidality could be a

product of his cognitive deficits and his mental illnesses and that such a compulsion would

render him incompetent to stand trial. Although Gray offered an alternative explanation that

Newman may have wanted justice for the victim and her family, he did not refute the

opinions of Stewart and Weinstein that Newman was driven by irrational suicidal impulses.

In sum, we conclude that Gray’s opinion does not provide a basis upon which to find that

Newman had the capacity to assist counsel with a reasonable degree of rational understanding.

After reviewing the entire record, we are left with a definite and firm conviction that

a mistake was made. Drs. Stewart and Weinstein testified that Newman was not fit to stand

trial because he was unable to engage in rational, self-protective behavior. Given Newman’s

obvious bent on self-destruction, Drs. Stewart and Weinstein believed that Newman was not

capable of cooperating with his attorney in a meaningful way. Their conclusions are fortified

by the record, beginning with the manner in which Newman conducted himself before trial,

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at trial, and even during the coram nobis hearing. Marquette also adamantly testified that

Newman had shut down the pursuit of any defense options and strategies. As shown by the

record of trial, no mitigation evidence was even offered on Newman’s behalf. Taking

everything into account, we are persuaded that the record overwhelmingly illustrates that

Newman’s cognitive deficits and mental illnesses interfered with his ability to effectively and

rationally assist counsel. Therefore, we hold that the circuit court abused its discretion in

denying Newman’s petition for writ of error coram nobis, and we have no choice but to

reverse and remand for a new trial.

Reversed and remanded.

Julie Brain, for appellant.

Dustin McDaniel, Att’y Gen., by: Darnisa Evans Johnson, Deputy Att’y Gen., for

appellee.

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