Dirickson v. State

Annabelle Clinton Imber, J., dissenting. I must disagree with the majority’s conclusion that appellant is not entitled to an additional expert evaluation under the principles enunciated by the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68 (1985).

Based upon rulings by this court in Richmond v. State, 320 Ark. 506 899 S.W.2d 64 (1995), and by the Eighth Circuit Court of Appeals in Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994), our review of this case should begin with the following inquiries: 1) did appellant show that sanity at the time of the offense was likely to be a significant factor, 2) did appellant make a showing that an independent expert would have aided in his defense and 3) would a denial of such assistance result in an unfair trial. I would find that all the above inquiries should be answered in the affirmative.

With regard to the first inquiry, the court’s order for a mental evaluation was sufficient to show that appellant’s sanity at the time of the offense was likely to be a significant factor. With regard to the second inquiry, the facts support appellant’s contention that an expert would have aided in his defense. It is undisputed that a CAT scan performed at DeQueen Regional Hospital in October of 1985 revealed that the appellant suffered from a brain abnormality known as agenesis of the corpus callosum.

Following this initial evaluation, appellant spent thirty-five days at the state hospital and was examined by Dr. Reginald J. Rutherford, a neurologist, who confirmed the brain abnormality, but opined that the abnormality would not influence appellant’s® mental state or behavior. AppeEant then arranged for Michael Gelbort, Ph. D. neuropsychologist, to review and evaluate his medical records. Dr. Gelbort opined that appeEant’s condition was a “rare and significant condition,” with which “serious behavior disorders and discontrol syndromes can occur,” and recommended further evaluation by a neuropsychologist or behavioral neurologist.

Furthermore, Ronald Huisman, Ph.D. neuropsychologist, testified that appeEant’s medical records included a recommendation by Dr. Armani, a neurologist at the University of Arkansas Medical Center, that appeEant be further examined by a neuropsychologist. Because a neuropsychological examination was never performed, Dr. Huisman concluded that appeEant had “not been adequately evaluated” and that further evaluation was necessary to assess the “degree to which this man is impaired.”

The above facts indicate that appellant made a more than adequate showing that an “independent expert would have aided in his defense.” Starr, supra. It is clear from the information presented to the court that further evaluation by a neuropsychologist would help determine the true nature of the effects of appellant’s brain abnormality and thereby aid in his defense. Without the assistance of further evaluation, appellant was left without the ability to determine whether he had a viable defense based on mental defect. “The right to psychiatric assistance . . . means the right to use the services of a psychiatrist in whatever capacity the defense counsel deems appropriate — including to decide, with the psychiatrist’s assistance, not to present to the court particular claims of mental impairment.” Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 1990).

The trial court denied appellant’s request for funds to hire an expert witness based upon the opinion of the state’s neurologist that the brain abnormality would not influence appellant’s mental state or behavior, especially in light of the appellant’s intoxication at the time of the crime. Although there was some evidence that appellant’s brain abnormality would have no effect on his mental state or behavior, appellant introduced evidence to show that such ' a determination was premature, because appellant had never been evaluated by a neuropsychologist as recommended by not only Drs. Gelbort and Fluisman, but also by Dr. Armani at the University of Arkansas Medical Center. Given such an incomplete evaluation, the trial court should have appointed a competent neuropsychologist to “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, supra. “The validity of the defense should then have been for the jury to decide.” Cowley v. Stricklin, 929 F.2d 640, 643 (9th Cir. 1991). Considering the above points, it is clear that appellant made an adequate showing that a denial of expert assistance resulted in an unfair trial, especially in light of the fact that a defense of mental disease or defect was appellant’s only viable defense.

The majority attempts to distinguish the Eighth Circuit’s ruling in Starr, supra, by suggesting that the appellant in Starr had a significant history of mental illness, whereas appellant’s mental history in this case began only after he was jailed for the present offenses. The majority’s distinction ignores appellant’s history of headaches and blackouts, and a below average I.Q. score (80).

The majority further states that “the state is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial.” I must respectfully disagree with that characterization of appellant’s actions. After the trial court denied appellant’s original request for funds to hire an out-of-state neuropsychologist, appellant tried to find a qualified expert in Arkansas. Appellant’s counsel attempted to procure an expert from the V.A. hospital in Little Rock, but that expert did not do “criminal work.” Ultimately, appellant’s counsel hired a neuropsychologist in Arkansas to review appellant’s medical records. Considering these attempts by appellant’s counsel to locate an expert, it is clear that appellant was not “expert shopping” for a second opinion. Rather, appellant was merely attempting to obtain the neuropsychological evaluation that had never been done, notwithstanding recommendations by several experts that such an evaluation was necessary.

For the above reasons, I must respectfully dissent.

Glaze and Thornton, JJ., join in this dissent.